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Contents 1 THE GOVERNMENT TORTUOUS LIABILITY IN THE LIGHT OF THE PROVISIONS OF THE GOVERNMENTS PROCEEDINGS ACT [CAP 5 R.E 2002] IN TANZANIA by Mushobozi julius 2 A brief discussion on the law and applicability of the res gestae rule in Tanzania- Mushobozi, Julius 3 GENERAL PRINCIPLES OF LIABILITY IN TORT-BY MUSHOBOZI 4 A DISCUSSION ON THE DATA ANALYSIS AS THE PROCESS OF BRINGING ORDER, STRUCTURE AND MEANING TO THE MASS OF DATA COLLECTED. 5 THE EXTENT TO WHICH INSURANCE CONTRACT IS NOT A BLESSING ON THE PART OF THE INSUREDas AS IT ISON THE PART OF THE INSURER. BY MUSHOBOZI, JULIUS 6 A DISCUSSION ON WHETHER MONEY CAN RENEW PHYSICAL FRAME THAT HAS BEEN SHATTERED AND BATTERED IN INSURRABALE CONTRACT-BY MUSHOBOZI, JULIUS 7 RECOGNISED AGENTS AND ADVOCATES (CIVIL PROCEDURE) IN TANZANIA 8 PROFSSIONAL CONDUCT (ETHICS) OF LAWYERS/ADVOCATES AS A LEGAL SKILL REQUIRED IN TANZANIA 9 A RESEARCH DESIGN IDENTIFIES THE STRATEGIES THROUGH WHICH A A PLAN OF A RESEARCH IS TO BE CARRIED OUT. THIS IS THE BASIS OF INTERDEPENDENCE BETWEEN A RESEARCH A RESEARCH PLAN AND ARESEARCH DESIGN. 10 COMPETENCE AND COMPELLABILITY OF SPOUSES IN TANZANIA 11 AFRICA HAD ITS BANKING SYSTEM EVEN BEFORE COLONIALISM. CASE STUDY IS TANZANIA. 12 REGULATION OF COMMERCIAL BUSINESS AFTER INDEPENDENCE IN TANZANIA 13 LAWS AND PRACTICE GOVERNING THE BANK OF TANZANIA IN REGULATING AND SUPERVISING THE COMMERCIAL BANKS 14 PRESENTATION OF THE FINDINGS EFFECTIVENESS OF BOT IN SUPERVING COMMERCIAL BANKS IN TANZANIA 15 HUMAN RIGHTS IN TANZANIA 16 ALL CONFESSIONS ARE ADMISSIONS BUT THE REVERSE IS NOT THE SAME- BY Mushobozi, Julius(LL.B 2) Mzumbe University 17 ALL CONFESSIONS ARE ADMISSIONS BUT THE REVERSE IS NOT THE SAME- BY Mushobozi, Julius(LL.B 2) Mzumbe University 18 “Use of the phrase ‘without prejudice’ is inefficacious if the statement is not made as part of the genuine attempt to negotiate a settlement.” 19 “Use of the phrase ‘without prejudice’ is inefficacious if the statement is not made as part of the genuine attempt to negotiate a settlement.” 20 voluntariness of confession- by Mushobozi, julius LL.B Mzumbe university 21 confession must be voluntary 22 article 15 of the convention against torture with confession 23 admissibility 24 scenerio 25 scenerio 2 26 competence and compellability of witnesses-by Mushobozi LLB Mzumbe 27 “…Protracted and irrelevant cross-examination not only adds to the cost of litigation but is a waste of public time” 28 testimony of witnesses 29 burden of proof 30 law is a proffession and not business-Mushobozi 31 duty of advocate to his client-by mushobozi 32 lawyer's duty to defend the client 33 Define environmental impact assessment explaining in brief the international community response to the same 34 The legal profession in Tanzania is the product of the proliferation of number of developments which took place as a result of external influences that encountered our country in several past decades. 35 legal profession we have in Tanzania is a result of the importation of the English legal system in our country 36 the expectation of law school in Tanzania 37 tribunals with their own procedures 38 Tanzania G.N No. 515 of 1991 is outdated and does not Reflect the true workload of the advocate towards his client 39 The duty of an advocate to the state 40 legal aid in Tanzania 41 professional misconduct among the advocates in Tanzania 42 legal profession has constituted itself as a safe heaven from rigours of market forces in tanzania 43 Tanzania, the law is usually a jumble of pieces with the result that the legislator is nearly always faced ............ 44 a critical analysis of the major restrictions and offences in connection to legal practice in Tanzania. 45 scenerio 46 scenerio two 47 scenerio 3 48 tanzania legal instruments 49 scenerio 50 administration of justice 51 scenerio on advocate

[edit] THE GOVERNMENT TORTUOUS LIABILITY IN THE LIGHT OF THE PROVISIONS OF THE GOVERNMENTS PROCEEDINGS ACT [CAP 5 R.E 2002] IN TANZANIA by Mushobozi julius

THE GOVERNMENT TORTUOUS LIABILITY IN THE LIGHT OF THE PROVISIONS OF THE GOVERNMENTS PROCEEDINGS ACT [CAP 5 R.E 2002] IN TANZANIA

By MUSHOBOZI, JULIUS LL.B (MZUMBE UNIVERSITY)

1:0 INTRODUCTION

The core of the question is about the government tortuous liability. This seminar paper intend to give a detailed discussion on it enlightened by the provisions of the Government Proceedings Act, [Cap. 5 R.E 2002] However before we concentrate to the main question it is advisable to the meaning of some key words, the historical background and the scope of this Act.

1:1 Government tortuous liability simply means an obligation imposed on the government under the law of the tort. Generally the duty imposed under the government so as to avoid all tortuous injuries to an individual or private organ. This is supported by the virtue of Section 3(1) of the Act

 ‘…The Government shall be subject to all proceedings, those liabilities  
  in…tort…to which it would be subject if, it were a private persons 
  of full age and capacity…

1:2 Historical background; the law relating to government liability emerged as a result of British rule under Foreign Jurisdiction Act . The Act enabled the crown to have legislative powers in overseas territories, which was exercised by the crown by way of orders in the council. To serve this purpose the Tanganyika order in Council (TOC) was enacted to be the principle enabling the legal instrument. The effect of TOC was to give powers to the governor to enact significant bodies of legislation known as ordinances.

One of these ordinances was The Government Suits Ordinance which adopted the procedures of petition of the right which were operating in England. However, the circumstances of Tanganyika could not permit, thus the ordinance proved inadequate. Hence need for a new piece of legislation. The bill was signed by the then Vice President Kawawa. The bill [The Government Proceeding Bill] sought the reformation of the law. In his remarkable statement he said;

  The main defect of the old legislation is that, it doesn’t enable the   
  government to be sued in a wide range of cases. The most of which is in   
  cases of torts or civil wrongs.

The Government Proceeding Act after the pressure from different interested persons and bodies.

2:3 The Scope of the Act in tortuous liability; the act is currently amended as the Government Proceedings Act . It is divided into five parts namely;

Part ONE is the preliminary part with two sections, 1&2, which serve as an introductory and definition sections respectively. Part TWO stipulates for the substantive law, scope and circumstances under which an individual can proceed against the government. Part THREE comprises of nine sections showing requirements. Part FOUR deals with the judgment and execution and lastly is Part FIVE which carries miscellaneous and supplementary provisions

2:0 LIABILITIES FOR THE GOVERNMENT IN TORT Section 3(1) of the Act imposes liability interlia in tort to Government. The liability in the Act is equated to that of the private person. Form these we gather the extent and scope of such liability in tort under the act. So from there we gather different categories of tortuous liability against the government.

2:1Vicarious Liability; section 3(4) introduces vicarious liability on the government. This liability arises when the law holds one person responsible for the misconduct of another, although he himself is free from person blameworthiness or fault. Thus the provision seeks to make the government vicarious liable for the torts of his servants.

The rationale of this provision is that the government is better placed financially than its servants to be able to bear losses which arise in the course of its daily duties. In Patrick Maziku VSebalili & 8 Others , and Lucas Matafu V. H. M.M. Songambele In the latter case the regional commissioner of Shinyanga Region had formerly ordered the close of the plaintiff’s bar and other premises. Thus the plaintiff sought for temporary injuction. It was stated by the learnt judge that;

I can not imagine how the respondent could have done this in his personal capacity. He must have used his authority as a government officer to effect whatever he did so that the final responsibility lay with the government

And it was held that the action against the Regional commissioner is the suit against the government.

However it is not always the case that the government will be allowed as a codeffender to in the cases where its servant is sued. In the case of Peter Ng’omangoV Gerson M.K Mwanga and The Attorney General where the court rejected the government to join in this case as the co-defendant due to procedural impropriety. Therefore, under the government tortuous liability, all liabilities which fall under the private vicarious organs lie as well in the former.

2:2 Employers Liability; the government may be sued under the employers liability. This occurs as the result of employers-employees relationship, thus the government as an employer will be liable for all injuries sustained by its employees while on duty. The common law has imposed duties on the employer in safeguarding the employees, as provided for under sect. 3(3) of the Act . The government has duty to select competent staff, provide a safe place of work so as to ensure that the employees are reasonably safe and; the duty to provide safe system of work.

2:3 Trespass; section 3(2) of the Act , imposes liability of the government to the third parties in its capacity as owner or occupier of the property. The government is under duty not to commit trespass to the land of a third party either directly or indirectly.

[edit] A brief discussion on the law and applicability of the res gestae rule in Tanzania- Mushobozi, Julius

A brief discussion on the law and applicability

       of the res gestae rule in Tanzania 

     BY MUSHOBOZI JULIUS LL.B (MZUMBE UNIVERSITY)

1:0.INTRODUCTION

The technical term Res gestae to provided by sections 8,9,10 and 16 of Tanzania Evidence Act. The term includes things do (including words spoken) in the course of the same transaction. The section allows facts which are not in issue to be proved in order to assist in proving the facts would have been Inadmissible because they have no direct connection with the fact in issue. Therefore to be Admissible, they have to be contemporaneous so much connected with the fact in issue as to form part of the same transaction.

2:0, DEFINITION

RES-gestae means things done including words spoken forming part of the same transaction. In all transaction that come before the court of Law, there is a fact story behind each such of cases and fact story contains several acts, omission or statements although they are not in the same issue but capable of forming the transaction revealing its true quality and character Res gestae defines as many facts and events of which accompanying contemporaneous statement which are an intergral constituent part

In Lund –v- Inhabitant and C held inter alia that all the acts, declarations made at the time are admissible, when they are calculated to illustrate and explain the character and quality of the fact so connected with it as to constitute one transaction, deriving its credit from the act itself, there must be a main principle and that acts or declarations must be a main principle and that acts or declaration must grow out of that principle transaction and serve to illustrate its character and are contemporary with and deriving some degree of credit from it

2:1, RULES GOVERNING ADMISSIONS OF RES GESTAE

FIRST the act must be in issue or relevant and the declaration must relate thereto. So in R-v- Wainwright . The question being whether A murdered B, a statement by B some hours previous to the crime and while in the act of leaving her lodgings that “she was going to meet A” was held inadmissible since it was no part of the act of leaving but only an incidental remark per Cockburn c.j Second. The declaration must be substantially contemporaneous with the act i.e made either during or immediately before or after its occurrence but not at such an interval as to allow of fabrication event as in the case of R-V-Bedding field

Third. The declaration are no proof of the fact they accompany the existence of such fact must be established independently. And though admissible to explain or corroborate, they are not in general any evidence of the truth of the matter stated so in Parkins–v- Vaughan where A sued B for to be improvement o B having given him into custody on a charge of forging C’s acceptance to a bill of exchange of which A was the drawer and B the indorsee, evidence by B hat C had in refusing to pay the bill state that his name had been forged by A was held admissible as part of the res gestae to show B’s good faith but not to prove the forgery.

2:2, APPLICABILITY OF RES GESTAE BULE

The rule of res gestae is of significant in the admissibility of facts which are not in issue but related or forming transaction to the facts in issue these facts may be statements or acts. Preference of the rule aids the court to adduce what to admit and what not to be admitted in the verification of proving or disproving of the fact but as the part of series of an events.

Res gestae in evidence is applied in the following:- Res gestae rule is applicable in circumstances where the acts constitute the same transaction and where they are connected together with the facts in issue. These are contemporaneous to the fact to issue forming the series of occasions. In Nathan –v- R the court held that for the acts to form a series of transaction it must be inherent in them from the beginning of act and acts should be either in contemplation or necessarily arises from there.

Res gestae is applicable where the statement explain the fact in issue and spoken contemporaneously with the transaction. It must no be given in contemplation. Illustration If X is accused of the murder of Y by beating whatever was said or done by X or Y or bystanders at the place shortly before or after it has to form part of the transaction is a relevant fact.

Another application of res gestae is accepted where acts or statements are made or uttered at the time the act was being done but after act was complete. In the R-v- Bedding field (Supra) the statement was not admitted as the part of res gestae on the ground that it was uttered after the time and in a situation that indicates that the act was completed . Res gestae is applicable to those acts that take place at the same place within which transaction must occur. It will not be admitted where there is no connection between the act and the statement In the case of Ramadhan Ismail –v- Crown the accused was charged with indecently assaulted a girl of 4 years. Immediately after the girl had been assaulted she went home crying where she reached home, she told her father that some boy had put “cheche” in her. Immediately her father went out with her to search for the assailant the girl saw the man and pointed to her father it was held that there was no connection between the act of molestation and the statement made. That the two acts took place at different place and different period of time.

Another situation in which the rule of res gestae is in application is on continuity of action. For the transaction consisting of different acts must be connected together by continuity of action and common purpose or design. In the R-v- Premji Kunji case the deceased was stabbed and killed by a lethal weapon (dagger it was admitted that immediately before the death of the deceased the accused had wounded the deceased brother with a lethal weapon and had uttered threats against him that “I have finished you I am going to show your brother” then he finish him, accused as he had a dagger used it immediately to finish his brother.The court held that the occurrence were so much connected with the wounding of the deceased’s brother should be regarded as a part of res gestae on the trial of appellant on the murder of the deceased.

2:3, CRITICISM ON THE RULE Res gestae has faced a lot of challenges from various scholars. They demand that the rule is not clear for person to determine the admissibility of the evidence has categorically challenged on transaction, time, place and to the nature of the acts and statements falling with the same transaction. First: that the rule gives a wide chasm in the seeks of circumstances for involving the accused on the offence unless the acts was so complete that the accused himself and no other would have been the offender.

The conviction can not sustained on the basic of circumstantial evidence. It is difficult to adduce therefore what facts do not form part of the same transaction and what form part of transaction.

Let’s take that x stabs Y, Z who is in the room witnessing shouts calling R. When R arrived at the scene he founds Y lying down dead, blood flowing and suddenly X runs away. When X apprehended and Z who was an eye witness is not available to testifies what he has seen, and R deposes as to what he heard from Z though is R is not in matter is enough to make it a transaction of stabbing and become under the rule of res gestae

But the conditions for the admissibility under res gestae is that such shouting should be accompanied by transaction or made during the time when stabbing was done. If there is an interval between incidence and shout, it wont be made admissible on the contention that it will cause the witness an opportunity to think over. Doing that by presumption leads to no justice on the area where fabrication was not made.

Second is the problem to conceptualize the issue how recent is recent. Since no uniformity exists in the length of time over which the transaction shall properly held to extend. In case where an agreement between the series of negotiations extending over months or even years, the time covered by the transaction will have to be extended. Extension of time to difficult to see and determine the applicability. There are some grounds where facts are not admissible though plausibly they show all ingredients required to the rule. In this sense a person is deprived of his foreseebility and all rests on court by its discretions.

In the case of Bedding field . (Supra) the circumstance that a woman giving a statement of see “what he has done to me” not to belong to the same transaction and therefore inadmissible is a bar to the process of finding evidence.

The other criticism is on the space or place. The issue is how near is near and how far for the person is misleading, as to the person, where is near the court may find it far. There is no limitation that can be imposed as to the territorial boundaries within which the transaction must occur. Those of sudden quarrel, shouting or slabbing may at one place even in a room, on the other hand, rebellion or other movement cover the breadth of country or of a continent.

In the case Ghurelal –v- state the accused were charged with offence of copyright act. The accused printed the book at hathras and sold it at barcilly the acts at hathras and barely were found to be parts of the same transaction. In the case Ramadhan Is’mail –v- Crolon only movement from the scene to her home was regarded as two acts taking place at different places.

Fourth, there is no clear separation of time and place, in order to make the admissibility as part of res- gestae is a difficult thing. In the Hindru-v- state of HP the accused was tried for committing an offence of rape on a young girl according to prosecution allured Mohini victim of rape with sweets and took her to a nearby field and after having forcible sexual intercourse he left her near his house her mother noticing her saliva smeared with blood and also blooding out of her private parts, Enquired the girl as to what happened. The girl narrated to the statement of victim to her mother about the incidence of rape committed to her.

Court held that that the deposition of the statement of victim to her mother is inadmissible since, to be a part of res gestae must have been made substantially contemporaneously with the act or immediately after it, so that there can be no opportunity for reflection and the statement in this case was simply a narration of the fact such view is misleading where compared to the case of Nguza Viking and others –v-R where the fact of the above discussed case was the same, simply the statements made by victim to their parents were admitted that led to the conviction of the accused.

Another criticism is conception problems. Hearsays are not admitted generally. Telephone calling has taken as hearsay. As the telephone is one of the pillar of communication in modern world hence can lead to proper evidence which would be admitted.

In Ponna Satyanarayana’s case the accused was charged with the murder of his wife and daughter suspecting the wife character. The accused telephoned to the father of the deceased that the accused has killed the deceased. The supreme court held that the statement is in the nature of hearsay evidence and such statement can not be treated as an exception to hearsay evidence as it was not proved to form part of the same transaction of the incident or soon there after so as to make it reasonably certain that the speaker is under stress of excitement in respect of the transaction in question.

2:4, SUGGESTION FOR CRITICISM

To remove ambiguity on the case of time certainty, since there is no uniformity existing in the length of time over which the transaction shall properly be held to extend in Ratlem –v-R the court supports the suggestions by demanding that judges must satisfy themselves that the statement was so clearly made in circumstance. The other area is of hearsay evidence that things like telephone should have to be considered so that the Law of evidence especially on the rule of res gestae could keep pace with development of scientific research as telephone is one of the pillars of development.

3:0, CONCLUSIVELY
Res gestae rule is one of the crucial rule in the law of evidence that is used in the admissibility of those facts which are relevancy to the facts in issue but with great care which help court to reach a sound conclusion of justice adjudication. Proper care and management has to be taken in its application otherwise it may lead to the failure of justice

4:0, BIBLIOGRAPHY

STATUTE

The Tanzania evidence act 1967 (Act .No 6 of 1967)

BOOKS

Batuk Lal       The law of evidence  14th  2001

Dennis I.H     The law of evidence 2nd 2002

Murphy P       Murphy on Evidence 5th 1995

Rantalal .R.    The law of Evidence 18th

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[edit] GENERAL PRINCIPLES OF LIABILITY IN TORT-BY MUSHOBOZI

GENERAL PRINCIPLES OF LIABILITY IN TORT-BY MUSHOBOZI BY MUSHOBOZI JULIUS LL.B (MZUMBE UNIVERSITY)

INTRODUCTION

The law of torts signifies violation of great variety of right and duties, so it is very difficult to give a concise and complete definition of it.But there are different authors who tried much to the meaning of the law of torts,

According to Salmond Tort is a civil wrong for which the remedies in common law is action for unliquidated damages, and which is not exclusively the breach of other equitable obligations Generally tort is civil wrong which is different from crimes, contract, trust or other equitable obligations

Remedies are the compassation which is given the injured party after suffering or getting damage. This can be imposed by the court after proving that it is true that the plaintiff have injured.

General principles liability in tort

The main objectives of the law of tort is to protect harms to the properties, body, and prestige of the persons. Being in that essence there are the basic principles in tort that were established , hereunder are the principles itself

DAMNUM SINE INJURIA

DAMNUM means damage suffered SINE means without, INJURIA means which that is the injury in the violation of legal right. hence the phrase “ damnum sine injuria means” damage suffered without violation of the legal right.According to this maxim damage is not the basis of action unless such damage is the result of violation of legal rights of an individual.

In the case of Ajello –v- Worsley where it was stated that the defendant advertised the plaintiffs pianos at less than their wholesales price, even though he did not have any to sell,other customers ceased to trade with the plaintiff as a result. It was held that defendant had a perfect right to advertise pianos in this way and offer them at any price he liked ,The same was started in the case of Chesmore –v-Richard plaintiff was the owner of the milling , had been using water from a stream for about sixty years. Defendants dug a well in his land as a result of this act, plaintiff mill stop getting water from the stream that suffered, plaintiff sue the defendant in the court of law, Held defendant was not liable for the loss suffered by plaintiff this is due to the fact that defendant had exercised his legal right to dig the well in his own land

In Acton –v-Blandel ,defendant had dug the coil mines on his farm as result the flowing of the water to his neighbour ceased this led to drier of his well, he sue the defendant in the court of laws seeking redresses. Held defendant was not liable as he was exercises his legal right of getting water

Therefore in law of tort wrongful acts are those to which legal right of the aggrieved party is violated, then if in due exercises of your right and the other got injured is not remedied in law

INJURIA SINE DAMNO

INJURIA means injury in violation of the legal right, SINE mean without, DAMNO means damage suffered; hence maxim “injuria sine damno” means violation of the legal right without any damage to the injured party, violation of legal right of the person is actionable even though there is no actual harm or loss. According to Salmond, torts are of two kind’s .One, which is actionable without proof of any damage caused or suffered to the party concerned, Second that are actionable only on the proof of some damage or suffering caused to the plaintiff

In the case of Ashby –v- White in this case the plaintiff was disqualified voter in parliament elections .defendant who was the returning officer wrongfully refused the plaintiff vote. In spite of this still his chosen candidate won the election and no harm that he sustained In the court of law defendant was entitled to remedy the plaintiff for breach of his legal right.

The same can be well seen in the case of Bhim Singh-v- State of J and K, the petitioner a member of national assembly was illegal detained by the police while was going to the assembly session, as the result was thus prevented from exercising his legal right of attending the session .In the supreme court of India plaintiff awarded R.s 50,000 by the way of compensation for his right been violated, which stipulated in the Indian constitution So generally the principle gave the plaintiff right of been compensated if really suffers the damage

UBI JUS IBI REMEDIUM

A tort is a civil wrong for which the remedy is an action for unliquadated damage, thus the main remedy for tort is an action for damage. This principle explain about the right of an injured person that “where there is a right there is also remedies” it is mainly the right to damage which brings such wrongful act within the category of torts. The maxim ubi jus ibi remedium means that where there is a right there is remedy that is to say whenever the right is violated the person whose right has been infringed has remedy against the person who has violated it

The maxim is also said to mean that there is no wrong without a remedy that is to say that whenever someone is wrong he is given some remedies thus we see that these interpretation means one and the same thing. In Ashby-v-White (supra)it should however be noted that the maxim does not mean that there is legal remedy for every moral or politic wrong

THE FAULT PRINCIPLE

Tortious liability can also be determined by the fault principle. Under this principle it is necessary to establish some fault on the part of the wrong doer before be made liable .In tort normally a person is said to act in fault as set up by the laws where he fails to leave in an ideal standard of conduct .The principle that a person should be called upon to pay affinity with the criminal law in the sense that one of its purposes is deterrence, prevention of harmful conduct.

Salmond was logically compelled to say of the decision in Rylands-v- Fletcher which is founded upon a theory of strict liability “no decision in the law of tort has done more to prevent the establishment of a simple uniform and intelligible system of civil responsibility” It must be admitted that fault somehow tends to re- appear even in areas of strict liability. So the criminal injuries compensation board has held that the claimants anti social conduct is a reason for reducing his compensation. The principle consist of three elements as follow

INTENTION

According to Salmond intention means the object or purpose for which the act is done. Intent of wrongdoer has fault knowledge of the effects of his acts, which wants to achieve. Intention can be determined by the conduct of the person who does an act

POSITION IN TORT Intention is irrelevant in law of tort, if the person is injured by the acts of the defendant then he will be liable to that person .In the law of torts,the liability is determined on the ground that every person knows the natural consequences of his acts. In Guille-v- Swan the defendant flew in a balloon but unfortunately has embarked in the garden of the plaintiff. A huge crowd entered the garden to witness him as a result his garden damaged. Court of law held that defendant was liable because loss to the plaintiff garden was the natural consequences of defendants acts as a crowd would naturally wish to see the person flying in the balloon. In Wilkinson-v- Downston defendant in a joke told the plaintiff that her husband had broken her legs in an accident and was admitted in a hospital. This shocked her and she got seriously ill. She sued the defendant contended that he never intended to cause any harm to the plaintiff but a joke. Court held that intention is not an essential element in tort, Defendant knew the natural and probable consequences of his acts which caused the defendant injuries and therefore he was liable as to whether he intended it or not.

NEGLIGENCE

Negligence is an independent tort with a number of elements, what concerned with at this juncture is negligence as the state of mind which is essential in tort for the purpose of the tort of negligence, defendant clearly can not escape liability. An illustration of advice is clearly set out in this case Vaughan-v- Menlove defendant had been warned that his haystack was likely to overheat and catch fire ,which might spread to the land of his neighbour. He was held liable for the damage which occurred when the stack actually catch fire

The limitation period for the tort of negligence (where it causes personal injury) it is three years, but with two important qualifications that;

1)Time does not begin to run until the claimant would knows or ought to know that he has a claim

2)Even when the period has expired the court may disapply the limitation period,

Therefore it is easy to conceive a case in which the claimant would be worse off under the law of battery, than under the law of negligence In the case of Stubbings-v- Webb where the claims for the consequences of child abuse was held to be time barred that it is not always open to him to frame his as the lesser wrong to gain the procedural advantage

RECKLESSNESS

An act is said to be done recklessness, where it is done without caring whatever its consequences might be. So recklessness consist as such constitute a part of fault on the wrongdoer

REMEDIES IN TORT

“Always where there is a right there is remedies too”.

In the law of torts the aggrieved party is entitled to compensation. There are two common measures in awarding compensation that is liquidated and unliquidated damages.

Liquidated damage is compensation which is stipulated into the statute hence no need of calculation or estimation, this method of awarding compensation is ordinarly used in contracts e.t.c. Unliquidated damage is that damage that the court grant to the plaintiff due to the discretionary power which it has, this is quit different to liquidated. Unliquidated is the remedies available in torts Generally, remedies in tort are awarded to aggrieved party as follows,

Substantial damage, these are awarded when claimant has established his case particularly in relation to tort actionable per se such as trespass, but has not shown any loss or Is a small money awarded not by way of compensation for any loss suffered, but merely by way of recorgnization of the existence of some legal right vested in the plaintiff and the violated by defendant. In Ashby-v-White,(supra) Sir John Holt C.J, Held that an elector had a right of action against a return officer who wrongful and maliciously rejected his vote at the election even though the candidate for whom he intended to vote was elected,

Also in Constantine-v-Imperial London Hotels ,the same principle had been exercised as to plaintiff the famous West India Cricketer, was held entitled to nominal damage of five guineas because the defendant wrongful refused to receive him into one of their Hotels to which he wished to go though they provided him with lodging in their other hotels

Substantial damage, this is the kind of damage given to plaintiff for actual damage suffered by him as a compensation for the loss caused to the plaintiff, In estimation of the near amount which will bring him in the same situation in which he was before the injury sustained or are those assessed and awarded as compensation for damage actually suffered by the plaintiff and not simply by way of mere recorgnization of legal right violated

Contemptuous damage ,these are trifling damage as its award is very little ,these sometimes is that plaintiff suffer great damage but because of his conduct he fails to prove that he is entitled to some substantial

Exemplary or punitive damage, the aim of tort is awarding as a compensatory which is often equal to the injury caused to plaintiff. Sometimes damage often to the injury caused to plaintiff in which the amount of damage is very high keeping in view the nature of injury or loss. These damage are awarded in cases where tort is committed intentionally or maliciously .Its aim is to punish rather than award as to deter as well as other from repeating the same behaviour

General or special damage, these are compensation for general damage, general damage is that kind of damage which the law presumes to follow from the wrong complained of and which therefore need not be expressly set out in a plaintiffs pleading, Thus in the case of a collision between two ship due to negligence of the defendant, plaintiff will be able to recover general damage for the loss of the use of his ship during the repairs, even if be not used for trading or profit

CONCLUSION

The above discussion is explanation of principle of liability and possible remedies available in torts. The principle above are the foundation of tortious liability that needs someone to know before suing in torts .Remedies are compensation to the aggrieved part as it is difficult to turn the aggrieved part to the position he would have been before the violation of his right.

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[edit] A DISCUSSION ON THE DATA ANALYSIS AS THE PROCESS OF BRINGING ORDER, STRUCTURE AND MEANING TO THE MASS OF DATA COLLECTED.

A DISCUSSION ON THE DATA ANALYSIS AS THE PROCESS OF BRINGING ORDER, STRUCTURE AND MEANING TO THE MASS OF DATA COLLECTED.

BY MUSHOBOZI JULIUS, LL.B (MZUMBE UNIVERSITY)

1.0 INTRODUCTION.

The term data has been defined by Myneni1 to mean “facts figures known or available information.Data are more than information events experiences, more than memories of a teller of a life story. They are all the relevant materials, past and the present serving as the bases for study and analysis.”

Data are obtained when a researcher records facts about some segment of socio-legal reality. Thus facts collected under a problem or a legal research design are presented as data.

Data analysis on the other hand has been defined by John Galtung2 as the process of viewing the data in the light of hypothesis, or research question, as also the prevailing theories and drawing conclusions that will make some contribution in the matter of theory formulation or modification. According to him, analysis of data involves a number of closely related operation that are performed with the purpose of summarizing the data obtained, and organizing them in such a manner that they will yield answers to the research problems.4myneni pg 240

Sellitz Jahoda and others, consider the processing of data as part of analysis of data, because it deals with a comprehensive process that involves processing i.e. operations designed to facilitate and increase amenability of data for analysis, as also, the operation designed to draw generalization or test hypothesis.3 [myneni pg 240]

Generally, it can be adduced asserted that, data analysis starts with data processing. Thus, data collected need be processed before they are subjected to analyzation and interpretation and such processing depends on the nature of data collected. “Processing of data therefore refers to concentrating, recasting and dealing with the data such that they become as amenable to analysis as possible.” 4[myneni ibid]

The main objective of data analysis is to summarize the collected data and organize them in such a manner that they will yield answers to research questions. It helps also to bring order, structure and interpretation (meaning) to the data collected in a way that the researcher can draw conclusion and make verifications. Data analysis on the other hand helps one to examine the statement of the problem, hypothesis, and studying the original records of the data collected.

There are two main types of data analysis in the field of legal research namely; qualitative data analysis and quantitative data analysis. Qualitative data analysis is a type of data analysis that is mostly used in qualitative research in which the data are analyzed to non-empirical form as in qualitative research, data are in the form of texts, materials or photographs which describe events and occurances.1 [Mugenda pg203]

Quantitative data analysis, however, is a type of data analysis which is mostly used in quantitative research in which data are analyzed in numerical values, that is, they are converted into numerical codes representing attributes or measurement of variables.2 [mugenda pg 116]

2.0 MAIN BODY.

In response to the question at hand; since the question requires a discussion on the statement that data analysis is the process of bringing order, structure and interpretation to the mass of data collected then, the only fact to be considered is how such analysis brings order, structure and interpretation to the mass of data collected. It be noted that, data analysis in quantitative research takes place after data have been collected whereas data analysis in qualitative research is done simultaneously with data the whole process of collection.

Thus, data obtained from the field in raw form are difficult to interpret or get the exact meaning and flow thereof. Such data therefore, need to be cleaned, coded, and key punched into a computer, processed and finally analyzed. It is from the results of such analysis that the researcher can be able to draw conclusions and make verification out of the data collected and hence makes such data be in an orderly and organized form that gives meaning thereon.

Therefore, data analysis is of vital importance to make it meaningful of the data collected. Generally, data analysis involves a number of activities or rather operations that have to be done by the researcher, and through which order, structure and interpretation of mass of data collected is possible. These include data management and reduction, data display and conclusion drawing and verification.

Fist, data management and reduction:-this is the first operation or activity that brings order to the mass of collected data. Data management and reduction starts while the researcher is in the field where he has to make a decision on how the data will be collected and where the same will be stored.

Thus, once the data are collected in raw form the researcher shifts his attention to the processing of the data collected. In this, the researcher cleans the data that were otherwise vague and scattered by recasting and editing and them in an orderly form by key punching them into the computer.

In this also, the researcher deducts those data that seem to be irrelevant in testing the hypothesis or giving answers to the posed questions in the research and take only relevant data that attempt to give answers to the questions in the research and as well those positively testing the hypothesis. Therefore data management is one of the operations that actually brings order to the mass of collected data because when the researcher is recasting the data, concentrating the, editing and deducting the same he is said to manage such data and the end result of such management and reduction make the data in an orderly manner easy for storage and future retrieval of the of the stored data when needed.

Secondly, data display. This is the second operation or activity in data analysis in which the researcher, being familiar with the data collected, managed and deducted, detects various categories in the data which are distinct from each other. In this the researcher condenses the data into specific categories such as into themes and patterns whereby several headings are given several categories of data. This process is normally referred to as coding.

A code is a word, abbreviation or phrase which represents a link between raw data( field notes or interview transcripts) and the researcher’s theoretical concepts. Mugenda 205.When making data display, the researcher sets up classes or categories to be used in presenting the adata and there assigning a symbol( word, abbreviation or phrase) which falls in a predetermined class. This in general, gives the researcher a structure of the data collected and can help him make conclusion as each category is having its summary.mugenda ibid

Lastly, conclusion drawing and verification. Once the researcher has prepared a data display, he needs to develop a story or an essay on the data analyzed and displayed. That is, once the themes and patterns have been identified, the researcher needs to evaluate and analyze the data to determine the adequacy of information and credibility, usefulness, consistence and validation ( or non-validation) of hypothesis.

The researcher therefore, must be able to spot the idea which dominates on a particular point and consider others ideas as exceptions to the general rule. This give meaning to the data collected and makes it easier for interpretation by making one to understand what the given research finding really means.myneni 242. However, conclusion drawing and verification makes it possible to appreciate why the relations between variables as expressed in the findings are what they really are. Eg to appreciate the relations between raw data and the researcher’s theoretical concepts.

In addition to that,conclusion drawing and verification gives an understanding of the general factors that seem to explain what has been observed in the course of a study hence giving a clear and broad interpretation of the data collected, processed and analyzed.

3.0 CONCLUSION.

From the discussion above, it can be concluded that, data analysis is the process that brings order, structure and interpretation of mass of data collected; such order, structure and interpretation can be brought about through three operational activities namely through data management and reduction, through data display and, through conclusion drawing and verification.

4.0 BIBLIOGRAPHY.

TEXT BOOKS.

MUGENDA OLIVE M. AND A.G.MUGENDA (1999), RESEARCH METHODS: Quantitative and Qualitative Approaches,AFRICAN CENTRE OF TECHNLOGY STUDIES, NAIROIBI.

KHAN M.S., (2004), EDUCATIONAL RESEARCH, ASHISH PUBLISHING HOUSE, PUNJAB BAGH NEW DELHI

MYNENI S.R., (2001), LEGAL RESEARCH METHODOLOGY, 2nd EDITION, ALLAHABAD LAW AGENCY, FARIDABAD.

[edit] THE EXTENT TO WHICH INSURANCE CONTRACT IS NOT A BLESSING ON THE PART OF THE INSUREDas AS IT ISON THE PART OF THE INSURER. BY MUSHOBOZI, JULIUS

THE EXTENT TO WHICH INSURANCE CONTRACT IS NOT A BLESSING ON THE PART OF THE INSUREDas AS IT ISON THE PART OF THE INSURER. BY MUSHOBOZI, JULIUS

BY MUSHOBOZI, JULIUS LL.B (MZUMBE UNIVERSITY)

1.0 INTRODUCTION.

This paper attempts to define the term Insurance, Insurance contract and proceed to examine the extend to which insurance is a blessing on the insurer and then further examine, on the other hand, how it is also a blessing on the part of an insured, thus not perfect blessing on the insurer only.

1.1 CONCEPT OF INSURANCE.

The term insurance was judicially defined in the case of Lucena v Craufurd , where it was stated that:

“Insurance is a contract by which one party in consideration of a price (called premium)

Paid to him adequate to the risk becomes strictly to the other that he should not suffer loss, damage or prejudice by the happening of perils specified to certain things which may be exposed to them.”

Further, insurance is defined to mean a contract whereby a person called insurer agrees in consideration of money paid to him (premium) by another person called the assured to indemnify the latter of certain future events. The term insurance has to bee defined under the Insurance Act, however, section 3 of the said Act goes further to cover the term insurance business.

1.2CONCEPT OF INSURANCE CONTRACT.

It is not easy to give an exact definition of the term insurance contract. This was observed in the case of Medical Defence Union Ltd v Department of Trade. However, in the case of Prudential Insurance Co v Inland Revenue Commerce , Channel J., defined insurance contract as: “a return for money or moneyworth on the happening of an uncertain event more or less advance to the interest of the insured”

2.0 MAIN BODY.

2.1 THE EXTENT TO WHICH INSURANCE CONTRACT MAY BE A BLESSING ON THE PART OF INSURER.

Generally, it has to be observed that insurance companies play a big role in consolidation and maximization of profit. Such maximization of profit is possible because:-

Firstly; Insurance are aleatory contracts. First and foremost, insurance has to be understood as an aleatory contract, that is, it depends on game of chance of events. Thus, if an accident or loss occurs, an insured person will be indemnified but if no contingency arises, the insurers will keep the premium hence a blessing to them. In Carter v Boehm , it was held that “insurance is a contract upon speculation. That is depending on an uncertain event or contingency as to both profit and loss.”

Thus, if a contingency does not occur, insurer will keep the premium.

Secondly; Insurance is a contract of adhesion, a standard form of contract hence there is no counter offer. All terms are fixed by one party called the insurers. The terms are endorsed in a policy. Therefore, the insured person simply fills in the form without making any alteration. In this way, the insurer can manipulate this advantage to make the terms favourable to them.

Thirdly; Insurance contract is a conditional contract, in that the premium paid varies with the risk involved. It is not every risk that is insured. An insurer can only adjust his premium profitably if he knows accurately the nature of risk which he is asked to take upon himself. Thus, an insurable risk must posses the following requisites; there must be a large group of homogeneous units, the loss produced by the risk must be definite and the occurrence of the risk must be accidental. Hence, risks like catastrophic events such as earthquakes, floods and wars are not insurable.

Furthermore, insurance contract is based on fundamental principles. These basic principles make insurance contract a peculiar one. This being so, insurance companies use these basic principles as a blessing to them to facilitate their aim of maximization of profit as follows:

Basing on the principle of Utmost good faith (uberrima fidei). This involves the duty of disclosure by parties to anything which materially tends to influence judgment of other party as remarked in the case of Mackenzie v Coulson, “ there is no class of documents as to which the restricted good faith is more rigidly required in courts of law than policies of insurance.” They are therefore voidable at the option of the insurer for non disclosure of any material fact which was known or ought to have been known to the insured at the time of making the contract.

Thus, in London Assurance v Manselc: “D failed to disclose that several insurance companies had declined to insure his life. This was held to be a material factor which should have been disclosed. Rescission of the contract was therefore granted.” This is a blessing on the party of the insurer in the sense that when there is non disclosure of certain facts, the contract is voidable for misrepresentation or fraud hence they need not return any premium paid.

By the principle of insurable interests. According to Lucean v Craufurd , this means that

“the insured must be so circumstanced in relation to the subject matter of the insurance as to benefit by its existence or prejudiced. A contract of indemnity under which the assured must ever and prove interest at the time of loss.”

Also, in Macaura v Northern Assurance Company , the insurers refused to grant indemnification on the ground that Macaura had no insurable interest. This is a blessing on the assuring company because they seek to evade their just obligation on the ground of want of an interest.

By principle of indemnity. An indemnity policy is one under which the insured will be compensated (that is indemnified) for his actual loss so far as it does not exceed the sum insured. That is, making a fair compensation for the loss insured so far as it does not gain or lose by an insurable policy. Under principle of indemnity, we have the following:-

First; valued policy. Here parties agree on the policy on the value of the thing assured. The assured will be entitled to recover the agreed value in the event of a total loss if the loss be partial, a proportion (that is, depreciation in its actual value) of the agreed value. This was held in Elcock v Thomson.

Secondly; the sum insured. The insured can never recover more than the sum for which the property is insured. Hence, where the value of the thing lost exceeds this sum, this sum is all that they are bound to pay as it was realized in Darrel v Tibbits, but where the value of the thing lost is less, they are bound, except in valued policy, to pay no more that its actual value. Thus, the principle of indemnity is to the effect that “an insured should not recover more than its actual loss.” It was stated in Aitchison v Lohre

“it appears that although prima facie the insurer indemnifies the assured, his liability may be limited in several respects and a contract of insurance is not necessary one of perfect indemnity.”

By principle of subrogation. If the contract is one of indemnity, the insurers have a right of subrogation. That is, having paid the insured his compensation, they are permitted to take over any rights that the insured has against the person who caused the loss. Thus, if the insured compromises any right of action he has against a third party, he must repay the insurers the benefit of which he has thereby deprived them. This can be seen in the case of Phoenix Assurance v Spooner. In this case the insurance company were entitle to all rights that the defendant (insured) had against the Local Authority. Further, in Pandal v Cockran, gifts were also held to be included in subrogation.

Hence this is a blessing on the party of the insurers because the rationale for this principle is that, the insured cannot gain or receive further compensation in respect of his loss.

By principle of contribution ( double insurance);This arise where a person has two or more policies in more than one insurer, so far as , the policy covers the same subject matter, risk or interest. Hence the insured may recover the total from either of the insurers. This is a blessing on the party of the insurers because an insurer who pays more than his share may claim a contribution from the others in proportion to the sum insured with each.

By proximate cause; expressed in the maxim, “causa proxima non remota spectator.” This means the insurer is only liable for the losses which have been proximately caused by the peril insured against. In order to make the assured company liable for the loss, the nearest, immediate, direct, dominant, operative or last cause is to be looked into. Insurers are not liable for remote cause as was seen in the case of Pinks v Fleming hence this is a blessing to them as their liability is limited.

Last but not least, insurers always accept over-insurance as they will ear higher premium and ye remain liable for the actual loss only. But they object to under-insurance, on the ground that, in event of a partial loss, they may be liable to the full extant of the loss notwithstanding the lowness of the premium in proportion to the value of the thing insured.

2.2 THE EXTENT TO WHICH AN INSURANCE CONTRACT IS A BLESSSING TO THE INSURED.

It must be appreciated that, it is not always that an insurance contract is a blessing on the party of the insurers. Some circumstances also suggest that it is also a blessing on the party of the insured. This can be seen under:

First, the principle of indemnity. This principle aim s at bringing the insured person financially as near as possible to the financial position he was before the occurrence of the injury. The purpose of this principle is to make a fair compensation for the loss. In cases of some contracts such as marine and fire insurance, the insurer undertakes to indemnify the insured for loss or damage suffered resulting form specified perils. Hence, this is a blessing also to the insured person since he can recover form the insurer the actual amount of loss. Furthermore, where the value of the thing lost reaches the “sum insured” the insured person will be able to recover up to the sum insured. If this so happens, it is not a blessing on the insurers but it provides the means where the insured can recover to his “sum insured” hence kind of blessing to him.

Secondly, Contra proferentem rule. This rule of construction of words is used when there are ambiguities and often uncertainties to know what the parties mean. In such cases the rule is that, the policy, being drafted in the language chosen by the insures, must be taken most strongly against them. This was held by Blackburn J., in Thomson v Weems. Hence this is a blessing on the party of the insured as the rule tends to protect them as against oppressive terms by the insurer.

Thirdly, On insurable interests; though the general rule is that, only parties to insurance contract may have insurable interests, there are certain instances whereby other persons may have insurable interests such as where there is a debtor and creditor relationship, as stated in Godsall v Baldero; partner and co-partner as elaborated in the case of Powel v Dewy; principal and agent or Trustee and co- trustee. In such kind of relationships, a person without an insurable interest is deemed to have one to the extent of amount owing when the insurance is made. This was held in the case of Dably v India & London Life.

Fourthly, misconduct of part owner; where both persons have an interests in a thing and one of them destroys it, the other will be able to recover under policy his interest, provided he is quite innocent and so long a s his interest is not so inseparably connected with that of the wrong doer that hiss loss or gain necessarily affects them both. This was held in the case of Allen Billposting v Drysdale . This being so, an insurance contract is also a blessing on the insured.

Fifthly, negligence; normally casualties insured against, unless there are express words of exception, include those caused by negligence. It doesn’t matter whether the negligence is that of the assured, his servants or a stranger. Thus, in Harris v Poland, where the assured placed his jeweler in a grate to hide it from thieves and later negligently lit a fire there, was said to be entitled to recover under a fire policy for damage resulting to it. This evidences the fact that, insurance contract is also a blessing on the party of the insured.

3.0 CONCLUSION.

We are of the considered opinion that to a great extent, insurance contracts provide wide and much blessing on the insurance companies as compared to insured. This being so, insurance companies play a big role in maximization of profits.

4.0 BIBLIOGRAPHY.

STATUTE

Tanzania Government of, The Insurance Act [Cap 394 R.E 2002], Government Printers, Dar es Salaam.

CASE LAWS.

Aitchison v Lohre [1879] 4 A.C 755 Allen Billposting v Drysdal [1939] 4 ALL E.R 113 Carter v Boehm [1766]97 E.R 1162 Dably v India & London Life [1854]15 C.P 365 Darrel v Tibbits [1880] 5 Q.B.D 560 Defence Union Ltd v Department of Trade [1979]2Ch.D 421 Elcock v Thomson [1949] 2K.B 755 Godsall v Baldero [1807] 9East Pg 72 Harris v Poland, [1941] 1 KB 462. London Assurance v Manselc [1879] 11 Ch.D 363 Lucena v Craufurd [1806] 2 BOS & PNR 269 Macaura v Northern Assurance Company [1925] A.C 619 Mackenzie v Coulson [1869] L.R 8 Eq 368 Pandal v Cockran [1748] 1 Ves Phoenix Assurance v Spooner [1906] 22 T.L.R 695 Pinks v Fleming [1890] 25Q.B.D 396 Powel v Dewy [1898]123 Log N.C Prudential Insurance Co v Inland Revenue Commerce [1904] 2K.b 658 Thomson v Weems [1814] 9 A.C 671

BOOKS.

Birds J., and J.H Norma (2004), Birds’ Modern Insurance Law, 6th Edition, Sweet & Maxwell, London.

Colin Vaux R., (1970), The Law of Insurance, 3rd Edition, Sweet & Maxwell, London.

Ivany H.E.R., (1984), General Principles of Insurance Law,5th Edition, Butterwoth & Compamny, London.

Srinivasan M.N.,(2006), Principles of Insurance Law, 8th Edition, Wadhwa & Company, New Delhi.

[edit] A DISCUSSION ON WHETHER MONEY CAN RENEW PHYSICAL FRAME THAT HAS BEEN SHATTERED AND BATTERED IN INSURRABALE CONTRACT-BY MUSHOBOZI, JULIUS

A DISCUSSION ON WHETHER MONEY CAN RENEW PHYSICAL FRAME THAT HAS BEEN SHATTERED AND BATTERED IN INSURRABALE CONTRACT

BY MUSHOBOZI, JULIUS LL.B (MZUMBE UNIVERSITY)

1.0 INTRODUCTION.

Insurance is a contract by which one party in consideration of a price (called the premium) paid to him adequate to the risk becomes security to the other that he shall not suffer loss, damage or prejudice by the happening of the perils specified to certain things which may be exposed to them.

1.1 CLASSIFICATION OF CONTRACTS OF INSURANCE.

There is no hard and fast rule for classification of insurance contracts. It depends upon the nature of the accident and the risk involved. Contracts of insurance have been classified into various categories by different writers, keeping in view development of civilization and economic growth and nature of interest altered. Some of these types of insurance contracts are as follows:-

Firstly; life insurance. This is a mutual agreement by which the insurer undertakes to pay a given sum to the insured or his nominees upon the happening of a particular event. It is also called endowment insurance.

Secondly; marine insurance. This is one against loss by injury to ship, cargo or freight by perils of the sea.

Thirdly; personal accident insurance. Under this compensation is paid on account of injury sustained permanent or partial disablement and death caused in the accident.

Fourthly; fidelity insurance. This is one against loss arising from the default or dishonest of employees.

Fifthly; property insurance. This relates to fire, burglary, house breaking and coop insurance.

As stated above, there is no hard and fast rule for classification of insurance contracts as it depends upon the nature of accident and the risk involved.

2.0MAIN BODY.

There are circumstances in which money can renew a physical frame that has been battered and shattered, also there are circumstances in which money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sum which must be regarded as giving reasonable compensation. By common assent award must be reasonable and must be assessed with moderation as per Lord Morris in West v Shephered

2.1 CIRCUMSTANCES IN WHICH MONEY CAN A PHYSICAL FRAME THAT HAS BEEN BATTERED AND SHATTERD.

Starting with the circumstances in which money can renew a physical frame that has been battered and shattered. Almost all insurances other than life and personal accident insurances are contracts of indemnity. To take an example, the operative clause in the standard fire policy reads as that “…..the company will pay to the insured the values of the property at the time of the happening of its destruction or the amount of such damage thereto.”

The object of the contract of insurance is principally to place the insured as far as possible in the same position in which he would be if the insured event causing the loss had not occurred. It is not a contract to make gain, it is to leave him neither a loser nor a gainer subject to his insuring the property for its full value. In Castellan v Preston , Brett L.J., explained that: “Every contract or marine, fire insurance is a contract of indemnity and of indemnity only, the meaning of which is that, the assured in case of a loss is to receive a full indemnity but is never to receive more. Every rule of insurance law is adopted in order to carry out this fundamental rule.” In this case (Castellan v Preston’s case), Preston entered into a contract to sell his house which he had insured against fire. Before sale was completed, the house was partly damaged by fire. The insurer indemnified the insured. The buyer also paid the agreed price and completed the sale, leaving the insured a gainer at the end. But the insurer came to know of this and sued the assured. The insurer argued that the insured suffered no loss due to the fire, as he received the stipulated price from the buyer, and so there was nothing for which he had to be indemnified by the insurer. The court upheld that contention and ordered Preston to refund the amount received form the insurer. A contrary result would have meant a gain to the insured by the insurance.

So the purpose of indemnity is to bring the injured party in as near as possible to the financial position as he was before the loss occurred; the same was stated in the case of Hussein P Bhnjee v National Insurance Corporation. Therefore it can be said concluded that, in all insurances (insurance contracts) other than life and personal accidents insurances, money can renew a physical frame that has been battered and shattered, or in other words it can be said that, in all insurance contracts which are contracts of indemnity, money can renew a physical frame that has been battered and shattered. This is simply because the principle of indemnity means the act of bringing an injured person financially as near as possible to the same financial position he was before the occurrence of the injury or risk insured.

2.2CIRCUMSTANCES IN WHICH MONEY CANNOT RENEW A PHYSICAL FRAME THAT HAS BEEN BATTERED AND SHATTERD.

It is true that, money cannot renew a physical frame that has been battered and shattered. This is clearly seen in life insurance and personal accident insurances, or in insurance contracts which are not contracts of indemnity. In personal accidents insurance and in life insurance; money cannot renew a physical frame that has been battered and shattered. This is because the loss or losses one suffers is non pecuniary losses. No pecuniary losses can be in the form of injury itself, pain and suffering, nervous shock and neurosis, loss of amenities and enjoyment of life loss of expectation of life or shortening of life.

Starting with injury itself; “bodily injury, that is loss or impairment of bodily integrity is a deprivation which in itself entitles a person to the award of substantial damages, according to the extent, gravity and duration of the injury” as was stated in the case of Wise v Kaye. In the normal case, for example, the loss of a leg or other part of the body, a single sum is assessed which comprises damage for loss of integrity and at the same time for loss of earning capacity and enjoyment of life. So in case of injury, such as loss of a leg, money cannot renew a physical frame that has been battered and shattered. In other words, it can be said that, money cannot bring back the lost leg. This is supported bywords of Lord Morris in the case of West v Shepherd that “money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. By common assent awards must be reasonable and must be assessed with moderation”

“It is impossible to equate money with human suffering or personal deprivation, but the court has to make an attempt to compensate the loss so far as money can do it” This was stated in the case of Suresh Chandra v Union of India. The words spoken in this case also show that, money cannot renew a physical frame that has been battered and shattered, as it is impossible to equate money with human suffering or personal deprivation. What a court can do is just to make an attempt to compensate the loss so far money cannot do it.

Also deprivation on account of loss of limb or limbs will be of various degrees and gravity and duration leading to loss of earning and earning capacity and loss of enjoyment and pleasure of life and mental depression. Substantial and not mere token compensation must be given for injured persons more than in cases of death, because they suffer physically, economically, emotionally etc. This was stated in the case of State of UP v Vinod Kumar.

Secondly; pain and suffering. Under this also money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. This is simply because “pain and suffering which a person undergoes cannot be measured in terms of money by mathematical calculation.” Hence the courts award a sum which is in the nature of conventional award. In Heaps v Perrite Ltd in which Greer L.J said “we have to take into account only the suffering which he had immediately after the accident but the suffering that he will have throughout his life in future.”

Thirdly; loss of amenities and enjoyment of life. Damages for loss of amenities “are awarded for the fact of deprivation, a substantial loss whether the plaintiff is aware of it or not” said Lord Scarman. Thus even the person who is rendered unconscious by the injury and is not aware of its loss is entitled to damages under this head. Loss of anyone or more of the senses; injuries which prevent sexual relations or, in the case of women child-bearing call for substantial damages under this head. Obstruction to the enjoyment of holiday activities, inability to play with children and the like come under this head (loss of amenities and enjoyment of life). Being a non-pecuniary loss, it is not assessable exactly and so the past and future losses are assessed as general damages as in the case of pain and suffering.

3.0CONCLUSION.

In all contracts other than life insurance and personal accidents insurance or in all insurance contacts which are contracts of indemnity, money can renew a physical frame that has been battered and shattered. This is possible simply because the purpose of indemnity is to bringing an injured person financially as near as possible to the same financial position he was before the occurrence of the injury or risk insured. But in contracts (insurance contracts0 which are not contracts of indemnity, such as life insurance and personal accidents insurance, money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. By common assent wards must be reasonable and must be assessed with moderation” as it is not possible for the insurer to bring back the lost leg of the insured who suffered or has been injured by accident.

4.0 BIBLIOGRAPHY.

STATUTE

Tanzania Government of, The Insurance Act [Cap 394 R.E 2002], Government Printers, Dar es Salaam.

CASE LAWS

Castellan v Preston [1883] 11 Q.B.D 380. Cook v Kier and Co [1970] 2 ALL E.R 513(C.A). Cutts v Chumley[1967] 2 ALL E.R 99. Heaps v Perrite Ltd [1937] 2 ALL. E.R 60. Hussein P Bhnjee v National Insurance Corporation [1976]L.R.T 25. Lawrence J.N in Lucena v Craufurd [1806] 2 BOS & PNR 269. Lim Poh Choe v C and I Area H.A[1979] 2 ALL ER 910. Lucena v Craufurd [1806] 2 BOS & PNR 269. Mediana[1900] 2 A.C 113,116 State of UP v Vinod Kumar AIR 1984 ALL 344 Suresh Chandra v Union of India AIR 1983 ALL 15 West v Shephered [1963]ALL.E.R 635(H.L) Wise v Kaye [1962] 1 ALL ER 257.

BOOKS

Birds J., and J.H Norma (2004), Birds’ Modern Insurance Law, 6th Edition, Sweet & Maxwell, London.

Colin Vaux R., (1970), The Law of Insurance, 3rd Edition, Sweet & Maxwell, London.

Ivany H.E.R., (1984), General Principles of Insurance Law,5th Edition, Butterwoth & Compamny, London.

Srinivasan M.N.,(2006), Principles of Insurance Law, 8th Edition, Wadhwa & Company, New Delhi.

[edit] RECOGNISED AGENTS AND ADVOCATES (CIVIL PROCEDURE) IN TANZANIA

RECOGNISED AGENTS AND ADVOCATES (CIVIL PROCEDURE)

IN TANZANIA

1. AN OVERVIEW;

The law prescribes three options to a party to suit in conducting the suit. The options however may be exercised with the consent of the court. The three options are that; the party may conduct the suit himself, by a Recognised Agent or by an Advocate.

However, where the Attorney-General is a party to suit any public officer duly authorised by him in that behalf may conduct the suit for him (Order III rule 1 of Cap. 33). For that matter, a Public Officer conducting a suit on behalf of the Attorney General may properly be referred to as his agent.

2. RECOGNISED AGENTS;

WHO IS A RECOGNISED AGENT?

Before one knows about a recognised agent he must firs know who an agent is. Neither Cap. 33 nor Cap. 1 Defines the term “Agent”. However, S. 134 of the Law of Contract Act, Cap.345 (R.E. 2002) defines the term in the following words;

“…a person employed to do any act for another or to represent another in dealings with third persons and the person for whom such act is done, or who is so represented, is called the "principal.”

Another legal attempt in defining the term was made by EARL JOWITT (General Editor) And CLIFFORD WALSH (Editor), The Dictionary of English law, Volume 1. (A-H), Sweet & Maxwell Limited, London, 1959 (at page 83), who defined the terms “Agency” and “Agent” in the following style;

“An agent is a person who acts on behalf of another person (the principal) by his authority, express or implied. The status of an agent or the relation between him and his principal is called agency”

As to the meaning of the “Agent/Principal Relationship”, the Encarta Encyclopaedia Standard 2004 (1993-2003 Microsoft Corporation) offers the following illustration to the phrase;

“A voluntary relationship between two parties whereby one, the agent, is authorized by express or implied consent to act on behalf of the other, called the principal”.

At least the three above named legal efforts in defining the term agent give a clue of the definition, and from them one gathers the following key attributes of an agent, they are as follows;

a) He must be a person.

b) He must be doing an act for or on behalf another person (and not for himself).

c) There must be an authority or consent for acting so by that other person (the Principal).

d) The affiliation (agency) between the Agent and that other person (the Principal) must be a voluntary one as differentiated from a forced one.

   A Recognised Agent in a suit or court proceedings is therefore a person who is authorised by a party to suit and accepted by the law to conduct or defend the suit before the court of law for and on behalf of the actual party (who, for the purposes of the Agency Relationship, stands as the Principal). 

POWERS OF RECOGNISED AGENTS;

An Overview;

The law governing Recognised Agents is Order III rule 1 and 2 of Cap. 33. The rule gives powers to Recognised Agents to do the following on behalf of the parties; to appear, make applications and do any other act which the actual party would have done. The rule mentions the following persons as recognised Agents;

a) Persons holding powers-of-attorney.

b) Persons carrying on trade or business for and in the names of parties not residents within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only where no other agent is expressly authorised to make and do such appearances, applications and acts.

Legal Definition of Powers of Attorney;

As usual Cap. 33 does not define what are the Powers Of Attorney, but S. 4 of Cap. 1 defines the term “Power” as including any privilege, authority, or discretion.

An attorney is defined as “one who is appointed by another to do something in his absence and who has authority to act in the place and turn of him by whom he is delegated” see EARL JOWITT (General Editor) And CLIFFORD WALSH (Editor), The Dictionary of English law, (supra, at page176).

A direct definition of the phrase Powers of Attorney is found under S. 2 of the Stamp Duty Act, Cap 189 (R.E. 2002) which defines the phrase "power of attorney" as to “include any instrument empowering a specific person to act for and in the name of the person executing It”. The phrase thus, when used in relation to court proceedings refers to an authority given by a party to court proceedings (donor of the powers), to another person (donee of the powers) with the intention that the latter acts for the former in the proceedings. Powers of attorney may be special or general.

Requirements of Powers of Attorney;

There are requirements of the powers of attorney according to the above cited definitions and the legal practice; these requirements are as follows;

a) It must be written and signed by the donor.

b) It must be attested.

c) It must show full names and addresses of the donor (giver) and donee (receiver) of the powers.

d) It must be express and clear, i. e. it should not be ambiguous or equivocal, (it should not carry more than one interpretation).

e) It may contain an acknowledgement clause in which the donee of the powers accepts the powers given to him.

f) Stamp duty must be paid for the powers of attorney.

Explanation on This Requirement;

S. 5 of Cap 189 (R.E. 2002) provides that instruments specified in the Schedule to the Act (Powers of attorney inclusive) shall be chargeable with stamp duty, of course; there are exempted documents under S. 5, but the power of attorney is not one of them.

According to article 46 (e) of the Schedule to Cap. 189 the power of attorney is chargeable with stamp duty at the tune of Tanzanian Shillings 500/= (five hundred).

The provisions of S. 5 of Cap 189 are mandatory by nature because the word “shall” is used, and the law is to the effect that when the term “shall” is used in statutory provisions it signifies a mandatory duty, see the provisions of S. 53 (2) of the Interpretation of Laws Act (Cap; 1, R.E 2002) and the decision of the court of appeal in ASHURA ABDULKADRI v. THE DIRECTOR TILAPIA HOTEL, CIVIL APPLICATION NO; 2 OF2005, AT MWANZA, at page 5-6, (unreported).

An omission to pay the mandatory stamp duty in respect of powers of attorney has therefore a negative effect, it renders the document incapable of being acted upon as per the express statutory prohibition embodied in S. 47 of Cap 189, see also the envisaging by the Court of Appeal in ZAKARIA BARIE BURA v THERESIA MARIA JOHN MUBIRU [1995] TLR 211 .

It must however, be noted that the contemporary approach of the law is to the effect that, whether or not the use of the term “Shall” implies a mandatory duty will depend on the circumstances of each case. The Court of Appeal in FORTUNATUS MASHA v WILLIAM SHIJA AND ANOTHER 1997 TLR 41, at page 43 directed thus;

“We think that the use of the word `shall' does not in every case make the provisions mandatory. Whether the use of that word has such effect will depend on the circumstances of each case.”

The court, recently (in August, 2006) underscored this stance in GOODLUCK KYANDO v. REPUBLIC, CAT CRIMINAL APPEAL NO; 118 OF 2003, AT MBEYA. (ureported)

Powers of Recognised Agents in Service of process.

According to Order III Rule 3 (1) and (2) of Cap. 33 a recognised agent is empowered to receive court documents for and on behalf of the actual party to proceedings, and such service, if done to the agent is deemed done to the party himself, but the court is empowered to direct otherwise as far as the service process is concerned. The normal procedure for the service of process on a party to a suit applies mutatis mutandis to the service of process on the recognised agent.

A party to suit is also entitled in law to appoint a recognised agents (apart from the one described in rule 2) for the purposes of accepting service process only so long as such person resides within the jurisdiction of the court and the appointment is done by an instrument in writing signed by the party to suit (the principal), the appointment may be special or general, and if it is general, then a certified copy shall be filed in court. (Order III rule 6 of Cap. 33)

Un Authorised Acts by Donees of Powers of Attorney;

The position in law is that; a donee of Powers of Attorney is only empowered to do acts authorised by the donor, he cannot do what was not authorised to him without the knowledge and or consent of the donor, see S. ZAHIR ROSHANALI HIRANI v REGISTRAR OF TITLES [1990] TLR 122.

Revocation of Powers of Attorney;

Where the donor of the powers intends to revoke the same, he must do so by notifying the donee and not otherwise, see see S. ZAHIR ROSHANALI HIRANI v REGISTRAR OF TITLES (supra). The logic behind this requirement is that, the notice of the revocation marks the termination of the authority given to the donee.

Powers of Recognised Agents Upon Death by a Party to Suit;

The law limits the powers of Recognised Agents to the life-time of the party to suit only, and when the party dies the authority dies too, see the decision of the Court of Appeal in IMERIMALEVA AND OTHERS v DIMA NHORONGO [1991] TLR 1.

RESTRICTIONS AGAINST RECOGNISED AGENTS;

An Overview;

The law does not give a free ticket for any person to represent any party to suit as a Recognised Agent, there must be sufficient grounds for such a representation, that is why, under the proviso to Order III rule 1of Cap. 33 the court is clothed with powers to restrict the appearance by a recognised agent and to make orders for personal appearance of the party.

There must therefore, first exist sufficient grounds for one to represent another in this style. Examples of sufficient reason for such representations are disability due to poor health or old age, staying away from the jurisdiction of the court, etc.

Feigned Representations;

The law prohibits such unwarranted representations even where one holds powers of attorney, see Ss. SS. 41, 70 (a) and (b) of the Advocates Act, Cap. 314 (R.E 2002). Mwalusanya, J (as he then was) in JULIUS PETRO v COSMAS RAPHAEL 1983 TLR 346 was of the view that such a representation by recognised agents is permitted by the law only in some circumstances where a “genuine” representative is involved.

Healthy Parties to Proceedings;

Again, in EDWIN s/o FESTO v. LEVINA w/o IFUNYA, HIGH COURT CIVIL APPLICATION NO; 17 OF 2000, AT BUKOBA REGISTRY(unreported), another Judge, Masanche, J, discarded the unwarranted representation in court in which the actual party was old but healthy. With lamentations the judge remarked; and I leave him to speak by his own words;

“I must really register my concern at people who think they are clever, grab cases from other people and prosecute them without any legal basis. They do this at the risk of those cases being declared null and void.”

Presence of Represented Party in Court;

The law does not give room to the representation of a party to proceedings by way of a Recognised Agent before the High Court and the District Court where the actual represented party is in Court. The same restriction applies before the Court of Appeal, where such a party resides in Tanzania; see NAIMAN MOIRO V. MAILEJIET K.J. ZABLON (1980). TLR. 274. The decision in EDWIN FESTO VS. LEVINA IFUNYA HC. CIV. APPL. NO; 17 of 2000 AT BUKOBA. (unreported) also underlines this stance.

Rationale of the Restrictions;

The restrictions in the practice is meant to control the legal practice by unprofessional persons, which said practice if not controlled will result to serious injustice, i. e. uniformed parties to suits may be misled and loose their cases upon making unnecessary consideration to the purported legal practitioners, especially those branded as “Bush Lawyers” who tend to get into shoes of parties for remunerations. The target it thus to guard the legal practice for purposes of avoiding foul-play by unqualified and unethical crooks.

THE PRACTICE IN PRIMARY COURTS;

An Overview;

As it is the practice in courts where Cap. 33 is applicable, the law allows representation of parties in civil proceedings before primary courts. However, advocates are strictly restricted to appear or act for any party in a primary court [S. 33 (1) of the Magistrates Court Act, Cap. 11, R.E. 2002]. It follows therefore that only a class of persons are empowered to appear for others in these courts.

The class of persons permitted to represent others in primary courts includes relatives or any member of the household of any party to any proceedings of a civil nature, upon the request of such party, see [S. 33 (2) of the Magistrates Court Act, Cap. 11, R.E. 2002] and the decision in JULIUS PETRO v COSMAS) RAPHAEL (supra

The word "relative" should be restricted to near relatives; likewise, "members of the household" should be interpreted ejusdem generis to mean related members of the household; the definition of the word "relative" should not be extended to include a person who works for gain, see JULIUS PETRO v COSMAS RAPHAEL (supra), hence representation by power of attorney for remuneration is prohibited in law.

Under these circumstance, it was held in EVARISTER KAJUNA v. THEREZA JACOB [1973] LRT. n. 10 that a mother can sue for his son under S. 29 (2) of former Magistrate Court Act 1963 which had similar provisions to S. 33 (2) of the current Cap. 11. The request of the person to be represented is in law a mandatory condition which must be met before a person so represents another in a suit. In EVARISTER KAJUNA’s case (above cited), it was held that the suit was not maintainable by the mother for want of the request by the son for her to sue for him.

As to representation of body corporate in primary courts, the law allows a person in the employment of the body corporate and duly authorised in that behalf, other than an advocate, to appear and act on behalf of the body corporate [S. 33 (3) of the Magistrates Court Act, Cap. 11, R.E. 2002].

According to the definitions of the term “Agent” suggested above, it may be legally concluded that, the persons authorised to appear on behalf of the parties before primary courts are also Recognised Agents in disguise though the law (Cap. 11) does not expressly declare them so. Hence, in primary courts, unlike in the rest of the other courts in of Tanzania, recognised agents have the monopoly of representing parties to court proceedings as against advocates. However, for the sake of justice, the same restrictions in representation must apply to both, primary courts and other courts above them.

DISTINCTION BETWEEN RECOGNISED AGENTS ON ONE HAND AND OTHER PERSONS REPRESENTING PARTIES IN COURT PROCEEDINGS;

Recognised Agents, in one hand must be distinguished from other groups of persons representing others in court. To a lawyer, this is very important. The other groups envisaged here are those who represent others in a Representative Suit (Order 1 rule 8 of Cap. 33), those representing others under Order 1 Rule 12 of Cap. 33, and persons appearing as next friends. The distinction can be highlighted in the following terms;

a) A Recognised Agent on one hand and a Person acting under Order 1 rule 8 or Rule 12 of Cap. 33 on the other;

The dissimilarity here is that, the Recognised Agent acts in a suit while he is not interested, he is not a party thereto, and he is not a beneficiary to the results of the suit, he only acts for and on behalf of the actual party to the proceedings.

On the other hand, a person acting under Order 1 rule 8 or Rule 12 of Cap. 33 is an actual party to the suit, he is an interested person and he is a beneficiary in the result of the suit. He acts for the benefit of all the interested persons in the subject matter of the suit including himself.

b) Recognised Agents on one hand and a Next Friend;

There is a similarity and dissimilarities between the two. The similarity is that;, they both act in a suit while they are not personally interested to the subject matter of the suit, they are not parties thereto, and they are not beneficiaries to the results of the suit, they only act for and on behalf of the actual party to the proceedings.

Their unlikeness is  that; a Recognise Agent acts for any party to suit on legally sufficient grounds while a Next Friend’s representation is limited to disabled parties by reasons of age of minority and unsound mind, see EARL JOWITT (General Editor) And CLIFFORD WALSH (Editor), The Dictionary of English law, ( supra at page 1224). It is practical that a next friend, unlike a Recognized Agent, is in most cases a parent or guardian to the represented disabled party to proceedings.

3. ADVOCATES.

AN OVERVIEW

As observed previously, a party to suit is entitled to be represented by other persons, advocates inclusive, in the conduct of the suit (Order III rule of Cap. 33). There is a special law relating to advocates and matters connected to them. This is the Advocates Act, (Cap. 341 R. E. 2002).

In this forum we are much concerned not with this statute, but with matters related to the advocates representation of parties to suits as their clients, which said matters are mainly governed by the Civil Procedure Code, Cap. 33.

The Civil Procedure Code, Cap. 33 however, does not provide a straight-forward definition of the term “advocate” it indirectly defines the term by reference to Cap. 341 (see S. 3 of Cap. 33). In turn, S. 2 of Cap. 341 defines the term “advocate" as any person whose name is duly entered as an advocate upon the “Roll”" and the term “Roll" means the list of advocates kept in accordance with the provisions of Part IV of the same Cap. 341. Part IV of the Act carters for matters relating to qualification, enrolment, registration and precedence of advocates.

Again, S. 3 (2) (a) – (d) of Cap. 341 declares some other personalities as advocates, these include the Attorney-General, Parliamentary Draftsmen and State Attorneys, the legal secretary Income Tax Department; persons holding offices in Urban or Township or District authorities, the Registrar-General, Administrator-General, Public Trustee, Official Receiver, Commissioner for Lands and any person duly qualified holding office in the office of the Registrar-General, or of the Administrator-General, or of the Official Receiver or the Land Officer; and any person duly qualified holding office in such parastatal organisation as the Minister may, by order published in the Gazette designate.

It if for these reasons therefore that the High Court in ZUBERI GIGI v. THE RETURNING OFFICER, BABATI AND ANOTHER [1974] LRT. 52 held that State Attorneys are also Advocates and are entitled to practice as advocates.

POWERS OF ADVOCATES;

An Overview;

An advocate, according to Order III rule 1 of Cap. 33, has powers to do the following for and on behalf of a party to suit;

a) To enter appearance.

b) To make applications or;

c) To act in or to any court, in respect of matters required or authorised by law to be made or done by the party

For these reasons, it was held in E.A. POSTS AND TELECOMUNICATIONS CORP. v. M/S TERAZO RAVIOUS [1973] LRT. n. 58 to the effect that, appearance by an advocate is recognised as appearance of a party himself;

Powers of Advocates in Respect of Service of Process;

The law empowers an advocate to receive documents for and on behalf of his client, and once the service process is affected upon him, the law presumes that the service is effected upon the party himself unless the court directs otherwise (Order III Rule 5 of Cap. 33).

It was also held in ELKANA v. PATEL [1960] E. A. 340 (U) to the effect that, where an advocate has ceased to act for lack of instructions, service of the hearing notice at his address is good if the defendant has not furnished any other address.

Powers of Advocates in Signing documents of client;

The authority of an advocate in law is not limited to appearance and making applications, it is extended to signing of documents for and on behalf of his clients in some circumstances, in NIMROD ELIREHEMAN MKONO v STATE TRAVEL SERVICE LTD. & MASOO SAKTAY [1992] TLR 24 The Court of Appeal held that; the proviso to 0.6 R.14 of the Civil Procedure Code (Cap. 33) allows an advocate by reason of absence of the client or for other good cause to sign on behalf of his client. (Order VI Rule 14 of Cap. 33 is in respect of signing pleadings).

Dual Role Of Advocates, As Witness And Advocate;

The law is to the effect that an advocate cannot pose both as a witness and counsel at the same time in a single matter, see JAYANTILAL NARBHERAM GANDESHA v. KILLINGI COFFEE ESTATE LTD(1968) HCD. n. 399 in which it was held that, it is irregular for an advocate to act in the dual role, and further that if he is called as a witness, he must step down as an advocate.

This situation was also considered in JAFERALI AND ANOTHER v. BORRISAW AND ANOTHER [1970] HCD. 324 in this case the High Court did not establish any stance of the law because the application to restrict such a conduct was held brought prematurely. However, the Court recognised the practical restriction to the effect that it is improper for an advocate to conduct himself in such a manner.

It is apparent therefore that the powers of an advocate are limited to representing his clients only; they can not be extended to testify on behalf of his client. Where an advocate wishes to address the court on behalf of his client, he is only entitled to make submissions and not to testify.

It must be born in mind however, that advocate’s submissions do not have any evidential value, see the observation by the court of appeal in THE ASSISTANCE IMPORTS CONTROLLER (B.O.T) MWANZA VS. MAGNUM AGENCIES CO. L.T.D. CIV. APPEAL NO; 20/90 AT MWANZA. (unreported). It thus remains true that he has no room to give evidence in the case in which he acts as advocate.

Powers To Call and Arrange Sequence of Witnesses;

An advocate duly instructed to take the conduct of the case has mandate to chose witness to call and to decide the sequence suitable in the conduct of the case, the court cannot direct on these matters, see BRISCOE v. BRISCOE; [1966] 1 ALL ER 465

Advocate As Party To Proceedings Himself.

As a human being, an advocate is entitled to sue and he may be sued. When he acts in that capacity as a party to court proceedings he is deprived of the powers to act as an advocate from the bar in his own case or in the case of his firm, he will conduct it as a mere litigant and he will not be entitled to advocate’s costs (instruction fees), but to his own disbursements, see; AKENA ADOKO’S CHAMBERS V. MOHAMED MAGANGA.(1980) TLR. 134

“Double Dealings” by Advocates.

An advocate, though empowered to represent parties to proceedings, he cannot in law represent two persons of conflicting interests, otherwise he may be subjected to disciplinary proceedings including a suspension. This is an envisaging in the recent order of the High Court in SERVINGS AND FINANCE COMMERCIAL BANK LTD v. HAMAD RASHID MOHAMED HIGH COURT COMMERCIAL CASE NO; 75 OF 2006 (COMMERCIAL DIVISION), AT DAR-ES-SALAAM. (unreported).

BLUNDERS COMMITTED BY ADVOCATES;

So long as an advocate has full powers to represent his client in the conduct of the suit in court, mistakes by the advocate are taken by the law as no excuse on the party himself. The party cannot own the advocate and disown his mistakes. In CALICO TEXTILE INDUSTRIES LTD. v PYARALIESMAIL PREMJI [1983] TLR 28 for example, the Court of Appeal held that, failure by the advocate to check the law could not result to a decision in favour of his client. The rationale behind this stance of the law is that, once advocates are instructed to take the conduct of the case, they are expected to use all diligence and industry, and another reason for the stance is to avoid endless litigations, see the remarks of the High Court in MACK LEKEU VS. KAZIMIL MAHENDA HC. CIV. APPL. NO; 46 of 2002 AT MWANZA. (unreported).

In the same way, it was held that, the conduct of an advocate who walks out of the court when the case is called for hearing will not make the judgement eparte (i. e. it is in the detriment of his client); see BADRUDIN HASHAM LAKHAN AND ANOTHER V. PYARALI HASHAM LAKHAN (1978) LRT N. 26, and further that, the fact that an advocate was engaged in political matters is not a good reason for the court to grant his client’s application for extension of time because, that conduct amounts to laxity, negligence or inaction; see the decision by the Court o f Appeal in THE REGISTERED TRUSTEES OF DAR ES SALAAM NURSERY SCHOOL AND ANOR. V. GEORGIA CELESTINE MTIKILA, CAT CIVIL APPL. NO; 15 OF 1997, AT DAR ES SALAAM. (unreported)

RESTRICTIONS TO REPRESENTATIONS BY ADVOCATES;

An Overview;

Despite the fact that an advocate is entitled to act for a party to suit, there are legal restrictions for the representation. The restrictions may be categorised into two for purposes of learning; one is Absolute Restriction and two, is Conditional Restriction. An Absolute Restriction carries a sense that an advocate is entirely restricted to represent a party to court proceedings, and a Conditional Restriction implies that the restriction may be waived upon compliance to some requisites. These restrictions are as follows;

Absolute-Restrictions.

An example of this restriction is where the law explicitly provides that an advocate cannot appear and represent a party to proceedings. Under the circumstance he cannot do. In this respect reference may be made to S. 33 (1) of the Magistrates Court Act, (Cap. 11 R. E. 2002) which provides that; no advocate or public prosecutor as such may appear or act for any party in a primary court.

Conditional Restrictions.

Again, Conditional Restrictions may be divided into two groups for the same purposes of learning, these are Judicial Conditional-Restrictions and Statutory Conditional-Restrictions.

Judicial Conditional-Restriction;

These are Conditional Restrictions imposed by court orders or directives in accordance to the law. It is instructed for example, under the proviso to Order III Rule 1 of Cap. 33 that an advocate may be restricted to represent a party to suit by a court order where the court directs that the party appears himself. This is thus a restriction in disguise unless the party takes steps so that he can be represented by his advocate if any.

Another conditional restriction is under Order III rule 4 of Cap. 33 in which the court is entitled to require any advocate claiming to be acting on behalf of any party who has not appeared in person or by his recognised agent to produce, within such time as may be reasonable, a written authority signed by such party or his recognised agent authorising the advocate to act on behalf of such party. Under this situation an advocate will not be automatically entitled to represent the party to suit unless he produces the written authority or the court waives the requirement to produce it. These kinds of restriction may, for the purposes of learning be referred to Judicial Conditional-Restriction;

Statutory Conditional-Restriction;

These are Conditional Restrictions directly imposed by statutes. An example of a Statutory Condition Restriction is found under Order III Rule 2A of Cap. 33, in which an advocate cannot appear before a Commercial Court unless he complies with either of the two terms

a) He is certified by the council for legal education as being knowledgeable in commercial law and practice, or

b) He has obtained permission from the Judge in charge of the Commercial Court to appear in respect of a specific case.

Negative Approach Against Restrictions to Legal Representations;

Though there are provisions of law condoning restrictions to legal representation, there is a school of thought against the idea. In RICHARD KASELA v. THE CHAIRMAN OF THE TEACHERS SERVICE COMMISSION (TSC) AND 2 OTHERS, HIGH COURT MISC. CIVIL APPLICATION NO; 15 OF 2001, AT MBEYA. (unreported) the High Court was of the views that, a right to legal representation is a Human Right protected under the Constitution of the United Republic of Tanzania and other International Instruments, and further that; any law restricting legal representation in the course of determination of one’s right is a bad law. This stance goes in tandem with the decision in THOMAS MJENGI v REPUBLIC [1992] TLR 157.

Of course! The common position in this school of thought is that, a person must exercise his right to legal representation promptly and without unnecessary delay, see MICHAEL MPEMBELA VS. REP.(1980) TLR. 322. This was a decision in criminal proceedings but the principle smoothly applies in both criminal and civil proceedings so long as the right to legal representation is crucial to both kinds of proceedings.

D. F. MULLA, in his Code of Civil Procedure Act V of 1908 (With Explanatory Notes and Commentaries), 10th Edition, The Eastern Law House, Calcutta, 1934, (Copy in 2 volumes), at page 505, subscribed to this approach, when he made a commentary to the effect that, a Court is not justified to order personal appearance unless it has sufficient grounds to order so.

The eminent English Lawyer, Lord Denning M.R. is also in favour of this school of thought, in PETT v. GREYHOUND RACING ASSOCIATION LTD: [1969] 1 Q.B.125 AT P.13: he observed;

“I should have thought, therefore, that when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He also has a right to speak by counsel”.

This prudence from Lord Denning M.R was also approved in our domestic decision of the High Court in JOHN KAHAMILA v PASCHAL JONATHAN & HILDA HOSIA [1986] TLR 104.

INSTRUCTIONS TO ADVOCATES;

Procedure of Instructions;

Though the law entitles a party to court proceedings to use the service of an advocate, it does not provide the procedure for doing so, it follows therefore that the transaction can take any form, and any person authorised by the party can instruct an advocate on his behalf so long as there is proof that the party has consented for the instructions. In SAID SALIM BAKHRESSA v ALLY A NGUME 1997 TLR 312 the Court of Appeal was of the views that; there is no formal procedure laid down for instructing an advocate to defend a client in a trial, the court held further that an instruction by a nephew of the party was a proper authority to the advocate.

It was also held to the effect that, a dully authorised attorney can instruct an advocate to institute a suit in the name of the attorney’s principal, see ABDALLA WARJI HIRJI v. DHANJI BHIMJI & CO. [1919] 8 EACA. 206.

Disowning Performance of a Duly Instructed Advocate;

The law is to the effect that, once a party has duly instructed an advocate, he cannot disown his acts merely because they have resulted to negative fruits on his part, the Court of Appeal in FESTO SUDI v. IHOMBE VILLAGE COUNCIL, CIVIL APPLICATION NO; 8 OF 2001, AT MBEYA (unreported) gave the following position of the law in this respect;

“An advocate is considered to be an authorised agent of a party with authority to bind his principal in court proceedings.…If however, he allows his advocate to continue representing him in proceedings in court, he cannot subsequently be heard to disown the submissions or applications made by him to court”.

This was also the legal stance adopted in the decision of CHANGORO HAMIS MLEZI v. UNITED CONSTRUCTION CO; LTD [1980] TLR. 71 and that of HANSIRAJ RAMMAL SHAH v. WESTLANDS GENERAL STORES PROPERTIES LTD AND ANOTHER [1965] EA. 1942.

Advocates Acting Without Authority Of The Party To Proceedings.

As observed above, the advocate acts in accordance to the authority given to him by the party to suit, it follows therefore that, where an advocate acts without authority of the party to suit who ultimately looses the matter, the party’s remedy is to sue the advocate for damages, see FESTO SUDI v. IHOMBE VILLAGE COUNCIL,(supra, un reported)

An English decision of MARSDEN v. MARSDEN; [1972] 2 ALL ER 1162 also supports this stance of the law and goes further deciding to the effect that a decision reached through a representation by an un-authorized advocate is liable for being set aside, the court observed thus;

“In cases, unknown to the other party, where the usual authority of counsel was limited by express instructions and counsel had nonetheless entered into a compromise for which he had no authority, the court had power to interfere and might, in the exercise of its discretion, set aside the compromise and order based on it, if grave injustice would be done by allowing the compromise to stand”

Cessation of Authority of Advocates.

Like any other contract, the authority of an advocate to represent a party may cease for various ground. Death of a party to suit is one of the reasons, it is the law that advocates have authority to represent living persons only and not died persons, see the prudence of the High Court in MUGYABUSO BARONGO VS. NBC. & ANOTHER MISC. HC. CIV. APPL. NO; 27 OF 1997 AT MWANZA (unreported).

Again, the decision by the Court of Appeal IMERIMALEVA AND OTHERS v DIMA NHORONGO 1991 TLR 1 was to the effect that an authority given to an agent under Order 3 rules 1 and 2 of the Civil Procedure Code, 1966 lapsed as soon as the principal died, this stance may also apply to advocates.

Again, the authority of an advocate may be terminated upon revocation by the party to suit, or even by withdrawal of the advocate from the conduct for want of proper instructions or contact with his client.

The procedure for the withdrawal however by an advocate from the conduct of the suit, is not stipulated by the law; see the obiter in AMAN DAVID MLANGA v TIMBER IMPREGNATION LTD [1991] TLR 172 where the High Court observed thus;

“I think the requirement for advocates to formally withdraw from suits and before the courts is a requirement based on practice and courtesy only. Mr. Nyange came with his clients. If the clients will recognize Mr. Kapinga as their advocate they would have objected to Mr. Nyange appearing on their behalf and from making the application he made. They did not do so and I take it that Mr. Kapinga no longer represents the first defendant; Mr. Nyange is the one who now represents them. I therefore overrule Mr. Tarimo's objection to the application made by Mr. Nyange.”

ROLE/DUTY OF ADVOCATES;

As an officer of the court, an advocate has the role or duty to assist the court to reach into just and fair decision, see HAMADI CHALI v. REPUBLIC, CAT CRIMINAL APPEAL NO; 74 OF 2005, AT MWANZA (unreported). According to the decision in AKENA ADOKO VS. ADVOCATES COMMITTEE (1982) TLR. 290 an advocate must transact his business with skills and diligence both to court and his client.

Advocate must thus not be snags to cases, in CRDB BANK LTD v. REHEMA DISMAS MGIMWA, HC, DC CIVIL APPEAL NO; 3 OF 2003, AT MBEYA for example, an advocate filed an application under a certificate of urgency, he obtained an interim order pending the final determination of his main application, thereafter he was assigned to appear as defence counsel in a High Court Session and he left the application and his client un attended. The High Court decided to the effect that, the advocate ought to have informed the court entertaining the application and caused his client’ brief be held by another advocate in the application with the certificate of urgency, otherwise his conduct amounted to a meandering for delaying the main application, hence the conduct was an abuse of court process. The High Court thus raised the interim order.

An advocate must thus not file unnecessary applications delaying and abusing the court process; see EZECKIEL B. CHENGE VS. ADAM KAITA HC. CIV. CASE NO; 40/98 AT MWANZA. (unreported), and TARIME DISTRICT OCUNCIL VS. WILSON .E. AWOUR HC. CIV. REV. NO; 6/99 AT MWANZA. (unreported).

Again, an advocate should not tell lies to the court, otherwise this may result to disciplinary actions against him including suspension, see the envisaging in SERVINGS AND FINANCE COMMERCIAL BANK LTD v. HAMAD RASHID MOHAMED, HIGH COURT COMMERCIAL CASE NO; 75 OF 2006 (COMMERCIAL DIVISION), AT DAR-ES-SALAAM. (unreported).

It follows therefore that; advocates should be sincere and honest so as to avoid the bad image which the public sometimes imputes on them, such negative attitudes as quoted in JOHN KAHAMILA v PASCHAL JONATHAN & HILDA HOSIA [1986] TLR 104 (HC) include the intention to kill all the lawyers for the accusing allegations against them, the allegation that lawyers are deceivers whose heads are full of mischief, the allegations that they are skilled in circumvention of the law, etc. Indeed, the High Court in this case ultimately concluded that lawyers play a very useful part in society. This is the image which must therefore, be proved by lawyers themselves in their conduct both in courts and outside court.

J. H. K. UTAMWA (D/REGISTRAR) THE HIGH COURT OF TANZANIA

AND

MUSHOBOZI, JULIUS LL.B

(MZUMBE UNIVERSITY)

[edit] PROFSSIONAL CONDUCT (ETHICS) OF LAWYERS/ADVOCATES AS A LEGAL SKILL REQUIRED IN TANZANIA

PROFSSIONAL CONDUCT (ETHICS) OF LAWYERS/ADVOCATES AS A LEGAL SKILL REQUIRED IN TANZANIA

This address is in respect of advocates’ professional conduct, it will briefly discuss their Code of conduct (the Code), and it will concentrate on the following specific themes;

• An Overview of the Rules of professional conduct and etiquette.

• Prohibitions,

• Advertising,

• Spending client’s money,

• Bowing

• Disclosure and Privilege.

AN OVERVIEW OF THE RULES OF PROFESSIONAL CONDUCT AND ETIQUETTE.;

Anatomy of the Rules of Professional Conduct and Etiquettes;

As it is for other professional groups, advocates also need Rules of Conduct (ethics) as guidance in performing their profession.

Generally, codes of ethics fro different professionals are designed to prevent unethical behaviour and can hold such officers accountable for their individual actions.

In Tanzania, advocates ethics and conducts are governed by “The Rules of Professional Conduct and Etiquette for advocates” (the Rules). These Rules are therefore, a collection of regulations controlling their conduct and ethics in performing their legal profession.

According to the anatomy of the Rules, they provide guidelines covering mainly for the following areas;

1. Relationship among advocates.

2. Relationship between advocates on one hand and courts on the other.

3. Relationship between advocates on one side and clients on the other.

4. Requirements in the daily routine of advocates and their offices.

5. Prohibitions against advocates.

Why do we need the Rules?

Advocates must observe a certain standard of professional ethics and conducts because they owe a duty to the court and their client. As to the court, they have to assist it to reach into a fair and just decision. They also have a duty to zealously advance the legitimate interests of their clients.

Advocates must thus at all times act with personal courtesy and professional integrity in view of ensuring an effective administration of justice which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful and efficient manner. They thus owe to all participants in a legal proceeding respect, diligence, punctuality, and protection against injustice and improper criticism or attack, hence the need for the Rules.

PROHIBITIONS,

There are various prohibitions against advocates. Few examples may be cited, these include the following;

a) An advocate is not entitled to refuse to act in a matter merely because the opposite party is another advocate, and he is not entitled to represent a client when another advocate acts for him unless that other advocate consents, or refused to act for the client or the client withdraws his instruction from that other advocate.(Rules; 2 and 3)

b) An advocate is prohibited from becoming a member of a chamber of commerce unless he does so in another capacity other than as an advocate. (Rule; 12).

c) As a commissioner for oaths, an advocate cannot act in a matter in which he had acted as an advocate or he has interest. [Rule; 15 (b)]

d) An advocate cannot ignore a request for payment of court fees, he must pay the same promptly (Rule; 20).

e) An advocate cannot engage himself in an extraneous activity which is not a honourable one and which detracts from his status as an advocate, or which intends to attract business to the advocate unfairly.

f) Smoking by advocates in court is not permitted.(rule 31)

g) Advocates are not allowed to bold their names appearing in telephones directories, or include the name “advocate” in the address (Rule; 33).

h) Advocates are prohibited from causing witnesses to testify lies or from acting into a case where they can be called as witnesses. (Rule; 36)

ADVERTISING,

Under Rule; 4 of the Rules, advocates are prohibited from permitting the press to publish or advertise their professional carrier, and their photographs in gowns cannot be published, . They cannot apply or seek instructions for professional business and they are not allowed to do anything which may be regarded as attracting business unfairly;

However, an advocate is at liberty to charge fees less than the prescribed, or to share his profit or costs in respect of his business.

Where an advocate broadcasts on radio or television or publishes anything in any way he may be identified by name only, or by the title “advocate” only, unless the same is not for commercial purposes.

SPENDING CLIENT’S MONEY,

Rule 13 governs financial matters in respect of advocates’ duties as between him and his client.

The rule however, underlines the application of the Advocates (accounts) Regulations 1956 (the Regulations), which said Regulations make it mandatory to an advocate to keep books of accounts, and direct that they must deposit money paid for office purposes into a deposit account.

The Regulations also instruct that an advocate shall keep his own account and the clients’ account; they also make conditional restrictions for depositing and withdrawing money from a clients account.

The regulations however, are flexible enough, they allow some agreed transactions between the advocate and his client as far as payment into or withdrawal of the money from the clients’ account is concerned.

The advocates committee has powers to inquire and ensure the smooth compliance of the regulations.

BOWING;

Bowing simply means “bending over”. It has been a trite custom in the legal fraternity that advocates bow before judicial officers either in court rooms or chambers, some extend this tradition even to places other than the mentioned above.

According to Rule 11, this is a privilege on the part of enrolled lawyers only, which said privilege is not extended to their un-admitted assistants or clerks.

This custom is meant to show respect to judicial officers in the legal fraternity, that is why in some occasions, even junior judicial officers bow before senior judicial officers to imply courtesy.

DISCLOSURE AND PRIVILEGE;

The rule in respect of Disclosure and Privilege is provided for under rule 22, it is relate to the relationship between an advocate, his client, Income Tax Authorities and the Police.

The rule of Disclosure is to the effect that, an advocate is restricted to disclose some particulars, transactions and affairs of his client to Income tax authorities unless the client consents to the disclosure.

As to the rule of Privilege, it is to the effect that, a client, and not the advocate enjoys a privilege in which he can confide completely in his advocate without his affairs, being communicated to the police by the advocate.

This privilege is limited to matters in respect of litigations and other affairs but not extended to fraud and crimes.

OTHER MACHINERIES CONTROLING THE CONDUCT OF ADVOCATES;

A conduct by an advocate is not solely governed by THE RULES OF PROFESSIONAL CONDUCT AND ETIQUETTES. There are other machineries which control and instruct on their conduct. These machineries may be categorised as follows;

Statutory Control;

These are acts or legislative instruments which in a way or other touch the conducts of the advocates’ professions, they must thus observe these pieces of legislation. Those mechanisms include;

a) The Advocates Act, and subsidiary legislations made under it. These subsidiary legislations include;

• The Advocates' Act (Application of Section 3 to the Tanzania Legal Corporation) Order

• The Advocates (Admission and Practising Certificate) Regulations.

• The Advocates (Accounts) Regulations.

• The Advocates (Professional Requirements) Regulations.

• The Advocates (Disciplinary and Other Proceedings) Rules.

• The Advocates' Remuneration and Taxation of Costs Rules

b) The Notaries Public and Commissioners for Oaths Act, this is An Act relating to Notaries Public and Commissioners for Oaths. Indeed, advocates are notaries public.

c) The Legal Aid (Criminal Proceedings) Act, according to its short title, this is an Act to provide for the rendering of free legal aid in criminal proceedings involving indigent persons.

d) The Tanganyika Law Society Act, this is An Act to establish the Tanganyika Law Society and to provide for other related matters.

International Influence;

Lawyers in Tanzania have their contacts and associations internationally, this thus assists them to tape other jurisdictions’ practice so as to enhance their ethics, for example, they are members of the East African Lawyers Society and the Bar Association of Commonwealth.

The practice in other jurisdictions influences the practice in Tanzania. In America for example, there is the famous American Bar Association (ABA), this is a National organization of the legal profession, founded in 1878 and it has a great influence global wide.

Judicial Control;

Dual Role Of Advocates, As Witness And Advocate;

The law is to the effect that an advocate cannot pose both as a witness and counsel at the same time in a single matter, see JAYANTILAL NARBHERAM GANDESHA v. KILLINGI COFFEE ESTATE LTD in which it was held that, it is irregular for an advocate to act in the dual role, and further that if he is called as a witness, he must step down as an advocate.

This situation was also considered in JAFERALI AND ANOTHER v. BORRISAW AND ANOTHER, in this case the High Court did not establish any stance of the law because the application to restrict such a conduct was held brought prematurely. However, the Court recognised the practical restriction to the effect that it is improper for an advocate to conduct himself in such a manner.

It is apparent therefore that the powers of an advocate are limited to representing his clients only; they can not be extended to testify on behalf of his client. Where an advocate wishes to address the court on behalf of his client, he is only entitled to make submissions and not to testify.

It must be born in mind however, that advocate’s submissions do not have any evidential value, see the observation by the court of appeal in THE ASSISTANCE IMPORTS CONTROLLER (B.O.T) MWANZA VS. MAGNUM AGENCIES CO. L.T.D. It thus remains true that he has no room to give evidence in the case in which he acts as advocate.

Advocate As Party To Proceedings Himself.

As a human being, an advocate is entitled to sue and he may be sued. When he acts in that capacity as a party to court proceedings he is deprived of the powers to act as an advocate from the bar in his own case or in the case of his firm, he will conduct it as a mere litigant and he will not be entitled to advocate’s costs (instruction fees), but to his own disbursements, see; AKENA ADOKO’S CHAMBERS V. MOHAMED MAGANGA.

“Double Dealings” by Advocates.

An advocate, though empowered to represent parties to proceedings, he cannot in law represent two persons of conflicting interests, otherwise he may be subjected to disciplinary proceedings including a suspension. This is an envisaging in the recent order of the High Court in SERVINGS AND FINANCE COMMERCIAL BANK LTD v. HAMAD RASHID MOHAMED.

Blunders Committed By Advocates;

So long as an advocate has full powers to represent his client in the conduct of the suit in court, mistakes by the advocate are taken by the law as no excuse on the party himself. The party cannot own the advocate by one hand and disown his mistakes by the other. In CALICO TEXTILE INDUSTRIES LTD. v PYARALIESMAIL PREMJI for example, the Court of Appeal held that, failure by the advocate to check the law could not result to a decision in favour of his client.

In the same way, it was held that, the conduct of an advocate who walks out of the court when the case is called for hearing will not make the judgement exparte (i. e. it is in the detriment of his client); see BADRUDIN HASHAM LAKHAN AND ANOTHER V. PYARALI HASHAM LAKHAN.

In another instance the Court of Appeal held that, the fact that an advocate was engaged in political matters is not a good reason for the court to grant his client’s application for extension of time for, that conduct amounts to laxity or negligence and inaction, see the decision in THE REGISTERED TRUSTEES OF DAR ES SALAAM NURSERY SCHOOL AND ANOR. V. GEORGIA CELESTINE MTIKILA.

The rationale behind this stance of the law is that, once an advocate is instructed to take the conduct of the case, he is expected to use all diligence and industry in conducting it. Another reason for the stance is to avoid endless litigations, see the remarks of the High Court in MACK LEKEU VS. KAZIMIL MAHENDA.

Advocates Acting Without Authority Of The Party To Proceedings.

As observed above, the advocate acts in accordance to the authority given to him by the party to suit, it follows therefore that, where an advocate acts without authority of the party to suit who ultimately looses the matter, the party’s remedy is to sue the advocate for damages, see FESTO SUDI v. IHOMBE VILLAGE COUNCIL.

The position in England is a bit different, in an English decision of MARSDEN v. MARSDEN it was observed thus;

“In cases, unknown to the other party, where the usual authority of counsel was limited by express instructions and counsel had nonetheless entered into a compromise for which he had no authority, the court had power to interfere and might, in the exercise of its discretion, set aside the compromise and order based on it, if grave injustice would be done by allowing the compromise to stand”

The two positions can however, be reconciled by the application of S. 95 of the Civil Procedure Code which gives inherent powers to the court to make orders for the sake of justice.

Role Or Duty Of Advocates;

As an officer of the court, an advocate has the role or duty to assist the court to reach into just and fair decision, see the decision of the Court of Appeal in HAMADI CHALI v. REPUBLIC. He must thus transact his business with all skills and diligence to both, the court and his client as per the decision in AKENA ADOKO VS. ADVOCATES COMMITTEE.

An advocate is not entitled to abuse the court process and delay cases. In CRDB BANK LTD v. REHEMA DISMAS MGIMWA for example, an advocate filed a civil application under a certificate of urgency, he prayed and obtained an interim order pending the final determination of the filed main application, thereafter he was assigned to appear as defence counsel in a High Court Session and he left the civil application and his client un attended, the High Court decided to the effect that, the advocate ought to have notified the civil court on his engagement in the sessions and to have caused his client’ brief be held by another advocate in the application, otherwise his conduct amounted to a meandering for delaying the main application, hence the conduct was an abuse of court process. The High Court thus raised the interim order. The following cases also underscores this position; EZECKIEL B. CHENGE VS. ADAM KAITA and TARIME DISTRICT OCUNCIL VS. WILSON .E. AWOUR.

Again, an advocate should not tell lies to the court, otherwise this may result to disciplinary actions against him including suspension, see the envisaging in SERVINGS AND FINANCE COMMERCIAL BANK LTD v. HAMAD RASHID MOHAMED.

Advocates should thus be sincere and honest so as to avoid the bad image which the public sometimes impute on them, such negative attitudes as quoted in JOHN KAHAMILA v PASCHAL JONATHAN & HILDA HOSIA include the mislead intention to kill all the lawyers, the allegation that lawyers are deceivers whose heads are full of mischief, the wrong belief that they are skilled in circumvention of the law, etc. Indeed, the High Court in this case ultimately concluded that lawyers play a very useful part in society. This is the image which must therefore, be proved by lawyers themselves in their conduct both in courts and outside court.

Other Instruments;

There are also other instruments which support the Rules, these include The Clients Service Charter of Judiciary; this is a document launched in Dodoma on the 13th day of November, 2002 giving guidelines to personnel of the judiciary and stipulating standards in delivery of judicial services in the country. Advocates, as representative of their clients are clients of the judiciary and owe a role and duty to the judiciary as stipulated into this document, they must thus abide by the stipulations of the document.

Also circulars of high judicial leaders; do also bind advocates in their profession conducts. For example, circulars instructing that civil and criminal cases to start at 8. 30 and 9.00 am respectively must be obeyed by both judicial personnel and advocates who represent parties in courts.

CASES TO READ;

• RE A FIRM OF SOLICITORS;

• NBC v. NABRO LTD AND MEEDA REUBEN BABURI

J. H. K. UTAMWA (D/REGISRAR) THE HIGH COURT OF TANZANIA AT MBEYA.

AND

MUSHOBOZI, JULIUS LL.B

(MZUMBE UNIVERSITY)

[edit] A RESEARCH DESIGN IDENTIFIES THE STRATEGIES THROUGH WHICH A A PLAN OF A RESEARCH IS TO BE CARRIED OUT. THIS IS THE BASIS OF INTERDEPENDENCE BETWEEN A RESEARCH A RESEARCH PLAN AND ARESEARCH DESIGN.

A RESEARCH DESIGN IDENTIFIES THE STRATEGIES THROUGH WHICH A PLAN OF A RESEARCH IS TO BE CARRIED OUT .THIS IS THE BASIS OF THE INTERDEPENDENCE BETWEEN A RESEARCH PLAN AND A RESEARCH DESIGN .( CHARLES CHARTJEE (1977) PG 21.

INTRODUTION

It is to be made clearly made that planning of a research project depends entirely upon the nature of the subject matter and the availability of materials .There fore care should be taken that a research does not represents a summary of previous research in the same field of study what are included in a research planning are choice of topic ,identification of issues ,formulation of questions ,laying of hypothesis and research design .For the purpose of this paper ,we are going to explain in brief various meanings of research design ,characteristics ,types, significances of research design and finally we are going to conclude.

MEANINGS OF RESEARCH DESIGN

The meanings the phrase research design has been clearly stated by various authors who may differ in vocabularies used but they express almost the same concept.

According to Walizer and Wienir research design refers to the ways of collecting data but this explanation is only one aspect of the research design because a research design in its broad sense is concerned with the structure, plan and methods of investigation with the view to reaching acceptable answers to research question.

Philips on the other hand maintained that “the research design constitutes the blue point for the collection measurement and analysis of data”2 .In view of this explanation therefore, research design serves two purposes, the first being to help the researcher to make a rational allocation of his resources for collecting materials for his research and the second is to allow the researcher to identify the tools he may require his research.

Also, according to the case of Pauline V Young “A research design is a plan of action, a plan for collecting and analyzing the data in an economic efficient and relevant manner”

Moreover according to Selltz and others “research design is a catalogue of various phases and a fact relating to the formulation of a research efforts .It is an arrangement of the essential conditions for collection and analysis of data in form that aims to combine relevance to research purpose with economy in the procedure”.

Miller on his side has defined the research design as “the planned sequence of the entire process involved in conducting a research study”.

Nachmias and Nachmias have defined the research design as the “programme that guides the investigator in the process of collecting, analyzing and interpreting the observations”

Actually there so many definitions of research design however all definitions have slight differences which may be noted in the way the authors play with words while conveying almost similar notion .To make it clear therefore ,it should be born in mind that to design is to plan and that designing is the process of making decisions before the situations arises in which the decisions has to carried out .Designing is thus a process of deliberate anticipation directed towards bringing an expected situation under the control .

CHARACTERISTICS OF A GOOD RESEARCH DESIGN.

Having made a research design is one of the important things to be considered by any researcher .But it is not enough to have a research design ,the question which a researcher should ask himself or herself is that ,is the said research design good enough to satisfy his or her research ? To answer the raised question, hereunder comes the basic characteristics of good research design.

The first and foremost is objectivity .The objectivity of the findings in its strict sense refers to the methods of collection of data and scoring of the responses .The objectivity of the procedure may be judged by the degree of agreement between the final scores assigned to different individuals by more than one observer.

In this view there fore ,any research should permit the use of measuring instruments which are fairy objective in which every observer seeing a performance arrives at precisely the same report .This ensures the objectivity of the collected data to be used for the analysis ,inferences and generalization .

The second characteristics of a good research design. Is reliability in this context, a good research design should be reliable .The term reliability refers to consistency throughout the series of measurement. This implies that if a respondent gives out a response to particular item, he is expected to give the same response to that item whenever he is asked substantially.

The responses given out by the respondents may be determined through various methods, some of which includes using check items, administering the same test repeatedly, using a series of parallel form and many others.

The third characteristic of a good research design is validity .In the light of this point, it means that any measuring instrument is said to be valid when it measures what it purports to measure .There good number of procedures for establishing the validity of test, some such procedures includes the following: validating the present data against a concurrent criterion or a future criterion or a theory.

The forth one is generalization ,under thus point ,therefore generalizability ,represents the valid application of the findings of the sample to the population .In other words ,with how much authority and confidence ,an investigator can say the same findings will be obtained even though the data is collected from the total population n from which the sample is selected .Hence a good research design should first ensure that ,the measuring instruments can yield objectives reliable and valid data ,secondly ,the required size of the sample is collected ,thirdly ,the appropriate statical analysis has been employed and finally that the findings of the present study can be generalized .

The fifth characteristics of a good research can be traced from the words of Ackoff ,According to him “The idealized (good)research design is concerned with specifying the optimum research procedure that could be followed where there no practical resitrictions” It is further explained that the idealized research design comprises the specifications of the most efficient censurable conditions and procedures for conducting the research .The step of designing an idealized plan right seem very impracticable and even an unnecessary one.

TYPES OF RESEARCH DESIGN.

Research design differs depending on the research purpose .The said research purpose and or research designs may be categorized and explained as follows:

First of all is explanatory or formulative research design .This is all about gaining familiarity with the phenomena or to achieve new insight into it often to develop hypothesis .The explanatory method therefore represents the earlier stage of sciences .It is a systematic, scientific and the only way through which a social legal researcher can check whether an idea, that sounds promising to him has much appeal if at all in reality or not .The explanatory studies can further provide ideas hypothesis of suggestions that might never occur to a researcher sitting in a room and thinking over the problem.

According to Katz explanatory studies has been conceptualized at two levels the first being the discovery of significant variable in the situation and the second is the discovery of the relationship between variables .Explanatory stud is thus an initial step in a continuous research process .It is undertaken with the explicitly purpose of formulating a problem for more precise investigation or for developing a hypothesis.

The explanatory research design, according to Selltiz should adopt the steps such as review of the related literature to know the work already done by others, Survey of people who had practical experience with the problems to be studied and the analysis of insight stimulating examples.

The second type of research design is descriptive or survey design .This is the one in which the characteristics of a group, community or people are described .The methods used in this kind of study are inmost cases qualitative in nature producing descriptive data. The techniques used include participants’ observation, personal document and in structured interviews .The findings of one study do not fit to be generalized to apply to other situations .It can provide the information which is valued in policy formulation.

The third type is diagnostic design .This refers to the scientific differentiation among various phenomena or conditions for the purpose of accurately classifying these conditions Diagnostic design corresponds to the fact finding aspect of clinical practices .Its objectives are classification ,personality ,descriptions ,predictions of outcome and attainment of insight by the client with regard to both data gathering and interpretation ,there are number of ways .

The diagnostic research design further represents the strategy of the problem solving .It consists of steps of emergence of a problem a diagnosis of its causes, formulation of all the possible avenues of remedilien and recommendations for possible solution .In this design data is obtained in four major ways which are the case history or interview, clinical observation, informal testing and formal standardized testing.

The steps in diagnostic designs are like that of descriptive study .There fore the first step is to define the question that is to be answered ,the second method is to consider the nature of the problem ,the scope of the study the nature of the respondents ,type of information needed ,the degree of accuracy needed ,and others of the like in selecting the methods of data collection ,the last stage involves the procedure of estimating from the sample findings the problem occurrence on some characteristics in the population .Here standard errors are useful to find out the accuracy of the results .

The forth and last type of research design is explanatory or experimental research design .This type in it’s entirely with problems in which we ask how events are related to one another .They also deal with the cause and effects problem. In experimental studies there are two groups which are experimental group and control group, all of which are chosen such that they do not differ from each other.

The experimental group is exposed to assumed casual variable while the control group is not. The two groups are then compared in terms of the assumed effects .Selection of groups as far as designing experiment is concerned, One is that it must be similar to the experimental group in all respects .To quote John French, “Ideally the control group should be matched with the experimental group on all possible factors, matching on the basis of easily measured variables such as size of the group and age of subject”.

There are three methods used in selection of control group .The first is precision matching where every person has the parallel in a control in the control group, the second is the matching frequency distribution which is the method of collection matching where the group as a whole are similar and the last is randomization where two samples are selected on random base and it is expected that they will be alike.

SIGNIFICANCE OF RESEARCH DESIGN

Firstly, research design is a must for any research problems since it helps to carry out the various research operations very smoothly ,thereby making the research as efficient as possible by giving maximum information by economizing or minimizing time, energy and cost.

Research design stands for advancing planning of the methods to be adopted for collecting the relevant data and the techniques to be used in heir analysis, keeping in the view of the objectives of research and the availability of time, physical and financial resources.

Research design helps to know how much inaccuracy his method of research will produce .then the researcher decides whether the method is suitable to the required accuracy in order to be useful.

CONCLUSION

It could be said that research design stands for a plan to attain the objectives of research through certain methods such as utilization of appropriate sources ,collection of data testing and evaluation of hypothesis and conclusion .Research planning and design is however a multidimensional process as there is no standard formula as to how to plan and design a research .It depends upon various factors such as whether the study is observational or exploratory ,a mere statistical study or experimental or pure research .One of the most important factors in planning and designing a research is the availability of information .It follows from the foregoing there fore that “to design is to plan and there fore designing is the process of making decisions before the situation arises in which the decision has to be carried out ,and thus it is a deliberate anticipation directed towards bringing an expected situation under control”

BIBLIOGRAPHY

CASE(S):

Pauline v Young AIR 1974 S.C 532

BOOKS: Binamungu C.S; M.C.Mukoyogo(2005),Studying In Law skills:A Guide for Begginners

                                                                 in Law ,Mzumbe Book Project

Chatterjee C;(1997)Methods of Research in Law,Old Bay Press.

Rao S.M;(2001)Legal Research Methodology,2nd Edition ,Allahabad Law

                          Agency,Faridabad.

BY MUSHOBOZI JULIUS LL.B

AND BEYANGA ALEX LL.B MZUMBE UNIVERSITY

==

[edit] COMPETENCE AND COMPELLABILITY OF SPOUSES IN TANZANIA

COMPETENCE AND COMPELLABILITY OF SPOUSES IN TANZANIA

INTRODUCTION

Before 1980 husband and wives were considered as one and the same .This presumed though quite erroneously that no polygamous marriage existed .They thought of only monogamous marriage, so once there were two wives then the second wife was both competent and compellable witness in criminal suits involving her husband.

In 1980, an amendment was made to recognize polygamous marriage and other wives also could enjoy the privilege, before the amendment the case of Apeti Mwamalamus (1975) LRT 19, critised the situation and brought in the light of the Islamic law which dully recognizes polygamous marriage.

It is clearly known that in the hand of the law a person can not give evidence in court unless he is competent enough to testify .In some circumstances a competent person may be compelled to produce or to adduce evidence but in other situation the same is not possible .It should be noted that incompetent people are not allowed to testify in court but the question as to who is competent and who is incompetent ,it is upon the court to be satisfied that one is competent and the other is not competent .This paper therefore intends to give the general concept of competence and compellability ,the law relating to competence and compellability of spouses in giving evidence both in civil cases as well as in criminal cases, exceptions to the general rule and finally we can conclude .

But before going into details it is of utmost important to give the meaning of competence, compellability and who are spouses

It should plainly be made clear that not every witness is allowed to testify .The general question is ,who may be compelled to give evidence and the circumstances under which a competent witness may be relieved from giving evidence .Witnesses generally are classified into three groups namely ,witnesses who are competent and compellable to testify ,witnesses who are competent but not compellable and witnesses who are competent but for some reasons or another ,the court will not allow them to testify .This therefore brings three important notions used in law relating to witnesses which are competence ,compellability and privilege .

THE GENERAL RULE ON COMPETENCE AND COMPELLABILITY.

According to chapter five, part one and section 127(1) of The Tanzania Evidence Act in particular, the general rule is that every person shall be competent to testify unless the court considers that he is incapable of understanding the questions put to him or of giving rational answers to those questions by reason of tender age, extremely old age, diseases whether of mind or body or any other similar cause.

The validity of afore said provisions is that the only disqualification is inability to understand the question or to give rational answers to it .But what about spouses who can understand the question or give rational answers? The question raised shall be answered basing on the position of the law as far as spouses are concerned in both civil and criminal cases.

COMPETENCE AND COMPELLABILITY OF SPOUSES IN CIVIL MATTERS .

Before discussing the law relating to competence and compellability of spouses in civil cases for the purpose of this discussion, the term spouse refers to husband and wife which, according to Section 3 of the Evidence Act, spouse means husband or wife of a marriage which is valid according to the written law or customary laws of the United Republic, thus the nature of marriage should be valid before the eyes of law as it has been stipulated.

Concise law Dictionary explains the common law position that husband and wife were one person and as Blackstone wrote “the husband is that one” A woman’s property passed to her husband at marriage and she could own no goods even wages earned by working woman were in law the property of her husband .

Equity slightly ameliorated the position for those women wealth enough to have trustees of real property not until the married woman’s property Act of 1882 was a woman property her own .One spouse can not be compellable to testify against the other for the prosecution in criminal proceedings.

The law relating to competence and compellability of spouses in giving evidence in civil cases is provided for under section 131 of The Tanzania Evidence Act which provides clearly that “In all civil proceedings the parties to the suit and the husband and wife or wives of any party to the suit, shall be competent and compellable witnesses. For the purpose of this point the case of Bihawa Mohamed V Ally Seif is very relevant .This case shows one of the circumstances under which spouses may be competent and compellable witnesses .The case was about division of matrimonial assets between the wife and the husband.

. COMPETENCE AND COPELLABILITY OF SPOUSES CRIMINAL CASES.

The competence of the spouse as a witness can be examined at two levels .First is when the husband or wife, as the case may be is an accused person .In such a case such a husband or wife who is an accused of an offence ,is a competent witness for the defence but such a person cannot be compelled to give evidence .He is at liberty to do so as per section 231 and 293 of Criminal Procedure Act .

Second is where the spouse is needed to give the evidence either for the prosecution or for the defence, for the purpose of the prosecution case ,the general rule is that a spouse is competent but not compellable witness for the prosecution .This position is provided for under section 130 (1) of The Tanzania Evidence Act which states that “where a person charged with an offence is the husband or the wife of another person that other person shall be competent but not compellable witness on behalf of the prosecution .In other words such spouse is privileged and the said privilege extends to all spouses whether or not marriage is monogamous .The above provision can be supported by the case of Matei Joseph V R (1993)TLR 152,where the appellant was convicted of murder and sentenced to death .At his trial his wife was compelled to testify against him as a key prosecution witness .He appealed against conviction and sentenced .The court of appeal held that ;the evidence of a spouse who has been compelled to testify against another spouse in a criminal case contrary to the provisions of sections 130 of the Evidence Act is inadmissible and of no effect”

A problem may however arise where concubine is involved and the issue ,is , whether concubine is covered by the privilege .

The case of R Vs. Siwajibu Kibaya shows the position of concubine, the material facts of the case are as follows….a couple lived together in concubine for three years, be got two children and entertained the desire and hope of going through a ceremony of marriage in the near future .The court considered whether spouse under such circumstances in Tanzania is under duty to testify against the other spouse. Held; where the line between a valid marriage and concubine is obscured and where cohabitation takes on the typical features of the durable establishment a spouse of such cohabitation under duty to testify for the prosecution.

EXCEPTIONS TO THE GENERAL RULE

As opposed to the general rule, regarding competence and compellability of spouse as witnesses, there some circumstances in which the spouses may be competent and compellable witnesses .Here in under follows the exceptions to the general rule.

A: COMPETENCE OF SPOUSES AS A WITNESS FOR THE PROSECUTION;

According to Section 130 of The Tanzania Evidence Act any wife or husband, whether or not of monogamous marriage, shall be a competent and compellable witness for the prosecution .This provision is an exception to the general rule regarding competence and compellability of spouses .Therefore the following are cases in which spouses may be competent and compellable witness for the prosecution.

Firstly ,is that spouse may be competent and compellable in any case where the person charged is charged with an offence under chapter XV of the penal code or under the law of marriage Act .

The said offences referred to under chapter XV of the penal code are the offences against morality .Other offences include those which affect the person of the spouse such as assault or the property of the spouse ,for example conversion of the property of the wife by her husband and an offence against the person or property of the children of either husband or wife ,whether born of the marriage or not .It should however be born in mind that the compellability of the wife is subject to the rules regarding the privilege concerning non disclosure of communications made during marriage .

Also the spouse of an accused person shall be competent and compellable witness for the prosecution at every stage of the proceedings where that person is charged with the offence of bigamy or any other offence .

B: COMPENTENCE FOR THE DEFFENCE.

According to Section 130(4) of The Tanzania Evidence Act every person charged with an offence and the wife, or in a polygamous marriage ,one of the wives or the husband ,as the case may be of the person so charged ,shall be a competent witness for the defense at every stage of the proceedings where the person charged is solely or jointly with any other person .But an exception is made within the same provision that a wife or a husband of the person so charged shall not be called as a witness except upon the application of the person charged .

Though the afore cited provision ha stated clearly on the competence of the spouse but the same is silent on the compellability of the spouse as a witness for the defense at present it appears that husband or wife of the defendant cannot be compelled to give evidence on behalf of the accused .

BY

MUSHOBOZI JULIUS LL.B

[edit] AFRICA HAD ITS BANKING SYSTEM EVEN BEFORE COLONIALISM. CASE STUDY IS TANZANIA.

THE HISTORICAL BACKGROUND OF SUPERVISION AND REGULATION OF COMMERCIAL BANKS IN TANZANIA

INTRODUCTION The commercial banks like other financial institutions make their profit by borrowing and lending . Their borrowing consists chiefly of costumer’s deposits most of which can be used for profitable lending. However their deposit can be withdrawn and in arranging their loans, banks must consider the need for liquidity-that is access to cash and profit. This can be seen in the in their balance sheets in which deposits are classified as liabilities and loans as assets.

Commercial banks lending affects the economy of the country, as well as the stability of other commercial banks through supply of money and the level of spending. The BOT has the power to regulate and supervise such mode of commercial activities by issuing instructions to the volume and direction of commercial loans. This is the direct mean of control. The commercial banks are also controlled indirectly by dealing with quantity of that asset. This is done through open market operations, or by calling for or leasing special deposits as well as interest rates.

However, in tracing the supervision and regulation of commercial banks in Tanzania it is proper to observe the historical background of the methods used in Tanzania.

EVOLUTION OF BANKING BUSINESS IN EUROPE The literatures indicate that Italy had commenced the banking business in the mid of 14th Century. Venice was the central commercial cities. On 24th September 1314 some Laws related to banking activities were established. In the 16th century the new legislation was enacted to prohibit the bankers from engaging in other non banking business. Such laws assisted much the strengthening of other banks .

In England, the banking activities are said to have commenced in the 17thC and the bank of England was made the central bank to control the banking business in the area. The laws were enacted also to assist the regulation of the then commercial banks .

It is obvious therefore that the western history of the banking activities are much relevant to the reflection of the regulation and supervision of commercial banks in Tanzania, formerly a colony of Britain.

BANKING BUSINESS IN PRE-COLONIAL TANZANIA Tanzania [Zanzibar and mainland] had commercial activities which can be categorized as banking. These banking were also regulated accordingly. Binamungu argues

   “In fact in the period just before colonial occupation of East Africa, banking had   
     thrived to the extent of becoming a profitable business in some parts of what is now   
     Tanganyika and Kenya”

Following the commercial and trade activities in East Africa, the banking activities are said to have commenced by the mid of 19th Century and developed in the Empires of Sultan of Zanzibar in East Africa throughout all long distance trade routes among the Yao, Hehe, and Nyamwezi.

The pre-colonial banking activities prospered as the Sultan shifted from Muscat to Zanzibar and effectiveness followed soon after the establishment of his custumer houses at Kilwa , Pangani and Bagamoyo. Marcia Wright ’s argument is;

    “Customs masters at Zanzibar..., who controlled the customs at the time of Bargash’s  
      Succession, had effectively become state bankers, extending credit to the head of the 
      State, European trading firms, to plantation owners and to cassava merchants alike”.

Generally, the banking activities existed in Africa, for this case in Tanzania, even before the arrival of the western banking fashion. However, the type of business activities that existed is regarded as Islamic banking activity by some of the intellectuals .

REGULATION OF BANKING BUSINESS DURING THE COLONIAL ERA

       “At the outset however, most of the former British Colonies tried to create the same      
        pattern of monetary institutions as had emerged over the centuries in England.” 

By the arrival of Europeans, the African history did not only change the cultural, social and political set up, but also imposed on commercial activities the western banking elements on pre-colonial banking business. The aim was to stimulate the metropolitan economies.

Before 1919 This is a period when Tanzania mainland was under the Germany economic influence, and Tanzania –Zanzibar under the British.

During the German rule, a settler’s economy was preferred, and a blend of plantation, peasantry and mining also. The banking activities were therefore established in these productive areas to support the provision of credits, subsidies, and other facilities related to maximization of profit in the economy.

Two German banks were established, the Deutch Ostatfrikanische Bank in 1905 in Dar es Salaam, and Handlesbank fur Ostafrika in 1911in Tanga. The former bank was given concession by the government to issue its own currency .

The colonial government among other things enacted the law which required all banks to be registered.

In Zanzibar, the British colony tried to maintain the credit system that emerged during the commercial empire of sultan. Moreover they transformed the slave-dominated economy to free labour and capital .

Like German, the British colony imported its own banks such as national bank of India in 1891, standard bank of South Africa in 1893 followed by Italian banking Company. A postal Office savings bank started in 1907. The colony also made a sterling pound [£] gold coins legal tender at the rate of 15 rupees per £ 1. The other silver rupee coins of the British India were also enacted to be legal tender under the Indian coinage Act of 1906.

After 1919

This is the period characterized by the economic crisis and the rise of Germany and its allies as a super colony against Germany. Tanzania Mainland which previously was located under the dominion of Germany was put under the mandate of Britain. The efforts were made to integrate Tanganyika into a system that existed in Kenya Uganda and Zanzibar, by liquidating the German Banks and allowing the British bank to operate in the area as well as establishing the East African Currency Board. The banks which operated included the Standard bank of South Africa Ltd, National Bank of India ltd, National Bank of South Africa and Banque Du Congo Belge.

Regulation

All banks were required to be registered under the Indian Companies Act in 1913. All banks were required to obtain business license in 1927, under the trades licensing Ordinance . The east African Currency Board system was established in 1919and started its operation in 1920. The Board’s purpose was to supply and control currency in East Africa . It aimed at automatic redemption against the pound system.

Toothless as the board was, it was neither the regulatory nor the supervisory board to other banks. All banks were its agents. The British Colony was not prepared to see Tanzania and other colonies developing with the central bank.

Bankers were restricted to make credits to natives as per section 2 of the ordinance the Land mark Legislation of bank activities was in 1960 named Banking Ordinance However it excluded the licensed banks and all persons already carrying business.

The registrar of companies was given the regulatory authority. He could receive the applications for licenses, carry out inspections on books of the applications before issuing license and he could refuse to issue license.

The banks were to hold a capital not less than 2million shillings or its equivalent in other currency. Banks were to exhibit their license and copies of their audited balance sheets, and publish it in the specified News papers regularly the banker was to furnish the registrar of the companies with the statements of their assets and liabilities, and maintain reserve funds before declaring dividends. The directors, employees, and other related parties were restricted from holding land and engaging in other business rather than banking . The directors were to be fit and proper. The appointment of auditors and powers of the registrar to carry out inspections, up on giving notice, for purposes of protecting the interests of the depositors was another condition .

Therefore the apparent lack of internal demand for funds from the banks and the free convertibility into sterling thus facilitated the flight of capital from the country for the benefit of the economy of the metropolitan state.

[edit] REGULATION OF COMMERCIAL BUSINESS AFTER INDEPENDENCE IN TANZANIA

REGULATION OF COMMERCIAL BUSINESS AFTER INDEPENDENCE

By independence, the new banking system had inherited the 8 expatriate banks namely the bank of Baroda Ltd, The Bank of India Ltd; The Barclays Bank D.C.O, National and Grindlays Bank Ltd; Netherland sche Handel-Maatschappij; N.V(Netherlands Trading Society), Standard Bank of South Africa Ltd, Ottoman Bank and Lombard Banking Tanganyika Ltd.

The above mentioned banks were all foreign owned and controlled, importing decisions from London. All had discriminatory lending policies as cemented by the native Restrictive Ordinance (supra). Most lending was directed to the foreign trade sectors and lacked effective financial support to the government .

Therefore the early period of independence, the new independent states attempted to patronize the economy which for long time was in the hands of the foreigners. To furnish this the first joint struggle was on the establishment of East African central Bank. The intention was to forge the East African federation. Gradually each nation tried to formulate its policies in terms of its particular requirements and perspective .

The Tanzania’s Government initiated the establishment of the Central Bank of Tanzania in 1965. The national Assembly in December in 1965 passed a bank of Tanzania Act of 1965 which established the bank of Tanzania. The Bank was acknowledged by the first President of The united republic of Tanzania, The late Mwalimu Julius K. Nyerere on June, 14th 1966.

The act interalia empowered the bank to regulate the banking credits. The by then regulation meant to deal with currency only and could neither deal with the entry of banking institutions into the market , monitor their prudential performance, enforce their standards of performance nor protect deposits.

State commercial banks were the next step made shortly after the establishment of the BOT. Their establishment was to stimulate extension of banking to African citizens and to previously neglected areas.

The state went further by exerting great control over the direction of commercial banks which proved unsuccessful in contributing to the to the development goals. The state nationalized all the banks as part of the Arusha Declaration Policy of attaining government control commanding heights.

    “For Tanzania, the move to nationalize these enterprises was not the a question of  
     Why and why not, but rather the question of why and how ”

All the above efforts were the disadvantageous to the Bank of Tanzania. The Arusha Declaration turned it the political instrument, just to correspond to the political directions. The establishment of the state commercial banks limited its operations, and the bank remained inactive over the NBC. Following these conditions, together with the low level of development, low domestic credit, and rapid flight of capital, the government excessively borrowed a huge amount of money from the Central Bank and together with the bad credit, on commercial banks, and lack of supervision, multiplicity of policies, the commercial banks were in difficulties.

The first President of Tanzania was once quoted in London quarrelling with the IMF on their conditionality.

   “Tanzania is not prepared to devalue its currency just because this is a traditional free  
     Market solution…to surrender its right to restrict imports…to give up our national 
     Endeavour to provide [free] primary education …basic medicines and water for all 
     Our people …Nor are we prepared to deal with inflation and shortages by relying 
     Only on monetary policy …we will not abandon price control …we shall continue to 
     …to build a socialist society.” 

Due to the overwhelming setbacks, a new President of the Country, Ali Hassan Mwinyi called for Nyirabu Commission, which noted that the existing banks were enjoying monopoly in their areas of specialization, while the others were operating in their impaired insolvency. All banks were self regulating, hence no harmonious system of regulation and supervision to check the really risk, and as a result the remedies could be proper by enacting the new regulations enhancing the regulatory capacity of the central bank, and introducing competition in the sector while diversifying the existing institutions.

The President Mwinyi’s bold speech indicated the direction that he had chosen to take, when he said that the government had prepared to allow the existing banks to operate in commercial bases, without interference, to restructure banks and financial institutions, and provide devices on how to deal with bad debt, restructuring the other public corporations, allowing private banks and financial institutions to operate in the system, and allow competition for more efficiency so to encourage the communities and corporative to operate their own banks and reform the central bank .

The BOT Act of 1995 was enacted, followed by the BOT Act of 2006, as well as the Banking and Financial Institution Act of 1991, 1995 and 2005 were enacted. Both Acts changed the BOT to mono policy objective of price stability from the multiple policy objectives. The Father of the Nation, The Late Mwalimu Nyerere and the Initiator of Socialist state was quoted claiming ;

      The ruling Party has changed the policy of Arusha Declaration …in their manifesto  
     “mwelekeo wa sera za CCM katika miaka ya tisini” they state that, basic and public 
      corporations like the harbour, railways, posts and telecommunications, energy and 
      public banks shall continue to be owned by the state …[so far] this manifesto does 
      not say profit making corporations shall be sold …they are now selling them, and we 
     do not know … if you ask them, they tell you …it is the world bank … The IMF is 
     pressing us …who are they? The IMF is the International Monetary Fund, has it 
     become the international Ministry of Finance. I firs asked them in 1980’s …  —Preceding unsigned comment added by 80.255.50.34 (talk) 11:07, 11 March 2008 (UTC) 

[edit] LAWS AND PRACTICE GOVERNING THE BANK OF TANZANIA IN REGULATING AND SUPERVISING THE COMMERCIAL BANKS

INTRODUCTION

Tanzania originally initiated the banking business reform measures in 1986, as per economic reform program. The implementation of the financial sector reforms started in 1991 with the aim of establishing sustainable and efficient financial system. The reforms included the liberalization of interest rates, elimination of administrative credit allocation and strengthening of the bank of Tanzania in regulation and supervising the banks in the country.

LAWS REGULATING COMMERCIAL BANKS

The laws relating to the supervising and regulating the commercial banks include the Bank of Tanzania Act , the banking and Financial Institution Act , as well as the Foreign Exchange Act . There are also regulatory guidelines issued by the Bank of Tanzania such as Banking and Financial Regulation, (1997) and other guidelines specifying mandatory prudential standards to be compiled with management of risk assets, capital adequacy, and concentration of credit and exposure limits.

PRINCIPLE LEGISLATIONS

Bank of Tanzania Act The Bank of Tanzania Act of 1966 as amended in 1978 was repealed and replaced by the BOT Act of 2006, which expressly specifies the supervisory roles of the BOT to commercial banks and other financial institution.

The Act reflects the monetary policy as the main function of the Bank . It empowers the Bank of Tanzania to exert influence over the money supply process, regulate the quantity of money in circulation and of the credit supply to the economy. By doing so it helps the BOT to regulate the commercial banks and financial institutions .

This is done through a steady and acceptable rate of increase in the money supply; a rate of increase in domestic bank credit expansion that will not place undue demand pressures on the production resources and that must be consistent with money supply objective; the realist interest that should be above the level of inflation rate; a relatively stable exchange rate for the national currency ; the protection and development of sound the well managed banking institutions, efficient paying systems.

Other indirect regulation of BOT on commercial banks is to issue notes and coins to all banks and financial institutions so as to influence the amount of currency on each bank; it acts as a banker’s bank and as a lender of last resort ; conduct examinations to other banks as well as to control the banking activities.

The Bank of Tanzania I empowered to advise the government under which the proper regulations are enacted and any other matters related there to .

Banking and Financial Institution Act The Banking and financial institutions Act was enacted to consolidate the law relating to the business of banking, harmonizing the operations of all banks, foster sound banking activities and regulate credit operations and other matters connected to those purposes. Hence the BOT is the supervisor and regulator of all commercial banks.

All commercial banks are required to be licensed , and it becomes an offence for any instrument to organize any banking business without a license. The Act requires all commercial banks to maintain unpaired levels of the prescribed minimum capital requirements that are a core capital disclosed reserves, off balance sheet exposures, supplementary capital, total assets, total risks and weighted assets.

The BOT may approve for branching, transfer ownership, issue directives, and authorize voluntary reorganization, approval of voluntary liquidation and approval of set up offices of foreign banks.

The BOT is empowered with various enforcement powers, where it is shown that an institution is carrying out its business in unlawful and unsound manner or is in unsound condition .

Foreign Exchange Act, [cap R.E 2002]

The act was passed in 1991 by the Parliament for the purpose of making better provisions and for more efficient administration and management of dealings and other acts in relation to gold, foreign currency, securities, payments, debt, import, transfer or settlement of property and for the purposes incidental to and connected to these.

SUBSIDIARY LEGISLATION

In order to enhance sustainability and best practices, various regulations have been used side by side with the Acts.

REGULATIONS GOVERNING COMMERCIAL BANKS

Banking and Financial Institutions Regulations, 1997: the regulation prescribes conditions of entry or exit into banking industry in Tanzania, in general it deals licensing requirements for new entrants in the banking system and conditions necessary for safe and sound operations.

The Management of Risk Assets Regulations, 2001: the regulation came into effect on the 1st May 2001. And repealed “guidelines on management risk assets” classification of loans and other risk asset, provision for losses and accrual of interest issued on the 18th Oct 1991. The aim is to provide prudential guidelines for losses on loans and other risk assets.

The Capital Adequacy Regulations, 2001: These Regulations came into effect on 1st May 2001 and repealed Guidelines for measuring capital adequacy of 1993 and the addendum to circular 3on capital adequacy of 1996. The aim was to provide guidance for measuring capital and provide the depositing public with reasonable protection by enhancing the capability of banks and financial institutions to absorb unexpected losses and thus minimize the incidence of bank failure.

The Liquid Assets Ratio Regulations, 2000: The primary objective is to provide guidance on measuring and monitoring liquidity of banks and financial institutions and the maximum ratio of loans to deposits.

The Publication of Financial Statements Regulations, 2000:  these regulations came into effect on 1st Sep.2000, and they aimed at keeping the general public informed on the condition and performance of banks and financial institutions. Quarterly publications are

For un-audited balance sheet income statement and cash flow statement while audited firms that meet registration requirements by the Bank of Tanzania may be appointed to audit banks and financial institutions.

The Independent Auditors Regulations, 2000: These Regulations became effective on the 1st Sep 2000 with the aim of guiding banks and financial institutions to appoint independent auditors that are recognized and registered by the National Board of Accountants and Auditors and also by the Bank of Tanzania. Bank auditing requires more than commercial enterprise auditing and as such only audit firms that meet registration requirements by the Bank of Tanzania may be appointed to audit banks and financial institutions.

The Credit Concentration and Other Exposure Limits Regulations, 2001: The objectives of these Regulations are; to encourage risk diversification and curtail excessive concentration of risk; to promote arm’s length relationship in dealing between a bank or financial institution and its directors, officers, staff, shareholders and their related interest; to make credit available to a broader group of borrowers; to regulate equity investments of banks and financial institutions and to avoid undue concentration of economic power; and to regulate the amount of investments in fixed assets and prevent the use of depositors' money in acquiring such assets.

The Internal Control and Internal Audit Regulation, 2005: The regulation came into effect on the 25th March 2005. The aim is to provide for internal control and internal audit functions for banking institutions. It also prescribes roles of different stakeholders’ in as far as internal control and internal audit functions are concerned.

The microfinance companies and micro-credit activities Regulations, 2005: The regulations came into effect on the 25th March 2005. It aimed at providing for microfinance and micro credit activities in Tanzania.

CIRCULARS GOVERNING COMMERCIAL BANKS Circular No.1: Reserves against Deposits and Borrowings, requires banks to maintain statutory minimum reserves on their total deposits, including foreign currency deposits, received and funds borrowed from the general public. Non-bank financial institutions are not required to maintain minimum reserves.

Circular No.5: Foreign Exchange Exposure and Placements, Purchases, Sales and Balances which sets limit on placements with the correspondent banks by the banks and financial institutions, and require the institutions to maintain a net open position not exceeding 20% of the core capital.

Circular No.7: Instructions for Filling Reports under the Banking and Financial Institutions Act, 1991. The Circular provide guidance to banks and financial institutions on how to properly fill returns submitted to the Bank of Tanzania under the Banking and Financial Institutions Act, 1991. The aim is to capture accurately and uniformly compiled information.

Circular No. 8: The Money Laundering Control. This Circular became effective on 1st September, 2000 and aims at guiding banks and financial institutions on uncovering, reporting and controlling money laundering.

MAIN SUPERVISORY PRACTICES MADE BY THE BANK OF TANZANIA ON COMMERCIAL BANKS 

The Bank of Tanzania uses both on-site and off-site inspection in supervising banks and financial institutions. In on-site inspection a full scope examination where the supervisors review the five key components of the institutions, that is Capital adequacy, Asset quality, Management quality, Earnings capability and Liquidity at least once a year for every institution. In addition, supervisors do verify compliance with laws and regulations and assess the effectiveness of the institutions' internal control system.

In the off-site inspection assessment of financial soundness through analysis of the statistical and other returns covering key areas of the institutions is done. From the analysis an Early Warning Report is produced. The statistical returns are submitted periodically (i.e. weekly, monthly, quarterly, semi-annually and annually or on ad hoc basis if the circumstances so demand). Currently, the Bank is in the process of adopting Risk Based Supervision.

EFFORTS MADE TO EFFECT THE REGULATION AND SUPERVISION OF COMMERCIAL BANKS A department of operations and policy review was established with the aim of reviewing the operations of other department of bank and non-banks supervision.

The banking supervision information system was established by the directorate of supervision of banks in Tanzania from micro platform to oracle platform to ensure that the system becomes more robust as away forward to automate all regulatory report submitted to the bank of Tanzania .

The directorate continues to review the regulations, circulars, and guidelines on banking business taking into consideration comments, from members of Tanzania Banker’s Association .

In corporation issues; the Bank continues to be a member and participate in the initiatives of East and South Africa banking Supervisor’s group [ESAF] and the East African community at the regional level. While ESAF consists of Botswana, Angola, Namibia, Zimbabwe, Uganda, Tanzania, Lesotho, Kenya, Seychelles, South Africa and Swaziland; the East African Central Bank Supervisor includes only Tanzania, Uganda and Kenya. The aim of this membership is to harmonize bank superior philosophies and practice in respective regions, and second, to promote overall standard and quality of banking supervision inline with the best international practices.

The Bank of Tanzania has continued to participate in various activities organized by the Basle Committee on banking supervision such as the preparation of implementation of the New Capital Accord, training and meetings. The directorate continues to cooperate with central banks and other supervisory and regulatory agencies areas of banking supervision. The directorate officials also attend various training which are organized by the federal reserve bank of America in 2002 .

The bank of Tanzania goes further on harmonizing and encouraging the information and communication technology, and it has opened up the website to all public to read and contribute their views. It further more encourages e-banking to the commercial banks so as to enhance the service with their customers.

There is still a close relation with the SADC institutions such as the SADC banking supervision for commercial banks and SADC central banks Information technology forum. The directors of Banking supervision Directorate of Tanzania, Uganda, and Kenya continues to meet regularly in order to discuss issues relating to soundness and safety of the commercial banks and other financial institutions in the East African Community...the common issues under discussion and implementation include commercial courts, measures on anti-money laundering, foreign exchange management and regulation supervision of microfinance institutions, promotion of credit information bureau and credit rating agencies, and licensing of banks and financial institutions. Other issues include disclosure requirements and reporting, deposit insurance fund, seizure and management of problem banks and financial institutions, prohibited operations, joint examinations, best practice in recovery of non-performing assets and restructuring of the financial sector.

CONCLUSION REMARKS

[edit] PRESENTATION OF THE FINDINGS EFFECTIVENESS OF BOT IN SUPERVING COMMERCIAL BANKS IN TANZANIA

PRESENTATION OF THE FINDINGS

INTRODUCTION The researcher was able to make findings and analyze the data in respect to the study conducted. The findings are the result of interviews and observations. This reflected to the law and practice related to the regulating and supervising the commercial banks in Tanzania.

RESEARCH FINDINGS RESULTING FROM INTERVIEW AND OBSERVATION

To begin with the interview, the researcher managed to conduct an interview with the Senior Officer, Mr. Felician Rugemalira, the Director in Economics, in the Bank of Tanzania, Mbeya Branch. He tried to explain on the issues related to the weakness and strength of the BOT in regulating and supervising the Commercial banks in Tanzania.

The second interview was made by the researcher to Mr. Mahenge, B. The senior legal Officer of Mbeya District Council and the Learnt advocate of Tanzania, on cases related to commercial banks as a result of poor performance of BOT. The researcher managed to attend some cases with the Mr. Mahenge, B. related to commercial banks as part of observations. These involved problems in enforcing collaterals, prolonged litigations, and poor rules governing the court in regulating proceedings arising from the BOT Act and the BFIA.

The last interview was made with Mr. Bushaija, the CRDB Manager Mbeya Branch on the role of BOT in supervising the commercial banks. The researcher managed to attend the CRDB daily activities as part of the observation.

Form the above interview and observation, the following are the findings

LAWS GOVERNING BANK OF TANZANIA IN THE SUPERVISION AND REGULATION OF COMMERCIAL BANKS IN TANZANIA

Laws governing the entry of commercial banks in Tanzania

The licensing procedures are provided under sections 4-10. The promoter of the new commercial bank is to submit an application for a banking license to the bank of Tanzania. The BOT assesses the application conformity with the policy and procedural guidelines on the licensing of Banks formed under section 52(1) of BFIA. \the BOT communicates its decision to promoters on whether they are allowed to operate as a bank or not.

The law requires a lot of complications for the bank to be accepted. A lot of applications and attachments are needed. The letter of application is to be accompanied with a lot of copies of authenticated instruments and wait the BOT to make investigations on the validity of the documents submitted, financial soundness, the historical background, characters and experience of the applicant’s shareholders, proposed members of the board of directors and management, the soundness of the proposed business plan and strategies, the adequacy of their capital structures, and the contribution of the intended business to the economic development in Tanzania.

Such requirements are also harsh to foreigners interested to establish the commercial banks as the investigation becomes hard to make by the BOT. Therefore the law forces the investors to go to other East African Countries which have less prolonged procedures.

Concerning the rejections of applications for the license as well as expulsion, suspension, and revocation of license, the law has exerted much and unclear power to the BOT. the FBIA states

No proceedings commenced in court seeking a review of any action taken by the Bank   
pursuant to the provisions of this Part shall restrain the doing or nullify any action    

done or taken before an order of the court to the contrary was issued.

The law is controversial on the following aspects. One, the finality and ouster clauses is likely to infringe the commercial banks the right to judicial review from the court, where it deems proper to do so. The shield purported by the provision may be challenged by the judicial decisions once the review of its legality is made. The grounds of illegality, irrationality, and procedural impropriety are likely to challenge this provision. Further more the provision seems to be unconstitutional by virtue of Article 13(6) a, which states that;

    When the right and duties of any person are being determined by the court or any   
    other agency, that the person shall be entitled to a fair hearing and to the right of 
    appeal or other legal remedy against the decision of the…agency concerned.

The provision provided here in above can be used to frustrate the licensed commercial banks if this provision is used. However under the wisdom of the court, the interpretation will be in the favour of commercial banks with the right to review. However since at the court of appeal, various decisions have emerged with different interpretation, commercial banks are not at leisure to expect the same interpretations.

In the case of Phoenix bureau de ChangeV Bank of Tanzania the court said that the revocation was without cause and therefore was unlawful.

Powers of BOT in regulation and supervision of commercial banks The Bank is vested with supervisory powers as per BFIA to carry out inspections and examinations, to access information over the operation of banking institutions. It also contains the enforcement powers in grounds of commercial banks carrying out its business in an unlawful or unsound manner or unsound conditions such as removal of the suspected officers, and initiate, cease or desist orders. The provision is ineffective, uncertain and unclear on the following grounds. The provision does not empower the BOT comprehensive powers to investigate the suspicious violations. A commercial bank may challenge any penalty or suction imposed on it on the grounds that it has not yet violated any regulation. Still the Bank has no power to initiate and carry out investigation per se other than through their normal examinations and audits. The act does not power to the bank to summon a person to appear and answer questions, record cautioned statements from the person in hand, search and seize documentary records for the purpose of enforcement measures. The law is silent on the refusal or failure to cooperate with the investigators. The commercial banks are required to exhibit the at all times the license, the copies of audited balance sheets, such as quarterly statements of accounts published at least once in one news paper of general circulation. Nevertheless such restrictions are still in vain on the following reasons. The majority of Tanzanians who are also the customers are Swahili speakers while the bank balance sheets are made in English. Still the nature of publication is too commercial so that an ordinary person fails to translate it even if one was an English speaker. No clear law that requires the BOT to make investigations on whether the balance sheet provided in the news papers is proper or exaggerated. It should be remembered that a troubled commercial banks are likely to report good news promptly and suppress bad news as long as possible. And they will do it so to attract customers by either providing false information if the BOT does not go side by side with these reports.

The court in regulating proceedings arising under the BOT Act and the BFI Act The sect. 50(1) of the BFIA required the chief justice to make rules of the court for regulating proceedings arising under the banks and financial institutions. The BFIA of 2006 is silent on it, and no any proceedings have been made yet. Hence such lacuna has great impact in regulating and supervising the commercial banks in the country. There is no law which empowers the BOT investigators to prosecute offences. The practical problems arising from this absence is the failure to control the following; The ambivalent attitude of the courts on their paramount and first consideration role to support efforts that leads to economic development. This effects the commercial banks in litigations. Inadequate and inappropriate legal framework need to support speedy conclusions of dispute. This is worse when the non-performing loans contested in court are prolonged in court due to variety of laws. The courts lack the specialized officers with sophiscated business transactions. The prosecutors on the other hands are of the same caliber. This requires the court to take long time in deciding the complicated cases as the court adjourn for seeking the expert opinion. Moreover the inadequate working environment for judicial officers which makes it difficult for the justice to attract and retain the best in terms of skills and integrity, also lack of specialized skills and adequacy of judges at the highest court of appeal. Though there is an establishment of the commercial division of the High court, well known as the Commercial court of Tanzania, still this court deals with civil cases only.

LAWS RELATED TO THE BANK OF TANZANIA IN SUPERVISION AND REGULATION OF COMMERCIAL BANKS IN TANZANIA

   In the event of conflict arising from the provisions of this Act and
   any other Act relating to the exercise of power and performance of
   functions of the Bank, the provisions of this Act shall prevail. 

The multiplicity of laws has remained in practice despite the presence of the above provision. In other words, the provision mentioned above is passive and other legislations have remained powerful in the following circumstances.

  Where… a bank or financial institution is conducting its business in an unlawful, unsound   
  manner or is otherwise…the BOT may initiate a legally binding removal or suspension order  
  requiring any director or officer or other person or persons in the position of management of a 
  bank or financial institution to cease participating in the affairs of the bank or financial 
   institution on either a temporary or permanent basis; 

There are laws related to employment which govern the procedures in the removal of any the directors who are also employees. This in turn makes the provision above in BFIA and BOT Act difficulty to operate.

The Employment and labour relations Act of 2004 is the central source of termination of employment in the united Republic of Tanzania.

The ELRA states that the relationship between the employee and the employer is the contractual, and hence, the director of any bank is an employee who is guided by the contractual obligations. This is likely to challenge any provision which empowers the BOT to terminate any director of the commercial bank.

ELRA  states that employees may not be dismissed unfairly by an employer. Termination of employment is unfair if the employer fails to prove that the reason for the termination is valid, that the reason is fair and that the employment was terminated in accordance with fair procedure. A ‘fair’ reason is one that is related to the employee’s conduct, capacity or compatibility; or is based on the operational requirements of the employer. Hence the dismissal of a director should be accompanied by the notice in a reasonable time, disclosing the reasons why the termination is made as per sec 41 of the ELRA.

If the termination is unfair, the director may refer the dispute to commission for mediation and arbitrator established under sec 12 of the Labour Institutions Act of 2004 No7. The commissions will appoint the mediator and or arbitrator when the mediator has failed. The decision of the arbitrator is binding.

When the arbitrators has failed, then the labour court may be required to set aside the previous decision on the ground that there was misconduct in the arbitration and mediation as per sect 91 of the ELRA, and the court may order the employer to reinstate the director, or pay compensation. Other related laws are the administrative laws which require the adherence of natural justice and equity, bills of Rights which require the right to be heard and right to work

Therefore theoretically, it seems simple but practically, it is time consuming.

E- Banking laws related to the BOT in supervising the commercial banks. The rapid growth of e-banking over the world has put the BOT in the position of facing challenges and affects various laws and other related laws in supervising and regulating banks. Regulatory steps to secure electronic transactions such as digital signatures, reforms to contract law, dispute settlement and others have not yet been promulgated.

Law of Contract states that where an acceptor posts his letter of acceptance so that it is out of his power, then the proposer is bound. That is to say the contract has been concluded in as far as proposer is concerned but the acceptor is not bound until his acceptance comes to the knowledge of proposer. On the other hand revocation of an acceptance is complete as against the person to whom it is made, when it comes to his knowledge. These rules are likely to be affected by e-banking. The law does not involve the case where the contract is made through the internet and revoked, furthermore the laws provide that the contract document must be signed handwritten; therefore there is no room for the supply of digitized products. The effect of this can be observed where the dispute arises between the parties dealing on online contract as to the performance then the court and lawyers might be in a hard position to determine which law should apply. For instance when one decides to open the account online, will this contract be accepted, or when he sends his email of acceptance what is the likelihood of the law. Bills of Exchange Act: The new methods of payments for goods and services under e-banking are through conventional cheques related to Bills of exchange. Definition of Bills of Exchange under Tanzania Bill Of Exchange Act is;

    “An unconditional order in writing, addressed by one person to
      another, signed by the person giving it, requiring the person...
      to pay on demand…..a sum.. in money... or to bearer”34.

In this definition there is no room for the e-banking to make a transaction through the internet where the conventional cheque will bear no handwriting but the use of sophisticated Cryptography and cyberspace allowing the creation of digital signatures to replace handwritings. The enforcement of collateral financial sector with commercial banks in Tanzania

The longer capitalization is delayed the deeper the accumulated losses are apt to become. The commercial banks in Tanzania hold mortgage over a right of occupancy. There are difficulties in enforcing collaterals. The land (Amendment) Act of 2004 requires the banks to seek for the court intervention when it intends to repossess a residential property or land used for agricultural purposes.

The main source is that every instrument has its governing legislation. For example the mortgage contract is governed by the Land act while the debentures are governed by the Tanzania companies Act.

The main impact is on prolonged litigations as a lot of procedures in civil Procedure Code are applied, as well as uncontrolled injunctions.

OTHER PRACTICAL RESTRICTIONS WHICH MAKE THE REGULATION AND SUPERVISION OF COMMERCIAL BANKS INEFFECTIVE Tanzania has inadequate property rights and documentation. More than half of the housing stock in Tanzania is not registered. This is a problem for commercial banks to lend money. Also lack of birth, death and marriage certificates makes it hard to enforce a mortgage over a property. As a result another person may claim that the property is matrimonial. Politically allocated loans are another basis of regulation instability; the temptation for short sighted politicians to use BOT policies to serve redistributive tasks is another catastrophe. Tanzania has experienced the instability in the BOT , its redistributive credit available to politically favoured groups, and making payments to briefcase companies instead of making researches and advancements in the regulatory facilities particularly E-banking measures.

Globalization as an accelerator of crisis; the market discipline in globalization is a principle punishment as a correction or training in hopes of producing improved behaviour. Hence in competitive markets customers and competitors punish the commercial banks. In Tanzania global pressure has grown overtime with advances in information and technology. The pressure has also increased the gap in size between the efficiency and the fairness of Tanzanian regulatory schemes and the schemes under which the foreign bank entrants operate. The globalization does challenge the BOT in two folds; First, using foreign markets to lessen the exposure to financial shocks inherent in the country; the entry of the foreign commercial banks leaves loopholes for outside regulatory arrangements to limit the regulatory strategies of Tanzania. The challenge is to persuade the regulatory bodies to abandon the well set up ways of doing business on the grounds of employment opportunities and domestic markets. Second the developed nations do allow their domestic banks to book in a wider range of risks in Tanzania than they would tolerate in their own country offices. Even so, Tanzania is likely to have been persuaded by technological change as well as side payments to relax longstanding barriers to the entry of commercial banks. This is pictured by the privatization process of commercial banks which left doubt to many Tanzanians regarding their openness and transparency.

The more corruptible a country’s government the easier it is apt to be for foreign banks to negotiate limited entry privileges.

The officials of Tanzania may smooth the internal politics of limited entry by emphasizing the basic fairness of allowing the foreign banks to follow its long standing home country customs on the grounds of helping the host government to expand domestic income and employment. From a small foothold, a clever foreign bank can gradually expand its range of business. From here Tanzanian regulatory bodies will rapidly lose the control over these foreign banks.

CONCLUSIVE REMARKS Inevitably, the supervisory and regulatory standards and incentives are countrywide compromised by the commercial banks and customers. Supervisory empowerments are either inadequate or too wide to protect the safety and soundness of the commercial banks. There are poor information flow, poor conflicting laws and political arena spreading to the regulatory faculties. Also from the short exposure it is obvious that a number of legal related problems affect the performance of commercial banks, as well as the efforts so far made have not reached the stage that will make Tanzania a better place for commercial activities under the auspice of the Bank of Tanzania.

CHAPTER V

CONCUSION AND RECOMMENDATION

INTRODUCTION While some important progress has been and will continue to be made dealing with some problems that has caused poor performance in commercial banks in recent decades some underlying tensions and trade offs need to be reorganized.

From the research conducted, it is obvious that the law and practice governing the bank of Tanzania in regulating and supervising the commercial banks in Tanzania is not self sufficient and totally effective. some provisions empower the BOT with the wide power, while others are inoperative in the statutes. Some provisions should be added so to cover the available lacunae.

RECOMMENDATION A comprehensive review of the legal framework that was required to provide basis for a regulatory framework has not been carried out thoroughly well. It is crucial to for the regulatory and supervisory authority to have sufficient knowledge over possible future trouble so as to formulate an appropriate regulatory framework.

Comprehensive review of the financial laws and other relevant legislation should be part of the development of the regulatory framework. Also involvement of key stakeholders from the initial stages of the process is important for the players to understand their respective roles and those of other parties

Regulatory and supervisory powers of the BOT; there is no provision which allows the BOT to investigate the suspicious violations of regulations made by the commercial bank. Such provision should be enacted to cater such lacuna, the opportunity that can be used by the bank to cheat.

Examination and audits are the only means of regulation the commercial banks. This is to narrow the BOT to initiate investigation over the banks. Since the banks change the techniques with the law available, the law should not limit the BOT investigators with these too means but leave then with wide choice so that they can change the techniques with the change of environment. For example some powers should be left free to BOT to summon persons to appear and answer questions, record cautioned statements from such persons search and seize documentary records for evidential purposes. Also the refusal and failure to cooperate with investigators must be made a big offence.

The Act must involve enforcement mechanism procedures. Also the word ‘default’ and ‘offence’ should be made clear either in the interpretation clause or within the Act itself. This will make the BOT officials and the offender to know whether the default committed should origin from the BOT or the court of law and vice versa.

Expertise specialization of courts; the recommendations in the Nyirabu Commission about the authority of the BOT investigators should be adhered to. The DPP is required to appoint BOT officials with legal backgrounds to prosecute financial crimes. This will avoid time consuming by the court waiting for the expert opinions.

As well the Chief Justice on the other hand is to design a number of magistrates and judges to specialize in commercial cases, both criminal and civil cases. The presence commercial court of Tanzania is not enough for it is centered in Dar es Salaam only to date, and its specialization is in civil cases only.

As regards to intervention of BOT to the other defaulting commercial bank, the provision of removing the Director of that bank seem to be inoperative and inactive in the eye of other laws. The Employment and labour relations Act of 2004 makes it difficulty for the BOT to remove the director who is also the employee as far as contractual rights and obligations is concerned. Hence either any of the laws should be enacted so as to empower the BOT laws to have exclusive operations over the employment laws. Unless this is done, the BOT lawyers will always be losers if the case is taken to the court of law.

Commercial laws with e-banking activities; Tanzania has allowed the commercial banks to operate in Tanzania with e-banking instruments such as ATM’s without the laws governing the e-banking activities. The Act relating to e-banking should be made so as to avoid any challenge that can face the BOT over the commercial banks when the dispute arises in the court of law. There are some laws which do not recognize the e-banking activities.

For example the Law of Contract Act insists on the contract to bear a handwriting signature, while the Bills of exchange Act defines the cheque as a note in handwriting. The two laws ignore the availability of computerized digital signatures. Also the Sales of Goods specifies that the contract of goods should involve the witnesses. It does not recognize the distance trading that can sell of goods in the internet by these banks. Hence these acts should be repealed and replaced.

In licensing procedures; the benefit of strengthening supervision need to be weighed against the costs. For instance the increasing capital requirements and restricting entry is likely to increase the customer’s costs borrowing. Too many procedures are directed to the new entry of commercial banks. Hence some of them can be removed without affecting the regulations and supervisions. The adherence to it will help the flow of commercial banks to other East African countries with less prolonged restrictions.

The independence of BOT is the major requirement for the thoroughly regulation. The Governor is the political figure, still the governor is responsible to him indirectly according to the laws governing the BOT. Historically, and the BOT since independence has been influenced by the political directions of the time. This is likely to proceed as the governor is not only appointed by the president but also responsible to the minister. To cater out the foothold, the governor should be independent from the political hands and be put under the national assembly of the united republic of Tanzania so as to remove any personal or political influence.

The laws related to enforcement of collaterals should be amended, so as to cover the appropriate commercial banking activities. The civil procedure laws are outdates as their procedures are too lengthy. They also do not cover the object of borrowing and lending money between parties. Some use the procedural technicalities to divert the intention of the contract entered in borrowing. Most of the cases the commercial banks have ended up losers. Apart from the civil procedure code, next to difficulty is the law of Mortgage (amendment) Act which requires the Bank to seek for commercial intervention in order to repossess a residential property land used for agricultural purposes when one has failed to pay his due. Therefore the there is a need to review and amend these laws in order to match with the regulating and supervising roles of commercial banks.

CONCLUSION The laws should be enacted so as to control the commercial banks make the business in the proper line of the framework. Likewise there is a need to make the existing provisions active and operative.

The BOT should also work confidently and stay far away from the mismanagement, corruption and irresponsibility so as to fill up the commercial banks and the customers with confidence. The opposite of it is to make the commercial banks lose confidence something dangerous to loyalty to it. Confidence will be lost if there is any favoritism in enforcing the regulatory and supervisory laws among the commercial banks. Through its decisions and ways of enforcing the commercial banks will find that the BOT if biased.

The government on the other hand should let the BOT free from political influence. All decisions should be on the proper technical advice rather than personal or certain group influence for a certain class interest. The lesson from the experience is that BOT should be put under the Tanzania National Assembly.

[edit] HUMAN RIGHTS IN TANZANIA

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Tanzania Human Rights Jurisprudence

TANZANIA

Background Tanzania Legal System

Legal Structure

Constitution

The Tanzania (Tanganyika) Constitution The Zanzibar Constitution The Articles of Union

Tanzanian Constitutional Structure

Tanzanian Constitutional Principles

Sources of Law

Constitution Acts of Parliament Customary laws Received Law

Case laws- Jurisprudence Legislature (The Parliament)

The Judiciary

The Commission for Human Rights and Good Governance

The Executive

    The President

    The Vice President

    The President of Zanzibar

    The Prime Minister

Government Agencies

Human Rights Non Governmental Organisations and Research Centres

National Human Rights Institution

Newspapers, Magazines, and Electronic Journals

International Inter-Governmental Organization Reports

International Non-Governmental Organization Reports

Ratification of International Human Rights Treaties

Background

Location

The United Republic of Tanzania is located in East Africa between longitude 290 which lies at Kigoma East of Greenwich and 410 which also lies at Mtwara 410 East of Greenwich. The Country lies between latitude 10 in Bukoba South of the Equator and 120 at Mtalika 120 South Equator. The Country borders the Indian Ocean in its whole of the eastern part and in the northern part Tanzania borders with the Republic of Kenya and Uganda. In the western part of the continent the country is bordering the Democratic Republic of the Congo, the Republic of Rwanda and the Republic of Burundi. In the southwest Tanzania is bordered with the Republic of Zambia and the Republic of Malawi while in the south the country borders Mozambique.

Size

Tanzania is the biggest country among the East African countries i.e. Kenya, Uganda and Tanzania covering an area of 945,000 km2, whereas the mainland alone has a total of 881,000km2 and a total of 2,000 km2 for the Island i.e. Zanzibar. Within its land surface a total of 62,000 km2 is covered by water and 3.350 km2 is covered by forest and woodland.

Geographical features.

The main geographical features found in Tanzania include the spectacular Great Rift Valley that runs from north east of Africa through central Tanzania covering areas around Lake Nyasa to Mozambique. Another branch lies in the north western part of the country covering areas around Lake Tanganyika, Lakes Rukwa, Nyasa, Kitangiri, Eyasi and Manyara alongside Burundi, Rwanda, Tanzania and western part of Uganda. Likewise, the main part of Lake Victoria (the world second largest fresh water lake) lies in the North Eastern part of Tanzania.

Other important features within Tanzania include the uplands. Most of the famous mountains such as the great mountain Kilimanjaro- snow-capped mountain, and Meru are found in the northern part of the country bordering the Republic of Kenya. Other mountains include the Usambara, Pare, Kipengere, Udzungwa, Matogoro, Livingstone, and the Fipa plateau forming the southern highlands. The most fascinating is the Ngorongoro Crater and the Oldonyo Lengai found in northern highlands.

National Parks and Game Reserves

As anyone can tell Tanzania is a home to the world famous National Parks and Game Reserves which include: the Serengeti, Ngorongoro Crater, Tarangire, Lake Manyara, Mikumi, Arusha, Ruaha, Saadani, and Udzungwa Mountains, National Parks. Others are Selous, Gombe Stream, and Mkomazi Game Reserve. Other Game Reserves include: Amani Nature Reserve, Kigosi, Lukwika-Lumesule, Maswa, Monduli Mountains, Msangesi and Ugala. This account makes a total of 12 National Parks, one Conservation Area, 13 Game reserves, 38 Game Controlled Areas and about 120 National Cultural Heritage Sites. As such, the Non-reserved forest-land covers an area of about 1,903.8 km2 whereas, forest/woodlands with national parks covers an area estimated at 200 km2 and Gazetted forest reserves covers a total of 1,251.7 km2.

Natural Resources: Tanzania is among the endowed countries in terms of natural resources. As such, Tanzania has Minerals such as gold, diamonds, tanzanite and various other gemstones, natural gas, iron ore, coal, spring water, phosphates, soda ash and salt. There are large lakes which boost the fishing industry in the country. These lakes include: Victoria, Tanganyika and Nyasa. Apart from the lakes the whole of Tanzania in the eastern part is covered by the Indian Ocean. There are big fresh water rivers and wetlands such as the Ruvu, Pangani, Kilombero and Ruaha. These rivers have a potential production of fish. Similarly, these rivers produce natural fresh waters where as the total estimate is 730,000 metric tons annually, though the present catch is 350,000 metric tons.

Climate: Tanzania is around the tropical areas a situation which makes it has a tropical type of climate. Thus, temperatures range between 100c and 200c during cold and hot seasons in the highlands respectively. However, the rest of the country has temperatures above 200c. November and February record the warmest and humid season (250c - 310c) while May and August record the coldest season (150c - 200c).

Tanzania agricultural economy depends of rainfall which falls within the October to May next year. These are recorded as two rainfall regimes (unimodal and bimodal) which exist between December – April and the other is the bimodal which exist between October –December. The unimodal is commonly referred to as Vuli while the bimodal is referred to as Masika which do mostly happen in March - May. Masika is common in southern, south-west, central and western parts of the country, while vuli is common in the north and northern coast.

Administration: The capital city of Tanzania is Dodoma located some 306 km from Dar es Salaam. Dar es Salaam is the country’s commercial capital whose port (Other sea ports include Zanzibar, Tanga, and Mtwara) serves neighbouring land-locked countries of Malawi, Zambia, Burundi, Rwanda, and Uganda, as well as Eastern DRC. Other big urban centres next to Dar es Salaam include Mwanza situated in the lake Victoria zone, Arusha and Moshi along the Meru and Kilimanjaro mountain respectively. Others are Tanga in the north, Morogoro in the east; Mbeya and Iringa to the west. Tabora and Shinyanga are also important economic hubs in central Tanzania.

The country has 26 administrative regions which include 21 regions in Tanzania mainland and 5region in Zanzibar. There are a total of 130 administrative districts where as 120 districts are found in Tanzania mainland while 10 of then are found in Zanzibar.

History

Tanganyika, now Tanzania mainland, gained its independence on 9th December 1961 from the British. The British administration administered Tanganyika as a protectorate after the end of the World War II under the United Nations Trusteeship until her independence in 1961. One year later she became a Republic and Mwalimu Julius Kambarage Nyerere became her first President.

Zanzibar gained her independent on 12th December 1963 from the British which administered her under Arab Sultanate as a protectorate. In January 12th, 1964 the Arab Sultanate regime of Zanzibar was overthrown by what is commonly known as a revolution and the Revolution Government of Zanzibar was formed and Sheikh Abeid Aman Karume became the first President of Zanzibar.

The United Republic of Tanzania came into existence on 26th April 1964 the Republic of Tanganyika and the Peoples’ Republic of Zanzibar being independent states formed a union. The two countries entered into a union after the two heads of state i.e. President Julius Kambarage Nyerere-the first President of Tanganyika and Sheikh Abeid Amani Karume signed an agreement (from what is referred today as articles of union) to form the United Republic of Tanganyika and Zanzibar. Combining the first three letters from each country i.e. Tanganyika- Tan and Zanzibar-zan, a word Tanzania was formed and on 29th October 1967 the United Republic of Tanzania became the official name of the two States. Today, Zanzibar is made up of Unguja and Pemba Island. It is an autonomous state of the United Republic and maintains its original name while the name Tanganyika seems to have naturally died and replaced by Tanzania mainland.

Before and during independence time, the two countries were governed by the Tanganyika African National Union (TANU), and the Afro Shiraz Party (ASP) respectively. In 1977 the ruling party in Tanganyika-TANU and that of Zanzibar-ASP merged to form one political party and renamed it as “Chama Cha Mapinduzi-CCM” literally translated as the Revolutionary Party. CCM took political control under the one party regime until 1992 when the United Republic of Tanzania decided to adopt a multi-party democracy via the Eighth Constitutional Amendment. As from 1995 when the first multi party democratic elections took place, the country has continued successfully hold multi-party election for a five years term.

Legal Structure

The Legal System of Tanzania http://www.tanzania.go.tz/administrationf.html Tanzanian’s legal system is governed by the Common Law system since its introduction by the Tanganyika Order in Council of 1920. The system is however customized with some exceptions and modifications to suit the local circumstances. This system traces its historical background mostly from the British rule administration during colonial period. Being a British protectorate Tanzania’s law (by then Tanganyika) was imported into Tanganyika via India by the British administration, where it had been long established. As such, the basic structure of the present legal system is influenced by the English legal system structure and it is much the same from when it was first introduced into the territory in the early 1920’s. To date Tanzanian’s legal system remain fundamental an adversarial legal system.

The Constitution of the United Republic of Tanzania 1977 provides in its preamble that Tanzania aims at ‘building a democratic society founded on the principles of freedom, justice, fraternity and concord’. This preamble requires the Executive to be accountable to the people. In the same way, the legislature is supposed to be accountable to the people since it represents them. To ensure equality before the law the Judiciary is independent to dispense justice without fear or favour to anybody. As such, Article 4 of the Constitution of the United Republic of Tanzania, 1977, provides for three organs of the Government i.e. Parliament, the Executive and the Judiciary.

Sources of Law

Constitution

Acts of Parliament

Customary laws

Case laws

Law Reports (TLR, HCD, EALR, Commonwealth Reports)

     By-Laws/Subsidiary Legislation

     Orders/Circulars

Tanzania’s sources of law are based on three main sources. These are; Constitution, Acts of Parliament/Local Law, Customary law and/or Religious law, Received Law, International Treaties and Conventions, By laws and/or Subsidiary Legislation and Orders/Circulars.

Constitution

http://www.tanzania.go.tz/constitution.html The Swahili and English Version of the Constitution of the United Republic of Tanzania

    1. Constitution

This is the fundamental law of the land. There are basically two Constitutions in the United Republic of Tanzania. There is the Tanzania Mainland Constitution referred to as the Constitution of the United Republic of Tanzania, 1977 as amended severally, which includes issues of the union and the Constitution of Zanzibar which applies only to matters of Zanzibar issues. Before the present Constitution, Tanzania mainland had five constitutions while Zanzibar had three.

The Tanzania (Tanganyika) Constitution The 1st Tanzania Constitution was referred to as Independence Constitution of 1961 through the Tanganyika (Constitution) Order in Council, 1961. This constitution was promulgated in England by the United Kingdom Parliament and directly imposed to Tanzania. It was characterized by a Westminster model with a sovereign parliamentary, multiparty democracy, a prime minister (Mwalimu Julius Kambarage Nyerere being the first Prime Minister) and the Governor General being the head of state representing Her Majesty the Queen of England.

The 2nd Constitution was referred to as the Republican Constitution of 1962. It started as a Government White Paper entitled ‘Proposal of Tanganyika Government for a Republic’. This proposal was discussed by the National Assembly and then a Constitution was made by a National Assembly converting into Constituency Assembly through an Act of Parliament. The Republican Constitution created an Executive President as Head of state, government, commander in chief of the army and a part of the parliament though not a member of the National Assembly.

The 3rd Constitution is the Constitution of the United Republic of Tanganyika and Zanzibar of 1964. Acting under authority conferred to him by the Articles of Union and through Government Notice No. 246 of May 1st 1964 the President of Tanzania modified the Republican Constitution of 1962 by issuing a Decree entitled The Interim Constitution Decree, 1964 to give birth of the Interim Constitution of the United Republic of Tanganyika and Zanzibar. This Constitution produced two governments. i.e. Tanganyika and Zanzibar.

The Articles of Union

The Articles of Union provided the following matters;

There will be two Legislatures and two Executive, one for the Union and one for Zanzibar. There will be two vice-presidents, one of whom shall be the person normally resident in Zanzibar who will be the chief assistant of the President to help him carry out his executive functions in Zanzibar. Zanzibar will be represented in the parliament of the United Republic. There will be the following 11 matters reserved for the parliament and the Executive of the United Republic: The Constitution and Government of the United Republic. External Affairs Defence. Police Emergency Powers Citizenship Immigration External Trade and Borrowing The Public Service of the United Republic Income Tax, Corporation Tax, Custom and Exercise Habours, Civil Aviation, Posts and Telegraph. The parliament and the Executive of the United Republic will have authority over these 11 matters in both parts of the Union and also in all matters in Tanganyika while the Government of Zanzibar will have authority in all non-union matters in Zanzibar The President of the United Republic in agreement with the Vice-President who is the head of executive in Zanzibar will:- Appoint a Commission to make proposals for a Constitution of the United Republic Summon a Constituent Assembly composed of Representatives from Tanganyika and from Zanzibar in such numbers they may determine to meet within one year of the commencement of the union to consider the proposals of the Commission and adopt a Constitution of the United Republic. During the interim period before the appointment of the Commission and Constituent Assembly, the Constitution of the United Republic will be the Constitution of the Republic of Tanganyika modified to accommodate the union. The first President of the United Republic will be Mwalimu Julius Nyerere and the first Vice-President will be Sheikh Abeid Aman Karume.

The 4th Constitution was also an Interim Constitution of 1965 giving party supremacy. Through the report of a commission appointed by President Nyerere, the Union Parliament enacted an Act which declared an Interim Constitution of Tanzania and stipulated for a one political party in Tanzania and Zanzibar. As such, Tanganyika African National Union and Afro-Shirazi Party became the sole parties dominated the supremacy of the Interim Constitution of Tanzania for Tanzania Mainland and Zanzibar respectively.

The 5th Constitution is the Constitution of the United Republic of Tanzania of 1977. This is the Union Constitution following a merger of two political parties ruled Tanzania and Zanzibar to unite and form one political party styled as Chama Cha Mapinduzi on February, 1977. Although the process involved in the formation of this Constitution has been criticized it is regarded as the permanent constitution of Tanzania to date. In short, on the 16th March, 1977 through a Government Notice No. 38 of 25/ 3/ 1977, the president appointed a Constitutional Commission of twenty people; i.e. ten people from Tanzania Mainland and ten from Zanzibar to prepare a Constitution proposal. At the same time, through Government Notice No. 39 of 25/3/1977 the president appointed representatives of the Constituency Assembly to discuss the proposal drafted by the Commission. On 25th April 1977 the Constituency Assembly discussed and passed the proposal to march the Union Constitution of 1977.

Since 1977 the Union Constitution has been amended thirteen times. Some of the Major Amendments include; the Fifth Amendment of 1984 where the Constitution was amended to incorporate the provisions of the Bill of Rights. In 1992 through the Eighth Amendment the Constitution was amended to pave way for Multi-party system in Tanzania, followed by another major Amendment in 1995. This was the Eleventh Amendment to the Constitution where by the election of a Vice-President was declared to be through a running mate and thus the President of Zanzibar be a member of the Union Cabinet. Four essential amendments took place in the thirteenth Amendment. These were, i) procedure on declaration of presidential election’s results to be determined by highest number of votes to replace the previous practice of majority votes. ii) Thirty percent of seats in the National Assembly to reserved for women. iii) Declaration of Independence and exclusive powers of the Judiciary into the Constitution. iv) Inclusion of the provisions establishing the Commission for Human Rights and Good Governance into the Constitution.

Zanzibar Constitution The history of the Constitution of Zanzibar starts from Independence Constitution of 1963. This was the Constitution characterized by monarchy leadership with the Sultan being the head of state and few executive powers exercised on advice of the cabinet. However, this Constitution was overthrown by the Zanzibar Revolutionary of 1964 and replaced by a Constitutional Decree passed by the Revolutionary Council. That is to say, Zanzibar did not have a permanent Constitution from 1964 to 1979 when the Revolutionary Council passed the first democratic Constitution of 1979 under Aboud Jumbe, the then President of Zanzibar. The 1979 Constitution created a legislative body called the House of Representatives followed by first national election after Revolutionary.

In 1984 Zanzibar concluded a constitutional debate which started in 1983 and promulgated of a second/third Constitution of 1984. This democratic Constitution made it mandatory for the House of Representatives to be directly elected from constituencies and included the provisions of the Bill of Rights into it. To date this constitution has undergone major eight Amendments. For example, major features of the Eighth Constitutional Amendment which took place in 2002 included provisions for the separation of powers, human rights formation of NGOs, Independence of the office of the Director of Prosecution and the right of any person to protect the constitution through court process.

Tanzanian Constitutional Structure

Bill of Rights

Provided under Chapter one, part three, Articles 12 to 32 of the Union Constitution

The Executive

Provided under Chapter two, parts one to three, Articles 33 to 61 of the Union Constitution for the Union Government and Chapter 4 part one Article 102 to 105 for the Zanzibar Government.

The Parliament

Provided under Chapter three, part one to three, Articles 62 to 101 of the Union Constitution for the National Assembly-Tanzania and Chapter 4 part one, Articles 106 to107 for the House of Representative in Zanzibar

The Judiciary

Provided under Chapter 5, parts one to three Articles 107A to 113A of the Union Constitution for the Tanzanian Judiciary and part four, Articles 114 and 115 for the Zanzibar Judiciary. Part 5 to 6, Articles 116 to 124 of the same Chapter provides for the Court of Appeal (Supreme Court) of Tanzania. Part 7, Articles 125 to 128 provides for a Special Constitutional Court. This is the special court to adjudicate issues involving any dispute of the constitution within the union of Tanganyika and Zanzibar.

The Commission for Human Rights and Good Governance

This is provided under Chapter 6 part one, Articles 129 to 131 of the Union Constitution. The Commission came into force via the 13th Amendment of the Union Constitution in 2000.

Others

From Chapters 7 to 10 the Union constitution contains provision to regulate revenue issues, powers of the local governments, and the National Army.

Tanzanian Constitutional Principles

Sovereignty of the people

Sovereignty of Tanzania constitution is vested to the people; thus the state and its organs drive their power from the people. This power is provided under Article 8 sub article (1) paragraph (a) of the Union Constitution of 1977 as amended severally and Article 9 sub article (2) paragraph (a) of the Zanzibar Constitution, 1984. The Articles provides;

Union Constitution of 1977 as amended severally; 8 (i) The United Republic of Tanzania is a Country which follows the principle of democracy and social justice, therefore-

    (a) Sovereignty resides in the people and it is from the people that the Government through this Constitution shall derive all its power and authority…

The Zanzibar Constitution of 1984

      9(1) Zanzibar shall be a country of democracy and social justice.

        (2) Now therefore it is hereby solemnly declared:-

(a) The authority of running the affairs of the country belongs to the citizen and the power and authority of the government is derived from the citizen themselves through this constitution. Supremacy of the Constitution

Supremacy of the Constitution

The Union Constitution is the supreme law of the land in all union matters and the Zanzibar constitution is supreme to all Zanzibar affairs; thus all state organs and the laws enacted should be in accordance with the provisions of these constitutions since they are the basis of laws of the land. This power is provided for under Article 64 sub article 5 of the Union Constitution and Article 4 of the Zanzibar Constitution.

Separation of Powers

The doctrine of separation of powers is reflected under Article 4 of the Union Constitution. This article stipulates three organs of the state which are the Legislature, the Executive and the Judiciary. All legislative functions are performed by the Parliament and the adjudicative functions are performed by the judiciary while the Executive is left with the function of enforcement of the laws. As such, the Union government is in charge to enforce laws on the union and the Zanzibar government is responsible of Zanzibar affairs which are non-union matters. The Presidents of Tanzania and of Zanzibar are the heads of the Executive for Union Government and that of Zanzibar respectively.

Representative Parliament

Tanzania follows a multiparty democracy. Therefore those who vie to represent people in the parliament for the law making and unmaking process are elected by the people through their political parties. This is done through regular elections which take place within five years term. Those who come victorious represent the people in the legislature- the National Assembly for Tanzania and the House of Representative for Zanzibar. As such, Tanzania has in place members of parliament elected direct from constituencies, elected through affirmative actions, members elected from special groups, and those appointed by the president through the powers vested to him/her by the Union Constitution. This principle is reflected under Articles 76 through 83 of the Union Constitution and Article……of the Zanzibar Constitution.

Independency of the Judiciary

From Tanzanian constitutional history, the union Constitution provided for independency of the judiciary under preambles. As from the 13th Amendment of the Union Constitution the doctrine of Independency of the judiciary is reflected under Article 107A. The article provides clearly that …” The authority to dispense justice in the United Republic is vested in the judiciary and the Judiciary of Zanzibar, and therefore no other organ of the Government or Parliament or the House of Representatives of Zanzibar shall have the final say in the dispensing of justice”. Article 107B provides further that…”In exercising its authority to dispense justice, all courts shall be independent and shall be bound only by the Constitution and the law of the land”. To ensure independence of the judiciary the judicial personnel are appointed by the Judicial Service Commission while judges and justice of appeal are appointed by the President after consultation from the Chief Justice. Their appointment, both judges and magistrates is protected by their security of tenure. Thus, they cannot be removed or shifted (without their consent) in office for making decision which do not please the appointing body. They-judges receive their remuneration from the Consolidated Fund budget allocation which is not subject to discussion in the Parliament.

Rule of Law

Making a reflection to the Union Constitution it is quite obvious that the doctrine of the Rule of Law is reflected in this document. This is evident from the fact that the laws and rules are made by a representative body duly authorized from the people. These laws authorize the political and public power to exercise any function in the country. At the high level most of the laws and rules are just. The laws which appear to be unjust are identified through various means such as appointment of an ad hoc commission (Nyalali Commission is an example) or through the Law Reform Commission. After scrutiny consultation, the laws which appear to be unjust are repealed and replaced by new laws. As it stands the law treats all Tanzanian as equal before the law and the laws which appear to be violative and contrary to principles of human rights are declared unconstitutional through petition or repealed through a normal process in the parliament.

Respect for Human Rights

This is reflected under part three which appears from article 12 through 32 of the Union Constitution. This part is commonly referred to as the Bill of Rights provisions. It came visible into the constitution through a fifth amendment of the Union Constitution in 1984 and became effective in 1988. These articles provide for duties and right of Tanzanian citizen and thus when these rights are violated by an Act of Parliament any individual, group or organization can challenge the Act or provisions of an Act at the Human Rights Court. He/she can do so by following the procedures raid for under the Duties Enforcement Act, of 1994.

2. Domestic Legislation

Substantive legislation and Subsidiary Legislation

      i) Principle Legislations enacted by Parliament/ Ordinances

       ii) Delegated/Subsidiary Legislation (By law, Rules, Regulations), Orders and        Directives

(a) Acts of Parliament/Local Laws

These are sets of written law or statutory laws passed by the parliament of Tanzania since independence in 1961 and sets of laws passed by the colonial legislative council. All sets laws are subject to the basic law of the land which is the Constitution of the United Republic of Tanzania of 1977 as amended severally. Apart from ‘Acts’ there are other written laws passed through delegated powers and commonly referred to as subsidiary, subordinate or delegated legislation.

(i) Statutory Law

These are laws passed by local legislature and are called “Acts’ to refer to laws passed by the local legislature as from the period of independence in 1961 and those passed by colonial legislative council are called ‘Ordinances’. However, as of 2002, through an Act of Parliament, The Laws Revisions Act of 1994 Chapter Four of the laws of Tanzania [R.E. 2002,] all legislations previously known as Ordinances, (laws enacted before independence i.e. laws enacted by colonial administration-Orders in Council, commonly referred to as Ordinances) are now legally recognized as Acts. Presently, all Tanzanian laws, including Ordinances are referred to as ‘Acts’ and have been codified together in Chapters making it a common reference of ‘Chapters’ or abbreviated as ‘Cap’. The principal legislations and subsidiary legislations thereto, are published in the Government Gazette and printed by the Tanzania Government Printers. Therefore anyone can order for statutes through the Government Publication Agency.

At present, one can secure the Laws of Tanzania- Revised Edition of 2002 including sets of supplementary legislation, and subsidiary legislations from Law Africa Publishers at sales@lawafrica.com.

(ii) Delegated/Subsidiary Legislation (By law, Rules, Regulations), Orders and Directives

(3) Customary and/or Religious Laws

Customary and/or religious law is another of law that makes another authority to Tanzanian sources of law. Customary law and Islamic law is established under section 9 of the Judicature and Application of Laws Act, Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA).These are sets of rules developed through customs, practices and/or usages of Tanzanian ethnic tribes and they are accepted by Tanzanian as binding rules. The customs were accepted by the colonial regime thus accepted to be applicable in ‘native courts’ to native parties. At independence these rules continued to be binding and were made part of the laws of Tanzania in all courts having exclusive application at the primary courts. The application of customary laws is only limited to; i) civil cases particularly on issues of marriage, succession, inheritance, land and family relations. ii) Customary law applies only to members of the community concerned. iii) Customary law applies only when there is no written law, does not conflict with statutory law and as of today’s conception, to circumstances which are not repugnant to principles of human rights. To date customary laws include: codified customary laws, Islamic laws and other religious laws.

(i) Codified customary laws or Statutory Laws

These are sets of rules codified under the procedure set forth in the Judicature and Application of Laws Ordinance. They include a few of rules on the laws of person, rules of inheritance in some tribes, and rules on wills. They are commonly found in the Local Customary Law (Declaration) Order (Numbers one to eight), 1963.

(ii) Islamic Laws

These are few sets of law which apply to Moslems inhabiting in Tanzania but they are not applied in its whole fashion as it is in Islamic legal system countries.

It is application falls under the Judicature and Applications of Laws Act, Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA). As such, it empowers courts to apply Islamic law to matters of succession in communities and parties that generally follow Islamic law in matters of personal status and inheritance.

Driving their sources from the Qua’ran, the Sunna of the Prophet, Ijma (the consensus of the orthodox community) and the qiyas (the method of analogy), the decisions of courts impose lenience application as compared to strict Islamic rules. The local legislature and a mixture of customs have contributed to its modification and application. However, before independence a double tier system of courts allowed its application in Tanganyika where by the liwali courts applied Islamic law and secular courts applied other civil and customary laws. By 1963 one system was adopted to merge the two. In Zanzibar however, a double tier system still exists where by Islamic courts known as Kadhi co-exists with secular courts. In Mainland Tanzania, the common issues decided under these laws are those under the Law of Marriage Act, Chapter 29 R.E. 2002; THE Administration (Small Estate) Ordinance, Chapter 30 R.L; the Restatement of Islamic Laws Acts, Act No. 57 of 1964; the Magistrates Courts’ Act, Chapter 11 R.E. 2002 and the Waqf Commission Ordinance, Chapter 326 R.L

(iii) Personal and Other Religious Laws

Much as the application of Islamic law is in place and enjoy application in Tanzania courts through Section 9(1) of the Judicature and Application of Law Ordinance of 1961. The courts, particularly the Primary courts and High Court of Tanzania have been liberal to apply other rules from personal and other religion in dispensing justice where written laws do not provide for solution.

(4) Received Law

Received law is applicable in Tanzania only when there is no local written law to address the matter at issue and when local circumstances permits. Received Law is established under Section 2.3 of The Judicature and Application Laws Act, Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA). Judges may make reference to received law with such necessary modifications to suit local circumstances. The sets of received law are common law, doctrine of equity and statutes of general application in force in England on 22nd July, 1920.

Common Law These are the body of law developed through judgments of the English courts which made reference to the customs and usage of the English people and then interpreted in courts. By preservation of courts, they remain applicable (when there is no local law or rule) and persuasive laws in Tanzania through the doctrine of precedents.

Doctrine of Equity These are the body of law developed in England through decision of King’s Courts, common referred to as the Lord Chancellor Courts, which were developed by judges appointed by the King to sit in King’s court to make decisions on appeals by people aggrieved by decisions of England courts. Since the King was referred to as ‘the fountain of justice’ he was not bound by common law rules or decision. Thus, he dispensed justice according to conscience and fairness. Later, the King appointed judges who were referred to as Lord Chancellor to adjudicate on his behalf and hence developed what is called today, as ‘the doctrine of equity’. Just as the principle of common law, the doctrine of equity remain persuasive and precedents when local circumstances do not provide for an answer.

Statutes of General Application These are sets of legislation passed by the parliament of England to apply in England but were of general nature that they would apply in other territories. However, only part of the legislations which were in force in England on the 22nd July 1920 (commonly referred to as the reception date) was received to apply in Tanzania.

(5) Case Law/Court Decisions

This is yet another important source of law in Tanzania. These are cases arising from the decision of the High Court and Court of Appeal. They are either reported cases or unreported. Therefore they form the basic precedents of Tanzanian laws and bind lower courts thereto. Reported cases in Tanzania can be found in a number of Law Reports. Between 1957and 1977 cases reported from the High Court of Tanzania and the East African Court of Appeal appeared in East Africa Law Reports.

Law Africa, a law report private publishing company has updated the reports for cases from the three East African jurisdictions, of Kenya, Uganda and Tanzania up to 2007. Current editions of the law reports can be bought from Law Africa Publishers, email sales@lawafrica.com.

Their corporate headquarters address is:

Law Africa Publishing (K) Ltd,

Coop Trust Plaza, 1st Floor, Lower Hill Road,

P.O. Box 4260-00100, GPO, Nairobi, Kenya

The Tanzania Law Reports between 1983 and 1997 can be bought online from saletz@lawafrica.com.

The main sources of Tanzanian court decisions are found in the following documents.

The High Court Digest (HCD)-

                 The digests are the collection of cases decision before…..; 

The Tanganyika Law Reports (TLR) This is the collection of cases decided by the High Courts and Court of Appeal (Supreme Court) of Tanzania from ……..; Unreported Cases of the High Court and Court of Appeal The East African Court of Appeal (EACA)

This is a collection of cases decided by the then East Africa Court    Appeal which was dissolved by the disintegration of the then East Africa Community. Since the East African Community has been revived, we expect to get other reports from this court. 

      iv)       Others

The All England Reports, King Bench, Queens Bench,

(6) International Law (Treaties and Conventions) 

International Law is another source of law in Tanzania. This comprises of the Treaties and Conventions signed and then ratified by the Parliament. However, International Treaties and Convention are not self-executing. Once signed, they are subjected to ratification process which involves the National Assembly and the President. Once ratified, they become enforceable in the courts of laws. Thus, when ratified, they become part and parcel of the Act of Parliament and can apply the conventions and treaties to which Tanzania is a party in the Courts in Tanzania.

Legislature (The Parliament) http://www.parliament.go.tz/bunge/bunge.asp

http://www.tanzania.go.tz/administrationf.html

Parliament of Tanzania (Bunge) http://www.parliament.go.tz/bunge/bunge.asp

http://www.parliament.go.tz/gallery/

Composition

According to the Requirement of the Union Constitution, the Legislature or the Parliament of the United Republic of Tanzania consists two parts, i.e. the President who is also the head of the Executive and the National Assembly which consist members of parliament elected from constituencies, special seats under the affirmative action approach, members appointed by the President and the Attorney General.

The President does not sit in the National Assembly in the law making process but he/she exercises authority vested in him by the constitution to assent the law to complete the enactment process.

Members of Parliament

The National Assembly consists of four categories of Members of Parliament, namely:

members elected directly to represent constituencies; Five members elected by the House of Representatives from among its members; the Attorney General; members (up to ten members) nominated by the President; and women members whose number may increase from 20 per cent (the 2005 General Election recorded a 30 per cent of women members elected from this category) of members being not less than fifteen percent of the members of all other categories on the basis of proportional representation among those parties in the Parliament. Women’s representation is provided as a special category under the Constitution to increase women participation in national politics. With the approval of the President, the actual percentage of women members is declared by the National Electoral Commission which also supervises the National Election.

Administration

The National Assembly is administered under two types of leadership:- These are the Leaders from the Parliamentary Sessions and from 2 Camps of Members of Parliament. The Parliamentary Sessions are under the leadership of the Speaker of the National Assembly who is also the head of the Parliament. The Speaker is assisted by the Deputy Speaker, 2 Chairpersons and the Clerk to the National Assembly who is the head of the Secretariat of the National Assembly. To ensure better discharge of the legislative functions, the National Assembly has various Standing Committees which are classified according to priority and needy of the country.

The second Leadership is from the Camps of the Members of Parliament. These are:- The Leader of Government Business in the National Assembly who is normally the Prime Minister. The Prime Minister is assisted by the Chief Government Whip; and the second is Leader of Opposition in the National Assembly elected from an opposition party with majority representation in the National Assembly. He/she is assisted by the Chief Opposition Whip.

Function and Legislative Powers

The main function of the National Assembly is to make and unmake laws. The National Assembly makes laws through a law proposal called a bill. A bill will become a law when it is assented by the president. Bill proposals can be proposed by either Member of Parliament (private bill) or by the Government (official bill). However, in Tanzania practice bills have been commonly prepared by Government. Once a bill is passed by the National Assembly it is sent to the Union President for his assent. When the president gives his assent to the bill it becomes a law and once it is published in the official Government Gazette it has a force of law.

When the President declines to give his assent to the bill he/she will give his/her reasons for refusal and the bill will be returned to the National Assembly. The National Assembly will re-discuss the bill and resent it to the President. However, the same bill cannot be resent to the President within six months of his refusal. If the same is resent to the President within six months it must be supported by two-thirds of the Member of Parliament. The President will either assent to the bill resent to him or dissolve the parliament and call for new general elections.

The National Assembly also discusses and ratifies International Conventions signed by the President before they become full and binding legislation because under the constitutional structure, international instruments are not self executing.

Accordingly, the National Assembly remains the principal organ of the United Republic of Tanzania in the law making process. As such, the organ exercises its authority for the people of Tanzania under the principle of representation. The Organ has all powers to oversee and advise the Government of the United Republic and all its organs in the discharge of their functions.

Limitations of Legislative Powers

According to the Union Constitutional of 1977 the Parliament must follow the procedures stipulated by the Constitution and cannot make laws and apply it to Zanzibar if the law addresses issues which are not union matters. Likewise, when the Parliament enacts a law which is contrary to certain or whole provisions of the Constitution, that law will be subject to nullification by the courts when petitioned against. Lastly, the Parliament can amend provisions of the Union Constitution but it cannot go to the extent of changing essential features and basic structure of the Constitution.

Life Span of Parliament

The Union Constitution provides for a five years life span of the Parliament and then calls for another General Elections. Immediately, within seven days after official declaration of the results of the General Election the President is supposed to call the first meeting of the National Assembly. This time will run for five years up to the period when the President will dissolve it and call for another General Elections.

Dissolution of Parliament

The Union President may dissolve the Parliament when;

the live span of the Parliament has expired or within its twelve months for the purpose of calling new elections. the National Assembly has refused to pass the government’s budget. the two third majority of its members of the National Assembly resends the bill to the President and the President uses a dissolution alternative instead of assenting to the bill. the President finds that appointment of the new Prime Minister will serve nothing upon refusal of the National Assembly to endorse and important policy of the Government. the President finds that the existing Government has lost legitimacy in the National Assembly and due to the balance of seats in the National Assembly it will not be easy for the President to form a new government.

Human Rights Legislations and Other Legal Sources http://www.parliament.go.tz/bunge/PAMS_LS.asp

The Constitution of the United Republic of Tanzania, 1977 as Amended Severally

The Commission for Human Rights and Good Governance Act, 2001

Basic Rights and Duties Enforcement Act, 1994 (Act No. 33 of 1994

Legal Aid (Criminal Proceeding) Act, 1969 (Act No. 21 of 1969)

Constitutional Legislation http://www.parliament.go.tz/bunge/PAMS_LS.asp

Constitution of Tanganyika, 1961 (Chapter 8 of the Revised Laws of Tanzania Mainland)

Constitution of Tanganyika, 1962 (Act No. 1 of 1962; Chapter 499 of the Revised Laws of Tanzania Mainland)

Union of Tanganyika and Zanzibar Act, 1964 (Act No.22 of 1964-Chapter 557 of the Revised Laws of Tanzania Mainland)

United Republic (Declaration of Name) Act, 1964 (Act no. 61 of 1964- Chapter 573 of the Revised Laws of Tanzania Mainland)

Constituent Assembly Act, 1965 (Act No. 49 of 1965

Interim Constitution of Tanzania, 1965 (Act No. 43 of 1965- Chapter 596 of the Revised laws of Tanzania Mainland)

Interim Constitution of Tanzania (Amendment) Act, 1975, Act No. 15 of 1975

Constitution of the United Republic of Tanzania, 1977 as amended severally

Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984 (Act No. 16 of 1984)

Constitution (Fifth Amendment) Act, 1984 (Act No.15 of 1984)

Constitution (Eighth Amendment) Act, 1992 (Act No. 4 of 1992)

Constitution (Ninth Amendment) Act, 1992 (Act No. 20 of 1992)

Constitution (Tenth Amendment) Act, 1993 (Act No. 7 of 1993)

Constitution (Eleventh Amendment) Act, 1994 (Act No. 34 of 1994)

Constitution (Twelfth Amendment) Act

Constitution (Thirteenth Amendment) Act, 2000 (Act No. 3 of 2000

           Constitutional Basic Rights Enforcement Law http://www.parliament.go.tz/bunge/PAMS_LS.asp 

Basic Rights and Duties Enforcement Act, 1994 (Act No. 33 of 1994)

The Civil Procedure Code, 1966 (Act No. 16 of 1989, Chapter….of the Revised Laws of Tanzania)

Civil Practice Law http://www.parliament.go.tz/bunge/PAMS_LS.asp

The Civil Procedure Code, 1966 (Act No. 16 of 1989, Chapter….of the Revised Laws of Tanzania)

The Appellate Jurisdiction Act, 1979 (Act No. 15 of 1979)

The Magistrates’ Courts Act, 1984, (Act No 2 of 1984)

Government Proceedings Act, 1967 (Act No. 16 of 1967)

Government Proceedings (Amendment) Act, 1974 (Act No. 40 of 1974)

Government Proceedings (Amendment) Act, 1994 (Act No. 30 of 1994

Industrial Court Act, 1990 (Act No. 3 of 1990)

Industrial Court (Amendment) Act, 1992 (Act No. 2 of 1992)

Interpretation of General Clauses Act, 1972, (Act No. 30 of 1972)

Judicature and Application of Laws Ordinance, 1961 (Act No. 57 of 1961- Chapter 453 of the Revised Laws of Tanzania Mainland)

The Law of Limitation Act, 1971 (Act No. 10 of 1971)

The Court of Appeal Rules, 1979 (Government Notice No. 74 of 1979)

Criminal Practice Law http://www.parliament.go.tz/bunge/PAMS_LS.asp

The Criminal Procedure Act, 1985 (Act No. 9 of 1985)

Evidence Act, 1967 (Act No. 1 of 1986)

Evidence (Amendment) Act, 1980 (Act No. 19 of 1980)

Extradition Act, 1965 (Act No. 6 of 1967)

The Magistrates Courts Act, 1984, (Act No 2 of 1984)

The Penal Code, 1945 (Chapter 16 of the Revised Laws of Tanzania Mainland)

The Law of Limitation Act, 1971 (Act No. 10 of 1971)

The Minimum Sentences Act, 1972 (Act No. 1 of 1972)

Resettlement of Offenders Act, 1969 (Act no. 8 of 1969)

Judicial Review Practice http://www.parliament.go.tz/bunge/PAMS_LS.asp

The Civil Procedure Code, 1966 (Act No. 16 of 1989, Chapter….of the Revised Laws of Tanzania)

The Criminal Procedure Act, 1985 (Act No. 9 of 1985)

Law Reform (Fatal Accidents and Miscellaneous Provision) Ordinance, 1955 (Chapter 360 of the Revised Laws of Tanzania mainland)

Law Reform (Fatal Accidents and Miscellaneous Provision) Ordinance (Amendment) Act, 1968 (Act No. 55 of 1968)

Law Reform (Fatal Accidents and Miscellaneous Provision) Ordinance (Amendment) Act, 1991 (Act No. 27 of 1991)

The Law of Limitation Act, 1971 (Act No. 10 of 1971)

           Penal Law http://www.parliament.go.tz/bunge/PAMS_LS.asp 

Corporal Punishment Ordinance, 1930 (Chapter 17 of the Revised Laws of Tanzania Mainland)

Dangerous Drugs Ordinance, (Chapter 95 of the Revised Laws of Tanzania Mainland)

Economic and Organised Crime Control Act, 1984 (Act No. 13 of 1984)

Economic and Organised Crime Control (Amendment) Act, 1984 (Act No. 12 of 1987)

Economic Sabotage (Special Provision) Act, 1983 (Act No. 9 of 1983)

Emergency Powers Act, 1986 (Act No. 1 of 1986)

The Penal Code, 1945 (Chapter 16 of the Revised Laws of Tanzania Mainland)

The Parole Board Act, 1994 (Act No. 25 of 1994)

The Prevention of Corruption Act, 1971 (Act No. 16 of 1971)

Preventive Detention Act, 1962 (Chapter 490 of the Revised Laws of Tanzania Mainland)

Preventive Detention (Amendment) Act, 1985 (Act No. 2 of 1985)

The Prisons Act, 1967 (Act No. 34 of 1967)

The Proceeds of Crime Act, 1991 (Act No. 25 of 1991)

Stock Theft ordinance, 1960 (Chapter 344 of the Revised Laws of Tanzania Mainland)

Witchcraft Ordinance, 1928 (Chapter 18 of the Revised Laws of Tanzania Mainland)

           Private Practice Law http://www.parliament.go.tz/bunge/PAMS_LS.asp 

Advocates Ordinance, 1954 Chapter 341 of the Revised Laws of Tanzania Mainland)

Notaries Public and commissioners for Oath Act, 1964 (Chapter 12 of the Revised Laws Tanzania Mainland)

Tanganyika Law Society Ordinance, 19….

The Judiciary

The Judiciary of Tanzania is another arm of the state. It consist three major organs which are: the Court of Appeal of the United Republic of Tanzania. This is the supreme court of the land over the whole of the United Republic of Tanzania. The second is the High Courts for Mainland Tanzania with jurisdiction for the Tanzania mainland and The High Court for Tanzania Island with jurisdiction over Zanzibar. The third organ is the Judicial Service Commission for Tanzania Mainland.

The Judicial Service Commission for Tanzania Mainland consists of: the Chief Justice of the Court of Appeal of Tanzania (Chairman); the Justice of the Court of Appeal of Tanzania; the Principal Judge of the High Court; and two members appointed by the President.

Judicial Administration and Court System of Tanzania

i) Judicial Administration Structure

The Judiciary in Tanzania is headed by the Chief Justice, with the Registrar of the Court of Appeal as the Chief Executive Officer. The Principal Judge (JK) assisted by the Registrar of the High Court, is in charge of the Administration of the High court and the Courts subordinate thereto.

The High Court has exclusive original jurisdiction for all matters in Tanzania Mainland and is divided into Zones, which are administered by Judges in Charge with the assistance of District Registrars. At Regional and District levels, the administration is under Resident and District Magistrate in Charge. District Magistrates in Charge also do supervise Primary Courts in their respective districts.

The High Court of Zanzibar has exclusive original jurisdiction for all matters in Zanzibar. The Zanzibar court system is similar to the Tanzania mainland system, except that Zanzibar retains Islamic courts. Islamic courts in Zanzibar adjudicate Muslim family cases such as divorces, child custody and inheritance. All other appeals from the High Court of Zanzibar go to the Court of Appeal of Tanzania

Therefore, the Judiciary in Tanzania has four tiers which are; The Court of Appeal of the United Republic of Tanzania, the High Courts for Mainland Tanzania with its divisions and High Court in Tanzania Zanzibar, Magistrates Courts, which are divided into two levels according to the Magistrates Courts’ Act, 1984, i.e. the Resident Magistrate Courts and the District Court, both of which have concurrent jurisdiction. Primary Courts are the lowest in the Tanzania judicial hierarchy.

ii) The Legal System

a) The Legal System of Zanzibar

The Constitution of the United Republic of Tanzania makes clear that the High Court and the Attorney General’s Chamber of Zanzibar are not the Union matter. The High Court of Zanzibar is established by Article 114 of the Constitution of Tanzania. Thus, the High Court of Zanzibar and the office of the Attorney General’s Chambers are the organs of the Revolutionary Government of Zanzibar. The Attorney General’s Chambers are part of the portfolio of the Minister of State in the Chief Minister’s Office.

The structure of the Zanzibar legal system is as follows;

Court of Appeal

↑

High Court

↑

Magistrate Court ↔ Kadhi’s Appeal Courts

↑ ↑

Primary Courts Kadhi’s Court

The High Court of Zanzibar This is the highest court as far as Zanzibar laws are concerned. The Court is established by Article 114 of Chapter 5, Part III of the Constitution of the United Republic of Tanzania. It enjoys its powers concurrently with the High Court of Tanzania Mainland provided the law enacted by the parliament is applicable to both Tanzania Mainland and Zanzibar.

Magistrate’s Court

These Courts have jurisdiction to entertain cases of different nature i.e. civil and criminal cases except that, they have no jurisdiction over cases of Islamic law.

Kadhi’s Appeal Court

These are the appellate courts of Kadhi’s Courts. They hear and determine appeals, review or revision from Kadhi’s courts on Islamic law.

Kadhi’s Courts

These are the lowest courts in Zanzibar which adjudicates all Islamic family matters to Muslim families such as divorce, distribution of matrimonial assets, custody of children and inheritance.

Primary Courts

These are the lowest courts in Zanzibar judicial hierarchical and stand at the same rank with the Kadhi’s Courts and they have jurisdiction over criminal and civil cases of customary nature.

b) The Court System of Tanzania Mainland

Court of Appeal

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The Specialized Divisions - High Court of Tanzania -- The High Court of Zanzibar

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Resident Magistrates Courts

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District Courts

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Primary Courts

Court of Appeal of Tanzania

The Court of Appeal Tanzania is the Supreme Court of the land and handles all matters from the High Court of Tanzania Mainland and Tanzania Zanzibar. It is a creature of the Constitution of the United Republic of Tanzania established under Article 117 of Chapter 5, Part IV of the Constitution. Therefore it is an Appellate, Review and Reversionary Court empowered to hear and determine every matter brought before it in either of the above ways arising from judgments or other decisions of the High Court or of Resident Magistrates with extended jurisdiction. In its power to review and revise the court can upheld decisions, dismiss, direct or order for a retrial. In doing, so the court can make reference to its earlier decisions as precedents. As such the Court can follow, distinguish, quash or amend some earlier decisions. It consists of the Chief Justice and other Justices of Appeal. It is not a court of first instance.

The High Courts of Tanzania Mainland

The High Court of Tanzania Mainland was established by the Judicature and Application of the Law Ordinance, No. 7 of 1920. It was then adopted by the Constitution of the United Republic of Tanzania, 1977 under Article 107 of Chapter 5, Part I of the Constitution and it has unlimited original jurisdiction to entertain all types of cases. It is the court of first instance in cases of murder, treason and armed robbery and an appellate court in all cases from Districts and Magistrates’ courts. The High Courts exercise original jurisdiction on matters of a constitutional nature and have powers to entertain election petitions. The High Court also has Admiralty jurisdiction, to make orders and to hear and determine claims, proceedings and other matters as conferred by the Merchant Shipping Act, No.43 of 1967. The High Court’s Main Registry, (which includes the sub-Registries) caters for all civil and criminal matters. The High Court (mainland Tanzania) has established 10 sub Registries in different zone of the country. It also has two specialized divisions, the Commercial Division and the Land Division. All appeals from subordinate courts go to the High Court of Tanzania.

High Court Divisions a) Special Constitutional Court This is a Special Constitutional Court dedicated for matters concerning the United Republic of Tanzania. It is established by Article 125 of Chapter 5 Part VI of the Constitution of the United Republic of Tanzania. As it stands, it is an ad hoc division of the High Court. Through its inception, this court has not convened to hear or determine in any capacity any constitutional matter concerning the union. The sole function of the Special Constitutional Court is to hear and provide conciliatory decision over a matter referred to it on the interpretation of the Constitution of the United Republic of Tanzania when such interpretation or its application is in dispute between the two Governments forming the United Republic of Tanzania. These are; the government of Tanzania mainland and the Revolutionary Government of Zanzibar. These Court provides no right to appeal in case of dissatisfaction of ether party. Therefore, conciliatory decision(s) given by this court constitutes a final and conclusive decision. No right of appeal to any forum.

b) Constitutional Court The Constitutional Court came via a fifth constitutional amendment in 1984 which incorporated the provisions of the Bill of Rights. The Bill of Rights came into force in 1988 and in implementation of the Bill of Rights provisions, the Constitutional Court came into force in 1994 through an enactment of the Basic Rights and Duties Enforcement Act, No.7 of 1994. This avenue allows any person who alleges contravention, of the basic rights provided under Article 12 through 29 of the Constitution of the United Republic of Tanzania to bring his or her complaint to apply to the Constitutional Court for redress. The Court is properly composed when it has a quorum of 3 Judges of the High Court. However, in applications to determine the merits of the case or applications for leave to file a complaint, this court is presided by a single Judge of the High Court.

c) High Court Land Division Due to economic value of land to the citizen and other land users, the High Court of Tanzania, Land Division was proclaimed by the Land Act, No.4 of 1999 to give fast and effective adjudication of land cases. The High Court Land Division was established by The High Court Registries (Amendment) Rules under Government Notice Number 131 of 2002. The court has jurisdiction in all land matters for immovable properties whose value exceeds fifty million Tanzanian Shillings or where the subject matter is capable of being estimated at a money value exceeding forty million Tanzanian Shillings.

This is the court of first instance in land matters of the value above fifty million Tanzanian Shillings and it is an appellate court for matters originating from the District Land and Housing Tribunals. The court has power to conform, reverse, amend or vary in any manner, the decision or order appealed against. It is a court of records in land matters.

d) High Court Commercial Division

This court the court established to deal with all matters of commercial nature to expedite commercial transactions. It is established by Section 5A of the High Court Registries Rules, Government Notice. No 141 of 1999. It is an optional court for cases of commercial nature because the litigant is not bound to file the case under the ordinary High Court. As such, a litigant filing his/her commercial disputes expects to receive special and fast hearing process. The Commercial Court of the High Court can review or revise the decisions of other subordinate courts and may also review its own decisions.

Tribunals with the Status of the High Court

a) Industrial Court of Tanzania This Court is established by Section 16 of the Industrial Court of Tanzania Act No. 41 of 1967 as amended severally. The court is empowered to hear and determine any trade disputes referred to it under the provisions of this Act and to report the same to the Minister. The court also adjudicates all disputes referred to it by the Labour Commissioner. The court specifically adjudicates labour disputes involving employees of the managerial level. The court also has jurisdiction to industrial trade disputes involving a large number of employees challenging their employers move to either summarily dismissal orders or termination of their employment through retrenchment or redundancy orders.

b) Tax Revenue Appeals Tribunal The Tax Revenue Appeals Tribunal is established by Section 8 of The Tax Revenue Appeals, Act No. 15 of 2000. The Tribunal has an exclusive jurisdiction in all appeals arising from the decision of the Tax Revenue Appeal Board on disputes on which original jurisdiction is conferred on the Board, and may also revise any decision thereof.

c) Loan and Advances Realization Trust Tribunal - LART This is a Tribunal which is established by section 4 of the Loans and Advances Realization Trust Act, No. 6 of 1991. The Tribunal has exclusive jurisdiction to hear and determine all matters arising relating to any public non-performing asset transferred to the Trust under this Act. The rules of procedure applicable to the High Court of Tanzania in relation to civil proceedings, apply with slight modifications to the Tribunal.

3. The Resident Magistrates’ Courts / Districts’ Courts The Resident Magistrates’ Courts and the District Courts are established under Section 4 and 5 of the Magistrates’ Courts Act, No. 2 of 1984. They enjoy concurrent jurisdiction where as the Magistrate Courts are found at the Regional (province) level while the District Courts are found throughout the district of Tanzania. These Courts have original jurisdiction in matters which the Primary courts lack jurisdiction. They also have appellate, supervisory and revisional powers over decisions or proceedings of the Primary Courts.

Tribunals of District Court Status

a) Tax Revenue Appeal Board

The Tax Revenue Appeal Boards are established by Section 4 of the Tax Revenue Appeals Act, No 15 of 2000. The boards were established to expedite tax claims administered by the Tax Revenue Authority. Individual dissatisfied with the decision of tax administration officers may lodge their appeal to this board. They have an exclusive original jurisdiction in all proceedings of a civil nature in respect of disputes from revenue laws administered by the Tanzania Revenue Authority.

b) The District Land and Housing Tribunal

The District Land and Housing Tribunal is established under Section 22 of the Land Disputes Courts Act, No. 2 of 2002 in respect of section 167 of the Land Act, No.4 of 1999 which provides for the establishment of the tribunal. The Tribunal exercises original jurisdiction in all proceedings relating to land as conferred to it by the written laws provided the value of the property does not exceed 50 million Tanzanian Shillings or where the subject matter is capable of being estimated at a money value not to exceed 40 million Tanzanian Shillings. The Tribunal is empowered to execute its own orders and decrees. Structurally, the District Land and Housing Tribunals are supposed to be available throughout the Districts of Tanzania.

c) The Labour Conciliation Board

This is the board established under Section 11 of the Security of Employment Act, No.62 of 1964. The Minister of Labour is empowered by this Act to establish the board through an order published in the gazette. As such, the Minister may establish through out Tanzania such number of Conciliation Boards as he may consider necessary. Where a reference is made to this Board, the Board may decide whether the summary dismissal, proposed summary dismissal or deductions from wages having regard to the circumstances of the breach of the disciplinary code is justified, the Board is empowered to confirm or reverse the imposition of disciplinary penalties and may order the refund to the employee of any deduction or may authorize the imposition of lesser disciplinary penalty.

d) Primary Courts The Primary Courts are established by Section 3 of the Magistrates’ Courts Act, No. 2 of 1984. They are the lowest courts in the hierarchy of the Tanzania court system and do exercise jurisdiction within their respective Districts where are established. The Primary Courts have original jurisdiction in all proceedings of a civil nature where the law applicable is customary law and Islamic law. They also have jurisdiction in matrimonial proceedings relating to civil and Christian marriages or any other proceedings in respect of which jurisdiction is conferred on a primary court by the Magistrates’ Court Act No.2 of 1984 or any other law. The Primary Court Magistrate sits with lay assessors (normally lay persons) to hear cases in minor civil and criminal offences.

Other Tribunals

a) Military Tribunals for the Armed forces

These are tribunals established under the Defence Forces Act. The Military Courts try cases to the member of the military forces only. A party to the military tribunal who feels dissatisfied with any decision of the Tribunals may refer the same to the High Court for judicial review

b) Ward Tribunal The Ward Tribunals are established under Section 3 of the Ward Tribunals Act, No.7 of 1985. The ward tribunal are available throughout the ward of Tanzania, with the primary function of securing peace and harmony in the area for which it is established by mediating and endeavoring to obtain just and amicable settlement of disputes. The Tribunal has and exercises jurisdiction in relation to all matters and disputes arising under all laws and directives passed by the appropriate authority. The Tribunal also has jurisdiction to enquire into and determine disputes relating to the offences and civil dispute specified in the Act and may impose penalties to the extent specified therein. According to the Village Land Act, 1999 and the Land Act of 1999, the Ward Tribunal may exercise original and appellate jurisdiction on land disputes. They exercise an appellate jurisdiction on disputes referred to it from Village Land Council.

c) Marriage Conciliation Boards

Section 102 of the Law of Marriage Act, No. 5 of 1971, provides for the establishment of Marriage Conciliation Boards in every ward. This is an advisory and conciliation board to matrimonial disputes, the board serves as a pre-requisite condition before filing for a petition for a decree of separation or divorce.

                               Court judgments

See Law Reports of Tanzania

                         Human Rights Judgments

See some selected human rights judgments. Others may be accessed through the Law Reports of Tanzania

                    Constitutional Judgments

See some selected constitutional judgments. Others may be accessed through the Law Reports of Tanzania

Legal Education The legal career may start by direct enrollment at Universities with law faculties. Students who complete their advanced secondary education successfully with good grades are eligible for a law degree enrollment. Degrees offered at the University are; a Degree in law (LL.B), Postgraduate Diploma in Law (PGDL), Masters of law (LL.M), Degree of Doctor of Philosophy (PhD) and Doctor of Laws (LL.D), which is the highest doctorate to be awarded. Persons discontinued with secondary education may start their legal career a Certificate in Law followed by a Diploma in Law before they join universities for their first degree.

Universities which offer Law Degree, Diploma and Certificate in Law;

The following are Universities which offer courses in law;

University of Dar es Salaam, Mzumbe University, Open University, Tumaini University,

Ruaha University under St. Augustine 

Morogoro Muslim University

Institutes which offer diploma in law are;

Mzumbe University, Lushoto Institute of Judicial Administration.

Certificate in Law courses are offered at institutions such as;

the Police College and, Other accredited institutes.

Enrollment for Practice as an Advocate

Before applying for enrollment as an advocate a candidate must hold an LL.B is supposed to attend an internship for a period not less than six months and another six months of Pupilage at a recognized law firm or any other practicing legal entity. Application for enrollment is done through a petition to the Chief Justice and a successful applicant is supposed to sit for a Bar exam which is held three times a year.

The Bar exam is conducted through oral interview by a panel of the Council for Legal Education. The panel is composed of representatives of the Chief Justice of the United Republic of Tanzania, the Attorney General of the United Republic, the Dean of Faculty of Law from the University of Dar Es Salaam, and two other senior representatives from the Tangayika Law Society. A successful candidate is enrolled into the Rolls of Advocates as and can practice law as Advocate of the High Court of Tanzania and other sub-ordinate Courts save for Primary Courts. He or she is enrolled by the Chief Justice of the United Republic of Tanzania at an enrollment ceremony which takes place twice a year i.e. mid June and December.

An advocate enrolled under the Advocates Act, Chapter 341 of the Laws of Tanzania [R.E.2002] will be given a yearly renewable practicing certificate by the Chief Justice. He or she is subject to the disciplinary rules and etiquette prescribed under the Act and in any case of breach of the said rules, may face disciplinary measures under the Ethics Committee of the Law Society and the Advocates Disciplinary Committee established under the Advocates Act CAP 341. Upon enrollment he or she will be automatically listed as a member of the Tanganyika Law Society established by the Tanganyika Law Society Act, Chapter 307 of the Laws of Tanzania [R.E 2002]. He is also obliged to pay annual subscription fees of the society.

The Tanganyika Law Society is manned by the Chairman who is elected by Advocates’ Annual General Meeting held annually and is assisted by the Secretariat General. Any inquiries as to the practice of law in Tanzania may be addressed to the Executive Secretary, Tanganyika Law Society; email; info@tanganyikalawsociety.or.tz

Tanzania Human Rights Institution

The Commission for Human Rights and Good Governance

http://www.chragg.org/

The Commission for Human Rights and Good Governance (CHRAGG) is one of the Constitutional creatures serving as an independent government department; The Commission is a creature of the Constitution established under Article 129(1) of the Constitution of the United Republic of Tanzania of 1977 as amended by Act No. 3 of 2000 vide the 13th Constitutional Amendment to the 1977 Constitution of the United Republic of Tanzania. CHRAGG came into force on the 1st July 2001 following the enactment and publication of the Commission the Human Rights and Good Governance Act No7 of 2001 as amended by Act No 16 of 2001 into Government Notice No. 311 of 8th June 2001. It was officially inaugurated in March 2002. The Commission’s primary responsibility is to promote and protect human rights and duties as well as good governance.

It is served by commissioner who are appointed by the President of the United Republic of Tanzania.

The functions of the CHRGG are stipulated in Article 130 (1) of the Union Constitution as well as in section 6(1) of its founding legislation. Accordingly, the ‘main core function of the Commission is to promote, protect and preserve human rights and duties of the citizens to the society. In other words, the Commission has four main functions, namely, the protective, promotive, advisory and mediatory/conciliatory functions.

All in all, of great significance to this regard is its mediation and conciliation mandate. According to section 28(4) of the founding legislation, the CHRGG can resolve any complaint or rectify an act or omission emanating from a violation of any fundamental right or acts of mal-administration by mediation, conciliation or negotiation. When the Commission is involved in mediation or conciliation it is acting in a quasi-judicial capacity. The quasi-adjudicatory function of the Commission is particularly in relation to carrying out public hearings or enquiries. Mediation is a means to an end. It seeks to reconcile people. That is why the Commission has a role to play in conflict resolution by way of mediation, conciliation and adjudication, apart from investigating complaints and conducting enquiries into violations of human rights and contravention of principles of good governance.

In discharging its quasi-adjudicatory function the CHRGG is governed by both rules of procedure, evidence and its own set of Regulations- The Commission for Human Rights and Good Governance (Complaints Procedures) Regulations, 2003 that have been made under the founding legislation, though, for the sake of fairness and flexibility, it is not bound by the former.

The Executive Branch

http://www.tanzania.go.tz/qlinksf.html for quick links

http://www.tanzania.go.tz/alevel2006f.html Advanced level exam results

http://www.tanzania.go.tz/censusdb/index.html Census database

http://www.tanzania.go.tz/ppu/index.html Population

The Executive http://www.tanzania.go.tz/administrationf.html

http://www.tanzania.go.tz/utawala.htmlfor Swahili and

http://www.tanzania.go.tz/ government website –English.

The Executive of the United Republic comprises of the President, The Vice-President, President of Zanzibar, the Prime Minister and Cabinet Ministers.

President

The President of the United Republic is the Head of State, the Head of Government; and the Commander-in-Chief of the Armed Forces.

The Executive of the United Republic comprises the President, the Vice-President, President of Zanzibar, the Prime Minister and the Cabinet Ministers. He is the Leader of the Executive of the United Republic of Tanzania.

Visit also http://www.tanzania.go.tz/pressreleasef.html for government press

releases

President Jakaya M Kikwete became the current President of the United Republic on the 21st December of 2005 after a historic victory, winning 80.3% of the total votes. Visit http://www.tanzania.go.tz/presidentialibraryf.html for Presidential library

Vice President

The Vice President is elected as a running mate to the President. He/she is the principal assistant to the President in respect of all matters in the United Republic generally and in particular is responsible for assisting the President in:

making a follow-up on the day-to day implementation of Union Matters; performing all duties assigned to him by the President; and performing all duties and functions of the office of the President when the President is out of office or out of the country. Dr. Omar Ali Juma became the first Vice president under multi-party system who was preceded by Dr. Ali Mohammed Shein after the demise of the latter in July 2005. Dr Shein served as Vice-President since 5th July 2001 under Mkapa regime prior to the 2005 General Elections.

The Prime Minister

http://www.pmo.go.tz/sjnews/index2.php

The Prime Minister of the United Republic is the Leader of Government Business in the National Assembly and has authority over the control, supervision and execution of the day-to-day functions and affairs of the Government of the United Republic of Tanzania. This power is conferred for under Article 52 of the Constitution of the United Republic of Tanzania of 1977. The article also confers power to the premier to control activities of sectroral Ministries. He/she also performs any matter or matters that the President directs to be done.

With assignment of the Ministerial responsibilities through Government Notice No.1 of January 2006, the Prime Minister is also responsible for the following sectors and sub-sectors:

Regional Administration and Local Government through the Minister of State Government Press Disaster Preparedness and coordination of management of civic contingencies (relief) Capital transfer and development, facilitation and implementation of Plans for the development of Dodoma as the Capital of Tanzania, coordination and supervision of the transfer programme National Festival and Celebrations. The President of Zanzibar

The President of Zanzibar is a Head of the Executive for Zanzibar; Head of the Revolutionary Government of Zanzibar and the Chairman of the Zanzibar Revolutionary Council.

The Cabinet

The Cabinet

Portfolio

Name

President and Commander -in- Chief of the Armed Forces of the United Republic of Tanzania

H.E Jakaya Mrisho Kikwete 

Vice - President

H.E Dr. Ali Mohamed Shein  

President of Zanzibar

H.E Amani Abeid Amani Karume   

Prime Minister of the United Republic of Tanzania

Rt.Hon. Edward Ngoyai Lowassa   

Ministers of State in the President's Office

    Public Service Management 
Hon. Hawa Abdulrahman Ghasia 

    Good Governance 
Hon. Philip Sang’ka Marmo 

    Political Affairs and Civil Societies Relations 
Hon. Kingunge Ngombale Mwiru 

Ministers of State in the Vice President's Office

    Union Affairs 
Hon. Dr. Hussein Ali Mwinyi 

    Environment 
Hon. Prof. Mark James Mwandosya 

Ministers of State in the Prime Minister's Office

    Regional Administration and Local Government 
Hon. Mizengo Kayanza Peter Pinda 

    Parliamentary Affairs 
Hon. Dr. Batilda Salha Burian

Minister for Foreign Affairs and International Co-operation

Hon. Bernard Kamillius Membe

Minister for East African Co-operation

Hon. Dr. Ibrahim Said Msabaha 

Minister for Finance

Hon. Zakia Hamdani Meghji   

Minister for Planning, Economy and Empowerment

Hon. Dr. Juma Alifa Ngasongwa 

Minister for Industry, Trade and Marketing

Hon. Basil Pesambili Mramba

Minister for Agriculture, Food Security and Co-operatives

Hon. Stephen Masatu Wassira

Minister for Natural Resources and Tourism

Hon. Prof. Jumanne Abdallah Maghembe

Minister for Water

Hon. Dr. Shukuru Jumanne Kawambwa

Minister for Energy and Minerals

Hon. Nazir Mustafa Karamagi

Minister for Infrastructure Development

Hon. Andrew John Chenge 

Minister for Health and Social Welfare

Hon. Prof. David Homeli Mwakyusa 

Minister for Education and Vocational Training

Hon. Margareth Simwanza Sitta 

Minister for Higher Education, Science and Technology

Hon. Prof. Peter Mahmoud Msolla 

Minister for Labour, Employment and Youth Development

Hon. Capt. John Zefania Chiligati 

Minister for Lands, Housing and Human Settlements Development

Ho. John Pombe Joseph Magufuli 

Minister for Information, Culture, and Sports

Hon. Muhammed Seif Khatib 

Minister for Defence and National Service

Hon. Prof. Juma Athumani Kapuya 

Minister for Public Safety and Security

Hon. Harith Bakari Mwapachu .   

Minister for Home Affairs

Hon. Joseph James Mungai 

Minister for Justice and Constitutional Affairs

Hon. Dr. Mary Michael Nagu 

Minister for Community Development, Gender and Children

Hon. Sofia Mnyambi Simba 

Minister for Livestock Development

Hon. Anthony Mwandu Diallo

Deputy Ministers and Their Respective Ministries

Prime Minister’s Office

   Disaster and HIV/AIDS 
Hon. Dr. Luka Jelas Siyame 

   Regional Administration and Local Government 
Hon. Celina Ompeshi Kombani 

Foreign Affairs and International Co-operation

Hon. Seif Ali Iddi 

Hon . Dr. Cyril August Chami

East African Co-operation

Hon. Dr. Diodorus Buberwa Kamala 

Finance

Hon. Abdisalaam Issa Khatib 

 
Hon. Mustafa Haidi Mkulo 

Planning, Economy and Empowerment

Hon. Gaudence Kayombo 

Industry, Trade and Marketing

Hon. Hezekiah Ndahani Chibulunje 

Agriculture, Food Security and Co-operatives

Hon. Christopher Kajoro Chizza

Dr. David Mathayo David

Energy and Minerals

Hon. William Ngeleje 

Infrastructure Development

Hon. Dr. Maua Abeid Daftari 

Hon. Dr. Milton Makongoro Mahanga

Health and Social Welfare

Hon. Dr. Aisha Omar Kigoda 

Education and Vocational Training

Hon. Mwantumu Bakari Mahiza 

Hon. Ludovick John Mwananzila

Higher Education, Science and Technology

Hon. Gaudensia Mugosi Kabaka 

Labour, Employment, and Youth Development

Hon . Jeremia Solomon Sumari 

Hon. Dr. Emmanuel John Nchimbi

Lands, Housing and Human Settlements Development

Hon.Rita Louise Mlaki 

Community Development, Gender and Children

Hon. Salome Joseph Mbatia

Public Safety and Security

Hon. Mohamed Aboud 

Home Affairs

Hon. Lawrence Kego Masha

Livestock Development

Hon. Dr. Charles Ogessa Mlingwa 

Natural Resources and Tourism

Hon. Zabein Muhaji Mhita 

Information, Culture and Sports

Hon. Daniel Nicodem Nsanzungwako 

Hon. Joel Nkaya Bendera

Justice and Constitutional Affairs

Hon. Mathias Meinrad Chikawe 

Defence and National Service

Hon. Omar Yussuf Mzee 

http://www.tanzania.go.tz/administrationf.html or

http://www.tanzania.go.tz/government/cabinet.htm

The Cabinet of the United Republic comprises the Executive, Prime Minister, Union Ministers appointed from amongst members of the National Assembly and Attorney General. It is the principal organ for advising the President regarding all matters concerning the exercise of his powers and assists and advises the Presidents over any matters, which is submitted to the Cabinet pursuant to specific or general directions issued by the President. The President presides over the Cabinet meetings and in the event the President is absent, the Vice-President presides over; and if both the President and the Vice-President are absent, the Prime Minister presides over the meetings. The Government executes its functions through Ministries led by Cabinet Ministers. Each Ministry has a sector portfolio through Presidential Instruments

The Current Ministries

Government Structure All matters of state in the United Republic are exercised and controlled by the Government of the United Republic of Tanzania and the Revolutionary Government of Zanzibar. The Government of The United Republic of Tanzania has authority over all Union matters in the United Republic, as stipulated under the Constitution, and it also runs all non union matters on Mainland Tanzania, i.e. the territory formerly known as Tanganyika. Non-union matters are all those which do not appear in the Schedule to the Constitution which stipulates the list of Union matters. Visit; http://www.tanzania.go.tz/guidelinesf.html for Government Plans

The Revolutionary Government of Zanzibar, similarly, has authority on Tanzania Zanzibar, i.e. the territory composed of the islands of Unguja and Pemba, over all matters, which are not Union Matters. In this respect the Revolutionary Government of Zanzibar has a separate Executive, legislature, known as the House of Representatives.

Public Administration

http://www.tanzania.go.tz/administrationf.html

Apart from state organs controlled by the Government of the United Republic of Tanzania and the Revolutionary Government of Zanzibar there are Local Government Authorities which assist the central government.

Local Government Authorities exist for the purpose of consolidating and giving more power to the people to competently participate in the planning and implementing developmental programmes within their respective areas. They are classified into two categories. These are; Urban authorities which are responsible for the administration and development of urban areas. Urban areas include townships, municipalities and Cities of Dar es Salaam, Mwanza and Arusha. The second category is the Rural Authorities referred to as the District Councils. Local Government Authorities discharge administrative functions of law, order, economy and developmental planning in their respective areas. Local Government Authority is exercised through Regional and District Commissioners

Government Agencies

The Electoral Commission

http://www.nec.go.tz/

The National Electoral Commission (NEC) is an independent and autonomous government institution. The Commission discharges its functions in accordance with the provisions of the Constitution. It is not be obliged to comply with orders or directions of any person or any Government department or the views of any political party. As such, no courts of law have power to inquire into anything done by this Commission in the discharge of its functions.

It was established in 1993 under Article 74(1) of the Constitution of the United Republic of Tanzania, 1977. The Commission was established to supervise, co-ordinate and put in place appropriate procedures for the conduct of elections under multi-party system. It is responsible for public elections at the Presidential, Parliamentary and councilor level. This followed an enactment of the Political Parties Act, (No. 5 of 1992) and amendment of existed legislations such as the Elections Act, (No.1 of 1985), the Local Authorities (Elections) Act, (No. 4 of 1979) and related legislations to get rid of the one – party system.

The Electoral Commission is responsible for the following roles;

(a) to supervise and co-ordinate the registration of voters in Presidential and Parliamentary elections in the United Republic of Tanzania;

(b) to supervise and co-ordinate the conduct of the Presidential and Parliamentary elections in the United Republic of Tanzania;

(c) to review the boundaries and demarcate the United Republic into various constituencies for the purposes of Parliamentary elections;

(d) to supervise and co-ordinate the registration of voters and the conduct of the Elections of Councilors;

(e) to declare elected special seats for women members of Parliament and Councilors; enacted by Parliament.

(f) to provide voter education in Tanzania and co-ordinate and supervise persons who conduct such education.

(g) to perform any other functions in accordance with a law enacted by Parliament.

In collaboration with the Political Parties, the Commission is also responsible for preparation of an Election Code of Conduct. The Code outlines the dos and don’ts in the campaign process by the Government, Political Parties and the Commission.

The National Electoral Commission consists of:- A Chairman whose qualification is equal to a Judge of the High Court or the Court of Appeal of Tanzania or a lawyer who qualifies to be an advocate and he/she has been with such qualifications for not less than 15 years. The Chairman is assisted by a Vice Chairman who has similar qualifications. Other members include a member appointed from amongst the members of the Tanganyika Law Society; Four other members who are persons possessing either adequate experience in the conduct or supervision of Parliamentary elections or such other qualifications as the President of the United Republic of Tanzania considers necessary for or pre-requisite to, the effective discharge of the functions of the Commission. Lastly, there is a Director of Elections who is appointed by the President of the United Republic of Zanzibar according to Article 74(7) of the Constitution of the United Republic of Tanzania and Section 4(4) of the Elections Act, (No. 1 of 1985). He or she is the Secretary to the Commission and Chief Executive.

Electoral system

The Tanzania electoral system follows the ex-British colonies system which is “First Past the Post”. Under this system the country is divided and demarcated into constituencies and wards. Each constituency and ward in Tanzania mainland is eligible to elects one representative to the Parliament and council respectively. Due to a multi-party system adopted in the country every contested seat may have contestant from each of the registered political parties. The political parties are responsible for sponsoring their candidates and therefore a candidate who wins majority votes is declared elected.

At the Presidential level, a Presidential Candidate from one part of the union is required to have running mate who hails from another part of the United Republic of Tanzania. The running mate contests for a Vice-Presidential post and will be at the same time with the President. As such, the Presidential Candidate who wins the majority of votes is declared President of the United Republic together with his running mate as Vice President.

Apart from candidates in the above category, Tanzania has a system of proportional representation which is taken according to votes of the elections of Members of the Parliament for Women Special Seats. These are special seats for women and constitute thirty percent of the total number of elected constituency members, plus five members elected by the Zanzibar House of Representative. The Attorney General who is appointed by the President of the United Public of Tanzania qualifies as an ex-officio Member of the Parliament. There are other ten members appointed by the President of the United Republic of Tanzania from his constitutional powers.

Special seats for councilors’ election on proportional representation for women is not less than one third of the all elected Councilors and Members of Parliament in each Council. They are apportioned according to seats won by each political party in the council.

The formation and organization of political parties are regulated under the Political Parties Act 1992. Currently, there about 18 political parties with full registration for political parties; visit http://www.nec.go.tz/political_party.asp?menu=sub8&maintitle=registered

Tanzania has so far conducted multiparty general elections in three phases in 1995, 2000, and 2005.

The Tanzania Law Reform Commission

http://www.lrct-tz.org/

The Law Reform Commission of Tanzania was established by an Act of Parliament in 1980. This is the Law Reform Act, No. 11 of 1980. The Commission was the result of a Judicial Review Commission formed in 1974 to conduct a wide-ranging review of the legal system and to recommend changes for improvement in the administration of justice. The Commission was chaired by Mr. Pius Msekwa and it 1977 reported to the Government and recommended various changes in the judicial system administration. The Msekwa Commission recommended for, among others things, to establish an independent body-the Permanent Law Reform Commission which will maintain a constant monitor over the administration and operation of the law.

The Commission was formed in 1981 and on 21st October 1983 it started to function officially. The Commission started its operation in 1983 under the late Justice Yona Mwakasendo. From then three justices have led it. The Commission’s main function is to conduct research throughout the country and recommend to the government for the law reforms which will respond to the changing conditions in the economic, cultural, educational and political fields.

The Commission has conducted various researches countrywide to reflect the social-economic changes and released reports. Some of research report release include; The Law of Marriage; The Problem of Congestion in Prison; The Law Relating to Children in Tanzania; the Impact of Criminal Justice in Combating Theft/Embezzlement in Government Institution and Public Corporation; The Law of Succession/Inheritance; Exchange Control; Statutory System of Compensation to Victim of Crime and Private Legal Practice. Other include; Delays in the Disposal of Civil Suits; Labour Laws; Criminal Law as a Vehicle for Protection of Rights of Women and Nyalali Final Report.

Tanzania Communication Regulatory Authority (TCRA)

http://www.tcra.go.tz/

The Tanzania Communications Regulatory Authority (TCRA), established by the TCRA Act no. 12 of 2003 is an independent Authority for the Postal, Broadcasting and Electronic communications industries in the United Republic of Tanzania. Its role include licensing and regulating the Postal services, Broadcasting services and Electronic Communications sectors in the United Republic of Tanzania.

The Tanzania Communications Regulatory Authority (TCRA) is Tanzania’s communications and broadcasting regulator. It was established under the Tanzania Communications Regulatory Authority Act No.12 of 2003 which merged the Tanzania Communications Commission and the Tanzania Broadcasting Commission.

TCRA became operational on 1st November, 2003 and has effectively taken over the functions of the two defunct commissions. Specifically the Authority is responsible for enhancing the welfare of Tanzanians through:

Promotion of effective competition and economic efficiency; Protecting the interests of consumers; Promoting the availability of regulated services; Licensing and enforcing licence conditions of broadcasting, postal and Telecommunications operators Establishing standards for regulated goods and services Regulating rates and charges (tariffs); Managing the radio frequency spectrum; Monitoring the performance of the regulated sectors. Monitoring the implementation of ICT applications Since the introduction of the Converged Licensing Framework (CLF) in 2005, the Authority has issued various licenses to Companies in the categories of Network facilities, Network services and Applications services. Click here for details of the licensed companies as of 1st November,2006.

TCRA has received application from the Tanzania Postal Corporation (TPC) requesting for approval to review tariffs for the regulated postal services and products. The Authority hereby invites all stakeholders in the communications sector to give their written comments to assist the Authority in considering the tariff review. For more details click here

The convergence of info-communication technologies has necessitated a change in the licensing framework The Tanzania Communications Regulatory Authority has developed a new licensing framework to accommodate technological market and regulatory trend referred to as convergence.

The Authority has been seeking comments from stakeholders since January, 2005 on the implementation of the New Licensing Framework through Workshop, meetings and Authority's website. In response and taking into accounts comments received, the Authority have finalised the Regulations, Licenses and applicable fees under the Converged Licensing Framework. For more details on the New Licensing Framework, Click here

Tanzania Communications Commission (TCC): http://www.tanzania.go.tz/tcc.html

TCC was established under the Tanzania Communication Act No. 18 of 1993 and became operational in 1994. The Commission was formed following the dissolution of the Tanzania Post and Telecommunications Corporation as part of the government’s initiative to restructure the communications sector. The commission is charged with the responsibility of regulating the activities of the service providers in the postal and telecommunications sub-sectors. Other responsibilities of the Commission include defining interconnection and tariff policies; allocation and monitoring of radio frequencies; and preparation of numbering plans, revenue sharing arrangements and monitoring compliance with standards.

Tanzania Revenue Authority

http://www.tra.go.tz/profile.htm

The Tanzania Revenue Authority Act No. 11 of 1995 established TRA. The Authority is a semi-autonomous agency of the Government, responsible for the administration of the Central Government taxes as well as several non-tax revenues. The Authority, which administers a number of taxes, is under the general supervision of Board of Directors. The list of tax laws administered by TRA is shown in Tax Laws administered by TRA.

Functions of TRA

The major functions of the Authority are to: Assess, collect and account for all Central Government Revenue; Administer efficiently and effectively all the revenue laws of the Central Government; Advise the Government on all matters relating to fiscal policy; Promote voluntary tax compliance; Improve the quality of services provided to taxpayers; Counteract fraud and other forms of tax and fiscal evasion and Produce trade statistics and publications.

Tanzania Transport Regulatory Authority (TTRA)

http://www.tanzania.go.tz/ttra.html 

The Government of the United Republic of Tanzania is underway to establish a Transport Regulatory Authority. TTRA will derive its powers from the Transport Regulatory Act and will be charged with the responsibility of overseeing the smooth operations of the roads and roads transport, railways, ports, maritime transportation, airports and air transportation.

Central Transport Licensing Authority (CTLA)

http://www.tanzania.go.tz/ctla.html

CTLA is a regulatory authority. The main task of CTLA is to issue road transport licenses. Regional Transport Licensing Authorities (RTLA) are authorized to issue licenses to regional transport operators.

Tanzania Central Freight Bureau (TCFB)

http://www.tanzania.go.tz/tcfb.html

The Act of 1982 Tanzania Central Freight Bureau was amended in 2000 to respond to changes in the market environment. The mission of TCFB is to foster economy in the water transportation sub-sector through competition and fair trade practices with the view to promoting its growth and ensuring availability of maritime transport information.

Tanzania Meteorological Agency

http://www.tanzania.go.tz/tma.html

Tanzania Civil Aviation Authority (TCAA)

http://www.tcaa.go.tz/

The Tanzania Civil Aviation Authority (TCAA) is a body Corporate, was established by the Tanzania Civil Aviation Authority Act (Act No.10 of 2003) (Government Notice No. 10 of 2003) as an independent regulator and provider of air navigation services.

As an independent regulator the Authority is responsible for all civil aviation regulatory activities including safety regulation, economic regulation and consumer protection.

The establishment act mandate the Authority to regulate the activities of persons and institutions carrying on air transport services (carriage of passengers and cargo, both domestic and international), aeronautical airport services (airport operators, ground handlers, cargo operators, hanger facilities, airport security, in-flight caterers and aircraft fuelling services), air navigation services (includes air traffic services and associated infrastructure, and aeronautical meteorological services) as well as continue with the provision of air navigation services.

HISTORY

Tanzania Civil Aviation Authority (TCAA) was established on 1st November 2003 as a Corporate Body under the Tanzania Civil Aviation Authority Act No. of 2003. Prior to that it was an Executive Government Agency known as Tanzania Civil Aviation Authority, which was established in 1999.

Functions of the former Tanzania Civil Aviation Authority along with the staff were transferred to TCAA.

Why Establish the TCAA To perform regulatory functions in relation to air transport, aeronautical airport services and air navigation services.

Specifically, the functions of TCAA are: To perform the following-

to issue, renew, vary and cancel air service licenses.

to establish standards for regulated goods and regulated services.

to establish standards for the terms and conditions of supply of the regulated goods and services.

to regulate rates and charges

to make rules for carrying out the purposes and provisions of this Act

To monitor the performance of the regulated suppliers including in relation to-

levels of investment; availability, quality and standards of services.

the cost of services .

the efficiency of production and distribution of services, and other matters relevant to the Authority.

to facilitate the resolution of complaints and disputes.

to take over and continue carrying out the functions formerly of the former Authority.

to disseminate information about matters relevant to the functions of the Authority.

to consult with other regulatory authorities or bodies or institutions discharging functions similar to those of the Authority in United Republic of Tanzania and elsewhere to administer the Tanzania Civil Aviation Authority Act, 2003.

to perform such other functions as may be conferred on the Authority by the Tanzania Civil Aviation Authority Act, 2003 or any other law.

Public Service Commission

Government Institutions

Banks

http://www.bot-tz.org/AboutBOT/BOT_Act.htm- The Bank of Tanzania

http://www.africaonline.co.tz/tpbank Postal Bank

http://www.stanbic.com/SBIC/Frontdoor_07_02/0,2493,10217293_10217476_0,00.html Stanbic Bank

Stanbic Bank is part of one of Africa's leading banking and financial services groups, Standard Bank Group Limited, which is based in South Africa and listed on the Johannesburg Securities Exchange.

Rooted in Africa and with representation in strategic sub-Saharan markets, Standard Bank is a regional banking force with a global sweep. With total assets of about US$81bn and employing about 35 000 people worldwide, Standard Bank has the largest presence in Africa of any South African or African bank.

Our network spans 17 African countries and extends to 21 countries on other continents, including the key financial centres of Europe, the United States and Asia. In addition to banking, Standard Bank has a strategic interest in the insurance industry through its control of the Liberty Group, one of Africa's leading life offices and financial services groups.

The group has one of the biggest single networks of banking services in Africa. Through this network we offer a wide range of banking products and services which are delivered through more than 1 000 points of representation in 17 African countries. We are active in international and cross-border transactions and in those areas liaise closely with Standard Bank Corporate and Investment Banking and Standard Bank London

http://www.standardchartered.com/tz/index.html Standard Chartered

Standard Chartered PLC is listed on both the London Stock Exchange and the Hong Kong Stock Exchange and is consistently ranked in the top 25 among FTSE-100 companies by market capitalisation.

Standard Chartered has a history of over 150 years in banking and operates in many of the world's fastest-growing markets with an extensive global network of over 1,400 branches (including subsidiaries, associates and joint ventures) in over 50 countries in the Asia Pacific Region, South Asia, the Middle East, Africa, the United Kingdom and the Americas.

As one of the world's most international banks, Standard Chartered employs almost 55,000 people, representing over 90 nationalities, worldwide. This diversity lies at the heart of the Bank's values and supports the Bank's growth as the world increasingly becomes one market.

With strong organic growth supported by strategic alliances and acquisitions and driven by its strengths in the balance and diversity of its business, products, geography and people, Standard Chartered is well positioned in the emerging trade corridors of Asia, Africa and the Middle East.

Standard Chartered derives over 90 per cent of profits from Asia, Africa and the Middle East. Serving both Consumer and Wholesale Banking customers worldwide, the Bank combines deep local knowledge with global capability to offer a wide range of innovative products and services as well as award-winning solutions.

Trusted across its network for its standard of governance and corporate responsibility, Standard Chartered takes a long term view of the consequences of its actions to ensure that the Bank builds a sustainable business through social inclusion, environmental protection and good governance.

Standard Chartered is also committed to all its stakeholders by living its values in its approach towards managing its people, exceeding expectations of its customers, making a difference in communities and working with regulators.

http://www.crdbbank.com/ CRDB

CRDB BANK LIMITED is a private commercial bank. The Bank was established on July 1st 1996 to succeed the former Cooperative and Rural Development Bank (CRDB), which was a public institution with majority of shares held by the Government of the United Republic of Tanzania. The succession was a result of the liberalization of the banking industry in Tanzania.

The liberalization which followed the enactment of the Banking and Financial Institutions act (BFIA) of 1991 and Government’s policy to divest its interest in the sector, prompted a recapitalisation of the Bank to levels stipulated by the BFIA (1991).

Restructuring

CRDB has been blessed with an invaluable partnership from the Danish International Development Agency (DANIDA). DANIDA’s commitment and support in technical, managerial and financial areas of the Bank's operations has been instrumental for the success of CRDB BANK LIMITED.

DANIDA therefore was fundamentally involved in CRDB’s restructuring as demanded by the BFIA (1991). The restructuring, which started in 1992, aimed at a more efficient organizational system, better returns to shareholders and overall improvement in the financial performance of the Bank. The exercise involved:

CRDB BANK LIMITED is owned by over 11,000 shareholders under the following major groups (by value of shares): Private individuals 37.0; Co operative 14.0; Companies 10.2; DANIDA investment fund 30.0; and Parastatals (NIC &PPF 8.8;

http://www.nbctz.com/ NBC

This is one of the largest commercial banks in Tanzania with braches through out the regional (province) headquarters. Having joined forces with Africa's largest banking group, South African based Absa Group Ltd; NBC Ltd. has given its clients access to a global banking environment.

http://www.barclays.com/africa/ Barclays Bank

Business Agencies http://www.tanzania.go.tz/commerce.html Business Agencies

http://www.tanzania.go.tz/commerce.html#Business%20Registration

http://www.tanzania.go.tz/commerce.html#Trade%20Agencies

http://www.tanzania.go.tz/commerce.html#Tanzania%20Bureau%20of%20Standards

http://www.tanzania.go.tz/commerce.html#Weights%20and%20Measures

Economic Agencies Law Enforcement Agencies http://www.tanzania.go.tz/pcb/ Prevention of Corruption Bureau

police

prison

Army-JWTZ

Courts and Tribunals

http://www.tanzania.go.tz/commerce.html#Industrial%20Court

Government Revenue Sources Agencies http://www.tanzania.go.tz/government/tra.html Tanzania Revenue Authorities

Telecommunications Agencies

http://www.tanzania.go.tz/psrp/ public service reform commission

http://www.tanzania.go.tz/guidelinesf.html Medium Term Plan and Budget Framework

http://www.tanzania.go.tz/hotuba1/hotuba/061114%20Hotuba%20ya%20Mhe%20JKM%20ufunguzi%20wa%20Mlimani%20shoping%20centre.htm

http://www.tanzania.go.tz/nsgrf.html national strategy for growth and poverty reduction

TANZANIA Policies

http://www.tanzania.go.tz/ppu/tnpp.html Population Policy

http://www.tanzania.go.tz/microeconomicpolicef.html Microeconomic policy

http://www.tanzania.go.tz/ngof.html NGOs Policies

http://www.tanzania.go.tz/policiesf.html Tanzania Policies

Other Human Rights Materials

                                   Funding Agencies

National Human Rights Institutions

http://www.humanrights.or.tz/usefullinks.html#10

Links to International Human Rights Courts

Tanzania recognizes decision passed by international court and my form part of persuasive precedents in Tanzanian’s courts and tribunals when local circumstances do not provide for answers. The following are part of the courts recognized by Tanzania adjudication system.

European Court of Human Rights; http://www.echr.coe.int European Court of Justice http://europa.eu.int/cj/index.htm Inter-American Court of Human Right http://www.nu.or.cr/ci/HOME_ING.HTM International Court of Justice http://www.icj-cij.org International Criminal Court http://www.un.org/law/icc/index.html International Criminal Tribunal for Rwanda. http://www1.umn.edu/humanrts/africa/ RWANDA1.htm International Criminal Tribunal for the Former Yugoslavia http://www.un.org/icty/

Reports

Tanzania Government Reports

http://www.tanzania.go.tz/nsgrf.html poverty and human development report

http://www.tanzania.go.tz/ppu/index.html population index reports

Tanzania NGO Reports

http://www.humanrights.or.tz/aboutus.html

International NGO Reports

http://www.humanrights.or.tz/usefullinks.html#10 national human rights NGOs

Foreign Governmental Reports

United Nations Reports and Decisions

NGOs and Research Centers

TANGO, SAHRINGON; ESRF, REPOA

Reports of the Law Reform Commission of Tanzania

http://www.lrct-tz.org/publications.html

The Law of Succession/inheritance

http://www.lrct-tz.org/pdf/mirathi.pdf

The Law of Marriage

The Problem of Congestion in Prison

The Law Relating to Children in Tanzania

He Impact of Criminal Justice in Combating Theft/Embezzlement in Government Institution and Public Corporation

Exchange Control

Statutory System of Compensation to Victim of Crime

Private Legal Practice

Delays in the Disposal of Civil Suits

Labour Laws

Criminal Law as a Vehicle for Protection of Rights of Women

Nyalali Final Report

Media Reports

Local newspapers

http://ippmedia.com/ipp/guardian/2006/11/06/77822.html

IPP Media A media house with diverse media outlets ranging from print to electronic. www.ippmedia.com

Business Times Limited An independent media house in Tanzania that runs newspapers and a community radio. www.bcstimes.com

Tanzania Standard Newspapers TSN A Government-owned media house which is the publisher is the oldest English daily. www.dailynews-tsn.com http://www.dailynews-tsn.com/page.php?id=4371

http://dailynews-tsn.com/habarileo/page.php?Category=interview HabariLeo

Free Media Limited Publishers of an independent daily Tanzania Daima www.freemedia.co.tz

Regalia Media Limited A public relations firm that deals with advertising, advertorials, media campaigns and promotional publications. www.regaliamedia.com

MAJIRA SWAHILI DAILY NEWSPAPER- majira@bcstimes.com

MWANANCHI DAILY NEWSPAPER mwananchinewspapers@cats-net.com

UHURU DAILY NEWSPAPER Uhuru@cats-net.com

NIPASHE DAILY NEWSPAPER guardian@ipp.co.tz

TRAINING INSTITUTIONS-JOURNALISM

1. Tanzania School of Journalism Box 4067 Dar es Salaam Tanzania

2. Tumaini University Box 200 Iringa Tanzania

3. Dar es Salaam School of Journalism Box 25444 Dar es Salaam Tanzania

4. Chuo cha Uandishi Televisheni Box 314 Zanzibar Tanzania

5. St.Augustine University Box 307 Mwanza Tanzania

6. Tanzania Institute of Media Education Box 33346 Dar es Salaam

PRESS CENTERS IN TANZANIA

TANZANIA PRESS CENTRE NETWORKS OF JOURNALISTS

Promoting specialization and professionalization in the media

JOURNALISTS FOR DEMOCRACY AND HUMAN RIGHTS jdhr.tpc@journalist.com

JOURNALISTS FOR TRANSPARENCY, ACCOUNTABILITY AND GOOD GOVERNANCE jtagg.tpc@journalist.com

JOURNALISTS FOR POPULATION AND PLANNED PARENTHOOD jppp.tpc@journalist.com

POVERTY ALLEVIATION JOURNALISTS NETWORK panj.tpc@journalist.com

NETWORK OF ECONOMIC AND ENTREPRENEURSHIP JOURNALISTS neej.tpc@journalist.com

JOURNALISTS FOR AGRICULTURE AND FOOD jaf.tpc@journalist.com

JOURNALISTS FOR TREES AND AFFORESTATION jta.tpc@journalist.com

JOURNALISTS FOR PLANNED AND CLEAN SETTLEMENTS jpcs.tpc@journalist.com

JOURNALISTS FOR EAST AFRICAN ECONOMIC UNION jeaeu.tpc@journalist.com

JOURNALISTS FOR MUSIC, SPORTS AND ENTERTAINMENT PROMOTION jmep.tpc@journalist.com

TANZANIA PHOTOGRAPHERS NETWORK tpm.tpc@journalist.com

NETWORK OF INFORMATION, COMMUNCATION AND EDUCATION TECHNOLOGY FOR DEVELOPMENT nice.tpc@journalist.com

NETWORK OF ENVIRONMENT FOR DEVELOPMENT ned.tpc@journalist.com

NETWORK OF JOURNALISTS FOR HEALTH AND WELLBEING IN TANZANIA nhw.tpc@journalist.com

NETWORK OF EDUCATION FOR WORK new.tpc@journalist.com

NETWORK OF ELECTRICITY FOR ALL nea.tpc@journalist.com FIGHT AIDS TANZANIAN JOURNALISTS NETWORK ukimwi@go.com

Other CIS Human Rights Materials

Mushiiii-Tangos; Rehema SAHRiNGON

Tanzania Major Human Rights NGOs

See TANGO members

Legal and Human Rights Centre (LHRC)

http://www.humanrights.or.tz/

The Legal and Human Rights Centre (LHRC) is registered in Tanzania as a private, non-governmental, non-partisan and non-profit making organisation. It has been an autonomous and independent entity since its registration in September 1995. The Legal and Human Rights Centre was established from the realisation of the extent to which the majority of the people were unaware of their rights and for the indigent who had no means to pursue their rights in court for want of legal representation.

The Legal and Human Rights Centre is both a legal and a human rights organisation. The Centre was created so as to contribute to the process of democratisation in Tanzania and strives to promote, reinforce and safeguard human rights.

LHRC works to promote respect and observance of human rights and democracy; promote respect and observance of rule of law and due process; promote consumer protection; create networks with public interest and human rights organisation, non governmental organisations, universities, relevant research institutions, religious association and legal association societies; promote public awareness in the field of environmental protection; provide – on request – consultancy services to Government and Non-Governmental Organisations, provided it is within the spirit of the objectives of LHRC; to organise and sponsor conferences, seminars, workshops, meetings and such undertakings with a view of promoting the social and educational objectives of LHRC; to raise funds for the purposes of the LHRC on such terms as are compatible with the autonomy of the LHRC and within the spirit of its social and educational objectives; to publish articles and various publications on legal education, society and human rights.

How We Do It

In order to realise its objectives, LHRC engages in the following:

Participatory and conventional legal research methods to determine the educational needs of the targeted groups in the focus areas, identifying the major legal and human rights issues involved and compile them and collect other information necessary to deal with the issue. Participatory legal and human rights education and training of both grassroot communities and paralegal personnel with the capacity to service the immediate needs of such non-complex legal problems. General advocacy and lobbying in support of legitimate cause of the target groups Counseling, arbitration and litigation in respect of legal aid cases Production of publications and material s with educational legal and human rights contents Monitoring human rights violations and issuing of human rights situation report annually Our Vision

Legal and Human Rights Centre envisages a just and equitable society

Our Mission

The Legal and Human Rights Centre is both a legal and a human rights organisation. The Centre was created so as to contribute to the process of democratisation in Tanzania and strives to promote, reinforce and safeguard human rights.

The primary task of the Legal and Human Rights Centre is to create legal and human rights empowerment amongst the socially, economically, culturally and spiritually disadvantaged and marginalized groups within the Tanzania society through legal and human rights training, provision of legal aid, information generation and dissemination through publications and radio programmes, research on legal and human rights issues and networking and alliance building with other institutions which share this mission. The above can be achieved by:

Dissemination of legal and human rights knowledge to various groups in the society through training, publications and radio programmes.

Provision of legal aid to indigent people or those whose cases have special public interest or cases, which can advance law reform.

Promotion of public awareness in the field of environmental protection and;

Conducting research on legal and human rights issues with the aim of using the findings as a basis for lobbying and advocacy for changes.

About LHRC

The Legal and Human Rights Centre (LHRC) is a non-profit making, non-partisan, non-governmental organization striving to empower the public as well as promote, reinforce and safeguard human rights and good governance in Tanzania.

The objective of LHRC is to create legal and human rights awareness and empowerment among the general public, the authorities and, in particular, the underprivileged sections of the society. The target groups of LHRC include: the general public, the indigent, community leaders, influential people, politicians, policy makers, legislators, law enforcers, community based organizations, NGO’s and various international organizations.

The headquarter of Legal and Human Rights Centre is situated in Dar es Salaam, but the Centre also runs three legal aid clinics; two in Dar es Salaam (Magomeni and Buguruni) and one in Arusha.

Activities of LHRC

LHRC provides legal aid and legal and civic education. We execute training programmes of civil society, local government leaders and officers in the law enforcement machineries, as we also train grass root trainers to pass on their knowledge to others.

As part of its sensitisation programme the Centre runs a weekly radio programme on Radio Tanzania Dar es Salaam, which enjoys a countrywide coverage as well as a weekly television programme broadcasted on Channel 10. Both programs focus on practical legal and human rights issues touching the day to day lives of people in Tanzania and the general governance of the country.

LHRC publishes manuals, booklets, leaflets and posters on legal and human rights principles. The Centre carries out research in a number of legal and human rights areas in addition to making follow up on monitoring of human rights violations.

Brief history of LHRC

The Legal and Human Rights Centre was registered in September 1995. Before LHRC was registered as an independent entity the Centre existed as a human rights project at the University of Dar es Salaam by the name of Tanzania Legal Education Trust (TANLET). TANLET emerged as an initiative of the Legal Aid Committee of the University of Dar es Salaam to provide an independent avenue for members of society to exercise their freedom of opinion with regard to their civil rights.

Legal and Human Rights Centre is registered as a company limited by guarantees under the company’s ordinance cap 212 of the laws of Tanzania. The Centre was established with a prime view to disseminate knowledge on legal and human rights issues to the general public out of the realisation that the majority of Tanzanians are not aware of their rights nor of the means to pursue justice in court.

Our Organisation Structure

Annual General Meeting (AGM)

The General Assembly is the highest organ of the LHRC. It decides on general lines of policy and all other including the power to amend the memorandum and articles of association, and appoint the Board of Directors.

Board of Directors

This board is responsible to the General Assembly. It is the decision maker in relation to policies and projects of the LHRC and supervises the implementation. It employs Executive Director and confirms the members of staff of the LHRC employed by the Executive Director

Board of Directors makes regulations for the proper management of the personnel, facilities and finances of the LHRC. It approves annual plans and budgets, ensures provision of facilities necessary for the running of the organisation and carries out other activities that tare necessary for the proper governance and direction of the LHRC.

National Organisation for Legal Assistance (nola)

Msaada wa Sheria

http://www.msaadawasheria.or.tz/index.htm

History

Structure

Programme

The national organization for legal assistance, nola, is a non-governmental, autonomous and voluntary organization that was initially formed in 2002 by dedicated practicing lawyers so as to use the law to further the cause of legal and social justice as well as human rights in the country. It was registered as an NGO under the Companies Ordinance, Cap. 212 of the Revised Laws of Tanganyika, on 31st January 2003.Currently nola has eight Legal Assistance Centers in Mbeya, Iringa, Songea (Ruvuma), Mtwara, Dodoma, Kigoma, Tabora and Mwanza. Through this Programme, nola undertakes: effective court representation, strategic litigation, public-interest litigation, research, advocacy, consultancy and legal assistance to vulnerable groups, particularly in rural areas, including: juvenile delinquents, underprivileged women, HIV/AIDS victims, and indigent people. nola's vision The vision of nola is to enhance the right to access to justice for all in rural areas of Tanzania. nola's Mission statement; It is nola’s mission to facilitate an evolution of a society in Tanzania that is free from crimes and human abuses; and that respects human/legal rights, democracy as well as good governance. This mission is achievable through:

Mainstreaming human rights, democracy and good governance in both public and private institutional governance processes, Empowering the vulnerable members of the society, especially by providing them with certain and sustainable legal assistance through legal advice and effective court representation, Research, documentation, publication and advocacy, and Fostering a preventive culture against all kinds of crimes and abuses, which culture promotes and protects, in effect, human/legal rights, good governance and democracy in the society; particularly by encouraging community-based legal/human rights initiatives. Through Lobbying and Advocating for reform in:

Gender and Children Rights. Human Rights. HIV/AIDS Issues. Law and Policy Reform Legal Practice Reform Training and Awareness raising Coalition Building/Networking nola’s Main Objective To create an environment in which national laws, practices and policies are molded on the spirit and purposes of international human rights standards that enhance equal and equitable realization of human rights, particularly amongst the underprivileged members of our society through:

Provision of legal assistance, Provision of legal and civic education, Research, documentation and publication, Follow-up and monitoring of human rights abuses, and nola’s Specific Objectives;

To promote respect and observance of human/legal rights, particularly by encouraging affirmative actions in favor of vulnerable groups; like children in need of special support/care, the disabled, underprivileged women and people living with or affected by HIV/AIDS. To promote respect and observance of the rule of law and due processes, including good governance, in the country. To promote the culture of consumer rights protection in our developing society that can enable members of the society to adapt well to the forces of the process of globalization. nola’s Concerns are:

Pro-rural, as poor and vulnerable people in the rural areas are quite often forgotten in relation to provision of legal aid. Humanitarian, as infringement of legal/human rights vitiates and impairs national democratic and economic development, Commitment to furthering the cause of social justice as most of our laws are unjust hence subverts human rights of many a vulnerable people, and Practical, as infringement of legal/human rights distorts the operation of markets and deprives ordinary people of the benefits that should have otherwise flown to them.

nola’s mission statement It is nola’s mission to facilitate an evolution of a society in Tanzania that is free from crimes and human abuses; and that respects human/legal rights, democracy as well as good governance. This mission is achievable through:

Mainstreaming human rights, democracy and good governance in both public and private institutional governance processes, Empowering the vulnerable members of the society, especially by providing them with certain and sustainable legal assistance through legal advice and effective court representation, Research, documentation, publication and advocacy, and Fostering a preventive culture against all kinds of crimes and abuses, which culture promotes and protects, in effect, human/legal rights, good governance and democracy in the society; particularly by encouraging community-based legal/human rights initiatives. Nola’s Programmes and Activities; I. Access to Justice Programme Activities;

Effective court representation Strategic Litigation Public-Interest Litigation Legal Assistance to Vulnerable Groups, particularly in rural areas:

Juvenile Delinquents Children Underprivileged Women HIV/AIDS Victims, and Indigent People. Consumer Rights Protection Litigation. We are currently providing legal aid in 8 regions viz; Mwanza, Kigoma, Tabora, Mtwara, Mbeya, Dodoma, Iringa and Ruvuma. II. Research, Lobby and Advocacy (for Reform of Policies, Laws and Practices) Programme This programme is cardinal to nola’s other programmes for it helps guiding programme formulation within nola as well as it provides the real situation on the ground needing further intervention.

The programme seeks to conduct studies/surveys in various laws inhibiting the realization of legal/human rights so as to expose any inherent or prevalent abuses with a view to informing public and stimulate debates for reform of the said policies, laws, and practices in order to enhance social justice in our society. So far, the following research works have been conducted and published: When the Operation of the Law Enhances Corruption in Tanzania: An Enigma in a Legal Regime Needing Reform (2004) and Using the Law to protect Children’s Rights in Tanzania: An Unfinished Business (2004). The Programme is concerned with conducting studies in the following areas: Legal Audit of legislation inhibiting human rights of people living with or affected by HIV/AIDS in Tanzania. Legal Audit of legislation relating to corruption in Tanzania. Regular human rights monitoring and follow-ups. Realization of Economic, Social and Cultural Rights in Tanzania. Legal Audit of legislation and customary practices affecting women rights in Tanzania. Legal/human rights implications of the process of globalization. Legal Audit of legislation relating to labor matters. Legal Audit of legislations related to children Documentation and publication. Refugee's right of access to justice III. Finance and Administration Programme This is a fundamental program at the organization since it is directly responsible with the control and accountability of the organization funds according to the projects, consultancy and Articles and Memorandum of association of the company. It is further responsible for organization’s sustainability in terms of financial resources and human resources. That is to say the programme is involved with the following components <

Staff Welfare. Financial Management and Fundraising. Financial transparency and accountability IV. Human Resource Development This programme is also very important as far as nola is concerned because it deals with developing and sustaining human resource and capacity building mechanism. Through this mechanism the program will engage the law enforcement agencies in training on legal and human rights protection. The same program will capacity-built members of its staffs, implementing partners as well as beneficiaries on a short and long term training. This program will involve;

Staff administration Source, commission and allocating Staffs, Partners, and Beneficiaries to the learning institutions.

Women’s Legal Aid Centre (WLAC)

http://www.wlac.or.tz/aboutwlac.html

History

Structure

Programme

The Women’s Legal Aid Center was registered in 1994. The WLAC is both legal and community-based organization. The WLAC is an outcome of the famous SUWATA Legal Aid Scheme for Women. The The first Coordinator of the Scheme was Nakazaeli Lukio Tenga (1989-1993).

The decision to formulate the said Scheme in 1989 was reached after it was realized that there was a larger number of women within the country who face legal problems without the requisite resources for legal aid services. In 1989, the Scheme was the first Legal Aid for women to be established in Tanzania. The WLAC is opened to all women irrespective of their religious, race, colour, political or ethnic affiliation. WLAC has expanded and now is promoting and protecting women and children’s rights.

The website launched in September 2002 provides information about our programs and links to our paralegal upcountry and our partners worldwide. The site will also highlight WLAC programs, so that you can get a glimpse of how WLAC promotes and protects women and children rights.

The Women’s Legal Aid Centre (WLAC) is a voluntary, private, Non-Governmental Non-Partisan and Non-Profit making Organization, registered in 1994 as a Company Limited by guarantee without shareholders under the Companies Ordinance, Cap.212 of Tanzania.

WLAC ‘s Secretariat has 17 full-time staff working in four inter-connected departments. The Executive Director is responsible for the overall programme implementation, supervision and reports to the Board of Directors.

VISION To contribute in having a just and equitable society that observes and respects Women and Children’s rights.

WLAC’S MISSION The WLAC is a human rights organization, striving to promote and protect women and children’s rights by helping to bring about gender equality in Tanzania through legal aid, legal research, networking, publications and outreach programmes.

SPECIFIC OBJECTIVES To carry on the activities of the Legal Aid Clinic; to give advice and counseling services, to undertake court representation, drafting of legal documents and other related services; To conduct seminars, workshops, camps and conferences, undertake study tours and exchange visits, especially between Tanzania and other countries; To build a network jointly with other NGOs, government departments and agencies that have similar activities with that of the WLAC; To lobby for change of discriminatory policies and laws, advocate for equitable change in gender relations in Tanzania and sensitize the general public on women’s and children’s human rights; To encourage and support poor women in establishing self-help groups and to offer legal education on how to organize business under the Law of Tanzania; To prepare and publish different reading materials related to women and children’s rights; To prepare radio programmes and to liaise with electronics and print media on issues related to women’s and children’s rights for purposes of offering gender and legal education; To research on laws affecting women and children with the aim of using the findings as a basis for lobbying and advocating for change. Legal Aid Services

Many of the population cannot afford legal services, and women are particularly disadvantaged by their higher rates of poverty than men. In response to this situation, the Center’s volunteers offer free legal advice, counselling, reconciliation, legal drafting and court representation to women and children in need.

The WLAC’S head office is in Dar es Salaam, but its outreach caters for women from both urban and rural areas. The Centre has established sixteen (16) Paralegal Units for grassroots awareness creation. Paralegal members provide advice to needy women and children . They also escort them to court for moral support. Other matters are resolved out of court through reconciliation sessions.

The Women’s Legal Aid Centre has been attending hundreds of clients with legal problems and human rights violations. For instance in 1998 attended 3412 clients. In 2000 attended 3266 clients. In 2001 attended 4180 clients. Problems mostly received range from matrimonial, violence, child custody and maintenance, probate and inheritance matters, civil cases, land problems and labour issues.

The Centre conducts a legal aid clinic to women and children every Thursday from 1:00 p.m. to 6:00 p.m.  Additionally, there are two full-time legal officers who attend to non-clinic days clients. The Centre offers reconciliation services on Wednesdays from 3:00 p.m.

Tuesday from 4:00 p.m. to 6:00 p.m. consultative meetings with volunteers are held.

Legal Aid is offered to poor women and children free of charge. It is done through:

Counseling; Court representation; Legal advice and drafting of legal documents; Reconcilliation or mediation Further, every Thursday volunteers facilitate Legal Education to clients.

Outreach Programme

WLAC aims at raising legal and human rights awareness among the public and in particular women and children through legal literacy and human right education. Outreach activities include a Radio Programme, legal and human rights education programme and Paralegal Units.

Legal Education

The Centre has been organizing legal education workshops, particularly those based on women and children’s rights.

This education campaign covered various groups of people such as people with disabilities, youth, widows and religious institutions. The Centre has facilitated an establishment of Tanzania Widows Association (UWAJATA).

Paralegal Units

The WLAC’s outreach caters for women from both urban and rural areas. . The Centre has established sixteen (16) Paralegal Units for grassroots awareness creation in the following areas:

Tanga, Morogoro, Kilimanjaro, Arusha, Katesh, Kigoma, Mbeya, Mwanza, Shinyanga, Dodoma, Mtwara, Iringa, Lindi, Coast, Ruvuma and Kiteto – Arusha.

Paralegal Units in Morogoro, Mwanza, Mbeya, Katesh , Shinyanga and Ruvuma have conducted outreach programmes and opened branches at village level in their respective areas.

Mwangaza Radio Programme

The half-an hour radio programme “Mwangaza” is aired through Radio Tanzania Dar es Salaam (RTD), the radio station that covers almost all parts of the country. It is aired every Snday from 1:30 p.m. – 2:00 p.m. Themes and production of the programmes cover issues relating to cases, which the WLAC receives at its legal aid clinic, public interest, social development and burning nationwide issues.

Advocacy & International Monitoring

Networking and Advocacy

The WLAC places high emphasis on the value of networking because networking keeps both the organization and staff informed on new developments in the field of Legal, Human Rights and Social Development. Through networking the WLAC is able to share skills, information and competencies with other organizations in a multi-disciplinary environment. Through networking and coalition building, WLAC members participates actively in the local, national and international activities i.e., workshops and conferences.

Some of WLAC networks include Empowering Widows in Development (EWD) based in London. Monica Mhoja the Executive Director is the E. Africa coordinator; Women in Law and Development in Africa (WiLDAF) Tanzania Chapter . (WLAC is preparing a draft bill on inheritance “NGO Perspective” on behalf of WiLDAF.

International Monitoring

The Centre facilitated an establishment of the TASK FORCE on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The Centre is hosting the Task Force, which prepared the “NGO Shadow Report on CEDAW” and submitted to the UN Committee in June 1998 and other stakeholders in Tanzania. The Centre has also prepared a Training Manual on CEDAW.

In 1998, WLAC was appointed to coordinate and monitor the implementation of and the Copenhagen Declaration of 1995 – under Social Watch Program on behalf of Southern African Human Rights Non-Government Organizations Network ( SAHRINGON) Tanzania Chapter. The WLAC has carried out various activities, including fact-finding research intended to analyse and give background information on social development in Tanzania. Also the Centre in cooperation with some SAHRINGON (T) members produced a Shadow Report. Both documents were presented in Geneva at Copenhagen +5 in June 2000 and to other stakeholders in Tanzania.

Main Objectives of the Social Watch program and CEDAW

To monitor and evaluate the government’s fulfillment of the Copenhagen Declaration. To monitor and evaluate government’s fulfillment of the CEDAW. To raise awareness and sensitization on Government responsibilities on CEDAW & Copenhagen Declaration.

PARTNERSHIP

Since 1998 the Centre is collaborating with the Centre for Reproductive Law and Policy (CRLP) based in New York in issues of reproductive rights. WLAC in collaboration with CRLP prepared a Shadow Report on reproductive rights and submitted it to the Human Rights Committee in July 1998.

CRLP in collaboration with partners in Anglophone Africa, WLAC as a partner in Tanzania produces a book titled “Women of World: Laws and Policies Affecting Their Reproductive Lives Anglophone Africa.” WLAC contributed on the chapter dealing with Tanzania. The progress Report 2001 was launched in Ghana June 2002.

Since November 2001 WLAC is collaborating with the Georgetown's Law Centre International Women's Human Rights Clinic on the project namely “ Advancing Women's Rights Globally. "The project goal is to improve the human rights of women in Tanzania. WLAC is researching on inheritance and violence against women issues as well as advocating for law reform & strategic litigation on the same issues.

Since January 2001 WLAC is also collaborating with Empowering Widows in Development [EWD] based in London in issues of widows rights. The Executive Director attended the First International Conference on Widows Rights and agreed to be the EWD coordinator in East Africa. WLAC promotes widows rights and facilitated an establishment of Widows Association in Tanzania [UWAJATA].

WLAC Supporters

The Royal Norwegian Embassy through the NORAD: supports the Legal Aid Clinic and some outreach programmes Netherlands Organization for International Development Cooperation (NOVIB): supports the Social Watch programme. The Ford Foundation: Supports the Mwangaza Radio Programme. Friedrick Erbert Stiftung (FES): Supports some Paralegal Units; some WLAC publication & outreach programmes. German Development Services (GDS): Supports some Paralegal Units. Women African Development Fund of Ghana: Supports some Paralegal Units. WLAC Members: Supports the Legal Aid Clinic as part time volunteers. Embassy of Finland: Supports some Paralegal Units on Training of Trainers and publication of WLAC documents. Contact: Women’s Legal Aid Centre, SUWATA Building, Kariakoo, Lindi Street, Adjacent/ Near Uhuru Girls’ Primary School, P. O. Box 79212, Dar es Salaam, Tanzania.

Tel: 255-22-2183769 E-mail: wlac@intafrica.com

Tanganyika Law Society (TLS)

See http://www1.umn.edu/humanrts/africa/tanzania.htm

University of Dar es Salaam Legal Aid Center (LAC)

See http://www1.umn.edu/humanrts/africa/tanzania.htm

Legal Aid Committee (University of Dar es Salaam)

History

The Legal Aid Committee is a Committee of the Faculty of Law of the University of Dar es Salaam. Originally established in 1967, it was inactive for some time before being revived in 1978.

Structure

The Committee is run by a Chairman and a committee of seven, all staff of the Faculty of Law. The Committee has no independent office or staff. Members of the committee are elected annually from the Law Faculty academic staff.

Programme

In recent times, the Committee has again been inactive. In its active days the Committee focused on legal counseling, legal literacy and litigation. It sponsored weekly clinics, staffed by two members of the Committee, to provide legal advice to poor clients. These clinics functioned in two centres--Magomeni and Temeke.

The legal literacy method involved publication of enlightenment booklets and the organization of seminars in villages and legal aid camps. Education of the people on issues relating to human rights and land rights, inheritance, and so on, was provided. The Committee undertook litigation on such matters as land rights, labour, landlord and tenant, and matrimonial causes (focusing on conciliation).

Zanzibar Legal Services Centre

See http://www1.umn.edu/humanrts/africa/tanzania.htm

History

The Zanzibar Legal Services Centre was established in Zanzibar in February 1992 as a non-governmental organisation whose aim is to provide legal services to the poor, women, children, the disabled and other disadvantaged sections of the society. The Centre also seeks to provide education and consciousness raising on peoples' basic rights and responsibilities.

Structure

The Centre is located in Zanzibar, Tanzania. Its structure consists of a three-member Board of Trustees, chaired by Haroub Othman, lawyer and founder of the Centre. The Centre's Secretariat is run by a staff headed by the Director, Hassan Mze, a lawyer who works on a part-time basis. The Centre also has associate members who cooperate with the Centre in its activities.

Programme

In mid-December, the Centre organised a paralegal training programme in Zanzibar, its very first activity. Future activities planned by the Centre include legal literacy campaigns, legal aid, paralegal training, a newsletter, conferences, workshops and seminars.

Southern Human Rights Non Governmental Organisation (SAHRiNGON)

A brief introduction to SAHRINGON. The Southern Africa Human Rights NGOs Network (SAHRINGON) was established in February 1997 at the Regional Human Rights ... www.humanrightstz.org/sahringon/index.html

HakiElimu

www.hakielimu.org

History

Structure

Programme

HakiElimu’s vision is that every child in Tanzania is able to enjoy her or his right to basic education in schools that respect dignity, foster creativity and critical learning, and advance human rights and democracy. HakiElimu seeks to achieve this vision by facilitating meaningful public participation in education governance.

HakiElimu is a non-profit making organization limited by guarantee and not having a share capital registered under the Companies Ordinance (Chapter 212 of the Laws of Tanzania).

HakiElimu was established in early 2001 by a group of 13 Tanzanian founder members. The group consists of some of the leading members of the civil society, academic, research, media, human rights and critical gender community in Tanzania. Collectively, the group represents over 200 years of experience in analysis, program development, activism and management, including specialization in education. Six of the thirteen members are women

Governance and Management Structure

The HakiElimu members are the ultimate 'legal owners' of the organization and are responsible for providing overall leadership and oversight, including through the election of the Board of Directors and appointment of independent auditors. The Board of Directors is presently constituted of five persons, including the executive director who serves in an ex-officio capacity. The Board is responsible for the governance of HakiElimu, including setting overall policies and financial/operational guidelines, supervision of program implementation, and appointment of the senior management team. Board directors normally serve for a renewable term of two years. Currently three of the five board members, including the Chairperson, are women.

All staff are based in Dar es Salaam, except the community facilitators who are based in the Community Governance program districts.

The HakiElimu mission affirms the values of democratic governance, human rights, gender equity and meaningful public participation in decision-making. Consistent with our beliefs and ethics, HakiElimu is also committed to cultivating an explicit culture of openness, mutual respect, critical reflection and learning within the organization. We strive to practice these values in our programs, in relations with partners and affiliates and in internal processes. Where possible HakiElimu attempts to reach decisions through a process of consensus that encourages voicing of dissent and diverse viewpoints.

Organizational Culture

Our method of operation is open, inclusive, informal, experimental and creative at the same time as we work towards achieving a clear sense of focus, purpose, strategy and action. The question of impact - what difference do we make - will be stressed in all its aspects: relevance, scale, quality and sustainability.

The Forum for African Women Educationalists (FAWE) It was created in 1992 as a response to the slow pace of implementation of Education for all goals in sub-Saharan Africa. www.fawe.org

Tanzania Media Women Association (TAMWA)

See http://www1.umn.edu/humanrts/africa/tanzania.htm

A media NGO working to empower women journalists in Tanzania.

www.tamwa.or.tz

History

Structure

Programme

The Lawyers' Environmental Action Team (LEAT) Is the first public interest environmental law organization in Tanzania. It was established in 1994 and formally registered in 1995 under the Societies Ordinance. Its mission is to ensure sound natural resource management and environmental protection in Tanzania.

            www.leat.or.tz

History

Structure

Programme

The Tanzania Gender Networking Programme (TGNP) Established in 1993, is a Tanzanian non governmental organization (NGO) working in the civil society sector, focusing on the practical promotion and application of gender equality and equity objectives through policy advocacy and mainstreaming of gender and pro-poor perspectives at all levels in the Tanzanian society, including the public and governmental sectors. www.tgnp.org

The Land Rights Research & Resources Institute (HakiArdhi)

History

Structure

Programme

It was founded in 1994 and registered as a non-governmental not-for-profit company limited. www.hakiardhi.org

The Economic and Social Research Foundation (ESRF)

http://www.esrftz.org/tell.asp

History

History

Structure

Programme

The Economic and Social Research Foundation was established in 1994 as an independent, not-for-profit institution for research and policy analysis.

The formation of ESRF was based on the assumption that there was need and demand for an improved understanding of policy options and development management issues, and that the capacity for this was lacking in the Tanzania civil service.

ESRF addressed this gap by putting into place qualified professional staff, modest resources and a favourable research environment for the analysis and discussion of economic and social policy.

The primary objectives of the Foundation are to strengthen capabilities in policy analysis and development management and to enhance the understanding of policy options in the government, the public sector, civil society, and the donor community and the growing private sector.

Research on Poverty Alleviation, REPOA

http://www.repoa.or.tz/

History

Structure

Programme

undertakes and facilitates research, conducts and coordinates training, and promotes dialogue and development of policy for pro-poor growth and poverty reduction

World Vision-Tanzania

Women Development and the Law…WLDAF

References

Secondary Source of Information These include textbooks such as:

General

Social Facts and Fabrication “Customary” Law on Kilimanjaro 1880-1980 by Sally Falk Moore, 1986 Intellectuals at the Hill: Essays and Talks by Issa G. Shivji, Dar Es Salaam University Press, 1993.

Constitutional and Administrative law

The Legal Foundations of the Union in Tanzania’s Union and Zanzibar Constitutions. By Issa G. Shivji Dar Es Salaam University Press, 1990 The Law, State and The Working class in Tanzania: C. 1920-1964 by Issa G. Shivji Tanzania’s Eighth Amendment and Its Implications by Harrison George Mwakyembe 1995 Constitutional and Legal System of Tanzania: A Civics Sourcebook by Issa G. Shivji, Hamud I. Majamba and Robert V. Makaramba, 2004. Utawala wa Kikatiba na Demokrasia Nchini Tanzania by Mtaki C.K and Baharoon S.A

Contract, Commercial and Company Law

A Sourcebook of Income Tax Law in Tanzania by Luoga F. D. A. Makinyika, Dar es Salaam Printers, April 2000 Non- Market Controls and the Accountability of Public Enterprises in Tanzania by Pascal Mihyo

Criminal Law and Procedure

Penal Policy in Tanzania by Shaidi L.P Law Relating to Bail in Tanzania by J. M Itemba, Dar Es Salaam University Press, 1991

Civil law and Procedure

Civil Procedure in Tanzania: A Student’s Manual by B.D. Chipeta, 2002

Family Law, Equity and Succession

The Legal Status of Women and Poverty in Tanzania by Magdalena K. Rwebangira

Labour Law

Manual for Transfer of Rights of Occupancy by Zebron Steven Gondwe, 2001

Land Law

Customary Land Law of Tanzania, James R.W and Fimbo G.M (1970) EA literature Bureau, Nairobi. Essays in Land Law Tanzania by G.M Fimbo

Human Rights

Human Rights in Tanzania by Chris Maina Peter. Human Rights in Africa: A Comparative Study of The African Human and People’s Rights Charter and the New Tanzania’s Bill of Rights by Chris Maina Peter. Fundamental Rights and Freedoms in Tanzania by Chris Maina Peter and Ibrahim Hamisi Juma, 1998 Hadzabe of Tanzania Land and Human Rights by Madsen.

Insurance Law

Insurance Law in East Africa by Byamugisha.

Tort

Tanzania Cases and Materials on the Law of Torts by Tingiru Huaraka.

Legal Profession

The Legal Profession: The Legal Profession in Tanzania The Law and Practice. By Fauz Twaib

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[edit] ALL CONFESSIONS ARE ADMISSIONS BUT THE REVERSE IS NOT THE SAME- BY Mushobozi, Julius(LL.B 2) Mzumbe University

LAW OF EVIDENCE QUESTIONS AND ANSWERS

QUESTION ONE.

a) All confessions are admissions but the reverse is not the case. Discuss.

b) Juma is charged with murder. During the investigations, he makes the following statement to the police officer, “it is true that the knife believed to have been used in killing the deceased is mine and it has all along been in my possessions.” Consider the admissibility or otherwise of that statement during the trial.

TABLE OF CONTENTS.

Part A of the question.

1.0. INTRODUCTION 1.1 The meaning of admission. 1.2 The meaning of confession. 2.0. MAIN BODY.

            2.1. Discussion on whether all confessions are admissions and the reverse is not the case.

3.0 Conclusion.

Part B of the question.

.

1.0. Summary of Facts. 2.0. Framing of Issues. • Whether the statement is confession or otherwise. • Whether the statement can be admissible as evidence. 3.0. REMARKS.

Part A of the question.

1.0 INTRODUCTION.

Admissions as defined under the Evidence Act is a statement oral or documentary, which suggest any inference as to a fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances here in after mentioned. The definition suggest that an admission should be a statement which is oral or documentary and that it must be made by a person who has interest in the suit but it should normally be made against the very person making it.

The term also has been defined as statements, oral, written, or inferred from conduct, made by or on behalf of a party to a suit, and admissible in evidence, if relevant, as against his interest.

According to H. C. Black the term admission is confessions, concessions or voluntary acknowledgements made by a party of the existence of certain facts. More accurately regarded they are, statements where a party, or some one identified with him in legal interest, of the existence of the facts which is relevant to the cause of his adversary

The same author proceeded by saying that admission is a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. An admission is not limited to words, but may also include the demeanour, conduct and acts of the person charged with a crime. By this definition it therefore follows that while the Evidence Act confines its meaning on the statements oral or written this definition is in explicit as it does not confine itself on the words.

For Y V Chandrachund and V R Manohar ; the term admission is defined as a statement of facts which waives or dispenses with the production of evidence by conceding that the fact asserted by the opponent is truth. Admissions are admitted because the evidence of the party to a proceeding, in respect to the matter in dispute, whether by acts, speech, or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue .

It follows therefore that while the term is defined by different authors it is evident that their meanings or views are different from the meaning given in the Evidence Act but for the purpose of the understanding admission in Tanzania the meaning as enshrined in the Evidence Act is the appropriate one.

The term confession is also defined by the Evidence Act under section 3 (1) to mean:

words or conduct or combination of both words and conduct, from which, whether taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed, or a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence, or a statement containing an admission of all the ingredients of the offence with which its maker is charged, or a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with other facts proved, an inference may be reasonably be drawn that the person making the statement has committed an offence.

In the case of R V KIFUNGU NSURUPIA it was stated that the term confession connotes an unequivocal admission of having committed an act which in law amounts to a crime. In the case of R V BAMPAMIYKI the court stated that for the statement to amount to a confession it must contain all the ingredients of the crime with which the accused person is charged so that the accused could be properly convicted on his own plea.

Stephens defines the term confession, as an admission made by a person charged with a crime stating on suggesting the inference that he committed that crime. According to Phipson a confession is a type of admission in relation to crime, i.e. an admission from which inference may be drawn that the accused committed the crime charged.

In the Blacks Law Dictionary confession is a voluntary statement made by a person charged with the commission of a crime or misdemeanour, communicated to another person, where he acknowledges himself to be guilty of the offence charged, and he discloses the circumstances of the act or the share and participation which he had in it.

MAIN BODY

The general rule is that both in civil and criminal cases any relevant statement made by a party is evidence against himself. Such statements are under the evidence law are termed as admissions and confessions respectively. It our concern in the given question to show as to whether it is true that the all confessions are admissions but the reverse is not true.

Every confession must be an admission, but every admission in a criminal case need not be a confession. A statement may be irrelevant as a confession but it may be relevant as an admission. A statement is not admissible as a confession, but the same statement may yet for other purposes be admissible as an admission as against the person who made it. Hence it is well known as all confessions are admissions but all admissions are not confessions. Further discussion will be observed on the differences between the two aspects (admission and confession).

The meaning of the word confession as given by Phipson clearly suggest that all confessions are admissions as he define the term confession as an admission made by a person charged with a crime.

In most cases, confession is in itself an admission because the accused person admits the case in whole. Confessions by themselves contain the admissions with which the person charged admits.

A distinction here is that; an admission of a fact from which guilty is directly deducible or which within and of itself impose guilt, which is a confession, and admission of a particular act or acts or circumstances which may or may not involve guilty and which is dependent for such result upon other facts or circumstances to be established, which is not a confession but merely an admission.

In addition, a confession always goes against the person making it while an admission may be used in favour of a person making it. Thus it can be said that generally the rule governing confession is rigid and has no exceptions. When a person makes a statement which qualifies to be a confession under the Evidence Act such will be used against the maker and never in his favour and at this instance it is an admission.

However the general rule in regard to admission is that admissions are to be used against the maker. The rule though has some exception which allows admissions made in the favour of the maker admissible as admission . From this it can be deducted that all confessions are admissions in the sense that they are made against the interest of the maker but not all admissions are confessions due to the fact that there some admissions which are made in favour of the interest of the maker.

Another aspect to be reflected here is that, where a conviction can be based on statement alone, it is a confession. This was reiterated by Sir Clement de Lestang, VP in the case of ANYANGU AND OTHERS V. R ; “A statement is not a confession unless it is sufficient by it self to justify the conviction of the person making it of the offence with which he is tried.”

Hence a confession if deliberately and voluntarily made may be accepted as conclusive in matters confessed; this was similarly stated in the case of QUEEN-EXPRESS V. SANGAPPA whereas in admission some supplementary evidence is needed to authorise conviction. Thus an admission is not a conclusive proof of the matters admitted, but may operate as estoppel.

Moreover no statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative offence to be confessed. Moreover a confession must either admit in terms the offence, or at any rate substantial all the facts which constitute the offence. An admission of a gravely incriminating fact even a conclusively incriminating fact is not of it self a confession.

A confession is a statement made by an accused person which is sought to be proved against him in a criminal proceeding to establish the commission of an offence by him while an admission usually relate to a civil transaction yet they may be used in criminal proceedings, this indicate that admissions covers both criminal and civil maters but confession is only to be found in criminal matters. Due to the veracity that the confessions are found only in criminal proceedings and admissions are found in both criminal and civil matters it follows as the day follows night that all confessions will fall in the category of admissions found in criminal matters.

However confession is not taken as admission due to the fact that though confession is taken against the person making it in other instances the confession of one or two or more accused persons jointly tried for the same offence can be taken into consideration against co-accused as stipulated under section 33 of the Evidence Act. While admission by one of several defendant in a suit is no evidence against another defendant . This shows that not in all instances confessions are admissions basing on the premise that admissions can only be used against the maker which is contrary to the rules governing confessions which allows confession to be applied to the co accused.

Phipson explains that admissions by party have always constituted an exception to the hearsay rule, one kind of admission being confession by an accused person, that is, an admission by him about the facts charged against him.

The case of R.V. MKARETH illustrates the situation supporting that not all admissions are confession. It was stated:

 ‘A statement of a confession must be the one which in the absence of explanation or qualification and any particular circumstances, clearly points to the guilty of an accused person’.

When a person admits allegations, he is actually admitting the commission of such crime and such statements by themselves are highly considered. The contrary is in admissions where as it is provided under section 26 of The Evidence Act that admissions are not conclusive proof to a matter in controversy.

Part B of the question.

DISCUSSION OF THE ISSUES. From the question, Juma is charged with murder. During investigation, he states to the police officer that, “It is true that the knife believed to have been used in killing deceased is mine and it has all along been in my possession.” The issue to be discussed is whether the statement given by Juma is confession or otherwise.

A confession is acknowledgement of fault, wrong doing made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. For a statement to amount into a confession it should have the following qualifications:-

First, it must be freely and voluntarily made by the accused person. From the given scenario we have been told that, Juma made a statement to a police officer and there is no further information as to whether Juma was compelled in any way in making the statement. This can be taken as a presumption that the confession was voluntarily made. In this requirement it is upon the prosecution to prove affirmatively to the satisfaction of the court that it was voluntarily made and not obtained by any improper means.

Another requirement is that, for a statement to be a confession it should be made to authorised person. The Evidence Act stipulates persons who can receive confession as; a police officer as provided under section 27, a Magistrate and Justice of peace as provided under section 28 of the Evidence Act. These are the only persons who can receive confession under the Evidence Act. According to the scenario, Juma made confession to the police officer. This fact suffices the respective requirement of confession.

The other requirement is that, the statement must be made by the accused person. From the question Juma who is charged of the offence is the one who made the statement.

However it should be noted that, for a confession to be admissible a person must either admit in terms the offence or at any rate substantially all facts which constitute the offence, as it was stated in the case of R V. BAMPAMIYKI that; “A statement should be regarded as a confession only when it contains ingredients of the crime with which the accused person is charged, so that the accused person could be properly convicted on his own plea.”

An admission of a gravely incriminating fact is not itself a confession. In SWAMI V. KING EMPEROR  the court held that; 

“No statement that contains self exculpatory matter can amount to a confession; if the exculpatory statement is of some fact, which if true would negative the offence alleged to be confessed. A confession must admit in terms all facts which constitute the offence.

Further the Privy Council stated inter alia that; “An admission of a gravely incriminating fact, even a conclusively incriminating fact is not itself a confession. For example an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession.”

On the same footing in the case of PALVINDAR KAUR V. STATE OF PUNJAB whereby the accused was charged with murder and destruction of evidence for having committing murder of her husband by administering potassium cyanide poison and for causing destruction of her husband dead body. During investigation and trial, she stated;

“My husband fond of hunting as well as photography. Some material for washing photos was purchased and kept in an almirah. My husband developed abdominal trouble. He sent for medicine. I placed that medicine in the same almirah. By mistake my husband took the liquid which was meant for washing the photos. If fell down and died. Due to fear I put his body in a trunk and threw it into a well.”

The Supreme Court held that; the statement of the accused did not amount to confession.

Therefore it can be said that if a statement given by an accused person can lead into conviction of the person without adducing other evidence to corroborate it such is a confession. This was clearly stipulated in the case of R V.MKAREH (supra) that 

“We think that the test is whether statement is such that in the absence of any explanation or qualification and in particular circumstances, it points clearly to the guilty of the maker. thus statement ‘I killed him’ unaccompanied by any exculpatory statements and uttered in relation to a person who has died of a natural cause or to missing funds as the case may be are in our view indicative of guilty and therefore a confession.”

However, this distinction is not taken in some other jurisdictions. In England, all incriminating admissions by an accused person count as confession. For example, in England, there is no difference in this respect between “yes, I killed him” and “yes, I was near the scene of the crime”. In England thus, statements by Juma amounts to confession.

Distinctly, in India, only that portion of information which relates distinctly to the fact discovered can be proved. Thus a statement “I stabbed X with my knife. I threw my knife in the well of my house” in India it will be taken differently. The first part of the statement that is “I stabbed X with my knife” is inadmissible as a confession, while the second part, that “I threw my knife in the well of my house” is admissible as confession. Therefore the statement of the accused “I threw my knife in the well of my house” is only admissible because it leads to the discovery of the knife. The other part of the statement is then inadmissible.

REMARKS: From the given scenario the statement by Juma does not amount to a confession and thus not admissible as evidence due to the fact that the statement does not show that the accused is admitting to have committed the offence and thus not admissible. This is backed up by the reasons given above that for the confession to be admissible it should be an unequivocal admission. The same had been repeated by Sir Clement de Lestang, VP in the case of ANYANGU AND OTHERS V. R (supra) “a statement is not a confession unless it is sufficient by it self to justify the conviction of the person making it of the offence with which he is tried.”

This statement drives us to the conclusion that the mere fact that the accused stated to have possessed the knife which ultimately killed the deceased and was in the possession of the said knife is not the sufficient ground to incriminate the accused.

The statement in the scenario by the accused can be taken as the evidence for the case of admissibility where it is corroborated, as an admission. The statement that does not amount to a confession is only evidence against the maker of it, thus an admission.

ALTERNATIVE ANSWER

TABLE OF CONTENTS PART (a) 1.0: INTRODUCTION 1.1: Meaning of the terms Confession and Admission

2.0: MAIN BODY 2.1: Distinction between Confession and Admission 2.2: Similarities between Confession and Admission 2.3: How all Confession and Admission

3.0: CONCLUSION

PART (b)

1.0: Summary of material facts 1.1: Framing of issues 1.2: Discussion of issues 1.3: Conclusion PART (a)

1.0: INTRODUCTION The general rule in both civil and criminal cases is that any relevant statement made by a party is evidence against himself . In civil cases, for instance, statements made out of court by a party to the proceedings or by a person connected with him by any of the relationships are admissible in evidence against but not usually in favour of such a party. It is from this remark where we draw our need for the general understanding of the concept of admissions and confessions.

1.1: Understanding of the term confession and admission. The term confession has been defined by various jurists and even some judicial decisions have taken their consideration in defining this term. Ratanlal R . defines this term to mean; “An admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”

Stephen defines this term confession to mean; “An admission made by a person charged with a crime stating or suggesting the inference that he committed that crime”

From the above two meanings of the term confession it can be drawn an observation that the term confession has its basis on criminal matters other than in civil matters and that it can be stating or even drawing an inference to the commission of a crime.

Under The Evidence Act (hereinafter to be referred to as Cap 6), the term confession is defined under section 3(1). From the provisions of this subsection it can be seen that confession can be words or conduct, or combination of the two which when treated alone or in conjunction with other facts proved, can draw an inference that through such words or such conduct then the particular person committed an offence. It also include a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence.

As per Cap 6, confession also mean a statement containing an admission of all the ingredients of the offence with which its maker is charged or that is a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person making the statement has committed an offence.

Judicial decisions in that respect have also tried to either adopt such position of the law or sometime giving much more explanatory meanings of the term confession. In SHANKAR V STATE OF T.N it was stated that a confession means; “A form of admission consisting in express words by the accused person of the truth of the guilty fact charged or some essential part of it. A statement that contains a self exculpatory matter cannot amount to a confession. The confession should be a voluntary one, that is to say, not caused by inducement, threat or promise. Whether a confession is voluntary or not is essentially a question of fact.”

In the case of MATHEI FIDOLINE HAULE V R , the Court of Appeal of Tanzania stated that; “A confession within the context of criminal law is one which admits in terms the offence charged. It is one which admits all the essential elements or ingredients of the offence. An admission of one or only some of the ingredients of the offence is not sufficient”

Therefore from the above definitions it can be said that there are certain ingredients which must be satisfied for words or conduct to amount to a confession. Such ingredients include that it should be freely and voluntary, made to a police officer or magistrates or justice of peace . It is also important to note that the confession also must be taken as a whole or in part.

The law provides that such statement must be free from threats, promise or other prejudice held out by a police officer to whom it was made or by any member of the police force or by any other person in authority. However the test is objective in the fact that not every inducement has the effect of making confession involuntary.

This position of the law was observed in the case of JOSEPHAT SOMISHA MAZIKU V R where the High Court of Tanzania stated that; “…while it is trite law, that the condition precedent for the admissibility of the confession, is its voluntariness, the said confession is not automatically inadmissible, simply because threats, or promise; it is inadmissible only if the inducement or threat, was of such a nature as likely an untrue admission of guilt…”

Classification of confessions can be grouped into two: that is judicial and extra-judicial confessions. It is judicial when made before a magistrate in the course of legal proceeding and it is extra judicial when the accused person makes a statement confessing the crime he is being charged of elsewhere than in a court of law.

On the other hand the term Admission is defined under section 19 of Cap 6 as to mean; “A statement oral or documentary, which suggests any inference as to a fact in issue or relevant fact and which is made by any of the persons and in the circumstances hereinafter mentioned”

Admission has to contain the following ingredients that it has to be a statement oral or written, which suggests the inference in relation to a fact in issue or relevant fact and may be made by any of the following persons; a party to a proceeding or suit, an agent authorized by an agent or a party to a suit, persons having proprietary or pecuniary interests in the subject matter at issue, persons who are predecessors on interests or title, persons whose positions must be proved as against party to suit and persons expressly referred to by a party to suit . It has also to have been made in the circumstances prescribed in Cap 6 .

In the case of R V MCGREGOR it was stated that the weight of admission increases with the knowledge and deliberation of the speaker, or solemnity of the occasion on which it was made.

2.0: MAIN BODY This question requires among other things as to the discussion in relation to the fact that ‘all confessions are admissions but the reverse is not the case’. The basis of this statement draw us to the perception that the question needs the clear distinction between the two concepts and at the same time show where the two seem to merge to each other. In that sense, we are going to discuss the said statement in that basis.

2.1: Distinction between the two terms. Phipson and Elliot say that there is a distinction between an admission of a fact from which guilt is directly deducible or which within and of itself imports guilt, which is a confession, and admission of a particular act or acts or circumstances which may or may not involve guilt and which is dependent for such result upon other facts or circumstances to be established, which is not a confession but merely and admission. This was a position in the case of STATE V PORTER . Other differences are the difference as to the nature of the proceedings. That is, Admissions are generally made in both criminal and civil cases while Confessions are made only with respect to the criminal cases. In criminal cases admissions are applied in those matters which have no criminal intent. Confession is part of admissions and therefore an admission of guilty. This view was made in the case of R V RILEY where the court stated that a plea of guilty amounts to an admission of the offence charged, that is, the acts charged and the application of the law thereto, but not the truth of the depositions.

Confession always goes against the person against the person making it while admission may in certain circumstances be proved on behalf of the person making it. Confession can be taken as a whole or part the offence charged while admission has to be taken as a whole not part. This, in as far as admissions are concerned, was held in the case of MOHAMMAD KOYA V MUTHUBOYA where it was stated that; “It is settled law that an admission of any party has to be read in its entirety and no statement out of context can constitute admission of any fact.”

Confession must be in affirmative in both ingredients of the offence which is actus reus and mens rea while admission may lack one of this ingredients which may lead to different interpretation. It can be illustrated as follows; Where A upon separating B and C who were fighting in a train compartment, A pushed B who dropped in the joint which separated the compartment and died instantly. Before the, court A admits that he caused the death of B in due process of separating him from C. That admission cannot amount to a confession of an offence of murder since there is no proof as to the mens rea.

In MATHEI FIDOLINE HAULE V Rsupra the appellant assaulted his mother who he believed to be a witch. In convicting the appellant the trial Judge relied on two pieces of evidence. The first was a statement the appellant made to his village chairperson that he had assaulted his mother. The second was the cautioned statement alleged to have been made by the appellant before a police officer who at the time of the trial was reported dead. The trial Judge treated both pieces of evidence as confession.

The Court of Appeal of Tanzania held that the mere admission by the appellant that he had assaulted his mother could not really be taken to amount to a confession to the offence of murder with all its essential ingredients. This is to say that statement fell short of being admissible as a confession due to lack of fulfilling the other ingredient of an offence.

2.2: Similarities between the two concepts. Both admissions and confessions have some features which appear in the two. These include the fact that both can be made as judicial or extra judicial, can be made by words or conduct or combination of both, as a general rule the burden of proof in both lies on prosecution with respect to criminal matters and that in both there is a conditional precedent that they should be made voluntarily.

2.3: Whether all Confessions are admissions and that the reverse is not true. From the above discussion of the distinction and similarities of admissions and confessions this paper reaches a stage of showing as to how all confessions are admissions and that the reverse is not the case.

In the case of QUEEN-EMPRESS V BABU LAL it was held that the statement that a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime, is a genus. That is, admission is the species and confession is the sub-species. This implies that a confession is a statement made by an accused admitting his guilt

Sarkar says that confession might be inadmissible, which yet for other purposes would be admissible as an admission. In other words all admissions are not confessions but all confessions are admissions. And that only voluntary and direct acknowledgement of guilt is a confession. But when a confession falls short of actual admission of guilt, and is not taken down according to law, it may nevertheless be used as evidence against the person who made it, as an admission

The fact that admissions are applied in both criminal and civil proceedings justifies the truth that admissions are wider than confessions since the latter are only in criminal proceedings and therefore falling within admissions in that sense. This can be drawn from the provisions of Cap 6 which defines the two terms where admissions are not confined to criminal or civil matters only while confessions are confined in criminal matters .

Also the fact that statements which does not amount to confessions can be treated as admissions draw the observation that confessions are within admissions. This is on the reason that admissions are mainly concerned with fact in issue or any relevant fact. Hence a statement which does not amount to a confession but which is relevant to the fact in issue or any other relevant fact can be admitted as admission is the light of Section 19 of Cap 6.

3.0: CONCLUSION From the above discussion, and to that extent, we are of the views that it is true that all confessions are admissions and that the reverse is not true. This statement however has to be treated inline with such distinction that fall within the two concepts in the law of evidence

PART (b)

1.0: Summary of the material facts From the stated scenario the facts of the case can be summarized as follows that Juma is charged with murder and that during investigations he made a statement to a police officer that; “It is true that the knife believed to have been used in killing the deceased is mine and it has all along been in my possession” It is required to consider the admissibility or otherwise of that statement during the trial.

1.1: Framing of the issues Since the first part of this question has dealt to a great extent with the concept of confession and that of admission, it follows therefore that we go direct to the framing of the issues with respect to this part of the question. The issues here are whether the statement is an admission or confession and whether the said statement is admissible.

1.2: Discussion of the issue For a statement to amount to a confession it has to satisfy various tests. These include that the statement must be made by the accused person, freely and voluntarily and before a police officer, magistrate and justice of peace . And it has to be noted that a confession must relate to the offence in question. If the purported admission makes out no offence, the provision relating to confession would not come into play. This was the position in the case of GANESH TRADERS V DISTRICT COLLECTOR, KARIMNAGAR

It is important that a confession has to be addressed to some person. This is the position in Cap 6 where, as we pointed out earlier, it is provided under the provisions of Sections 27 and 28. In the case of PANDRA KHADIA V STATE OF ORISSA it was pointed out that a confessional statement must be addressed to some person and that, therefore, the accused going round the village and shouting that he had killed his wife did not amount to confession. In the question at hand Juma’s statement is said to have been made before the police officer. However the issue still remain there as to whether that is sufficient to amount to a confession.

Lord Atkin in PAKALA NARAIN SWAMI V EMPEROR stated that; “A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a confession , for example, an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession”.(Emphasis is ours)

The position in Tanzania is well illustrated in the case of MATHEI FIDOLINE HAULE V Rsupra where the Court of Appeal of Tanzania held that the mere admission by the appellant that he had assaulted his mother leading to her death could not really be taken to amount to a confession to the offence of murder with all its essential ingredients.

The fact that Juma is the owner of the said knife and all such facts that are connected with that knife does not by itself establish the guiltiness of Juma as to the alleged offence of murder since mens rea, and that is malice aforethought has to be proved so as to amount to a confession. Though the statement of Juma can draw a suspicion that Juma might be the killer of the deceased, yet that statement does not talk anything on the other element of the offence.

In the case of ALLY FUNDI V R the High Court of Tanzania stated that; “…a mere opportunity to commit an offence cannot be the basis for convicting an accused person. If the law were otherwise, no one in this country would have been safe…suspicion, however grave it may be, cannot be a substitute for proof in a court of justice”

Those observations draw us to a conclusion that the said statement is not a confession. The issue is whether now the statement is an admission. This seems to be undisputable in the light of section 19 of Cap 6. The said section defines the term admission and it provides that a statement whether oral or written which suggests any inference as to a fact in issue or relevant fact made by any person mentioned in the Act under the circumstances provided therein amounts to an admission. Our interest here is on the phrases fact in issue and relevant fact.

Fact in issue is defined under section 3(1) of Cap 6 to mean any fact from which, either by itself or in connection with other fact, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. In the question at hand the main issue is whether Juma murdered the deceased. And on the other hand a fact is said to be relevant where it shows or constitute a motive or preparation for any fact in issue . It is clear that the statement as to the effect that Juma is the owner of the knife that is believed to have been killed the deceased and that at all material time he had in possession of it is essentially a relevant fact in as far as the fact in issue is concerned. This is to say, that statement passes the test of being admission within the meaning of section 19 of Cap 6.

The next issue is whether such statement is admissible. In the case of BISHEN DAS V RAM LABHAYA , an accused, a woman, was charged with murder of a deceased man. Before the court she admitted that she killed the deceased but that was done in her attempt to rescue herself from being raped by the deceased. The court held that the statement did not amount to a confession of an offence of murder but yet it was admissible as an admission of the fact.

This is to say that Juma’s statement is admissible as admission against himself though is not a conclusive evidence against him in the offence for which he is charged with rather it has to be corroborated with other evidence to prove the guiltiness of Juma to the charge of murder. It is a statement which draws an inference as to the commission of an act of killing but there should be other evidence to prove mental element necessary in proving the offence of murder, that is, malice aforethought.

On the other hand, if for instance, the knife which killed the deceased would have not yet been discovered by the police and that the statement uttered by Juma was one which lead to the discovery of that knife as one which killed the deceased, then the position of the law in as far as the admissibility of the said statement would have been that under section 31 of Cap 6. The purpose of the said section is to render admissions admissible material facts or material object or objects discovered due to the information provided by an accused while under police custody .

Juma’s statement, in our views, does not fall within the four corners of section 31 since the knife which Juma is making statement to it was already discovered by the police and the investigation believes that the said knife was used to kill the deceased. Hence the statement is not leading to a discovery of a knife rather it is only relevant as to the owner of it. This implies that admissibility of the said statement is basically with respect to the provisions under section 19 of Cap 6.

1.3: Conclusion It follows from the above discussion that Juma’s statement is admissible as evidence against him and that it will be treated as an admission relevant to the fact in issue which in actual fact as per question, is murder.

[edit] ALL CONFESSIONS ARE ADMISSIONS BUT THE REVERSE IS NOT THE SAME- BY Mushobozi, Julius(LL.B 2) Mzumbe University

LAW OF EVIDENCE QUESTIONS AND ANSWERS

QUESTION ONE.

a) All confessions are admissions but the reverse is not the case. Discuss.

b) Juma is charged with murder. During the investigations, he makes the following statement to the police officer, “it is true that the knife believed to have been used in killing the deceased is mine and it has all along been in my possessions.” Consider the admissibility or otherwise of that statement during the trial.

TABLE OF CONTENTS.

Part A of the question.

1.0. INTRODUCTION 1.1 The meaning of admission. 1.2 The meaning of confession. 2.0. MAIN BODY.

            2.1. Discussion on whether all confessions are admissions and the reverse is not the case.

3.0 Conclusion.

Part B of the question.

.

1.0. Summary of Facts. 2.0. Framing of Issues. • Whether the statement is confession or otherwise. • Whether the statement can be admissible as evidence. 3.0. REMARKS.

Part A of the question.

1.0 INTRODUCTION.

Admissions as defined under the Evidence Act is a statement oral or documentary, which suggest any inference as to a fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances here in after mentioned. The definition suggest that an admission should be a statement which is oral or documentary and that it must be made by a person who has interest in the suit but it should normally be made against the very person making it.

The term also has been defined as statements, oral, written, or inferred from conduct, made by or on behalf of a party to a suit, and admissible in evidence, if relevant, as against his interest.

According to H. C. Black the term admission is confessions, concessions or voluntary acknowledgements made by a party of the existence of certain facts. More accurately regarded they are, statements where a party, or some one identified with him in legal interest, of the existence of the facts which is relevant to the cause of his adversary

The same author proceeded by saying that admission is a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. An admission is not limited to words, but may also include the demeanour, conduct and acts of the person charged with a crime. By this definition it therefore follows that while the Evidence Act confines its meaning on the statements oral or written this definition is in explicit as it does not confine itself on the words.

For Y V Chandrachund and V R Manohar ; the term admission is defined as a statement of facts which waives or dispenses with the production of evidence by conceding that the fact asserted by the opponent is truth. Admissions are admitted because the evidence of the party to a proceeding, in respect to the matter in dispute, whether by acts, speech, or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue .

It follows therefore that while the term is defined by different authors it is evident that their meanings or views are different from the meaning given in the Evidence Act but for the purpose of the understanding admission in Tanzania the meaning as enshrined in the Evidence Act is the appropriate one.

The term confession is also defined by the Evidence Act under section 3 (1) to mean:

words or conduct or combination of both words and conduct, from which, whether taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed, or a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence, or a statement containing an admission of all the ingredients of the offence with which its maker is charged, or a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with other facts proved, an inference may be reasonably be drawn that the person making the statement has committed an offence.

In the case of R V KIFUNGU NSURUPIA it was stated that the term confession connotes an unequivocal admission of having committed an act which in law amounts to a crime. In the case of R V BAMPAMIYKI the court stated that for the statement to amount to a confession it must contain all the ingredients of the crime with which the accused person is charged so that the accused could be properly convicted on his own plea.

Stephens defines the term confession, as an admission made by a person charged with a crime stating on suggesting the inference that he committed that crime. According to Phipson a confession is a type of admission in relation to crime, i.e. an admission from which inference may be drawn that the accused committed the crime charged.

In the Blacks Law Dictionary confession is a voluntary statement made by a person charged with the commission of a crime or misdemeanour, communicated to another person, where he acknowledges himself to be guilty of the offence charged, and he discloses the circumstances of the act or the share and participation which he had in it.

MAIN BODY

The general rule is that both in civil and criminal cases any relevant statement made by a party is evidence against himself. Such statements are under the evidence law are termed as admissions and confessions respectively. It our concern in the given question to show as to whether it is true that the all confessions are admissions but the reverse is not true.

Every confession must be an admission, but every admission in a criminal case need not be a confession. A statement may be irrelevant as a confession but it may be relevant as an admission. A statement is not admissible as a confession, but the same statement may yet for other purposes be admissible as an admission as against the person who made it. Hence it is well known as all confessions are admissions but all admissions are not confessions. Further discussion will be observed on the differences between the two aspects (admission and confession).

The meaning of the word confession as given by Phipson clearly suggest that all confessions are admissions as he define the term confession as an admission made by a person charged with a crime.

In most cases, confession is in itself an admission because the accused person admits the case in whole. Confessions by themselves contain the admissions with which the person charged admits.

A distinction here is that; an admission of a fact from which guilty is directly deducible or which within and of itself impose guilt, which is a confession, and admission of a particular act or acts or circumstances which may or may not involve guilty and which is dependent for such result upon other facts or circumstances to be established, which is not a confession but merely an admission.

In addition, a confession always goes against the person making it while an admission may be used in favour of a person making it. Thus it can be said that generally the rule governing confession is rigid and has no exceptions. When a person makes a statement which qualifies to be a confession under the Evidence Act such will be used against the maker and never in his favour and at this instance it is an admission.

However the general rule in regard to admission is that admissions are to be used against the maker. The rule though has some exception which allows admissions made in the favour of the maker admissible as admission . From this it can be deducted that all confessions are admissions in the sense that they are made against the interest of the maker but not all admissions are confessions due to the fact that there some admissions which are made in favour of the interest of the maker.

Another aspect to be reflected here is that, where a conviction can be based on statement alone, it is a confession. This was reiterated by Sir Clement de Lestang, VP in the case of ANYANGU AND OTHERS V. R ; “A statement is not a confession unless it is sufficient by it self to justify the conviction of the person making it of the offence with which he is tried.”

Hence a confession if deliberately and voluntarily made may be accepted as conclusive in matters confessed; this was similarly stated in the case of QUEEN-EXPRESS V. SANGAPPA whereas in admission some supplementary evidence is needed to authorise conviction. Thus an admission is not a conclusive proof of the matters admitted, but may operate as estoppel.

Moreover no statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative offence to be confessed. Moreover a confession must either admit in terms the offence, or at any rate substantial all the facts which constitute the offence. An admission of a gravely incriminating fact even a conclusively incriminating fact is not of it self a confession.

A confession is a statement made by an accused person which is sought to be proved against him in a criminal proceeding to establish the commission of an offence by him while an admission usually relate to a civil transaction yet they may be used in criminal proceedings, this indicate that admissions covers both criminal and civil maters but confession is only to be found in criminal matters. Due to the veracity that the confessions are found only in criminal proceedings and admissions are found in both criminal and civil matters it follows as the day follows night that all confessions will fall in the category of admissions found in criminal matters.

However confession is not taken as admission due to the fact that though confession is taken against the person making it in other instances the confession of one or two or more accused persons jointly tried for the same offence can be taken into consideration against co-accused as stipulated under section 33 of the Evidence Act. While admission by one of several defendant in a suit is no evidence against another defendant . This shows that not in all instances confessions are admissions basing on the premise that admissions can only be used against the maker which is contrary to the rules governing confessions which allows confession to be applied to the co accused.

Phipson explains that admissions by party have always constituted an exception to the hearsay rule, one kind of admission being confession by an accused person, that is, an admission by him about the facts charged against him.

The case of R.V. MKARETH illustrates the situation supporting that not all admissions are confession. It was stated:

 ‘A statement of a confession must be the one which in the absence of explanation or qualification and any particular circumstances, clearly points to the guilty of an accused person’.

When a person admits allegations, he is actually admitting the commission of such crime and such statements by themselves are highly considered. The contrary is in admissions where as it is provided under section 26 of The Evidence Act that admissions are not conclusive proof to a matter in controversy.

Part B of the question.

DISCUSSION OF THE ISSUES. From the question, Juma is charged with murder. During investigation, he states to the police officer that, “It is true that the knife believed to have been used in killing deceased is mine and it has all along been in my possession.” The issue to be discussed is whether the statement given by Juma is confession or otherwise.

A confession is acknowledgement of fault, wrong doing made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. For a statement to amount into a confession it should have the following qualifications:-

First, it must be freely and voluntarily made by the accused person. From the given scenario we have been told that, Juma made a statement to a police officer and there is no further information as to whether Juma was compelled in any way in making the statement. This can be taken as a presumption that the confession was voluntarily made. In this requirement it is upon the prosecution to prove affirmatively to the satisfaction of the court that it was voluntarily made and not obtained by any improper means.

Another requirement is that, for a statement to be a confession it should be made to authorised person. The Evidence Act stipulates persons who can receive confession as; a police officer as provided under section 27, a Magistrate and Justice of peace as provided under section 28 of the Evidence Act. These are the only persons who can receive confession under the Evidence Act. According to the scenario, Juma made confession to the police officer. This fact suffices the respective requirement of confession.

The other requirement is that, the statement must be made by the accused person. From the question Juma who is charged of the offence is the one who made the statement.

However it should be noted that, for a confession to be admissible a person must either admit in terms the offence or at any rate substantially all facts which constitute the offence, as it was stated in the case of R V. BAMPAMIYKI that; “A statement should be regarded as a confession only when it contains ingredients of the crime with which the accused person is charged, so that the accused person could be properly convicted on his own plea.”

An admission of a gravely incriminating fact is not itself a confession. In SWAMI V. KING EMPEROR  the court held that; 

“No statement that contains self exculpatory matter can amount to a confession; if the exculpatory statement is of some fact, which if true would negative the offence alleged to be confessed. A confession must admit in terms all facts which constitute the offence.

Further the Privy Council stated inter alia that; “An admission of a gravely incriminating fact, even a conclusively incriminating fact is not itself a confession. For example an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession.”

On the same footing in the case of PALVINDAR KAUR V. STATE OF PUNJAB whereby the accused was charged with murder and destruction of evidence for having committing murder of her husband by administering potassium cyanide poison and for causing destruction of her husband dead body. During investigation and trial, she stated;

“My husband fond of hunting as well as photography. Some material for washing photos was purchased and kept in an almirah. My husband developed abdominal trouble. He sent for medicine. I placed that medicine in the same almirah. By mistake my husband took the liquid which was meant for washing the photos. If fell down and died. Due to fear I put his body in a trunk and threw it into a well.”

The Supreme Court held that; the statement of the accused did not amount to confession.

Therefore it can be said that if a statement given by an accused person can lead into conviction of the person without adducing other evidence to corroborate it such is a confession. This was clearly stipulated in the case of R V.MKAREH (supra) that 

“We think that the test is whether statement is such that in the absence of any explanation or qualification and in particular circumstances, it points clearly to the guilty of the maker. thus statement ‘I killed him’ unaccompanied by any exculpatory statements and uttered in relation to a person who has died of a natural cause or to missing funds as the case may be are in our view indicative of guilty and therefore a confession.”

However, this distinction is not taken in some other jurisdictions. In England, all incriminating admissions by an accused person count as confession. For example, in England, there is no difference in this respect between “yes, I killed him” and “yes, I was near the scene of the crime”. In England thus, statements by Juma amounts to confession.

Distinctly, in India, only that portion of information which relates distinctly to the fact discovered can be proved. Thus a statement “I stabbed X with my knife. I threw my knife in the well of my house” in India it will be taken differently. The first part of the statement that is “I stabbed X with my knife” is inadmissible as a confession, while the second part, that “I threw my knife in the well of my house” is admissible as confession. Therefore the statement of the accused “I threw my knife in the well of my house” is only admissible because it leads to the discovery of the knife. The other part of the statement is then inadmissible.

REMARKS: From the given scenario the statement by Juma does not amount to a confession and thus not admissible as evidence due to the fact that the statement does not show that the accused is admitting to have committed the offence and thus not admissible. This is backed up by the reasons given above that for the confession to be admissible it should be an unequivocal admission. The same had been repeated by Sir Clement de Lestang, VP in the case of ANYANGU AND OTHERS V. R (supra) “a statement is not a confession unless it is sufficient by it self to justify the conviction of the person making it of the offence with which he is tried.”

This statement drives us to the conclusion that the mere fact that the accused stated to have possessed the knife which ultimately killed the deceased and was in the possession of the said knife is not the sufficient ground to incriminate the accused.

The statement in the scenario by the accused can be taken as the evidence for the case of admissibility where it is corroborated, as an admission. The statement that does not amount to a confession is only evidence against the maker of it, thus an admission.

ALTERNATIVE ANSWER

TABLE OF CONTENTS PART (a) 1.0: INTRODUCTION 1.1: Meaning of the terms Confession and Admission

2.0: MAIN BODY 2.1: Distinction between Confession and Admission 2.2: Similarities between Confession and Admission 2.3: How all Confession and Admission

3.0: CONCLUSION

PART (b)

1.0: Summary of material facts 1.1: Framing of issues 1.2: Discussion of issues 1.3: Conclusion PART (a)

1.0: INTRODUCTION The general rule in both civil and criminal cases is that any relevant statement made by a party is evidence against himself . In civil cases, for instance, statements made out of court by a party to the proceedings or by a person connected with him by any of the relationships are admissible in evidence against but not usually in favour of such a party. It is from this remark where we draw our need for the general understanding of the concept of admissions and confessions.

1.1: Understanding of the term confession and admission. The term confession has been defined by various jurists and even some judicial decisions have taken their consideration in defining this term. Ratanlal R . defines this term to mean; “An admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”

Stephen defines this term confession to mean; “An admission made by a person charged with a crime stating or suggesting the inference that he committed that crime”

From the above two meanings of the term confession it can be drawn an observation that the term confession has its basis on criminal matters other than in civil matters and that it can be stating or even drawing an inference to the commission of a crime.

Under The Evidence Act (hereinafter to be referred to as Cap 6), the term confession is defined under section 3(1). From the provisions of this subsection it can be seen that confession can be words or conduct, or combination of the two which when treated alone or in conjunction with other facts proved, can draw an inference that through such words or such conduct then the particular person committed an offence. It also include a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence.

As per Cap 6, confession also mean a statement containing an admission of all the ingredients of the offence with which its maker is charged or that is a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person making the statement has committed an offence.

Judicial decisions in that respect have also tried to either adopt such position of the law or sometime giving much more explanatory meanings of the term confession. In SHANKAR V STATE OF T.N it was stated that a confession means; “A form of admission consisting in express words by the accused person of the truth of the guilty fact charged or some essential part of it. A statement that contains a self exculpatory matter cannot amount to a confession. The confession should be a voluntary one, that is to say, not caused by inducement, threat or promise. Whether a confession is voluntary or not is essentially a question of fact.”

In the case of MATHEI FIDOLINE HAULE V R , the Court of Appeal of Tanzania stated that; “A confession within the context of criminal law is one which admits in terms the offence charged. It is one which admits all the essential elements or ingredients of the offence. An admission of one or only some of the ingredients of the offence is not sufficient”

Therefore from the above definitions it can be said that there are certain ingredients which must be satisfied for words or conduct to amount to a confession. Such ingredients include that it should be freely and voluntary, made to a police officer or magistrates or justice of peace . It is also important to note that the confession also must be taken as a whole or in part.

The law provides that such statement must be free from threats, promise or other prejudice held out by a police officer to whom it was made or by any member of the police force or by any other person in authority. However the test is objective in the fact that not every inducement has the effect of making confession involuntary.

This position of the law was observed in the case of JOSEPHAT SOMISHA MAZIKU V R where the High Court of Tanzania stated that; “…while it is trite law, that the condition precedent for the admissibility of the confession, is its voluntariness, the said confession is not automatically inadmissible, simply because threats, or promise; it is inadmissible only if the inducement or threat, was of such a nature as likely an untrue admission of guilt…”

Classification of confessions can be grouped into two: that is judicial and extra-judicial confessions. It is judicial when made before a magistrate in the course of legal proceeding and it is extra judicial when the accused person makes a statement confessing the crime he is being charged of elsewhere than in a court of law.

On the other hand the term Admission is defined under section 19 of Cap 6 as to mean; “A statement oral or documentary, which suggests any inference as to a fact in issue or relevant fact and which is made by any of the persons and in the circumstances hereinafter mentioned”

Admission has to contain the following ingredients that it has to be a statement oral or written, which suggests the inference in relation to a fact in issue or relevant fact and may be made by any of the following persons; a party to a proceeding or suit, an agent authorized by an agent or a party to a suit, persons having proprietary or pecuniary interests in the subject matter at issue, persons who are predecessors on interests or title, persons whose positions must be proved as against party to suit and persons expressly referred to by a party to suit . It has also to have been made in the circumstances prescribed in Cap 6 .

In the case of R V MCGREGOR it was stated that the weight of admission increases with the knowledge and deliberation of the speaker, or solemnity of the occasion on which it was made.

2.0: MAIN BODY This question requires among other things as to the discussion in relation to the fact that ‘all confessions are admissions but the reverse is not the case’. The basis of this statement draw us to the perception that the question needs the clear distinction between the two concepts and at the same time show where the two seem to merge to each other. In that sense, we are going to discuss the said statement in that basis.

2.1: Distinction between the two terms. Phipson and Elliot say that there is a distinction between an admission of a fact from which guilt is directly deducible or which within and of itself imports guilt, which is a confession, and admission of a particular act or acts or circumstances which may or may not involve guilt and which is dependent for such result upon other facts or circumstances to be established, which is not a confession but merely and admission. This was a position in the case of STATE V PORTER . Other differences are the difference as to the nature of the proceedings. That is, Admissions are generally made in both criminal and civil cases while Confessions are made only with respect to the criminal cases. In criminal cases admissions are applied in those matters which have no criminal intent. Confession is part of admissions and therefore an admission of guilty. This view was made in the case of R V RILEY where the court stated that a plea of guilty amounts to an admission of the offence charged, that is, the acts charged and the application of the law thereto, but not the truth of the depositions.

Confession always goes against the person against the person making it while admission may in certain circumstances be proved on behalf of the person making it. Confession can be taken as a whole or part the offence charged while admission has to be taken as a whole not part. This, in as far as admissions are concerned, was held in the case of MOHAMMAD KOYA V MUTHUBOYA where it was stated that; “It is settled law that an admission of any party has to be read in its entirety and no statement out of context can constitute admission of any fact.”

Confession must be in affirmative in both ingredients of the offence which is actus reus and mens rea while admission may lack one of this ingredients which may lead to different interpretation. It can be illustrated as follows; Where A upon separating B and C who were fighting in a train compartment, A pushed B who dropped in the joint which separated the compartment and died instantly. Before the, court A admits that he caused the death of B in due process of separating him from C. That admission cannot amount to a confession of an offence of murder since there is no proof as to the mens rea.

In MATHEI FIDOLINE HAULE V Rsupra the appellant assaulted his mother who he believed to be a witch. In convicting the appellant the trial Judge relied on two pieces of evidence. The first was a statement the appellant made to his village chairperson that he had assaulted his mother. The second was the cautioned statement alleged to have been made by the appellant before a police officer who at the time of the trial was reported dead. The trial Judge treated both pieces of evidence as confession.

The Court of Appeal of Tanzania held that the mere admission by the appellant that he had assaulted his mother could not really be taken to amount to a confession to the offence of murder with all its essential ingredients. This is to say that statement fell short of being admissible as a confession due to lack of fulfilling the other ingredient of an offence.

2.2: Similarities between the two concepts. Both admissions and confessions have some features which appear in the two. These include the fact that both can be made as judicial or extra judicial, can be made by words or conduct or combination of both, as a general rule the burden of proof in both lies on prosecution with respect to criminal matters and that in both there is a conditional precedent that they should be made voluntarily.

2.3: Whether all Confessions are admissions and that the reverse is not true. From the above discussion of the distinction and similarities of admissions and confessions this paper reaches a stage of showing as to how all confessions are admissions and that the reverse is not the case.

In the case of QUEEN-EMPRESS V BABU LAL it was held that the statement that a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime, is a genus. That is, admission is the species and confession is the sub-species. This implies that a confession is a statement made by an accused admitting his guilt

Sarkar says that confession might be inadmissible, which yet for other purposes would be admissible as an admission. In other words all admissions are not confessions but all confessions are admissions. And that only voluntary and direct acknowledgement of guilt is a confession. But when a confession falls short of actual admission of guilt, and is not taken down according to law, it may nevertheless be used as evidence against the person who made it, as an admission

The fact that admissions are applied in both criminal and civil proceedings justifies the truth that admissions are wider than confessions since the latter are only in criminal proceedings and therefore falling within admissions in that sense. This can be drawn from the provisions of Cap 6 which defines the two terms where admissions are not confined to criminal or civil matters only while confessions are confined in criminal matters .

Also the fact that statements which does not amount to confessions can be treated as admissions draw the observation that confessions are within admissions. This is on the reason that admissions are mainly concerned with fact in issue or any relevant fact. Hence a statement which does not amount to a confession but which is relevant to the fact in issue or any other relevant fact can be admitted as admission is the light of Section 19 of Cap 6.

3.0: CONCLUSION From the above discussion, and to that extent, we are of the views that it is true that all confessions are admissions and that the reverse is not true. This statement however has to be treated inline with such distinction that fall within the two concepts in the law of evidence

PART (b)

1.0: Summary of the material facts From the stated scenario the facts of the case can be summarized as follows that Juma is charged with murder and that during investigations he made a statement to a police officer that; “It is true that the knife believed to have been used in killing the deceased is mine and it has all along been in my possession” It is required to consider the admissibility or otherwise of that statement during the trial.

1.1: Framing of the issues Since the first part of this question has dealt to a great extent with the concept of confession and that of admission, it follows therefore that we go direct to the framing of the issues with respect to this part of the question. The issues here are whether the statement is an admission or confession and whether the said statement is admissible.

1.2: Discussion of the issue For a statement to amount to a confession it has to satisfy various tests. These include that the statement must be made by the accused person, freely and voluntarily and before a police officer, magistrate and justice of peace . And it has to be noted that a confession must relate to the offence in question. If the purported admission makes out no offence, the provision relating to confession would not come into play. This was the position in the case of GANESH TRADERS V DISTRICT COLLECTOR, KARIMNAGAR

It is important that a confession has to be addressed to some person. This is the position in Cap 6 where, as we pointed out earlier, it is provided under the provisions of Sections 27 and 28. In the case of PANDRA KHADIA V STATE OF ORISSA it was pointed out that a confessional statement must be addressed to some person and that, therefore, the accused going round the village and shouting that he had killed his wife did not amount to confession. In the question at hand Juma’s statement is said to have been made before the police officer. However the issue still remain there as to whether that is sufficient to amount to a confession.

Lord Atkin in PAKALA NARAIN SWAMI V EMPEROR stated that; “A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a confession , for example, an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession”.(Emphasis is ours)

The position in Tanzania is well illustrated in the case of MATHEI FIDOLINE HAULE V Rsupra where the Court of Appeal of Tanzania held that the mere admission by the appellant that he had assaulted his mother leading to her death could not really be taken to amount to a confession to the offence of murder with all its essential ingredients.

The fact that Juma is the owner of the said knife and all such facts that are connected with that knife does not by itself establish the guiltiness of Juma as to the alleged offence of murder since mens rea, and that is malice aforethought has to be proved so as to amount to a confession. Though the statement of Juma can draw a suspicion that Juma might be the killer of the deceased, yet that statement does not talk anything on the other element of the offence.

In the case of ALLY FUNDI V R the High Court of Tanzania stated that; “…a mere opportunity to commit an offence cannot be the basis for convicting an accused person. If the law were otherwise, no one in this country would have been safe…suspicion, however grave it may be, cannot be a substitute for proof in a court of justice”

Those observations draw us to a conclusion that the said statement is not a confession. The issue is whether now the statement is an admission. This seems to be undisputable in the light of section 19 of Cap 6. The said section defines the term admission and it provides that a statement whether oral or written which suggests any inference as to a fact in issue or relevant fact made by any person mentioned in the Act under the circumstances provided therein amounts to an admission. Our interest here is on the phrases fact in issue and relevant fact.

Fact in issue is defined under section 3(1) of Cap 6 to mean any fact from which, either by itself or in connection with other fact, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. In the question at hand the main issue is whether Juma murdered the deceased. And on the other hand a fact is said to be relevant where it shows or constitute a motive or preparation for any fact in issue . It is clear that the statement as to the effect that Juma is the owner of the knife that is believed to have been killed the deceased and that at all material time he had in possession of it is essentially a relevant fact in as far as the fact in issue is concerned. This is to say, that statement passes the test of being admission within the meaning of section 19 of Cap 6.

The next issue is whether such statement is admissible. In the case of BISHEN DAS V RAM LABHAYA , an accused, a woman, was charged with murder of a deceased man. Before the court she admitted that she killed the deceased but that was done in her attempt to rescue herself from being raped by the deceased. The court held that the statement did not amount to a confession of an offence of murder but yet it was admissible as an admission of the fact.

This is to say that Juma’s statement is admissible as admission against himself though is not a conclusive evidence against him in the offence for which he is charged with rather it has to be corroborated with other evidence to prove the guiltiness of Juma to the charge of murder. It is a statement which draws an inference as to the commission of an act of killing but there should be other evidence to prove mental element necessary in proving the offence of murder, that is, malice aforethought.

On the other hand, if for instance, the knife which killed the deceased would have not yet been discovered by the police and that the statement uttered by Juma was one which lead to the discovery of that knife as one which killed the deceased, then the position of the law in as far as the admissibility of the said statement would have been that under section 31 of Cap 6. The purpose of the said section is to render admissions admissible material facts or material object or objects discovered due to the information provided by an accused while under police custody .

Juma’s statement, in our views, does not fall within the four corners of section 31 since the knife which Juma is making statement to it was already discovered by the police and the investigation believes that the said knife was used to kill the deceased. Hence the statement is not leading to a discovery of a knife rather it is only relevant as to the owner of it. This implies that admissibility of the said statement is basically with respect to the provisions under section 19 of Cap 6.

1.3: Conclusion It follows from the above discussion that Juma’s statement is admissible as evidence against him and that it will be treated as an admission relevant to the fact in issue which in actual fact as per question, is murder.

[edit] “Use of the phrase ‘without prejudice’ is inefficacious if the statement is not made as part of the genuine attempt to negotiate a settlement.”

QUESTION TWO.

“Use of the phrase ‘without prejudice’ is inefficacious if the statement is not made as part of the genuine attempt to negotiate a settlement.”

In the light if the above statement, discuss the scope of application and the effect of section 25 of the Evidence Act, Cap.6 R.E 2002.

1.0.INTRODUCTION

        -MEANING OF “WITHOUT PRUJUDICE”

2.0.CONCEPT OF “WITHOUT PREJUDICE”

         2.1.THE POLICY BEHIND THE RULE  
         2.2.THE JUDICIAL BASIS OF THE RULE.

3.0.THE SCOPE OF APPLICATION AND EFFECT OF SECTION 25 OF THE EVIDENCE ACT, CAP 6 R.E 2002.

4.0.EXCEPTIONS

5.0.CRITICISM

6.0.CONCLUSION.

BIBLIOGRAPHY

1.0 NTRODUCTION

One of the major principles recognized by the law in the conduct of litigations that of disclosure of evidence. Parties therefore should disclose, to each other and for the purposes of the proceedings, any and all evidence, relevant to the issues in those proceedings, which is or has been in their possession, custody and power.

Communications with an opponent may be made “WITHOUT PREJUDICE.”(BILA KUATHIRI).

1.1 MEANING OF “WITHOUT PREJUDICE”.

The word “Without prejudice” in a letter or document means that an admission made in the letter or document is not binding. .

In the book, Phipson on evidence the phrase “Without prejudice” explained to mean.

“Written or Oral Communications which are made for the purpose of a genuine attempt to compromise a dispute between the parties may generally not be admitted in evidence”.

The expression “without prejudice” means without prejudice to the writer of the letter if the terms he proposes are not accepted. But if the terms proposed in the letter are accepted a completed contract is established and the letter, although written without prejudice operates to alter the old state of things and to established a new one.

In other words, “Without prejudice” simply means “I make you an offer if you do not accept it, this letter is not to be against me”.

2.0 CONCEPT OF “WITHOUT PREJUDICE” The concept “without prejudice” is the rule, which may be seen in two categories:

2.1 POLICY BEHIND THE RULE.

In law, the policy behind the “without prejudice rule” is that, parties should be encouraged as far as possible to settle their dispute without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (this also includes a failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings.

The rule aim at encouraging parties fully and frankly to put their cards on the table.

The public policy justification in truth essentially rests with the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability. According to section 23 of the Indian Evidence Act, which is in parimateria to section 25 of TEA, in civil cases the admissions are to be made when relevant. If admission of liability is made by a party upon an express condition that evidence of such admission should not be given, that, it was made for the purpose of buying peace and settling disputes by compromise instead of legal proceedings or if an admission is made under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given, such admission is not relevant and is protected by this section.

In Highton Vs H, Mr. Romilly thus explains the reasons for the rule; “for if parties were to be afterwards prejudiced by the their efforts to compromise, it would be impossible to attempt an amicable arrangement of difficulties”.

2.2 THE JUDICIAL BASIS OF THE RULE

The judicial basis of the rule is part contract and part public policy.

In part it depends upon an implied agreement by the parties to the effect that what is said in settlement negotiations will not subsequently be relied upon in court.

The first letter passing between the parties marked “without prejudice” will be protected by without prejudice privilege even though unsolicited and thus there cannot be said to be any implied agreement between the parties.

The court in Instande v. Denny Bros Printings granted injunctions preventing the use of without prejudice material in subsequent patent proceedings involving the same or related parties on the implied contract formulations. And it was held that, “the without prejudice” communications were governed by an implied agreements that there would not be used in the current or any subsequent litigation between the same or related parties.

In the three party situation where without prejudice letters written, for example, between A and B may be inadmissible in proceedings between A and C because it has nothing to do with contract.

Without prejudice is seen as a form of privilege and usually treated as such. However, it does not have the same attributes as the law of privilege. Unlike other privileges, without prejudice privilege can only normally be waived with the consent of both parties to the correspondence. This was clearly stated in the case of Rush Tompkins. V. GLC. Furthermore, “Without prejudice” documents are only protected in circumstances where a public policy justification can be provided, namely where the issues is whether admissions were made as it was explained in Muller v. Linsley & Mortimer . Without prejudice privilege is generally a rule of admissibility either based on a contractual or implied contractual rights or on public policy.

3.0 THE SCOPE OF APPLICATION AND EFFECT OF S. 25 OF TEA CAP 6 R. E 2002

The section gives effect to the Maxim “interest re publicae sit finis litium” that is for the interest of the state that there should be an end of litigation.

In other words, it is a basic aim of the law to settle disputes amicably without the necessity of a court case and to further this end the parties during preliminary negotiations, will often make admission and reveal facts which they would not agree to in court. If these confidences were later freely admissible in evidence the result would be that it would soon become impossible to secure amicable pre-trial settlements of civil disputes.

Section 25 is subject to three main issues, which are;

 Are there people in a dispute  Are they negotiating  Are there terms offered

These three issues are there to determine the admissibility under S. 25.

The application of S. 25 of TEA is limited to those cases where there is a dispute or negotiations and in which terms have been offered to settles the disputes. In Madhavrav v Gulabbhai , it was stated that the rule, which excludes documents marked “without prejudice”, has no application, unless same person is in dispute or negotiation with another and terms are offered for the settlement of the dispute or negotiation.

Thus, where letters were written without reference to any disputes they were held to be not privileged though they were marked “without prejudice” as per Dentrey Re, Exp. Holt where it was stated that “The fact that the document is headed “without prejudice” does not conclusively or automatically render it privileged for an admission in evidence in any subsequent proceedings, and if a claim for such privilege of the document is challenged the court will look at the document to determine its nature”.

However, all documents which form part of negotiations between the parties are prima-facie privileged from admission in evidence if they are marked “without prejudice” even if the document in question merely initiates the negotiations and even if the documents does not itself contain an offer. Thus there are two circumstances which will give rise to application of the section, namely:  An express condition that evidence of the admission is not to be given  Circumstance from which the court can infer that the parties agreed together that evidence of the admission was not to be given. Generally, the correspondence will be treated as within the rule where the following are considered, namely; that communication attract “without prejudice” privilege and the court admit such communications. Correspondence will only be protected by without prejudice privilege if it is written for the purpose of a genuine attempt to compromise a dispute between the parties. It is not a pre condition that the correspondence bears the heading without prejudice. If it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will as a general rule not admissible, as it was so held in the case of Rush and Tompkins v Greater London Council

4.0 EXCEPTION (SIJAZIELEWA)

The phrase “Without Prejudice” is subject to several exceptions. In Unilever V Procter and Gamble Robert Warker L.J set out the principal circumstances which “without prejudice” communications could be admitted in evidence, these include; Firstly is when the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible as it was so held in the case of Tomlin v Standard Telephones .

Another exception has been shown in the case of Wood V Cox that an agreement apparently concluded between the parties during the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence.

Meanwhile, in a circumstance where there is no concluded compromise but there is clear statement made by one part to negotiations and on which the other part is intended to act and does in fact act, may be admissible as giving rise to an estopped, a good example is a case of HodgKinson and Corby V Wards Mobility Services.

In cases of impropriety, one part may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety.

It can also be applied as exception where there is no public policy justification for exclusionary rule. This was shown in the case of Re D . Lastly evidence of negotiation may be given, in order to explain delay or apparent acquiescence. The fact of without prejudice negotiation rather than in the normal case their content may be relevant for example on an application to strike out for want of prosecution on an issue of delay in amending a patent or any other claim based on laches as it was in a case of Walker V Wilsher.

In such circumstances it will be permissible not merely to refer to the existence of without principle communications, but to put in evidence the material itself. Another good example is a case of Family Housing Association V. Michael Hyde & Partner where it was stated that; “If one party states that the existence of without prejudice negotiations were the reason for the delay, the other party must be entitled to produce them to show that they do no justify the delay”

5.0 CRITICISM

The “Without prejudice” phrases has been criticized by Wigmore who criticized the contract theory for say that “the true reason for excluding an offer of compromise is that, it does not ordinarily proceed from and imply that the adversary’s claim is well founded, but rather a belief that the further prosecution of that claim whether well founded or not, would in any event cause such annoyance as is preferably avoided by payment of the sum offered.

Another criticism on the phrase is that, it is in opposition to the general requirement of the law of evidence which requires all that relevant facts should be tendered in court in order to prove the case. In the contrary, the phrase “without prejudice” requires that all facts revealed during negotiations should not be used as evidence in court of law.

6.0 CONCLUSION We are of the view to conclude that the purpose of section 25 of The Tanzania Evidence Act Cap 6, R.E 2002 is to give effect to the maxim “interest rei publicae ut sit finis litim” that is for the interest of the state that there should be an end of litigation. In other words, it is the basic aim of the law to settle disputes amicably, without the necessity of a court case.

[edit] “Use of the phrase ‘without prejudice’ is inefficacious if the statement is not made as part of the genuine attempt to negotiate a settlement.”

QUESTION TWO.

“Use of the phrase ‘without prejudice’ is inefficacious if the statement is not made as part of the genuine attempt to negotiate a settlement.”

In the light if the above statement, discuss the scope of application and the effect of section 25 of the Evidence Act, Cap.6 R.E 2002.

1.0.INTRODUCTION

        -MEANING OF “WITHOUT PRUJUDICE”

2.0.CONCEPT OF “WITHOUT PREJUDICE”

         2.1.THE POLICY BEHIND THE RULE  
         2.2.THE JUDICIAL BASIS OF THE RULE.

3.0.THE SCOPE OF APPLICATION AND EFFECT OF SECTION 25 OF THE EVIDENCE ACT, CAP 6 R.E 2002.

4.0.EXCEPTIONS

5.0.CRITICISM

6.0.CONCLUSION.

BIBLIOGRAPHY

1.0 NTRODUCTION

One of the major principles recognized by the law in the conduct of litigations that of disclosure of evidence. Parties therefore should disclose, to each other and for the purposes of the proceedings, any and all evidence, relevant to the issues in those proceedings, which is or has been in their possession, custody and power.

Communications with an opponent may be made “WITHOUT PREJUDICE.”(BILA KUATHIRI).

1.1 MEANING OF “WITHOUT PREJUDICE”.

The word “Without prejudice” in a letter or document means that an admission made in the letter or document is not binding. .

In the book, Phipson on evidence the phrase “Without prejudice” explained to mean.

“Written or Oral Communications which are made for the purpose of a genuine attempt to compromise a dispute between the parties may generally not be admitted in evidence”.

The expression “without prejudice” means without prejudice to the writer of the letter if the terms he proposes are not accepted. But if the terms proposed in the letter are accepted a completed contract is established and the letter, although written without prejudice operates to alter the old state of things and to established a new one.

In other words, “Without prejudice” simply means “I make you an offer if you do not accept it, this letter is not to be against me”.

2.0 CONCEPT OF “WITHOUT PREJUDICE” The concept “without prejudice” is the rule, which may be seen in two categories:

2.1 POLICY BEHIND THE RULE.

In law, the policy behind the “without prejudice rule” is that, parties should be encouraged as far as possible to settle their dispute without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (this also includes a failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings.

The rule aim at encouraging parties fully and frankly to put their cards on the table.

The public policy justification in truth essentially rests with the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability. According to section 23 of the Indian Evidence Act, which is in parimateria to section 25 of TEA, in civil cases the admissions are to be made when relevant. If admission of liability is made by a party upon an express condition that evidence of such admission should not be given, that, it was made for the purpose of buying peace and settling disputes by compromise instead of legal proceedings or if an admission is made under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given, such admission is not relevant and is protected by this section.

In Highton Vs H, Mr. Romilly thus explains the reasons for the rule; “for if parties were to be afterwards prejudiced by the their efforts to compromise, it would be impossible to attempt an amicable arrangement of difficulties”.

2.2 THE JUDICIAL BASIS OF THE RULE

The judicial basis of the rule is part contract and part public policy.

In part it depends upon an implied agreement by the parties to the effect that what is said in settlement negotiations will not subsequently be relied upon in court.

The first letter passing between the parties marked “without prejudice” will be protected by without prejudice privilege even though unsolicited and thus there cannot be said to be any implied agreement between the parties.

The court in Instande v. Denny Bros Printings granted injunctions preventing the use of without prejudice material in subsequent patent proceedings involving the same or related parties on the implied contract formulations. And it was held that, “the without prejudice” communications were governed by an implied agreements that there would not be used in the current or any subsequent litigation between the same or related parties.

In the three party situation where without prejudice letters written, for example, between A and B may be inadmissible in proceedings between A and C because it has nothing to do with contract.

Without prejudice is seen as a form of privilege and usually treated as such. However, it does not have the same attributes as the law of privilege. Unlike other privileges, without prejudice privilege can only normally be waived with the consent of both parties to the correspondence. This was clearly stated in the case of Rush Tompkins. V. GLC. Furthermore, “Without prejudice” documents are only protected in circumstances where a public policy justification can be provided, namely where the issues is whether admissions were made as it was explained in Muller v. Linsley & Mortimer . Without prejudice privilege is generally a rule of admissibility either based on a contractual or implied contractual rights or on public policy.

3.0 THE SCOPE OF APPLICATION AND EFFECT OF S. 25 OF TEA CAP 6 R. E 2002

The section gives effect to the Maxim “interest re publicae sit finis litium” that is for the interest of the state that there should be an end of litigation.

In other words, it is a basic aim of the law to settle disputes amicably without the necessity of a court case and to further this end the parties during preliminary negotiations, will often make admission and reveal facts which they would not agree to in court. If these confidences were later freely admissible in evidence the result would be that it would soon become impossible to secure amicable pre-trial settlements of civil disputes.

Section 25 is subject to three main issues, which are;

 Are there people in a dispute  Are they negotiating  Are there terms offered

These three issues are there to determine the admissibility under S. 25.

The application of S. 25 of TEA is limited to those cases where there is a dispute or negotiations and in which terms have been offered to settles the disputes. In Madhavrav v Gulabbhai , it was stated that the rule, which excludes documents marked “without prejudice”, has no application, unless same person is in dispute or negotiation with another and terms are offered for the settlement of the dispute or negotiation.

Thus, where letters were written without reference to any disputes they were held to be not privileged though they were marked “without prejudice” as per Dentrey Re, Exp. Holt where it was stated that “The fact that the document is headed “without prejudice” does not conclusively or automatically render it privileged for an admission in evidence in any subsequent proceedings, and if a claim for such privilege of the document is challenged the court will look at the document to determine its nature”.

However, all documents which form part of negotiations between the parties are prima-facie privileged from admission in evidence if they are marked “without prejudice” even if the document in question merely initiates the negotiations and even if the documents does not itself contain an offer. Thus there are two circumstances which will give rise to application of the section, namely:  An express condition that evidence of the admission is not to be given  Circumstance from which the court can infer that the parties agreed together that evidence of the admission was not to be given. Generally, the correspondence will be treated as within the rule where the following are considered, namely; that communication attract “without prejudice” privilege and the court admit such communications. Correspondence will only be protected by without prejudice privilege if it is written for the purpose of a genuine attempt to compromise a dispute between the parties. It is not a pre condition that the correspondence bears the heading without prejudice. If it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will as a general rule not admissible, as it was so held in the case of Rush and Tompkins v Greater London Council

4.0 EXCEPTION (SIJAZIELEWA)

The phrase “Without Prejudice” is subject to several exceptions. In Unilever V Procter and Gamble Robert Warker L.J set out the principal circumstances which “without prejudice” communications could be admitted in evidence, these include; Firstly is when the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible as it was so held in the case of Tomlin v Standard Telephones .

Another exception has been shown in the case of Wood V Cox that an agreement apparently concluded between the parties during the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence.

Meanwhile, in a circumstance where there is no concluded compromise but there is clear statement made by one part to negotiations and on which the other part is intended to act and does in fact act, may be admissible as giving rise to an estopped, a good example is a case of HodgKinson and Corby V Wards Mobility Services.

In cases of impropriety, one part may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety.

It can also be applied as exception where there is no public policy justification for exclusionary rule. This was shown in the case of Re D . Lastly evidence of negotiation may be given, in order to explain delay or apparent acquiescence. The fact of without prejudice negotiation rather than in the normal case their content may be relevant for example on an application to strike out for want of prosecution on an issue of delay in amending a patent or any other claim based on laches as it was in a case of Walker V Wilsher.

In such circumstances it will be permissible not merely to refer to the existence of without principle communications, but to put in evidence the material itself. Another good example is a case of Family Housing Association V. Michael Hyde & Partner where it was stated that; “If one party states that the existence of without prejudice negotiations were the reason for the delay, the other party must be entitled to produce them to show that they do no justify the delay”

5.0 CRITICISM

The “Without prejudice” phrases has been criticized by Wigmore who criticized the contract theory for say that “the true reason for excluding an offer of compromise is that, it does not ordinarily proceed from and imply that the adversary’s claim is well founded, but rather a belief that the further prosecution of that claim whether well founded or not, would in any event cause such annoyance as is preferably avoided by payment of the sum offered.

Another criticism on the phrase is that, it is in opposition to the general requirement of the law of evidence which requires all that relevant facts should be tendered in court in order to prove the case. In the contrary, the phrase “without prejudice” requires that all facts revealed during negotiations should not be used as evidence in court of law.

6.0 CONCLUSION We are of the view to conclude that the purpose of section 25 of The Tanzania Evidence Act Cap 6, R.E 2002 is to give effect to the maxim “interest rei publicae ut sit finis litim” that is for the interest of the state that there should be an end of litigation. In other words, it is the basic aim of the law to settle disputes amicably, without the necessity of a court case.

[edit] voluntariness of confession- by Mushobozi, julius LL.B Mzumbe university

QUESTION THREE

  “To be admissible, a confession must be free and voluntary. If it proceeds from remorse and desire to make reparation for the crime, it is admissible. If it is flows from hope or fear, exerted by a person in authority, it is inadmissible. The prosecution must discharge the Onus which lies upon it, of proving that the extra- judicial statement in its entirety was voluntary” 

     With case law and appropriate provisions of the Evidence Act, discuss the veracity of the above statement.  

INTRODUCTION The term confession has been defined by statute, case law, and jurist. The statutory definition of the term confession is defined by the Evidence Act (hereinafter to be referred to as the Act) to mean

(a) words or conduct, or a combination of both words and conduct, from which, whether taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offence or;

(b) a statement which admits in terms either an offence the person making the statement has committed an offence; or

(c) a statement containing an admission of all the ingredients of the offence with which its maker is charged; or

(d) a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making the statement has committed an offence.

The court has in several occasions defined the term confession. The case of Swami V King Emperor in defining confession the Court held “No statement that contains self exculpatory matter can amount to a confession; if the exculpatory statement is of some facts, which true would negative the offence alleged to be confessed, a confession must admit in terms all the fact which constitute the offence. The court of Appeal of East Africa in the case of R V Kifungu Nsurupia defined the term as an equivocal admission of having committed an act amounts to a crime.

According to Sakar  

“Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed a crime”. Stephen defines the term confession to mean; “An admission made by a person charged with a crime stating or suggesting the inference that he committed that crime”

MAINBODY This part The question demand the veracity of the statement “To be admissible, a confession must be free and voluntary. If it proceeds from remorse and desire to make reparation for the crime, it is admissible. If it is flows from hope or fear, exerted by a person in authority, it is inadmissible. The prosecution must discharge the Onus which lies upon it, of proving that the extra- judicial statement in its entirety was voluntary” which is treated as follows;

Classification of Confession Confession can be classified into judicial and extra-judicial. Judicial confession are those which are made before a magistrate or in court in due course of legal proceedings; and it is essential that they be made of the free will of the party and with full knowledge of the nature and consequences. Sarkar explaining this type of confession says “this kind is preliminary examinations taken in writing by the magistrate pursuance to statute; and the plea of guilty to an indictment, made in open court.” Having seen this we earnestly shift our attention to the next category.

Extra-judicial confession is made when the accused person makes a statement confessing the crime he is being charged of elsewhere than in court of law; this term embracing not only express confession of crime, but all those admissions and acts of the accused from which guilt may be proved like other fact. This type of confession is made to persons in authority such as police officer and justice of peace as will be expounded in the course of our treatment of the topic in question.

Admission of Confession For confession to be admissible the following elements must be established. a) It must be freely and voluntarily made without threat, promise, or other prejudice. b) It must be made by an accused person himself. c) It must be made to a person in authority.

Burden of proof The onus of proving the voluntariness of Confession lies upon the prosecution. The provision of section 27(2) of the Act provides:- “The onus of proving that any confession made by an accused person was voluntarily made by him shall lie on the prosecution.”

This position was stated by the court in the case of Josephat Somisha Maziku v R where the learned judge stated that:- i) While it is trite law that the condition precedent for the admissibility of a confession is its voluntariness, a confession is not automatically inadmissible simply because it resulted from threats or promise, it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admission of guilt;

ii) where you have threats and a confession far apart without a causal connection, and no chance of such threats inducing confession, such confession should be taken to be free of inducement, voluntary and admissible;

iii) it is a principle of evidence that where a confession is, by reason of threat, involuntarily made, and is therefore inadmissible, a subsequent voluntary confession by the same maker is admissible, if the effect of the original torture, or threat, has before such subsequent confession, been dissipated and no longer the motive force behind such subsequent confession.

It can further be deciphered that the court of Appeal of East Africa had an occasion to comment on voluntary ness of confession in the case of Njuguna Kimani & Others V R where the accused was charged with the murder of their employer. One of the issues was whether the confession was voluntary as to be admissible. The court held that:- i) It is the duty of every judge or magistrate to pay close attention to confession obtained from an accused person particularly when the person has been in custody for along time, and;

ii) Onus is on the prosecution to show voluntaries of confession and that if third degree measures were applied they had ceased to operate in the mind of the accused at the time he was making the confession.

iii) It is inadvisable, if not improper, for the police officer who is conducting the investigation of the case, to charge and record the cautioned statement of the suspect.

Confession made by inducement or threat Section 29 of the Act provide that:-

“No confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to, the person confessing unless the court is of the opinion that the inducement was made in such circumstances and was of such a nature as was likely to cause an untrue admission of guilt to: be made

It thus follows from the above provision that confession caused by threat, inducement or promise shall not be rendered inadmissible unless the court forms an opinion that the inducement was made in circumstance that resulted in an untrue admission of guilty. The term inducement includes statement made under threat, promise or unwillingly. The test as whether the accused was placed in such a position or situation that he would rather give an untrue statement than true statement is as provided by the said provision of the Act.

The effect of s.29 is to admit all confessions, which are made under inducement, unless the court from the circumstances in which the confession was made led to untrue confession. The court had in Thadei Mlomo & Another V. R commended where it was of the view that “under s. 29 an involuntary confession is admissible if the court believes it to be true, however, the section cannot be invoked where actual torture was applied, it is apparent from this case that where a confession is obtained by only threat and the confession is true, it is admissible.

In Oraym Mkangule & another V. R the high court found that although the appellant confessions were ordinarily inadmissible. The fact that there was unusual state of affairs concerning the second appellant was relevant and admissible. It tended to prove a conduct from which the second appellants’ guilt could be inferred. In such a context it does not matter if illegal means are used in getting at the fact. In this case the accused person upon their arrest they were beaten and this led to their confessions. The second appellant after making the confession went further he led the way to his house and indicated a spot under his door saying he kept the money there. The soil was removed but no money was found. The accused persons were subsequently charged.

Sarkar provides that, it is difficult to lay down any hard and fast rule as to what constitutes inducement, the question is one for discretion of the judge, and his decision will vary in each particular case. What language is sufficient to constitute an inducement, whether by threat or promise has been the subject of many decisions, some not altogether satisfactory.

Therefore, from the above argument it is clear that section 29 and 30 of the Act should be read together. The effect of these sections is to leave on the court the duty of deciding whether confession sought to be tendered in evidence by the prosecution should or should not be admissible. An accused is therefore free to repudiate or retract a confession sought to be tendered against him and when he does so the burden rests on the prosecution was freely and voluntarily made by the accused person.

[edit] confession must be voluntary

  “To be admissible, a confession must be free and voluntary. If it proceeds from remorse and desire to make reparation for the crime, it is admissible. If it is flows from hope or fear, exerted by a person in authority, it is inadmissible. The prosecution must discharge the Onus which lies upon it, of proving that the extra- judicial statement in its entirety was voluntary” 

     With case law and appropriate provisions of the Evidence Act, discuss the veracity of the above statement.  

INTRODUCTION The term confession has been defined by statute, case law, and jurist. The statutory definition of the term confession is defined by the Evidence Act (hereinafter to be referred to as the Act) to mean

(a) words or conduct, or a combination of both words and conduct, from which, whether taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offence or;

(b) a statement which admits in terms either an offence the person making the statement has committed an offence; or

(c) a statement containing an admission of all the ingredients of the offence with which its maker is charged; or

(d) a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making the statement has committed an offence.

The court has in several occasions defined the term confession. The case of Swami V King Emperor in defining confession the Court held “No statement that contains self exculpatory matter can amount to a confession; if the exculpatory statement is of some facts, which true would negative the offence alleged to be confessed, a confession must admit in terms all the fact which constitute the offence. The court of Appeal of East Africa in the case of R V Kifungu Nsurupia defined the term as an equivocal admission of having committed an act amounts to a crime.

According to Sakar  

“Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed a crime”. Stephen defines the term confession to mean; “An admission made by a person charged with a crime stating or suggesting the inference that he committed that crime”

MAINBODY This part The question demand the veracity of the statement “To be admissible, a confession must be free and voluntary. If it proceeds from remorse and desire to make reparation for the crime, it is admissible. If it is flows from hope or fear, exerted by a person in authority, it is inadmissible. The prosecution must discharge the Onus which lies upon it, of proving that the extra- judicial statement in its entirety was voluntary” which is treated as follows;

Classification of Confession Confession can be classified into judicial and extra-judicial. Judicial confession are those which are made before a magistrate or in court in due course of legal proceedings; and it is essential that they be made of the free will of the party and with full knowledge of the nature and consequences. Sarkar explaining this type of confession says “this kind is preliminary examinations taken in writing by the magistrate pursuance to statute; and the plea of guilty to an indictment, made in open court.” Having seen this we earnestly shift our attention to the next category.

Extra-judicial confession is made when the accused person makes a statement confessing the crime he is being charged of elsewhere than in court of law; this term embracing not only express confession of crime, but all those admissions and acts of the accused from which guilt may be proved like other fact. This type of confession is made to persons in authority such as police officer and justice of peace as will be expounded in the course of our treatment of the topic in question.

Admission of Confession For confession to be admissible the following elements must be established. a) It must be freely and voluntarily made without threat, promise, or other prejudice. b) It must be made by an accused person himself. c) It must be made to a person in authority.

Burden of proof The onus of proving the voluntariness of Confession lies upon the prosecution. The provision of section 27(2) of the Act provides:- “The onus of proving that any confession made by an accused person was voluntarily made by him shall lie on the prosecution.”

This position was stated by the court in the case of Josephat Somisha Maziku v R where the learned judge stated that:- i) While it is trite law that the condition precedent for the admissibility of a confession is its voluntariness, a confession is not automatically inadmissible simply because it resulted from threats or promise, it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admission of guilt;

ii) where you have threats and a confession far apart without a causal connection, and no chance of such threats inducing confession, such confession should be taken to be free of inducement, voluntary and admissible;

iii) it is a principle of evidence that where a confession is, by reason of threat, involuntarily made, and is therefore inadmissible, a subsequent voluntary confession by the same maker is admissible, if the effect of the original torture, or threat, has before such subsequent confession, been dissipated and no longer the motive force behind such subsequent confession.

It can further be deciphered that the court of Appeal of East Africa had an occasion to comment on voluntary ness of confession in the case of Njuguna Kimani & Others V R where the accused was charged with the murder of their employer. One of the issues was whether the confession was voluntary as to be admissible. The court held that:- i) It is the duty of every judge or magistrate to pay close attention to confession obtained from an accused person particularly when the person has been in custody for along time, and;

ii) Onus is on the prosecution to show voluntaries of confession and that if third degree measures were applied they had ceased to operate in the mind of the accused at the time he was making the confession.

iii) It is inadvisable, if not improper, for the police officer who is conducting the investigation of the case, to charge and record the cautioned statement of the suspect.

Confession made by inducement or threat Section 29 of the Act provide that:-

“No confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to, the person confessing unless the court is of the opinion that the inducement was made in such circumstances and was of such a nature as was likely to cause an untrue admission of guilt to: be made

It thus follows from the above provision that confession caused by threat, inducement or promise shall not be rendered inadmissible unless the court forms an opinion that the inducement was made in circumstance that resulted in an untrue admission of guilty. The term inducement includes statement made under threat, promise or unwillingly. The test as whether the accused was placed in such a position or situation that he would rather give an untrue statement than true statement is as provided by the said provision of the Act.

The effect of s.29 is to admit all confessions, which are made under inducement, unless the court from the circumstances in which the confession was made led to untrue confession. The court had in Thadei Mlomo & Another V. R commended where it was of the view that “under s. 29 an involuntary confession is admissible if the court believes it to be true, however, the section cannot be invoked where actual torture was applied, it is apparent from this case that where a confession is obtained by only threat and the confession is true, it is admissible.

In Oraym Mkangule & another V. R the high court found that although the appellant confessions were ordinarily inadmissible. The fact that there was unusual state of affairs concerning the second appellant was relevant and admissible. It tended to prove a conduct from which the second appellants’ guilt could be inferred. In such a context it does not matter if illegal means are used in getting at the fact. In this case the accused person upon their arrest they were beaten and this led to their confessions. The second appellant after making the confession went further he led the way to his house and indicated a spot under his door saying he kept the money there. The soil was removed but no money was found. The accused persons were subsequently charged.

Sarkar provides that, it is difficult to lay down any hard and fast rule as to what constitutes inducement, the question is one for discretion of the judge, and his decision will vary in each particular case. What language is sufficient to constitute an inducement, whether by threat or promise has been the subject of many decisions, some not altogether satisfactory.

Therefore, from the above argument it is clear that section 29 and 30 of the Act should be read together. The effect of these sections is to leave on the court the duty of deciding whether confession sought to be tendered in evidence by the prosecution should or should not be admissible. An accused is therefore free to repudiate or retract a confession sought to be tendered against him and when he does so the burden rests on the prosecution was freely and voluntarily made by the accused person.

[edit] article 15 of the convention against torture with confession

“Article 15 of the Convention Against Torture obligates states, party to it, to ensure that the statements established to have been made as a result of torture and other forms of inhuman treatment shall not be invoked as evidence in any proceedings against their makers.”

To what extent is the evidence Act, Cap. 6 R.E 2002 and other Rules of Evidence in force in Tanzania, if any, consistent with the above provision?

1.0 Introduction The word torture originates from Latin word ‘torquere’ meaning ‘to twist’. Also according to concise Oxford Dictionary, torture refers to the action or practice of inflicting severe pain as a punishment or a forcible means of persuasion . In law it refers to as infliction of severe bodily pain either to confess to a crime or to give more evidence in a judicial proceedings. Examination by torture often called the question has been used as a judicial method to extort evidence from unwilling witnesses . On the other hand, confession as been defined by different authors and in case laws but in law is a statement made by a person who has committed a crime in which he or she acknowledges his or her guilty. If made in Court it is judicial, if made anywhere else it is extra judicial. An entirely voluntary that is trustworthy confession is admissible in evidence but if procured through force, inducements, threats, promises or through hope of escape or favour it is not trustworthy and is not admissible . For the Confession to be admissible the following elements must be established: - a. It must be made by an accused person. b. It must be true in the sense that it will sustain a conviction. c. It must be freely made to a Police Officer of or above the rank of Corporal or any authorized officer.

2.0 Analysis of the Evidence Act and other rules of evidence in force in Tanzania to determine how the same are consistent with article 15 of the Convention. For the sake of this question, we are going to explore from the Evidence Act, the Magistrate Court Rules of evidence and the Zanzibar Evidence Decree so as to determine the extent through which the mentioned legislations has reiterate the wording of Article 15 of the Convention.

The admissibility of an alleged confession is a question for the Court, what weight it is entitled to, is a question for the jury (assessors). But the general rule on admissibility of confession in evidence in Tanzania Mainland context is such that, if prosecution can proves that it was made voluntary the same is to be admitted . It does not matter whether the confession was made before the arrest or after, but as long as it was made to an authorized officer. But if procured through torture or any other inhuman treatment, it is inadmissible.

The latter phrase here in above has been reiterated in the Evidence Act (herein after to be referred as the Act) S 27 (1) ready together with sub section (3). The Sections provides that: - (1) A confession voluntary made to a Police Officer by a person accused of an offence may be proved as against that person While sub section 3 provides that:- (2) A confession shall be held to be involuntary if the Court believes that it was induced by any threat, promise or other prejudice… by any other person in authority

Although as a general rule confession obtained as a result of inducement or threat should not be admissible under the Act (S 27), any confession made by the accused can be invalidated on the grounds of inducement, threat or promise. Conditions to be satisfied for excluding confession includes the followings: - a. The confession must appear to the Court to have been caused by any inducement threat or promise. b. Any such inducement, threat or promise must have reference to the charge against the accused person. c. Any such inducement, threat or promise must proceed from a person in authority.

d. Any such inducement, threat or promise must be sufficient in the opinion of the Court to cause a reasonable belief in the mind of the accused that by making it he would gain an advantage or avoid an evil of a temporal nature.

Section 29 of the Act introduces an entirely new principle regarding the admissibility of confessions resulting from an inducement. Under the law operative else where in East Africa and in England such confessions if the inducement is offered by a person in authority are inadmissible. The test applied in determining whether the confession is admissible being that of its voluntariness. However, this section makes no distinction between confession made following an inducement by a person in authority and by a person not in authority and adds a new test of admissibility. In addition to the test of voluntariness, the test of whether or not the inducement has been likely to affect the truth of the confession is introduced.

That section presents certain difficulties since the intention may well have been that the later part of the section should render inadmissible confessions result from inducement likely to cause untrue admission of guilty to be made, it does not specifically say so 

Hence vide S 29 of the Act, under specific situation allows confession caused by threat, inducement or other inhuman treatment as the case may be not to be rendered inadmissible unless the Court forms an opinion that the inducement was made in circumstances that resulted in an untrue admission of guilty. The test is whether the accused was placed in such a position or situation that he would rather give an untrue statement than a true statement. Thus, case laws are of profound importance.

In KARUMA s/o KAMAU v. R the Court of Appeal was of the view that, “the mere fact that evidence was illegally obtained should not make it inadmissible in that a Court always had discretion to disallows that evidence”

Whereas in the case of THADEI MLOMO & ANOTHER v. R the Court was of the view that:- “Under S 29 of the Act, an involuntary confession is admissible if the Court believes it to be true. However the section cannot be invoked where due to actual torture applied on the accused, led to untrue confession”

In line with the above case holding is the case of JOSEPHAT SOMISHA MAZIKU v. R in which the appellant was charged with stealing by public servant. On his arrest he confessed to the ‘sungusungu’ (local guards) when they interrogated him to have stolen the louver glasses. The High Court on appeal observed amongst other things the following: - i. While it is trite law that the condition precedent for admission of a confession is its voluntaries, a confession is not automatically inadmissible simply because it resulted from threat or promise, it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admission of guilty. ii. It is principle of evidence that where a confession is by reason of threat, involuntary made and is therefore inadmissible, a subsequent voluntary confession by the same maker is admissible, if the effect of the original torture or threat, has before such subsequent confession been dissipated and no longer the motive force behind such subsequent confession

From the above arguments, it is clear that S. 29 and S 30 of the Act should be read together. The effect of these sections is to leave on the Court the duty of deciding whether confession sought to be tendered in evidence by the prosecution should or should not be admissible. An accused is therefore free to repudiate or retract a confession sought to be tendered against him and when he does so the burden rests on the prosecution to bring evidence to prove that the confession was freely and voluntarily made by the accused person.

Also in section 31 of the Act, confession leading to discoveries of necessary things on the facts in issue even though obtained through torture is admissible. The intention of this section is to admit material facts or objects discovered for concealment as a consequence of statements made by the accused. In YORAM NKANGHULE AND ANOTHER V. R the accused persons upon their arrest, they were beaten and this lead to their confessions. The second appellant after making the confession went further, he lead the way to his house and indicated a spot under his door saying he kept the money there. The soil was removed but no money was found. The accused persons were subsequently charged. The Court held that, “although the appellants confessions were ordinarily inadmissible. The fact that there was unusual state of affairs concerning second appellant was relevant and admissible. It tendered to prove a conduct from which a second appellants’ guilty could be inferred. In such a context it does not matter if illegal means are used in getting at the fact.” Not only the above sections but also Section 33 of the Act allows admissibility of confession by co-accused even if obtained by inhuman treatment in so far it is the truth and has fulfilled the conditions necessary for the said confession to exist.

Other Rules of evidence enforce in Tanzania are the Magistrate Court Rules of Evidence applicable in Primary Courts and the Zanzibar Evidence Decree . Section 13 of these rules provides a statement which is consistent with Article 15 of the Convention. Section 13 (1) (b) provide that: - “No evidence may be given in a case against a person accused of an offence where confession is caused by a threat, or given in promise.” Where as section 13 (2) provide that: - “No evidence may be given in a case against a person accused of an offence of any confession made when he is in custody unless the confession was made directly to a magistrate or to a justice of the peace, who has been assigned to a district court. Even if such confession is made to a magistrate or such justice of the peace no evidence may be given of the confession if it was caused by the threat or promise.” (the emphasis is ours) Also in subsection 3 of the same Act provide that: - “Where two or more persons are being tried jointly for the same offence or for different offences arising out of the same transaction and a confession by one of the co-accused is caused by a threat the court may take into consideration such confession as against such other person.

Thus, with the wording of the reproduced sections from the evidence rules applicable in Primary Courts which their context are the same with the Zanzibar Evidence Decree applicable in Tanzania Island on admissibility of confessions, we are of the view that, as whole, they are consistent with Article 15 of the convention since they only speaks of inadmissibility of confession obtained by threat or inducement but nothing is said on confessions obtained by torture despite

been true as is the case in the Act.

3.0 Conclusion In conclusion therefore, from the above discussion, it suffice to expound that, although as a general rule as provided for under S. 27 of the Act that confession obtained by torture is involuntary and ought not to be admitted as evidence, but the wordings of Sections 29; 30; 31; and 33 ready together with Section 142 of the Act allows confessions obtained through inhuman treatment to be admissible in so far the court believes such confessions to be true. And hence the principles regarding admissibility of confession in Tanzania Mainland are inconsistent with the requirement of Article 15 of the Convention since it obligates States party to it not to admit statements made as a result of torture. This is according to the above cited sections of the Act and the precedents developed by the Courts concerning that aspect except Section 27 of the Act, Section 13 of the Magistrate Court Rules of evidence applicable in Primary Courts and Section 80 of the Zanzibar Evidence Decree which seems to be consistent with that Article in the Convention.

[edit] admissibility

Using the provisions of the Evidence Act and Case Law, briefly discuss the admissibility and weight of the evidence in the following scenarios. a) On 25. 11.1980, Lelemama was arrested for killing his wife. During his trial evidence was given by his neighbour, a police inspector that immediately after the killing the accused, (Lelemama) told him, “I have killed my wife, she was a bitch”. b) Mesewi, a reputable business man is charged with Armed Robbery. One day he was arrested, a police man told him, “It will be better for you to tell the truth as it will save the shame of a search warrant in your house,” whereupon Mesewi makes confession and directs the police officers to his hideout where the goods stolen and robbed on divers dates are found. c) In the course of trial, the accused states that the statement produced by the prosecution on his previous confession, is substantially different from the one he actually made. d) Nundu, Nunda and Pindu are jointly charged with the offence of murder. The prosecution tenders in evidence the statement made by Nundu before a police officer to the effect that shortly before the offence was committed, he changed his mind and persuaded his co accused to spare the deceased but the two could not listen and in fact they killed the deceased as Nundu was busy raising an alarm. On his part, Nunda informs the court that while in Police custody, one Superintendent of police told him, “You are not obliged to say anything unless you wish to do so, but what you say may be put in writing and be given in evidence.” However, hardily had the superintendent left than the police constable asked him to make confession or else… He therefore invites the court to disregard the confession made at the police station.

OUTLINE

1.0 INTRODUCTION

2.0 ANSWERS TO RESPECTIVE SCENARIOS

a) The statement given by Lelemama under paragraph (a) is closely connected to the issue or concept of confession.

b) Statement by Mesewi after an inducement held out by the police man.

c) Accused denial of the truthfulness of the statement sought to be tendered in court by the prosecution as previous confession by him.

d) Under this scenario Nundu makes a statement to the effect that he and his co-accused where once parties to the common design before he withdrew himself and that the remaining two actually killed the deceased. And Nunda want the court to disregard the confession he made to the police officer.

BIBLIOGRAPHY.

1.0 INTRODUCTION

Basically these four scenarios are about the concept of confession. The first scenario is about admissibility as confession, and weight of a statement by an accused tendered to a neighbour, a police inspector, the second scenario is about admissibility as confession and weight of a statement of an accused obtained by inducement but leading to discovery, the third scenario is about admissibility as confession and weight of a repudiated confession of the accused and the forth scenario is about admissibility and weight of a statement by an accused implicating a co-accused and a confession to a police constable.

Generally confession can be defined as, an admission made by a person charged with a crime stating or suggesting the inference that he committed that crime. The rationale of receiving confession in evidence is that, there is a presumption that no person will voluntarily make a statement which is against his interest, unless it be true.

For a confession to be relevant and admissible as evidence there are various conditions that must be satisfied. These conditions include; that the confession must proceed from the accused himself, that it should be freely and voluntarily made and that it should be made to the proper authority and that it should be an admission of every element of an offence charged.

With regard to the first condition, confession as a general rule must be made by the accused person himself. This condition is however subject to the exception that, in some circumstances confession of an accused can be used to implicate co-accused, this is provided for under section 33 of The Evidence Act, [Cap 6 R.E 2002] hereinafter referred to as The Evidence Act.

The second condition necessary for acceptance and admissibility of confession is that it should be freely and voluntarily given. This is provided for under section 27(1) of The Evidence Act. According to this section in subsection 3 a confession is held to be involuntary if it is was induced by a threat, promise or other prejudice held out by the person in authority taking the confession. This position is also supported by Lord Sumner in the case of Ibrahim V. R in which he stated inter alia that;

“No statement by an accused is admissible in evidence against him unless it is shown by prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority”

The third element is to the effect that for a statement to be accepted and admitted as confession it should be made to the proper authority. According to sections 27 and 28 of the Evidence Act, the proper authority includes, Police officer, Magistrates and Justices of peace, respectively. For avoidance of doubt a Police officer is defined under section 3(1) of the Evidence Act as any member of the police force of or above the rank of corporal.

The last element is that, for a statement to be taken as confession it should be admission of every ingredient of the offence with which the accused is charged. In the case of Swami v. King Emperor , it was stated that confession should contain a statement by an accused admitting in terms either the offence or at any rate substantially all the facts which constitutes the offence.

2.0 ANSWERS TO RESPECTIVE SCENARIOS

b) The statement given by Lelemama under paragraph (a) is closely connected to the issue or concept of confession.

Issue Whether the words uttered by Lelemama to his neighbour, a police Inspector amounts to confession.

To answer this issue we shall see to it if all the ingredients of a valid confession are present. As we have stated above every confession must be made to a person authorized by the law; it should be voluntarily made; it should be an admission of every ingredient of the offence; and that it should be made by the accused person. Thus the ongoing part of this work shall look on each of the ingredients in connection to the scenario at hand.

Confession must be made to an authorized person. Under sections 27 and 28 of the Evidence Act, the persons authorized to take confessions include; police officers , Magistrates, and Justices of Peace. In our scenario the statement was made to a police Inspector who is above the rank of Corporal thus authorized by the law to take confessions.

For a confession made to a police officer to be valid, it should be voluntary. In the case of R v. Thomson it was held that,”a confession is irrelevant and thus inadmissible unless the prosecution establishes beyond doubt that the confession was made freely and voluntarily”. Also it must be established that the police officer have warned the maker that the statement shall be used against him during the trial, and the warning should be reduced in writing and should be signed or acknowledged by the accused person. The authority for this is under section 53, 57 and 58 of the Criminal Procedure Act No 9 of 1985. In our scenario the facts are silent as to whether the police officer warned the maker before taking his confession. If he warned the maker, then the statement would clearly amount to confession, but if he did otherwise then the statement would not be confession unless under some special circumstances .

As to the issue of voluntariness Section 27 of the Evidence Act is to the effect that every confession must be voluntarily made, that is, it should not be obtained by inducement, threat or promise . Again the scenario is silent as to whether the maker made it voluntarily or not. If the maker made it voluntarily, then it amounts to confession, but if the statement was induced by threat or promise then it will not amount to confession. However, under sections 29, 30 and 31 a confession, regardless of its voluntariness will be admissible, if it leads to truth, or given after the removal of inducement, or leads to discovery respectively.

In connection with what we have stated above the burden of proving that the confession was voluntarily made lies on the prosecution. This is provided for under section 27(2) of the Evidence Act. Thus this confession shall not be admissible in court as evidence unless the prosecution has managed to prove its voluntariness.

Another ingredient of a valid confession is that it should admit each and every ingredient of the offence the accused is charged with. In the case of Swami v. King Emperor , it was stated that confession should contain a statement by an accused admitting in terms either the offence or at any rate substantially all the facts which constitutes the offence. Thus from what is stated in the Swami’s case we are of the opinion that the statement made by Lelemama substantially admits all the ingredients of the offence with which he is charged. The statement that “I have killed my wife,” is the actus reus and the statement that “she was a bitch” implies that he had formed an evil intention (malice aforethought) out of jealousy.

As we have discussed above, the statement made by Lelemama will amount to confession if it is proved that it satisfies all the necessary ingredients. And if it does the court may rely on it to convict Lelemama.

b) Statement by Mesewi after an inducement held out by the police man.

Issue

Whether the statement can be admitted as confession.

As a general rule for statement to be admitted as confession it must be freely and voluntarily made to a proper authority. This is the requirement of section 27(1) when read together with section 28 . However, there are some exceptions to this general rule in which a confession though involuntarily made can be admissible as against the maker. These exceptions are found under sections 29, 31 and 32 of the Evidence Act.

To answer this issue, therefore, we must consider whether the statement made by Mesewi falls under any of these exceptions. The statement made by Mesewi, as general rule, would not be admissible since it was obtained out of an inducement held on him. But, the same piece of evidence would be admissible under section 31 of the Evidence Act due to the fact that it led to the discovery of the stolen articles. Thus despite the inducement held by the policeman the statement by Mesewi is admissible as confession against him. This is supported by the case of Nanyalika V. R where it was held inter alia that the fact that the appellant showed the police the spot where the complainant’s stolen box was recovered, and also his leading the police to the laundryman from whom the complainant stolen shirt was recovered was admissible as confession against him.

Apart from the discovery of the facts in relation to the offence charged, the statement made by Mesewi can also be admitted under section 29 of the Evidence Act due to the fact that it was a true admission of guilt.

Therefore, the statement made by Mesewi can be admitted as a confession and the court can solely rely on it to convict him.

c) Accused denial of the truthfulness of the statement sought to be tendered in court by the prosecution as previous confession by him.

Issue Whether the court can convict the accused basing on the repudiated confession by an accused.

According to section 27 of The Evidence Act, the court can convict an accused person basing on the voluntary confession he made to the police officer, Magistrate, or Justice of the peace. But the Act is silent in cases where an accused person denies the fact that he made such a confession or that such confession was not voluntarily made.

However, this lacuna was for the first time in East Africa filled by the case of Tuwamoi v. Uganda which introduced the concepts of retracted and repudiated confessions. According to this case a retracted confession occurs when the accused person admits that he made the statement recorded, but now seeks to recant on ground that he had been forced or induced to make it. Thus the statement was not a voluntary one. A repudiated confession on the other hand is one which the accused person avers he never made.

The Tuwamoi’s case went on stating that when the statement either repudiated or retracted, the procedure to be followed is that a trial within a trial must be conducted to ascertain whether the statement was freely and voluntarily made. Also the prosecution must adduce evidence establishing the circumstances under which the confession was obtained, and the court to rely on the retracted or repudiated confession there should be independent piece(s) of evidence to corroborate such a confession. This view was also held in the case of Jackson Mwakatoka and Others v. R where the court, inter alia held that repudiated confession, though as a matter of law may support a conviction, generally requires as a matter of prudence corroboration, as is normally the case where the confession is retracted.

However, there are some exceptional circumstances where the court may base the conviction on an uncorroborated repudiated or retracted confessions. These include where the court believes or satisfies itself of the truthfulness of such a confession or where it warns it self on the danger of basing conviction on uncorroborated confession. This position was held in the case of Hemed Abdallah V. R . Where the court held that;

“Once the trial Court warns itself of the danger of basing a conviction on an uncorroborated retracted or repudiated confession and having regard to all the circumstances of the case, it is satisfied that the confession is true, it may convict on such evidence without any further ado”.

In our scenario, the accused states that the statement produced by the prosecution as his previous confession, is substantially different from the one he actually made. This denial amounts to a repudiated confession. Therefore the admissibility of such a statement of the accused in our scenario as a matter of law may support conviction generally, there is no requirement in law to corroborate such statement but as a matter of prudence corroboration is required. This position was stated in the Jackson s/o Mwakatoka’s case.

Furthermore, the confession by an accused in our scenario may be used by the court to reach conviction without corroboration under certain circumstances. For instance if the court is satisfied that such statement is nothing but the truth, the court may base conviction on such a statement admitting it as confession though uncorroborated. This view was held in the case of Shishobe Seni and Another V. R where the court held inter alia that, “on the evidence, the repudiated confession cannot be anything but true and conviction can be grounded on them”. Also the court can base conviction on the confession by the accused in our scenario though uncorroborated if the court warns itself on the danger of basing conviction on such uncorroborated confession, this view as stated above was held in the case of Hemed Abdallah V. R.

Therefore, the confession made by the accused in our scenario, may be admitted by the court as evidence under the circumstances mentioned above. And the court may base conviction on such confession or it may need or require another independent piece of evidence to corroborate the same as the case may be. Hence the weight given to the confession or statement will largely depend on the wisdom of the court.

d) Under this scenario Nundu makes a statement to the effect that he and his co-accused where once parties to the common design before he withdrew himself and that the remaining two actually killed the deceased. And Nunda want the court to disregard the confession he made to the police officer.

Issues. 1. Whether confession made by Nundu will be used against Nunda and Pindu. 2. Whether the statement made by Nunda to a police Constable can be admissible in Court as confession.

To answer the first issue we should first state the position of the law. Generally, confession can only be used in court of law against the maker of the statement and not otherwise but section 33 of the Evidence Act admits the confession of the co-accused. According to this section the confession of one of the accused persons may be used against his co-accused. But for this section to apply the confession made by the co-accused must be of such a nature as to equally incriminate him as it will incriminate his co-accused.

As per section 23 of the Penal Code, Nunda, though he withdrew himself from the commission of the offence yet he will be equally regarded as a party to that offence of murder. The section provides as follows;

When two or more persons forms a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

The withdrawal by Nundu was not sufficient enough to exempt him from criminal liability. For a person to successfully withdraw himself from the commission of the crime he should communicate his intention of so doing to the proper authority in reasonable time so that the commission of that offence can be prevented. Thus Nundu had to report the matter to the police in a sufficient time so that the police could apprehend the offenders. Since he raised an alarm at the time the offence was committed he is still as liable as those who actually killed the deceased. There are various authorities to this end, among them is Glanville Williams who stated that, to avoid liability, the accused could go to the police or give timely warning to the intended victim. According to Ormerod a clear pre-condition for an effective withdrawal is unequivocal communication of withdrawal. This can be communication to the principal, and if more than one to all principals, or by communication with the law enforcement agency.

Having seen that Nundu is party to the commission of the crime, it is now our turn to see whether his confession can be used against Nunda and Pindu. For a statement made by a co-accused to be used against his co-accused as confession it should not be exculpatory; it should be capable of incriminating him the same way as it would incriminate his fellow accused persons. An exculpatory statement by an accused person implicating a co-accused cannot be acted upon to convict the other co-accused. This position was held in the case of Ali Salehe Msutu V. R .

After stating the position of the law, it is now our turn to consider or relate the position of the law with our scenario. Since the withdrawal by Nundu was not sufficient enough to exempt him from liability, we are of the opinion that he will be equally liable to the offence charged as Nunda and Pindu are. The statement made by Nundu will therefore be admissible as confession against himself and his co-accused due to the fact that it equally incriminates him as it does to Nunda and Pindu.

However, as a matter of law and practice the court can not base its conviction solely on the uncorroborated confession of co-accused. This position was held in various cases, for instance, in R. v Kusenta Cheligia and another Mr. Justice Mnzavas (as he then was) held, inter-alia;

"Where an accused person implicates himself with an offence, his statement that a co-accused participated in the commission of the offence must be corroborated by other independent evidence pointing to the guilt of his co-accused."

In the case of Asia Iddi V. R the Court stated inter alia that; “conviction can not be based solely on a confession by a co- accused. There must be, in addition, other independent testimony to corroborate it”.

With regard to the second issue, whether the statement by Nunda to a Police Constable can be admitted as confession, it is clearly the position of law as stated by sections 3 and 27 of The Evidence Act that this statement is inadmissible as confession.

According to Section 27, “a confession voluntarily made to the police officer by a person accused of an offence may be proved as against that person”. A police officer within the meaning of the Evidence Act, as defined by section three is, “any member of the police force of or above the rank of corporal”. Therefore the statement made by Nunda to a police constable is not admissible as confession due to the fact that Police constable is below the rank of corporal, who within then meaning of The Evidence Act is not a police officer. However, Nunda’s statement to a police constable may otherwise be admissible as confession if it leads to discovery as per section 31 of The Evidence Act.

ALTERNATIVE ANSWER 1.0 INTRODUCTON

The question requires to discuss the admissibility and weight of evidence in the four scenarios as they have been set forth. Before giving attention to the main discussion it is important first at this stage to make clear meaning on the terms admissibility and weight of evidence. Admissibility in one hand is a matter of law for the judge although it may sometimes depend on a preliminary finding of the fact by him while the weight of evidence on the other hand, is a question of fact with numerous factors that may affect it. Obvious instance are provided by the age, reliability or demeanour of a witness, the proximity in time of certain facts to those under investigation and the number of possible explanations of a particular event.

2.0 MAIN BODY

(a) On 25.11.1980, Lelemama was arrested for killing his wife. During his trial, evidence was given by his neighbour, a Police Inspector, that immediately after the killing, the accused (Lelemama) told him, “ I have killed my wife, she was a bitch.”

In determining the admissibility and weight of this evidence the following issues will be put into consideration:-

Whether the confession made to a Police Inspector can be admissible.

Whether the confession has sufficient weight as an evidence to lead the conviction.

In relation to the first issue one has to refer to the provisions of section 27 of Tanzania Evidence Act, which enacts rules of confession. The section provides the new rule of confession which was not provided in the old Tanzania Evidence Act by allowing confessions made to police officers to be admissible provided that the prosecution proves it was voluntary. The section reads as following:-

“A confession voluntarily made to a police officer by a person accused of an offence may be proved as against that person.”

The position before the amendment was that, the confession made to a police officer is not admissible. The new rule under section 27 came after the amendment made by section 4 of the Evidence (Amendment) Act, which came into force 1st December 1980 under the Government Notice No. 172/80.

In relation to the scenario Lelemama was arrested and gave his confession to his neighbour, a Police Inspector on 25.11.1980. This means that the Evidence (Amendment) Act was yet to be into force and therefore the admissibility of a confession made by Lelemama to a Police Inspector should be determined by the old Tanzania Evidence Act which does not allow admissibility of confession made to a police officer. Therefore it follows that under the old law, a confession by Lelemama cannot be admissible.

In relation to the second issue, which relates to the weight of evidence it follows that since the evidence is not admissible it follows that no weight can be inferred from it to support the conviction thus the evidence is to be disregarded in its entirety.

(b) Mesewi, a reputable businessman is charged with Armed Robbery. On the day he was arrested, a police man told him, “It will be better for you to tell the truth as it will server a shame of a search warrant in your house”. Whereupon Mesewi makes a confession and directs the police officers to his hideout where the goods stolen and robbed on divers dates are found.

The observation from the scenario is that the confession made by Mesewi was obtained by inducement following the words by a police man that “It will be better for you to tell the truth as it will server a shame of a search warrant in your house”. Thus to determine the admissibility of the evidence here the issue will be:-

Whether the confession made by Mesewi with the inducement of a policeman is admissible and has any weight to lead the conviction.

The general rule regarding admissibility of a confession is that a confession made to a police officer must be a voluntary one . In order to be voluntary, a confession must not be induced by any threat, promise or other prejudice held out by the police officer to whom it was made or by any member of the police force or by any other person in authority.

However, the above position of the law does not operate as an inflexible rule and rather there is an exception on this general principle. The law is to the effect that if confession leads to discovery is admissible regardless of it been made by inducement. Section 31 of the Tanzania Evidence Act provides as follows:-

“When any fact is deposed to as discovered in consequences if information received from a person accused of any offence in the custody of police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered is relevant.”

Section 31 should be read together with section 30, which gives power the courts to gives, its opinion in the issue relating to confession made by inducement if such inducement been fully removed the confession is relevant and need not be rejected.

The position in Tanzania regarding discovery of facts is as well the same as in Common Law. For instance in the case of Customs and Excise Commissioners v. Harz the House of Lords pointed out that; if the interrogation had been conducted in a manner authorized by a relevant statute ensuing statement by the accused would probably have been admissible. Although more depends in circumstances than actual words but in this case in which words like; “speak the truth”, “it will be better for you” or “the time has come when you had better make a statement”, it was held admissible. Also in R v Reeve and Hancook a confession made after the Police had informed the accused that he could not be exposed to the public if he disclose the where about of certain property has been held admissible

With this exception to the general principle it follows therefore that, though a confession made by Mesewi was obtained out of inducement, that become immaterial and what is important is whether his confession lead to the discovery of facts. However, it is suggested that, in applying section 31 limitations should be imposed on it as not all discovery of facts shall be taken to be admissible. A good authority to support this is the case of Ally Fundi v R where it was stated among other things that;

“…it is not the whole of the statement made by the accused in consequence of which the fact is discovered which is admissible; it is only so much of the statement which distinctly relates to the fact discovered. In other words the information and the fact alleged to have been discovered should be connected with each other as cause and effect. Any portion of the information which does not satisfy this test should be shut out of the case. It should be pointed out, for the avoidance of doubt,…that the word "discovered" is used in the section to mean physically discovered and not mentally discovered. The rationale behind the section is that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence…”

From the scenario it is clear that discovery of the goods stolen and robbed on diver dates is a discovery of physical items which relates to the alleged armed robbery therefore his confession will be admissible regardless of the inducement made by the police man.

As regard the weight of evidence, since a confession has lead to the discovery of facts, which are sufficient to prove the case against Mesewi, then it follows that such discovery will form the basis of conviction.

(c) In the course of trial, the accused states that the statement produced by the prosecution as his previous confession, is substantially different from the one he actually made.

As far as the law of evidence is concerned when an accused person denies that the statement made as his previous confession is different from the one he actually made the confession is said to be repudiated .An accused person has a liberty to repudiate or retract a confession previously made by him out of court, this is why the prosecution has the burden of proving that the evidence was freely and voluntarily made. In the repudiated confession the accused person disowns the confession .He says he never made the confession nor statement, which is produced by the prosecution. In the case of Tuwamoi v. Uganda ‘’…the repudiated statement is one which the accused person avers he has never made’. When such circumstances arise the court has a duty of holding a trial within the trial to consider whether the confession should be admissible as in the case of Ezekiel v. R. .Also the court may asses the character of the confession and the circumstances under which it was made as R. V. Habash , the last way in determining the retracted and repudiated confession is to demand for corroborative evidence as in the case of Hatibu Ghandi V.R it was held that ‘…A conviction on a retracted uncorroborated confession is competent if the court warns itself of the danger of acting upon such a confession and is fully satisfied that such confession cannot but be true. A retracted uncorroborated confession, if truthful, can corroborate other evidence against the confessor. If it has been discovered that the repudiated confession is true and the court has warned itself then it amount to conviction. This concept has also been discussed in the case of Shihobe Seni and Another v. Republic it was held that;

“as the confessions were repudiated then there was a need for ascertaining their reliability and/or seek corroboration but the learned trial judge did not even warn himself of that requirement; on the evidence, the repudiated confessions cannot be anything but true and a conviction can be grounded on them” 

(d) Nundu, Nunda and Pindu are jointly charged with the offence of murder. The Prosecution tenders in evidence a statement made by Nundu before a Police Officers to the effect that shortly before the offence was committed, he changed his mind and persuaded his co accused to spare the deceased but the two could not listen and in fact they killed the deceased as Nundu was busy raising an alarm. On his part, Nunda informs the court that while in police custody, one superintendent of police had told him, “You are not obliged to say any thing unless you wish to do so, but what you say may be put in writing and be given in evidence.” However, hardly had the superintendent left than a police constable asked him to make the confession or else…He therefore invites the court to disregard the confession made at the police station.

In determining whether the court can disregard the confession the issue will be whether the police constable has the power to take confession.

Section 27(1) of the Tanzanian Evidence Act requires that a confession be made to a police officer. Section 3 of the same Act defines who is a police officer, that is, “…any member of the police of or above the rank of corporal. The Police Force and Auxiliary Service Act [Cap. 322 R.E 2002] under section 4 provides for the ranks of Police Force members by order of seniority of which a police constable is neither of the rank of corporal nor above the rank of corporal therefore a constable lacks the power to take confession and thus it follows that the confession made by Nunda will be inadmissible and disregarded by the court hence lacks weight to support the conviction as well.

[edit] scenerio

Consider the following scenarios and briefly discuss the appropriate cause of action you would take:

(a) You have been instructed by your senior state attorney to prosecute Mr. X who is charged with theft. However, fortunately or otherwise your case rests on the evidence of two children, Mary and Juma who aged 13 years and 10 years respectively. Mary’s story is to the effect that she saw the accused leaving the shop in question with a loaded suck. As that Juma, stated that he was hunting bird in the bush he saw the accused that looked worried and tired hiding a loaded “Rambo” under the grass.

(b) As a principal Resident Magistrate with extended jurisdiction you have just heard a murder case in which it was in defence case as testified by Dr. Kishoka, an experienced and highly qualified psychiatrics, that at the commission of the offence the accused was under the delusion and hallucination that the deceased was be witching him.

(c) You are trying a case and an defence is raised by the advocate for the accused to the effect that the purported confession produced by the prosecution is wholly inadmissible because it was made before a district magistrate sitting in a Resident Magistrate court and therefore in law the magistrate was neither vested with jurisdiction nor is he a justice of the peace.

INTRODUCTION In as far as our question is concerned the discussion will be based on the issues raised from each scenario. Generally the discussion has based on the three major concepts of the Evidence Law. These are evidence of a child of tender years; exparte opinion; and confession before the magistrate.

EVIDENCE OF A CHILD OF TENDER YEARS. Witness in a strict legal sense means one who gives evidence in a cause before a court of law; in general sense it includes all persons from whose lips testimony is extracted to be used in any judicial proceeding and so includes deponents and affiants as well as persons delivering oral testimony before a court . In the Evidence Act [CAP. 6 R.E, 2002] (hereinafter to be referred as the Act) there is no definition of the term witness, however the Act provides the general rule that every person shall be competent witness to testify unless the court considers that he is incapable of understanding the question put to him by the reason of tender age, extreme old age or due of disease . In answering the given scenario the following issues can be raised and discussed as follows; Whether the evidence of the child of tender age is admissible. The child of tender years has been defined under the Evidence Act to mean a child of or below the apparent age of fourteen years , and the general rule which is provided in that Act is to the effect that, every person is competent to testify unless the court finds that he can not testify due to the reason of the tender age or old age or suffer from disease of mind . This provision imposes the duty to the court to determine who is competent witness to testify before it. Therefore, section 127(2) of the Act indicates circumstances under which the child of tender age can be called as a witness in the criminal cause and his or her evidence could be admissible. The first circumstance is where the child understands the nature of the oath. Before the court can take the evidence of the child of tender years, the court has the duty to investigate as to whether the child of tender years knows the nature of an oath. In examining as to whether a child knows the nature of an oath the court has to conduct voire dire examination. Voire dire examination is the questions paused by the court to the child of tender years to ascertain whether the child knows the nature of an oath. Such questions are directed to matters related to religious beliefs, which are fundamental to the understanding of an oath to a child. In the case of Kibaragenyi Arap Kolil v R , it was observed that, the investigation should proceed the swearing on evidence and should be directed to the particular questions of whether the child understand the nature of an oath than question of general intention. Further, in the case of Kisiri Mwita V R it was held that, since the child was aged 13 years, he was a child of tender years and so his evidence ought not to have been received without first conducting a voire dire examination. When the child’s evidence is taken on oath such evidence solely can form the base of conviction to the accused person and his evidence so given is good as that of adult, this was held in the case of Elias Joakim V R . In case the child does not know the nature of an oath, the court may receive the evidence of such a child of tender years without considering an oath if the court satisfy that the child has sufficient intelligence to justify the reception of his evidence and understand the duty of speaking the truth . In such a case the court has the duty of recording questions and answers that respond from the child. This is stated in the case of R V. Khan where there was an inquiry about a child understanding the nature of oath. The questions and answers should be recorded so that they appeared in the official transcript. Whether the evidence of a child of tender years needs corroboration. Corroboration in evidence law is the matter of practice and not a matter of law, and such practice is obtained in the case laws. Therefore, in answering the issue whether the evidence of a child of tender years need corroboration, that practice can be seen in the case of Shozi Andrew V R where it was held that the sworn testimony of a child of tender years does not need corroboration. It can be treated as any other sworn testimony and it could form the basis of conviction. From the case law cited above it implies that corroboration pertaining the evidence of a child of tender years is not mandatory if the child manages to take an oath. This can be acted as a sole evidence to convict the accused, but in case the child fails to take an oath his/her evidence needs to be corroborated. In case the court receives unsworn testimony of the child of tender years without corroboration the court has to warn itself the danger of convicting the accused on that evidence if it is fully satisfied that the child is telling nothing but the truth . Further, the evidence of the child of the tender age which taken unsworn may be acted upon by the court as material evidence corroborating the evidence of another child of tender age previous given . From the scenario it shows that the prosecution has two witnesses, Mary and Juma whose ages are 13 and 10 years respectively. Mary’s story is to the effect that she saw the accused leaving the shop in question with a loaded suck. As that, Juma stated that, he was hunting bird in the bush then he saw the accused that looked worried and tired hiding a loaded “Rambo” under the grass. Their stories tend to implicate the accused person with the offence he is charged with. We are of the view that, the evidence testified by Mary may be corroborated by Juma. Therefore these children would be competent witnesses on the prosecution side. But the point to take in mind is that the court has the duty of conducting voire dire examination in order to know whether these children know the nature of oath or they possess sufficient intelligence to justify the reception of their evidence and understand the duty of speaking the truth. EVIDENCE OF OPINION OF EXPARTE WITNESS. As the general rule of evidence that the opinions of witnesses, whether parties themselves or third persons, as to the existence of the fact in issue or relevant facts are inadmissible. As it was said in the case of Carter V Boelim that it was for the court to form opinions or draw inferences from the relevant fact. However, there are instances, which provide exceptions to this general rule and evidences of opinion may in certain circumstance be admissible. If it is admissible then the opinion held must be proved by direct oral evidence of the person who holds that opinion. An important category of admissible opinion evidence is that of experts. There is no a clear definition of the term exparte under the Evidence Act but section 47 of the Act provides that, “When the court has to form an opinion upon a point of foreign law or science or art, or as to identify of handwriting of finger or other impressions, opinions upon that point of possessing special knowledge, skill, experience or art or questions as to identify of handwriting or finger or other impressions are relevant facts. Such persons are called experts”. In the case of R V Secretary of States expert opinion was defined by the court that, “whenever a subject is upon one which competence to form an opinion can only be required by a cause of a special duty or experience such as science, art, technical terms, foreign law the opinion of exparte is receivable and the court is not necessary bound on it”. An exparte witness is a witness who by the virtue of education, profession publication or experience is believed to have special knowledge of his subject beyond that of the average person, sufficient that others may official and legally rely upon his opinion .

In answering the issue whether opinion provided by Dr. Kishoka is admissible, the general rule of the evidence is that the opinions of witnesses, whether parties themselves or third persons, as to the existence of the fact in issue or relevant facts are inadmissible. However, there is an exception whereby the opinion of witness possessing peculiar skill is admissible. Whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgement upon it without such assistance. For instance matters relating with science like medical examination or art needs to be expressed by person who has profession acquired academically and experience too on the issues in question. Such opinion of this person, who is expert in the field in question, is admissible before the court. Further such evidence of exparte should be given in oral form and a mere certificate by him is not admissible. This is stated in the case of Southern Indian Corporation Ltd V Stanley and Sons Ltd whereby it is a fundamental condition for exparte opinion to be admissible. The presence of the person giving such opinion enables court to taste the credibility, knowledge and experience of that person. Whether the court is bound by opinion of Dr. Kishoka. Though the exparte opinion is admissible before the court such opinion do not bound the court to form conclusion basing on the opinion of the exparte. However the court has the duty of giving reason for disregarding the opinion of that exparte. This was stated in the case of Doris Liundi V R whereby it was held that the court is not bound to accept medical testimony if there is good reason for not doing so. At the end of the day, that is, it remains the duty of the trial court to make a finding and in doing so it is incumbent upon it to look at and assess the totality of the evidence before it, including that of medical exparte. Further, failure to give reason of rejecting exparte opinion that will be unjudicial. This was held in the case of C. D. de Souza V B. R. Sharma . Further, an exparte witness is not like ordinary witness who hopes to get his expenses but he is employed and paid in the sense of gain, being employed by the person who calls him. Undoubtedly, there is a natural bias to do something serviceable for those who employ him and adequately remunerate him . The evidence of exparte is to be received with caution, because they may often come with such a bias in their mind to support the cause in which they are embarked that their judgment became warped, and they themselves become even when conscientiously disposed, incapable of expressing a correct opinion. It is the duty of expert to furnish the court with necessary scientific criteria for testing the accuracy of their conclusion so as to enable the court to form their own independent judgement by the application of these criteria to the fact proved in the evidence. Therefore a doctor giving a medical testimony in a criminal trial may be regarded as giving independent exparte evidence to assist the court. It is quite wrong for the court to be directed that this evidence should be accepted in the absence of the reason of rejecting it. The scenario shows that Dr. Kishoka is experienced and highly qualified psychiatric testified on the defence case that at the time of commission of the offence the accused was under delusion and allusination that the deceased was be witching him. Therefore, in answering this question it thus such evidence of exparte is admissible but the court is not bound with such opinion. Further, if the court receives such opinion it has to do so with caution because that exparte witness may be bias on the side calling him. If the court rejects such opinion of the exparte it has to give a good reason for doing so, and failure to that is unjudicial. CONFESSION BEFORE A MAGISTRATE Confession is defined under the Evidence Act . It is also defined in the case of Pakala Narayana Swami V King Emperor as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. For confession to be admissible it must contain the following elements; it should be free and voluntary made to the persons indicated under section 27 and 28 of the Evidence Act, that is, it must be made to Police Officers, Magistrates (including the Primary, District and Residence Magistrates) and Justices of the Peace or any other person in authority; it must be true in the sense that it will sustain a conviction; it must be made by an accused himself; it should be free from threat, promise or other prejudice held out by police officer to whom it was made or any other person in authority. The onus of proving the confession is lying to the prosecution that the confession made by accused was voluntary made and not obtained under improper means . This is also provided in the case of R. V Thomson as follows; “It is the duty of prosecution to prove in case of doubt the prisons statement was free and voluntary and did not discharge themselves on the obligation” The question given indicates that the objection has been raised by the advocate of the accused to the effect that the purported confession produced by the prosecution in whole is inadmissible because it was made before district magistrate sitting in resident magistrate court and therefore in law the magistrate neither vested jurisdiction nor is he a justice of the peace. In responding this question the following issues can be raised and discussed as follows; Whether the confession made to the district magistrate was inadmissible. According to Section 27 and 28 of the Evidence Act provides for persons in authority to whom the confession can be made. These persons include magistrates. However the Evidence Act does not define who is a magistrate but the definition is provided for under the Interpretation of Laws and general Clauses (CAP.1 of the Laws) and the Magistrate Court Act, 1963 to mean a resident magistrate, a district magistrate and a primary magistrate. From the provisions of the Acts magistrate includes district magistrates, therefore this gives impression that he is among the person in authority who can receive confession. The mere sitting on the resident magistrate court does not eliminate the power of receiving confession from the accused person. Further section 2 of the Magistrate Court Act and Interpretation of Laws and General Clauses define district magistrate to include a resident magistrate. From these views it seems that these two magistrates have concurrent jurisdiction. For the confession to be rejected by the court the accused or his counsel must show that such confession has been obtained by an inducement, threat or promise having reference to the charge against the accused person himself . So the confession made to the district magistrate sitting in the residence magistrate court will be admissible because the scenario does not show whether that confession was made by inducement, threat or promise. In such a case the court cannot reject that confession.

CONCLUSION. From the discussion above we are of the view that for the evidence of the child of tender age to be admissible it is onus of the court to satisfy itself that the child of tender age knows the nature of oath or has sufficient intelligence and duty of speaking the truth. If the child fails to take an oath his evidence will be received by supported evidence from other material evidence. That is the matter of practice and not the matter of law. In the other hand the opinion of the exparte is admissible before the court if it is made by the exparte who is by the virtue of education, profession publication or experience is believed to have special knowledge of his subject beyond that of the average person, sufficient that others may officially and legally rely upon his opinion . However the court is not bound by the opinion of exparte witness but the court has to give good reason for rejecting that exparte opinion. Meanwhile the confession taken before a district magistrate sitting in the residence magistrate does not invalidate such confession because district magistrate has jurisdiction of taking confession from the accused person bear in mind that confession is taken on criminal proceeding in which district magistrate has concurrent jurisdiction with residence magistrate in criminal matter unless he has extended jurisdiction.

ALTERNATIVE ANSWER

OUTLINE: - Introduction - Main body: (a) First scenario: -Whether the child of tender age is competent to testify

-Whether the evidence of a child of tender age requires 
 corroboration

(b) Second scenario:

                           Whether an opinion of an expert can bind the court.

-Who is an expert? -Credibility of an expert witness (c) Third scenario: -Whether the confession made before the district magistrate

                               sitting in the Resident magistrate is admissible.

1.0 INTRODUCTION

All persons shall be competent to testify, however, a person can not give evidence in court unless he or she is competent to testify; in other words if the court finds out that they cannot testify due to tender age, old age, diseases and insanity, who are unable to understand the questions or cannot give rational answers to those questions, and the liability to determine whether the witness is competent lies with the court. This is the general rule under the Tanzania Evidence Act (cap) (hereinafter referred to as the Act)

A witness is a person who can testify to court or give evidence which the court judgments are normally made based on them. In order for a person to testify or be a competent witness, he or she must be conversant with the facts of the case also the evidence to be given should be admissible. The competence of a person to testify as a witness is a condition precedent to the administration of to him of an oath or affirmation and is a question distinct from that of his credibility when he has been sworn or has been affirmed

A child of tender age is the child of or below the apparent age of fourteen years, as provided under the Act.

2.0 MAIN BODY

Having seen the definition of witness and who may testify, the consideration is now on the scenarios given.

(a)

In attempting the first scenario the following issues have been raised:

(i) Whether the child of tender age is competent to testify (ii) Whether the evidence of a child of tender age requires corroboration In discussing the first issue, the general rule is that all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them.

No precise age fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have no sufficient understanding. This was held in case of R. v. Brasier. Neither can any precise rule be laid down respecting the degree of intelligence and knowledge which will render a child a competent witness. The intellectual capacity of a child to understand questions, and to give rational answers thereto is the sole test of his testimonial competent and not any particular age. In all questions of this kind much must depend upon the good sense and direction of the judge.

It is not open to a judge to exclude a child’s evidence by reason of age alone since the words of section 33A (2A) of the Criminal Justice Act of 1988 that a child’s evidence should be received unless it appears to the court that the child is incapable of giving intelligible testimony are mandatory. That is the position in India; however, in our jurisdiction the same is provided by section 127(2) of the Act, that the evidence of the child can be taken without oath and section 254 of the Criminal Procedure Act No. 9 of 1985, which deals with the Cross-Examination; also, rules concerning corroboration will apply.

It is the duty of the court to determine whether the child understands the nature of an oath as it was held in the case of Nyasani .v. R.  If it is satisfied that the child understands the nature of an oath it may proceed to swear or affirm him for the purpose of giving evidence. It has to be made clear that the competence of a child of tender years to give sworn evidence in either criminal or civil proceedings depends upon whether the child understands the nature of an oath. As a matter of law such evidence need no corroboration. In the case of Shozi Andrew v. R  the court held that in terms of section 127(2) of the Act sworn testimony of the child of tender years does not need corroboration. The court added that, such evidence can be treated as any other sworn testimony and it can form the bases of a conviction. However, in practice, court normally do not convict on such evidence without warning themselves on the danger of convicting on the bases of uncorroborated evidence of a child. In the case of Kibageny v. R  it was stated that the court should ask questions to the child as to his age, religion, if any and such other questions as will assist it in determining whether the child understands the nature of an oath or affirmation and its obligation; such an examination of an intelligence of a child of tender age is called Voir Dire. Therefore, although it is always necessary to take care where a question is raised as to whether the competence of a child witness, where a child is capable of giving intelligible testimony, the court does not enjoy some wider discretion to refuse to permit that evidence to be given   
 Basing on the above discussion and case laws it is clearly seen that the evidence of two children Mary and Juma who are aged 13 and 10 years respectively can be admitted. They are competent witness as their testimony may lead to conviction of the accused person.

With regard to the second issue as to whether the evidence of the child of tender age requires corroboration; the term ‘corroboration’ is defined in Black’s Law Dictionary,  to mean confirmation or support by additional evidence or authority.  As a matter of practice, evidence of a child of tender age requires corroboration.  However, such evidence will not require corroboration if it falls under the Sexual Offence Special Provision Act (SOSPA), Act No 4 of 1998 where the child is the victim of the offence as per section 127 (7) of the Act as amended by section 27 of Act No. 4 of 1998.

Further, section 127(3) provides that: “ Notwithstanding any rule of law or practice to the contrary, where evidence received by virtue of subsection (2) is given on behalf of the prosecution and is not corroborated by any other material evidence in support of it implicating the accused the court may, after warning itself of the danger of doing so, act on that evidence to convict the accused if it is fully satisfied that the child is telling but the truth.” We conclude by saying that, the evidence of the two children must be corroborated since their evidence talk of two different scenes, and does not establish the fact in issue (theft). The mere fact that Mary saw the accused leaving the shop with a loaded sack does not mean that the accused might have stolen the goods, thus does not establish the fact in issue that he saw the accused stealing, hence, her evidence needs corroboration. The evidence of Juma that he saw the accused who was worried and tired hiding a loaded “Rambo” under the grass may or may not need corroboration because, in the first place, had it not been that he stole the goods he would not have hidden them and been that much worried; in the second place, it needs corroboration because it does not establish the fact in issue, that is, stealing.

(b) With respect to the second scenario the following questions have been raised to answer the fact in issue: Whether an opinion of an expert can bind the court. -Who is an expert? -Credibility of an expert witness

A witness expects the court to believe him and decided a particular case or issue(s) in his or her favour. One of the important things to a witness is his trustworthiness. In order to win the trust of the court a party is required to present witness who is trustworthy. In practice the court will not normally trust witnesses without checking their credibility and also the number of witnesses required to prove a case gagging the weight of evidence. In the case at hand, the doctor is an expert in psychiatric. In the case of R .v. Secretary of State expert opinion was defined by the court that “whenever subject is upon one which is competence to form an opinion can only be required by court of special duty or experience such as science, art, technical terms, foreign law - the opinion of expert is receivable and the court is not necessarily bound on it”

The Act recognizes expert opinion under sections 47 and 48. Section 47 provides that “ when the court has to form opinion upon a point foreign law, or of science or art, or as to identity of handwriting or finger or other impressions, opinions upon that point of persons possessing special knowledge, skill, experience or training in such foreign law, science or art in question as to identity of handwriting or finger or other impressions are relevant facts.”

However, it is emphasized in that same section in subsection two that, persons possessing the above given qualification are called experts. Therefore, it is important for the court before admitting any person’s opinion to satisfy that such person possess the qualification given in the above section as well as the case law provides. An expert is person who, through education or experience, has developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact finder, thus, expert evidence is the means from which an inference may logically be drawn as to the existence of a fact, that is, demonstration of fact given by an expert in the subject matter.

In the case of South India corp. V. Stanley & sons Ltd it was observed that the opinion of the expert must be given orally in the court and a mere certificate by him is not evidence. This therefore is a fundamental condition for the expert opinion to be admissible. The presence of the person giving such opinion enables the court to test the credibility, knowledge and experience of that person. From the above statutory law and case law we note that an expert is person possessing special knowledge, skill, experience or training in certain field and the special knowledge or skill is not confined to knowledge acquired academically but also through practical experience. As we have seen that, person should appear himself in the court to give his opinion where his credibility and experience is testified as to convince the court to believe in the opinion given by him. In the case of Hassan Salim .V. R it was stated that the opinion of an expert has not been taken as conclusive evidence but only admissible to aid the court to come to convenient and correct conclusion in the matter which require expert opinion and follow otherwise the court can brush out the opinion of the expert. Nevertheless, matters of high technicalities, expert opinion must be given great priority and in testing the credibility of the witness. There is no hard and fast rule to determine the credibility of witness, the weight of their evidence and the sufficiency of the same, as it was stated in the case of R .V. Madhub Chamber.

Credibility of a witness depends on some facts such as knowledge of the facts, disinterested and independence in relation to the issues in the case and the results, intelligence, integrity and veracity of the witness. The Act provides two ways in determining the credibility of the witness. This is by impeaching the credibility of the witness and by observing his or her demeanor by the court. Impeaching is done through cross-examination as provided under section 147, 156 and 141 of the Act. This includes examining his errors, omission, mode of life as provided under section 155 and 158 of the Act; and by discrediting the witness using independent evidence as provided under section 164 of the Act. Section 164 (1) (b) of the Act states that, the credibility of a witness may be impeached by proof that the witness has received a bribe or an offer of a bribe to give evidence. By confronting the witness with his or her previous conflicting statement written (section 154 of the Act), or oral (164 (1) (c)) of the Act and lastly by contradicting him or her on relevant matters that is by calling witnesses or offering evidence to contradict the witness on all relevant matters (section 154 and 164 (1) (3) of the Act. In the case at hand, doctor Kishoka who is highly qualified and experienced psychiatrist, causes of action which may be taken is to consider the credibility of his evidence and whether it confine with the requirement provided in the rules of evidence and whether his opinion binds the court. Expert evidence has been considered by the court in the following cases: In the case of R. v. Agnes Doris Liundi the issue in this case was whether the court is bound to accept evidence of medical expert. The court held that, ‘the court is not bound to accept a medical expert’s evidence if there is good reason for doing so’. Also a court does not however, have to accept the opinion which the expert give if it finds good reason for not doing so though it was stated in the case of C.D. de Souza v. B.R Sharma that to reject expert evidence without giving reasons might well be unjudicial. It appears that, the court is bound by medical expert evidence; but it may depart from such evidence if there will be good reasons to do so. Also, in the case of Omari Ahmed .V. R the court held that, ‘there must be some evidence connecting an accused with theft other than the testimony of an expert who is uncertain’. The court further held that, ‘the trial court’s findings as to credibility of witness is usually binding on an appeal court unless there are circumstances on an appeal court on the record which call for a reassessment of their credibility.’ From this holding it appears that, the trial court does the assessment of credibility of expert evidence, and such assessment binds the court of appeal.

(c)

In the last scenario, the following issue has been raised, that is:

-Whether the confession made before the district magistrate sitting in the

          Resident magistrate is admissible.

A confession is an acknowledgement before a proper authority of the truth of the statement or charge. Confession is also defined under the Act as provided under section 3 (1) of the Act. Black’s Law Dictionary defines to mean an acknowledgement in express words, by the accused in a criminal case of the truth of the main fact charged or of some essential part of it. There are two types of confession; that is formal and informal confession. A formal or judicial confession is a plea of guilty or some other direct manifestation of guilt in court or in a judicial proceeding. Informal or extra judicial confession is a confession made out of court, and not as part of a judicial examination or investigation. Such a confession must be corroborated by some other proof of the corpus delicti, (body of the crime) or else it is insufficient to warrant a conviction.

Confession can be freely and voluntarily made before a police officer, justice of peace and Magistrate as provided under section 28 of the Act. The confession, which is freely and voluntarily, made before the Magistrate can be or may be proved against that person.

The term ‘magistrate’ is defined under section 4 of Interpretation of Laws Act, No. 4 of 1996 to mean a resident magistrate, a district magistrate and a primary court magistrate and any other description of magistrate provided for by or under the Magistrates Court Act. Black’s Law Dictionary defines magistrate to mean a judicial officer with strictly limited jurisdiction and authority often on the local level and often restricted to criminal cases. The Magistrates’ Court’s Act defines a primary court magistrate, a district magistrate and a resident magistrate.

The term ‘justice’ of the peace is not defined under the Magistrates’ Court’s Act, No 2 of 1984 (MCA). However, Part Vl of the MCA provides for appointment and powers of Justice of the peace.

Having defined the term confession, briefly observed different types of confession and to whom confession can be made, also defined the terms magistrate and justice of the peace, we can determine the issue raised above that in law a confession made to a district magistrate sitting in a Resident Magistrates’ Court is admissible. Therefore the objection by the defense counsel can not stand since it is not in line with the law as provided under section 28 of Act, that a confession can be freely and voluntarily made before a magistrate, justice of the peace or a police officer. A district magistrate sitting in the Resident magistrate court does not override his/her magisterial powers. It is only a duty station.

A confession can be invalid if it is made under threat, promise or any other prejudice as provided under sections 27 (3), 29 and 32 of the Act.

[edit] scenerio 2

Consider the following scenarios and briefly discuss the appropriate cause of action you would take:

(a) You have been instructed by your senior state attorney to prosecute Mr. X who is charged with theft. However, fortunately or otherwise your case rests on the evidence of two children, Mary and Juma who aged 13 years and 10 years respectively. Mary’s story is to the effect that she saw the accused leaving the shop in question with a loaded suck. As that Juma, stated that he was hunting bird in the bush he saw the accused that looked worried and tired hiding a loaded “Rambo” under the grass.

(b) As a principal Resident Magistrate with extended jurisdiction you have just heard a murder case in which it was in defence case as testified by Dr. Kishoka, an experienced and highly qualified psychiatrics, that at the commission of the offence the accused was under the delusion and hallucination that the deceased was be witching him.

(c) You are trying a case and an defence is raised by the advocate for the accused to the effect that the purported confession produced by the prosecution is wholly inadmissible because it was made before a district magistrate sitting in a Resident Magistrate court and therefore in law the magistrate was neither vested with jurisdiction nor is he a justice of the peace.

INTRODUCTION In as far as our question is concerned the discussion will be based on the issues raised from each scenario. Generally the discussion has based on the three major concepts of the Evidence Law. These are evidence of a child of tender years; exparte opinion; and confession before the magistrate.

EVIDENCE OF A CHILD OF TENDER YEARS. Witness in a strict legal sense means one who gives evidence in a cause before a court of law; in general sense it includes all persons from whose lips testimony is extracted to be used in any judicial proceeding and so includes deponents and affiants as well as persons delivering oral testimony before a court . In the Evidence Act [CAP. 6 R.E, 2002] (hereinafter to be referred as the Act) there is no definition of the term witness, however the Act provides the general rule that every person shall be competent witness to testify unless the court considers that he is incapable of understanding the question put to him by the reason of tender age, extreme old age or due of disease . In answering the given scenario the following issues can be raised and discussed as follows; Whether the evidence of the child of tender age is admissible. The child of tender years has been defined under the Evidence Act to mean a child of or below the apparent age of fourteen years , and the general rule which is provided in that Act is to the effect that, every person is competent to testify unless the court finds that he can not testify due to the reason of the tender age or old age or suffer from disease of mind . This provision imposes the duty to the court to determine who is competent witness to testify before it. Therefore, section 127(2) of the Act indicates circumstances under which the child of tender age can be called as a witness in the criminal cause and his or her evidence could be admissible. The first circumstance is where the child understands the nature of the oath. Before the court can take the evidence of the child of tender years, the court has the duty to investigate as to whether the child of tender years knows the nature of an oath. In examining as to whether a child knows the nature of an oath the court has to conduct voire dire examination. Voire dire examination is the questions paused by the court to the child of tender years to ascertain whether the child knows the nature of an oath. Such questions are directed to matters related to religious beliefs, which are fundamental to the understanding of an oath to a child. In the case of Kibaragenyi Arap Kolil v R , it was observed that, the investigation should proceed the swearing on evidence and should be directed to the particular questions of whether the child understand the nature of an oath than question of general intention. Further, in the case of Kisiri Mwita V R it was held that, since the child was aged 13 years, he was a child of tender years and so his evidence ought not to have been received without first conducting a voire dire examination. When the child’s evidence is taken on oath such evidence solely can form the base of conviction to the accused person and his evidence so given is good as that of adult, this was held in the case of Elias Joakim V R . In case the child does not know the nature of an oath, the court may receive the evidence of such a child of tender years without considering an oath if the court satisfy that the child has sufficient intelligence to justify the reception of his evidence and understand the duty of speaking the truth . In such a case the court has the duty of recording questions and answers that respond from the child. This is stated in the case of R V. Khan where there was an inquiry about a child understanding the nature of oath. The questions and answers should be recorded so that they appeared in the official transcript. Whether the evidence of a child of tender years needs corroboration. Corroboration in evidence law is the matter of practice and not a matter of law, and such practice is obtained in the case laws. Therefore, in answering the issue whether the evidence of a child of tender years need corroboration, that practice can be seen in the case of Shozi Andrew V R where it was held that the sworn testimony of a child of tender years does not need corroboration. It can be treated as any other sworn testimony and it could form the basis of conviction. From the case law cited above it implies that corroboration pertaining the evidence of a child of tender years is not mandatory if the child manages to take an oath. This can be acted as a sole evidence to convict the accused, but in case the child fails to take an oath his/her evidence needs to be corroborated. In case the court receives unsworn testimony of the child of tender years without corroboration the court has to warn itself the danger of convicting the accused on that evidence if it is fully satisfied that the child is telling nothing but the truth . Further, the evidence of the child of the tender age which taken unsworn may be acted upon by the court as material evidence corroborating the evidence of another child of tender age previous given . From the scenario it shows that the prosecution has two witnesses, Mary and Juma whose ages are 13 and 10 years respectively. Mary’s story is to the effect that she saw the accused leaving the shop in question with a loaded suck. As that, Juma stated that, he was hunting bird in the bush then he saw the accused that looked worried and tired hiding a loaded “Rambo” under the grass. Their stories tend to implicate the accused person with the offence he is charged with. We are of the view that, the evidence testified by Mary may be corroborated by Juma. Therefore these children would be competent witnesses on the prosecution side. But the point to take in mind is that the court has the duty of conducting voire dire examination in order to know whether these children know the nature of oath or they possess sufficient intelligence to justify the reception of their evidence and understand the duty of speaking the truth. EVIDENCE OF OPINION OF EXPARTE WITNESS. As the general rule of evidence that the opinions of witnesses, whether parties themselves or third persons, as to the existence of the fact in issue or relevant facts are inadmissible. As it was said in the case of Carter V Boelim that it was for the court to form opinions or draw inferences from the relevant fact. However, there are instances, which provide exceptions to this general rule and evidences of opinion may in certain circumstance be admissible. If it is admissible then the opinion held must be proved by direct oral evidence of the person who holds that opinion. An important category of admissible opinion evidence is that of experts. There is no a clear definition of the term exparte under the Evidence Act but section 47 of the Act provides that, “When the court has to form an opinion upon a point of foreign law or science or art, or as to identify of handwriting of finger or other impressions, opinions upon that point of possessing special knowledge, skill, experience or art or questions as to identify of handwriting or finger or other impressions are relevant facts. Such persons are called experts”. In the case of R V Secretary of States expert opinion was defined by the court that, “whenever a subject is upon one which competence to form an opinion can only be required by a cause of a special duty or experience such as science, art, technical terms, foreign law the opinion of exparte is receivable and the court is not necessary bound on it”. An exparte witness is a witness who by the virtue of education, profession publication or experience is believed to have special knowledge of his subject beyond that of the average person, sufficient that others may official and legally rely upon his opinion .

In answering the issue whether opinion provided by Dr. Kishoka is admissible, the general rule of the evidence is that the opinions of witnesses, whether parties themselves or third persons, as to the existence of the fact in issue or relevant facts are inadmissible. However, there is an exception whereby the opinion of witness possessing peculiar skill is admissible. Whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgement upon it without such assistance. For instance matters relating with science like medical examination or art needs to be expressed by person who has profession acquired academically and experience too on the issues in question. Such opinion of this person, who is expert in the field in question, is admissible before the court. Further such evidence of exparte should be given in oral form and a mere certificate by him is not admissible. This is stated in the case of Southern Indian Corporation Ltd V Stanley and Sons Ltd whereby it is a fundamental condition for exparte opinion to be admissible. The presence of the person giving such opinion enables court to taste the credibility, knowledge and experience of that person. Whether the court is bound by opinion of Dr. Kishoka. Though the exparte opinion is admissible before the court such opinion do not bound the court to form conclusion basing on the opinion of the exparte. However the court has the duty of giving reason for disregarding the opinion of that exparte. This was stated in the case of Doris Liundi V R whereby it was held that the court is not bound to accept medical testimony if there is good reason for not doing so. At the end of the day, that is, it remains the duty of the trial court to make a finding and in doing so it is incumbent upon it to look at and assess the totality of the evidence before it, including that of medical exparte. Further, failure to give reason of rejecting exparte opinion that will be unjudicial. This was held in the case of C. D. de Souza V B. R. Sharma . Further, an exparte witness is not like ordinary witness who hopes to get his expenses but he is employed and paid in the sense of gain, being employed by the person who calls him. Undoubtedly, there is a natural bias to do something serviceable for those who employ him and adequately remunerate him . The evidence of exparte is to be received with caution, because they may often come with such a bias in their mind to support the cause in which they are embarked that their judgment became warped, and they themselves become even when conscientiously disposed, incapable of expressing a correct opinion. It is the duty of expert to furnish the court with necessary scientific criteria for testing the accuracy of their conclusion so as to enable the court to form their own independent judgement by the application of these criteria to the fact proved in the evidence. Therefore a doctor giving a medical testimony in a criminal trial may be regarded as giving independent exparte evidence to assist the court. It is quite wrong for the court to be directed that this evidence should be accepted in the absence of the reason of rejecting it. The scenario shows that Dr. Kishoka is experienced and highly qualified psychiatric testified on the defence case that at the time of commission of the offence the accused was under delusion and allusination that the deceased was be witching him. Therefore, in answering this question it thus such evidence of exparte is admissible but the court is not bound with such opinion. Further, if the court receives such opinion it has to do so with caution because that exparte witness may be bias on the side calling him. If the court rejects such opinion of the exparte it has to give a good reason for doing so, and failure to that is unjudicial. CONFESSION BEFORE A MAGISTRATE Confession is defined under the Evidence Act . It is also defined in the case of Pakala Narayana Swami V King Emperor as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. For confession to be admissible it must contain the following elements; it should be free and voluntary made to the persons indicated under section 27 and 28 of the Evidence Act, that is, it must be made to Police Officers, Magistrates (including the Primary, District and Residence Magistrates) and Justices of the Peace or any other person in authority; it must be true in the sense that it will sustain a conviction; it must be made by an accused himself; it should be free from threat, promise or other prejudice held out by police officer to whom it was made or any other person in authority. The onus of proving the confession is lying to the prosecution that the confession made by accused was voluntary made and not obtained under improper means . This is also provided in the case of R. V Thomson as follows; “It is the duty of prosecution to prove in case of doubt the prisons statement was free and voluntary and did not discharge themselves on the obligation” The question given indicates that the objection has been raised by the advocate of the accused to the effect that the purported confession produced by the prosecution in whole is inadmissible because it was made before district magistrate sitting in resident magistrate court and therefore in law the magistrate neither vested jurisdiction nor is he a justice of the peace. In responding this question the following issues can be raised and discussed as follows; Whether the confession made to the district magistrate was inadmissible. According to Section 27 and 28 of the Evidence Act provides for persons in authority to whom the confession can be made. These persons include magistrates. However the Evidence Act does not define who is a magistrate but the definition is provided for under the Interpretation of Laws and general Clauses (CAP.1 of the Laws) and the Magistrate Court Act, 1963 to mean a resident magistrate, a district magistrate and a primary magistrate. From the provisions of the Acts magistrate includes district magistrates, therefore this gives impression that he is among the person in authority who can receive confession. The mere sitting on the resident magistrate court does not eliminate the power of receiving confession from the accused person. Further section 2 of the Magistrate Court Act and Interpretation of Laws and General Clauses define district magistrate to include a resident magistrate. From these views it seems that these two magistrates have concurrent jurisdiction. For the confession to be rejected by the court the accused or his counsel must show that such confession has been obtained by an inducement, threat or promise having reference to the charge against the accused person himself . So the confession made to the district magistrate sitting in the residence magistrate court will be admissible because the scenario does not show whether that confession was made by inducement, threat or promise. In such a case the court cannot reject that confession.

CONCLUSION. From the discussion above we are of the view that for the evidence of the child of tender age to be admissible it is onus of the court to satisfy itself that the child of tender age knows the nature of oath or has sufficient intelligence and duty of speaking the truth. If the child fails to take an oath his evidence will be received by supported evidence from other material evidence. That is the matter of practice and not the matter of law. In the other hand the opinion of the exparte is admissible before the court if it is made by the exparte who is by the virtue of education, profession publication or experience is believed to have special knowledge of his subject beyond that of the average person, sufficient that others may officially and legally rely upon his opinion . However the court is not bound by the opinion of exparte witness but the court has to give good reason for rejecting that exparte opinion. Meanwhile the confession taken before a district magistrate sitting in the residence magistrate does not invalidate such confession because district magistrate has jurisdiction of taking confession from the accused person bear in mind that confession is taken on criminal proceeding in which district magistrate has concurrent jurisdiction with residence magistrate in criminal matter unless he has extended jurisdiction.

ALTERNATIVE ANSWER

OUTLINE: - Introduction - Main body: (a) First scenario: -Whether the child of tender age is competent to testify

-Whether the evidence of a child of tender age requires 
 corroboration

(b) Second scenario:

                           Whether an opinion of an expert can bind the court.

-Who is an expert? -Credibility of an expert witness (c) Third scenario: -Whether the confession made before the district magistrate

                               sitting in the Resident magistrate is admissible.

1.0 INTRODUCTION

All persons shall be competent to testify, however, a person can not give evidence in court unless he or she is competent to testify; in other words if the court finds out that they cannot testify due to tender age, old age, diseases and insanity, who are unable to understand the questions or cannot give rational answers to those questions, and the liability to determine whether the witness is competent lies with the court. This is the general rule under the Tanzania Evidence Act (cap) (hereinafter referred to as the Act)

A witness is a person who can testify to court or give evidence which the court judgments are normally made based on them. In order for a person to testify or be a competent witness, he or she must be conversant with the facts of the case also the evidence to be given should be admissible. The competence of a person to testify as a witness is a condition precedent to the administration of to him of an oath or affirmation and is a question distinct from that of his credibility when he has been sworn or has been affirmed

A child of tender age is the child of or below the apparent age of fourteen years, as provided under the Act.

2.0 MAIN BODY

Having seen the definition of witness and who may testify, the consideration is now on the scenarios given.

(a)

In attempting the first scenario the following issues have been raised:

(i) Whether the child of tender age is competent to testify (ii) Whether the evidence of a child of tender age requires corroboration In discussing the first issue, the general rule is that all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them.

No precise age fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have no sufficient understanding. This was held in case of R. v. Brasier. Neither can any precise rule be laid down respecting the degree of intelligence and knowledge which will render a child a competent witness. The intellectual capacity of a child to understand questions, and to give rational answers thereto is the sole test of his testimonial competent and not any particular age. In all questions of this kind much must depend upon the good sense and direction of the judge.

It is not open to a judge to exclude a child’s evidence by reason of age alone since the words of section 33A (2A) of the Criminal Justice Act of 1988 that a child’s evidence should be received unless it appears to the court that the child is incapable of giving intelligible testimony are mandatory. That is the position in India; however, in our jurisdiction the same is provided by section 127(2) of the Act, that the evidence of the child can be taken without oath and section 254 of the Criminal Procedure Act No. 9 of 1985, which deals with the Cross-Examination; also, rules concerning corroboration will apply.

It is the duty of the court to determine whether the child understands the nature of an oath as it was held in the case of Nyasani .v. R.  If it is satisfied that the child understands the nature of an oath it may proceed to swear or affirm him for the purpose of giving evidence. It has to be made clear that the competence of a child of tender years to give sworn evidence in either criminal or civil proceedings depends upon whether the child understands the nature of an oath. As a matter of law such evidence need no corroboration. In the case of Shozi Andrew v. R  the court held that in terms of section 127(2) of the Act sworn testimony of the child of tender years does not need corroboration. The court added that, such evidence can be treated as any other sworn testimony and it can form the bases of a conviction. However, in practice, court normally do not convict on such evidence without warning themselves on the danger of convicting on the bases of uncorroborated evidence of a child. In the case of Kibageny v. R  it was stated that the court should ask questions to the child as to his age, religion, if any and such other questions as will assist it in determining whether the child understands the nature of an oath or affirmation and its obligation; such an examination of an intelligence of a child of tender age is called Voir Dire. Therefore, although it is always necessary to take care where a question is raised as to whether the competence of a child witness, where a child is capable of giving intelligible testimony, the court does not enjoy some wider discretion to refuse to permit that evidence to be given   
 Basing on the above discussion and case laws it is clearly seen that the evidence of two children Mary and Juma who are aged 13 and 10 years respectively can be admitted. They are competent witness as their testimony may lead to conviction of the accused person.

With regard to the second issue as to whether the evidence of the child of tender age requires corroboration; the term ‘corroboration’ is defined in Black’s Law Dictionary,  to mean confirmation or support by additional evidence or authority.  As a matter of practice, evidence of a child of tender age requires corroboration.  However, such evidence will not require corroboration if it falls under the Sexual Offence Special Provision Act (SOSPA), Act No 4 of 1998 where the child is the victim of the offence as per section 127 (7) of the Act as amended by section 27 of Act No. 4 of 1998.

Further, section 127(3) provides that: “ Notwithstanding any rule of law or practice to the contrary, where evidence received by virtue of subsection (2) is given on behalf of the prosecution and is not corroborated by any other material evidence in support of it implicating the accused the court may, after warning itself of the danger of doing so, act on that evidence to convict the accused if it is fully satisfied that the child is telling but the truth.” We conclude by saying that, the evidence of the two children must be corroborated since their evidence talk of two different scenes, and does not establish the fact in issue (theft). The mere fact that Mary saw the accused leaving the shop with a loaded sack does not mean that the accused might have stolen the goods, thus does not establish the fact in issue that he saw the accused stealing, hence, her evidence needs corroboration. The evidence of Juma that he saw the accused who was worried and tired hiding a loaded “Rambo” under the grass may or may not need corroboration because, in the first place, had it not been that he stole the goods he would not have hidden them and been that much worried; in the second place, it needs corroboration because it does not establish the fact in issue, that is, stealing.

(b) With respect to the second scenario the following questions have been raised to answer the fact in issue: Whether an opinion of an expert can bind the court. -Who is an expert? -Credibility of an expert witness

A witness expects the court to believe him and decided a particular case or issue(s) in his or her favour. One of the important things to a witness is his trustworthiness. In order to win the trust of the court a party is required to present witness who is trustworthy. In practice the court will not normally trust witnesses without checking their credibility and also the number of witnesses required to prove a case gagging the weight of evidence. In the case at hand, the doctor is an expert in psychiatric. In the case of R .v. Secretary of State expert opinion was defined by the court that “whenever subject is upon one which is competence to form an opinion can only be required by court of special duty or experience such as science, art, technical terms, foreign law - the opinion of expert is receivable and the court is not necessarily bound on it”

The Act recognizes expert opinion under sections 47 and 48. Section 47 provides that “ when the court has to form opinion upon a point foreign law, or of science or art, or as to identity of handwriting or finger or other impressions, opinions upon that point of persons possessing special knowledge, skill, experience or training in such foreign law, science or art in question as to identity of handwriting or finger or other impressions are relevant facts.”

However, it is emphasized in that same section in subsection two that, persons possessing the above given qualification are called experts. Therefore, it is important for the court before admitting any person’s opinion to satisfy that such person possess the qualification given in the above section as well as the case law provides. An expert is person who, through education or experience, has developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact finder, thus, expert evidence is the means from which an inference may logically be drawn as to the existence of a fact, that is, demonstration of fact given by an expert in the subject matter.

In the case of South India corp. V. Stanley & sons Ltd it was observed that the opinion of the expert must be given orally in the court and a mere certificate by him is not evidence. This therefore is a fundamental condition for the expert opinion to be admissible. The presence of the person giving such opinion enables the court to test the credibility, knowledge and experience of that person. From the above statutory law and case law we note that an expert is person possessing special knowledge, skill, experience or training in certain field and the special knowledge or skill is not confined to knowledge acquired academically but also through practical experience. As we have seen that, person should appear himself in the court to give his opinion where his credibility and experience is testified as to convince the court to believe in the opinion given by him. In the case of Hassan Salim .V. R it was stated that the opinion of an expert has not been taken as conclusive evidence but only admissible to aid the court to come to convenient and correct conclusion in the matter which require expert opinion and follow otherwise the court can brush out the opinion of the expert. Nevertheless, matters of high technicalities, expert opinion must be given great priority and in testing the credibility of the witness. There is no hard and fast rule to determine the credibility of witness, the weight of their evidence and the sufficiency of the same, as it was stated in the case of R .V. Madhub Chamber.

Credibility of a witness depends on some facts such as knowledge of the facts, disinterested and independence in relation to the issues in the case and the results, intelligence, integrity and veracity of the witness. The Act provides two ways in determining the credibility of the witness. This is by impeaching the credibility of the witness and by observing his or her demeanor by the court. Impeaching is done through cross-examination as provided under section 147, 156 and 141 of the Act. This includes examining his errors, omission, mode of life as provided under section 155 and 158 of the Act; and by discrediting the witness using independent evidence as provided under section 164 of the Act. Section 164 (1) (b) of the Act states that, the credibility of a witness may be impeached by proof that the witness has received a bribe or an offer of a bribe to give evidence. By confronting the witness with his or her previous conflicting statement written (section 154 of the Act), or oral (164 (1) (c)) of the Act and lastly by contradicting him or her on relevant matters that is by calling witnesses or offering evidence to contradict the witness on all relevant matters (section 154 and 164 (1) (3) of the Act. In the case at hand, doctor Kishoka who is highly qualified and experienced psychiatrist, causes of action which may be taken is to consider the credibility of his evidence and whether it confine with the requirement provided in the rules of evidence and whether his opinion binds the court. Expert evidence has been considered by the court in the following cases: In the case of R. v. Agnes Doris Liundi the issue in this case was whether the court is bound to accept evidence of medical expert. The court held that, ‘the court is not bound to accept a medical expert’s evidence if there is good reason for doing so’. Also a court does not however, have to accept the opinion which the expert give if it finds good reason for not doing so though it was stated in the case of C.D. de Souza v. B.R Sharma that to reject expert evidence without giving reasons might well be unjudicial. It appears that, the court is bound by medical expert evidence; but it may depart from such evidence if there will be good reasons to do so. Also, in the case of Omari Ahmed .V. R the court held that, ‘there must be some evidence connecting an accused with theft other than the testimony of an expert who is uncertain’. The court further held that, ‘the trial court’s findings as to credibility of witness is usually binding on an appeal court unless there are circumstances on an appeal court on the record which call for a reassessment of their credibility.’ From this holding it appears that, the trial court does the assessment of credibility of expert evidence, and such assessment binds the court of appeal.

(c)

In the last scenario, the following issue has been raised, that is:

-Whether the confession made before the district magistrate sitting in the

          Resident magistrate is admissible.

A confession is an acknowledgement before a proper authority of the truth of the statement or charge. Confession is also defined under the Act as provided under section 3 (1) of the Act. Black’s Law Dictionary defines to mean an acknowledgement in express words, by the accused in a criminal case of the truth of the main fact charged or of some essential part of it. There are two types of confession; that is formal and informal confession. A formal or judicial confession is a plea of guilty or some other direct manifestation of guilt in court or in a judicial proceeding. Informal or extra judicial confession is a confession made out of court, and not as part of a judicial examination or investigation. Such a confession must be corroborated by some other proof of the corpus delicti, (body of the crime) or else it is insufficient to warrant a conviction.

Confession can be freely and voluntarily made before a police officer, justice of peace and Magistrate as provided under section 28 of the Act. The confession, which is freely and voluntarily, made before the Magistrate can be or may be proved against that person.

The term ‘magistrate’ is defined under section 4 of Interpretation of Laws Act, No. 4 of 1996 to mean a resident magistrate, a district magistrate and a primary court magistrate and any other description of magistrate provided for by or under the Magistrates Court Act. Black’s Law Dictionary defines magistrate to mean a judicial officer with strictly limited jurisdiction and authority often on the local level and often restricted to criminal cases. The Magistrates’ Court’s Act defines a primary court magistrate, a district magistrate and a resident magistrate.

The term ‘justice’ of the peace is not defined under the Magistrates’ Court’s Act, No 2 of 1984 (MCA). However, Part Vl of the MCA provides for appointment and powers of Justice of the peace.

Having defined the term confession, briefly observed different types of confession and to whom confession can be made, also defined the terms magistrate and justice of the peace, we can determine the issue raised above that in law a confession made to a district magistrate sitting in a Resident Magistrates’ Court is admissible. Therefore the objection by the defense counsel can not stand since it is not in line with the law as provided under section 28 of Act, that a confession can be freely and voluntarily made before a magistrate, justice of the peace or a police officer. A district magistrate sitting in the Resident magistrate court does not override his/her magisterial powers. It is only a duty station.

A confession can be invalid if it is made under threat, promise or any other prejudice as provided under sections 27 (3), 29 and 32 of the Act.

[edit] competence and compellability of witnesses-by Mushobozi LLB Mzumbe

All witnesses, in order to give testimony must be competent, but not all competent witnesses are compellable. Discuss this statement with particular reference to competence and compellability of spouses both in civil and criminal trial.

OUTLINE

1.0 INTRODUCTION. 2.0 COMPETENCE AND COMPELLABILITY OF SPOUSES IN CRIMINAL TRIAL.

           The general rule
                Exceptions to the general rule

Assault on spouses. Assault on children. Sexual offences against children. 2.1 COMPETENCE AND COMPELLABILITY OF A SPOUSE OF CO-ACCUSED. 2.2 COMPETENCE AND COMPELLABILITY OF EX-SPOUSES 2.3 POSITION OF THE SPOUSE IN DEFENCE CASE 3.0 COMPETENCE AND COMPELLABILITY OF SPOUSE IN CIVIL PROCEEDINGS.

4.0 CONCLUSION

5.0 BIBLIOGRAPHY 1.0 INTRODUCTION.

Generally, all persons shall be competent to testify unless the court finds that they cannot due to tender age, extreme old age, disease, insanity or any other similar cause, who are unable to understand the nature of questions put before them or cannot give rational answers to those questions. Witnesses are largely divided into two; those who are not permitted to testify, and those who are compelled to do so.

A competent witness is a witness whose evidence or testimony is admissible and a compellable witness is a witness who is competent but unwilling to testify or give evidence. Such a compellable witness is compelled (forced) to testify since it is to the interest of the public that justice should be obtained.

A spouse, according to the Tanzania Evidence Act, 1967, (hereinafter to referred to as the TEA), is a wife or a husband of a marriage which is valid according to the statutory or customary laws of the United Republic.

2.0 COMPETENCE AND COMPELLABILITY OF SPOUSES IN CRIMINAL TRIAL.

The general rule

The general rule in respect of the competency and compellability of the spouses in criminal trials is stated under section 130(1) of the Tanzania Evidence Act which reads,

“Where a person charged with an offence is the husband or the wife of another person that other person shall be a competent but not a compellable witness on behalf of the prosecution…”

That is to say the husband and the wife are competent witnesses against each other but they are not compellable witnesses to testify in the favour of the prosecution side. This rule was also held in the case of R V. SIWAJIBU KIBAYA in which the court held that where the line between a valid marriage and concubinage is obscure and where cohabitation takes on the typical features of a durable establishment a spouse of such cohabitation is not under duty to testify for prosecution.

But in connection to the above discussion, section 130(3) of the TEA does not close the room for the spouse who desire to testify against the other spouse or in favour of the prosecution side. The condition precedent to the admission of such evidence is that the spouse must be made aware of his or her rights that he or she is not forced to testify. But if he or she is willing to do so then the evidence of such person shall not be admissible unless the court has recorded in the proceedings that section 130(3) of the TEA has been complied with.

The need to comply with section 130(3) of the TEA by putting it into records of the proceedings was also seen in the case of AKECH V.R . The facts of the case are that the appellant was charged and convicted of arson contrary to section 319(a) of the Penal Code. At the appellant’s trial, his wife was called as a witness for the prosecution. Before she gave her evidence the trial magistrate asked the appellant whether he had any objections to his wife giving evidence against him and the appellant said he had none. The wife then gave her testimony. In that effect the High Court held that this was not in accordance with the provisions of section 130(3) of the TEA. That sub-section requires the court to address not the appellant but his wife and to inform her that she was under no obligation to testify against her husband but she may give evidence against him if she chooses to do so.

In CHARLES IZENGO V. REPUBLIC the judge held the evidence given by the appellant’s wife to be inadmissible since it was not in conformity with the provisions of section 130(3) of the TEA.

It was Held that; 

“The trial magistrate’s record shows that the wife of the appellant… was not told that she was competent but not compellable witness, and as such in conformity with the provisions of section 130(3) of the Evidence Act, 1967, I hold the evidence inadmissible.” The above principle is reiterated in the case of KOTIA MAGOMBA V. R whereby the court held that, where a spouse is a witness for the prosecution, the court must ensure that the spouse is made aware of his rights before admitting his or her evidence, and that spouse evidence is inadmissible unless the court has recorded compliance with section 130(3) of the TEA.

The above cited section deals with criminal proceedings and the rationale behind the section is that if communications between the spouses are disclosed by either of them it may disturb the peace of the family and it will promote quarrel between the spouses.

The policy of protection of the spouses is thus stated by an American judge in the case of STILLMAN V. STILLMAN of which the court observed that communication and transactions between husband and wife were early recognised as privilege and neither could be compelled to disclose what took place between them and neither is a competent witness to testify to such transactions or communication of a confidential nature. From experience it can be found that far less evil would result from the exclusion of such testimony than from its admission. It may in individual work hardship, but the destruction of confidence between a husband and a wife would cause misery and affect the marriage relation. Those living in the marriage relation should not be compelled or allowed to betray the mutual trust and confidence which such relation implies circumstances under which the spouse are competent and compellable to testify against each other in the criminal proceedings.

   Exceptions to the general rule

Despite the above the general rule as to the competence and compellability of spouses as provided for under section 130(3) of the TEA, there are circumstances where the spouses become competent and compellable witnesses to testify against each other or in the favour of the prosecution side.

Section 130(2) of the TEA provides that: “Any wife or husband, whether or not of a monogamous marriage, shall be competent and compellable witness for the prosecution- (a) in any case where the person charged is charged with an offence under Chapter XV of the Penal Code or under the Law of Marriage Act, 1971; (b) in any case where the person charged is charged in respect of an act or omission affecting the person or property of the wife or husband, or any of the wives of a polygamous marriage, of that person or the children of either or any of them” This section is to the effect that the spouse are competent and compellable witnesses in the favour of the prosecution side in suits between married persons or in the proceedings in which one married person is prosecuted for any crimes committed against the other. If a husband is being prosecuted for an offence which he has committed against his wife, the wife becomes competent and compellable witness to testify on behalf of the prosecution.

The one clear exception to the common law rule related to criminal charges involving personal violence by the accused against his or her spouse was established in LORD ANDLEY’S case in which a wife was held competent and compellable witness to testify against her husband who was charged as an accessor to her rape and the decision was based on necessity.

However, in other jurisdictions the spouses become competent and compellable witnesses to testify on behalf of the prosecution side in three situations. These are;-

- Offences involving assault or injury to the spouse, - Offences of similar character against children - Sexual offences against children

Assault on spouses. At common law spouses are competent and compellable witness to testify against each other in cases of violence against them. This position was well stated in the case of R V. LAPWORTH the House of Lords held that, where one spouse has used violence against that other as to be charged with the other victim, a spouse is competent and compellable witness to give testimony on behalf of the prosecution side.

Assault on children. The next category of competence and compellability of a spouse under the common law is on the offence involving assault, injury or threat of injury to children. It is felt under the common law that the basic reason for enacting compellability in such cases is to try to secure the availability of some evidence where otherwise there might be none and some cases, for example cruelty to children too young to testify, might otherwise have to go unpunished. The common law has, it is submitted rightly, adopted the more expensive policy of protecting children generally.

Sexual offences against children. Again under the common law the accused’s wife is competent and compellable to testify against her husband if he commits sexual offences to a child of household. It is interesting to not that the above policy has been adopted in some Australian states and it is recommended by the Australian law Reform Commission, according to which the spouse is prima facie compellable for the prosecution in matters relating to the sexual offences against the children.

2.1 COMPETENCE AND COMPELLABILITY OF A SPOUSE OF CO-ACCUSED. It should be noted that the TEA is silent on the issue of competence and compellability of a spouse of co-accused. But this position is well founded for under the common law. At common law it is stated in R V. BOAL that one spouse is a competent witness for the other but not compellable in cases where both spouses are being tried jointly. The rule of common law provides that a spouse is always a competent witness for the other’s co-accused but compellable for such a person only in circumstances in which the spouse would have been compellable for the prosecution against the other spouse. This is the trite principle in R V WOOLGAR .

2.2 COMPETENCE AND COMPELLABILITY OF EX-SPOUSES Again the TEA is silent on the issue of competence and compellability of ex-spouses in giving his or her testimony against the other. Section 130(1) of the TEA states that where a person charged with an offence is the husband or the wife of another person, the other person shall be a competent and compellable witness on behalf of the prosecution … therefore the wording of the said section does emphasize on subsistence of the marriage and it does not state on broken down of the marriage hence makes the law to be silent on the issue of ex-spouses and that weight of their evidence.

However, the issue of competence and compellability of ex-spouses is provided for under the common law position. At common law ex-spouse are competent and compellable witnesses to testify on behalf of the prosecution side. In MOSS V. MOSS the court held that in any proceeding, a person who has been but is no longer married to the accused shall be competent and compellable to give evidence as if that person and the accused had never been married.

2.3 POSITION OF THE SPOUSE IN DEFENCE CASE.

Spouse is a competent witness for the defence if the other spouse is charged jointly or solely with other accused persons but this is only on the application of the spouse charged. This is well provided for under section 130(4) of the TEA and also in the case of MTOAKODI V. REPUBLIC . In this case it was held that the appellant suffered an injustice in being deprived of the right to call his wife as the assessors in the Primary Court had based their opinion as to the appellant’s guilty, at least in part, on his neglecting to call his wives as witnesses. Also in literal interpretation section 130(5) of the TEA is in line with sub-section 4 of the same section since it shows that a spouse upon the application of the other person becomes competent but not compellable to testify in the defence. That is for the reason that had to spouse been compellable upon application made by the other spouse, the court under section 130(5) of the TEA may not comment upon the failure or refusal to give evidence for other spouse of rather the court may treat him or her as a refractory witness as provided for under section 199 of the Criminal Procedure Act, 1985.

3.0 COMPETENCE AND COMPELLABILITY OF SPOUSE IN CIVIL PROCEEDINGS. Having looked at the competence and compellability of spouse in criminal trial, we now turn to the second part of the question which deals with competence and compellability of spouse in civil proceedings.

In civil proceedings, unlike in criminal proceedings the spouses are automatically competent and compellable to testify against each other. The TEA enshrines within it the provision of the law to compel the spouse to testify against each other. This is as per section 131 of the TEA which states that; “In all civil proceedings the parties to the suit, and the husband and wife or wives of any party to the suit, shall be competent and compellable witnesses.”

4.0 CONCLUSION

In conclusion, we agree that the spouses are competent witnesses in both civil and criminal matters. But when it comes to compellability, they are only compellable in civil matters whereas in criminal matters the general rule is that they are not compellable but this is subject to some exceptions as are discussed hereinabove.

 ALTERNATIVE ANSWER

1.0 INTRODUCTION Witness plays a vital role in the administration of civil and criminal justice. It is an established principle that a person cannot give evidence in court as a witness unless he or she is competent to testify. Incompetent people are not allowed to testify in court. In some circumstances a competent person may be compelled to give evidence but in other circumstances the same cannot be possible.

The competency of a person to testify as a witness is a condition precedent to the administration to him of an oath or affirmation and is a question distinct from that of his credibility when he has sworn has affirmed. In determining the question of competency, the court has to ascertain in the best way it can, wheather from the extent of his intellectual capacity and understanding, he is able to give a rational and intelligent account of what he has seen or heard or done on a particular occasion.

1.1 UNDERSTANDING OF THE CONCEPTS. Witness; According to Black’s Law Dictionary the term witness in its strict legal sense means one who gives evidence in a cause before court and in its general sense includes all persons from whose lips testimony is extracted to be used in any judicial proceedings and so includes deponent and affiants as well as persons delivering oral testimony before a court or a jury . The term witness here includes also parties to proceedings. Competence of witness; Competence is a classic or minimal ability to do something, qualification especially to testify . A witness is competent if he may lawfully be called to give evidence. This means those who can testify. Such person is expected to be conversant with the facts of the case. More precisely a witness is competent to give evidence if his testimony is admissible. The competency of a person to testify is a condition precedent to the taking of a witnesses’ testimony. Competency being a condition precedent to the administration of an oath or affirmation, a determination of competency must be made before the oath or affirmation is administered. The responsibility for determining competency lies with the court. Where the court for some reasons, suspects that a potential witness may not be able to understand questions posed and give rational answers to the same it should ascertain whether or not the witness is in fact competent. Compellability of witness; means capable or subject to being compelled especially to testify .A witness is compellable if being competent, he can lawfully be compelled to give evidence. In other words a witness is compellable if he can be obliged to go into a witness box and to answer questions put to him or else sanctioned for contempt of court if he refuses to do so. Spouse; means husband or wife by lawful marriage. Section 4 of the Tanzania Evidence Act here in referred as T.E.A describe spouse as husband or wife of a marriage which is valid according to statutory or customary laws of the United Republic. Phrase ‘’During marriage’’ with regard to privileged communication under S.130 of T.E.A;If a man and a woman are not legally married as defined under S. 4 the one may be compelled to disclose communications and is competent witness under the general rules of competency since the privilege of non disclosure extends only to the parties in a valid marriage. If there is a valid marriage any communications between the parties are privileged if made during the marriage, even though the marriage has been dissolved before the former spouse is called upon to disclose a communication. A communication made between the parties to the marriage before marriage took place is not privileged, and a witness-spouse may be compelled to to disclose it even though there is a valid marriage subsisting at the time of trial .

2.0 MAIN BODY The question requires discussion on the quotation ‘’all witnesses in order to give evidence or testimony must be competent but not all competent witness are compellable’’ with particular reference to spouse in both civil and criminal cases. This work after giving understanding of concepts in the introductory part it will discuss the categories of witnesses, competence and compellability of spouse in civil cases, competence and non compellability of spouse in criminal case and exceptions thereof, effects of non compliance with S.130 (4) of T.E.A, position of other jurisdictions concerning competency and compellability of spouse, criticism and recommendations.

2.1 CATEGORIES OF WITNESSES. Witnesses generally can be categorized into three groups, first witness who are competent and compellable to testify secondly witnesses who are competent but not compellable and thirdly witnesses who are competent but for some reasons or another court will not allow them to testify. This brings three important notions used in the law relating to witness namely competency, compellability and privilege.

A witness is competent if he may lawfully be called to give evidence, such a witness is expected to be conversant with the facts of the case. The competency of a person to testify is a condition precedent to the taking of a witnesses’testimony. Competency being a condition precedent to the administration of an oath or affirmation, a determination of competency must be made before the oath or affirmation is administered. The responsibility of determining competency lies with the court.

A witness is compellable if being competent he can lawfully be compelled to give evidence. However other witnesses though competent may not be compelled to testify on the ground of privilege.T.E.A has provided certain privileges to certain classes of witnesses. These classes have been laid down under S.130 to S.140 it includes judges and magistrates, communication during marriage evidence as to the affairs of the state etc.The principle of ‘privilege of witness’ is based on the ground of convenience and public policy.

The last categories of witnesses are those who are competent but incapable of giving evidence for one reason or another. These are incompetent witnesses. Their Incompetence is subject to consideration of the court as provided for under S.127(1) of T.E.A,these include people of tender years, people of extreme old age people with disease whether of body or mind or any other similar cause.

2.2 COMPEENCE AND COMPELLABILITY OF SPOUSE In civil cases.

In civil proceedings parties to the suit and the husband or wife or wives of any party to the suit, shall be competent and compellable witnesses as provided under S.131 of T.E.A, that,
        In all civil proceedings the parties to the suit and the husband and wife or wives 
        Of any party to the suit, shall be competent and compellable witness.

Husbands and wives are competent and compellable witness for or against each other in civil suit therefore their testimony is to be scrutinised in the same manner as that of any other witness . S.130 of T.E.A can be construed in the following manner; Evidence against a spouse, if a wife files a maintenance case or divorce she can give evidence against her husband similarly where a husband files a case for restitution of conjugal rights he can give evidence against his wife. Evidence in favour of a spouse, if a husband files a suit for recovery of money, if his wife happens to be one of the witnesses of the promissory note, she can give evidence in favour of her husband.

In criminal cases.

It has been seen that husbands and wives are competent witnesses in all civil proceedings and in criminal proceedings against an accused, his or her wife or husband is a competent witness whether for or against, but S.130 (1) of T.E.A brings in a privilege which affects compellability of such witnesses i.e. spouses. The provision contains a rule of privilege protecting the disclosure of all communications between persons married to one another, made during marriage. The provision of the section provides;
             Where a person charged with an offence is the husband or wife of another
              That other person shall be a competent but not a compellable witness on 
              On behalf of the prosecution

This position of law was reiterated in the case of KOTIA MAGOMBA v R where it was held among other things that a spouse is a competent but not compellable witness on behalf of the prosecution.

Also in the case of MATEI JOSEPH v R the appellant was convicted of murder and sentenced to death. At his trial his wife was compelled to testify against him as a key witness. He appealed against conviction and sentence. It was held that the evidence of a spouse who has been compelled to testify against another spouse in criminal case contrary to the provision of S.130 of T.E.A is inadmissible and of no effect.

It is important to note that the privilege operating under S. 130(1) of T.E.A refers only to communications made during the subsistence of the marriage but not communications made before marriage. This privilege extends to all spouses whether or not the marriage is monogamous. The rule applies to communications of every nature. The rule of privilege applies equally whether or not the witness or his spouse is a party to the proceedings. It extends to all cases i.e. cases between strangers as well as to suits or proceedings in which the husband or wife is a party. It also extends to communications made to spouse and not to those made by spouse. But the privilege is conferred not on the witness (unless the witness happens to be the spouse who made the communication), but on the spouse who made the communication; the witness cannot therefore waive it at his or her will nor the court permit disclosure even if he or she is willing to do it. It is only the spouse who made the communication who can consent to give up the privilege.

The privilege said to apply only valid marriage that being the case it of importance to look on other relationships, which may not be considered as valid marriage particularly where concunbinage is involved.

In the case of R v SIWAJIBU KIBAYA a couple lived together in concubinage for three years, begot two children and entertained the desire and hope of going through a ceremony of marriage in the near future. The court considered whether a ‘‘spouse’’ under such circumstances in Tanzania is under duty to testify against the other ‘’spouse’’. The question was whether section 130(1) of T.E.A applicable to couple who have lived together in concubinage for space of three years. The Judge said we got the rule from England and it only applies where there is valid marriage, however, it is appropriate that we approach the matter against the backdrop of the real Tanzania i.e. according to the circumstances prevailing in this country, cohabitation is a notorious affair, where the line between the valid marriage and concubinage is obscure and where the cohabitation takes on a typical features of a durable establishment, a spouse of such cohabitation is not under duty to testify for the prosecution.

The protection conferred by the law under S.130 (1) of T.E.A continues even after the marriage has been dissolved by death or divorce. The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made and its admissibility will be adjudged in the light of the status at that date and not the status at the date when the evidence is sought to be given in Court.

Also where a person whom the court has reason to believe is the husband or wife or in polygamous marriage, one of the wives of a person charged with an offence is called a witness for the prosecution, the court shall ensure that person is made aware of his or her right of not being a compellable witness on behalf of the prosecution before giving evidence as provided under S.130 (3) of T.E.A. The evidence of such person shall not be admissible unless the court has recorded that the provisions of S.130(3) has been complied with.

In the case of AGUSTINE KENTE v R the wife was not informed of her rights under S.130(1). The court held among other things that where the court has reason to believe that the prosecution witness is a wife or husband of the accused unless case falls within the statutorily defined exceptions, the said court has before such witness gives evidence to educate him or her on the effect of S.130(1) of T.E.A and let seen to have so done by recording in the record that the same has been complied with before the witness begins giving evidence on the side of prosecution. The same had been held earlier in the case of KOTIA MAGOMBA v R that where a spouse is a witness for prosecution the court must ensure that the spouse is made aware of this right before admitting the his or her evidence.

On the other hand a wife or husband of a person charged with an offence is a competent witness for defence at any stage of proceedings, provided that he or she is called as witness on the application of the accused spouse as provided S.130 (4) of T.E.A In the case of MTOAKODI v R the appellant in the trial court was not permitted to call his wife as defence witness. It was held that the appellant suffered injustice in being deprived of the right to call his wife as the assessors in the primary court based their opinion as to the appellant’s guilt at least in part, on his neglecting to call his wife as witness. Appeal allowed.

The provision contains nothing concerning the compellability of a spouse as a witness for defence but upon application by the accused, a spouse fails or refuses to give evidence the court and the prosecution may comment upon such failure or refusal to give evidence for the other spouse as provided under S.130 (5) of T.E.A. In the case of R v MWANAHUSI it was held that a husband or wife upon being called as a witness for the defence fails or refuses to give evidence as required, the prosecution or the court, may charge him or her for contempt of court.

2.3 EXCEPTIONS TO THE GENERAL RULE; SPOUSE IS NOT COMPELLABLE WITNESS ON BEHALF OF THE PROSECUTION IN CRIMINAL CASES.

A wife or husband be it monogamous or polygamous marriage shall be a competent and compellable witness for the prosecution when in any case the person charged with an offence under Chapter XV of the Penal Code or under the Law of Marriage Act, 1971 as provided under S.130 (2)(a) of T.E.A. 

Also in any case where the person charged is charged in respect of an act or omission affecting the person or property of the wife or husband, or any of the wives of a polygamous marriage, of that person or the children of either of them as provided under S.130 (2),(b) of T.E.A In the case of R v KIHANDIKA the accused who was married to two wives was charged with murder of one of them. The other wife gave evidence for the prosecution. It was held on the charge affecting the person of one wife another wife is a competent and compellable witness for the prosecution against her husband. Onyiuke J. was of the view that in the society that recognizes polygamous marriage the expression ‘’the person or property of the wife ‘’includes co-wife. Where a husband commits an offence, e.g assault against a member of his family such as one of his wives or any of their children I can see n reason in principle for not making any of his wives who witnessed the incident a compellable witness.

2.4 POSITION OF THE RULE IN OTHER JURISDICTIONS Under English law a spouse is a competent witness in the prosecution but not compellable. He or she may be compellable to testify in prosecution side if the offence involves assault, injury or threat of injury to the wife or husband of the accused or person who was at the material time of the age of 16 or the offence charged is sexual offence alleged to have been committed in respect of the other person who was at the material time under the age of 16 or the offence charged consist of attempting or conspiring to commit or of aiding, abetting,counselling,procuring or inciting the commission of the offence of sexual offence or assault or injury.

In Australia a spouse is prima-facie compellable witness for the prosecution in all cases but the court is given discretion to excuse a spouse from testifying according to certain guidelines as set out in the statute .

2.5 RATIONALE FOR THE RULE THAT SPOUSE IS COMPETENT BUT NOT COMPELLABLE WITNESS Sarkar on Evidence says, this enactment rests on the obvious ground that admission of such testimony would have a powerful tendency to disturb the peace of families, to promote domestic broils (quarrel, noisy, argument) and to weaken if not destroy that feelings of mutual confidence, which is most endearing solace of married life .It is a public policy of each state to protect marriages.

2.6 DISTINCTION BETWEEN S.130 AND 131 OF T.E.A

The object and purpose of S.130 particularly subsection (1) subject to its exceptions under subsection (2) is to give protection to the communications made during marriage and thus provides domestic peace and conjugal confidence between the spouses. On the other hand S.131 is of the effect that spouse is competent and compellable witness for or against the other spouse in civil proceedings.

2.7 CRITICISMS AND RECOMMENDATIONS

In criminal proceedings the spouse of an accused person is competent witness for defence at any stage of proceedings upon application by the accused person as provided for under S.130 (4) of T.E.A. The provisions of this section does not provide for compellability of such spouse but subsection (5) of the same provision provides that if such spouse upon being called fails or refuses to give evidence as required the prosecution as well as the court may comment upon such failure. In our view such failure shall not be made the subject of any comment as long as the law itself does not provide for compellability of such person but rather competency only.

Also the rule that spouse is competent but not compellable witness on behalf of the prosecution said to be applicable when there is valid marriage does not favour much the circumstances of inhabitants of this country. For example it was observed by Mapigano J. in the case of R v SIWAJIBU KIBAYA (supra) that cohabitation is notorious affair in Tanzania that the line between a valid marriage and concubinage is sometimes obscure and that often such cohabitation takes on the typical features of a durable establishment. We think it will be safe for the law to provide for such circumstances of the lives of inhabitants of this country rather than to base solely on judicial decisions which though good law may be subject to overruling by the Higher courts.

3.0 CONCLUSION It is true that all witnesses are competent but not all witnesses are compellable taking into account the privileges given by the law to certain classes of witnesses such as spouses, judges, magistrates and advocates, etc.With particular reference to spouses, they are competent for and against each other in all civil proceedings as provided for under S.131 of T.E.A while in criminal proceedings spouse is competent but not compellable witness on behalf of the prosecution as provided for under S.130(1) of T.E.A.. However, this general rule is subject to statutory exceptions and also a spouse of a person charged is a competent witness at any stage of proceedings for defence upon application of the person charged.

[edit] “…Protracted and irrelevant cross-examination not only adds to the cost of litigation but is a waste of public time”

“…Protracted and irrelevant cross-examination not only adds to the cost of litigation but is a waste of public time”

In the light of the above statement elucidate the law on the examination of witnesses.

TABLE OF CONTENTS 1.1: INTRODUCTION - What is a witness - What is examination of witnesses - Types of examination of witnesses

2.0: MAIN BODY 2.1: What is cross-examination 2.2: How cross-examination 2.3: Limitations of cross-examination 2.4.1: Questions which allowed under cross-examination 2.4.1: The production of document in cross-examination 2.5: Power of the court in cross-examination 2.6: Effects of protracted and irrelevant questions in cross-examination 2.7: The validity of statement

3.0: CONCLUSION

4.0: BIBLIOGRAPHY

INTRODUCTION Any trial in court is intended to get the truth of controversial facts and give rights to the parties. In the adversarial system of justice, which Tanzania is using the court stands as an interested umpire and the parties are required to convince the court of the truthfulness of the facts they allege. Law determines the standards for such proof. In most cases if not all a party in a Civil or criminal proceeding would require the assistance of other people conversant with the material facts in convincing the court on the truth of his/her version of the fact. It is under these circumstances that witnesses are required. Witness is a person who appears in court to give evidence, there are witness for defense and witness for the prosecution.

When a witness is brought to the court he/she is expected to give some information that would assist the court to reach the decision of the case. This is done through questioning witnesses. This process of questioning witness is known as examination of witnesses. Examination of witnesses ordinarily done in three stages namely examination in chief, cross-examination and re-examination. Only in exceptional circumstances that witnesses are re-examined in chief and re-cross examined, other author adds fourth stage known as court examination. These stages are very important in gathering information from witnesses and show these stages are used to get information in civil and criminal proceedings.

Civil and criminal proceedings adopted the question of calling witnesses from both sides the order in which witnesses are produced and examined should be regulated by the law and practice for the time being relating to civil proceedings, like Civil Procedural Code (CPC) and criminal proceedings as criminal procedure Act respectively and in the absence of any such laws, by the discretion of the court.

Criminal Procedure Act, 1985 S. 290 provide that the witness called for the prosecution shall be subject to cross examination by the accused person or his advocate and to re-examination by the advocate for prosecution. While OX of the Civil procedure code provide examination of parties by the court for example rule 2 of the same order provide that a person is liable to answer questions relatively to the suit by whom such party or his examined orally by the court. Also OXVIII of the same Code provide examination of witnesses rule 4 is provides witnesses to be examined in open court also rule 6 of the same order examined in open court also and answer to be taken down.

Therefore both nominal procedure Act and civil procedure code provides examination of witness.

S.145 (1) of Tanzania Evidence Act refers as T.E.A states when either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner that fact, if proved would be relevant.

Therefore examination of witness behaves as a method in which the court itself becomes sober to that evidences advanced by the witnesses are correct so as to assist it to arrive to the decision. The purpose of examination of witnesses is to exculpate or to find the truth. The order in which witnesses are examined will be relevant provisions as it provides by s. 144 of T.E.A

Section 146 of T.E.A provides for the three stages in examination of witnesses, as explained herein below:

1.1 Examination in chief This is the first stage whereby examination of a witness is done by the party who calls him. The examination must be confined to the relevant fact as per section 147 (2) of T.EA. The object of examination in chief is to allow the witness to give all materials facts, which helps to establish the case of the party that called witness. The witness should be asked questions whose answers the witness knows which answer should be valuable in the case.

1.2 Cross examination This is done soon after examination- in- chief the adverse party gets the opportunity to examine the witness. This will be discussed in details under part 2.1 (main body).

1.3 Re- examination When cross-examination is over, the party who called may re-examine him again. Unlike cross examination it has some limits, it is primarily intended to cover pit holes or inconsistence during cross examination, therefore witness get opportunity to reconcile the discrepancies if any. To remove any ambiguity in the deposition or suspicion case on the evidence by cross-examination.

1.4 Court examination In Tanzania we have adversarial system of procedure. This system is not fair because the parties are not equally represented. So it is on the basis of these circumstances that the court is “not” expected to fit like a referee of a football match. The court must interfere in order to search for the truth at any time during examination in chief, cross-examination, and re-examination. It may also order a certain witnesses to be called if believes that such witnesses will be of importance in reaching decision.

2.1 MAIN BODY Because the general knowledge of examination of witnesses has been given in the part of introduction above. This part will concentrate on the statement given that: “….Protracted and irrelevant cross-examination not only adds to the cost of litigation but is a waste of public time”

This statement was given by Lord Chancellor, in an appeal in the House of Lord, in the case of Viscount Sankees,L.C, in MECHANICAL ETC. CO. LTD V AUSTINS

The literal meaning of this statement is that questions in cross-examination which are irrelevant that are not in fact in issue or in the scope of examination-in- chief adds cost and waste of public time. In court especially during cross-examiner counsel or advocate have discretion to ask different questions to the witness but sometime advocate or cross-examiner may abuse this privilege using much time by protracting through asking questions which are irrelevant to the scope of the case or cross- examination or may make a several repetition of questions which may consume time in cross-examination, length of time in cross-examination. Therefore this abuse in the matter of cross- examination, which enormously increases the costs of litigation without any corresponding, benefits to the parties and waste of public time. To understand well cross examination rules and regulations of it, we have to discuss in details cross-examination, its technique and limitations.

2.2 What is cross-examination?

Cross-examination is a powerful and valuable weapon for testing the veracity of a witness, and the accuracy and completeness of his story.  Ordinarily cross-examination follows immediately upon examination in chief unless the court for some reason postponed it.  The essence of cross-examination is that it is the interrogation by one party, of a witness called by his adversary with the object either to obtain from such witness, admissions favorable to his cause or to discredit him.  Cross-examination may be compared to the testing the rope, inch-by-inch and strand-by-strand.  If the rope is really strong, it will stand the test; if it is weak it will give way at one point or another.  It follows that cross-examination ought not to be expected to shake a story which is substantially true.  Testing the evidence is therefore the keynote of cross- examination, and it will be realized that quite apart from assisting the party who conducts the cross-examination the subjection of evidence to such a test enables the judge to assess its value and so serve an important public purpose in the administration of justice.

In general detail, the aim of cross-examination is to destroy the material parts of evidence given in examination-in- chief, to weaken the evidence given in examination- in-chief where it cannot be destroyed, to elicit new evidence, helpful to the part cross-examining, and to undermine the witness (or shake his credit as it is commonly expressed) by showing that he cannot be trusted to speak the truth, or that he is deposing (however honestly) to matters of which he has no real knowledge.

Cross-examination does not need to be confined to the evidence raised in the examination in chief, although it is not restricted in scope it must relate to relevant matters. Witness, therefore may be cross-examined not only as to the facts of the case but also of the matter not material to the issue with view to impugn his credibility and thus shake his whole testimony. The question must be relevant for the purpose of impeaching credit, though not to the issue. However irrelevant it might be to the matter in issue the question may be asked in cross-examination if the answer to it tends to affect the witnesses credit. But even in cross-examination under garb of shaking, credit, grossly irrelevant or vexatious question will not be allowed if they do not really impeach the credit of witness or do not challenge the evidence given in examination-in chief to the matter under enquiry. The failure to afford opportunity to exercise the right to examine is a fatal error.

In the case of ISSA JAKALA V R the accused was convicted of cattle theft. At the trial the magistrate did not give him an opportunity to cross-examine the prosecution witnesses. On appeal it was held that the failure to extend to the accused the to cross-examine was a fundamental error and the conviction cannot stand despite the apparent strength of the prosecution case.

Any matter which is proposed to contradict the evidence in- chief given by witness must normally be put to him so that he may have an opportunity to explain the contradiction and failure to do so this may be held to imply acceptance of the evidence in chief, but is not an inflexible race and it has been held to be unsuitable to proceedings before lay justices.

In the civil case of BHANDARI V GUATANA the court held that the denial of the right of appellant counsel to cross-examination to the respondent on vital issues render the trial unsatisfactory, resulting in the appeal being allowed. In additional the right to cross-examination under s. 146 of T.E.A is mandatory while that under s. 176 of the same Act needs an application to the court and a specific leave of the court to do so.

All witnesses are liable to be cross-examined except the one who is called for the sole purpose of producing a document and one who is not examined in chief because he had been called by mistake. The testimony of a witness is not legal evidence unless it is subjected to cross-examination. The exercise of this right (cross examination) is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth.

2.3 How cross-examination done A skilful cross –examination is the highest attainment of an advocate’s art, its technique can be acquired only by natural instinct or by long practice. The Act has, however, laid down some rules of guidance.

Unlike examination – in- chief, cross examination need not be confined to relevant facts as provided under s. 147 (2) of the T.E.A that, cross-examination need not be confined to the fact to which the witnesses testifies in his examination – in – chief. Further it differ from both of them, leading questions are permitted in cross-examination as per s. 152 of T.E.A, the basis of this rule is that normally a witness is biased in favour of the party who calls him. Leading questions asked by the adverse party would, under normal circumstances be a good instrument to get important facts of the case from the witness. A leading question is one which suggest to the witness the answer which it is desired he should give. But if it merely suggests a subject without suggest an answer or a specific this it is not leading. Apart from this discretion of using leading questions s. 160 of T.E.A the court may forbid any questions, which it regards as indecent or scandalous.

TEA provide discretion to the court to permit a party who calls an opponent as a witness has no right to cross examine him, however hostile he may be without the leave of the judge. Whether a witness is a litigant or not. It is a matter of discretion in the judge whether he shows himself so hostile as to justify his cross examination by the party calls him.

The rule prohibit a party to put questions to his own witness in the name of cross examination if a witness on the ground that he is expected to have turned hostile is permitted by the court to cross-examined by the party who called him, the whole of the evidence of that witness does not become worthless.

It is open to the court to consider the evidence and there is no objection to a part of that evidence being made use of in support of prosecution or in support of the accused, but his evidence is not necessary must be corroborated by other reliable evidence can sustain conviction.

No cross-examination can be allowed of a witness who is “summoned to produce a document unless and until he is called as a witness to character to be cross-examined and re-examined.

2.4 Cross examination’s limitations In cross examination there are, besides two rules of practice, that the witness must be cross-examined on all material facts which are disputed. Otherwise the court will take it that his evidence is not contested. An advocate, in cross- examination, must put to the witness the case he is going to set up, so far as it lies within the witness’s knowledge; such cross examination is a necessary preliminary to the calling of contradiction evidence.

2.4.1 What questions are allowed under cross examination Not all questions are allowed under cross-examination advocates or any person engaged in cross-examination must be selective. Before such questions are asked the person putting them must have reasonable grounds for thinking that the imputation was well founded. The cross examiner must have reasonable ground to believe that the imputation made against the witness is well founded S.159 of TEA prohibit asking question without reasonable ground.

All questions or inquiries which are indecent or scandalous, unless they relate to facts in issue are to be avoided. This is provided under s. 160 of T.E.A together with s. 161 of the same Act, prohibit all question which are calculated to insult or annoy or couches in a needlessly offensive form.

The court has the power to forbid any question which is in tended to insult , annoy or which is couches .

To sum up this part of limitation of cross examination is that questions are not allowed unless either: (1) They are relevant to the issue in the case or (2) Though relating to collateral questions, they tend to impeach the credit of the witness s. 158 an s. 168 of T.E.A also section 155 of the same Act show the scope of questions to be asked during cross examination

2.4.2 The use of document in cross examination A witness may be cross examined as to whether he made a statement contained in a document without, in the first instance, showing it to him; but the document (or the material part of it) must be shown to the witness if he denies that he fogged it, and if evidence is thereafter to be called to contradict him.

Cross-examination on a part of document, it should be noted, may take the whole of it admissible in evidence. Also witness may be asked whether he wrote or signed a document without necessarily show it to him, he can not be asked questions as to the contents of a document (such as what he meant by a certain phrase or why he wrote it) until the document is properly put in a evidence.

If not that procedure used above, the alternative procedure is to put the document in the hands of witness without proving it, reading it out or putting it in evidence and asking him. “Now after looking at that document do you still adhere to what you said before?”

This procedure is useful where the cross-examining counsel does not wish to put the document in evidence, where it will be difficult to prove it. This point of document in cross-examined is provided in our evidence law s. 154 of TEA also S.171 provides the witness may testify to facts mentioned in as such document.

2.5 Power of the court in cross examination The judge or magistrate may in all cases disallow any question put in cross examination which may appear to him to be vexations or not relevant to any matter proper to be required into rules and regulation given. In cross-examination some of the witnesses at great length and width may repetitions, which drew some courteous criticism from the judge. Viscount Mangham, in writing case of MECHANICAL G.I CO.LTD V AUSTIN has expressed the opinion that where the volume of material is considerable, it is the duty of counsel to make a selection of the points, which are really important. A cross examination about minutiae can go on forever. The same words was given by another Lord Chancellor, in appeal in the House of Lords that “…Protracted and irrelevant cross examination not only adds to the cost of litigation but is a waste of public time”

These great authorities would deny that lengths are sometimes inevitable. In the average case, however cross examination can and should be kept within reasonable limits. It is known that cross examination is powerful our valuable weapons for the purpose of testing veracity accuracy of witnesses and counsel has discretion. But where examination appears to be unduly protracted and irrelevant the court has power to control the cross-examination apart from the evidence Act. Court have full power to prevent any abuse of the rights of cross examination in any manner approp riate to the circumstances of the case (BANKE V. KANHAIYA, A 1922).

2.6: Effects of protracted and irrelevant questions in cross examination There are certain practical risks in carrying cross-examination too far. The case will normally take long time simply because when an advocate or a person who made cross examination will ask questions which are protracted and irrelevant in cross examination then all these questions will need answers from that witness. By so doing the process of cross examination becomes too long as a result there will be a slow disposal of cases in our courts.

The unnecessary question, this is rather similar matter. When good result has been obtained, it is always possible that, by a question intended to clinch the matter, the whole effects may be spoilt. If a cross-examiner has got ninety percent of what he wants, he should usually stop because further questions may produce an unexpected explanation which tells against him.

Having protected and irrelevant question in cross-examination may lead to injustice because witness may give false explanation (before he knows all the facts which will involve him in contradictions)

2.7: The validity of statement above It is true that most of advocates or cross examiners in cross examination invite irrelevant questions or protracted one thus lead to the wastage of public time and add costs for the parties of the suit. Also give other inconvenience in the suit as shown in the part 2.5 of this work.

Therefore we are of the view that though cross examiners are free to ask whatever questions during cross examination they are suppose to adhere to the limitations as explained in part 2.3 of this work, so as to avoid protracted and irrelevant questions during cross examination which will help in saving public time and unnecessary cost of the case where parties to the suit become responsible for that costs.

3.0 CONCLUSION Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. But this should not be used arbitrary. There are limitations of cross examination which are given under the law of evidence over which question should be asked and which one are not allowed. If this law will be followed properly then it becomes a good method of testing credibility and truth of the witness in cross examination while will be bad method of testing witness and get the truth if will not be done as directed by evidence Act and other laws.

[edit] testimony of witnesses

During a trial in which you’re a party you are taken by surprise to learn the following.

                       (i) Your key witness is proving facts in issue and other relevant fact, which have a negative impact on your case contrary to your prior arrangement.

(ii) Your key witness is not desire of telling the truth. Discuss the cause of action to remedy the situation and the legal significance of the testimony of your key witness.

OUTLINE.

1.0 INTRODUCTION

2.0 Your key witness is proving fact in issue and other relevant fact which have negative impact on your case contrary to your prior arrangement. (Unfavourable Witness)

   2.1 Cause of action to remedy the situation.

2.2 Legal significance of an unfavourable witness.

3.0 Your key witness is not desire of telling the truth. (Hostile Witness)

3.1 Cause of action to remedy the situation.

3.2 Legal significance of a hostile witness.

4.0 CONCLUSION.

5.0 BIBLIOGRAPHY.

1.0 Introduction

Witness is a person who being present personally sees or perceives a thing, a beholder, spectator or eyewitness. One who testifies to what he has been seen, heard or otherwise observed. A person whose declaration under oath or affirmation is rescinding as evidence for any purpose whether such declaration be made on oral examination or by deposition or affidavit .

While a key witness or material witness is a witness whose testimony is crucial to either the defence or prosecution. Such a witness must be conversant with fact in issue and other relevant fact.

“Fact” in issue means any fact from which either by itself or in connection with other facts the existence, non- existence, nature or extent of any right, liability of disability, asserted or denied in any suit or proceeding, necessarily follows .

“Relevant fact” a fact is said to be relevant to another when the one is connected with the other in any of the way referred to in the provision of the Tanzania Evidence Act relating to the relevancy of facts.

So, it is natural to presume that a party calling a witness on his behalf has reasons for believing that the witness knows something about the case which is in favour of such party, for it would be useless and contrary to common sense if a party were to call as his witness persons who are obviously going to speak against his case.

In almost all-criminal trial in subordinate courts, witnesses for the prosecution will usually have made statements to police, and those statements guide the public prosecutor in the selection and examination of his witnesses.

But a man being an imperfect creature with many weaknesses is not always to be relied upon to do that which others expect him to do. From time to time witnesses do exhibit their human weaknesses. A witness may come to court unexpectedly gives evidence which is the very opposite of the statement he had made to police, and he insist that what he is then telling the court is the truth or the witness proving fact in issue which have a negative impact on your case contrary to your prior arrangement. This lies at the root of the distinction between unfavourable witness and a hostile witness.

2.0 Unfavourable Witness. An unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact or proves an opposite fact . A witness is not hostile merely because he gives unfavourable evidence against the party calling him. A witness may give unfavourable evidence against the party calling him yet be fair and truthful. Such a witness cannot properly said to be hostile but unfavourable.

2.1 The Cause of Action to Remedy the Situation.

With a situation where a key witness is proving facts in issue and other relevant fact, which have a negative impact on the case contrary to the prior arrangement of the party calling him, in order to remedy such a situation, that party will apply to the court to call for more witness so as to contradict such an unfavourable witness.

At common law, a party was allowed to contradict his own witness by calling other evidence if he was unfavourable, but this did not amount to the modification of the prohibition against discrediting his witness. In the case of EWER V. AMBROSE , someone whom the defendant called to prove a partnership proved the contrary, it was held that the defendant could rely on the testimony of other witnesses in support of the existence of the partnership. Holroyd J:

   “If a witness proves a case against a party calling him, the latter may show the truth by other witnesses. But it is undoubtedly true, that if a party calls a witness to prove a fact, he cannot, when he find the witness proves the contrary give general evidence to show that the witness was not to be believed on his oath, but he may show by other evidence that he is mistaken as to the fact which he is called to prove.”

The situation is the same in Tanzania, though the law on evidence is silent on the matter, this presupposes the application of the common law position as per section 2 (3) of the Judicature and Application of the Laws Act .

2.2 Legal Significance of Unfavourable Witness.

The legal effect is that, other evidence though may contradict the evidence of such an unfavourable witness; it cannot be discredited unless he proves hostile .

3.0 Hostile Witness.

A hostile witness is the one who is ‘unwilling, if called by a party who cannot ask him leading questions, to tell the truth and the whole truth in answer to a non leading questions-to tell the truth for the advancement of justice’. In the case of R V. HAYDEN it was stated that, a witness is hostile not merely if he contradicts a previous statement, but also if he refuses to answer. On the same stance, a hostile witness is the one who tells lies about what he obviously knows or who deliberately changes his story and, from his demeanor and manner, is clearly biased against the party calling him.

Two conditions have to be shown so as to ascertain whether a witness is hostile or not. First it has to be shown that there is hostile animus (Intention) and second, it has to be shown that the witness is not desirous of telling the truth.

3.1 The Cause of Action to Remedy the Situation.

These two conditions can well be identified and proved if the party calling the witness, say, the public prosecutor discovers in the course of the witnesses testimony that what the witness is telling the court is materially inconsistence with his former statement or part of it. So in order to remedy the situation, the part calling the witness, example, the public prosecutor, should apply to the court to be permitted to treat the witness as a hostile witness. A party calling such a witness with the leave of the court may cross-examine the witness; that is, he may ask the witness questions showing that the witness is not telling the truth.

General rule is that a party who calls an opponent as a witness has no right to cross examine him however hostile may be, without leave of the court. Whether a witness is a litigant or not, it is a matter of the discretion of the court whether he shows himself so hostile as to justify his cross examination by the party calling him.

However the same position is provided under Section 163 of the Evidence Act, 1967 which state as follows “the court may in its discretion, permit the person who calls a witness to put any question to him with might be put in cross examination by the adverse party”. 

The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him, by the evidence of person who testify that they, from their knowledge of the witness, believe him to be unworthy of credit; or by proof that the witness has received the offer of a corrupt inducement to give his evidence; or by proof the former statements inconsistent with any party of his evidence which is liable to be contradicted; or it can be shown that the prosecution was generally of immoral character . In the case of R V. PREFAS it was said that hostility could be inferred from previous inconsistence statements, including those made orally.

Before making the ruling on application, the magistrate or judge will have to be satisfied that the contents of the former statement and what the witness has told the court are substantially different, and that by his demeanor and bearing he is a hostile witness. This is also well provided in the case of JUMANNE ATHMAN MKETO V. R where it was stated that, before a court permit a party to put questions to his own witness by way of cross examination it should call for the previous statement of the witness so as to determine whether an application to declare witness hostile has any factual basis and that the question whether a witness has in fact turned hostile is to be determined by the court and not by the party.

3.2 The Legal Significance of the Hostile Witness.

As a general rule, when a witness has been treated as a hostile, the evidence of that witness is hardly worthy of credit. It should also be noted that the earlier statement which is put in to show that the witness is hostile does not thereby become substantitive evidence in the trial. Its only purpose is to show that the witness is hostile. In the Court of Appeal for East Africa in the case of ALOWO V REPUBLIC , it was stated that

‘In the first place, the basis of leave to treat a witness as a hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible. Secondly, the earlier statement is not evidence at the trial and could not therefore be relied on’.

Moreover, where a witness has been declared hostile his or her evidence should be ignored. In elaborating this point, the court in the case of TEDDY LUCAS V REPUBLIC it was held that, it is a fatal irregularity for the court to treat the statement of a hostile witness as evidence and rely on to convict. A similar view was held in the case of MABATI Bin RUADIBA v REPUBLIC .

According to Kivuyo and Sameja in Simplified Evidence, provides that the evidence of hostile witness is not to be rejected either in whole or in part. It is not also to be rejected as it is in favour of the party calling the witness nor is it to be rejected so far as it is in favour of the opposite party. The whole of the evidence must go to the courts record. The rule of law is that it is for the court to decide, but it should always be received with great caution.

However, under the English Law position it was accepted in the case of R V. GOODWAY that there is now no absolute obligation to disregard such testimony in England and that the judge has discretion in directing the jury how much may be accepted.

Furthermore, the position in India provides to the effect that, if a witness on the ground that he is suspected to have turn hostile is permitted by the court to be cross examined by the party who called him the whole of the evidence of that witness does not become worthless. It is open to the court to consider the evidence, and there is no objection to a party of that evidence being made use of in support of prosecution or in support of accused . Where the party calling a witness declared him hostile and allowed to be cross- examined it was held that he was not necessarily an unrealiable witness and his evidence, if corroborated by other reliable evidence, can sustain conviction .

Another legal significance of a hostile witness is that, can cause the case to be strike out. Example if it is a criminal case and the key witness for the prosecution turn hostile the result is that prima facie case will not be established. Then the case will be thrown away.

4.0 Conclusion.

From the above discussion it has been shown that unfavourable witness is that witness who proves fact in issue and other relevant fact which have a negative impact on your case contrary to your prior arrangement. This is because he testifies on real situation without siding on either party; he made a fair and truthful statement. If the key witness become unfavourable on the party called him the only solution is to ask leave of the court to call for other witnesses in order to contradict such unfavourable witness. The hostile witness is the key witness who is not desire of telling the truth. So the party called him may ask for the leave of the court to cross-examine him which is an exception to the general rule that cross examination is done by the adverse party. Though he testifies with hostile animus the evidence of a hostile witness must be recorded.

[edit] burden of proof

“Burden and standard of proof of evidence required to satisfy it, are matters of significance in any dispute and vary according to the nature of the dispute.”

Critically discuss OUTLINE:

1.0 INTRODUCTION:

1.1 Meaning of burden of proof 1.2 Meaning of standard of proof

2.0 MAIN BODY 2.1 The Concept of Burden of Proof

2.2 Burden of proof in criminal and in civil cases

2.2.1 In criminal maters

2.2.2 In civil matters

2.3 The standard of proof required in criminal and in civil matters

2.4 Significance of the burden and standard of proof

2.5 The variation of the two concepts depending on the nature of dispute

3.0CONCLUSION

1.0 INTRODUCTION. When a matter (case or suit) is taken to a court or tribunal it is assumed that the person taking the matter to such a tribunal has evidence enough to prove the matter before it. This obligation imposed by law is termed a burden of proof. The term originates from a Latin maxim “onus probandi” and means the obligation to prove allegation which are presented in a legal action. According to F Y V Chandrachund and V R Manohar ; the term burden of proof means sometimes that a party is required to prove an allegation before judgement can be given in his favour; it also means on a contested issue one of the two contending parties has to introduce evidence.

The Encarta encyclopaedia the expression burden of Proof, in law is defined as the responsibility for proving a disputed charge or allegation. The same encyclopaedia proceeded by adding that in criminal trials, the prosecution has the heavy burden of proving guilt beyond a reasonable doubt. In civil trials, the burden on the plaintiff is less rigorous.

The aspect of burden of proof under the Evidence Act is covered by section 110 which states that whoever desires any court to give a judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. It is further given by the act that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person .

It should be borne in mind that the aspect of burden of proof has to go hand in hand with that of standard of proof. That though the law has imposed obligation to the party who asserts the existence of a fact there are some standards which have been set depending on the nature of case at hand to be reached before a party can be said to discharge the duty/ burden.

Under the evidence law section 3 (2) provides for the standard of proof for both criminal and civil matters that in criminal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond reasonable doubt that the fact exists and in civil matters, including matrimonial causes and matters, its existence is established by a preponderance of probability.

On the premise of the statement of the question it follows therefore that both in the burden and standard of proof there are certain requirements which have to be met and these differ depending on the nature of the matter in dispute.

2.0 MAIN BODY

2.1 The Concept of Burden of Proof

Having seen the definition of the terms the focus to be given emphasis herein below is on the types of burden and standards of proof thereafter the discussion will base on the assertion that “Burden and standard of proof of evidence required to satisfy it, are matters of significance in any dispute and vary according to the nature of the dispute”. In this regard the discussion is going to dwell on the significance and variation of the burden and standard of proof.

There are two types of burdens known in evidence which are introductory burden which is also called the legal burden or persuasive burden and the other category is the evidential burden.

The legal burden is the burden which is the burden of establishing the case. This means that the party whose burden is that of establishing the case must establish it in doing this he has to convince the court on the nature of the truth of his evidence . This is an obligation which remains on a single party for duration of the plea and it is fixed and remains unchanged through out the entire trial and never shifts to the adverse party . The party that fails to discharge this burden will fail the case either the whole or some parts of the trial.

The other type of burden is the evidential burden as Phipson states that it is the burden of adducing evidence and it is the continuation of persuasive burden. It is the burden of introducing evidence generally or the obligation of adducing sufficient evidence on a particular fact to justify a finding on the fact in favour of the party. Thus it is the obligation that shifts between the parties over the cause of the proceeding of the litigation. Thus it shifts as soon as the party adduces evidence to raise a presumption in his favour, which the court will consider prima-facie proof of some state of affairs. Hence creating an evidential burden to the opposing party to present evidence negative the presumption. The evidential burden is coved by the examination of witnesses in court.

The above discussion on the two types of burden of proof avail us pace to direct our discussion. On the concept of standard of proof regards being paid on the statement of the question.

The general rule as far as the concept of the standard of proof is that “he who alleges must prove ” as explained above then in criminal cases and in civil matters it is the prosecution and the plaintiff respectively who have to prove. . This can be linked with the constitutional requirement under Article 13(6) (b) of the constitution that every body is presumed innocent until proven guilty. It was said in the case of SONI V STATE OF GUJARAT that it is for the prosecution to bring guilty home to the accused

2.2 Burden of proof in criminal and in civil cases The burden of proof in criminal and civil cases do differ; while in criminal cases the general rule is that the burden is on the prosecution in civil cases the burden lies on the plaintiff. However this general rule has exception as is goin to be seen in the following discussion.

2.2.1 In criminal maters Burden of proof is one of the most important issues in litigation, and in criminal cases it is closely linked with the presumption of innocence - the principle in most modern legal systems that an accused person is "innocent until proven guilty.

In criminal cases, the burden of proof is often on the prosecutor. The principle that it should be is known as the presumption of innocence, but is not upheld in all legal systems or jurisdictions. Where it is upheld, the accused will be found innocent if a valid case is not presented. 

For example, if the defendant is charged murder, the prosecutor bears the burden of proof to show the jury that defendant did murder someone The position reiterating the application of the burden of proof in criminal matters is well stipulated by the case of WOOLMINGTON V DPP that;

“Throughout the web of the English criminal law, one golden thread, is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt ... No matter what the charge, or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of English, and no attempt to whittle it down can be entertained.”

It was further said that the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence, and it is sufficient for him to raise a doubt, as to his guilt; he is not bound to satisfy the jury of his innocence.

So what can be observed hare is that the prosecution being the party alleging is obliged to prove the case against the accused when it has discharged the duty the obligation shifts to the accused to raise reasonable doubts on the evidence given by the prosecution. In this regard the court is supposed to base not on the weakness of the accused evidence but on the burden by the prosecution as was stated in the case of MOSHI D/O RAJABU V REPUBLIC that;

“The burden of proving the charge against the accused is on the prosecution so that the trial Magistrate, to say he cannot depend on the prosecution evidence, is to read the upside down the authorities - and if it is by design, then it is strange and unjudicial behaviour.”

Therefore here we can see the importance of the aspect of burden of poof that by imposing it on the party alleging we are avoiding fabrication of a case or evidence which could result into injustice in case it was otherwise( if the accused was to prove innocence beyond reasonable doubts)

Also it prevents injustice to the accused in that penalty in criminal maters may lead into restraining persons liberty and so for a person to be convicted of the offence the person alleging is the one who has to the burden to prove on the existence of the fact in issue.

2.2.2 In civil matters

In civil matters the burden of proof is imposed on the plaintiff. This is what is found in section 111 of the Evidence Act. It is presumed that in civil cases when a person claims for his right and when he is running in the adversarial system of dispute settlement as we do the party alleging is expected to know all the facts of the case hence he has burden to prove it.

The significance of this fact is that it prevents injustice because if the case has been fabricated then the party may fail to discharge his burden.

2.3 The standard of proof required in criminal and in civil matters.

Starting with the criminal matters, where it is said the standard of proof is that the prosecution has to prove beyond reasonable doubt and in failure it can not fall back upon the evidence adduced by the accused in support of his defence to rest its case solely thereon. In the case of JONAS NKIZE v REPUBLIC the court stated that;

“the general rule in criminal prosecution, is that, the onus of proving the charge against the accused, beyond reasonable doubt lies on the prosecution, is part of our law, and forgetting or ignoring it is unforgivable, and is a peril not worth taking.”

On the other side as it is known the party after discharging the burden of proof on its side such obligation shifts to the other party to prove other wise. The standard of proof also varies according to the type of dispute at hand.

In criminal matters after the prosecution has discharged its burden and the burden shifted to the accused, the accused has to raise reasonable doubts in the prosecution case. So it can be said that the duty of proving put to the defence is lighter than that imposed on the prosecution it was stated in the case of MUSOKE V R that in criminal cases the accused person is in much more better or favourable side because he is not called upon to prove the case beyond all reasonable doubts for it is sufficient if he succeeds to establish a doubt of his guilty.

However basing on the adversarial system which is followed in Tanzania it is the duty of the prosecution to prove beyond reasonable doubts that the crime has been committed. Thus it is the evidence given by the prosecution which will enable it to discharge its burden and not that of the accused as it was stated in the cases of KOYAMA VR and MUSOKE V R (supra) that; where the evidence against the accused is circumstantial the inference of irresistible and incompatible with the innocence of the accused such that it may not be subject for explanation or hypothesis except that of guilty. Simon LC, added in the case of MANCINI V DPP stating that; “I would formulate the following propositions: Woolmington's case, is concerned with explaining, and reinforcing the rule, that the prosecution must prove the charge it makes, beyond reasonable doubt, and consequently, that if, on the material before the jury, there is a reasonable doubt, the prisoner should have the benefit of it. The rule is general application, in all charges, under the criminal law.”

In criminal maters therefore it can be concluded that when the burden shifts to the accused then the accused only has to prove the case on balance of probabilities and not beyond reasonable doubts.

2.4 Significance of the burden and standard of proof

Moreover, the burden of proof is of importance where by reason of not discharging the burden which was put upon it, a party must eventually fail. As discussed earlier, one significance of imposing a burden of proof to a certain required standard is that it prevents injustice because if the case has been fabricated then the party may fail to discharge his burden. In criminal matters, Burden of proof is one of the most important issues in litigation, and in criminal cases as shown earlier, it is closely linked with the presumption of innocence - the principle in most modern legal systems that an accused person is "innocent until proven guilty. The burden of proof is the concept of holding one party to a dispute or one side of a debate responsible for producing a prima facie case. If this party fails to produce a valid case, the decision will go against them, without requiring any further evidence or discussion. However, where both parties have already produced whatever evidence they had, the question of burden of proof ceased to be of any importance. Where the motion is at the discretion of the court and both of the parties have laid evidence, the question of burden of proof would become relegated to the position of secondary importance.

2.5 The variation of the two concepts depending on the nature of dispute

Generally in evidence, burden of proof rests upon a person who calls attention of the court. It is thus, the burden of prosecution to prove their allegations and of the plaintiff in civil matters to prove his/ her allegations. This burden is however tend to shift to the other party where the party advances claims prove its case to the satisfactory, that is, beyond reasonable doubt on criminal matters and on balance of probabilities on civil matters and matrimonial causes. It is thus in criminal case the burden of proving the matter, which was originally fixed to the prosecution shifted to the accused person to prove the opposite, when the prosecution establish the prima facie case. Some cases are illustrative. In HAMISI V R , the court held;

`Once the accused has been found in possession of property which may reasonably be suspected of having been stolen or unlawfully obtained, then the burden shifts on him of satisfying the Court as to how he came by the same. But the burden is not a heavy one.'

The same was observed in the case of SAID HEMED V R where it was the holding of the court that in criminal cases the standard of proof is beyond reasonable doubt. Where the onus shifts to the accused it is on a balance or probabilities. In civil matters when the plaintiff prove his case on balance of probabilities, the burden shifted to the defendant to raise doubt, that is, he has to prove some circumstances which will dis-entitle the plaintiff to relief claimed. . Another aspect to be reflected when talking of these variation is on the provisions of section 114(1) of the Evidence Act that; where the person is accused of an offence and he wants to prove the existence of the circumstances bringing his case within any of the general exceptions provided under any law which establishes the offence. For example general defences provided under chapter four of the Penal Code . Thus under these instances the burden of proof is upon him and the court shall presume the absence of such circumstances.

In addition where the accused pleads alibi, the burden lies on him to substantiate that fact at least to the extent of reasonable probability. Even if the evidence produced is capable of creating a doubt whether the accused was there at time of the decision of the happening, he becomes entitled to benefit of doubt .

There are however circumstances where the whole principles of burden of proof are varying, that is it is an accused who need prove the case in criminal matters and it is the defendant who is to prove allegations in civil matters.

With the burden of proof in criminal matters there are instances whereby the operating principle is that the accused is the one which is obliged to prove the case and not the prosecution. Most of these instances are statutory. That is some statutes tend to put the legal burden on the accused. Some examples are; Tanzania Wildlife Conservation Act, Prevention of Corruption Act, Prevention of Terrorism Act and Immigration Act.

In matters of prevention of corruption for example, the burden of proving corruption is laid in law, by the accused. This burden is however not so onerous as that which lies on the prosecution and is discharged by a proof of balance of probabilities. Section 23 of The Prevention of Corruption Act is to the effect that when the case involves the receiving of corruption the burden is upon the accused to discharge it hence different from the general rule which is to the effect that the burden of proof lies on the prosecution.

Despite the fact that the law in this piece of legislation places the duty to discharge the burden on the accused the court of appeal in the case of BEN ZUBERI MWAMBA v R was to the view that before the burden of proof shifts to the defence in offences involving being in possession of property corruptly acquired there must be reasonable suspicion of corruption or unlawful acquisition. In this effect therefore though the burden shifts to the defence the prosecution duty is just to raise reasonable suspicion and not reasonable doubt.

Another variation to the general rule on burden of proof can be seen when dealing with the aspect of Res Ipsa Loquitor which falls on the negligence cases in which the plaintiff is to prove the fact of negligence however if from the face there of it appears that the negligent act would no have happened had the defendant taken proper measures to prevent it, the burden of proof lies on the defendant to prove that he was not negligent. Here we can see the diversion from the general rule of burden of proof in which now the plaintiff alleges but the defendant is the one who has to prove innocence.

Further another variation can be seen when dealing with proof of execution of document, in which the burden of proof lies on the part which wants to rely on it. Illustration When a document is proved to bear a certain signature and that it was signed with the intention of execution, if a person wants to show the contrary the burden lies on him. Another variation to be noted can be seen on the aspect of standard of proof when the burden is imposed on the accused to prove a case due to the requirements of the statutes is that though the law imposes the obligation on the accused to prove the standard of proof required is that of balance of probability and not beyond reasonable doubt

Further more it can be said that the burden of proof differs according to the nature of the dispute in that in criminal trials the burden of proof is higher than in civil cases. In criminal cases the standard of proof should be beyond reasonable doubts while in civil cases is on the balance of probabilities. This means in civil cases the party have duty to prove up to 50%. However with these variation on the standard of proof on the two aspects of the balance or preponderance of probability and beyond reasonable doubt there are situation where an accused may be sued in both criminal and civil case. The position is somehow complex in this aspect as defendant may win in the criminal case but in the civil case the same defendant may be defeated, the opposite is also the case. It is the position of our jurisprudence that the conviction on criminal case does not dispense with proof in civil case. This was the position of the court in the case of MAKWARUZI V MULEMELA . 3.0 CONCLUSION. Taken more generally, the standard of proof demanded to establish any particular conclusion varies with the subject under discussion. Just as there is a difference between the standard required for a criminal conviction and in a civil case, so there are different standards of proof applied in many other areas of life. Therefore it follows from this discussion that there are the significance of the court to cast the burden on the prosecution and the plaintiff in both criminal and civil cases respectively. Though this has been the general rule there have been several variation which ultimately changed the position of the general rule as has been discussed above. All in all the presence of burden and standard of proof in cases either criminal or civil is of paramount importance.

BIBLIOGRAPHY.

STATUTE.

Tanzania Government of, The Evidence Act No 6 [Cap 6 R. E. 2002], The Government Printers, Dar es Salaam.

BOOKS.

Black, H. C (1991), Blacks Law Dictionary, West Publishing Co. USA.

Chandrachund Y. V and V. RManohar , V R (1997), Ratanlal and Dhirajlal The Law of Evidence, 19th Edn Wadhwa and Co. Nagpur, New Delhi.

Chandrachund Y. V and V. R Manohar, V R (2004), 21st Edn, Ratanlal and Dhirajlal The Law of Evidence, Wadhwa and Co. Nagpur, New Delhi.

Howard, M. N, et al (1990) Phipson on Evidence, 14th Edition, Sweet & Maxwell, London

Reddy, G.V. (2004) Sujatha Law Series: The Indian Evidence Act, 1872, Sujatha Law Books PVT. Ltd, Hyderabad.

MANUAL.

Elliot, D. W, (1980), Phipson and Elliot Manual of The Law of Evidence, 11th Edn, Sweet & Maxwell, London.

P. Kivuyo and Sameja F, Evidence Simplified Manual.

[edit] law is a proffession and not business-Mushobozi

“…Law is the profession and not business. The member of a legal profession is an officer of the court, whose main purpose is to assist the court in administering justice according to the law”

      Discuss this assertion in relation to the characteristics of the legal profession distinguishing the same from business.

1.0 INTRODUCTION

The fact that lawyers form a profession seems to be accepted as a truism. It is one of the few occupations which for centuries have enjoyed the status of a profession. Even after the field was narrowed in the past two centuries, the profession of the law has continued to occupy a place among professions, and to enjoy the status of professionalism.

According to Black’s Law Dictionary a profession is a vocation, occupation requiring advanced education or training. A profession is further defined as an especially desirable and dignified occupation. It implies intellectual training and an expertise which is largely mental in character .

The 1980 Report of the British Royal Commission on legal services described “profession” as follows: When a profession is fully developed it may be described as a body of men and women (a) identifiable by reference with some register or record; (b) recognized as having a special skill and learning in some field of activity in which the public needs protection against incompetence, the standards of skill and learning being prescribed by profession itself; (c) holding themselves out as being willing to serve the public; (d) voluntarily submitting themselves to standards of ethical conduct beyond those required of the ordinary citizen by law; (e) undertaking to accept personal responsibility to those whom they serve for their actions and to their professions for maintaining public competence .

A legal profession is, therefore, an occupation calling or vocation of those people who have attained advance specialized education and training in the field of law and are qualified and licensed to practice law. These people are called Legal Practitioners or advocates.

The legal profession is governed by various legislations, in order to make them not go outside the ethical and other obligations of legal practitioners. Among the legislations in Tanzania are the Advocates Act and subsidiary legislations made thereunder, the Tanganyika law society Act , and The Rules of professional conduct and Etiquette of the Tanganyika Law Society. The latter is the one in which we can find the characteristics of a legal profession.

This work shall be confined into differences between legal profession and business while discussing in details the main characteristics of the legal profession.

2.0 DIFFERENCES BETWEEN LEGAL PROFESSION AND BUSINESS.

Having seen the meaning and the law governing legal profession in Tanzania, it is now the turn to look at the differences between it and business basing on the characteristics of a legal profession.

2.1 Advertisement The first characteristic which distinguishes legal profession from business is the rule against advertisement. The advocates Act and the Rules of Professional Conduct and Etiquette of the Tanganyika Law Society (hereinafter referred to as the Rules of Professional Conduct and Etiquette) prohibit the employment of any kind of advertisement through the media or such other means which are regarded as amounting to advertisement.

The provisions of rule 5 of the Rules of Professional Conduct and Etiquette, provides among other things, the following; No advocate may directly on indirectly apply for or seek instruction for professional business, or do or permit in the carrying on of his practice any act or thing which can reasonably as…advertising or as calculated to attract business unfairly. In its scope, the rule against advertisement is wide under the law; it embraces not only self-promotion in newspapers, magazines and so forth, as is ordinarily understood in business. In respect of an advocate or firm of advocates it covers a considerably wider area. It includes such acts as an over description of oneself on a nameplate, the use of an ostentatious nameplate, or displaying a nameplate elsewhere than at one’s place of business. It also includes the taking of photographs which are intended for publication while wearing his gown .

2.2 The rule against Touting

The other difference between the two is the rule against touting. This rule is covered by section 47 of the Advocates Act and rule 5 of the Rule of Profession Conduct and Etiquette. Touting is the use of intermediaries (touts) to bring or attract clients to one-self. Although this is prohibited in law it is a very common, important and legal practice in business transactions.

Touting is not only professional offence but also criminal. In fact, tout are regarded with such aversion among legal circle that the law gives to the Chief Justice powers to exclude them from the precincts of the Court. In a certain case an aspiring Advocate was removed from the list of applicants for enrollment after allegations of touting were leveled against him. He had to wait for an entire year before being admitted .

2.3 Exclusion of non lawyers.

Another difference is that, for a person to act as a lawyer he/she should have obtained some special qualifications, whereas in business, so long as a person has got capital there are no any prior qualifications for him to be a businessman. In our country, before a person can practice as a lawyer he should, first, be enrolled as an advocate as per the provisions of the Advocates Act . Or a person may be entitle to practice as an Advocate if he is solicitor of the supreme Court in England, Northern Ireland or the Republic of Ireland, or if he hold some qualifications as are provided under the Advocates Act or if he is the holder of any similar qualification which is accepted by the council of legal education as a professional qualification.

Section 41 of the Advocates Act provides for the restriction of unqualified persons not to act as Advocates. Sub section (2) of this section makes the contravention of this section an offence and contempt of the Court which may result to penalty or incapacitation of maintaining action for any costs in relation to the suit, forfeiture and fine. In addition to section 41, section 42 of the Advocates Act provides for penalty for pretending to be an Advocate.

However there are some circumstances in which non lawyers are allowed in some restricted sense to represent others before the Court. A party may be represented in civil suit, if he is a minor or, for any sufficient cause, he cannot adequately put his case or defend himself. The court should not allow a representative of a party to act on his behalf merely because he would like the representative to speak for him, or he thinks that the representative is cleverer than he is. But this practice of finding for the sole reason of his competence is very common in business transactions.

The above point was illustrated in the case of N.K.J. ZABRON V.NAIMAN MOIRO . In that case, a non lawyer named Rangia was seeking to represent a person who was a party to the case on the basis of a power of attorney in which the party purported to grant him the right to represent him before the Court. In denying audience to him, Nyalali, C.J., said; I am not aware of any provision of law permitting the conduct of case by a person holding a power of attorney where the party concerned is also present in Court. The learned trial judge undoubtedly was wrong to permit the said C.J. Rangia to appear in the case.

2.4 Remuneration The remuneration rules also mark the distinction between the two. In normal business transactions remuneration is subject to contractual agreement between the parties transacting, whereas in legal profession remuneration of Advocates are governed by the orders made by the Remuneration committee. According to section 49(2) of the Act, the Chief Justice or the remuneration committee may make orders prescribing and regulating the remuneration of advocates in regard to both contentious and non contentious business.

Advocates are not allowed to agree or accept remunerations above that which is provided by the remuneration rules. However this rule is somewhat watered down by other rules, for instance, rule 13 and 14 of the Advocates Remuneration and Taxation of costs Rules , under which as between client and advocate, additional remuneration may be allowed where a job requires and receives exceptional dispatch. However, despite the fact the fact that the Advocate may agree with his on the amount he is going to charge him, he cannot charge him below the minimum amount set by the Remuneration rules .

2.5 The prohibition of the sharing of profit with non legal personnel.

According to Rule 6(f) of the Rule of professional conduct and etiquette of the Tanganyika Law society, an Advocate is not allowed in any way to share his profit with a person who is not a legal professional. This is different from normal business transactions, where a businessman can share his profits with whoever he wishes.

2.6 A lawyer should not be used as a tool by his client.

Though a lawyer is an agent or representative of his client, he cannot afford to be tool in hand of the client. No member of the legal profession should accept such work which make him disloyal to the court or place him in a compromising position. In normal business transactions however, the businessman is allowed to undertake any type of business provided that it legal and it is not contrary to any public policy.

2.7 Fiduciary duty to the client.

Despite the fact that a lawyer is not a tool in the hands of his client, yet he is in a position of trust, and he must do every thing to protect the interests of his client according to law. Whenever it appears that a lawyer gives out the secret of his or her client that means he break the fiduciary duty that he or she owes to his or her client. Whereas in business transaction the relationship between the businessman and his client is based upon contract, a business man is not a trustee of his client (subject to various exceptions, like banking business)

2.8 Competition No member of legal profession should compete with the other members of the profession. Allowing competition among advocates will amount to defeating the purposes for the enactment of provisions which prohibits advertisement and touting. However competition is the key feature in normal business transactions, since businessmen have to compete with each other in order to establish themselves in their respective businesses.

2.9 Conflict between duty and personal interests

Whenever there is conflict between his interests and duty, his duty must prevail, whereas in normal business transactions the businessman’s interests prevail. In an application before the Advocates Committee at Dar es Salaam , the Mr. Benard Mrema complained against Dr. Lamwai for not represented. The reason given for non representation is that the advocate (Dr. Lamwai) was a member of parliament hence too busy to attend the case. The committee ruled for the complainant stating that the complainant had lost the case due to Dr. Lamwai’s negligence. Being a member of parliament was Dr. Lamwai’s personal interest in relation to his duty as an advocate.

3.0 CONCLUSION

The discussion above reveals the differences between the legal profession and business basing on the former characteristics. In our opinion, we think these differences should be kept, but with some minor modifications on the rules governing the conducts of advocates. Among the areas to be modified is the rule against advertisement, the law on contingency fees and so forth.

[edit] duty of advocate to his client-by mushobozi

“In the discharge of his office, the advocate has a duty to his client, duty to his opponent, a duty to court a duty to the state and a duty to himself.”

Discuss how an advocate can successful discharge all these duties and explain what he should do in event that two or more of these duties conflict each other within the context of conflict of interests.

OUTLINE

1.0 INTRODUCTION

        The concept of advocate and roll

2.0 MAIN BODY

      - Advocate’s Duties and the way can be discharged successfully
      -The advocates duties and conflict of interests

3.0 CONCLUSION

4.0 BIBLIOGRAPHY

1.0 INTRODUCTION An advocate for an ordinary person is known to be a person with LLB qualification. The scope of the minds of people goes as far as representation of the clients to the court of law. Somehow explicit definition states that an advocate is a person involved in advising clients and drafting legal documents as well as appearing in the court of law to defend their clients.

The law defines an advocate as any person whose name is duly entered upon the Roll . Thus the “Roll” means the list of Advocates kept by the register of the High Court certain qualification are of vital importance for a person to be eligible to qualify as an advocate, these qualification bear academic and professional one and the said person has to go through certain oral examinations conducted by the Council of Legal Education and subsequently be interviewed by the chief justice .In Tanzania the roles of advocates are wider as they are the only persons who can practice law in all regular courts.

2.0 MAIN BODY

The duties of the advocate are classified as five-folds. As Fauzi Twaib on lord MACMILLAN classification the Advocate has a duty to his clients, a duty to his opponent ,a duty to the court, a duty to himself and the duty to state . For MWALUSANYA J (as he then was), these duties are not exhaustive thus in the case of KHASSIM MANYWELE V R added that the good advocate must be histrionic, crafty, courageous, eloquent, quick minded, charming, and great hearted. However for the discharge of his duties as provided for by Lord Macmillan it needs talents as there are conflicting interest against each duty which is the offspring of the conflict of interest.

2.1 DUTIES OF AN ADVOCATE AND THE WAY THEY CAN BE DISCHARGED SUCCESSFULLY.

To start with the duty of an advocate to the client; this starts at the time of taking instructions from the client. In giving instructions, an advocate should be patient as he is not supposed to disturb a client when narrating the story. After the completion of narratives an advocate has to fill the gaps by asking questions. The advocate has to advice his client and if the case is to be taken to court of law, and his client is the plaintiff an advocate has to draft documents mainly the demand letter, plaint and other subsequent documents for civil suit in case the client is the defendant the advocate has the duty to read the documents from the other side namely the plaint later writes the written statement of defence. Thus he has to abide to the rules of pleadings. 

Also an advocate owes duty to his client not to divulge confidential communication with the client. The duty not to represent conflicting interests was well stated in the case of R V RAJANI as amongst the advocate duties to the client, where the court held that a lawyer appearing for the prosecution and who also prepared a draft of a written statement for the accused was guilty of having committed breach of the rule of professional conduct. Furthermore in this aspect an advocate has to give his opinion to his client in regard to the nature of the case. The advocate has to tell the client the weakness in his case In WILLIAMS V FANSHAW PORTER & HAZELHURST (A FIRM) however; Mance LJ said that a solicitor owed his client a duty to keep him informed about any error in the handling of the client’s affairs which might give the client cause for complaint against the solicitor. The decision of the House of Lords in CAVE V ROBINSON JARVIS & ROLF does not directly address the duty of a lawyer to discover or disclose his mistakes. It was stated; it is only where the defendant is aware of his own deliberate wrongdoing that it is appropriate to penalise him for failing to disclose it. . In addition to that the advocate is duty bound to inform his client the general conduct of the case. This duty was well stated in the case of WILLIAMS V FANSHAW PORTER & HAZELHURST (A FIRM) (supra) Mance LJ at p 29 said that;

"there is no doubt that a solicitor owes a duty to keep his client informed about the general conduct of the matter he is handling as well as about any error in the handling of the client's affairs which may give the client cause for complaint against the solicitor".  

The duty to keep the client informed is a general or "running" duty. On top of this duty an advocate has to appear before the court to defend his client after agreeing the instruction from the client and instituted the case for his client. This duty was reiterated in the cases before the Advocate Committee , for instance IN THE MATTER OF THE ADVOCATES ORDINANCE CAP 341 AND IN THE MATTER OF AN APPLICATION OF BERNARD R. MREMA AND IN THE APPLICATION TO THE REMOVAL FROM THE ROLL DR. MASUMBUKO R.M. LAMWAI, ADVOCATE , where Dr. Lamwai did not appear to represent the complainant as instructed hence the dismissal of the complainant case made the Committee to come up with the decision that failure to render legal services by representing the complainant was equated to misconduct For the case which is to be taken to the court of law the duty of advocate to the client was stated in the case of PETT V GREYHOUND RACING ASSOCIATION LTD Lord Denning stated that for justice to be done every one ought to have the help of someone to speak for him adding that the person for such task is an advocate. In this case therefore the advocate has the duty to his client to speak for him.

In addition, an advocate has duties to his opponents. The advocate has to use his best efforts to restrain and prevent his client or himself from resorting into sharp and unfair practise to his opponent in court. Further his duty to his opponent extends to the supply of documents before institution of the case. For instance an advocate has to write demand notice to his opponent before instituting the case otherwise there will be no litis contestatio. Again the plaint has to be served to the opponent and if the advocate is in the defence side has the duty to reply to the plaint.

In the mean time as the statement of the question states an advocate has the duty to serve his client “to the exclusion of others” is not absolute .It is tempered by his duty to the court .Thus the duty of an advocate to the court is an overriding duty which in appropriate cases, must be observed even at the expense of his clients interest .The duty obligates the advocate never to mislead or misguide the court .The advocate duty to the court extends to the fact that the court is made aware of the cases decided on the mater before the court disregarding as to whether they are in favour of the advocates case. This will involve the thorough knowledge of the law and grasp of relevant laws, both substantive and procedural; hence an advocate is duty to equip himself.

This duty brings the idea that before appearing in the court of law an advocate has to make a research. In Tanzania the landmark case of ABUALLY ALI BHAI AZIZ V BHATIA BROTHERS LTD the Court of Appeal commended the work done by the counsels in both sides and amicus curiae which ultimately drove the court to come up with the brilliant decision on the matter. The court in this case in appreciation of the role played by the advocate observed that; “…We must at this stage express our profound appreciation for the industrious research made by all advocates in general, and by Mr Jadeja and Professor Fimbo in particular. As it will presently be apparent, this extensive research has had a direct impact on the quality of our decision” In this case therefore the duty of advocate to the court as far as research was concerned was commendable. The courts in Tanzania likewise compile the advocates to comply with the duty of advocate to research as was stated in the case of DR MASUMBUKO LAMWAI V VENANCE NGUHA AND THE ATTORNEY GENERAL .where the court stated that the counsels of both sides could not recover the costs of the case as they did not conduct research .therefore the duty to the court is the inherent one. In this case the court observed that; “…both advocates therefore have more than ten years of legal practice and are expected to know that where a legal issue is raised in the highest court in the land well in advance of the hearing date, appropriate legal research is required by advocates of both sides to assist the court to make the decision which is correct in law. We are compelled to express our disappointments at the conduct of learned advocates both whom we know are capable of doing better than they did.”

Other duties of an advocate to the court are that the advocate has duty as far as his personal relations with the judge; marked attention and unusual hospitality on the part of the lawyer to the judge, which is likely to lead to misconstruction of motives should be avoided. Further an advocate being the officer of the court is not supposed to waste the time of the court by trying to obtain adjournment without proper reasons. If that is done by an advocate it will substantiate the maxim justice delayed justice denied. Thus therefore an advocate is obliged not to cause unnecessary delay of cases in court.

Meanwhile an advocate has a duty to himself. An advocate must be presentable in all occasions and must appear in the court only in the prescribed attire. Further an advocate has to be sportive that is accepts any result of the cases. Apart from these duties adherence to the law especially the Advocate Act and the Regulations established thereunder will make the advocate in better position. That an advocate is not supposed to contravene sections 46, 47 and 48 of the advocates Act .

The duty of an advocate to the state is that, when in the course of perfoming his duties an advocate has to make sure that he acts within the laws of the land that he is not supposed to contravene public policy. However the balance of interest between lawyers and the state suffered set backs after independence until 1990’s in Tanzania. The legacy had been that most states have negative attitudes towards lawyers. Napoleon Bonaparte wishes to ‘cut the tongue’ of advocates. Likewise Shakespeare preferred the’ regime without lawyers’ stating that, lawyers have to be killed.

As it has been noted, soon after independence, the relationship between the state and the lawyers was not settled; the rationale was failure to enshrine the Bill of Rights in the Constitution . It should, however be known that the right to legal representation is provided under the Constitution basically under the articles providing for the basic rights of individuals and without the bill of rights being enshrined in the Constitution we do not have this right. The intrusions of legal technicalities so beloved by lawyers were taken as obstacles towards the policy of developmentalism.

However after the enshrinement of the bill of rights in the Constitution in 1984 the then Deputy Prime Minister and Minister of Home Affairs had on number of occasions while in power found in confrontation with lawyers . However most of the advocates have decided to have the balancing approach to find as to whether the member of executive in dispute with the members of the Bar is acting on his own capacity or is acting within the four corners of the executive .

Despite all confrontation by some members of executive to the lawyers, the duty of advocate towards the state in that time was maintained. Constitutionalism and democracy has awakened the state to respect this profession especially during this period of market-oriented economic system which has expanded the private sector and internationalisation of the economy.

Having seen the above, duties of an advocate, it has to be borne in our mind that the function of advocates are not confined towards the court room only. Advocates have many functions as their duties starts even before the matter is taken before the court room. Lawyers apart from rendering advice to the clients to take their maters to the court of law it is evident that litigation is not the primary or basic expression of law and justice. The lawyer has equally important roles to play apart from litigation. The advocate will start by conducting investigation of the case of his client, making research and giving opinions as well as rendering advice to the public these duties are not confined within the court of law. In short the advocate can opt that instead of taking the matters before the court negotiation is taken as preferable.

2.2 THE ADVOCATE DUTIES AND THE CONFLICT OF INTEREST. As the statement of the question states, an advocate duties are to the court, to his opponent, states the client and to himself. In Tanzania independence of judiciary is an important element in the administration of justice. This principle has further been extended to include the doctrine of independence of the Bar therefore in the performance of his daily activities an advocate can balance the interests of conflicts either the interests of the state or the interests of his client or the interests of the court. As observed when dealing with the duties of the advocate to the court the interests of the clients can be sacrificed to make sure that the interests of the court are put forward.

In addition Arden LJ in GEVERAN TRADING CO LTD V SKJEVESLAND  said; Under the Civil Procedure Rules it is the express duty of the parties and hence their legal advisers, including advocates to help the court to further the overriding objective. (The Lord Justice was referring the English Laws which can also be applied in our country by virtual of section 3(2) of the Judicature and Application of Laws Act  in case there is a lacuna in our laws.)

A conflict of interest can arise between an advocate and a client on matters of assertion of false evidence by client. Thus when false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candour to the court. If perjured testimony or false evidence has been offered, the advocate's proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the court.

Where there are the conflict of interests such that an advocate appears to represent both the prosecution and the accused the position was stated in the case of R V RAJANI (supra) that the advocate is obliged to side with only one side of the case either prosecution side or the side of the accused. Thus if an advocate has previously represented the client and acquired the knowledge of the case he is not supposed to act as the counsel of the opponent in the case where the interest of his former client is involved . Failure to do so therefore an advocate will be held liable for misconduct.

Though an advocate has duty to advice his clients in several matters it is the duty of an advocate not to engage himself to the case which he has interest. He should not act or plead in the matter which he is pecuniarly interested for instance an advocate should not act in the matter of bankruptcy when he is the creditor to the bankrupt or he should not accept the brief from the company in which he is the director. By so doing the conflict of interest towards his client will not exist.

It is also for the avoidance of conflict of interests that an advocate should disclose to the client any interest that he may have in the matter. This will make the advocate to have exercised the duty to himself properly and the duty to the client. It is upon the advocate to make sure that if the conflicting interest on these duties will be prejudicial to either side to advice the client to find for another advocate.

3.0 CONCLUSION

To conclude, generally, an advocate duties are so extended to the extent that in the course of performing his duties due diligence has to be the key factor for the achievement of the intended goals as the professional. Having been equipped with such extended duties the likelihood for the occurrence of the conflict of interests is possible. The general principle has been that the advocate’s duty to the court is the overriding one over the duty to the client thus the interests of the client can be sacrificed. As was discussed above whenever an advocate has either pecuniary interest on the case and that if he takes the instruction to act for the case either his interests or the interests of his client can be prejudiced it is advised that, the said advocate is not supposed to take the brief. All in all for the duties of advocates in Tanzania the law i.e. the Advocates Act and the subsidiary legislation thereunder had been used to maintain the profession of the lawyers in the country. Likewise the Committees established under such law are working for the purpose of maintaining the standards of lawyers in the country.

[edit] lawyer's duty to defend the client

“Every person is entitled to call upon an assistance of a lawyer of his or her choice to protect and establish his or her legal rights and to defend him or her in all stages of criminal proceedings. Supported with relevant authorities, write a critique on the above statement.

1.0 INTRODUCTION.

Legal representation is an important legal right which is almost universally recognized. It refers to the right given to any party in a trial to be guided or get assistance of a legal counsel. According Duff, A.G, J; “it is elementary principle of justice that accused person should be given every reasonable facility for defending himself against a criminal charge”. It is true that not every man has ability to defend himself on his own, even the most intelligent members of the society find themselves out of place in the Courts of law and the situation is worse for the illiterate because they are not trained in this discipline.

An accused person can be represented before the court of law by either an Advocate, Para legal (non lawyer). An Advocate is defined under section 2 of the Advocates Act to mean any person whose name is duly entered as an Advocate upon the roll. However in order for one to be eligible for enrollment, he needs to possess certain qualifications both academic and professional and pass certain interviews conducted pursuant to section 8 (1) and (3) of the Advocates Act .

The right to legal representation does not necessarily mean that the person in Court should be represented by an Advocate or a lawyer. What is important is to have a trusted person- a person in whom one can rely on for the purposes of representing his interests. These are persons who accepted and have long history of working in the Courts helping litigants. Unlike a registered Advocate, the Para legal cannot address the Court, conduct examination in chief nor cross examine witness. He is a Mackenzie friend of the litigant, just there to guide him.

For the purpose of this question we are going to have a look on the right to legal representation and specifically on its legal basis, and legal representation in practice. Thereafter we are going to look on the criticisms behind legal representation and finally we will put our work to an end.

2.0 THE RIGHT TO LEGAL REPRESENTATION.

Legal representation is a Statutory right in some jurisdictions, but in Tanzania it is both a Statutory and Constitutional right. That right is so jealously guided by the law that if an accused is deprived of it through no fault of his own and through no fault of his advocate and he is in the end convicted, that conviction cannot be allowed to stand, on appeal it must be quashed .

The right to legal representation is closely related to two other rights, that are, the right to be heard and the right to personal freedom and liberty . However, it is not every man who has the ability to defend himself on his own. He may be tongue tied or nervous, confused or wanting in intelligence. Lord Justice Denning stated that;

“… if justice is to be done, (everyone) ought to have the help of someone to speak for him. And who better than a lawyer who is trained for the task? I should have thought therefore that when a man’s reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He also has a right to speak by a council or solicitor.”

For a hearing in a Court of law to be said to be fair, the parties thereto must be able to understand what is transpiring. This is not always easy because of the legal technicalities involved. Even the most intelligent members of our societies always find themselves out of place in the Courts of law . At the same time it is the duty of the accused person to take the opportunity given in the Court seriously and engage a counsel to represent him. Where the accused does not take his defence seriously he should not expect perpetual sympathy from the Courts of law. For instance, in the case of MICHAEL MPEMBELA V. R . The appellant was out on bail for almost half a year. However he made no effort to look for and engage a counsel to defend him. His application for further adjournment on the hearing date to enable him to look for a counsel was rightly rejected by Maina, J. His Lordship noted with regret that the accused had neglected his duty to look for and engage a lawyer to represent him.

2.1The Legal Basis

As stated above, the right to legal representation in Tanzania is constitutionally provided. It is incorporated in the right to a fair hearing provided for in article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977, as amended from time to time (hereinafter referred to as the Constitution) which provides that,

“For the purpose of ensuring equality before the law, the state shall make provisions that every person shall, when his rights and obligations are being determined, be entitled to a fair hearing by the Court of law”.

Without legal representation an accused person cannot be said to have been properly heard. This was discussed in a persuasive authority of the U.S Supreme Court in POWELL V. ALABAMA . Where Mr. Justice Sutherland said that without assistance of a counsel, the hearing would have little meaning or importance. He further stated;

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise in admissible.

He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of man of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect?”

The right to legal representation is also statutorily provided. In Tanzania section 310 of the criminal procedure Act of 1985, provides that;

“Any person accused before any criminal court, other than a primary court may of right be defended by an advocate of the High court…”

Moreover section 3 of the Legal Aid (criminal proceedings) Act, 1969 provides for free legal Aid paid for by the state. This section provides that;

“where in any proceeding it appears to the certifying authority that it is desirable, in the interest of justice that an accused should have legal aid in the preparation and conduct of his defence or appeal and that these means are insufficient to enable him to obtain such aid, the certifying authority may certify that an accused ought to have free legal aid. For proceedings in the High Court the certifying authority is the Chief Justice or the Judge of the High Court conducting such proceedings and in the case of proceedings before a District Court or Resident Magistrate Court the certifying authority is the Chief Justice”.

Apart from local legislations, Tanzania has ratified the international covenant on civil and political rights. This covenant provides for the rights to legal representation. Under article 14(3) (d) it requires that every accused person should have the right to legal assistance at the expense of the state. The High Court in the case of KHASSIM HAMISI MANYWELE V R. ruled that every Tanzanian accused person is entitled to legal representation, that the right extends to non capital offences, and where the accused can not himself afford the lawyer’s costs, the state must pay for him.

2.2 Legal Representation in Practice.

In practice those accused persons who are worth enough to hire advocate do hire them at their own expenses, if that is the case they have the right to choose the advocate of their choice. For this reasons the rich people are at a better position to exercise their constitutional and statutory right to legal representation.

On the other hand, the indigent or the poor cannot afford the service of advocates, and for this reason the notion of legal aid comes in. The legal aid presupposes services of lawyer free of charge. In Tanzania we have a number of legal aid schemes which are famous in providing legal assistance for Tanzania indigent. This includes Tanganyika law society, University of Dar es Salaam and State Legal Aid Schemes. Normally these legal aid schemes provide assistance to the indigent in free of charge system. The State legal aid scheme much concentrating in providing services in criminal cases by so doing it implement Article 14(3) (d) of international covenant on civil and political right which require that every accused person should have the right to legal assistance at the expenses of the state.

However, the right to choose the counsel of his choice is not plainly available to every accused person in Tanzania. This is due to the fact that section 3 of the Legal Aid (Criminal Proceedings) Act restricts this right only to poor and under circumstances of the case which require legal representation, as it can be determined by Chief Justice or the High Court. In practice the legal aid is available to the indigent accused of offences attracting capital sentence or long term imprisonment. Examples murder cases and treasons.

The accused person can also exercise his right to legal representation trough the services of a Para legal officer. However the legal representation by Para legal officer is limited. A Para legal cannot address the court by way of making submission or asking the question and cannot cross examine. All he can do is to sit beside the accused friend in court, to take notes, to quietly make suggestion to the litigant and give advice, to propose questions and submission to the litigant or accused person, who may put the same . Therefore it would seem that at High Court level (in Tanzania) a lay person, holding a valid power of attorney, can represent a party to the proceeding while the party himself is present in court.

3.0 CRITICISMS ON THE RIGHT TO LEGAL REPRESENTATION

There is no right to legal representation in the Primary courts; in fact the advocates are prohibited to appear there, as provided under section 33(1) of the Magistrate’s Court Act that “No advocate or public prosecutor as such may appear or act for any party in a primary court”, while there are bulk of case in primary court and some are serious offences like robbery with violence, house-breaking, burglary, and theft which are provided under the First Schedule of this Act.

People awareness is one of the criticism in the legal aid because majority of the Tanzanians are not aware of their right to be represented in the courts though such right has been guaranteed in the constitution of the United Republic of Tanzania of 1977 and other statutes (Reference to section 310 of Criminal Procedure Act and section 3 of legal aid (Criminal Proceeding) Act, 1969). Apart from not being aware also majority of Tanzanians do not know the existence of legal aid scheme like Tanganyika Law society, University of Dar es Salaam Legal Aid.

Another criticism is that the right to legal representation is absolute given when the accused is charged with capital offence but this creates discrimination to non capital offences. The law requires such rights must be for the indigent ( Ref: Legal Aid (Criminal Proceeding) Act 1969, this implies that the worthy persons are not entitled to legal representation this is contrary to the rights granted to the Constitution, that all person are equal and entitled without any discrimination to protection and equality before the law. In DPP v ARBOGAST RUGAIKAMU it was held that an accused person should not be deprived of his right to legal representation unless very cogent and exceptional reasons exist which warrant the taking of such a drastic measure since the accused person pray for that of representation on the reasonable time as was stated in the case of JOSHUA NKONOK V R .

Another criticism is on the party of economic barriers to an accused person. The practice of hiring a lawyer involves expenses. Advocate expenses have been central in any criticism of the legal representation. It is proposed that this service should be offered to any body irrespective of whom or what he is, so long has is willing and able to pay the appropriate fee. This is the position, despite claim that justice is not for sale. However failure to pay the fee we mean withdrawal of legal services. This has been shown in the case of R. v. LEMBA KISIWA AND OTHERS , in this case the advocate for the accused withdrew from the case because the accused who were facing charges of robbery an offence punishable with imprisonment of between 30 years and life, did not pay his fees. From this position of the case we are of the view that not everybody who needs legal services can afford to pay for them, in Tanzania, majority of people will be eligible for legal representation if there is no strong control of eligibility criterion in terms of income level and assets.

Another criticism is that, Legal Aid scheme seems to be bias. It is provided under section 3 of the Legal Aid (Criminal Proceeding) Act of 1969 that legal aid is provided to indigent accused person for all serious offences. This section is also supported by the case of KHASSIM HAMISI MANYWELE V R where it was held that “ in my judgment I said the right to counsel extends to all poor accused persons for all offences which might attract a sentence of over five years imprisonment”. Though the statute and case law show that the right to legal representation is provided to indigent accused person for all serious offences but in practice it is limited to murder and treasons while other offences like robbery with violence , theft and forgery are excluded.

Moreover there is no sufficient number of lawyers to facilitate the service of legal representation. Like wise most of the advocates are found in urban area and left the rural or remoteness areas suffer the consequences. 4.0 CONCLUSION.

The right to legal representation has been guaranteed, and thus ought to be protected in Tanzania and that provisions of section 310 of the Criminal Procedure Act and Section 3 of the Legal Aid (Criminal Proceeding) Act ought to be Interpreted together and in the light of the right to a fair hearing and right to personal liberty as provided under Article 13(6) (a) of the constitution of the United Republic of Tanzania(as amended from time to time) and Article 15(2) to mean that the right to legal representation has been guaranteed both to those who can afford to hire an advocate and those who cannot to hire an advocate and in the case of the latter their service be paid for by the state. Moreover the lack of legal representation is enough to render the decision of the case a nullity. This was the position in the case of MANYIMBA v UGANDA .

Though the right to legal representation is statutorily acknowledged as well as to case law but in practice the right to legal representation is not absolute as it is not available to all.

ALTERNATIVE ANSWER

OUTLINE;

1.0 INTRODUCTION.

2.0 THE LAW RELATING TO LEGAL REPRESENTATION.

3.0 CRITIQUE ANALYSIS OF THE RIGHT TO LEGAL REPRESENTATION IN TANZANIA.

4.0 CONCLUSION.

5.0 BIBLIOGRAPHY.

1.0 INTRODUCTION.

The right to legal representation in Tanzania is recognized not only in various statutes but also in the law of the land, the constitution of the United Republic of Tanzania, 1977, as amended from time to time (herein after referred to us the constitution). This right has been ‘sine qua non’ in any society that uphold rule of law and guarantee access to justice to each and every individual. It is upon this basis that it has been asserted that every person is entitled to call upon the assistance of a lawyer of his/her choice to protect and establish his/her rights or defend him/her in all stages of criminal proceedings. This paper after its introductory part is going to analyze the laws relating to legal representation in Tanzania, part III will involve the critical analysis on how the laws relating to legal representation are implemented and whether legal representation is achieved as provided for under the constitution and other laws, part IV will be the conclusion and part V is the bibliography.

2.0 THE LAW RELATING TO LEGAL REPRESENTATION IN TANZANIA.

Every person has a right to be represented before the court of law. The right to legal representation is a constitutional right , the denial of which is the denial of justice. It is increasingly acceptable principle of fair justice that a fair trial or hearing may imply having the service of, including representation by lawyer/advocate.

Statutes also provide for the right to legal representation. Section 310 of the Criminal Procedure Act, 1985 which provides that;

       ‘Any person accused before any criminal court, other than a primary  

Court, may of right be defended by an advocate of the high court…’.

This right is also provided in The Legal Aid (Criminal Proceedings) Act, 1969. Section 3 of the act require an advocate to represent an accused person who has been charged with capital offences such as murder, manslaughter, armed robbery and treason. The costs are born by the government after certification by an authorized person(s).

The Civil Procedure Code, 1966, also recognizes the right to legal representation. Order III rule 1 of the code provides for the party to a civil suit to appear in court either in person, by recognized agent or by an advocate.

It is thus concluded from this observation that in Tanzania, the right to legal representation is recognized by law, denial of which will be the breach of law and denial of justice.

3.0 CRITIQUE ANALYSIS ON THE RIGHT TO LEGAL REPRESENTATION IN TANZANIA.

The right to legal representation, in Tanzania and in many jurisdictions a public right aimed to be exercised to all subjects regardless their socio, economic or personal status. It is an acceptable principle of fair justice that every person has the right to be represented by counsel whenever he needs such representation. To make possible the application of the right, the government shows efforts on implementation of this important rule of fair justice. Being a statutory right, a person is guaranteed to have the right short of which he/she can claim for the breach of his/her right. The remarkable example is the provision of free legal aid to those facing capital offences , the government bearing the cost of the same. Our courts have also recognized the right to legal representation. In the case of Khassim Manywele v. R , the High Court gave the status of the legal representation by an advocate the status of human right under the constitution. The court inferred the right from the provision of article 13(6)(a) of the 1977 union constitution.

In Almas Kalumbeta v. R , it was the court’s conclusion that legal representation is a universally recognized right provided by the law, citing section 190 of the Criminal Procedure Code .

It has been the court position that in appropriate case, the effect of lack of legal representation is the nullification of the trial altogether. Mr. Justice Russel in the case of Manyimba v. Uganda put the position clear that the mere fact that the accused was denied legal representation was enough to render the trial nullity. The case of Yusuph Gita v. R the court held that every accused has the right to be defended by counsel, and quoting the cases of Kingston v. R and Galos Hired and Anor v. R as authorities, that if an accused id deprived of that right through no fault of his counsel and a conviction follows, the conviction will be quashed on appeal.

Supporting the State and courts, there are organizations and institutions, which establish programs aimed at providing legal aid to indigent people. These includes the Tanganyika Law Society, Shirika la Uchumi la Umoja wa Wanawake wa Tanzania (SUWATA), Tanzania Women Association (TAMWA), The Legal Aid Committee of the Faculty of Law (UDSM), Tanzania Women Lawyers’ Association (TAWLA), and The Legal and Human Right Centre (LHRC).

Having all these efforts in support of the right to legal representation, we turn to the question, whether on provisions of these the majority of people, especially those having no means are likely to access the right to legal representation. There come restrictions on provision of the right. It is not always possible to say that every person is in a position to call upon the assistance of a lawyer of his choice of his protection and establishment of legal rights.

 The majority of those in need for representation are poor. It is hard for many to seek representation from the legal practitioners. They are so expensive regarding the economic conditions of the majority. To cover this, legal aid schemes were introduced. These schemes however have restrictions. Initially, to be entitled to legal aid, there are three tests, means test, merit and interest of the case. The government aid under section 344 of the Legal Aid (Criminal Proceedings) Act, 1969 is limited to those accused with capital offences. Under this law, it is upon the satisfaction of the certifying authority as to the economic capabilities of an accused person. In some instances, persons accused with capital offences were refused legal aid on the ground that they have means to find representatives on their own. In Mohamed s/o Salim v. R , appellant was convicted of murder by the High Court. The committing court after examining the accused as to his means, stated that as the appellant had ten head of cattle, he should not have legal aid. Neither the Registrar nor the judge made an independent judgement on the matter as certifying authority.

 There is still another limitation, even if the aid will be open to all. The state is not capable to undertake the burden. The economic situation in most of the developing countries makes the exercise a impossible. Maina has this to say on this;

              ‘Developing countries are moving are moving in a vicious circle.      On the other hand there is immense poverty. People cannot make ends meet and their very existence as human beings is totally threatened. Hence some turn to petty and even serious crimes. The unlucky ones are caught by the long arm of the law. They cannot afford to hire legal counsel to represent them and hence they turn to the state, which is obliged under the constitution to provide these poor accused persons with legal assistance. This circle is not easy to get out of.’

It cannot be contended that the right is available to all, and much impossible that everybody can choose the representative of his/her choice. In a legal aid, one is not given an opportunity to challenge the competence of a practitioner he/she is given since the opportunity is not a choice but a grant.

 Apart from the lack of adequate financial resources, there is also the issue of availability of trained legal personnel. Even if the state will be able to provide legal aid to all the poor accused persons, it is not easy to find lawyers for all of them. The number of lawyers and people capable of giving legal advice is very low, being among the factors resulting in unaffordable costs in provision of legal services. Having limited number of practitioners, it is openly untrue to contend that everybody can have the lawyer of his/her choice.

 Location of law offices/ distribution of lawyers/advocates is yet another problem. Many practitioners centred themselves in cities, and as a study in Tanzania, many are located in Dar es salaam (85%). In 1997, as Dr.Fauzi observed, in a country with an estimated population of more than 2.7 Million people, there were only 193 advocates in full-time practice, besides their distribution among the country’s population is so misbalanced that Dar es salaam had 127 full-time practitioners, whereas in some regions there is not a single advocate available.

 Other restrictions are imposed by courts. Its through decisions of the courts that an accused person in need for representation can only be protected if he has himself acted reasonably.

The case of Yusuph Gitta v. R is a good example. In the case, the accused, who was on bail, was notified of the hearing date about a month earlier. When the case came up for hearing, the accused produced a letter from an advocate in which the advocate requested an adjournment because he was engaged in another court in that day. The magistrate refused an adjournment and the case proceeded to hearing. On appeal, it was argued that miscarriage of justice was occasioned on the magistrate’s refusal to adjourn so as to enable the appellant to be legally represented. On the issue the appellate court held that in the case, it cannot be said that the appellant was deprived of the right to be represented by the counsel through no fault of his own. The court saw it as appellant’s failure to instruct an advocate and a contributory cause being the advocate’s failure to do his duty to his client. In another case of Joshwa Nkonoki v. R , which quoted Gitta’s case with approval, the accused was released on bail and the hearing dare was fixed and when the trial started, the appellant did not indicate to the court that he intended to have an advocate till after the first prosecution witness had given evidence. The appellant’s application was refused and the hearing proceeded. Mzava J stated;

      ‘His application for adjournment of the case so that he could employ an advocate was clearly unreasonable taking into account the fact that the Republic had already incurred a lot of expenses in calling witnesses from distant areas and the State Attorney had traveled all the way from Dodoma to prosecute the case…’.

Where an accused person has expressed an intention to engage an advocate to defend him and there is no reason to suppose that he is acting mala fide, the court must give him every opportunity to do so and may, adjourn the trial to another date. There it can be said that accused has been given the right to be represented by the one he choose.

 It was also an observation and the fact that majority of individuals are illiterate. Many people are not educated, leave away having legal education. Even if the right is there, people do not know their rights, thus even if provided, it is of no meaning. Many people especially in rural areas do not know the provisions of legal aid and many afraid to be involved in court actions for they view it as having ‘owners’.

4.0 CONCLUSION.

The right to counsel is not an entirely new phenomenon. It is part of what is perceived by various societies as justice. Over time, it has spread all over the globe as part of welfare and also as an essential part of access to justice. This right is not limited to the well, who can afford to hire the services of a lawyer, it extends to the poor too. Although it is not easy to meet the demand if all, it has to be applied whenever possible and with necessary means so as not to take away substantive rights of victims.

BIBLIOGRAPHY

CONSTITUTIONS

The Interim Constitution of 1965

The Government of Tanzania, (1998), The Constitution of the United Republic of Tanzania 1977, The Government Printers, Dar es Salaam

STATUTES

The Tanzania Government of, the Advocates Act (cap 341 R.E 2002) the Government Printers, Dar es Salaam

The Tanzania Government of, the Constitutional Fifth Amendment Act 1984, the Government Printers, Dar es Salaam

The Tanzania Government of, the Constitutional (Consequential Transitional and Temporal Provision) Act, 1984, the Government Printers, Dar es Salaam

BOOKS

Binamungu, C.S and M.C, Mukoyogo, (2005), Studying Law Skills: A Guide for Beginners in Law, Mzumbe Book Project, Mzumbe.

Twaib, F, (1997), the Legal Profession in Tanzania: The Law and Practice, Bayreuth African Studies, Bayreuth

INTERNET MATERIALS

http://www.alabar.org/ogc/ropc/rule3-4.htmlI

http://www.mifsudbonnici.com/lexnet/articles/index.htmlI

[edit] Define environmental impact assessment explaining in brief the international community response to the same

Define environmental impact assessment explaining in brief the international community response to the same Does the law and practice in Tanzania adequately respond to the requirement of environmental impact assessment.

OUTLINE

I.O INTRODUCTION

2.0 MAIN BODY

2.1 International Community Response

    2.2 Response of the Law and Practice in Tanzania to the Requirement      of EIA
     
           2.3 Law and Practice
      
           2.4  Constraints of EIA 

4.0 CONCLUSION

INTRODUCTION

The term Environmental Impact Assessment herein below referred as EIA is describes as a process which produces a statement to be used in guiding decision making relating to environment. The term is also defined as a technique for ensuring that the likely significant effects of new development on the environment are fully understood and taken into account before it is allowed to go ahead .

In the case of FRIENDS OF THE OLDMAN V.CANADA ‘et al’  EIA is in its simplest form, a planning tool that is now generally regarded as an integral component sound decision making….As a planning tool it has both an information gathering as decision making component which provides the decision maker with an objective basis for granting or denying approval for a proposed development.

The term has also been defined as a tool used to identify the environmental, social and economic impacts of a project prior to a decision-making.

It has also been defined to mean a systematic examination conducted to determine whether or not a programme, activity or project will have any adverse impacts on the environment . 

It has several relating functions such as: it provides information to decision makers on the environmental consequences of proposed activity; it requires decisions to be influenced by such proposed information and also provision of a mechanism ensuring that there is full participation of person’s potential affected by the proposed activity in decision making process.

1.0 MAIN BODY

2.1 INTERNATIONAL COMMUNITY RESPONSE:

EIA is well recognised and accepted in the international level that the nation states in the International Convention have come with principles to that effect. In the international level it is recognised by Principle 2 of the Stockholm Declaration which states

 “The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystem, must be safeguarded for the benefit of present and future generation through careful planning or management, as appropriate”                                                                                                                                                                                                          

In its recognition also the Rio Declaration on Environment and Development under Principle 17 “Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority” In the international level provisions in relation to EIA started to be reflected in the provisions of legislation of developing countries during the 1970s shortly after the United States enacted the first EIA law, the National Environmental Protection Act of 1969.Throughout the 1980s more countries decided to establish EIA as an element of environmental law. Since 1990 the pace of legislative activity on environmental issues has quickened and the number of countries in the EIA has increased significantly

From the above explanation it can therefore be said that, the international community has responded positively to the environmental impact assessment concept in such a way that there have been several treaties dealing with the same.

2.2 RESPONSE OF THE LAW AND PRACTICE IN TANZANIA TO THE REQUIREMENTS OF EIA

In Tanzania prior to 1997 there was no law or policy regulating environmental protection, the country was operating on fragmented environmental sectoral policies which were poorly coordinated and there was no uniform standard. The concept of EIA is linked to environmental policy. The concern for EIA in Tanzanian policies emerged in a document on National Conservation Strategy for Sustainable Development (NCSSD). The focus on this could be reflected back in 1993 as a result of changes which were taking place globally and which influenced the development of national strategies for sustainable development. Thus NCSSD became the first post Rio National Initiative to clearly stipulate the need for EIA.  

In 1997 there was the National Environmental Policy, 1997 which recognised and reiterated use of EIA as one of the policy instrument aimed at achieving environmentally sound development. The policy states that EIA as a planning and designing tool shall be used to integrate environmental considerations in the decision making process in order to ensure that unnecessary damage to the environment is avoided. The policy was to the effect that it shall be a mandatory requirement to ensure that environmental concerns receive balanced consideration in reconciling urgent development needs along side other economic, technical and social aspects, while at the same time ensure long term sustainability before the final decision is made.

Before embarking to the entire question on the law and practice of EIA in Tanzania it is better to start by looking its importance.

EIA is concerned with identification, prediction and evaluation of impact both beneficial and adverse that may arise from the proposed development and proposed mitigation measures and enhancement option for negative and positive impacts respectively. It is not about to reject projects but the programme aimed at protecting environment by putting some restrictive measures for the purpose of protecting environment. It involves practices such as social and health impact assessment.

Tanzania since 1986 had undergone some economic and policy reforms. It should be known that Tanzania is one of 15 countries of the world which is the hotspots of global biodiversity, the reforms has made it possible for investors to invest in our country. For example, having abundant resource such as minerals, land, forest and fisheries environmental degradation is on the high side such as pollution and loss wildlife habitat and biodiversity, deforestation and land degradation. These problems often associated with the pursuit of short time gains. By employing EIA can help the country integrate short term needs and long term goals by focusing sustainable objectives.

Another importance is that, structural adjustment programmes are carried on in response to crises. In the process therefore important social and environmental issues overlooked. Therefore EIA can be useful in bringing out negative and positive aspects of the reform measures.

EIA is useful in addressing transboundary issues that may arise fro implementing the initiatives. For instant, Ewaso Ng’iro (south) river multi-purpose project in Kenya. Tanzania felt that the proposed development in Kenya would have significant impacts on Tanzania thus the use of EIA was taken as appropriate to prevent environment. In addition EIA is important in addressing project alternatives as it may facilitate in determination of how resources can be utilized in sustainable ways.

EIA is also important as it can help planners and developers avoid resource conflicts with other stakeholders and increase project acceptability. Too often, projects have been developed without considering the real demands of the communities. This has not only resulted in the loss of resources but also undue conflict, when local community fails to identify themselves with the proposed project .

2.3 LAW AND PRACTICE

Formally, Mining and Marine Parks and Reserves have established legislation that stipulates requirements for EIA in their respective sectors. Other bodies have established mechanism that guides developments by enforcing compliance to the use of EIA in the development activities. Although there are few legislation to that effect, many bodies have adopted voluntary compliance as opposed to reacting to legal requirement. Therefore, the enforcement and compliance is very crucial in promoting the use of EIA whether being it legal requirement or as a result of voluntary compliance of EIA.

The Marine Parks and Reserves Act of 1994 calls for an EIA to be conducted for the proposed activities in Marine Parks in accordance with regulations made under this Act. It prohibits certain land allocation or uses without a proper EIA. However, the Act suffers from several weaknesses including lack of provision for procedures and opportunity for stakeholders to participate in the EIA. The same problem is with the Mining Act of 1998 which despite the fact that it advocates for the EIA but does not specify how stakeholders will be involved and what is the relationship between mining sectors and other sectors.

Although, the two legislation above are in support of EIA, they are largely sector based and limited in scope because of this they are likely to conflict with other sectors which have no sectoral legislation for EIA. The anomaly however have been noticed by the government hence the enactment of the comprehensive environmental legislation therefore the enactment of the Environmental Management Act No 20 2004, herein below is referred as the Act. Under the Act section 81(1) provides for the obligation to take EIA. In this particular provision pursuant to the third schedule of the Act have to abide with the regulation made by the minister before starting the project or undertaking any development.

The constrains of lacking the legal backing was experienced for long time, as Good love said EIA was left to be optional and not a requirement in the law thus proponents were left at liberty to disregard environmental concern associated with the development. But the law and practice after the enactment of the Act has changed the situation. Section 81(2), provides for mandatory requirement for the study of EIA before commencing or financing the project or undertaking. Further under section 81(3) it emphasised for the attainment of the licence and permit before undertaking any project. The waiver of this requirement is not allowed under any law and any contravention with this provision is an offence under Section 81(4).

Minister has power to make regulation and guidelines on how EIA shall be conducted. The new enactment (the Act) further, under section 83(1) provides for the fact that, this EIA to be conducted by the experts. The law provides for the regulations and need to have experts thus solving the problem of enforcing EIA requirements without having experts.

Under section 85 of the Act, the law has given power to the Council to determine the scope of the environmental statement basing on prescribed issues to be addressed, persons and institution who are to be consulted in preparation of the statement, methodologies and approaches in collecting and analysing the required data among other matters important in determine the scope of the environmental impact statement.

The law in Tanzania also has adopted guidelines on public participation on matters which are likely to be affected by the proposed project being the subject of EIA study. This is the way where public directly participate in giving their opinion on the EIA study. In addition to this the Council as provided under the law can ensure participation of people in the review of EIA through public hearings. However, in doing this the Council is required to display and make available for inspection and copying all relevant reports, documents and written submission made during and after the period of review until the public hearing is finalised. The council has to convene such public hearing within 30 days after receiving the EIA.

Under section 93 of the Act, the minister has been given power to recommend to the licensing authority not to grant the licence if the project to be undertaken may cause wide adverse impact to the environment, if there are no alternative means which can mitigate or remedy the harm to environment, or if the proponent has failed to abide by the measures stated in the environmental impact statements or in case there are social, economic, health, cultural or religious reasons that may lead to irreversible impact on the society.

However, the law has given an opportunity to any aggrieved person by the decision of the minister to approve or disapprove Environmental Impact Statement to appeal to Environmental Appeal Tribunal. This is provided under section 95 of the Environment Management Act.

Where there is likelihood that there is significant impact on the environment then the Council shall be responsible to carry out environment auditing in respect of undertaking or project . The law has authorised the environmental inspector or other authorised officers to enter into any land and conduct an inspection to see whether the activities carried on are in conformity with the Environmental Impact Statement. However a notice has to be served first before the inspection .

Despite the fact that the provisions of the Act under this part provides that the requirements of EIA have to be fulfilled, the minister further may require any person whose activities are likely to have an impact on environment to make a statement on the social, health, biotechnology, or any other risk impact assessment he may determined. What is apparent under the environmental Management Act is that apart from providing the elaborate provisions on the EIA and how it is exercised, the law further extends to health and social proÿÿemÿÿresultinÿÿÿÿom environmental problemenÿÿubÿÿsst in the category of EIA.

2.4 CONSTRAINTS OF EIA

Before the enactment of the Act, EIA could not fulfil most of its objectives as the laws prevailing hitherto were lacking because of being confined on specific sectors. Taking example of the Mining Act of 1998 and Marine Parks and Reserves Act of 1994, these laws were purposely enacted to cater for the demand of their respective sector. However after the enactment of the new law the Act cut across different sectors therefore provides for the somehow explicit enactment on the management of the environment particularly matters related to EIA. Thus the number of problems which prevail before the enactment of this law were to some extent reduced. Basically, the following are the remaining constraints after the new enactment of 2004:

Inadequate awareness on the value and usefulness of EIA among the developers, politicians, managers, planners and the public. These groups of people having little understanding on the concept or some groups being equipped with the knowledge have created a kind of failure as there is the crossing idea on the concept of EIA.

Inadequate technical capacity or EIA skills. EIA as an element of environmental policy is the recent invention which owed its origin from 1970s and gain popularity in 1980s. That being the case therefore, it has been difficulty for the public to acquire knowledge and technical skills on EIA hence the constraint.

Inadequate human and financial resources at all levels. As it is stated by the law that there should be experts to conduct EIA it has been difficulty to have adequate human resources. Being the recent invention the financial problem has been obvious especially for the developing countries hence the constraints.

Timing for integration of EIA in the project cycle. It is good that EIA is carried out before a proposed project or activity starts taking place that is not only good practice but also best environmental management too. Thus identification and disclosure of environmental consequences of proposed development actions has to be revealed at the earliest stages in the project cycle as they influence in planning, designing, implementation and management of the project. Conducting it earlier is essential as there is a chance to make between alternative causes of action. However, experience has indicated that EIA is regarded and conducted as a separate technical exercise carried at late stages of project cycle and most plans has been finalised hence little or no room to consider alternative and only serves merely as a rubber stamp as they do not influence project design and decision.

2.0 CONCLUSION.

The environmental management in many countries especially the developing countries is achieved not only through environmental legislation but also through administrative provisions such as administrative orders which are applied through administrative mechanism. Likewise for the issue of EIA it has to take sometime for the program to have the notable achievements in the developing countries. The idea being the recent one and the one which requires experts in its success need the society to adopt it slowly. Although progress in adoption EIA in Tanzania has been very slow, there is an increased understanding of the value of the program. while Tanzania is in the world of globalisation as it is attracting investors to invest in different sectors of development it has to be taken as an advise that the wind of investment and privatisation need not to endanger our environment which is the backbone and livelihood of Tanzanians.

[edit] The legal profession in Tanzania is the product of the proliferation of number of developments which took place as a result of external influences that encountered our country in several past decades.

The legal profession in Tanzania is the product of the proliferation of number of developments which took place as a result of external influences that encountered our country in several past decades. Discuss

OUTLINE OF OUR WORK

1.0. INTRODUCTION

1.1. CONCEPT OF LEGAL PROFESSION

2.0. MAIN BODY

  2.1. Pre Colonial Period 
  2.2. Colonial Period
  2.3 Post Colonial Period 

2.4 PROLIFERATION OF THE LEGAL PROFESSION DUE TO EXTERNAL INFLUENCES

2.5. MODIFICATION OF LEGAL PROFESSION IN TANZANIA .

3.0 CONCLUSION

4.0. BIBLIOGRAPHY

1.0 INTRODUCTION The paper on hand explains some introductory aspects of legal professional in Tanzania and gives an overview of the historical development before colonial invasion, during colonial era and after colonial period. The paper also shows the position of legal profession in Tanzania and various criticisms on the development of legal profession in the present Legal system

1.1 THE CONCEPT OF LEGAL PROFFESSION; The concept Legal Profession in our country is said as old as a result of external influences that encountered our country in several past decades in the development of legal system

Various authors have attempted to give the meaning of the term profession According to Blacks law dictionary Profession is defined to mean “a vocation requiring advanced education or training’’

Oxford Advanced Learners Dictionary a type of job that needs special training or skills especially one that needs a high level of education

Harold Perkin; An especially desirable and dignified occupation. It implies intellectual training and an expertise which is largely mental in character

In England as per Loyal Commission body of men and women a) Identifiable by reference with the same register or records b) Recorgnised as having a special skill and learning in some field of activity in which the public needs protection against incompetence, the standard of skills and learning being prescribed by the profession itself c) Holding themselves out as being willing to serve the public d) Voluntary submitting themselves to standard of ethical conduct beyond those required of the ordinary citizen by law e) Undertaking to accept personal responsibility to those whom they serve for their action and their profession for maintaining public competence

To submit the general concept of a legal profession one can views that, it is an occupation calling or vocation of those people who have attained advanced specialized educational and training in the field of law and are qualified and licensed to practice law The concept of legal profession embodies the significant of legal justice in our country for this reasons Article 13(a) b and 15(2) of constitution guarantee the right to legal representation.

Legal profession as an elementary principle of setting justice in the field of law has become a centre of counseling to some people who faces difficult in legal knowledge as Lord Denning MR (as he then was) In the case of Petty V. Greyhound Racing Association, stated that; “It is not every man who has the ability to defend himself at his own. He may be tongue tied or nervous, confused or wanting intelligence….we sees it everyday. A magistrate says to a man “you may asks any question you like “where upon the man immediately starts to make a speech if justice is to be done he ought to have the help of some one to speak for him’’

Therefore the concept of legal profession in Tanzania is basically an imported structure hence it has always contained the profession characteristics English forerunner. The concept is as old as a result of evolution in the system of governance.

2.0. THE HISTORY OF LEGAL PROFESSION IN TANZANIA AND ITS DEVELOPMENT The history of legal profession in Tanzania has been developed according to the nature and environment of the society. The system of governance developed according to rules and regulation set up in the community. Profession in Tanzania is traced into three distinct environments in running the government. These phases are discussed herein below:

2.1. PRE- COLONIAL PERIOD

Before colonial invasion the society had its own set of rules and regulations. These rules and orders were based on the communal mode of production. During that time there was no such thing as legal profession as known today. There was no defined Legal system. The natives were governed by their customary rules of dispute settlement mechanism. Some of these methods were reconciliation, Arbitration and Compensation. During pre colonial society there was no specialization institution and personnel for the administration of the law. Therefore dispute settlement mechanisms were basically aimed to bring the society to an amicable position and peaceful environment

However the environment at that time did not allow the existing of profession lawyers, there were some elders and Wiseman who were experts to take an active part on question of legal nature and provided assistance in reaching to some of the decision. During that time there was a council of elders actively involved in giving sanction and interpretation of customary laws. During pre colonial era whenever there was a problem such as quarrel over land the elders had to sit and consider the evidence given and pass judgment.

Example in KADUME’S CASE the internal moot finally reached a conclusion after examining all evidence and relevant facts and divided the land into two in which both Kadume and Kirevi were conversant to represent his client. We also see that when a person was aggrieved with the decision he could lodge the appeal, Example when Kadume was aggrieved with the decision of the inner conclave he appealed to the internal moot.

Therefore the government enforced laws and rules which had to be obeyed and made sure that every body obeyed the custom and traditions of the community. Apart from that, generally the pre colonial society lived with no distinction between civil and criminal wrongs and these helpers can not be equated to profession lawyers.

2.2 COLONIAL PERIOD This was the colonial period in East Africa by this notion it is said that after the Berlin conference of 1884/85 Tanganyika was put under Germany colonial rule. During that time the Germany colonial rule did not introduce legal system in Tanganyika. Therefore Africans were left to be governed by their customary laws which were administered by chiefs and other tradition dispute settlement mechanism and European were governed by Prussian Law. The role of lawyer was minimal in the extent that there were few legal practitioners whose functions were limited to serve Europeans There were few court located in Dar es salaam,Tanga,Moshi,Tabora and Kigoma

The most notable feature of the system of administration of justice was the period of British rule; When British took over Tanganyika as a protectorate after the First World War the British imparted to Tanganyika the British legal system .They established the High Court and Subordinate courts charged primarily with the administrations of justice according to English law. The Tanganyika order in council of 1920 was a creature of the Judicature and Application of Laws Ordinance, Common Law Principles, Doctrine of Equity and Statute of general Application to be applied in our country. 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 court shall be guided by native laws, provided it is not repugnant to morality and justice or inconsistent with any order in statute of general application” Colonialists did not allow the application of legal profession for natives but whites used Barristers & Solicitors .Therefore the position of legal profession during that time took its root from the British colonial legacy of common law where Barristers and Solicitors practiced as legal profession. The difference between Barrister and Solicitors were that Barristers practiced as advocates particularly in Higher Courts; on the other hand the latter were members of the legal profession qualified to deal with Conveyance, draws up will, advice clients, instruct Barrister and represent clients in the lower Courts. Therefore this condition did not allow natives to practice as legal profession.

2.3 POST COLONIAL PERIOD Immediately after independence the new government initiated a legislative programme as administration of justice with a view of achieving the following • Integrations of local court with the high court • Separation of judiciary from the executive • Ascertainment and unification of customary laws • Making provisions for resolution of internal conflict of laws

Thus the post independence with a new government continued to use the received laws via Indians Acts. The Tanganyika Order in council borrowed Indians legal practitioner rules to be applied in Tanganyika. These rules were cited as the legal practitioner’s rule 1992. In Zanzibar there was the legal practitioner decree 1923. The position of English legal profession in Tanganyika fused up the two categories of Barristers and Solicitors as were at common law; a classification did no longer exist in the reasons that there were few lawyers in Tanganyika and that it was made to suit the conditions and circumstance of our country.

Under the Tanganyika legal practitioners rules 1922 those who were admitted as advocates had the following qualifications; If one was a Solicitor in England, if one was a solicitor in India, if one was a Solicitor in any of the British Empire and if one was a Barrister in any of the British Empire

There were some laws which were enacted to work together with these rules. These other laws were the Advocate Remuneration Ordinance [Cap 10] which provided for the fees which can be paid to the advocates on various legal services. The legal Instrument (Restriction on preparation) Ordinance [Cap 11] dealt with the restriction imposed on the preparation of certain documents by reasons not admitted as advocate. However some amendments continued to be made from time to time as the way to enhance the development of legal profession in Tanzania.

PROLIFERATION OF THE LEGAL PROFESSION DUE TO EXTERNAL INFLUENCE There were several changes that had taken place in the world especially after the development of the Capitalism in Europe which lead to the concepts of the expansionism of the Imperialist countries beyond its boundary. They looks for the area which the can invest, Africa and Tanzania in particular has been affected by this expansionism. Before actual intrusion there was Berlin Conference of 1884/85 which among other thing put demarcation on the geographical boundary. That at the beginning Tanganyika becomes the Germany colony together with other thing they established their legal system to curb and facilitate suppression of the colonialism

Germany 1891-1919 Germany introduced its own legal system which was unique as it does not include natives. Positions of Native were left to use their customary laws and other mode of dispute settlement mechanism existed. The legal systems introduced were only for whites. The laws used were known as Prussian Laws. The role of lawyers was minimal since there were few legal practitioners whose functions were limited to European. The lawyers at that era were Notare (notaries and Commissioners for oaths) and others were Rechtsanwalte (corresponds to English title of Barristers or Attorneys)

The Germany phase has direct influence in our legal profession since it was the first colonialist to come in Tanganyika has left its legacy. For example the function performed by lawyers such as Notare (notaries and Commissioners for oaths) and Rechtsanwalte is now among the role of lawyers in our society. British 1920- 1961 British following the foreign British Jurisdiction Act of 1890 the Queen had empowered the application of the British legislation in its colonies abroad. The following influences has resulted the introduction of Tanganyika Order in Council (Hereinafter referred as T.O.C. which accommodate the received laws to applied in our country

The importation of English Legal profession was through Indian Acts. TOC borrowed Indian legal practitioners Rules to be applied in Tanganyika. The rule recorgnised Barrister and Solicitor from British, India and other British colonies as legal profession in our country. Other laws imported were The Remuneration Ordinance, Legal Instruments’ (Restriction on Preparation) Ordinance, The Advocate Ordinance (which governed the practice of legal profession in Tanganyika)e.t.c.

TOC has established the court system in our country which encourages the profession so as to manage and monitor the exported mode of dispute settlement. The mode demand expatriates to hand the dispute.

MODIFICATION OF LEGAL PROFESSION IN TANZANIA

The basic structural set up under the legal profession during colonial has been retained with various significant changes.

Court Decisions. A court has shown taking different opinion and view as far as the influences imposed by the foreign. The court didn’t follow strict the importation mode of settlement as it had held that circumstance didn’t permit. In the case of Nbc Vrs. Nabro Ltd and Meeda Reubeni Naburi where Hanourable Kalegeya J. invokes the situation that the laws of England can not strictly applied in our circumstance as the precedent relied by the respondent could not be used here as it will lead to injustice hence the Learned Judge reluctantly refused and upheld the decision of The High court of England which were overruled by the court of Appeal In the case of Dodhia Vrs National Grindlays Ltd His lordship Newbold V.P affirmed that no decision of the Privy Council or of any English court or of any foreign is binding on the East African Court of Appeal and the East African court of appeal inherited the flexibility of the privy council to depart from its own decision when it appears right to do so.

Adversaries. In the adversarial system the parties are to contest and the Judge/Magistrate are required to be impartial or umpire that he has to hear the contest parties. This is done in common law. In Tanzania the strict application will lead to injustices as the circumstance is different from the common law. Accused in our country are not capable of hiring advocates and illiteracy if this would applied strictly in our country would led to injustice. George .T. the former chief justice had stated that “one of the problem which can cause trouble in our courts and lead to loss of efficiency is that fundamentally we are operating the system which should be an adversary system under condition where often their can be no argument because one side or the other is not represented. There should be two trained people arguing vigorously, with the judge in middle making a decision after having had the whole field explored for him” .

Integration of courts system in Tanzania. In 1963 the independent Government integrated the court from the Primary court to the High court; this ends the two court systems that were established by the colonialist. The integrations of the court is major of the modification that the Independent Government did and strengthen the legal profession, where the advocates practices in the subordinate court and in high court as compared to the use of the Barrister and Solicitor.

John Mugendo Vrs N.E Govane In this case the court had stated that the received laws could not be applied direct as the circumstances would determine as the application in England is different from that of Tanzania.If the laws applied as in Common law will lead to injustice. This modification is fruitful as the justice dispensation is rooted in confidence and not in precedent as it was at the beginning.

Reversion of the received laws, the government of United Republic of Tanzania had moved the step forwards after it has revised all laws and makes amendments to some of provisions so that it would suit our environment. For example the Land Act Ordinances was amended and the new Acts were later enacted afresh so as to fit the circumstance of our legal system. The recognition of the customary land tenure without having certificate of Title where a native were entitled to show the certificate but due to modification that had been done natives are recgnised today as having good title as the one with granted right of occupancy.

3.0. CONCLUSION It’s true that the legal profession in Tanzania is the product of several changes and developments that took place in our country before colonialism, during colonialism and post colonialism.

At early we had only experts who dealt with custom in solving disputes among the member in the society. In reality such expertise were not reflecting a modern dispute settlement mechanism we have now. Coming of colonialist, the legal profession had to change to look different, where a person had to be trained and qualify in the field of law. After independence the government had made several changes in order to modify the legal profession so as to correlate with the circumstance of the countrys’ legal system.

4.0 BIBLIOGRAPHY

STATUTE

The constitution of United Republic of Tanzania (1977)

(as amended from time to time)

The government of, The criminal Procedure Act [Cap 20 RE 2002] Government Printer, Dar es Salaam
The government of, The legal Aid (criminal Proceeding) [Cap 21 RE 2002] Government Printer, Dar es Salaam.

CASES Nbc Vrs. NabroLtd and Meeda Reubeni Naburi, Commercial case No.44 of 2001 Petty Vrs. Greyhound Racing Associating Ltd [1969] 1QB 125 Powel Vrs. Alabama (1932) 287 us 45 Dodhia Vrs.National Grindlays Bank Ltd (1970) EA 195

BOOKS

Delahunty .A (2002) Oxford Advanced Learners Dictionary Oxford University Press Garner. B .A. (2004) Black’s law dictionary, (8th Ed), West Publishing New York Harold Perking. H (1980) Profession and the game of life Davis Center prince University. London

PUBLISHED MATERIAL Makaramba R.V Open University Mannual Legal method Part II University Press, Dar es Salaam.

ALTERNATIVE ANSWER.

QUESTION 1: The legal profession in Tanzania is the product of the proliferation of a number of developments, which took place as a result of external influences that encountered our country in several past decades. Discuss

OUTLINE

1. O INTRODUCTION:

Layout of the discussion and meaning of the term legal profession.

2.0 MAIN BODY:

Legal profession in pre colonial Tanzania

                                         . External influences and development of  
                                            Legal profession in Tanzania:

                                         -The outcome of Berlin conference,

-British colonialism

                                          . Amendments, changes and modification of legal profession
                                           In Tanzania after independence

                                          -1963 modifications,

                                          -Amendments Regarding Advocates qualifications    
               
                                          -Modification with Regard to solicitors and barristers Role, 
                                           And   

                                          -Modifications with regard to flexibility in Application of 
                                           Adversarial system strictly.

 3.0. CONCLUSION

 4.0.    BIBLIOGRAPHY.

1.0. INTRODUCTION

This discussion intends to show that the present legal profession in Tanzania is the product of proliferation of external influences. The paper will consist of three main parts, namely, Introduction, main body and conclusion. The introductory part shall cover the meaning of the term legal profession. The main body shall be divided into two parts including Pre colonial era which shall state the situation before colonialism as to whether in Pre colonial era there was the existence of legal profession or not. It will also include a discussion on external influences an the development of legal profession in Tanzania in which the role played Germans and the British rule in development of Legal Profession in Tanganyika shall be discussed. Also in this part, we are going to discuss the modifications, changes and amendments done to the legal profession inherited by newly independent Tanganyika Government after achieving her independent and lastly we shall conclude our work.

Meaning of the term legal profession.

The term legal profession can not be easily defined unless one understands first what is meant by the term profession.

Harold Perkin defined the term profession as an especially desirable and dignified occupation . On the other hand, as Herby define the term profession as a paid occupation, especially one that requires advance education a training .

Legal it means something based on or concerned with the law . Therefore it can be

Construed that legal profession is an occupation, a calling or vocation of those people who have attained advanced specialized education and training in the field of law and are qualified and licensed to practice law.

2.0. MAIN BODY.

Pre colonial Era

Emergence of legal profession in Tanzania can not be separated with colonialism. Prior to colonialism, Tanzanians were divided into tens of tribal and ethical groups, each with its own structure of social organization. It has been observed that the traditional legal administration in pre colonial Tanzania as in most of other African countries often ha two distinct features,

One of them being the absence of specialized institutions and personnel for the administration of laws

Second being lack of clear distinction between civil and criminal wrongs as a general rule, but it should be noted that, this was only the general position. In some African societies, such a distinction was clearly discernible.

Thus, native Tanzanians had their own ways of settling their disputes. Dispute settlement mechanism was conducted through reconciliation, arbitration and mediation. The condition did not exist for a set of men and women who could be termed as professional lawyer in the sense that the term legal professional is used in the thesis. Though there are some communities experts who were consulted on question of legal nature, they usually acted as helpers and did not live and work as professional.

Back to the legal institution there were no courts as the one we are having today. Disputes were dealt at communal meeting which involved all members and since society members were interdependent, decisions based on winner wins little and looser losses little.

Hence one may comment that; no legal professional existed before the coming of European and therefore it goes with say that legal professional in Tanzania is the outcome of external influences that is the coming of the colonialists.

External Influences and the development of legal profession in Tanzania.

The present legal profession in Tanzania takes its root from the colonial era . The following are the external influences which lead to the development of legal profession in Tanzania.

The outcome of Berlin Conference; during the Berlin Conference, Tanganyika was put under German rule, hence from the year 1885 she become a German colony. German colonial laws distinguished between Africans and Europeans. The former continued to be a generally governed by African customary laws administered by Chiefs and other dispute settlement mechanisms . And the later governed entirely by German law and law of Prussian kingdom as well. There were only few legal practitioners in German East Africa.

However, their role and functions were mainly limited to serving Europeans. This went hand in hand with establishment of courts where by between 1913-1919 there were five courts in the country located at Dar es Salaam, Tanga, Moshi, Tabora and Kigoma .

British Colonialism: This external influence is a continuation of the former following German defeat in the First World War by Britain in 1919; Tanganyika was put under British Protectorate. This was declared during the Versailles Peace Treaty.

By virtue of Tanganyika Order-in-Council (T O C), which allowed colonial government to apply English laws, English Legal System was imported to Tanganyika. Section 28 provided for the circumstances under which statutes of General Application, Doctrine of Equity and Common law could be applied. The English Legal Profession was imported in Tanganyika via Indian Acts. E.g. Legal Practitioner Rules of India of 1922 were applicable in Tanganyika cited as Tanganyika Legal Practitioner Rules; the following were admitted as advocates:

If one was a solicitor in England, If one was a solicitor in India, If one was a solicitor in one of the British Empire, and If one was a barrister in any of the British Empire.

British colonial Government enacted other laws to work together with these rules. Such laws included: Advocates Remuneration Ordinance9, which provided for the fees to be paid to Advocates on various legal services. Legal Instrument (Restriction on preparation Ordinance)10 that dealt with restrictions imposed on preparation of certain documents by persons not admitted as advocates. All these legislations were repealed with the coming into force of the Advocates Ordinance that came into operation in 1955. With the amendments made to it from time to time, the Act has remained to be the law applicable in governing the practice of legal profession in Tanzania. To date, the country maintains as a legal system based on the bed-rock of that law which constitutes one of the most enduring legacies of the former British Empire . Though there are some amendments done to suit the environment of Tanzania (Modification)

Amendments, Changes and Modification of Legal Profession in Tanzania after independence

Newly Independent Tanganyika Government inherited British colonial laws and its court system. Hence it can be said that, newly independent Tanganyika practiced common law system few years after independence. As far as legal matters are concerned, Tanganyika inherited the 1955 Advocates ordinance and on the part of court system, we inherited colonial dual court system which was segregative in terms of race. Due to changes resulted from independence; some amendments and modifications were to be done so that the court system and laws could suit the environment. Such modifications include the following:

Modification in 1963: In this year court system of Tanganyika was modified by enacting a Magistrates Court Act12. This Act abolished dual court system instead established Primary court, District Magistrate court and Resident Magistrate court.

Amendments Regarding Advocate Qualifications: 1955 Advocate Ordinance13 which repealed in 1922 Legal Practitioners Rules and other laws admitted only the following as advocates:

    If one was a solicitor in England,
    If one was a solicitor in India,
    If one was a solicitor in one of the British Empire and 
    If one was a barrister in any of the British Empire.

This implies that indigenous Tanzanians had a minimal chance of practicing as advocates hence in a very year 1963 Advocates Ordinance was amended. Some of the new changes introduced included qualifications for one to apply for advocacy whereby the following could practice as advocates upon being cleared by the Chief Justice after passing bar examinations.

    If he is the holder of a degree in law granted after the University of East Africa.
    If he is a holder of any similar qualification which is accepted by the council.

It also maintained recognition of solicitors and barristers practicing in any common wealth to practice as advocates.

Recently the new Act has been enacted that govern admission of law graduates to practice legal profession instead of appearing before the bar, they have to undergo post graduate diploma course at Tanzania School Law. This also enhances indigenous to practice legal profession.

Modification in regard to Barristers and Solicitors Role

Unlike in England where barristers are the ones who represent clients in courts while solicitors are mainly dealing with legal documentation, such system does not exist in Tanzania we have only Advocates as general term who perform both duties.

Modification with regard to flexibility in application of adversarial system strictly.

The Judicature and application of laws Act there in after referred as JALA provides that common law, statutes of general application an the doctrine of equity can be practice by our court where it renders fit to do so. An illustrative case to this is the case of John Magendo v. N. E Geovani . In this case, court observed that Adversarial system can’t be exercised fully in Tanzania due to illiteracy. Instead of Judge becoming a referee he/she should act as a supervisor. 3.0. CONCLUSION

Through the discussion, it has been observed that during pre-colonial era there was no legal profession, what existed was a mere dispute settlement mechanism.

Present Tanzania legal profession is the outcome of External Influence particularly importation of British legal system by virtue of Tanganyika Order in Council.

However, we don’t practice British legal system fully because the environment differs; hence British legal profession laws and court system inherited from colonial Government have been modified and amended so that they fit in our society

BIBLIOGRAPHY

STATUTES

Tanganyika Order in Council (TOC) Advocate Remunerations Ordinance (CAP 10) Legal Instrument (Restriction on Preparation Ordinance) (CAP 11)

Magistrate Court Act: Act No 55 of 1963 Advocate Ordinance Tanzania Government of; The Judicature and Application of Laws Act, (CAP 341:

                                         R.E 2002) Government Printer.

CASES.

John Magendo v. N.E Govani (1973) LRT 60

BOOKS.

Horriby A.S (1975), OXFORD Advances Learners Dictionary, 5th Ed, Oxford

                                 University Press, London

R.Leslie and S.Bone (1975), Osborn’s Concise Law Dictionary, 8th Ed, Universally

                                              Law Publishing Co PVT Ltd, Delhi.
                                           

Twaib F (1997), Legal Profession in Tanzania: The Law and Practice, Bayreuth

                         African Studies 46 Bayreuth.
                        

MIMEO

Lugakingira K “The adminstration of Justice in Tanzania” University of Dar es salaam

                         1987

[edit] legal profession we have in Tanzania is a result of the importation of the English legal system in our country

Although the legal profession we have in Tanzania is a result of the importation of the English legal system in our country, yet the decision of the High court in the case of John Magendo V. N.E Govani [1973] LRT n.60 seems to modify not only our legal system but also our legal profession.

Give a critical discussion on this contention.

OUTLINE:

                                                                                                                                    Pages:

1:0. INTRODUCTION: …………………..............................................................………1

1:1. THE CONCEPT OF LEGAL SYSTEM IN TANZANIA ……………………...……1

1:2. THE CONCEPT OF LEGAL PROFESSION ……………………………………….1

1:3. HISTORICAL BACKGROUND OF LEGAL PROFESSION IN TANZANIA ……1

2:0. MAINBODY: ………………………………………………………………………..2

2:1.WHETHER COURTS’ DECISIONS SEEMS TO MODIFY LEGAL

     SYSTEM AND LEGAL PROFESSION IN TANZANIA ………………...…………2

2:2. COMMENTS ………………………………………………………………...………4

3:0. CONCLUSION ………………………………………………………………………5

4:0. BIBLIOGRAPHY …………………………………………………………...……….6

INTRODUCTION:

Legal system in Tanzania is based on the English Common law system with its consequence to the systems of profession structure, legal procedure, training and ethics. Therefore, the Tanzanian’s legal professional system modeled on the essential characteristics of the English profession, but, “…did not develop as a response to the particular condition of contemporary Tanzania.”

However, the system also proceeds on the assumption that it is pertinent that we accept this historical bequeath as part of our present judicial framework. It is therefore, that legal profession is an important component of the modern system of administration of justice.

The term “profession” has been defined by Harold Perkin as an especially desirable and dignified occupation. It implies intellectual training and an expertise which is largely mental in character .

The concept “Legal Profession”, generally, we mean a profession which consists of a body of people trained and educated in law, hence qualified to render legal services. The social phenomenon currently recognised as the legal profession in common law systems is a product of a historically specified environment. It developed through centuries of evolution in England. Save for some few modifications, it was brought to Tanzania in its totality.

In Tanzania, there are mainly three institutions of legal profession, namely, The Tanganyika Law society as it has been established by virtue of section 3 of the Tanganyika Law society Act ; The Advocates Committee as established under section 4 of the Advocates Act ; and The Counsel of Legal Profession as established under section 5A(1) .

THE HISTORICAL BACKGROUND OF LEGAL PROFESSION IN TANZANIA:

The legal profession in Tanzania basically is an imported structure from English Common Law system and profession, and that is why it has always contained the professional characteristics of its English forerunner. Meanwhile, the historical background of legal profession in Tanzania has to be traced in accordance with three phases in history, and these are pre-colonial era, the colonial era and post colonial era.

During pre-colonial era, legal profession in Tanzania was short rather non in existence. The Tanzania societies were divided into tens of tribal and ethnic groups, each with its own structure of social organization. It has thus been observed that:

“The tradition system of legal administration in pre-colonial Tanzania, as in most other parts of Africa, often had two distinctive features: The first one been the absence of specialized institutions and personnel for the administration of the law; and second was lack of a clear distinction between civil and criminal wrongs.”

During colonial era, especially on the German regime on 19th and early 20th centuries, Tanzania hardly came into contact with professional lawyers. German colonial law distinguished between Africans and Europeans, whereby the former continued to be, generally, governed by African customary law administered by Chiefs and other traditional dispute settlement mechanisms. Where as the later governed entirely by German law and where there was no German federal law applicable, the law of the Prussian Kingdom applied. Therefore, it can be said that during German colonial rule in Tanganyika, the role of the lawyers was minimal.

During British colonial period, Tanganyika found itself a recipient of the English common law system, as has been brought in by the Tanganyika Order in Council (TOC) of 1920 . Thus, to date the country maintains a legal system based on the bed-rock of that law. It is said that,

“…in Tanzania, the present legal system and legal professional structure are thus founded upon the common law of England. The profession has played and continues to play an important and indispensable role in the operation of the common law system and its adversarial procedure which form the back born of the country’s legal order.”

The existing legal system and legal professional structure is generally sound, but major modifications are needed to suit the present circumstances. The current system should thus provide the necessary groundwork upon which improvements could be made by taking the form of reshaping the present structure, with the paramount aim of making the profession more appropriate to the requirement of the Tanzanians today.

WHETHER COURTS’ DECISIONS SEEMS TO MODIFY LEGAL SYSTEM AND LEGAL PROFESSION IN TANZANIA.

This issue is raised in consideration that it covers the centre of the discussion. In answering this issue, we have undergone through discussing several decisions of the High Court and that of the court of appeal of Tanzania relating to modifications made as a result of their decisions. In so doing, several cases have been taken as authorities in answering the issue raised above.

For instance, in the case of Salehe Mahamburi Vrs. Noseni Mrinda , where a dispute arose over a piece of land in pare, which the defendant had taken and sub-divided among tenants, but which the plaintiff claimed to inherit from his grandfather. The Primary Court found for plaintiff, but the District court reversed on the grounds that the defendant as the person in possession did not have to prove anything. It was for the plaintiff to prove his title, which he had failed to do. George, CJ. (as he then was) had these to say:

“…looking at the matter from the point of view of English law, I would agree with the view expressed by the District Magistrate. Proof of title here is, however, quite a difficult thing where there are no deeds showing ownership of customary land and seldom any documents evidencing a transfer. To decide cases on the basis of onus of proof, as in England, is not desirable and would certainly not be understood…All efforts should be made, therefore, to have all the facts brought out, rather than to depend on rules as to burden of proof, which operate fairly when legal advise is available to both sides, but not otherwise.”

The words “To decide cases on the basis of onus of proof as in England are not desirable and would certainly not be understood” are the remark of the High Court modification on not only legal system but also our legal profession in Tanzania. It means that, since after independence, there was no strict adherence to the English Adversarial system which places the sole duty to the parties to prove their case or deny the claims. The court has a duty to adjudicate cases in accordance with the circumstances of the particular society and not only to relay on the imported legal system and the legal profession.

Another case which contributed to the modification of the imported legal system and legal profession in Tanzania is the case of John Magendo Vrs. N.E. Govan . The facts of the case are such that, the plaintiff is an infant and sues by his next friend and father John Magendo. On 4th September-1968 the plaintiff, Cosmas John, at 9:30am was cycling along the road and came into collision with the defendant’s motor vehicle and sustained injuries, hence brought the claim for compensation for the personal injuries he sustained. The plaint was filed on 24th September-1969. The District court dismissed the claim basing on Article 22 of the Indian Limitation act, 1908 which provided one year period for compensation for an injury to the person, which starts to run from the moment the injury is committed. For the Law of Limitation Act of 1971 would be three years but it did not come into force until 1stmarch-1971. Biron,J., among other things, held that: “It is a duty of a Judge or Magistrate conducting a case, to try the case and determine it on its merits doing justice to each party according to law, it is wrong for him to regard himself as a referee in a game even if both sides are represented by able counsel.”

So, in looking deeply on the words as viewed out by Honorable Justice Biron, it shows that the court of Appeal has modified the imported English Legal Common Law System in procedure by not exactly following the Adversarial system as it applied in England.

In the other case decided by the Court of Appeal of Tanzania marking the modification of legal system and legal profession is that of Director of Public Prosecution Vrs. Peter Roland Vogel , where it was held by the full bench of the Court of Appeal presided by Nyalali,C.J., Makame and Kisanga, JJ.A., that “…the adversarial system in this country has undergone considerable modification in its application …”

The last case which modified the legal system and legal profession in Tanzania is that of Lujuna Shubi Ballonzi, Senior v. Registered Trustees of Chama cha Mapinduzi , it was held by Samatta, JK, (as he then was), among other things that,

‘…the High Court has the power to modify the applied common laws so as to make it suit local conditions.’

It must be born in mind that the application of English Legal System in Tanzania is controlled under the umbrella of the Judicature and Application of Laws Act by virtue of section 2(3) which provides 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 may render necessary.”

That, the above proviso explains itself that, there is no strict application of the adversarial system in Tanzania as has been imported from England in 1920 by virtue of the Tanganyika Order in Council, but it will only so far that the circumstances of Tanzania and its inhabitants permits, and subject to such qualification as local circumstances may render necessary.

COMMENTS:

In Tanzania, Legal System and Legal Profession operate upon the Adversarial System of procedure. The adversarial system functions on the basic assumption that, both sides are given opportunities to present their cases before a decision can be given. It also based on the assumptions that: 1: it assumes the existence of a reasonable availability of legal services 2: fairly literate population 3: the existence of a financially sound economic base, and 4: a small number of destitutes

Therefore, following the above assumptions it connotes in reality that the system can not function effectively in a country like Tanzania for the reason that, the country suffers from a serious shortage of all the infrastructures. As the then Chief Justice Georges pointed out that “Tanzania was operating the Adversarial System without the Adversaries.” Therefore, this was the greatest weakness of the country’s justice system and legal system.

In so doing the above short comings also modified legal profession in the country, where as courts currently does not remain as a referee (an umpire) but can challenge, contribute and take considerable care in adjudicating some matters arising from law and facts. Also on the other hand, other legal practitioners like advocates are being challenged by the court in their field if at all they do not perform it satisfactorily as it was in the case of Dr. Masumbuko R.M Lamwai v. Venance Francis Nguha and AG , it was held,

‘…both advocates therefore have more than ten years of legal practice and are expected to know that where a legal issue is raised in the highest court in the land well in advance of the hearing date, appropriate legal research is required by advocates on both sides to assist the court to make a decision which is correct in law. We are compelled to express our disappointments at the conduct of the learned advocates both whom we know are capable of doing better than they did…’

CONCLUSSION:

In doing so, one can argue that, Tanzania can not follow it strictly and at the same time can not definitely ignore or depart from the Adversarial System of Dispute Settlement as applied in England . This is because, the system give the basic framework of the Tanzania Legal System and its Legal Profession. What the Tanzania Legal Profession has done is just to centralize the profession, where the work done by the Barristers and Solicitors in England is now the duties of Advocates in Tanzania.

BIBLIOGRAPHY:

STATUTES:

THE ADVOCATES ACT [CAP. 341 R.E. 2002]

THE JUDICATURE AND APPLICATION OF LAWS ACT [CAP. 358 R.E. 2002]

THE TANGANYIKA LAW SOCIETY ACT [CAP. 307 R.E. 2002]

THE TANGANYIKA ORDER IN COUNCIL (TOC) OF 1920

CASES:

DIRECTOR OF PUBLIC PROSECUTION V. PETER ROLAND VOGEL [1987] TLR. 100.

Dr. MASUMBUKO R.M LAMWAI v.VENANCE FRANSINCE NGUHA AND THE ATTORNEY GENERAL, CIVIL APPEAL NO. 56 OF 1997, CAT AT DSM [unreported].

JOHN MAGENDO V. N.E. GOVAN (1973) LRT NO. 60

LUJUNA SHUBI BALLONZI, SENIOR v REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI (1996) TLR NO. 203.

SALEHE MAHAMBURI V. NOSENI MRINDA [1969] HCD. 276

BOOKS:

PERKIN, H. (1980); “PROFESSION AND THE GAME OF LIFE”: DAVIS CENTRE, PRINCETON UNIVERSITY, SPRING SEMESTER.

TWAIB, F. (1997); “THE LEGAL PROFESSION IN TANZANIA: LAW AND PRACTICE”: BYREUTH AFRICAN STUDIES

WEBSITE:

www.google.com/legal profession in Tanzania

ALTERNATIVE ANSWER QUESTION No 2 Although the legal profession we have in Tanzania is a result of the importation of the English legal system in our country yet the decision of the High Court in the case of John Magendo v N.E Govan[1973] L.R.T no 60 seems to modify not only our legal system but also our legal profession.

Give a critical discussion on this contention.

TABLE OF CONTENTS

1.0 INTRODUCTION PART

1.1 THE CONCEPT OF LEGAL SYSTEM

1.2 THE CONCEPT OF LEGAL PROFESSION

1.3 THE CONCEPT OF THE ADVERSARIAL LEGAL SYSTEM

2.0 MAIN BODY

2.1 HOW DOES THE CASE OF JOHN MAGENDO VN.E GOVAN MODIFY ADVERSARIAL LEGAL SYSTEM AS APPLIED IN TANZANIA?

2.2 HOW DOES THE MODIFICATION AFFECT THE LEGAL PROFESION IN TANZANIA?

2.3 CRITICISMS

3.0 CONCLUSION

4.0 BIBLIOGRAPHY

1.0 INTRODUCTION

This paper is intended to trace back the historical background of the existing legal system and legal profession in Tanzania, its adoptions, the modifications it has undergone through and, its effects to the contemporary Tanzania legal system and legal profession through various court decisions, one of it being that in the case of John Magendo v N.E Govan[1973] , as our area of sphere.

1.1 THE CONCEPT OF LEGAL SYSTEM

The term “ legal system” has been briefly defined by C.K Mtaki in “ Constitution and Legal System of East Africa” to mean “a system that presupposes the existence of laws, the constitution inclusive and regulations, the instrument of their enforcement and the instrument for deciding whether or not in a given case the laws or regulations have been violated.” The existing legal system of our country has its origin from the English legal system, being the result of the British reign in our country by the virtue of Article 17 of the Tanganyika Order in Council of 1920,which was regarded as the first Constitution of Tanganyika. Among other things, the Tanganyika Order in Council of 1920 authorized the importation and application of the English legal system which is adversarial in nature.

According to Fauz Twalib in “ The Legal Profession in Tanzania,” he says, “history has bequeathed up on Tanzania-as upon ten of the other countries throughout the world, a legal system based on the English Common Law, with its consequent sub systems of professional structure, legal procedure, training, ethics e.t.c.”

Therefore, the present Tanzania legal system and legal profession are thus founded upon the common law legal system of England.

1.2 THE CONCEPT OF LEGAL PROFESSION.

The term “profession” has been differently defined by various authors and legal jurists. Among the authors who have tried to give the definition of the term profession is Harold Perkin in “ Profession and the Game of Life.” This defines the term profession to mean “ a special, desirable and dignified occupation. This implies intellectual training and expertise which is largely mental in character.”

According to A.S Hornby in “ Oxford Advanced Learner’s Dictionary,” the term profession has been defined to mean “ a paid occupation, especially one that requires advanced education and training, for example, architecture, law or medicine.”

In summary, we can define the term profession to mean, an occupation or skills acquired by a person, after attaining a higher learning education or any other equivalent education to the higher learning education.

Thus, legal profession may now be construed to mean, an occupation or a field that comprises of matters, issues and people dealing with law; the people who have attained an advanced and specialized education and training in the field of law. The contemporary Legal profession of our country was imported from the English legal system by virtue of the Indian Act( Application Ordinance of 1922). The Act categorised the legal profession into two, that is, Barristers and Solicitors. In order to suit the circumstances of Tanzania( the then Tanganyika), the two categories were fused by the introduction of the English legal profession.

1.3 ADVERSARIAL LEGAL SYSTEM.

According to Robert V. Makaramba in his manual titled “Legal Method, Part II,” the concept adversarial system has been discussed to refer to a set piece trial in which both sides confront each other before the presiding Magistrate or a Judge depending on the level of the court which is entertaining the dispute. The legacy of this system is the due process of law that “ justice must not only b done but must seen to be done.”

In adversarial system, the parties to a dispute are involved in a sort of “fight” or “combat” and are envisaged as adversaries who accuse each other in the presence of an unbiased or impartial umpire, hence the term “adversarial.” Under adversarial system, the parties are presumed to know the case, that is why the judgement takes the form of winner takes all and looser looses all. In this, Rules are precisely defined and strictly applied, that is, the exact scope and limits of each rule are laid down in advance of dispute arising in the form of statutes and case laws( precedent).Therefore, the Judge’s or Magistrate’s role is passive one, that is, he acts as an umpire while administering the rules of the trial game. The procedures and rules of evidence, however, are more technical hence advocacy is necessary.

2.0 MAIN BODY. As it has been introduced above, the English legal system is confined to the so called “strict application of adversarial system” of dispute settlement. Besides, despite the fact that such system applies in Tanzania by virtue of the proviso of s.2(3) of Judicature and Application of Laws Act, Cap 358[ R.E 2002] hereinafter referred to as JALA, however, courts in Tanzania have in certain circumstances been deviating from strict application of the adversarial system as is applied in England; the aim being to suit with the circumstances prevailing at a time and those in which the dispute arose.

Thus, strict application of the traditional adversarial legal system in Tanzania, cannot be applied in our country without some modifications in order to suit with the circumstances prevailing in each case and the local circumstances. That being the fact, there is a number of case law decisions and various legal provisions of laws that allow some modifications on adversarial legal system, as applied in Tanzania, for proper dispensation of justice in our country. This is to say, since the English legal system wants judges and magistrates to act as umpire in resolving legal disputes brought before them, these case law decisions and  other legal provisions of the law, are trying to  influence courts in Tanzania to slightly deviate from strict application of the English adversarial legal system. Thus, instead of Judges and Magistrates  sitting back and watch as referees as the parties to a dispute confront one another before the courts, these case law decisions influence the said Judges and Magistrates to take part in the case as judicial professionals so that they reach to a fair and just judgement.

2.1 HOW DOES THE CASE OF JOHN MAGENDO V N.E GOVAN MODIFY THE ADVERSARIAL LEGAL SYSTEM AS APPLIED IN TANZANIA?

Various court decisions have brought about some modifications on the strict application of the traditional adversarial legal system as applied in our country, purposely, to suit the local circumstances within which a dispute arose and that of the country.

Among those decisions is that of Biron J.(as he then was); in the case of John Magendo v N.E Govan where he stated that “it is deplorable that any bench-holder could treat court proceedings before him as a football match with doubtless, the parties themselves being the ball and kicked around by their counsel, however inept may be.” Therefore, it is the duty of a judge or magistrate conducting a case, to try the case and determine it on its merits doing justice to each party according to law. This means, instead of a judge or magistrate playing a passive role, he has to, in some circumstances, assist the parties in conducting their case when there is a need to do so for proper dispensation of justice without prejudicing any of the part to the proceeding.

Lord Godard, C.J in R v David Flynn; states that “ Criminal trials are not like a game. The object of a criminal trial is to acquit the innocent and convict the guilty. This means, in the due progress of the case, some matters which are of vital to reach to a fair decision may be ignored by the parties themselves, in such situation, the judge or magistrate however inept he is , he has to compel the parties to produce them so that a just and fair decision could be reached. In order to arrive at a just decision, in civil case, the magistrate is expressly empowered by the Civil Procedure Act under Part I,S.25 to summon witnesses on his own motion; and in criminal cases, he is not only empowered to summon witnesses on his own motion, but also it is a mandatory for him to do so, if it appears essential to the just decision of the case.”

These decisions of the High court of Tanzania illustrate the manner in which the Judges or Magistrates of this country have been empowered by the proviso of s.2(3) of Judicature and Application of Laws Act(JALA) to make some modifications on the adversarial legal system to suit the circumstances of Tanzania for a fair and just decision.

In another case of Tanzania Air Services Ltd v Minister for Labour, Attorney General and Commissioner for Labour[1996] , Samatha J(as he then was) said “Under s.2(2) of the Judicature and Application of Laws Ordinance( JALO)( now S.2(3) of JALA, Cap 358[R.E 2002] the High Court has the power to vary the common law to make it suits the local conditions…”

The same was argued in Lujana Shubibalonzi Senior v Registrar of Trustees of C.C.M [1996] where it was held inter alia that “the High Court has power to modify the common law so as to make it suits the local conditions…………on the identical power conferred on the High Court of East Africa by the proviso to Article is of the East Africa Order in Council of 1911” In Nyali Ltd v A.G; Denning L.J ( as he then was) said at page 653 “ The ….proviso says, however, that the common law is to apply subject to such qualifications as local circumstances render it necessary. This wise proviso should, I think, be liberally construed. It is a recognition that the common law cannot be applied in a foreign land without considerable qualifications. Just as with English Oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England...”

Therefore, according to the various cases mentioned above, it is true that, the strict application of traditional adversarial system in Tanzania will not assist the courts to reach a just decision due to the circumstances prevailing in our country. We need to have a number of considerable modifications on it to suit the circumstances of the country to ensure proper administration of justice to the parties concerned and public at large. Hence, in certain circumstances, from the observations made on the cases above, Judges and Magistrates are allowed to:

First; try cases and determine them on their merits doing justice to each party according to law instead of applying the strict English adversarial system as applied in England.

Secondly; interfere with the findings of the lower courts so as to ascertain itself as to the correctness or otherwise of the evidence adduced before it. This includes even making some discoveries of various documents that were not produced before the lower courts. Thirdly; summon witnesses on its own motion so they can adduce evidence on some matters that do not only bring confusion to the Judges and Magistrates but also the findings made by either party to a dispute. The essence of all these is to ensure that, “ justice is not only done but seen to be done.”

2.2 HOW DO MODIFCATIONS AFFECT THE LEGAL PROFESSION IN TANZANIA?

The legal profession of our country is highly influenced by the legacy of common law. However, it has been agreed that, the legal professionals must be liberal in order to cope with the circumstances which are prevailing to the court jurisdictions of our country.

In the case of D.P.P v Peter V. Vogel[1987] , the counsel for the respondent submitted that “this court(Court of Appeal) has no jurisdiction to interfere with the findings of the two lower courts. It was accepted that, as there is the adversarial legal system which applies in our country, the court cannot be expected to take the initiatives to obtain evidence since to do so would make the court appear to be prosecuting the case.”

However, this was challenged by the case of John Magendo v N.E Govan where it was agreed that High Court by virtue of the proviso of s.2(2) of the JALO (now s.2(3) of JALA) are empowered to make modifications to the common law to suit the local circumstances of the Tanzania and its inhabitants.

Thus, the case mentioned above , seems to modify not only the legal system of our country but also our legal profession, as follows:-

First; that, legal practitioners should not apply the strict common law legal system without considering the circumstances of our country. Biron J.;(as he then was) in the said case observed inter alia that, “it is the duty of a judge or magistrate to try a cases and determine it in its merits doing justice to each party according to law.” That is, much as the advocates are permitted to act zealously for their clients, then Judges and Magistrates, apart from acting as umpire when resolving legal disputes, in some situations their duties have to exceed those of the advocates. This means, for, the intention of the court is to reach to a just and fair decision, Judges and Magistrates are also permitted to find( on their own motion) relevant information related to the case at hand; call for other findings that the court thinks can assist it reach to a just decision, and even direct court officers( advocates inclusive) not to divulge prejudicial information.

Kalegaya J., had this to say in the case of N.B.C v Nabro and Meeda Reuben Naburi[supra] in relation to the current modifications on our legal profession as he was referring to the words of the Judges in the case of Rakusen v Ellis, Munday & Clarke[1912] . “In the judgement , I have quoted at length above, their Lordships talk of ‘courts having power’ to control these Court officers, directing them not to divulge prejudicial information; of solicitors being of highest honour and integrity, but, what machinery do Courts have to pull these ‘guarantees’ into place? Here, I should hastily add, lest I be misunderstood. I am not insinuating that Mr. Kalunga cannot strike the standard or the like. In fact, unless the contrary is proved, a Senior Counsel as he is, Mr Kalunga is presumed to be dot-free in this aspect, but here, we are not dealing with principles which cover only Mr.Kalunga’s type, but with all those forming part of this legal profession-naturally including those with questionable integrity. The principle should be broad enough to cover any eventuality. And this becomes more supported by the prevailing atmosphere, in our jurisdiction, where time and again the general populacy expresses reservations and bouts( however wild and possibly unsupported they may be) that some professionals double their roles between the competing parties. The profession should be saved from this mudslinging.”

Secondly; that, much as the advocates are permitted to act zealously for their clients, yet, their duties towards their clients are limited in regards to their duties towards the court and the legal profession at large. That is to say, in certain circumstances, advocates and other court officers have to ensure that the court is informed of any relevant decision upon any point of law or any legislative provision or any case law decision which may be relevant on the side of the court for it to reach to a just and fair decision. This can be supported by the case of N.B.C v Nabro and Meeda Reuben Naburi[2001] where Kalegeya J.; said, “ I should add that I have purposely made this observation using the words, ‘very recommendably.’ This is so because, a Counsel as an officer of the court, should always, as and when he gets [it/them], make available to the court all the relevant purpose of assisting the court to react to a sound, and just decision, I am grateful for this sound approach.”

Therefore, the legal profession have to accept the challenge that, in applying the common law legal system( adversarial system), some modifications have to be considered so as they may cope with the circumstances of each case in connection with the local circumstances of the jurisdictions of our courts to reach to a fair and just decision.

Moreover; Advocates, State Attorneys and other legal practitioners, should not at all times pray for the courts to adjudicate legal matters basing on the strict English legal system which is adversarial in nature instead, they should assist the courts to reach to a fair and just judgement by determining the cases while looking on other local circumstances in which the dispute arose, the nature of the parties themselves, and even the effects of the decisions to be given to the prevailing situation of the country and the matter at hand.

2.3 CRITICISM

Although the application of the traditional adversarial system has undergone various modifications as evidenced in a number of case law decisions in our contry, yet, in certain circumstances courts in the country do not depart from applying the English legal system as applied in England, but in such application, common law decision referred to will not be binding on our courts, rather, they will be persuasive in reaching at a decision.

Thus, the decision in the case of John Magendo v N.E Govan has not , at all times, been a “bar” to Judges and Magistrates from applying the English legal system. That is to say, despite the modifications that have been brought about by the said case, still, in certain circumstances, courts in our country do apply the English legal system in its adversarial nature but only where they(courts) are persuaded to do so. This can be evidenced by the case of Cocacola Kwanza Bottlers Ltd v Benson Mbezibwa[1999] where the trial judge(Kyando J.,now the decesead) persuasively adopted the decision in the case of Donoghue v Stevenson[1932] where the House of Lords observed that, “ the product on the sale was in an opaque bottle that it was immediate inspection was impossible. It was therefore foreseeable that the ultimate consumer was going to suffer the damage in question. That being the case, the manufacturer had an obligation to put on market products which were of the quality and standard required, hence, he was found liable fro producing defective products, as he owed a duty to take reasonable care to the ultimate consumers of the product manufactured.

The same decision was reached in the case of Cocacola Kwanza Bottlers Ltd v Benson Mbezibwa[supra]

Thus, the modification of the English adversarial system will depend as to whether the circumstances of Tanzania and its inhabitants and the local situations render it necessary to do so as provided for in the proviso of s.2(3) of the JALA.

3.0 CONCLUSION

It can be concluded from the discussion above that, the case of John Magendo v N.E Govan[supra] has helped to modify our legal system by providing a room for the courts in our country to slightly depart from strict application of the English Legal system which is adversarial in nature, so as to allow courts not to always determine legal disputes basing on the strict application of the adversarial system as applied in England, but to also determine the same looking on the merits of the case, facts involved, nature of the dispute and the circumstances in which the dispute arose. However, in certain situations, as the local circumstances render it necessary, courts can also apply the adversarial system in the same way as is applied in England.

4.0 BIBLIOGRAPHY.

STATUTES Tanzania Government of, The Tanganyika Order in Council of 1920

Tanzania Government of, The Judicature and Application of Laws Act[ Cap 358 R.E 2002]

CASES Cocacola Kwanza Bottlers Ltd v Benson Mbezibwa,Civil Appeal No 37 0f 1999 at High Court at Dodoma(Unreported)

Donoghue v Stevenson[1932]A.C 562

D.P.P v Peter V. Vogel[1987]T.L.R 100

Francis Ngaire v National Insurance Corporation(1972)H.C.D 134:[1973]E.A 56

Hedley Byrne and Co. Ltd v Heller and Partners Ltd[1963]

John Magendo v N.E Govan[1973]L.R.T no 60

Lujana Shubibalonzi Senior v Registrar of Trustees of C.C.M [1996]T.L.R 203

Nyali Ltd v A.G[1955]1 ALL ER 646

N.B.C v Nabro and Meeda Reuben Naburi, Commercial Case No 44 of 2001 at High Court at Dar es Salaam.

R v David Flynn,52Cr.App.R.17

Tanzania Air Services Ltd v Minister for Labour, Attorney General and Commissioner for Labour[1996]T.L.R 217

BOOKS Hornby A.S.,(1995),Oxford Advanced Learner’s Dictionary,5thEdition,Oford University Press, London.

Twaib F.,(1997), The Legal Profession in Tanzania: The Law and Practice, Bayreath Univ,Diss.

Makaramba R.V.,(1996), Legal Method, Part II, Open University of Tanzania,1st Edition,Dar es Salaam.

Perkin H.,(1980), Profession and the game of Life, Davis Centre, Princeton University Spring Semester.

[edit] the expectation of law school in Tanzania

Before the Enactment of the Law School of Tanzania Act, 2007 the law on admission of Advocates in the bar was vague and did not provide for room to each graduate of law to fulfill his long dream of practicing law and only the few “anointed ones” succeeded to realize this. It is expected that the Law School is coming to remove this mischief in our Legal profession. Critically discuss.

OUTLINE.

1. INTRODUCTION 1.1 DEFINITION OF AN ADVOCATE 1.2 THE CONCEPT OF LEGAL PROFESSION 1.3 THE ACQUISITION OF LEGAL PROFESSIONALISM IN TANZANIA

2. MAIN BODY 2.1 PROCEDURE BEFORE THE ENACTMENT OF THE LAW SCHOOL OF TANZANIA 2.1.2 INTERNSHIP 2.1.3 PUPILAGE 2.1.4 INTERVIEW BEFORE THE COUNCIL OF LEGAL EDUCATION 2.1.5 INTERVIEW BEFORE THE CHIEF JUSTICE

2.2 THE ENACTMENT OF THE LAW SCHOOL OF TANZANIA ACT, IT’S EXPECTED SUCCESS AND FAILURES.

3. CONCLUSION

INTRODUCTION

As far as our work is concerned, we found it necessary to give the meaning of the term Advocate. According to A.S Hornby in the Oxford Advanced Learner’s Dictionary of current English, the term Advocate has been defined as a person who supports or speaks in the favour of somebody or of public plan or action.

In tracing the Laws of Tanzania, the term Advocate has been taken to mean, any person whose name is duly entered as an advocate upon the roll. The term roll in itself means an official list of names.

THE CONCEPT OF A LEGAL PROFESSION. The word profession has been defined differently. According to Harold Perkin the term has been taken to mean an especially desirable and dignified occupation. It implies intellectual training and an expertise which is largely mental in character. In the English language, therefore the word profession denotes a much narrower concept than occupation. It embraces an exclusive class of particular occupations with certain distinct features.

THE ACQUISTION OF LEGAL PROFESSIONALISM IN TANZANIA. The Tanzania legal profession is basically an imported structure as it has always contained the professional characteristics of its English forerunner. For all intents and purposes, the profession is basically a creature of statutes.

Bar Organization was brought into being by legislative action through the Tanganyika Law Society Ordinance.

The professional features of the Tanzania Bar have thus been created, moulded and maintained with little deliberate effort from the profession itself. Law practice in Tanganyika as well as in Zanzibar was born a Monopoly.

Further more, the legal profession in Tanzania was thus transplanted into the new British territory and became by the very nature of its design, the exclusive domain of a privileged few. It benefited from the struggle its English predecessors had to go through in a long historical process to attain their Monopoly position and power.

MAIN BODY. As to the demand of our question we are hereby required to examine as to whether the Enactment of the Law School of Tanzania Act 2007, has brought about the removal of the mischief’s which existed before its enactment. But before going to the root of the question, let us have a look on the procedure for Enrolment o Advocates before the enactment of the Law School of Tanzania Act of 2007.

PROCEDURE BEFORE ENACTMENT OF THE LAW SCHOOL OF TANZANIA ACT NO 18 OF 2007 As per section 8 of The Advocates Act, it provides among other things, a person may apply to the Chief Justice to be admitted as an Advocate if he is the holder of a degree in law granted after examination by the University of East Africa or the University of Dar-es-salaam.

In addition to that the person was required to undergo internship program conducted under the Attorney General’s chamber for six months. In practice one was required to attend this program, three months on Attorney General’s chamber and other three months to the court. The essence of this procedure was to provide the practical knowledge to the graduate.

After internship the second stage was pupilage. In this stage a graduate was required to serve not less than six months of pupilage. This was conducted in a law office where by the head of that law office was required to write a petition to the Chief Justice as to acknowledge the completion of this stage as soon as it ends.

All these two stages that is internship and pupilage were done to ensure the graduate with practical experience.

After Internship and Pupilage a person was allowed to apply for petition, the latter was to be registered by a Registrar of the High Court and upon production of all the necessary documents, the date was to be set up by which one was to undergo interview process. This was done twice. First, Interview before the council of the Legal Education and lastly it was before the Chief Justice.

1. Interview Before The Council Of The Legal Education Council for Legal Education is a statutory body established under section 5A (1) of The Advocates Act. The purpose of the interview before this Council was to ensure competence before admission. Also to determine whether the petitioner had sufficient knowledge of the law those is applicable in Tanzania as well as see as to whether the petitioner was conversant with the language of the court.

The interview was done orally where the person was to be examined in a variety of general and specific substantive and procedural law.

Ever since 1994 it had been a practice to supply to the candidate list of specimen question and list it had been a practice to supply to the candidate list of specimen questions and list of statute to rely in preparation. Such list may consist up to four hundred statutes. But instead of helping the candidates, the lists have actually played a major part in confusing them and making the interview seem to be almost unsuccessful.

During this interview another mischief was observed because the law governing the procedures in asking questions from the ember of the panel was never clear, this gave a leeway to the panel members ask questions randomly this in most cases made the candidates nervous.

     2. Interview before the Chief Justice.

The second category of admission was to be done before the chief Justice. The purpose of this was to satisfy the Chief Justice that the person/candidate was of good character and was sufficiently equipped with relevant knowledge of the laws of Tanzania. The candidate who passed in the council was to be called for this second interview, which normally took place once a year between July and September.

He was to attend personally as required under section 8(1) of the Advocates Act. The Chief Justice was interested in knowing if one had an appropriate office to operate the business, basic law library with reasonable collection of legal and law books, a typewriter also his interest was to examine if at all one had adequate knowledge of the language of the court.

Generally, under this interview, one had to satisfy the Chief Justice as to the existence of his own office, a good standard library and typewriter, the most important was the acquisition of statutes. To backed up the essence of the requirements above the Chief Justice (as he this was) had this to say;

“Just like anyone who wants to be a farmer in this country cannot be a true farmer without possessing at least a hand hoe, so anyone who wants to practice law in our courts cannot truly do so without having at least the revised law plus subsequent amendments. Without possessing this minimum requirement any application should honestly be advised to try another occupation”.

     Requirement for Good Character.

Petition for admission must be accompanied with through Certificate of character. One from the candidate employer, the other from the practicing advocate. The procedure adopted by Chief Justice appears to be in pursuance to the provisions of sub section provide among other things that the Chief Justice may require unless cause to contrary is shown to his satisfaction by writing under his hand and in such a manner and form as he may from time to time think fit.

However, this requirement brings about the mischief because the provision give so much discretion power to the Chief Justice to determine whether or not a person is of good character and the mode of proving the fact was never ascertained.

Following this practice, as soon as the candidate proved to be disqualified the practice was simply to omit his name from the list. No inquiry was made and sometimes the objector merely withdrew his objection. This problem could have been avoided by adopting time limit for the lodging of the objection.

THE ENACTMENT OF THE LAW SCHOOL OF TANZANIA ACT, 2007. The Law School of Tanzania is established under section 4 of the Law School of Tanzania Act which state “There is hereby established a school to be known as the Law School of Tanzania. If we trace the Common Wealth countries for example Kenya the practice is that, the law graduates are immediately enrolled into schools of law where they are trained in practical skills before they can start practicing. The training among other thing includes working in courts and legal offices where Judges, Magistrates and Private practitioners take in active part.

Tanzania did not have such an arrangement or program until 30th March 2007 where President Jakaya Mrisho Kikwete assented the Law School of Tanzania Act, 2007. The Law School of Tanzania has been looked up as the room to each graduate of law to fulfill his long dream of practicing law. But the issue comes as to whether the Law School came to remove the mischief’s which existed before in our legal profession.

This issue is determined both positively and negatively following the functions and some provisions which made up this Act, as well as comparing the procedures for enrollment of Advocates before and after the enactment of the Law School Act.

The anticipated success of the Law School of Tanzania Act, 2007 can be viewed in the following: Firstly, the Act shall apply to every person who is a law graduate from an accredited University or other Higher Learning Institution awarding bachelor degree in law desiring to practice law in the United Republic of Tanzania. The explanations above are very well backed up by section 2 of the Law School Act. This shows that, the Act will provide for room for each graduate of law to practice law.

Secondly, the Law School of Tanzania will offer, conduct, manage and impart practical legal training programs may be prescribed by the council. This is pursuant to section 5(a) of the Act. This will equip the law graduate with necessary practical skills that will enable them to confront and solve real life legal problems competently and with confidence.

Thirdly, The Law School of Tanzania intends to provide sponsorship, arrange and provide facilities for conferences, seminars, workshops, meetings and consultations on matters relating to legal practice and allied subjects as per section 5(d) of the Act.

Fourthly, The Law School of Tanzania got rid of the time wastage in doing Internship, Pupilage and then a call for interview before the Council of Legal Education and that before the Chief Justice. The whole process is now seen as the time wastage because of the encumbrances which have been shown during the interview process. This made it almost impossible for one to pass the exam.

After seeing the anticipated success of the Law School of Tanzania as far as the graduates of law are concerned, Now lets look at the failures that the Law School of Tanzania will automatically bring to the graduates of law;

Firstly, a person is eligible to undertake a program of practical legal training if that person apart being a law graduate the person is required to pay fees as prescribed by Governing Board from time to time. Section 11 of the Law School Act has provided this requirement. This requirement will however bar some law graduates whose financial positions will be lower than the prescribed fee, as a result very few will manage to join the Law School.

Secondly, a person who complete this program which is practical legal training shall be awarded a Post Graduate Diploma in Legal Practice. However, there is a need for the Chief Justice upon his clearance to qualify and entitle the holder to practice as an Advocate of the High Court. This is per section 12(3) of the Law School Act. This procedure to the Chief Justice makes it no so easy for one to qualify as an Advocate because the qualification is subjected to the approval of the Chief Justice.

Thirdly, the place where the Law School will be situated is not specified in the Law School Act. This again bring the issue as to whether the place intended will manage to accommodate all the law graduates as stipulated under section 2 of the Act. Again is another mischief found in the Act. CONCLUSION.

In a nutshell, it is obvious that before the enactment of the Law School of Tanzania, the law on admission of Advocates in the bar was vague. This was due to the long and strict procedures which were to be followed in our legal profession. The process like internship followed by pupilage the n interview before the Council of Legal Education and the Chief Justice were themselves discouraging one to enter into the room of legal profession. The enactment of the Law school of Tanzania Act, 2007 is seen as a blessing to the graduates of law in Tanzania because it is expected to remove the mischiefs which were seen before its enactment in the legal profession as far as the admission of Advocates in the bar is concerned. However the law school Act in itself lacks some elaborative sections for example the issue of fees to be paid is vague and it tries to eliminate some law graduates impliedly as it goes against section 2 of the Act which provides no limitation for law graduates.

BIBLIOGRAPHY.

STATUTES.

Tanzania Government of, The Advocates Act [CAP 341 R.E 2002],Government

                                          Printers Dar es Salaam.

Tanzania Government of, The Law School of Tanzania Act No.18 2007, Government

                                         Printers Dar es Salaam           .

BOOKS.

Hornby A.S, (2000), Oxford Advanced Learners Dictionary of Current English

                                 Oxford University Press, New York.

Twaib F,(1997), The Legal Profession In Tanzania The Law and Practice,

                          Bayreuth:Bayreuth African Studies Breetinger.

QUESTION 3.

Before enactment of the law school of Tanzania 2007,the law on admission of advocates in the bar was vague and did not provide for to each graduate of law to fulfill his long dreams of practicing law and law and only the few ‘anointed ones’ succeeded to realize this. It is expected that the law school is coming to remove this mischief in our legal profession. 

OUTLINE

1. Introduction

2. Main body

3. Conclusion

4. Bibliography

1.0. INTRODUCTION

The term advocate has been defined by different authors and legal writers. , to begin with L.B Curzon1 defines an advocate to mean any person exercising the right of audience as a representative of on behalf of any party to legal proceedings.

Oxford Advanced Learners dictionary2 defines an advocate to mean any person who supports or speaks in favour of somebody or of a public plan or action.

An advocate is a person who pleads the cause of another in judicial Tribunal, barristers or solicitors3. Section 2 of Advocate Act4 defines an advocate to mean any person whose name is dully interred upon the roll

2.0 Law and procedure for one to be admitted as an Advocate before the enactment of law school of Tanzania act, 2007

Before the Enactment of Law School of Tanzania Act, 2007 the process for one to be admitted as an advocate was Regulated by Advocate Act5

2.1 Qualifications Before one could petition to be admitted as an advocate one had to meet the qualification set out under section 8 of Advocates Act6 which includes being a holder of degree in law from any accredited university or if one was a legal practitioner in any of the common wealth countries.

Also one had to have undergone the internship program and had to have learnt as a pupil of an advocate.

2.2 Procedure in acquiring a certificate to practise as a Lawyer

Enrolment for petition Under Advocate Act, A law graduate had first to apply to the Chief Justice for enrolment as per section 8(2) of Advocate Act7. The petition had to be in prescribed form and must contain petitioners Educational back ground and citizenship. The petition will then be taken to the office of Register of the High Court and upon citification by the office, The Register would put the name of the petitioner in the next available list of candidates. The candidate will then have to wait until the time comes for interview by the legal council of Education.

2.2.1 Interviews Once a person has submitted his petition for his enrolment with its necessary certificates and testimonials to chief justice, one had to prepare for interviews by the council for legal Education and by the Chief Justice

Interview by the council for legal education

The council is Established under section 5A(1) of The advocate Act8 whose members are CJ or his representative, Attorney General or his representative, Dean of faculty of Law University of Dar-es-Salaam or his representative and two lawyers elected by the Law society as per section 5A(1)(a),(b),(C),(d)9

With the letter of invitation for the interview, of the Council for Legal Education, a petitioner is also sent a List of specimen statutes that he is supposed to go through during his preparation. During the interview each member of the council is allowed to ask the candidate a specific number of questions usually three. The instruction given to the candidate didn’t indicate this. The candidate would then appear by the council for Legal Education.

2.2.2 Interview by the chief justice

After passing an interview of the Council for Legal Education, a candidate must satisfy the chief justice that he is a person suitable to occupy the office of an advocate by an interview conducted by the Chief Justice. The aim of this is to satisfy the chief justice that he is dully qualified and that possesses an adequate knowledge of the court and also to satisfy that the candidate has an office, Library and a typing machine.

2.2.3 Admission Ceremony

After having satisfied the Chief Justice, that he has complied with all the requirements of bar, a candidate will be called to bar. He will be informed by the registrar of The High Court and will be required to pay the fees to the High court and the Law society as per section 35(1)(b) and (c)10 of The Advocate Act. Then Chief Justice will sign the certificate and the Registrar will sign the practicing certificate and issues it to the candidate as per section 34 of The Advocates Act.

3.0 PROBLEMS OF THE OLD LAW AND PROCEDURE

3.1 Power of Chief Justice

The power of The chief justice have been criticized by different person and organization on the ground the sometimes Chief Justice may have his discretion in a manner not exactly just as per Fauzi Twaib11,quoting minutes on The Annual General meeting of Tanganyika Law society, Arusha, 28 January 1995. The society recommended that the power of chief Justice to determine the suitability of a candidate should be removed and once the council for Legal Education has qualified the candidate, he should be admitted as of right.

3.2 Interview

Before being invited for an interview of the council for Legal Education am petitioner is sent a list of specimen statutes that he is supposed to read as a part of preparation for interview. Fauzi Twaib12 writes that on such list may consist up to about four hundred statutes. This seems to confuse the petitioner more than helping him due to that numbers of statutes.

Also despite the Fact that there is a lot of specimen questions for review, the practice shows that members of the council for Legal education have not always confined themselves to the list of question and wondered outside the list. This also may amount student to fail in such interviews. In additional, the interview by the Chief Justice is also in the Coram for Legal Education as per section 5A (i) (a) of Advocate Act13, there isn’t need for another interview to be conducted by the Chief Justice.

3.3 Assessment of Character of a Candidate

Section 8(3) of Advocates Act14 provides Chief Justice with power not to admit any aspiring Law graduate to practice as an advocate if he is of the opinion that the candidates is of no good characters. The Chief Justice as a matter of practice sent the names of the aspiring candidates to different organisation for objections of any. This was used by persons to lodge objection to Chief Justice about the conduct of the candidate and they were never given a chance to reply to the charges. This also reduced the number of candidates who managed to pass and become practising lawyers.

3.4 Intenship and pupilage programes

Under Regulation 1 of the Advocate (professional requirement) regulation of 1963, a law graduate was required to have read as a pupil of an Advocate for six month. This could be attained by a law graduate after having attending internship program. The problem with this was that the six months used to under go internship program was short for an aspiring Advocate to get used to all rules and procedural Laws, he once learnt in theory while pursuing his undergraduate degree and as a result the possibility of failing to pass the interview by council for Legal Education and Chief Justice

3.5 Strength of The Old Law and Procedure Despite seen as an Advocate towards many law graduates becoming a practising lawyers, the law and procedure helped to reduce chances of a person to get the certificate to practice by means other than the interviews

4.0 Enactment of Law school of Tanzania act 2007 The law school of Tanzania Act,2007 was passed in 2007 and gazetted in GN no 14 vol 88 of 6th April 2007. The main objective of the Act is to establish and to provide for Law to govern the Law School of Tanzania.

The enactment of this Act came as a response of the report 15 that among other things highlighted problems facing legal profession in Tanzania and the process for a person to be admitted as a practising lawyer The problem highlighted were inefficiencies in legal training during internship programme and power of Chief Justice in The admission process.

4.1 Procedure for one to be a practising lawyer under Law school of Tanzania act 2007

For any person aspiring to be an advocate has to enroll to the Law school and must posses a bachelor degree in law or other qualification from an accredited institution which the council consider equivalent to a bachelor degree in law as per section 11(1)(a) and (b) of Law school of Tanzania Act 16

The student will then undergo legal training program for one academic as per section 12(1) of the Law school of Tanzania Act17. After the completion of one academic year, the student will be awarded a post graduate diploma in legal practise as per section 12(2) of The Law School of Tanzania Act 18

Upon Clarence by Chief Justice of the post graduate Diploma, a Law School graduate will be qualified to practice as an Advocate of this High Court and Courts subordinates there to as per section 12 (5) of the Law school Act.

4.2 The role and weaknesses of the law school act in smoothing the way for graduates to become practicing lawyers.

First the issue of irregularities during interview by the Council for Legal Education as the Law school Act provides for examination to be conducted by the practical legal training examination committee as provided under section 10(a) of law school of Tanzania Act 19

Second the internship programme has been replaced by the school of law. It is expected that the deficiencies that were encountered during these programs, like that the interns to join law firms that had poor internal structure for training as observed in the legal sector report 20 will be solved.

Third, assessment of students academic and proficiency development, section 10 (a) of law school of Tanzania Act 21 which reads together with section 5 (a) (b) and (c) of laws school of Tanzania means that the school will examine the student both in theoretical and in practical aspect thus help to reduce the danger passed by the old law and practice in which candidates were only tested through interviews.

Despite the offering position of the problem that existed under the old law, the procedure under the laws school act has the following weaknesses.

First, the power of the chief justice in determining a whether the candidate is to be allowed to practice or not is still wide as can be seen under section 12 (3) of the law school Act 23 .this discretion may simply be abused and is contrary even to the recommendation of made by the legal sector report24

Second, just like the advocates Act, the law school of Tanzania Act has not provided the chance and procedure for appeal in case of any grievances against Chief justice. even if on may seek for judicial review at the high court still chief justice is above it and the possibility of finding justice is very minimal.

Third, the number of law graduates has in creased tremendously due to increase in universities, offering degree in law. The laws school is faced thus by challenges of having so many laws graduates applying for admission.

To conclude with despite the over increasing hopes that by introduction of laws school of Tanzania many law graduates may make to their dreams of practicing as lawyers, the wide discretion power of Chief Justice. A lack of provision for appeal and increased number of law graduates threatens the dreams of many laws graduates to be become practicing lawyers.

END NOTES.

1. Dictionary of Law, 4th at page 15. 2. Oxford Advanced Learners Dictionary at 18. 3. Mick Woodly, Osborn’s Concise Law Dictionary, 10th Edition page 21. 4. Cap 341 R.E. 2002. 5. Ibid. 6. Ibid. 7. Ibid. 8. Ibid. 9. Ibid. 10. The Legal profession in Tanzania, at page 198. 11. Op cit page 179. 12. Cap 341 R.E. 2002. 13. Ibid. 14. The Legal task force, Legal Sector Report at page 36. 15. The Law School of Tanzania Act, 2007. 16. Ibid. 17. Ibid. 18. Ibid. 19. The Legal Sector Report, at page 63. 20. The Law School of Tanzania Act, 2007. 21. Ibid. 22. Ibid. 23. The legal task force, legal sector report

BIBLIOGRAPHY

STATUTES

Tanzania government of, The Advocate Act, [ Cap 341 RE 2002] Government Printers,

                                                                            Dar es Salaam.

Tanzania Government of, The Law school of Tanzania Act,[Cap 5, 2007], Government printers,

                                                                           Dar es Salaam.

BOOKS

Fauz T. (1997), The Legal profession in Tanzania; the law and practice, Bayreith University.

Curzon L.B (2005), Dictionary of law, 4th Edn, Pitman Publishing Co.

Mick Woodly (2005) Osborn’s Concise Law Dictionary, Sweet and Maxwell, London.

REPORTS

Tanzania Government of, Legal Sector Report, Financial and Legal Management Upgrading Project, The legal task force.

[edit] tribunals with their own procedures

In the absence of some statutory or procedural requirements to the contrary administrative tribunals are neither bound by the common law rules of evidence nor judicial procedures. They are the master of their own procedure and are not restricted in their admission of evidence by the best evidence rule, the hearsay rule, the rules as opinion evidence and so on similarly, they can act upon evidence that is not sworn” Dr. G.A Flick in his book titled ‘Natural Justice’ at pp. 42-43. Is this the correct position in as far as the Advocates committee is concerned? Justify.

OUTLINE Pages 1.0 INTRODUCTION………………………………………..1

2.0 MAIN BODY……………………………………………….1-3

3.0 CONCLUSION……………………………………………..3

4.0 BIBLIOGRAPHY……………………………………………4

1.0 INTRODUCTION This paper attempts to underscore the position of the Advocates Committee and see whether the Advocates Committee bear the same features as those of administrative tribunals as the latter is neither bound by the common law rules of evidence nor judicial procedures. However, it is worth before embarking on the gist of the question to define Advocates Committee and its composition.

The Advocates Committee is the committee established under section 4 of the Advocates Act (hereinafter referred to as the “Act”), which consists of the following members, a judge of the High Court nominated by the Chief Justice, Attorney General or the Deputy Attorney General, or Director of Public Prosecutions, a practicing advocate nominated by the Council of the Law Society. The quorum of the Committee shall be two members of the committee one of those must be the Attorney General or his Deputy or Director of Public Prosecutions as provided under section 4(5) of the Act.

2.0 MAIN BODY The Committee shall have jurisdiction to hear and determine any application by an advocate to procure the removal of his name from the Roll , any application by any person to remove the name of any advocate from the Roll, or any allegation of misconduct made against any advocate by any person as provided under section 13(1) (a) (b) & (c) of the Act.

Once the Committee has received the complaint or an application as per section 13(1) of the Act, the Attorney General may at any time, and shall, when requested by the Chairman of the Committee, convene a meeting of the Committee for the purpose of enquiring into any allegation of misconduct made against any advocate pursuant to section 10 of the Act. In practice the committee receives complaint either by an application through the Attorney General or complaint referred to the Chief Justice who will then refer it to the Advocates committee.

Upon receiving the complaint the Advocates Committee shall scrutinize the allegations to see to it whether it does disclose a prima facie case, the committee may refuse such application or may dismiss the allegation without requiring the advocate to whom the application or allegation relates to show cause why his name should not be removed from the Roll or to answer the allegation, as the case may be. This is provided under section 13(2) of the Act.

In exercising its powers as enumerated under section 13(1) (a) (b) (c) of the Act, the committee is empowered to make such rules from time to time regulating the making, hearing and determination of applications to the committee. This is provided under section 14(1) of the Act.

A thorough scrutiny of the provision simply suggest that the Advocate Committee may develop rules governing its procedures of dealing with any application or allegations leveled against any advocate. It follows, therefore, that the procedures may not be uniform in all cases. However, the Chief Justice must approve the making of those rules.

Furthermore, under section 14(2) of the Act, the chairman of the committee may administer oath and may issue summons to appear or to produce documents or both. The language of the provision is ostensibly permissive in nature and character suggesting that the chairman may even treat un-sworn evidence in proceedings.

From the above premise the Advocate Committee is a tribunal just like other administrative tribunals and, therefore, the committee is the master of its own procedures and are not restricted in their admission of evidence by the best evidence rule, the hearsay rule, the rules of opinion evidence and so on and similarly, they can act upon evidence that is not sworn.

The High Court of Tanzania in the case of Charles Mwailunga v. Advocates Committee has succinctly made this position clear. In this case the appellant was an advocate registered and practicing in Tanzania. His name was ordered to be deleted from the Roll of advocates by the Advocates Committee on disciplinary grounds. The appellant in his grounds of appeal added two grounds on the leave of the court that the advocates committee in its proceedings failed to abide with the provisions of section 14(3) of the Advocates Ordinance Cap 341 and did not treat the proceeding before it as judicial, consequently there was occasioned a failure of justice. The court observed that the Advocates Committee is an administrative tribunal, which is neither bound by the common law rules or evidence nor by judicial procedures. Also at page 4 of the judgment the judges observed, “We think that the issue of procedure may be approached slightly differently. First of all, we note that the rules, which certainly have been more detailed, are silent as to the mode of taking evidence but section 14(2) of the Act empowers the Chairman to administer oath but does not compel him to do so. In the circumstances we do not think the committee’s failure to take evidence on oath was fatal to the proceedings or prejudicial to the appellant”.

3.0 CONCLUSION. Conclusively, it can be submitted that the nature, composition of advocates committee, and the procedures that are adopted by the committee qualify it to be a tribunal akin to other administrative tribunals which are masters of their own rules and procedures. It can precisely be accepted that the quotation given in the question is the correct position of th Advocates Committee.

4.0 BIBLIOGRAPHY. STATUTES:

TANZANIA GOVERNMENT OF, THE ADVOCATES ACT [CAP 341 R.E 2002],

                                                         GOVERNMENT PRINTERS, DAR ES SALAAM.

CASES Charles Mwailunga V. Advocates Committee 1980] TLR 282

BOOKS: A.B, Black’s Law Dictionary, 8th Edition Twaib. F, (1997); THE LEGAL PROFESSION IN TANZANIA: THE LAW AND

                             PRACTICE, Bayreuth African Studies: 46, Bayreuth.

Hornby.A.S, (2000); OXFORD ADVANCED LEARNER’S DICTIONARY, 6th Ed,

                                  Oxford University Press, New York.

[edit] Tanzania G.N No. 515 of 1991 is outdated and does not Reflect the true workload of the advocate towards his client

   QUESTION NO.5

    Despite the cry from various legal practitioners that Tanzania G.N No. 515 of 1991 is outdated and does not Reflect the true workload of the advocate towards his client yet those rules provide for a wide room for advocate to use their positions to earn material gains to the detriment of their clients. Discuss    

1.0.0 INTRODUCTION.

• Concept of GN No 515 of 1991

• Advocates

2.0.0 MAINBODY

• HOW THE RULES ARE OUTDATED BY NOT REFLECTING THE REAL SITUATION.

• HOW THE RULES ARE BENEFICIAL TO ADVOCATES AND DETRIMENTAL TO CLIENTS.

3.0.0 CONCLUSION.

BIBLIOGRAPHY

INTRODUCTION

Section 49 of the Advocates Act establishes the advocates’ remuneration committee. The committee consists of five advocates elected by the General Assembly of the Tanganyika Law Society, the committee or the Chief Justice may make orders describing and regulating the remuneration of advocates in regard to both contentious and non-contentious matters.

The Government Notice number 515 of 1991 introduced the Advocates` Remuneration and Taxation of Costs Rules (herein after to be referred to as the Rules) which replaced the Advocates` Remuneration and Taxation of Costs Rules of 1920-1962 . Various legal practitioners anxiously waited the rules of 1991, but ironically the rules turn out to be a disappointment.

This paper entails to discuss the 1991 Rules; in as far as advantages and disadvantage of the rules are concerned. According to section 2 of the Advocates Act , an advocate, is any person, whose name is dully entered as an advocate upon roll. Further more, section 4 of the Interpretation of Laws Act , defines an advocate, to mean a person entitled to practice as an advocate in the High Court or courts subordinate under the provisions of the law for the time being applicable to advocates.

HOW THE RULES ARE OUTDATED BY NOT REFLECTING THE REAL SITUATION. According to Section 12 of the Rules, no advocate shall agree or accept remuneration more than these rules. The aforementioned Section means that an advocate is barred from neither accepting nor negotiating remuneration above the one stipulated under the above section. This is the case even when the client is willing to exceed the expressed amount in the rules, thus an advocate is compelled to accept the amount specified by the rules

however small. For instance Schedule X of the rules provides 10,100/= to present or oppose a petition for winding up a company, an advocate is expected to conduct a thorough research for the same, thus practically he deserve more money for research than it is provided by the Rules. This rule is unfair under the current free market economy, where private arrangements over undertakings are highly empowered as opposed to centralized or planned undertakings. No wonder why the rule is commonly violated by legal practitioners, because it does not conform with the current situation, this can be envisaged in the case of Transport Equipment Ltd V. Devram P. Valambia where an advocate filed a bill of costs amounting to Tshs 3 billion, The case shows that advocates are not happy with the rules that is why they violate the rules watered down.

According to Section 25 of the Rules, an advocate is entitled to a half the fee provided under Schedule I of the Rules for investigating title and preparing a mortgage deed. The fees stipulated under this Schedule decrease in percentage as the value of the property increases. For example the value of property between 1 Million to 3 Million Tshs he is entitled to only 3% and the same percent for the property exceeding 3 Million. This amount under normal circumstance does not reflect the current situation, as it appears to be very little to an advocate who nit only obliged to pay rent, but also to make researches.

Apart from the remuneration of advocates being small, yet they (the remuneration) are subject to taxation for the costs of any matter or application as the court may direct pursuant to Section 41 of the Rules and as if this was not enough, Judges of the High court are empowered to certify that the costs are to be taxed on a higher scale than that provided for in the Rules . Under this circumstance there fore, it is obvious that the rules are to be blamed by various practitioners who solely rely on advocacy for their daily bread. In deed the amount manifestly proved to be unrealistic even before they are taxed, let alone when they are subject to taxation as indicated by the rules.

The rules on the face of it does not cover an advocate where he was not been paid at all or where he was partly paid at the time the client preferred an out of the court settlement with the opposite side, without involving his advocate. This is very painful especially when the client is inconsistent, to extent that he may, at any time privately arrange an out of the court arrangement.

The rules further more, under section 49 provides that costs may be awarded in an arbitration not withstanding that the time for setting aside the award has elapsed. Conversely, the same as opposing the law of limitation Act. Not only that, but also the charges allowed by the rules are solely basing on an ad Volerum scale. However, certain items are chargeable on the basis of folios which are determined by the length of documents. This tendency of charging by the length of documents does not reflect the real situation. This is because one may make an expensive research, but the same can be kept in a manner that the said folios seemed to be relatively small in terms of quantity, yet the rules will award less despite the quality of the research might be. The tendency of basins on an ad Volerum scale, will no wonder attracts bulky of irrelevant documents, purporting to be a thorough research, some thing which might be the case.

HOW THE RULES ARE BENEFICIAL TO ADVOCATES AND DETRIMENTAL TO CLIENTS.

Although the rules are said to be outdates under the eyes of practitioners, yet on the other side they are indeed detrimental to the client as an advocate largely benefit from them. We hereby present, some selected provisions showing how an advocate benefits from the very rules he claims to be outdated. An advocate according to Section 13 (1) of the rules is clearly allowed to additional remuneration as it is appropriate in circumstances. The provision seems to give an advocate a wide room to exploit his client for such additional remuneration, as he is the one who is entitled to show these appropriate circumstances. Under very limited

exceptional circumstances, is where the client may question on those alleged appropriate circumstances this is provided for by Section 13(2) of the same rules. The fact that an advocate is the one who may rise those circumstances, appear to favour his interest as the rules are silent on what are these appropriate circumstances.

Another instance where the rules are said to favor an advocate and disadvantageous to the client can be envisaged under Section 14 of the very rules. The section provides that an advocate is entitled to special fees in addition to remuneration in business of exceptional importance or unusual complexity against his client. Here it means an advocate is subject to additional remuneration in circumstances stipulated under Section 14(a) of the rules. These circumstances are the nature of the place in which the business is transacted, the pecuniary or other interest involved, quality of labour or responsibility entailed the number, complexity and importance of documents prepared or examined and other circumstances that may exist. In all of the above circumstances, it is obvious that an advocate has an influence to create those circumstances, let alone the chances of fictitious and manipulation of those circumstances.

Another loophole that may be used by an advocate for detriment of his client can be envisaged, under Section 15 of the rules. The rule provides that an advocate may accept security for money to become due. It appears to be of advantageous to an advocate, as he is assured his remuneration, thus the client can not connive an advocate. But the rule does not cover the client, thus while an advocate is secured, his client is not secured, as if he can not connive the client.

CONCLUSION / RECOMMENDATIONS However the world is changing, there is every need to review the rules governing remuneration. The review will not only make legal practitioners happy, but also make them serve their clients with honour and integrity they deserve. In many countries, advocate costs usually are based on the amount of time spent by lawyer in providing services to a client. In Tanzania, a percentage system based on prescribed scales is used to determine costs in accordance with the Advocates’ Remuneration and Taxation of Costs Rules. We are of the opinion that the present system which is based on percentage of remuneration is simply unworkable. As a result, most advocates do not follow the rules and instead agree up front on a fee structure with their clients. We are also of the opinion that the current rules should be amended so that to adopt the remuneration structure that recognizes mutual arrangements between advocates and clients, and that there should be proportionality between the amount of legal fees and the work done by the advocate Scales indicate what costs should reasonably be charged by practitioners acting on behalf of clients. They also provide information to clients and lawyers about fee rates and provide a standard for costs assessment or taxation. Universally, there is continuing discussion on the merit of fee scales, particularly focused on whether they reduce legal expenses and provide information to parties with which to compare their own costs.

BIBLIOGRAPHY

STATUTE(S)

The Tanzania Government of, The Advocate Act [CAP 341 R.E 2002],

                                                 Government Printers, Dar es Salaam.

The Tanzania Government of, The Interpretation of Laws Act, [CAP 1 2002]

                                                   Government Printers, Dar es Salaam.

RULE(S)

The Tanzania Government of, Advocate Remuneration and Taxation of Costs Rules 1991, G.N No 515 of 1991

CASE

Transport Equipment Ltd V.Devram .P.Valambia, Court of Appeal, Civil

Application No.18 of 1993, C.A.T.Dar es Salaam

BOOKS

Binamungu C.S and M.C, Mukoyogo, (2005), Studying Law Skills: A guide for

                                                            Beginners in Law, Mzumbe Book Project, 
                                                            Mzumbe.
            
                           
                                                                         

Twaib F, (1997), The Legal Profession in Tanzania: The Law and Practice,

                           Bayreuth African Studies, Bayreuth.

[edit] The duty of an advocate to the state

“The duty of an advocate to the state is that, when in the form of performing his duties an advocate has to make sure that he acts within the laws of the land that he is not supposed to contravene public policy. However the balance of interest between lawyers and the state suffered set backs after independence until 1990’s in Tanzania. The legacy has been that most states have negative attitudes towards lawyers. Napoleon Bonaparte wished to ‘cut the tongue’ of advocates. Likewise Shakespeare preferred the ‘regime without lawyers’ stating that, lawyers have to be killed.” Anonymous. In the light of the above quotation discuss how an advocate can successfully discharge his duties towards his client, the state, the court, and to himself within the context of balancing conflict of interest.

OUTLINE:

1.0 INTRODUCTION.  BRIEF HISTORY OF LEGAL PROFESSION IN TANZANIA.  MEANING OF AN ADVOCATE.  QUALIFICATIONS OF AN ADVOCATE(BOTH UNDER OLD AND CURRENT POSITION)

2.0 MAIN BODY.  DUTIES OF AN ADVOCATE TO THE CLIENT.  DUTIES OF AN ADVOCATE TO THE COURT.  DUTIES OF AN ADVOCATE TO THE STATE.  DUTIES OF AN ADVOCATE TO THE HIMSELF.  DUTIES OF AN ADVOCATE IN THE CONTEXT OF BALANCING CONFLICTS OF INTEREST.

3.0 CONCLUSION.

4.0 BIBLIOGRAPHY.

1.0 INTRODUCTION

The history of legal profession in Tanzania did not develop as a response of the particular condition in contemporary Tanzania. The history has bequeath upon Tanzania as upon tens of other countries throughout the world a legal system based on English common law, with it s consequent subsystem of professional structure, legal procedures, training, and ethics. Thus Tanzania’s legal professional system modeled on essential characteristics of the English profession.

In Tanzania for many years after independence, the private legal profession had occupied a somewhat precarious position in Tanzania judicial set up due to the adoption of UJAMAA POLICY which put the inclination of the country toward public sector at the expense of private enterprises. But at the present private legal profession in various jurisdictions strivers in a more open system.

MEANING OF AN ADVOCATE.

The term advocate has been defined by various authors under various contexts, but despite variety of definitions, still the definitions centers on the same meaning. According to S.2 of The Advocates Act , where an advocate has been defined as “any person whose name is dully entered as an advocate upon roll. The “roll” in this context means the list of advocates kept in accordance with the provision of part IV of the Advocates Act (supra).

Also an advocate has been defined by the Oxford Advanced Learners English Dictionary to mean “a person who defends somebody in a court of law.” However in old position for a person to qualify as an advocate he had to possess certain qualifications and pass through certain procedures so as to be eligible to qualify as an advocate. These qualifications included academic qualifications in which one ha d to possess a degree in law, he should be a legal practitioner in any common wealth country, and he should be a- solicitor or barrister, or a holder of any similar qualification which is accepted by the council as a profession qualification.

But in the current position, for a person to be an advocate he should be the holder of degree in law and he should attend the law school of Tanzania where upon completion of the course the person is awarded the post-graduate diploma in legal practice, which he will present to the Chief Justice for clearance then he is qualified and entitled to practice as an advocate. This is as per S.12 (3) of The Law School of Tanzania Act, 2007.

2.0 MAIN BODY.

Having seen the qualifications required for a person to be an advocate, an advocate performs various duties into various areas. These include duties to their clients, duties to the state, duties to the court and to himself in several contexts including the context of balancing conflicts of interest.

DUTY OF AN ADVOCATE TO THE CLIENT.

Advocate’s duties to the client starts in the early stage of taking brief facts from the client. When advocate has accepted instructions on behalf of the client, he is bound to carryout these instructions with diligence and must exercise all possible care and skills for instance, if the client is a plaintiff an advocate has to draft document known as demand letter and if the client is the defendant an advocate has the duty to pass through documents from the opponent side known as the plaint, and later he will write the statement of defense.

Duty to represent the client in the court. Once an advocate agrees to take instructions from the client and agrees to institute the case on behalf of the client, such an advocate owes the duty to appear before the court to represent him. In the matter of The Advocates Ordinance CAP 341 and in the matter of an application of Benard R Mrema and in the- application to the removal from the roll Dr. Masumbuko R.M Lamwai, Advocate where in this application, Dr. Masumbuko did not appear to represent the complainant and hence, the committee (Ethics Committee) came up with decision that, failure to render legal service of representing the complainant was equated to misconduct.

Duty to maintain confidentiality. Besides being bound by professional secrecy, an advocate is under the duty to keep confidential affairs of the client and to ensure that his staffs do the same. This duty continues until the client permits the disclosure or waives the confidentiality. However, the duty to keep client’s matters confidential can be overridden in certain exceptional circumstances. For instance, in those cases in which an advocate is required to disclose confidential information according to the law and those cases where such disclosure is essential for an advocate to defend himself in any proceeding taken against him.

Illustration; where a legal professional privilege places a duty in law on the advocate not to reveal what may otherwise be considered to be material relevant to the court’s determination can occur. Where in criminal case the prosecution assert that the defendant is of good character but the defendant has told his advocate he has previous conviction. Such disclosure is covered by legal profession privilege and an advocate should not disclose it to the court, because the onus rests on the prosecution to prove any fact the defendant does not have to provide evidence against himself.

Duty not to mislead the client. An advocate owes primary duty to his client that an advocate should be able to give objective and frank advice to the client free from any external or adverse pressure or interests which will destroy or weaken the advocate’s professional independence or the fiduciary relationship with the client.

Duty to ensure that not both parties are being represented by the same firm. An advocate is duty bound to ensure that he did not welcome a person who is against his client in the same suit he has in hand. If he do accept to represent different parties in the same conflict in interest, that will amount to misconduct. In the case of R vs. Rajani the court held that, a lawyer appearing for the prosecution and also he prepared a draft of a written statement for the accused, thus he is guilty of having committed breach of the rules of professional conducts. Duty to inform the client the general conduct of the case. The client has to be informed on the general conduct of the proceeding. In the case of Williams vs. Fanshaw Porter & Hazelhurst it was stated that, “there is no doubt that a solicitor owes a duty to keep his client informed about the general conduct of the matter he is handling as well as about any error in the handling of the client’s affairs which may give the client cause for complaint against the solicitor.”

Therefore, a lawyer’s obligation is to serve the client’s interest and he must act as if he assume the justice of the cause whatever hi or her personal opinions, the case must be conducted from start to finish as if he was completely convinced of it. Lawyer must assume the accuracy of the client’s instructions. He is not entitled to permit any person misgiving to influence the conduct of the case, and a lawyer has an ethical obligation to ignore the interest of others however valuable to the extent to which conflict with those of the client even the interest of the wider community.

DUTIES OF AN ADVOCATE TO THE COURT.

Provided that an advocate has the duty to his client, he is also having duties to the court. For the successful discharging of his duties to the court, an advocate has to perform the following duties:-

Duty to assist the court to reach to a just and fair decision. As an officer of the court, an advocate has the duty to assist the court to reach to a just decision. He shall therefore maintain a respectful attitude towards the court. An advocate during proceedings shall supply the court with all relevant information and shall be ready for trial on the day fixed.

Duty to make intensive research. An advocate has the duty to make research on the matter he complains. The good research helps the court to reach to affair decision. In the case of Abually Alibhai Aziz vs. Bhatia Brothers LTD where the court of appeal recognized the good work done by the learned advocates by saying that, “…we must at this stage express our profound appreciation for the industrial research made by all advocates in general and by Mr. Jadeja and Prof. Fimbo in particular. As it will presently be apparent, this extensive research has had a direct impact on our decision.” Thus failure to make a good research can lead to a non recovery of the particular complaint as it was observed in the case of Dr. Masumbuko Lamwai vs. Venus Ngula & Attorney General that “…appropriate legal research was required by advocates of both sides to assist the court to make the decision which is correct in law…”

Duty to draw attention of the Judge or Magistrate. Advocate’s duty to draw attention of the Judge was well elaborated in the case of R vs. Clacke the court stated that an advocate has the duty to draw attention of the Judge to any errors in the summing up so that they can be corrected, to be aware of the commencement date of recent relevant- legislation particularly in the sentencing field, to identify to the Judge relevant sentencing power. The learned Judge observed that, we Judge that counsel as a matter of professional duty to the court, and in the case of defending the counsel to their client,- should always before starting a criminal case satisfy themselves as to what the maximum is.

Duty not to waste time of the court unnecessarly. An advocate is under the duty not to prolong the cases unnecessary without departing from his duty to his client. An advocate can and should exercise in the interest of justice as a whole a proper discretion so as not to prolong cases unnecessarily. In the case of Ashmore vs. Cooperator of Lloyd’s it was stated that; “The parties and particularly their legal advisors in any litigation are under the duty to cooperate with court by chronological, brief and consistent pleadings for which the issues and leave the judge to draw his own conclusion about the merits when hears the case. It is the duty of the counsel to assist the Judge by simplification and concentration and not to advice the multiple ingenious arguments in the hope that out of ten bad points the Judge will be capable of fashioning a winner.”

Further, an advocate has other various duties to the court such as duty not to deceive the court or to make any knowingly misstatement to the court, duty not to conspire with any court official such as clerk so as to affect the carriage of justice.

DUTY OF AN ADVOCATE TO THE STATE.

As it was noted earlier that, an advocate performs several duties, those duties extends to the state. Thus, in state, an advocate has the main duty that, “When in the course of performing his duties an advocate has to make sure that he acts within the laws of the land that he is not supposed to contravene public policy.”

Also an advocate’s duty to the state is to the extent that, once a person is accepted as an advocate, he is automatically entrusted to act as a commissioner for oaths and pubic notary. Thus he has the duty to abide with the responsibilities imposed to him by the state.

DUTY TO HIMSELF.

An advocate apart from having duties from various areas, he is also having duties towards himself. These duties include duty to make research on various legal matters. This will help an advocate to represent his client effectively, duty to be current by reading new legislations so as to be aware of the new changes in the arena of law.

Also an advocate has the duty to observe The Advocate’s Code of Ethics and Conducts, none adherence of the code conduct for lawyers renders an advocate to be penalized. In the matter of the Advocates Act and in the application of the Benard Mrema and in the application of removal from the roll Dr. Masumbuko Lamwai (supra) the committee (Ethics Committee) decided that, non appearance to the court to represent a client was amounted to misconduct.

ADVOCATE’S DUTIES AND THE BALANCE OF CONFLICTING OF INTEREST.

In the course of performing his duties an advocate has to make sure that he makes the balance of conflict of interest for the client, court, state and to himself. The conflict of interest may arise in various occasions, for instance;

A conflict of interest can arise between client and an advocate in a manner that, a client can instruct an advocate to act in a manner that would be contrary to the advocate’s duty to the court. Here an advocate must advice a client that, he has to act within the boundary of his work and not else. If the client refuses, an advocate should withdraw himself from the case.

This may arise in various ways such as:- 1) If the client instructs an advocate that the advocate should not disclose a relevant non-privileged document. 2) If the client instructs an advocate not to draw an adverse authority to the attention of the court. Under both circumstances an advocate is under the duty to the court- to ensure that proper disclosure is made and that the court is aware of all relevant authorities even if they do not support that advocate’s argument. 3) If an advocate has acquired relevant knowledge concerning a former client during the course of acting for that client, the advocate must not accept instructions to act against the client. 4) Also an advocate should not accept instruction to act for two or more clients where there is a conflict or likelihood of conflict between the interests of those clients whether the client is a personal client or a client of the firm or association.

Further an advocate has to exercise his judgment as to where the balance lies between the competing duties. An advocate must not willfully mislead the court as to the law nor may he actively mislead the court as to the facts although, constantly that the prosecution must prove its case. Lord Hope in the case of Arthur Hall vs. Simons stated, “…the advocate’s duty to the court is not just that he must not mislead the court, that he must ensure that the facts are presented fairly and that he must draw the attention of the court to the relevant authorities even they are against him.”

3.0 CONCLUSION.

Therefore, one may argue that an advocate plays important duties to the court, client, state and himself, and in the course of performing his duties to all the relevant areas an advocate must ensure that he is not bias in either party so that the client, the court and the society at large should not loose trust to the lawyers, hence an advocate should act in accordance with the code of conduct for lawyers so as to maintain the dignity and respect of the legal profession.

4.0 BIBLIOGRAPHY. STATUTES:

TANZANIA GOVERNMENT OF, THE ADVOCATES ACT [CAP 341 R.E 2002],

                                                         GOVERNMENT PRINTERS, DAR ES SALAAM.

TANZANIA GOVERNMENT OF, THE LAW SCHOOL OF TANZANIA, 2007,

                                                         GOVERNMENT PRINTERS, DAR ES SALAAM.

CASES:

Abually Alibhai Aziz vs.Bhatia Brothers Ltd Miscellaneous Appeal no.1 of 1999 (C.A) Dar Es Salaam Unreported. Arthur Hall vs. Simons (2003) 3 ALL ER 673. Ashmore vs. Cooperation of Lloyd’s (1992) WLR 446. Dr. Masumbuko Lamwai vs.Venus Ngula & the Attorney General Civil Appeal no.56 of 1997 (C.A) Dar Es Salaam Unreported. R vs. Clarke (RWW) 59 Criminal Appeal 298 R vs Rajani (37 CIJ 48) Williams vs. Fanshaw Porter & Hazelhurst (2004) WLR 3185

BOOKS:

Twaib. F, (1997); THE LEGAL PROFESSION IN TANZANIA: THE LAW AND

                             PRACTICE, Bayreuth African Studies: 46, Bayreuth.

Hornby.A.S, (2000); OXFORD ADVANCED LEARNER’S DICTIONARY, 6th Ed,

                                  Oxford University Press, New York.

WEBSITES:

www.aeanlawassociation.org www.mifsudbonnici.com/lexnet.

[edit] legal aid in Tanzania

It is clearly desirable in the interest of justice that a person on trial on capital charge should have the benefit of legal aid in the preparation and conduct of his defence. And we are of opinion that in such a case the ‘certifying authority’…should give the matter anxious consideration before deciding to refuse a certificate for legal aid on the ground of sufficiency of means, that a reasonably liberal interpretation ought to be placed on the section, and that in case of doubt the discretion should be exercised in the prisoner’s favour.’’ The Court of Appeal for Eastern Africa in the Case of Mohamed s/o Salim V.R [1958] E.A 202 at page.203

OUTLINE

1.0 BACKGROUND OF LEGAL AID IN TANZANIA

        1.1 Pre- colonial period

        1.2 Colonia Period

        1.3 Post Colonial Period

2.0 MAINBODY

        2.1 Summary of Mohamed Salim’s Case.
        2.1 Legal Aid in Tanzania
        2.2 Conditions to grant Legal Representation

        2.2 Law Representation in Practice

        2.3 Criticism on Legal Representation

3.0 CONCLUSSION

4.0 BIBLIOGRAPHY

Background of Legal Aid in Tanzania: Pre-Colonial Society The Law and practice related to legal aid in Tanzania was not the case during pre-colonial Period. There was no well defined Legal System at that period .The society at large had no well defined legal system. Apart from few centralized states, most of the cases were solved by clan elders by a way of arbitration. There was an not only absence of legal profession and legal aid at that particular time but also lack of specialized institutions and personnel to administer law. Dispute settlement mechanism were basically centered on the aim of making reconciliation ,restoring both parties at to an amicable position, and seeking resolution acceptable by all parties. However the nature of the societies political and economical background did not allow the existence of professional lawyers who could take part on legal aid. Elders and wise men were consulted on the question of law in order to reach final and conclusive decision to end the dispute. Colonial Period Tanganyika as it then was administered by the two colonial masters. The first being the German then followed by the British. During the German period legal aid was not for Africans but for Europeans. Africans were left to be governed by their customary law which was administered by chiefs. The few lawyers who existed during that period were notaries and commissioners for oath who were only available to the few courts that existed during that time. The British period was precede by importation of British legal system which was imported into Tanganyika by virtue of Tanganyika order council of 1920.Common law system applied through judicature and application of laws act, common law principles, doctrine of equity and statutes of general application which were to applied into our jurisdiction. Most legal practitioners were from England and Indian. The Tanganyika order in council applied Indian legal practitioners’ rules to be applied through Indian acts [Application] ordinance. Law was administered in two parallel ways, this was due to the existence of two types of courts one being the native court which was for the Africans and the other being Magistrates’ Court and High court which was only for Europeans. Africans were discouraged from practicing law. In order for an individual to practice in bar s/he was required to have graduated as legal practitioner from Britain or British dominion, thus the absence of local legal training in Tanganyika meant that no Tanganyikan could ever hope to practice law unless he found some ways of meeting expensive costs of legal training overseas. The rationale for doing this was to avoid legal technicalities which could confuse members of the the native courts and thus interfere with due process of justice. Post independence period When Tanganyika attained her independence in 1961 the situation was not the same. The government embarked upon several measures designed to change the colonial legal system and produce its own legal personnel. The magistrate Courts’ Act was enacted to abolish the two court system and establish a single court system which could accommodate all races. Legal aid came into operation even to Africans. The establishment of the faculty of law at university of Dar-es-salaam few months before independence spear headed the spirit of legal practice in Tanzania. The indepent government realized the importance of having such course so as too provide knowledge of laws to oncoming elites. Following this development the advocate’s ordinance, was amended in 1963 to provide for establishment of legal education. The first 18 products of the university of were enrolled as advocates, some became Judges and others were allocated to public sectors.

LEGAL AID IN TANZANIA In Tanzania legal representation is both a statutory and constitutional right. This right is not expressly stated in the constitution. It has been that the right to legal counsel is incorporated in the constitution, under article 13(6) (a), and 15(2), as the right to fair hearing and right not to be deprived of personal liberty except by procedures established by law. In the case of Khassim Hamis Manywele V. R, Mwalusanya J, (as he then was) held that, section 3 of the legal aid (criminal Proceeding) Act, ought to be interpreted in the light of right to fair hearing and right to personal liberty’s provided under the constitution, he went on stating that right to legal representation extends to even those who cannot afford to hire an advocate, in which the service is to be paid for by the state. The rationale for legal aid under the Tanzania constitution is based on the right to fair trial, the rule of law and equality rights. When an accused is unable to employ counsel is incapable adequately of making his own defence because of ignorance, feeble mindedness, illiteracy or the like it is the duty of the court, whether requested or not, to assign Counsel for him as necessary requisite of the principleof natural Justice and now a constitutional right to be heard before conviction. As stated above, the right to legal representation in Tanzania is constitutionally provided. It is incorporated in the right to fair hearing provided by Article 13(6) (a) which provides

        ‘’For the purpose of ensuring equality before the law, the state shall make provision    that every person shall make provision that every person shall when its rights  and obligations are to be determined, be entitled to a fair hearing before the court of law.’’

The right to legal representation is also statutorily provided by section 310 of criminal procedure Act, which provides, ‘any accused person before any criminal court, other than a primary court may of right be defended by an advocate of the high court..’’ Moreover section 3 of legal aid (criminal proceedings) Act, provides; Where in any proceeding it appears to the certifying authority that it is desirable, in the interest of justice that an accused should have legal aid in the preparation and conduct of and conduct of his defences or appeal and that the means are sufficient to enable him to obtain such aid. The certifying authority may certify that an accused ought to have free legal aid. For proceeding in the high court the certifying authority is the chief justice or Judge of the high court conducting such proceedings and in case of proceedings before the Resident Magistrate Court the certifying authority is the Chief Justice.

The need to have legal representation to person on trial on a capital charge is of paramount importance. For the purpose of this case, capital charges includes cases of homicide i.e. murder and manslaughter, Treason, Armed Robbery and even rape.

In Tanzania, the right to counsel is provided for in section 310 of Criminal Procedure Act, It is unfortunate that for many years this provision has been interpreted to mean those who have the means to engage the services of an advocate are allowed to do so under the law. This was the point was discussed in the case of Alimasi Kalumbeta V.Republic, Samatta J {as he then was} observed that;…such right is jealously guarded by the law that if an accused person is deprived of it, though no fault of his own and through no fault of his advocate and he is at the end convicted that conviction shall not be allowed to stand on appeal. It is clear that the state should in all means provide all available means to the accused facing a capital charge by its own expenses when such violation is made any misinterpretation of that right should be exercised on the favor of the accused. In the case of Lekasi Mesawarieki V.Republic ,in this case the appellant was charged with and convicted by the high court of the offence of murder. He was sentenced accordingly. During trial the judge allowed the appellant to defendant himself without assistance of a lawyer and without explaining to the accused the danger he was facing in conducting his own defense in such a serious case of murder. The appellant appealed to the court of appeal of Tanzania against both conviction and sentence. Mfalila, J, (as he then was) Held that, appellant did not and could not get a fair trial without legal assistance.

An accused person can however be protected under this principle if he has himself acted reasonably. In the case of Yusufu Gitta V. Republic, in the case the accused who was out on bail, was notified of the hearing date about a month earlier. When the case came up for hearing, the accused produced a letter from his advocate who had requested for an adornment of the case for he had another session to attend at the high court. The magistrate refused for an adjournment and proceeded to hearing. On appeal it was argued that the Magistrate’s refusal to adjourn so as to allow the appellant to be legally represented constituted a miscarriage of Justice; the court of appeal continued; ‘‘… in the instant case it cannot be said that the appellant was deprived of the right to be represented by counsel through no fault of his own. It is apparent from Mr. Kiwanuka’s affidavit that when he wrote a letter dated 5th.1958, asking the magistrate for an adjournment, he had only been instructed by the appellant. The appellant had in fact, been at liberty for nearly a month prior to January 5th. , the date fixed for hearing of the case. It is plain that the substantial cause of not being represented by an advocate till the eve of the trial’’. A contributory cause was the failure of the appellant’s advocate to do his duty to his client.

Gitta’s case was again quoted with approval in the case of Joshua Nkonoki V.Republic, In this case accused was brought before the court whereby the charge was read and explained to him. The hearing date was fixed and he was released on bail on his own cognizance. The trial started and the appellant did not indicate to the court that he intended to have an advocate till after the first prosecution witness had given evidence. A state attorney, who had traveled all the way from Dar-es-salaam to to Dodoma prosecute the case, objected to the applicant’s application as the Republic had already incurred expenses in calling witnesses from distant places. The appellant’s application was refused and hearing proceeded. On appeal, the high court stated that: Appellant’s application for adornment in order to hire an advocate was unreasonable taking into account that the republic had already incurred a lot of expenses in calling witness from distant areas and the state attorney had traveled all the way from Dar-es-salaam to prosecute the case. Court always try to facilitate accused person in getting legal aid but in case where an accused does not show any interest in employing an advocate as it was in this case, it would be wrong to adjourn a case when the prosecution has already incurred a lot of expenses in bringing the witness to the court. As there was no reason why the appellant should not have employed an advocate earlier, the learned Magistrate was, in my view right in refusing the application for adjournment. However it is important to note that despite the existence of this law which removed restriction of free legal aid to the poor only facing capital offences, observation was to Tanzania practice shows that only those accused facing serious offence like murder, manslaughter and treason have been enjoying these services as a matter of right. In the case of Laurent Joseph V.Republic, in this case the appellant was not represented in the case of murder where upon on appeal, the court of appeal nullified the proceedings of the High court and ordered a Retrial because the accused was not legally represented.

The same rule applies when a legal representative of an accused person withdraws from the proceedings. The accused should be informed of his right to look for and engage a counsel otherwise; the whole proceeding can easily be quashed on appeal. This was again the position in the case of Mohamed shamte and two others V Republic, In this case the advocate for the accused applied for withdrawal from hearing the case, the application was granted but the accused was not informed of their right to to retain another counsel. Quashing the conviction Samatta J (as he then was) counseled that,

 Where as in the instant case, counsel for the accused is given a leave to withdrawal. The accused particularly if he is an ordinary man of little or no education must be informed of his right to instruct another counsel to defend him and of his right to apply for adjournments of the case to enable him to engage that other counsel. 

LEGAL REPRESENTATION IN PRACTICE In Tanzania legal representation is in practice, though partial it has been practiced to all people facing capital charges. They are supplied with legal services by state attorneys from attorney Generals Chamber but the supply do not meet the demand of legal services which are needed by the accuseds from all over Tanzania Mainland. Apart from lack of adequate resources, there is also the issue of availability of trained legal personal, much as the state may wish to provide all the poor accused persons with legal assistance, it is impossible to find lawyers for all of them. According to Rwelamira, in Tanzania by 1976 the Lawyers population ratio was 1- 240,000. In practice those accused person who are worth enough to hire advocate do hire them at their own expenses, if that is the case they have the right to choose advocates of their choice. For this reason the rich people are at better position to exercise their constitutional and statutory right to legal representation. Legal aid schemes operating in Tanzania are Legal Human Rights Centre, which operates two clinics in Dar-es-salaam and one clinic at Arusha. Apart fro that we have Tanganyika Law Society (TLS) this is comprised of all advocates in Mainland enrolled in bar. Other legal scheme includes TAMWA (Tanzania Women Women Association), Legal committee of the Faculty of Law, at University of Dar-es-salaam. Others are Tanzania Women Lawyers Association (TAWLA), and Women Legal Aid Centre (WLAC) which have 16 clinics around the country. However the right to choose the counsel of his choice is not plainly available to every accused person in Tanzania, this is due to the fact that section 3 of legal Aid (criminal proceeding) Act , restricts this right to only to the poor under the circumstances of which requires legal representation as it can only be determined by the Chief Justice or the High Court. Generally in practice legal aid is only available to the indigent accused of offences attracting capital sentence or long term imprisonment example in cases of murder, rape, armed robbery and treasons.

CRITICISMS ON THE RIGHT TO LEGAL REPRESENTATION: The practice of advocates is restricted in primary courts, in fact section 33(1) of the magistrate’s court, and restricts appearance of advocates in Primary Court. Another critic is that the right to legal representation is absolute given when the accused is charged with capital offences but this creates discrimination to non capital offences.This was the position in the case of DDP V. Arbogast Rugamukamu,

However the economic barriers to an accused person have made them fail to hire an advocate to represent them. The position was nevertheless cautioned in the case of Republic V. Lemba Kisiwa and another, in this case the advocate of the accused who were facing charges of armed robbery an offence punishable with imprisonment of between 30years and life, did not pay his fees. From this position of the case we are of the view that not everybody who needs legal representation if there’s no strong control and eligibility criterion in terms of income level and assets.

One of the major barriers to legal aid is that it is only limited to urban areas, this includes for big cities like Dar-es-salaam, Mwanza and Arusha and much worse the available state attorneys are very few compared to the number of accusseds’ facing capital charges who need their legal assistance. Moreover the available legal aid schemes established are only limited to civil matters like probate and administration of estates, matrimonial issues and as well claims for compensation. Assistance to criminal matters are rare. Most legal aid schemes fear to engage their services to criminal matters for fear of challenging the government in criminal cases. This means that most people charged with criminal offences have no access to justice, this in turn leaves a number of accused’ stand convicted without sufficient means to defend themselves. Furthermore the provision of section 310 of the Criminal procedure Act, has for years been interpreted to mean that those who have the means of engaging an advocate are allowed under the law. However this was seen as a right to all accused persons. Although a clear guidance on this was provided by the court of appeal in the case of Mohamed Salim V.Republic, it was disturbing to note that; Hon.Mwalusanya J, once depicted the problem as follows, with calculated conspiracy of silence, buried their heads, in the sand like ostriches pretending that they are unaware of this authority of Eastern Africa Court of appeal. However in 1990 a very interesting amendment was effected in this law. This was done vide written Laws (miscellaneous Amendments) ; the effect of this amendment was to take away the independence of legal counsel. This time, Section 22(b), empowered, the Chief Justice and the High Court was given power to admonish any advocate or to suspend him from practicing during any specified period or make an order of removing his name from the Roll . This change in the other perspective did not consider advocates as friend of the court but an outsider who could be displined not only by Chief justice but also by any Judge. . Advocates argued bitterly about the changes which would lead to anarchy in Courts as that would be a draconian Law. Advocates are operating with inward terror. Nevertheless this has not been the excuse for either part to assist accuseds facing capital charges.

CONCLUSSION: To conclude it goes without doubt that the right to legal representation for the accused person is well established principle. The principle does not only include accused who can afford the service of an advocate at their own expenses but as well the right extends even to those who cannot afford such a service at their own expences. In the latter category the state is required by law to pay for them for such legal assistance especially when such person are facing capital charges they should be given enough consideration for his defence.

                 BIBLIOGRAPHY

STATUTES The constitution of United Republic of Tanzania 1977, as amended from time to time. Tanzania Government of, The Magistrates Court Act, [Cap 11 R:E 2002], Government Printers, Dar-es-salaam.

Tanzania Government of, The Legal Aid (Criminal Proceedings) Act, [R:E Cap 211 2002],Government Printers, Dar-es-salaam. Tanzania Government of, The Advocates Act, [Cap 341 R: E 2002], Government Printers, Dar-es-salaam.

CASES Alimasi Kalumbeta V.Republic [1982] TLR.329

DDP V. Arbogast Rugamukamu [1982] TLR.139

Joshua Nkonoki V.Republic, (1978) LRT.No.24 Khassim Hamis Manywele V. R, Cr.App.No. 39 of 1990, High Court of Dodoma (Unreported) Laurent Joseph V.Republic, (1981) TLR.351 Lekasi Mesawarieki V.Republic, [1993] TLR.139 (CA) Mohamed Salim V.Republic, (1958) E.A.202 Mohamed shamte and two others V Republic, Crim.App.No.11 of 1985, High Court of Dodoma (unreported) Republic V. Lemba Kisiwa and another, Crim.Case.No.387 of 1983, Arusha District Court. Yusufu Gitta V. Republic, (1959) E.A.211

BOOKS Maina, C.P, Selected Cases and Materials, Koln: Koppe, 1990 Maina C.P, Kijobisimba.H, Justice and Rule of Law in Tanzania, LHRC, Dar Twaib, F.The Legal Profession in Tanzania; The Law and Practice, Bayreuth African Studies, Bayreuth.1997 Hielmeier J, Legal Profession in Tanzania: Improving access to Justice: LHRC, Dar-es-Salaam, 2004

REPORT Rwelamira, M.R.K, Report on Research on Legal Profession in Tanzania, a Paper Presented for the ILC Conference on ‘Legal Profession, 25th.-27th.Oct, 1976.

QUESTION : 7

OUTLINE

1.0 INTRODUCTION

1.1 THE CONCEPT OF LEGAL AID

1.2 LEGAL AID IN TANZANIA (LAW RELATING AND PRACTICE)

1.3 RATIONALE BEHIND LEGAL AID IN TANZANIA

2.0 MAIN BODY

2.1 MODELS OF LEGAL AID IN TANZANIA

2.2 HOW DOES LAW GUARANTEE LEGAL AID IN TANZANIA

2.3 THE SCOPE OF LEGAL AID IN TANZANIA

3.0 LIMITATIONS AND CHALLENGES OF LEGAL AID IN TANZANIA

4.0 RECOMMENDATION FOR BETTER PROVISION OF LEGAL AID IN TANZANIA

5.0 CONCLUSION

6.0 BIBLIOGRAPHY

THE CONCEPT OF LEGAL AID The legal aid presupposes services of lawyer free of charge. In Tanzania we have a number of legal aid schemes which are famous in providing legal assistance for Tanzania indigent. This includes Tanganyika Law Society, University of Dar es Salaam and State Legal Aid Schemes. Normally these legal aid schemes provides assistance to the indigent in free of charge system. The State legal schemes much concentrating in providing services in criminal cases by so doing it implement Article 14(3) of International Covenant on Civil and Political Right which require that every accused person should have the right to legal assistance at the expense of the State. The other offers legal aid in civil.

In Tanzania the right for legal aid freely has been recognized by S. 3 of the Legal Aid (Criminal Proceedings) Act (Cap. 21 R.E 2002). The service offered by legal aid schemes is quite standard and generally includes:- Counseling , interviewing clients, writing letters, drafting court documents, reconciliation of referrals to advocates, instructing clients on how to prosecute or defend their own cases in court and representing clients in courts. In practice the legal aid is available to the indigent accused of offences attracting capital sentences or long term imprisonment e.g. murder cases and treason.

For the purpose of this question we are going to have a look on rationale for legal aid, legal basis and its practice. Thereafter we are going to look on the criticism behind legal aid and finally we will put our work to an end.

RATIONALE FOR PROVIDING LEGAL AID IN TANZANIA According to Reyutjcus, the rationale for proving legal aid service for the poor is three fold. First, that effective legal service to the indigent are essential to the proper functioning and integrity of the machinery for justice. Secondly, that such services are demanded for Humanitarian and Charitable reasons and Thirdly, that all citizens must have equal access to information about legal system and to expect advice and services.

In the context of developing countries he adds that:- Assistance has additional advantages such as contributing to the creation of a Unified National Legal System, more effective implementation of existing Social Welfare and Regulatory Legislation intended to benefit the poor, to greater accountability of the bureaucracy , to greater Public participation in the government process, and to strengthening the Legal Professional1.

The responsibility of the State to provide legal aid has been justified on a number of bases including moral, political, social – justice and legal terms; Specifically , the legal justifications for legal aid system from the concepts of Equality, access to justice, the right to fair hearing and the Rule of Law. Equality before law means that the State cannot unreasonably or arbitrarily discriminate between persons or the basis of personal

 characteristics such as race, gender, religion or social background. This right has constitutionally being recognized. Therefore legal aid schemes has been created to recognize this right.

Access to justice means the effective access to the law requiring not only legal advice and representation in court , but also information and awareness of the law, law reform and a willingness to be able to identify the unmet needs of the poor2. Access to justice involves strewing for the attainment of substantive equality while recognizing the systematic discrimination of the poor3.

The other rationale is dealing on the right to a fair trial. It can hardly be expected that even a relatively accomplished individual can understand how to defend a criminal case against him/her without professional assistance. The right to a fair hearing is even more unattainable for those with little education or who are illiterate without the services of a lawyer who understands the law and the workings of the justice system. It has been widely recognized that prompt and regular access to a lawyer is an important safeguard against torture, ill-treatment, coerced confession and other violations4. Another normative justification for legal aid flows out of the States commitment to the Rule of Law. In 1948, the member states of the United Nations proclaimed the adoption of the Universal Declaration of Human Rights (UDHR), which recognized the Independence of human rights and the Rule of Law. The Rule of Law implies that a government in all its action bound by rules fixed and announced beforehand. These rules make it possible for individuals to foresee, with a fair degree of certainty , how the authorities will use its coercive powers in a given circumstances5.

Priority for legal aid has usually been given to criminal matters rather than civil matters. Legal representation in criminal matters is considered essential because it ensures that the liberty (or life) of a person is not jeopardized by the State due to the individual inability to pay for legal services6.In contrast civil matters are usually lower down on the list of priorities for State –funded assistance. However , legal schemes often cover civil matters such as , family, housing, social security and refugees matters. This recognizes the immense power of the State as an opposing force is not just limited to criminal matters but also influenced civil matters such as child welfare laws, pensions, social security rights and immigration7.

LAW RELATING AND PRACTICE ON LEGAL AID The right to legal representation is not expressly stated in the Constitution of the United Republic of Tanzania. It had been stated that the right to legal counsel is incorporated in the Constitution under Articles 13(6)a and 15(2), as the right to a fair hearing and the right not to be deprived for personal liberty except by a procedure established by law8. Furthermore the Tanzania Constitution prohibits discrimination on the basis of Nationality, ethnicity, place of origin, political opinion, color, religion, gender and life situation9.Thus the rationale for legal aid under the Tanzania Constitution is based on the right to fair hearing or trial, the rule of law and equality rights. Presumably, life situation would include social-economic factors such as poverty.

In further analysis, the other law which provides for the legal aid is the Criminal Procedure Act. The statute under S. 310 provides that “any person accused before any criminal court, other than Primary court, may as of right be defended by an Advocate of the High Court” 10. Likewise it was provided in The Legal Aid (Criminal Proceedings) Act under S. 3 of the Act require an Advocate to represent an accused person who has been charged with capital offences such as murder, manslaughter, armed robbery and treason. The costs are born by the government after certification by an authorized persons. Further , the Civil Procedure Code also recognized the right to legal representation. Order III Rule1 of the Code provides for the party to a civil suit to appear in court either personal, by recognized agent or by an Advocate.

INTERNATIONAL INSTRUMENTS ON LEGAL AID The International Covenant on Civil and Political Rights (ICCPR), 1966 to which Tanzania is a party, sets out specific obligations of States to provide State-Funded Counsel to indigent persons. Article 14(3) 11 sets out minimum guarantees to which everyone is entitled , in full equality in the determination of any charge. Furthering on this, Article 14(3)d12 states that “an accused person has the right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing, to be informed, if he does not have legal assistance, of his right , and to have legal assistance to him, in any case where the interest of justice so require, and without payment by him on any such case if he does not have sufficient means to pay for it”

The above International Instrument as well recognizes the right to legal aid to an individual who appear not self-able to get or buy such service in his own. To make it possible this International Instrument recognized that the government has shown efforts on implementation of this important rule of fair justice.

The right to legal aid in Tanzania and other jurisdictions is the right which has a Constitutional back-up. Tanzanian Government on showing concern on the enacted laws on different occasions.  In the case of ALMAS KALUMBETA Vs R13 , It was held that “legal representation is a universally recognized right provided by the law by citing S. 190 of The Criminal Procedure Code14. Further it has been the court position that in appropriate case, the effect of lack of legal representation is the nullification of the trial altogether. This was cemented by Justice Russel in MWANYIMBA Vs UGANDA15 , Where he stated that “the mere fact that the accused was denied legal representation or aid where he demanded was the enough ground to render the trial nullity”.

Moreover in LAURENT s/o JOSEPH AND ANOTHER Vs R16 , The case from Court of Appeal of Tanzania under Justice Makame, the decision of the High Court was ordered to be subject to retrial as the Justice held that “The Statutory provision of S. 3 of The Legal Aid (Criminal Proceedings) Act , created an undoubted right to free legal and to the poor and so in that particular case the right had been violated and so the trial was a nullity”. To support the government on the practice of the respective laws that stands for legal aid , there are number of Organizations and Institutions for such purpose. These includes The Tanganyika Law Society, Shirika la Uchumi la Umoja wa Wanawake wa Tanzania (SUWATA), Tanzania Women Association (TAMWA), The Legal Aid Committee of the Faculty of Law (UDSM), Tanzania Women Lawyers Association (TAWLA) and The Legal and Human Right Centre (LHRC).

Being a statutory right , there are certain instances here in Tanzania when certain courts decisions were quashed on appeal. In the case of LAURENT s/o JOSEPH AND ANOTHER Vs R17, the case was decided by the Tanzania Court of Appeal, which was to the review of the judgment by the High Court in which a Judge tried a person for murder who was no legally represented. Makame J.A, ordered for retrial. Though on the instances like supra, prove that there is a practice of legal aid for free, such practice has been hindered to a large and extensive manner which make the law not to be under full-fledged practice.

CRICISMS ON THE PRACTICE OF LAW RELATING TO LEGAL AID IN TANZANIA. S. 33(1) 18 prohibits the appearance of an Advocate in Primary Court which makes it hard for the provision of legal aid on cases filed in subordinate court.

Lack of people’s awareness on the existence of provision of free legal aid. Apart from lack of such statutory right which is as well as Constitutional, they are not aware of such  Organizations providing or executing the schemes. This include that of Tanganyika Law Society, University of Dar Es Salaam Legal Aid Schemes, to mention the few.  Legal Aid is much centered on Capital Offences leaving behind other minor offences. An indigent accused person has the right to free legal aid paid for by the State in all cases whether Capital on Non-Capital offences19. It was held in the case of DPP Vs ARBOGAST RUGAIKAMU20 , The court held that “ an accused person should not deprived of his right to legal representation unless very cogent and exceptional reasons exist which warrant the taking of such a drastic measure since accused person for representation”.

The other barrier to full practice of legal aid is Economy. Practice of hiring a lawyer involve in it huge expenses. The implication of this is that if an indigent accused person has no funds to advance to an Advocate then the practice of the right of legal aid would not be realized. This legal drama could be reflected in the case of R Vs LEMBA KISIWA & OTHERS21, In which the Advocate withdrew from the case while the case was on motion as the accused person were not financially capacitated.

Another critic based on the fact that legal aid is primarily limited to Criminal matters. There is very limited legal assistance for criminal matters. Most legal aid are limited their service to civil matters for fear or reluctance to be seen as challenging the government in criminal cases22.

Insufficient number of lawyer to facilitate the service of legal representation. Likewise most of the advocates are found in urban area and left the rural or remoteness area suffer the consequesences. The Tanganyika Law Society does not keep any record of the outcomes of the legal aid cases handled by its members. The files are rarely returned. This shows a lack of concern for practical results. With poor record no one will be able to know performance and commitment in aiding the poor through conducting legal aid cases.

THE WAY FORWARD:RECOMMENDATIONS FOR LEGAL AID IN TANZANIA. As the way of making sure that the law on the legal aid is at large exercised, the strategy to achieve this as in the name of Justice, should not only be by mean of driving a State –funded of Pubic System of legal aid, but the following if well planed will yield a better result and therefore full provision of the service:-

Improving the Existing Legal System. This is considered to be more practical way to increase access to justice than advocating for government funded legal aid. Many of the problems worth access to justice stem from problems with delay in the court system due in part, to under-funding but also due to inefficiency and corruption. Thus improved court administration, simplifying of procedures and tackling corruption in the court system are other ways to improve access to justice23. Further is to providing assistance for criminal matters. In Tanzania legal aid is provided by the government only for Capital Offences and not for other charges, that put one’s liberty at stake. The need for some sort of criminal legal aid intervention is evident. Prison across the country are congested with high remand population. This was stresses in MOHAMED s/o SALIM Vs R24 ,Where it was recognized that “such right should be recognized in the prisoner’s favor”.

CONCLUSION The right to legal aid (representation) has been guaranteed and thus ought to be protected in Tanzania and that provisions of S. 310 of the Criminal Procedure Act and S. 3 of The Legal Aid (Criminal Proceedings) Act, ought to be interpreted together and in the light of the right to a fair hearing and right to personal liberty as provided for under Article 13(6)a of the Constitution of United Republic of Tanzania and Article 15(2) to mean that the right to legal aid has been guaranteed both to those who can afford to hire an advocate and those who cannot afford to hire an advocate and in the case of the latter their service be paid for by the State. Moreover the lack of legal aid is enough to lead the way towards injustice and unfair trial.



BIBLIOGRAPHY

STATUTES

• THE CONSTITUTION OF UNITED REPUBLIC OF TANZANIA, 1977 (As Amended from time to time) • THE CRIMINAL PROCEDURE ACT, (CAP. R.E 2002) • THE LEGAL AID (CRIMINAL PROCEEDINGS) ACT, 1966 (CAP. 21 R.E 2002) • THE INTERNATIONAL COVENTANT ON CIVIL AND POLITICAL RIGHTS (ICCPR), 1966 • THE CIVIL PROCEDURE CODE, 1966 (CAP. R.E 2002)

BOOKS • FREDERICK H, PERSPECTIVES ON LEGAL AID;AN INTERNATIONAL SURVEY, WESTPORT, CONNICTIENT;GREENWOOD PRESS, 1977 • HIERLMEIER J, LEGAL AID PROVISION IN TANZANIA; IMPROVING ACCESS TO JUSTICE , LEGAL AND HUMAN RIGHT CENTRE, 2004 • PETER C.M, HUMAN RIGHT IN TANZANIA ;SELECTED CASES AND MATERIALS, RUDIGER KOPPE VERLAG KOLRI, 1997

REPORTS • DYZEHLAUS, DAVID,”NORMATIVE JUSTIFICATION FOR THE PROVISION OF LEGAL AID” A BLUEPRINT FOR PUBLICLY FUNDED LEGAL SERVICES, VOL.2, THE REPORT FOR THE QUTARIO LEGAL AID REVIEW, 1997 • SKINNIDER, EILEEN,”THE RESPONSIBILITY OF YTHE STATE TO PROVIDE LEGAL AID” 1999 • UN, HUMAN RIGHT COMMITTEE GENERAL COMMENT, “REPORT ON UN SPECIAL KAPPOTENT ON TORTURE” 1992 DEC 17.

[edit] professional misconduct among the advocates in Tanzania

“we agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage anybody of professional men sitting in judgement on a colleagues who would be content to condemn on a mere balance of probabilities.” The Court of Appeal of Eastern Africa in The case of Advocates v. Advocates Committee [1955] 22 EACA 260 at 262. In light of the above observation, what do you consider to be the safeguards behind unfair determination of matters involving advocates’ allegations of profession misconducts

OUTLINE

1.0: INTRODUCTION

1.1: CONCEPT OF AN ADVOCATE

1.2: MEANING OF PROFESSION

1.3: MEANING OF PROFESSIONAL MISCONDUCT

   1.3.1: WHAT CONSTITUTE PROFESSIONAL MISCONDUCT

1.4: MEANING OF THE STANDARD OF PROOF

2.0: MAIN BODY 2.1 THE SUMMARY OF THE CASE

-Safeguards behind unfair determination of matters involving advocates’ allegation of
 Professional misconduct.

(A) Before determination

-Strictly observation of rules of evidence - To be bound of doctrine of precedent - Matters should be proved beyond reasonable doubt - Committee should abide rules of procedure - Adherence of principles of natural justice - Presence of investigation machinery

(B) After determination -Appeal

(C) Remedies to an advocate -An application for validation of order -Application for the reduction of penalty -Application for order setting it aside -Application for re-admission

3.0: RECOMMENDATIONS

4.0: CONCLUSION

4.0: BIBLIOGRAPHY

1.0: Introduction According to the demand of the question, the work will contain the meaning of an advocate, meaning of profession, meaning of professional misconduct, what constitutes professional misconduct, meaning of standard of proof. In the main body, the work will contain the safeguards behind unfair determination of matters involving advocates’ allegations of professional misconduct both before and after unfair determination; Remedies to an advocate and recommendations. Then conclusion followed by the bibliography.

1.1: Meaning of an advocate An advocate is any person whose name is duly entered upon the roll. Also an advocate is the one who pleads the cause of another in a judicial tribunal; barristers or solicitors. Formerly, a member of the College of Advocates, with the exclusive right of practicing in Ecclesiastical Admiralty Courts.

Oxford Advanced Learner’s Dictionary, define an advocate to mean a person who supports or speaks in favour of somebody or a public plan or action; he is also a person who defends somebody in a court of law, he is a lawyer.

1.2: Meaning of Profession Harold Perkin has defined a profession as an especially desirable and dignified occupation. It implies intellectual training and expertise which is largely mental in character.

Also the 1980 Report of the British Royal Commission on Legal Service described “profession” as follows: “When a profession is fully developed it may be described as a body of men and women (a) identifiable by reference with some register or record; (b) recognized as having a special skills and learning in some field of activity in which the public needs protection against incompetence ,the standard of skill and learning being prescribed by profession itself; (c) holding themselves out as being willing to serve the public; (d) voluntarily submitting themselves to standards of ethical conduct beyond those required of the ordinary citizen by law; (e) undertaking to accept personal responsibility to those whom they serve for their actions to their professional for maintaining public competence.”

1.3: Meaning of Professional misconduct Instances where there is a failure to maintain the standards of practice in any profession and advocate particular. The standards are reasonable of a profession by the code of conduct and ethical.

        “  Profession misconduct occurs when the standard are breached example misleading the  
          court, deceit, moral turpitude etc.” 

1.4.Meaning of the standard of proof

The law of evidence shows how the cases should have to be proved in section 3(2) a . of the law of evidence stipulate that in criminal cases the standard of proof must be beyond reasonable doubt that prosecutor have to proof his allegation on the degree that he will leave no doubt at all.The same subsection 3(2) (b) provides on the other how the matter should be proved in Civil proceeding that the plaintiff have to prove on the balance of preponderance. What does this meant it is rationale that in criminal matters the case is required to be proved in the higher degree that it will leave no doubt but on the other the civil cases matter have to be proved not in the degree correspondent to criminal matter but lesser as compared to it. In Miller v Minister of Pension , Lord Denning J (as he then was) stated clearly difference of degree of proof between criminal and civil proceeding, “The evidence on criminal charge must reach proof beyond a reasonable doubt while in civil the degree is on probability that means not as high as required in criminal cases ”.

On the issue in hand the professional misconduct of an Advocate to be proved it needs the case to be proved beyond reasonable that means contrary to the general rule in civil which requires to be on balance of probability this is exception to the general rule in civil case. The matter should be proved in that standard as an Advocate whole depend on his profession and if the case could not proved in that degree it will lead to removal of advocate in the rolls hence denied of his right to work unjustly.

1.3.1: What constitutes professional misconduct It is anything that is prejudicial to the judicial function. It is that negatively affects the effective and expeditious administration of justice and the business of the court. It is appearance of impropriety that creates in reasonable minds, a perception that the judicial officer ability to carry out judicial of responsibility and competence impaired In the case of Y.A.S. Mchora v Advocate Committee. The case mention matters involved in profession misconduct include delays, inefficiency, incompetence, luck of interest, discourtesy, insensitivity, luck of formation communication.

2.0: MAIN BODY

  2.1 THE SUMMARY OF THE CASE 

An Advocate v. Advocate committee. IN THE MATTER OF ADVOCATE ORDINANCE 1949. This is an appeal by an advocate practice in Kenya from a judgement of a supreme court of that colony. The supreme court after considering the evidence taken by the committee and the report and having heard counsel for the committee and for the advocate arrived at a finding that the advocate had committed profession misconduct in that he had intended deliberately to mislead a judge of the supreme court. The advocate was ordered to be admonished. An advocate appealed to the court of appeal of Eastern Africa were appeal was dismissed .

The following are the safeguards behind unfair determination in matters involving advocates ‘professional misconduct: Adherence of principles of natural justice-In order to reach a fair determination in any case whether involving an advocate or any person, rules of natural justice must be adhered. Rules of natural justice involve three principles namely: rule against bias (Nemo nudex in causa sua) which prohibits a man not to be a judge on his own cause; Right to be heard (Audi alteram patem) which means do not condemn a person unheard. It requires that a person should be served notice to show cause against proposed action and seek his explanation and be represented; right to know the reason for the decision( ). These rules of natural justice are statutory provided, for example Rules 3 to 7 and sections 13-14 .

However, Advocates committee as an administrative tribunal is neither bound by the common law rules of evidence nor by judicial procedures. They are masters of their own procedure and are not restricted in their admission of evidence by the best evidence as it was stated in the case of C.U.S. Mwailunga v. Advocates’ Committee. 

Strictly observation of rules of evidence, Advocate committee when dealing with the matter concern advocate it sits in the capacity of the court in the circumstance when it decides the matter that are in correspondence to Part eleven of Penal Code , But contrary to the above it sits as a tribunal hence it is not bound by the strictly rules of Evidence hence the matter become discretional hence person whims and interest may interfere the decision. Observation of rules of Evidence would protect the unfair determination concerning the Advocate professional misconduct. To be bound by doctrine of precedent A tribunal is not bound by the decision of the past decided cases, so it has no opportunity of correcting its own decision which was per incurium or otherwise. For the sake of justice on their party it is necessary that it would follow precedent. When the precedent would become inevitable it would smooth the determination of the matter in the fairly manner Proof of the allegation should be proved in the standard required that should not left gap or doubt to be worked out. Courts of law severally has reinforces the standard of proof to be that of high standard and not on mere probability so the rational decision could be reached, In the case of Charles U.S. Mwailunga v. Advocates Committee Mfalila .J (as he then was) stated clearly that; “In proceeding against an advocate for professional misconduct involving an element of deceit or moral turpitude the standard of proof required approximates the standard required by a criminal court i.e. proof beyond reasonable doubt” .

In the Akena Adoko v Advocates committee Mfalila J (as he then was) stated inter alia; “Allegation of misconduct against an advocate have to be proved beyond reasonable. ”

Adherence of principles of natural justice-In order to reach a fair determination in any case whether involving an advocate or any person, rules of natural justice must be adhered. Rules of natural justice involve three principles namely: rule against bias (Nemo nudex in causa sua) which prohibits a man not to be a judge on his own cause; Right to be heard (Audi alteram patem) which means do not condemn a person unheard. It requires that a person should be served notice to show cause against proposed action and seek his explanation and be represented; right to know the reason for the decision( ). These rules of natural justice are statutory provided, for example Rules 3 to 7 and sections 13-14 . However, Advocates committee as an administrative tribunal is neither bound by the common law rules of evidence nor by judicial procedures. They are masters of their own procedure and are not restricted in their admission of evidence by the best evidence as it was stated in the case of C.U.S. Mwailunga v. Advocates’ Committee.

Presence of investigation machinery, the committee does not have an independent machinery of investigation that it depends only to the allegation as petitioned on them by an aggrieved party. This is provided in Advocate Act under section 13(2) Where an application or allegation of misconduct is made under paragraph (b) or paragraph (c) of subsection (1), the Committee shall have power to require the advocate in respect of whom such application is made, or in respect of whom such allegation is made, to show cause why his name should not be removed from the Roll of advocates or to answer the allegation made, as the case may be: Provided that where, in the opinion of the Committee, an application under paragraph (b) of subsection (1) or an allegation under paragraph (c) of that subsection does not disclose a prima facie case, the Committee may refuse such application or may dismiss the allegation without requiring the advocate to whom the application or allegation relates to show cause why his name should not be removed from the Roll or to answer the allegation, as the case may be.

There are instances where an advocate after the committee had decided the matter the only safeguard which he has to set aside the unfair conviction, he needs to appeal to the court so that the decision would be set aside and justice should be done.

Appeal. Is the basic right to any part to the case after the case has been decided and this is done in the court below the court of appeal. The right to appeal is provided under article 13(3) a of the Constitution of United Republic of Tanzania. Also the Advocate Act provides for this right to any advocate who sought there was injustice section 24A states the right to appeal and direct where appeals could lying and the composition of the appeal body. In case the matter had reached to the committee and decision has passed the advocate has an opportunity to appeal to the high court for revision or any other as he thinks fit so to do. In the case of C.U.S. Mwailunga v. Advocates’ Committee (supra) it was the appeal case after the advocate have been aggrieved with the decision of the Advocate committee. He appealed to the high court, so the decision of the committee to be set aside where he succeeded after the appeal have been found with merit and in this case appeal was allowed

Advocate Act gave the power to the High court Judge and Chief Justice to punish the Advocate for any misconduct that has been deemed fit and the advocate if aggrieved by the decision he may appeal as provided under section. 22(c) 1&2 that an advocate has the right to appeal to the Advocate committee in case the decision has been imposed by the High court Judge and to the Court of Appeal in case the decision has been imposed by the Chief justice

C) Remedies to an advocate An application for invalidation of order. An Advocate has the remedies of application to the body concern to invalidate the decision as if the decision of being removed from the roll he may request or apply for the procurement the remove his name from the roll. Section 13(1) a provides for this remedies

Application for the reduction of penalty. Advocate has the right of apply for reduction of the penalty imposed by the body with authority. This may happened when the advocate punishment is so harsh to him in consideration with other that would affect his/her life as professional legal is specialist in law when barred from practicing you curtail his livelihood as is dependant on the profession for earn and leaving.

Application for order setting it aside. The advocate has the right or remedies of applying for the order made by either Advocate committee or the High court judge and chief justice for the order to be set aside and restored to the practicing. The position of the law is provided under section 31(a) I & ii that stipulate that in case of an application to set side the order of suspension or to reduce the period of suspension- set aside the order of suspension or reduce the period of suspension for a specified date or decline to make any order

Application for re-admission. It is another remedy available to the Advocate to apply for re-admission to continue practicing as an advocate especially after the name has been stricken off from the roll of Advocate in the roll. This position of the law is under section 31(b) and .in the case of an application to set aside an order removing a name from the Roll or for re-admission– (i) set aside the original order; or (ii) direct the Registrar to re-admit the petitioner either forthwith or at some future date; or (ii) decline to make any order; and

3.0: RECOMMENDATIONS The professional misconduct of an advocate is a stance to be considered in its own dimension that for a fair decision the claims should proved beyond the reasonable doubt that the advocate himself would feel guilty as the case against him as has been proved to the extent that no doubt which has been left and the decision reached is fair and just. When the decision lacks this the notion of unfair decision arises.

There should be an independent court to deal with matter involving Advocate misconduct that it could raise no doubt on the credibility of the evidence that should be adduced before the final decision has passed.

The party who send the allegation to the Advocate committee should be made party to the case and not just as a witness as it is now. For the sake of justice the party who alleges that an Advocate has misconduct should be the adverse party who will be required to execute the burden of proof then the committee should stand on the umpire position so that it would be its duty to weight the evidence to meet the standard of proof required. The structure of Advocate committee should be adjusted that it should not look like the court instead it should be the body vested with power as that of tribunal that its decision should not be considered to be the same as that of the High court but subject to confirmation by the High court.

CONCLUSION

Bibliography Statutes Tanzania Government of, The Advocates Act [Cap 341 R.E.2002], Government Printers, Dar-es-salaam

CASES Advocates v. Advocates Committee [1955] 22 EACA 260 at 262.

Akena Adoko v. Advocates committee [1982] TLR 290

C.U.S. Mwailunga v. Advocates’ Committee [1982] TLR 282

Y.A.S. Mchora v Advocate Committee  Misc. Civil, appeal No. 13of 1985 HCT Dar es Salaam. (Un reported)

Books Bisimba, H.K and C.P. Maina; (1995) Justice and Rule of Law in Tanzania: Selected Judgement and Writing of Justice James L. Mwalusanya Commentaries, Legal and Human Rights Promotion in Tanzania, Dar-es-salaam.

Bone, S. (Ed); (2001) Osborn’s Law Dictionary (9th Edition), Sweet and Maxwell, London.

Thakker, C.K and Mrs. M.C. Thhakker; (1980) Lectures on Administrative Law, Eastern Book Company, Lucknow.

Twaib, F; (1997) Legal Profession in Tanzania: Law and Practice, Bayreuth Africa Studies Breitinger, Bayreuth.

OTHER SOURCES .

 www cno. Org/college of  nurse Ontario,surched on 27th November.2007

[edit] legal profession has constituted itself as a safe heaven from rigours of market forces in tanzania

“In most of market economies one has to run as fast as possible to stay in place. In Tanzania the position is different particular in legal profession since the profession has constituted itself as a safe heaven from rigours of market forces, it is insulted from competition. There are some obvious negative results of the shortage of lawyers in the country. The entire system of administration of justice is affected.” Anonymous How far this argument is true or untrue.

OUTLINE

• INTRODUCTION

     Definition of key terms

• MAINBODY

o How Tanzania is insulated from market competition

o Some reasons as to the shortage of legal practitioners in Tanzania

         2.3 Negative effects of shortage of legal practitioners in Tanzania                  
                and how administration of justice is affected

• CONCLUSION

4.0 RECOMMENDATIONS

5.0 BIBLIOGRAPHY

INTRODUCTION

In every assigned academic task, it is proper and convenient to define terms, which carry logic and basics of the question.

Market economy in which resource allocations price and other marketing decisions primarily determined by the free market. An economy in which most goods and services are produced by private sector rather than the public sector and in which prices according to the forces of supply and demand. The economy that is free from direct government controls. Although the market economy is clearly the system of choice in today’s global market price there is significant debate regarding the amount of government intervention considered optimal for efficient economic operation.

Various authors have defined legal profession, before we look what legal profession means let first know the meaning of profession, according to Collins plain English dictionary it means a job, which requires advanced education and training and which has a fairly high status.

Then, legal profession according to web definition refers to the body of individuals qualified to practice law in a particular jurisdiction . Generally legal profession is an occupation or vocation of those people who have attained advanced specialized education and training in the field of law and are qualified and licensed to practice law, for example advocate.

Market economy as a free controlled economy by the government consist major criteria of competition qualified with improved goods and services to consumer, which is freely controlled by the government for private sector to remain in the market place. Advertising, touting, sharing offices, joint ventures being few to mention are tools towards success in market economy. In world of globalization different field and profession have expanded to better success in market economy. However “in market economies as in Alice’s Wonderland, you have to run as first as possible just to stay in place” Richard Abel wrote of the Legal profession this statement is different in Tanzania, particular in legal profession since the profession has constituted itself as a safe heaven from rigours of market forces, it is insulted from competition, the legal profession in Tanzania is exonerating from standards of market economy.

2.0 MAINBODY

     2.1How Tanzania is insulated from market competition

Legal profession in Tanzania is governed by different most legislation principle and subsidiary legislations. The profession is totally regulated by legislation such as Advocate Act , Tanganyika Law society Act and subsidiary legislations there under. The effect then no criteria of market economy prevails in the profession of the learned. Now the question is how and to what extent that legal profession in Tanzania is insulated from competition in market economy? The reasons given hereunder establish the safe heaven by legal profession in Tanzania.

The rule against touting. In market economy marketing and promotion is the engine towards development and success of one’s business. However in market economy where a customer may be deceived due to the advertisement, a customer is warned to be aware (caveat emptor). This is different in legal profession. It is prohibited and is established as an offence to tout in legal profession. Under Section 47 of Advocate Act touting is an offence subject to fine thereof. If people will be deceived in legal profession due to the touting like in any other faculties economy in market, the trust shall collapse to both laws and legal profession in which no substitute shall be thereto. This may affect adversely the system at justice administration. Hopeful, legal profession has been insulted from competition in market economy to maintain glorification and trust to the profession.

It is in the rule against touting that an advocate may not do, or cause to be done on his behalf, anything for purpose of touting or worth a primary motive of personal advertisement for example Advertisement success rate .

The jurisdiction of the United Kingdom where the Solicitors Publicity Code, 2001 provides that advertising should be legal, decent honest and truthful. Solicitor is to adhere to forms of personal publicity lead down under the Code. The position is adopted in Hong Kong under the solicitors practice promotion Code for Hong Kong solicitors guide to professional conduct in chapter 25(6) which provide that practice promotion shall be decent, legal honest and truthful in regard to the terms laid there under. To the above stated countries of commonwealth touting is recognized in ascertain form under codes, in Tanzania it is an offence under the Advocate Act to make a personal publicity. This has insulted the legal profession in Tanzania from competition in market economy.

Remuneration of advocates. In market economy remuneration is done through free contracted agreement between the parties with regard to supply and demand as determinants of market forces. This is different from legal profession where remuneration is strictly governed by legislation. In legal profession remuneration of advocates is governed by Order made by Remuneration Committee. According to Section 49(2) of the Advocates Act the chief Justice or the remuneration Committee may make order prescribing and regulating the remuneration of advocates in regard to both contentious and non-contentious business.

Furthermore Rule 13 and Rule 14 of the Advocates Remuneration and Taxation of Costs Rules prohibit an advocate to charge his client the amount, which is minimum to established remuneration rules. This is done purposely to maintain uniformity of services and charges in legal profession and to avoid competition by increase or decrease of price by legal professionals.

Respect of duties than personal interests. Advocate has duties to the court where a conflict between his duty to court and personal interest arise the duty should prevail. Where an advocate was duty bound to represent his client but failed due to personal interest (too busy by being a member of parliament) the Advocate Committee ruled against Dr Masumbuko Lamwai for professional negligence . Dr Masumbuko Lamwai had to respect his duty to the client than his personal interest.

The seller-buyer contract in market economy is dominated within free consent to both parties each party determines the portion of his personal interest before obligation to contract. The vise versa as on legal profession where advocate-client relationship in mostly dominated with fiduciary relation the client being the weaker party due to the adverse problem on his life. The performance of duties than personal interest has waved out the legal profession from competition market economy where personal interest prevail than profession duties

The prohibition and sharing profit with non-legal personal. Rules 6(f) and Rule 8(a) of the Rules of profession Conduct and Etiquette of the Tanganyika Law society prohibit an advocate to share his profit with a person who is non-legal professional and further prohibits an advocate to share accommodation with someone who is not an advocate since this would almost inevitably lead to unfair business attraction. Advocate firms and ventures are alleged to carry a uniform business of legal profession. Inter-profession marriage of capital form a firm which is multi-business form as prohibited since invariably way lead to the unfair attraction of business.

In market economy a single firm can perform voided professional activities merging capital and share profit even accommodation. This encourages competition amongst firms on market economy. Strongly legal profession is prohibited to perform all this through legislation hence insulated from competition.

Advertisement. Overcoming competition in market economy one has to truck in advertisement in order to publicize his goods and services famously be recognized by community surrounding him. This has been the great weapon to producer and seller to attract buyer and consumer. In legal profession, however the truth is the contrary that advertisement is prohibited as good as touting.

Since advertisement normally lead to one producer or seller to loose customer or buyer in market economy, in legal profession it is truly that advertisement may lead one advocate to loose his client and that other to gain through. The Advocate Act establishes as an offence to induce someone or client to vacate has advocate under Section 48. This factor exonerates the legal profession from the competition of the market economy.

As presumably any other country, new advocate in Tanzania need to make him or herself known. Advertising is the most effective way of doing this. Indeed, with such a large unsatisfied market, one wonders as to why this restrictive altitude still persists. Perhaps it is because of the ease with which its established members control the market that the law society does not seem enthusiastic about the right to advertise. But is doing this the society as denying its young members a chance to let themselves known to the public and to make smooth take of in their early practice. In German, for instance, new attorneys are allowed to notify the public that they are commencing practice and give their addresses, telephone number, and such other important information.

Contingency fee. Market economy is fully expressing the intention of buying interest at the end of the activity in which each party has to cherish his obligation to the contract. In legal profession where the advocate-client relationship is governed by fiduciary relationship buying of interest by advocate to his client is prohibited in any action, suit or other contentious proceeding.

Contingency fee being an amount of money that is paid to lawyer only for the reason he is advising him in court, wining the case in interest should not change the amount stated at the beginning. It shall be invalid under Section 59 to buy interest or calculate the contingency fee having worn the case first. This is to maintain trust by advocate.

   2.2 SOME REASONS AS TO WHY SHORTAGE OF LEGAL          PRACTITIONERS IN TANZANIA

We truly admit that there is shortage of legal practitioner in Tanzania with regard to serving the population at large. Why there exists a shortage of legal profession in Tanzania is necessary step we feel to attempt before turn our mind to the effect of expediting shortage of legal practitioner to the administration of justice in Tanzania. There are some factors, which lead to the shortage of legal practitioner in Tanzania, which are as follows:

Hardened legislation and procedures for being a legal practitioner. Relevant legislations to the profession. The Advocate Act and The Tanganyika Law Society Act and the subsidiary legislation there under set out long and complex procedures for one to become a legal practitioners. To qualify as an advocate or member of the legal profession in Tanzania, it is necessary to have a law degree no criminal records and to pull on examination by the Bar, then be certified by the chief justice It is possible for judges and prosecutes to become advocate than fresher with no experience. The difficult of attaining membership on legal profession has lead to shortage of legal profession in Tanzania. As a result the whole system of justice has been affected since even court lack qualified magistrate of district court.

Expensiveness of accessibility of legal material being a problem. Law books, statutes and other relevant equipment to establish an office are the mandatory requirement to legal professionals is bared with the expensive costs and accessibility thereof. Many Tanzania are poor to financial themselves in law studies and to the upper point chamber of law can be difficult to archive since a legal professionals are prohibited in sharing capital or accommodation with non legal professionals law books in Tanzania are sold at a\high price. Statutes are scarcity obtain in the government shop particular in Dar-es-salaam and sold at high price. This has contributed to the shortage of legal profession in Tanzania. As our former president Benjamin Mkapa said when addressing the Tanganyika Law society at SHERATON HOTEL during dinner on 10th January.1997 that: “In a country such as ours, where access to legal services is severely handicapped by an acute shortage of lawyers and limited financial resources for the vast majority in Tanzania”

2.3 NEGATIVE EFFECTS DUE TO SHORTAGE OF LAWYERS Admittedly, the rather unsatisfactory state of legal aid in Tanzania, like most of Africa, cannot be solely attributed to a defective sense of justice. Shortage of lawyers, rather than lack of social conscience, seems to be the common malady afflicting legal aid services in the country. If legal aid is to be granted as of right to every indigent accused or litigant, the system will soon find itself face to face with not only the scarcity of legal services, but an overwhelming demand for its services .

Injustice occasioned by lack of legal representation. Legal representation is a fundamental to any person in court proceedings, and it is directly related to other two rights which are the right to be heard and the right to personal freedom and liberty. In Tanzania, the right to legal counsel is provided for in Article 13(6)(a) of the Constitution in criminal proceedings the right to legal representation to any accused person in any court except primary court is provided for under section 310 of the Criminal Procedure Act and section 2 and section 3 of the Legal Aid (Criminal Proceedings) Act. In Alimas Kalumbeta v. R it was stated that:

“Legal representation for an accused is a right which is almost universally recognized. In some jurisdictions the right is a constitutional right. In Tanzania the right is provided for in section 190 of the Criminal Procedure Code”

Invariably state, legal aid is given only to accused persons charged in the High Court with capital offences. On the other hand no consideration is given to majority of the accused persons facing other categories of criminal charges in District Courts and Resident Magistrates Court.

Disproportionate geographical distribution of lawyers in Tanzania The distribution of legal practitioners in Tanzania is not certain regionally. That the geographical spread of private advocates shows a concentration of them in few regional centres, particularly Dar-es-Salaam, Arusha, Mwanza, Tanga and the related regions with High Court District Registries. Thus, there is dire neglect of the rural areas where the majority of people live and where most of the courts are situated.

Monopolization of the provision of legal services. The problem arising as a result of monopoly and restricted size of the profession is that almost every person who qualifies as an advocate can survive, however, bad he may be. He is working in an environment in which the high demand for his service enables him to endure rigours of the market, notwithstanding his want of knowledge and competence. A lawyer has to be very bad indeed to be singled out the bad ones. The smallness of supply relative to demand least in the Tanzanian context has had an adverse effect on the standard of professional services, resulting in: delays, hurried performance, lack of care etcetera hence injustice.

High cost of legal service, since there are legal practitioners in Tanzania the notion of monopolization over the market under legal services, are indispensable to the client, the advocate tend to represent more than two client when the dispute is before him. In this situation under normal circumstances they face high cost to hire the advocate to represent him before the court of law since hiring an advocate become essential a matter of who will get him first to represent his or her own case, the tendency of hiring advocate from far away for example from Dar-es-salaam to Mbeya even the fee will be higher since most advocate charge higher contingency fee for out-of-station work at that extent it may be said the field may desire higher cost to get legal service. Sometimes having too few lawyers means a heavier work load for the few who are available. They engage in a greater continuity of work for which the often make fail litter preparation.

Delay in the finalization of cases, under normal circumstances advocate have to ends up trading one client for another which in one way another may simplify the duty to the court since the judge has to apportion his time between cases because he is basically a master of his diary. Despite the aforementioned situation position is different since most of advocate in Tanzania are given to the extent that may lead to the little control over the time schedule, the magistrate at a predetermine station such as in chambers, courtrooms and even different court and tribunal

Further more advocate are thus more likely to miss a court session, it is common to see advocate on busy morning in frenzy, trying to attend each and every one of their case schedule, most of the time are unsuccessful. Under this situation is where an advocate is termed.

“Trying being every where as a sometime but ending up being nowhere”   

Wherefore the above of situation may revile one of the main causes of delay in finalization of cases as a result tend to lower standard of legal services.

3.0 CONCLUSION Despite the fact that in Tanzania we are facing the problem of shortage of legal practitioner, but still these few lawyers and advocates try for their level best in the administration justice through the establishment of several legal assistant such as different NGO’S which provide legal assistant example NOLA (NATIONAL ORGANASATION FOR LEGAL ASSISTANT) which spread in almost over the Tanzania region. Also PRO BONO has also established in various place so as to assist ht e administration of justices. This actual is established for the poor people.

4.0 RECOMMENDATION For the government to reduce the problem of shortage of legal practitioners and lawyers at large, we recommend that the government should improve the following in advance

(a) That the faculty of law of the public and private universities to be improve in terms of resources in order to enable the faculty to trained undergraduate at required at academic standard;

(b) That more formally systematize and invigorate the school of law to strengthen the practical training of newly qualified lawyers and in hence the awareness of the various aspects associated with the practice of the profession, including professional ethic and etiquette;

(c) That the government should take note of the formation of law association in Tanzania and assist in every way possible to formulate a clear policy and related implementations strategy and action program designed to promote the attainment of the objective for the new form of organization in Tanzania;

(d) That the paralegal personal be allowed to represent parties in primary court, preceded by any competent magistrate provided that such paralegal acts as agent of an advocate and not purporting to be advocate .

5.0 BIBLIOGRAPHY

STATUTES

The Constitution of the United Republic of Tanzania, 1977 (as amended time to time)

PRINCIPAL LEGISLATION

The Tanzania Government of, The Advocate Act [Cap 341 R.E 2002], Government Printers, Dar es Salaam.

The Tanzania Government of, The Criminal Procedure Act [CAP 20 RE 2002], Government Printers, Dar es Salaam.
 The Tanzania Government of, The Legal Aid (Criminal Proceedings) Act [CAP 21 RE 2002],       Government Printers, Dar es Salaam.
 The Tanzania Government of, The Tanganyika Law society Act[CAP 307 RE 2002], Government Printers, Dar es Salaam.

SUBSIDIARY LEGISLATION The Advocates Remuneration and Taxation of Costs Rules G.N.No.515 of Dec 6TH 1991

The Rules of professional conduct and etiquette of the Tanganyika Law Society

CASES Alimas Kalumbeta v. R[1982] TLR 329

Re Advocate ordinance Cap 341& Re Application by Bernad R. Mrema & in the Application to remove from the roll Dr. Masumbuko Lamwai, Advocate Application no. 19 of 2000

TEXT BOOKS

Garner, B.A, (2004) ,Black’s Law Dictionary, 8th Ed., Thomson West, Minnesota.

Sethi, R.P, (2OO4), Supreme Court on Words & Phrases, Ashoka Law House, Delhi.

Twaib, F. (1997), Legal Profession in Tanzania: The Law and Practice, Bayreuth African Studies, Bayreuth

OTHER SOURCES www.globaledge.msn.edu/resources.desh/glosory-asp (27th.Nov.2007) www.investopedia.com (27th.Nov.2007) www.princetown.ed (29th Nov. 2007) www.uk-hh/law/uploads/emages/puja/topic-6 (23rd.Nov.2007) www.arizona.ed (23rd.Nov.2007) www.irct-tz.org (23rd. Nov.2007) www.colins.com

Question 10 “…In most of market economies one of has to run as far as possible to stay in place. In Tanzania the position is different particularly in the legal profession since the profession has constituted itself as a safe heaven from the rigours of market forces, it is insulated from competition. There are some obvious negative results of the shortage of practitioners that flow directly from the shortage of lawyers in the country. The entire system of administration of Justice is affected” Anonymous How far this argument is true or untrue?

    OUTLINE

 1.0 INTRODUCTION
 
1.1   Meaning of Concepts

- Profession - Legal profession - A Lawyer

2.0 MAIN BODY - Causes for the inadequacy of Legal services in Tanzania. - Negative results of shortage of practitioners in Tanzania. - Steps taken to rectify the situation.

3.0 CONCLUSION

4.0 BIBLIOGRAPHY

1.0 INTRODUCTION

This paper among other things, seeks to reveal the availability of practitioners in Tanzania as far as the legal profession is concerned. Basically, Tanzania experiences illiteracy of legal knowledge the problem which calls for a requirement of legal representation. Tanzania has a scarcity of advocates, unlike the demand of legal aid and legal services by the society.

This is totally different from the nature of most of market economies, which are to the effect that, wherever there is a high demand there should be a high supply, that is, the higher the demand, the higher the supply. But this is not the case in Tanzania particularly in the legal profession, where there is a very high demand of Legal services but in return there is a very low supply of legal practitioners. The nature of the legal profession in Tanzania in relation to its demand by the society is thus, the higher the demand the lower the supply, that is why it is said to have constituted itself a safe heaven as there in less competition due to low number of Practitioners which is the result of the cumbersome procedures for the enrolment of Advocates

Currently, the nature of Legal profession in Tanzania is that, there is a high demand of legal aid and legal services by the society, but there is low supply of advocates. Our work aims at examining the consequences of shortage of Legal practitioners in the society and subsequently explaining how such shortage of practising advocates affect, the entire system of administration of Justice in Tanzania.

1.1 Meaning of Concepts Profession is defined to mean a job which requires advanced education and training and has a fairly high status. Black’s Law Dictionary defines it to mean a vocation requiring advanced education or training. Oxford Advanced Learner’s Dictionary defines a profession as a type of job that needs special training or skills especially one that needs a high level of education. In Webster’s Dictionary it is defined to mean an occupation that requires special occupation and training to which one devotes to oneself or a calling.

Therefore, Legal profession is an occupation, calling or vocation of those people who have attained advanced specialized education and training in the field of law and are qualified and licensed to practice law. Thus, those people in that field are called legal practitioners or advocates.

A Lawyer is defined to mean a person who trained and qualified to advice people about the law and represents them in court of law and is capable of drafting or writing legal document . Concise Law Dictionary defines a lawyer as a counsellor or one learned in the law. It is the one who pursues the profession in law; a legal expert.

2.0 MAIN BODY

    2.1 Causes for the Inadequacy of Legal Services in Tanzania.

According to Fauz Twaib the following are considered to be the causes for the inadequacy of legal services in Tanzania:

Firstly, Colonial policy which reserved legal professionalism to non-africans and discouraged legal education for indigenous Tanganyikan, coupled with political suspicion of the legal profession. It was intended that, the profession cater only to the needs of Europeans and other foreigners. The reason behind was that, the administration wanted to keep lawyers out of the Native Courts.

Secondly, the polices of the post- independent government which were geared towards the production of lawyers for the needs of the public sector, which then absorbed virtually all law graduates. Therefore, there was no significant change in the size of private bar, as enrolment remained extremely small.

Generally, the above mentioned, are regarded as major factors, however, other factors include, the Monopolistic character of legal profession system and the defects in legal education.

2.2 Negative results of shortage of legal practitioners in Tanzania. To Start with, Injustice occasioned by lack of Legal representation in most cases, Legal representation is an important legal right which is almost universally recognised. In Tanzania it is both a Statutory and Constitutional right. It is provided for under Article 13(6)(a) , also it is provided for under section 2 of the Legal Aid (Criminal Proceedings) Act not only that but also it is provided for under section 310 of Criminal Procedure . Because it is not everybody who can defend himself before the court of law that is why the right to legal representation is so vital. But yet in many cases we observe people being tried without being represented by one with legal knowledge (an Advocate), as observed in the case of Almasi Kalumbeta v. R Samatta, J. (as he then was) stated that, “…if an accused is deprived of it, through no fault of his own and through no fault of his advocate and he is in the end convicted, that conviction can not be allowed to stand on appeal, it must be quashed.” Therefore, the right to legal representation as observed above is so vital in proper administration of justice as, as Justice Dean stated in the case of, Dietrich v. The Queen that “… the conviction of an unrepresented accused may result in miscarriage of justice” so, when individuals are prejudice of this right either by not being informed or by being denied of it, it will lead to injustice. This is a negative result of shortage of practitioners in the country.

High Costs of Legal Services is another impact as a result of scarcity of legal practitioners. Due to the scarcity of practising advocates hence everybody tends to run to the few available Advocates, seeking legal assistance, this has led to the rise of costs for such services because they are the only ones available. One in need of an advocate has to bear the burden of high costs so as to able to retain legal assistance from them with respects to their needs. Despite the efforts made by the government of Tanzania to persuade the advocates to assist the poor with legal problems, yet costs for such services are high. Indeed the expenses for the legal services have been the central in any criticism of the legal profession. The present high fees charged by advocate, contravenes the maxim that Justice is not for sale. Because failure to pay such fee means withdrawal of such legal services sought, as it was observed in the case of R v. Lemba Kisiwa and others , where the Advocate withdrew from the case while the case was in its course as the accused persons were not financially capacitated. Such withdrawals of Advocates while the cases are on the motion subsequently leads to injustice at large.

Another negative impact of scarcity of practitioners is delays in finalization of cases. That is, the few available practising advocates turn to be so busy as they have many clients in need of legal services, the busiest advocates therefore do not have enough time to make research and prepare their cases well. It is very usual to find advocate asking courts for extension time as they have not prepared submission of their cases; such extension of time are granted by courts as the reasons be that, advocates have other cases to attend. Sometimes it even happens that, Advocates tend to forget to pray for such extensions and when the court decides to strictly follow the procedures and limitation of time it is the society that suffers the most, as it was observed in the case of Transport Equipment Ltd v. Devram P. Valambya. Also this position is supported by the case of Hassan Mohamed Mkonde v. R where the trial magistrate ordered proceedings to be carried on, in the absence of advocate representation on the ground that, the advocate had previously asked for a number of extensions.

So inadequacy of legal practitioners in the country causes delays in finalization of cases, this affects much the administration of justice, as we know that, justice delayed is equal to justice denied.

Moreover, another negative impact is Disproportionate geographical distribution of Lawyers. The distribution of Advocates is not even, this is due to the low number of the practising Advocates who have much concentrated in major towns, there is thus a need for a fair distribution of lawyers, the thing which is quite impossible with the low number of Advocates that we currently have. Mtwara for example, had one Advocate, who had for a long time serving the entire southern part of Tanzania that is Mtwara, Lindi and Ruvuma regions. That was before Ruvuma region got its own advocate in the early 1990s. So where two parties found themselves in a dispute, hiring an advocate become essentially a matter of who got him first, the other party will have to rely on his own legal resources, unless he can hire an advocate from other part, this will cause him to incur more expenses in terms of transport, accommodation etc and even the fees for out of station work. If the part will not be able to afford those expenses will have to rely on self legal resources, hence, the adversarial process will be misbalanced. This same position was observed in Dietrich v. The Queen where Justice Dean stated, inter alia that,“… the adversarial process is misbalanced… and the likehood is that regardless of the efforts of the trial judge, the forms and formalities of legal procedures will conceal the substance of oppression” The misbalance reveals a real danger of operating an unequal judicial system, Furthermore, a Low standard of legal services is another negative result of shortage of legal practitioners. Having few advocates means a heavier workload for the few who are available. However they engage in a great quantity of work for which they often make very little preparation hence unsatisfactory services offered to clients, as it was observed in the case of, Hamisi Ally Rubondo & 115 others v. TAZARA where the Court of Appeal complained of the inconvenience subjected to it by a badly prepared record of appeal, thus the court advised the advocate for the appellant to exercise great care in the future.

2.3 Steps taken by the Government to rectify the situation. Firstly, the increase in the number of Universities that have assured the enrolment of students who are pursuing bachelor degree in law, for instance the establishment of Universities such as, Ruaha University College, St. Augustine University, to mention just a few, that offer bachelor degree in Law.

Secondly, the enactment of the Law School of Tanzania Act, 2007, which under Section 4, establishes the Law School of Tanzania which shall have legal status like any other corporate body. Section 5 of the Law School of Tanzania Act ,2007 sets out the functions of the Law School of Tanzania, one of which being to impart practical legal training programmes. The Act shall apply to every person who is a law graduate from an accredited University or other High Learning Institutions awarding a bachelor degree in law desiring to practice law in the United Republic of Tanzania, either as a public servant, and or as an advocate of the High Court of Tanzania and courts subordinate thereto.

3.0 CONLUSION Basically, despite the efforts taken by the government to rectify the current situation in the legal profession, still Tanzania has a very small number of practising Advocates unlike the great demand of the legal services by the society. And this has to a large extent as discussed above, led to miscarriage of justice, and indeed weakened the entire system of administration of justice in Tanzania. It is important that, if justice is to be done every person should have a lawyer to represent him, as it is not every man has the ability to defend himself before a court of law.

BIBLIOGRAPHY Constitution.

Tanzania Government of, The Constitution of the United Republic of Tanzania 1977, (as amended), Government Printers, Dar es Salaam.                                        

Statutes

Tanzania Government of, The Criminal Procedure Act [Cap 20 R.E 2002], Government Printers, Dar es Salaam.

Tanzania Government of, The legal Aid (Criminal Proceedings) Act [Cap 21 R.E 2002] Government Printers, Dar es Salaam.

Tanzania Government of, The Advocates Act [Cap341 R.E 2002], Government                   Printers, Dar es Salaam.

Cases Almasi Kalumbeta v. R [1982] TLR 329 Dietrich v.The Queen. [1992] 67ALJ R 1. Hamisi Ally Rubondo & 115 others v. TAZARA Civil Appeal no 1 of 1986, C.A.T Dar es Salaam Hassan Mohamed Mkonde v. R [1991] TLR 148(HC) R v. Lemba Kisiwa and others. Criminal case no. 387 of 1983 Arusha District Court Transport equipment Ltd v Devram P. Valambya.Civil references no. 7 of 1992 CAT at Dar es Salaam.

Text Books

Hornby, A.S, (2000) Oxford Advanced Learner’s Dictionary, 6th Ed., Oxford University Press, Oxford

Garner, B.A, (2004) Black’s Law Dictionary, 8th Ed., Thomson West, Minnesota.

Ramanatha, P.A, (2005), Concise Law Dictionary, 3rd Ed, Wadhwa and Company Law Publisher, Nagpur

Peter, C. M, (997) Human Rights in Tanzania: Selected Cases and Materials, Rudiger Koppe Verlag, Koln.

Twaib, F. (1997) Legal Profession in Tanzania: The Law and Practice, Bayreuth African Studies, Bayreuth

[edit] Tanzania, the law is usually a jumble of pieces with the result that the legislator is nearly always faced ............

“In developing country like Tanzania, the law is usually a jumble of pieces with the result that the legislator is nearly always faced with the task of not only updating it but having to harmonies it…The difficulty in practice is not that we not know that the laws exists, but where to look for it. There lies the difference between the lawyer and the layman, even though sometimes some lawyers do not even know where to go for the law” Honorable Mr. Justice Nyo’Wakai of the Supreme court of Cameroon.

Elucidate this observation by taking into consideration, among other things, the important role played by a lawyer in the society. OUTLINE

1.0 INTRODUCTION

1.1 THE DEFINITIONS OF AN ADVOCATE

1.2 GENERAL DUTIES OT ADVOCATE

2.0 MAIN BODY

           2.1 CLARIFICATION OF THE COUTATION

           2.2 THE ROLES OF AN ADVOCATE IN THE SOCIETY

3. O CONCLUSION

4.0 BIBLIOGRAPHY

1.0 INTRODUCTION.

A lawyer is a key player in the justice system with obligation not to simply to clients,

fellow professionals, witnesses and other third parties, but also to the court.  Despite the description of solicitors as officers of the court it is not the case, as occasional unguarded commentators suggest, that the lawyer’s duty to the court always trumps the lawyers other duties. in fact, where the lawyers various obligations conflict, a delicate balancing operation is called for, and in the process the key lodestars  will be the needs of  the adversarial system of truth finding, the interest of justice and human rights requirement of a fair trial or hearing.

The fact that lawyer form a professional seems to be accepted as truism. It is one of the few occupations which for centuries have enjoyed the status of profession. Even after the field was narrowed in the past two centuries; the profession of law has continued to occupy a place among professions, and to enjoy the status of professionalism.

1.1 THE DEFINITIONS OF AN ADVOCATE.

The term advocate has been defined by various authors under various contexts, but despite variety of definitions, still the definitions centers on the same meaning. As defined under S.2 of The Advocates Act , “mean any person whose name is dully entered as an advocate upon roll”.

According to www.wikipedia.org an advocate mean the one who speaks on behalf of another person, especially in legal context. Also are counsels who are licensed to present cases in the supreme Courts. Advocates wear wigs, white bow- ties, and gowns as dress in court.

According to the Oxford Advanced Learners English Dictionary the term means “a person who defends somebody in a court of law.” However in old position for a person to qualify as an advocate he had to posses certain qualifications and pass through certain procedures so as to be eligible to qualify as an advocate. These qualifications included academic qualifications in which one had to posses a degree in law, he should be a legal practitioner in any common wealth country, and he should be a solicitor or barrister, or a holder of any similar qualification which is accepted by the council as a profession qualification.

Furthermore in the case of Charles U, S.Mwailunga. vs. .Advocate Committee ,It was held that an advocate is an officer of the court who stand is fiducially relationship with his client, his duty is to conduct his litigation properly both in respect of his client and the court.

The advocates are needed for people who; Maybe rejected by others because of difference or disability, are vulnerable to neglect, abuse or exploitation, are in danger of being excluded for community life, are undergoing changes in their life.

Basically there are two categories of advocates in Tanzania: the first categories are those who are enrolled under the act, the second category are those who practice as advocates by virtue of their employment. They include state attorney in the generals chamber, the administrator-General; registrar-general; public stustee; commissioner for lands

1.2THE GENERAL DUTIES OF ADVOCATE

It is high time one went back to the words of Mr. FAUZ TWAIB on Lord MACMILLAN classification the advocate, that the duties of the advocate are classified as five-folds.

Has a duty to his clients. This duty starts at the time of taking instructions from the client. For example is having a vital duty to disclose to his client the general conduct of the case as it was in WILLIAM vs. FANSHAW PORTER AND HAZELHURST, 

He also has a duty to his opponent to use his best effort to restrain and prevent his client or himself from resorting into sharp and unfair practice to his opponent in court.

Moreover he has a duty to the court to make research concerning the case in hand as to support the court to reach the correct decision. for example in Tanzania the landmark case of ABUALLY ALI BHAI AZIZ Vs. BHATIA BROTHERS LTD .This type of duty is an overriding one that in appropriate cases must be observed even at the expense of his client’s interest.

Further more he has duty to him self as suppose to be presentable in all season and must appear in the court only in the prescribed attire. He is also required to adhere to the law.

Lastly, the duty of an advocate to the state is that, when in the course of performing his duties an advocate has to make sure that he acts within the law of the land that he is not supposed to contravene public plicy.however the balance of interest between lawyers and the state suffered set backs after independence until 1990’s in Tanzania.

2.0MAIN BODY

2.1CLARIFICATION OF THE QUATATION

Law as the system in itself is not a problem, it make possible the existence of organized society, with the consequential released of human energies for constructive effort in the satisfaction of individual and group needs of society. In deed it is usually a jumble pieces with the result that the legislator is nearly faced with the task of not only updating it, but harmonize it. But if we leave it alone without control i.e. failure to recognize the role of both lawyers and the institutions of legal profession governing the professional conducts, ethics and discipline, there is bound to be maximum chaos in the system, with consequent confusion and inconsistence . this is true in legal system where the law is scattered in fragmentary pieces of statutory law, case law or in developing countries like Tanzania, where only a few have been fortunate enough to be educated, let alone professionally qualified. Therefore there must be a person and bodies to govern this. This is much found in the contention

                       “You may not think about law, but law always thinks about you.
                         Truly you cannot isolate a single instance of life where law has no 
                          Control or guideline for conduct of affairs” 

A peaceful and harmonious living in society implies the systematic promotion of fair and just treatment of individuals and groups within it, the protection of the conduct consistence with, punishment of conduct inconsistence with, the declared interests and values of society as well as the existence of a justice system by which the problem of individuals and groups are solved peacefully .the above justifications are also founded within the ambit of a person who have been specialized, educated and trained in the field of law,i.e.A lawyer. A lawyer is governing by three institutions of legal profession in Tanzania. If that the case, it is highly probably that, there is no way that he or she can fail to know where to go for the law in comparison with the layman. This is true as that, before a lawyer going to court, he have to prepare himself by making familiar with legal principle at hand, and if possible he is suppose to make a research whenever there is a findings and assembling of authorities that bears on a question of law. This justification if also emphasized in the case of S.M.Z Vs.Machano Hamis ans 17 others and also in the case of Abually Alli Bhai AzizVs. Bhatia Brother LTD. However mistakes to man is not yet buried, lawyer may fail to cite any authority in supporting there arguments. This is true in the case of Dr.Masumbuko R.Lamwai Vs. Venance Francis Nguha and AG

2.2 THE ROLES OF AN ADVOCATE IN THE SOCIETY

Firstly to maintain a respectful attitude towards the court. Always an advocate must maintain a respectful attitude towards the court of law even if the court posses a wrong decision. An advocate is required to agree with such decision while he may invoke his reaction by appealing such decision to the higher court and not totally to refuse such decision before the court.

Secondly the advocate should insure that the court is enforced of any relevant decision on point of law or on legislative provision which may be relevant or on any mis apprehensions by judge as to the effect of any order being late, an advocate should be in good position of making good research of relevant materials so that to meet a good submission before the court as shown in the case of SMZ.Vs. Machano Hamis and 17 others .the court observed that as appeal of its own kind dual raised grave constitutional issue for determination of the court for the first in its history, there was a need to research and be thorough in our judgement,courts has always of a very positive observation to such advance who make submission and accompanied by wonderful research. Also in the case of Abually Alli Bhai Aziz.Vs.Bhatia Ltd .The court observed on the research issue as follow…we must at this stage express our profound appreciation for the industrious research made by all advocate in general, and by Mr. Jadeja and Professor Fimbo in particular. As if will presently be apparent, this extensive research has had a direct impact on the quality of our decision.

Then an advocate has a duty to assist and protect the society on all matters concerning law, since our societies has been faced with legal ignorance, Example people do not know their rights, looking on this duty a lawyer has a duty to help and assist a society concerning all legal matters.The lawyer may educate people as far he maybe needed to do so. Example at ITV STATION, there is a certain period IJUE SHERIA where different lawyers are tried to discuss deferent legal matters that are very essential to our society.

Also an advocate has a duty to represent their clients before the court or any tribunal, on this duty an advocate play a big role by representing his client before the court of law. He or she must provide all the necessary support in both civil and criminal matters. As provided by section 310 as legal representation is the right to everybody. Then also in the case of Khassim Manywele .vs.R It was stated by Mwalusanya, J (as he then was) that the right of legal representation is the constitution right as provided under Article 13(6) (a)

An advocate has a role to draft legal documents. In this sense the advocate using his professional has a duty to help the society in drafting legal documents so as he may help

those citizens who seeks such service, such service may be like drafting lease agreements, Wills, Bills, Sales agreements.

To act as trustee on properties of deceased on behalf of their beneficiaries. As an Advocate has a role to defend the property of the person on behalf of their beneficiaries from those who wants to take such properties or as far where a beneficiary has not attained the majority age.

Lastly an advocate has a role to assist the government and Court through the Tanganyika law Society in all matters affecting legislation and the administration and practice of law in Tanzania. Lawyers may assist the government for any law that will be seen at the eyes of law is unconstitutional or Ultra vires.Through this assistance of lawyers, such laws made unconstitutional or ultra vires maybe changed or struck out in the books of laws.

3.0CONCLUSION

Legal professional plays number of roles in the society. The society without lawyers looks like a plane without a pilot, as far as a lawyer facilitate management in various displines.The roles are as many as the activities in the society. The discussion above gears us all to consider other roles, thus their exhaustive are not limited, and therefore legal professional in Tanzania is still embryonic stage, much effort must be taken to overcome all problem that arise among legal practitioners.

4.0BIBLOGRAPY

CONSTITUTION, The Government of Tanzania,(1998), The Constitution of the United Republic of Tanzania 1977,(as amended from time to time) ,The Government Printers, Dar es Salaam

STATUTES

The Tanzania Government of, The Advocates Act [Cap 341 R.E 2002], The Government

                                                  Printers, Dar es Salaam.

The Tanzania Government of, Criminal Procedure Act [Cap 20 R.E 2002], The

                                                  Government Printers, Dar es Salaam.

BOOKS

Binamungu, C.S and M.C Mukoyogo, (2005), Studying Law Skills. A Guide for Bigginers in Law, Mzumbe Book Project, Mzumbe.

Hornby, A.S (2002), Oxford Advanced learner Dictionary, 6th Ed, Oxford University Press, New York.

Twaid, F. (1997), The Legal Professional in Tanzania. The Law and Practice, Bayreuth Africa Studies, Bayreuth.

CASES

Abually Alli Bhai Azizi Vs .Bhatia Brothers ltd. Civ Appeal no.1 of 1999 CA at Dar es Salaam (unreported) Charles U.S Mwailunga .vs. Advocate Committee [1982] TLR 282

DR Masumbuko Lamwai.vs. Venance Francis and AG Civ.Appeal no 56 of 1997, CA at Dar es salaam(unreported) Khassim Manywele vs. R. HC of Tanzania Cir. Appeal No.39 at Dodoma(unreported)

SMZ vs Machano Hamis and 17 others CA no.8 of 2000 Court of Appeal of Tanzania at Zanzibar. William. Vs. Fanshaw Porter and Hazelhust (2004) UK HL 18

WEBSITE http://www.wikipedia.org/wiki/advocate-accessed on 24th November 2007

[edit] a critical analysis of the major restrictions and offences in connection to legal practice in Tanzania.

a critical analysis of the major restrictions and offences in connection to legal practice in Tanzania.

1.0 INTRODUCTION The term Legal practice has been defined as representing the employer in court or tribunal. However legal practitioner can also be defined to mean an Advocate, vakil or attorney of the High Court or any pleader authorized under any Law for the time being in force to practice in any Court of Law .

Before the coming of colonialist in Tanganyika there was no such element of legal practice there was different type of dispute settlement exists that time.

In the late 10th and early 20th centuries Tanganyika comes into the hands of Germany colonial. During that time Tanganyika hardly come into contacts with professional lawyers. The Germans colonial law distinguished between Africans and Europeans. The former continuer to be governed by the African customary law administered by chiefs and other tradition dispute settlement mechanism the latter was governed by German law.

Due to the after month of world war one Tanganyika come into the hands of Britain and found itself a recipient of the English common law. The British imported the principal of common law, statutes of general application applicable in England as of 22nd July of 1920 and the principal of equity.

When, Tanganyika receive Tanganyika order in council it established the high court 0f Tanganyika, we also receive professional legal rules from England via the Indian i.e. we copied the Indian legal professional rules and we call them the Tanganyika legal profession rules. This was the beginning of the legal practice and profession in Tanganyika. As to copy with this development in legal profession arena, the government enacts the Advocate Remuneration Ordinance . In 1954, the government enacted the advocate ordinance which remains the law to date.

After Tanganyika acquired its independence, the government embarked upon several measures designed to change the colonial nature and outlook of legal system and product of its own legal personnel. The government changed some laws which were in shape of colonial regime so as to suit our environment such as our constitution.

2.1 MAJOR RESTRICTIONS IN CONNECTION TO LEGAL PRACTICE IN

                                                   TANZANIA    

Advocates are restricted from advertising their business. This is due to the fact that advocates are prohibited from employing any kind of advertising through media or other means which is regarded as amounting to advertisement. This as per provision of rule 5 of The Rules of Professional Conduct and Etiquette which provide that. “ no advocate may directly or indirectly apply for or seek instruction for professional business, or do or permit in the carrying on of this practice any act or things which can reasonably as… advertising or as calculated to attract business unfairly.” This restriction covers considerable wider areas which include the use and displaying a name plate elsewhere rather than at one’s place of business. Also an advocate can be considered to be Advertising if he lets his photographs be taken for publication in newspaper while wearing his gown .

An unqualified person is restricted from acting as an advocate this is provided under the provision of section 41(1) . The law restricts against un admitted person, including law graduates. However these include the bar against the practicing as an advocate. It further restrict even preparing instruments that by law can only be prepared by an advocate as provided under section 43 of the Advocate Act .

Critics on un qualified person not to act as an advocate; There are some circumstances in which non-lawyers or unqualified person are allowed in some restricted sense to represent others before the court of laws; in which a part can be represented in the civil suit, if he is a minor or for any sufficient cause where by he can not adequately defend himself, this can be seen in the case of NATIONAL BANK OF CORMERCE V VITALIS AYEMBA , where by judge when interpreting the provision of order 3 rule 1 took an even greater step. While acknowledge the decision of the court of appeal in N.K.J. ZABRON V NAIMAN MOIRO , the judge distinguished it and implicitly found superior court to have erred in denying audience to the holder of the power of attorney. Then the court held that a person holding a power of attorney has the same right of representing parties in court as an advocate, and that a litigant as at liberty to elect to be represented by an advocate or any other person by way of a power of attorney.

Another restriction is based on remuneration of Advocates; this is governed by orders made by the remuneration committee. According to section 49(2) , the chief justice or the remuneration committee may make orders prescribing and regulating the remuneration of advocates in regards to both contentious and non contentious business. However advocates are restricted to agree or accept remuneration above that which is provided by the remuneration rules. Despite the fact that the advocate may agree with his client on the amount he is going to charge him he can not charge him below the minimum amount set by the remuneration rules. This is as per the provision of rule 5 and rule 12 .

Another restriction is based on the rule of exclusion; under the Rule of Professional Conduct and Etiquette also prohibit Lawyers from forming partnerships or even sharing of office with non advocate or other profession. This rule also has its undesirable consequences. A client, who for instance, needs an advice on taxation, may require both the legal as well as financial aspect of his problem. If he could find a firm and pay one bill even though there would have been two items, it is reasonably to expect that the costs would be lower because of the advantage of the economies of scale, etc. The ethics of the lawyer’s profession do not allow this because the rule is that sharing office will lead to unfair attraction of business and compromise the advocate’s independence.

Furthermore another restriction is on the rights to representation. According to section 33(1) , which provide that no advocate or public prosecutor as such may appear or act for any part to a primary court. This is contrary to article 13(6) (a) and article 15 because every person has the right to legal representation. Thus to bar advocates to appear before primary courts means to deprive the constitutional rights of representation from the people. This was observed in the case of KHASIM HAMIS MANYWELE V R . However, the right to choose the council of his choice is not plainly available to every accused person in Tanzania. This is due to the fact that section 3 , restrict this rights only to the poor and circumstances of the case which require legal presentation, as it can be determine by the chief justice or the High Court. In practice legal aid is available to the indigent accused to the offence attracting capital sentences or Long term imprisonment such as murder and treason.

Right to free market, Advocates are restricted from inducing the advocate the client of any advocate to cease to be the client of such advocate even though the advocate is incompetent in conducting the proceeding as per section 48 .

Restriction on professionalism, according to section 39(1) and section 41(1) which provide that, no person is allowed to practice as an advocate without his name being on the roll, has acquiring practicing certificate and has a valid license. This restricts bar even a person who is completed or graduated L.L.B and there are competent enough to represent people in courts however this restriction can be found under section 13(2) . Thus it leads to the problem of having small number of advocates to provide service to the larger number of citizens.

2.2 OFFENCES IN CONNECTION TO LEGAL PRACTICE IN TANZANIA

In legal practice it is an offence to act as tout; this rule is provided by section 47 of the rule of profession conduct and etiquette. However touting is the use of intermediaries (touts) to bring or attract clients to oneself. Furthermore touting is both professional and criminal offence, it is regarded with such aversion among legal circles that the law gives to the chief justice poewer to exclude them from the precincts of the court, for instances in certain cases an aspiring advocate was removed from the list of applicants for enrolment after allegation of touting were leveled against him.

Another offence with regard to legal practice in Tanzania is about client’s account. Under this the advocate is called to the detailed provision of the advocate (accounts) regulation of 1956. If the cheque drawn on a client account is dehorned professional misconduct is disclosed and disciplinary action will follow. This is per the provision of rule 13 . Also it can be supported by the case of CHARLES MWAILUNGA V ADVOCATTE COMMITTEE in which the appellant failed to maintain the clients account and as a result disciplinary action was taken against him by the Advocate Committee. Which remove his name from the bar.

Further, another offence is about dissolution of partnership. This is because it is improper for an advocate of which his partnership have been dissolved for a client against the existing partner arising pf events that occurred during the partnership. This is according to rule 23 which provide that, “where two advocate have dissolved partnership it will be improper for the out going partner to act for a client in a claim against the continuing partner arising out of events, which had occurred during the partnership”.

Another offence is about inducing client to abandon their advocates an advocate is strictly prohibited from inducing the client of another advocate in any manner to cease of being his client. This can be seen under the provision of section 48 which provide that “any person who induces or attempt to induce any client or prospective client of any advocate to cease of becoming the client of the advocate whom such person serve as secretary, clerk, or messenger or in any other capacity, shall be liable to a fine not exceed one thousand shillings and to the imprisonment of the term not exceeding six month. However, this provision of section 48 of the act can be criticized to some extent on question of penalty seems to be more less than the offence committed compared with the economic situation of our country.

Again is an offence for any person, who pretends to be an advocate, this offence is provided for under section 41(1) . The motive behind this provision is that the legislature intends to protect the society from the danger of their rights being trampled upon due to ineffective representation. Section 42 provide for a fine of not exceeding one millions shillings and imprisonment of twelve months or both for pretending to be an advocate. Due to the prevailing of economic and political situation of our country, the penalty seems to be less than the offence as representation by an unqualified person can have serious reparcation on the rights of individuals.

3.0 CONCLUSION

To conclude, generally the above discussion has managed to underscore the meaning and the historical background of the legal practice in Tanzania together with its restrictions and offences. However the emphasis has put forward to the restrictions of the advocate or legal practitioner and offences has been touched to some extent. Furthermore there are some criticisms put forward about the restrictions and offences in connection with legal practice in Tanzania. Moreover it can be observed that, restrictions and offences laid down by different legislature though they have negative impact on the side of legal practitioners but they are of a great importance in shaping up the whole field of legal practice in Tanzania

Legal practitioner has different duties which are performed in the court and outside the court advocate has duties of the same kind, also to himself, to his opponent and to the client. In Tanzania independence of judiciary is an important element in administration of justice. This principle has further been extended to include the doctrine of the independence of the bar. therefore in the performance of his daily activities advocate can balance the interest of conflicts either the interest of the state or the interest of his client or the interest of the court whereby the interest of client sometimes can be sacrificed to make sure that the interest of the court are put forward.

[edit] scenerio

Chaumbeya is a young advocate who has been recently admitted in the Roll of advocates. He has just received his first client Queen who is telling him that she has just discovered that she is HIV positive as a result of Dr. Kunguru’s botched injection. She claims at getting some damages out of the professional negligence act of Dr. Kunguru. She has requested him to negotiate a settlement on her behalf. Chaumbeya proceeded to make such negotiation and the settlement deed was agreed on a sum of 500,000,000/=Tshs. Before they had finalized that settlement, Queen decided to o to another Hospital to confirm the results of her HIV test. The second test proved that Queen was HIV negative. Knowing that Dr. Kunguru has agreed to pay her for the alleged professional negligence which in fact was, as per second test, not true, she persuaded Chaumbeya to proceed with finalization of the settlement for the promise that they are going to share equally that amount.

Advise Chaumbeya what he should do considering the duties of an advocate to his client, court and the public. Do you think which one will be the best principle to apply; a lawyer as a hired-hand [hired gun] or a lawyer as a civic campaigner?

OUTLINE

1.0 INTRODUCTION

 1.1 Meaning of Advocate and Legal Profession

2.0 MAIN BODY

 2.1 Duties of an Advocate to the Court and to the Clients

 2.2 Summary of Hypothetical Facts  2.2.1 Issues Raised and Discussion

 2.3 The best Principle to be Applied  2.3.1 Hired Hand (Hired Gun)  2.3.2 Civic Campaigner

3.0 CONCLUSION

BIBLIOGRAPHY

1.0 INTRODUCTION

1.1 MEANING OF ADVOCATE AND LEGAL PROFESSION

An advocate has been defined by a number of jurists in various ways; however the definitions targeted the same meaning. The Advocate Act under Section 2 defines an advocate to mean “any person whose name is duly entered as an advocate to the Roll.” The term Roll means and includes the list of advocates registered according to the provision of part IV of the Advocate Act.

On the other hand legal profession is defined to mean an occupation, a calling or vocation of those people who have attained advanced specialized education and training in the field of law and are qualified and licensed to practice law foristance an advocate. In all under workings and lawyering from day to day dealings all persons with legal profession herein referred as advocates, have legal ethics which its failure to observe may endanger the profession and the advocate himself.

Legal ethics means “usage and customs among members of the legal profession involving their moral and profession duties towards one another towards clients and towards the court. That branch of moral science which treats of duties which a member of the legal profession owes to the public to the court to his professional brethren and to his client.

2.0 MAIN BODY

2.1 DUTY OF ADVOCATE TO THE COURT

As an advocate, the duty to the court which prevails over that to the client has many aspects and is far-reaching in its nature. Since most complaints against advocates are related to their work in court and involve inextricably linked issues of service and conduct, the extensive nature of the duty they owe to the court makes it all the more important that knowledgeable experience is brought to bear on the resolution of these complaints.

Lord Diplock in the case of Saif v Sydney Mitchell stated that “The special characteristic of a barrister's/advocates work upon which the greatest stress is laid by their Lordships was that he does not owe a duty only to his client; he owes a duty also to the court. This is an overriding duty which he must observe even though to do so in the particular case may appear to be contrary to the interests of his client.”

Intensive Research, to the court an advocate has the duty to make an intensive research. It is the duty of an advocate to make sure that the court is well endowed with the information relevant to the court of law which will help the court to decide the matter at hand and to reach a just and a fair decision. This is envisaged in the famous case of Abually Alibhai Aziz V. Bhatia Brothers Ltd whereby the court of Appeal commended the work done by the counsels in both sides and amicus curiae which ultimately drove the court to come up with the brilliant decision on the matter. The court had this to say in appreciating the work done by the advocates “……We must at this stage express our profound appreciation for the industrious research made by all advocates in general, and by Mr. Jadeja and Professor Fimbo in particular……..” As far as this case is concern therefore, the duty of advocate to the court was commendable.

Contrary to this, the court will not hesitate to embarrass an advocate if he fails to adhere or did no research where necessary to do so, an advocate can therefore be embarrassed at once. This was the position in the case of Masumbuko Lamwai V. Venance Nguha and the Attorney General. In this case the court stated that, “Both advocates therefore have more than ten years of legal practice and are expected to know that where a legal issue is raised in the highest court in the land well in advance of the heating date appropriate legal research is required by advocates of both sides to assist the court to make the decision which is correct in law. We are compelled to express our disappointments at the conduct of learned advocates both whom we know are capable in doing better than they did.”

Notification to any error, an advocate has the duty to draw to attention of the judge to any errors in the summing up so that these can be corrected. Lawton LJ in the case of R v Clarke had this to say, “We judge that counsel as a matter of professional duty to the court, and in the case of defending counsel to their client, should always before starting a criminal case satisfy themselves as to what the maximum sentence is.”

Duty not to deceive the court, an advocate has the duty also to make sure that the court is not deceived so as the court to maintain its position of reaching a fair and a sound decision. An advocate must not willfully mislead the court as to the law nor may he actively mislead the court as to the fact. In the case of Abraham v Justsun Lord Denning M.R stated that, “[It is an] advocate’s duty to take any point which he believes to be fairly arguable on behalf of his client. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point and thereby deceives the court.”

Provide relevant authorities, another duty of an advocate is to make sure that he helps the court in providing relevant authorities example cases, statutes and other material which will be needed in case. Lord Hope in the case of Arthur Hall v Simons stated that “……The advocate's duty to the court is that, he must ensure that the facts are presented fairly and that he must draw the attention of the court to the relevant authorities even if they are against him. It extends to the whole way in which the client's case is presented.” Wastage of time, an advocate as an officer of the court is not supposed to waste the time of the court by trying to obtain adjournment without proper reasons, an advocate can and should exercise in the interests of justice as a whole a proper discretion so as not to prolong cases unnecessarily. This was also stated in the case of Ashmore v Corpn. Of Lloyd’s whereby Lord Tempeleman said that, “The parties and particularly their legal advisers in any litigation are under a duty to cooperate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of the counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner.”

Not only to the court but also an advocate have duties to the client. These are some of duties which an advocate had to his client:

Lord Denning in the case of Pett V. Greyhound Racing Association Ltd stated that, “…….If justice is to be done [everyone] ought to have the help of someone to speak for him. And who better than a lawyer who is trained for the task?” In addition Samatta J. (as he then was) in the case of Almasi Kalumbeta V. R stated that “Legal representation is a universally recognized right and is provided for by Section 310 of Criminal Procedure Act. This is due to the court procedures which seems to be very cumbersome and therefore not to be understood by the number of people who are not trained in law apart from that others might have tongue-tied, and nervous.

Confidentiality, much as an advocate engages into the employment with his client there is fiduciary relationship as a doctor and a patient relationship. Therefore such a relationship exist to the advocate is duty bound to maintain trust and confidentiality. This for stance is a matter of law as it can be observed under Section 134 where an advocate duty bound not to disclose any information of his client unless by his clients consent.

Duty not to mislead the client. An advocate should be able to advice his client in a nature that trust is build in his client as for the doctor and his patient. In the application for the removal from the Roll of Dr. Masumbuko Lamwai whereby the said advocate had failed to appear in representing his client without reasons. The committee held that to be the profession misconduct and therefore the said advocate was suspended.

Duty to inform his client the general conduct of the case. An advocate ought to inform his client on the progress and the genuineness of the case without undue delay. In the case of Williams V. Fanshaw Porter and Haze Ihurst this duty was said to be of utmost important so as not to cause the complaint against the solicitor. Furthermore an advocate has the duty to provide advices, drafting document and provide guidance to the clients on all legal and professional matters. An advocate should serve his client completely and diligently. He should give his opinion in regard to the nature of the case. The advocate has to tell the client the weakness in his case as it was stated in the case of Williams V. Fanshaw Porter and Hazelhurst.

2.2 SUMMARY OF THE HYPOTHETICAL

That Chaumbeya is an advocate registered and practice in Tanzania, his name is in the Roll of advocates. He was approached by a client one named Queen who at first instance was claimed to be HIV positive as a result of botched injection by one Dr. Kunguru. She aims now at getting damages out of the professional negligent act. She asked Chaumbeya a newly enrolled advocate to negotiate with Dr. Kunguru on her behalf at the agreed amount of 500, 000,000Tshs.

In the second place the said Queen decided to go for more confirmation on her status if it’s true that she is HIV positive and she decided to do this in another hospital where it was then discovered that she is HIV negative contrary to what she was told before. Regardless to this discovery the aforesaid Queen insisted Chaumbeya to proceed with finalization in negotiation with Dr. Kunguru who had already agreed to pay such amount of money under the promise that, they will equally share the amount that is to be paid by the said Dr. Kunguru.

As it provides in itself, this hypothetical facts portrays in it, the profession of a lawyer herein specified as an advocate and the legal ethics of a lawyer and the surroundings environment as far as our contemporary society is concerned.

2.2.1 ISSUES RAISED AND DISCUSSION.

 Whether Chaumbeya’s client proposition to continues finalizing the negotiation settlement binds the advocate and not otherwise.  Whether Chaumbeya in concurring with his client wishes to finalize the negotiation settlement with Dr. Kunguru will be unethical and fraud as far as legal profession is concerned

The first issue is hereby answered inaffirmative; It has been and it is a conception to the lay clients and the society at large that legal aid is to be provided at the will of the client by the reason that the client has hired an advocate and in practice an advocate is so used as a hired hand or gun.

From the foregoing explanation enumerated its better to be aware on what do we mean by saying a hired gun. In essence a hired gun is the one retained (an advocate) to go to the opposing side of the case and to be paid money or rewards of advancing their own richer.

Besides, Professor Hutchson dealing with the same argued that legal profession has become more business like in operation and corporate in attitude. And adds further that legal services are treated as one more commodity to be brought and to be sold in the market place. To strike on the point of target Professor Hutchson then established that this tendency which is prevailing has been facilitated by the traditional view of legal ethics that puts service the belief that lawyers (in this case advocates) do not have responsibility for the law and its development but only for the satisfaction of their client wishes. This formulation by professor is the replica of our hypothetical at hand where Queen, the lay client tries to control Chaumbeya to fulfill her wishes.

However, it should be borne in mind that Chaumbeya is a professional lawyer and to be a lawyer is to vacate the ordinary domain of ethical judgment and to inhabit or perverse world of normative disingenuity. Worse still, the society use to see lawyers as rich and elites profession that is more interested in its own pocket book than the public interest.

As explained herein above in the duties of advocate we are of the view that the duties of advocates are of diverse in nature namely duty to his client such as trust and confidentiality, duty to the court which overrides the duty to his client (as an officer of the court) and the duty to the public at large which includes observing justice.

Generally, though an advocate is an agent or representative of his client, he cannot afford to be tool in hand of the client. An advocate through ethical obligation is not allowed to accept such work which makes him disloyal to the court or place in a compromising position.

Therefore, it is our stance that, the fact that Chaumbeya, a young advocate is not bound to embrace his client’s wishes which is against justice but he is duty bound not to mislead the lay client. Besides he has public duties to promote a just society and duty bound to secure the legal profession and him. If that the case therefore, we argue that, the learned advocate in the hypothetical case narrated herein above is not bound to comply with his client’s wishes by the reasons that he is retained by his client and be used as a hired-gun.

The second issue is hereby answered affirmativelly; the fact is that every advocate is supposed to act in professional capacity. This was revealed by the postulation of Dean Swift an English historian who opined that “Lawyers were a society of men bread up from their youth in the art of proving by words multiplied for the purpose that white is black and black is white according to what they are paid.” This formulation does not lift up lawyers but lower them. From our facts then, the learned advocate is requested to side with his client in the conditioin that they will share the amount given equally. Under rule 37(1) it is provided that every advocate must discharge his duties to his client, the court members and his fellow members of the profession with honesty, condor and honour.

Therefore to concur with the clients wishes knowing an exactly truth of the matter is not only unethical but also fraud in the face of it. We are of the view that he ought to respect the profession and abide with its rules and not to mislead the client who is not only the client but a lay person as far as legal profession is concerned, if at all the second test proved that his client was HIV negative.

Moreover Honorable A.J Chege when addressing advocates on 15th December 1993 said that, among other things the professional responsibility of a Lawyer derives from membership in a profession which is self regulatory and which has duty of protecting members of public from the sharp practice of some its members. This is nothing but protection of standards of the profession.

Mr. Chaumbeya therefore, should not support his client who knows nothing about the legal profession of such unjust act which is also against the law rather he should tell his client the truth. As he is not expected to mislead his client he should also make sure that he is capable in utilizing his profession in advising his client and telling her the truth whenever necessary.

Mukoyogo illustrated that, if an advocate persuade the client to provide legal service under the agreement to get some shares there in after the matter has been settled, it is an illegal deal. He continued establishing that such illegal deal in legal language is called Champerty which under Osborn’s Law Dictionary is defined as the offence of assisting a party in a suit which one is not naturally interesting with a view of receiving a share of the disputed property.

As the matter of concluding the raised issues, we would advise Mr. Chaumbeya not to mislead his client but to help her in understanding the truth of his position and the position of rules of conduct as well as of the law.

2.3 THE BEST PRINCIPLE TO BE APPLIED

The question also is of the need on the best principle to be applied to an advocate in lawyering either: “a lawyer as a hired hand” or “a lawyer as a civic campaigner”

2.3.1 HIRED HAND (HIRED GUN)

The traditional image of lawyering is centred on the idea that lawyers are super technocrats, they posses a special set of talents and ethnics which they deploy for the advantage of the people who hire them. In the society believe that the lawyer had been acquainted with knowledge and good skills so they may live advocates with the view of destroying the other party by telling the advocate what he want the advocate to do.

Advocate regards themselves as being neutral on the substance and form of the law. Their task is very much to apply the law a little to criticize it, but most certainly not to make it. Their commitment is to the legal system which even when they are working around and within it must be accepted as given. Therefore, lawyers are committed to the rules of law and its value. I n their professional lives ethical lawyers serve the legal process and not to serve the interest of the clients therefore if the lawyer will do the same as the client wants he may be termed as a Hired Hand.

Critique being hired hand the rule fails theoretically, empirically and ideologically, this is because it is based on a formalistic theory of law that is largely discredited and defunct as a serious attempt to understand law and its operation.

It describes a version of legal practice that no longer has any empirical validity on historical accuracy, if it ever did have, and it defends both its informing theory and its governing process as apolitical in such a way that merely serves to under line its very ideological commitments.

In the light of the empowered role and the elevated status of lawyers in society the hired hand image is a humble representation of what lawyers do and what people experience in their dealings with lawyers. It should be understood that lawyers need not to discriminate clients, however this principle seem to provide a loophole for lawyers to pick between competing clients that means those who are solid economically and those who are not that much well-off and that only certain kind of clients comes into certain kinds of law offices and others automatically will search for affordable lawyers. So the reality of variable and high legal fees confounds the claim of the principle of a lawyer as a hired a hand.

As enumerated above therefore, it can be seen that the principle of hired hand is impoverished vision of the notion that, lawyers can not and do not have role in the establishment of the substantive just society.

2.3.2 CIVIC CAMPAIGNER

This principles entails that, the lawyer must take an appropriate share of the responsibility for those values and results. As players in the system, lawyers must be prepared not only to take credit for the good but also take blame for the bad. At very least, they must engage in the struggle to make the legal process the best that it can be for the benefit of those who live under its directive. Also lawyers are officers of the law they are also agents of the people they ought not to uphold the law for its own sake, but must commit themselves to achieving justice through law. Lawyers should represent only those clients and causes that contribute to the furtherance of the common good.

Accordingly, rather than viewing a lawyer as a stoic mediator between the determinate and articulated interests of clients and requirements of the legal system. This realist inspired critique considers it better to view lawyers and clients to progressive effects. In doing this lawyers are entitled to retain their sense of autonomy in their relation with client and to exercise their own ethical judgment as to the best of course to follow. While not acting against or disregard of their wishes clients represent an opportunity for lawyers to fulfill their own agenda of civic struggle. Consequently lawyers ought to take clients and adopt strategies that are compatible with that agenda.

In a manner of speaking the lawyer as a civic campaigner insist that lawyers and clients must be “at one” and form a team with lawyers being prepared to treat the case as if it were the own and put themselves on the line.

As deeply discussed herein above, about these two principles then, it is of our remarkable observation that, the best principle to worth a name between the two is the second one that is a Lawyer as a civic campaigner rather than a hired hand. And therefore as per hypothetical facts provided lawyers like Chaumbeya should and ought to swim in the lime light of this principle (Civic Campaigner).

3.0 CONCLUSION

In concluding therefore, it should be noted that legal aid is not just a business. It is a vocation which is all absorbing and demands total dedication, striving and commitment throughout the duration of the case transaction. This requires that an advocate plans his work in such a way that he gives his best to his clients without compromising his profession. To the greater extent an advocate role is beneficial not only to individual client but also to the government and society at large. Therefore in his various function and position the lawyer constitute a vital component of the modern system of administration of justice. To cement this and also to see as justice has been done and manifestly seen to be done an advocate should maintain the position stated above that he should act as a civic campaigner so as to bring about the justice society.

BIBLIOGRAPHY

STATUTES

Tanzania Government of, The Advocate Act [CAP 341 R.E 2002] Government

                                          Printers Dar es Salaam 

Tanzania Government of, The Tanzania Evidence Act [CAP 6 R.E 2002] Government

                                          Printers Dar es Salaam.

SUBSIDIARY LEGISLATION

Rules of Professional Conduct and Etiquette of Tanganyika Law Society.

CASES

Abbually Alibhai Aziz V. Bhatia Brothers Ltd Court of Appeal of Tanzania at Dar es Salaam misc. App. No. 1 of 1999 (Unreported) Abraham v Justsun [1963] 2 All ER 401 Almasi Kalumbeta V. R[1982] T.L.R 329 Arthur Hall v Simons [2000] 3 All ER 673 Ashmore v Corpn. Of Lloyd’s [1992] 1 WLR 446 Masumbuko Lamwai V. Venance Nguha and the Attorney General Court of Appeal of Tanzania at Dar es Salaam Civil App. No. 56 of 1997 (Unreported) Pett V. Greyhound Racing Association Ltd (1969) 1 QB 125 Saif v Sydney Mitchell [1980] AC 198 Williams V. Fanshaw Porter and Hazelhurst [2002] UKHL 18

BOOKS

Black, H.C (1991), Blacks Law Dictionary, West Publishing Co. USA.

Binamungu C.S and M.C Mukoyogo (2005), Studying Law Skills: A guide for Beginners

                                                                        In Law. Mzumbe Book Project Morogoro

Hutchinson, A (1999) Legal Ethics Faculty of Law Canada

Leslie R and S, Bone (2000) Osborn’s Concise Dictionary 8th Edition Univeral Law

                                              Publishing Co. Pvt Ltd.  
                                   

Twaib, F (1997), The Legal Profession in Tanzania: The Law and Practice Bayreuth

                           African Studies

MANUAL

Mukoyogo M.C (1994), Introduciton to the theory and technique of Handling Legal

                                      Material Case Law technique and Legal Reasoning 1st Edition
                                      Open University of Tanzania.

WORKSHOP PAPER

Nsekela H.R “Advocates as Officers of the Court Ethical and Business Consideration the

                       Tanzania Experience” Paper presented on 14th-15th November 2000.

WEBSITE

www.wikipedia.com Visited on 25th November 2007

 QUESTION 15.

Rooney graduated four years ago with second class law degree from the University of Uyole. He did his internship with the Gunners Law firm in Mbeya. During that time whenever he met his old primary school mates he would tell them that he is advocate Rooney. Two years ago Rooney was admitted into the bar and his name entered in the roll of advocates. He was employed for one year in the Gunners law firm as one of the advocates but not partners in the firm. After a year he decided to leave the firm and established his office as a sole practitioner. In order to drum up his business Rooney decided to do the following ingenious and aggressive market plan.

              a) He published circulars advertising his office and they            contained words like ‘meet the best renowned lawyer in East Africa.’

              b) He visited upper class businessmen convincing them to be his clients and that his firm was not dealing with the riff-raff persons but big persons in the country.

              c) He phoned potential clients whom he worked with in his one year at the Gunners law firm and asked them to leave ‘that old and expensive law firm’ and join his ‘cheapest but first class firm’.

Gaucho, one of the newly enrolled diploma students at Mzumbe University, is amazed of such plans of Rooney. He comes to you and asks whether what Rooney is doing is the correct position of the law on legal profession in Tanzania. Please remove Gaucho’s doubts.

1.0 INTRODUCTION

In as far as the legal profession in Tanzania is concerned, legal practitioners are not absolutely free in exercise if their duties as they are bound to abide with rules of professional conduct and code of ethics breach of which will amount to profession misconduct. The legal frame work that governs professional conduct, ethics and etiquette of practice of law in Tanzania mainland is mainly contained in the following legislations, The Advocates Act [Cap 341 R. E.2002], The Tanganyika Law Society Act [Cap 307 R. E. 2002], and subsidiary legislations made there under such as The Advocates Disciplinary Rules of 1995, Rules of professional conduct and etiquette of the Tanganyika Law society just a few to mention.

      The question which we are called upon to discuss is largely based on professional conduct. Since the question prompts us to advice Gaucho, our advice therefore will be guided by the legal frame work governing the legal profession in Tanzania.

      This being a problem type question we feel impelled to raise issues which will guide us to clear Gaucho’s doubts as done here under.

2.0 ISSUES RAISED

a) According to the scenario given the first issue is whether the act of Rooney publishing the circulars advertising his office containing words like ‘Meet the best renowned lawyer in East Africa’ amounts to professional misconduct. 

Responding to the issue above, The Advocates Act and the Rules of Professional Conduct and Etiquette of The Tanganyika Law Society respectively prohibit employing any kind of methods making one’s service known to the public through any means that has been regarded as advertising

Therefore the principles apply to our scenario as the act of Rooney to advertise his office by supplying circulars is contrary to rule 4 and 5 of The rules of Professional Conduct and Etiquette of the Tanganyika Law Society which categorically prohibits advocates to make advertisement of their professional service to the public. Apart from the statutory provisions, case laws also provide authority to the same, as it was in the case of RE A SOLICITOR where it was stated that an advocate may not directly or indirectly invite business in any way that may amount to advertisement or touting.

According to the foregoing discussion it is therefore undisputable that Rooney committed professional misconduct as he contravened the rule against advertisement. This rule in its scope is wide under the law as it embraces not only self- promotion in news papers magazines and so forth as it is understood in ordinary business, but also display of leaflets and bill boards.

b) In regard to our scenario, the second issue is whether the act of Rooney visiting upper class businessmen and convincing them to be his clients by saying that his firm was not dealing with the riff – raff persons but big merchants in the country amounts to professional misconduct.

To answer this issue, the Advocates Act and the Rules of Professional Conduct and Etiquette are relevant for that matter. Section 47 of The Advocates Act categorically makes it an offence for any person who, on behalf of any advocate, or for his own account, acts as a tout. It provides that he shall be liable for such an act to a fine not exceeding one thousand shillings and to imprisonment for a term not exceeding six months. Rule 5 of the Rules of Professional Conduct and Etiquette also prohibits unfair attraction of professional business.

These provisions in principal provide for the rule against touting. Touting is not only a professional offence but also criminal one. In fact touts are regarded with such aversion among legal circles that the law empowers the Chief Justice to exclude them from the precincts of the court. This was in the file for Mr. C.K Semgalawe, office of the Registrar of the High Court of Tanzania at Dar es Salaam whereby one aspiring advocate was removed from the list of applicants for enrolment after the allegations of touting were leveled against him. He had to wait for one year before being admitted .

Rooney’s statement that his firm was not dealing with the riff- raff persons but big merchants in the country brings out an element of biasness/ discrimination contravening the Cab- rank rule. The Cab- rank rule forbids advocates from discriminating any client basing on his or her economic status. This rule was laid down by the renowned advocate in England, Thomas Erskine in the year 1972 when he was defending the human rights campaigner, Tom Paine, when he said,

             “I will forever at all hazards assert the dignity, independence and integrity of the English Bar without which impartial justice, the 

most valuable part of English Constitution can have no existence. From the moment that any advocate can be permitted to say that he will or he will not stand between the crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end”

The Cab – rank rule is actually in line with the constitutional provision against discrimination of any kind

c) In respect of the third part of the question, we find it of paramount importance to raise the third issue, whether the act of Rooney phoning potential clients whom he worked with in his one year at the Gunners Law Firm asking them to leave “that old and expensive Law Firm” and join his “cheapest but first class firm” amounts to any professional misconduct.

In the quest to address the above raised issue, the Advocates Act is of utmost help. Section 48 of the Act provides that:

               “any person who induces or attempts to induce any client or any prospective client of any advocate to cease to be the client of such advocate in order to become the client of the advocate whom such person serves as secretary, clerk or messenger or any other capacity shall be liable to a fine not exceeding one thousand shillings and to imprisonment for a term not exceeding six months”

Therefore, according to the foregoing section it is undisputed that Rooney’s act is tantamount to professional misconduct which is vividly envisaged in black and white in the Act to be an offence as to the fact that Rooney unfairly and mudslidingly induced the potential clients to join his firm which he regards as cheapest but first class. The seriousness with which the courts of law treat this kind of misconduct was clearly expressed in the celebrated Kenyan case of SHELLY BEACH HOTEL AND KENSINGTON INTERNATIONAL V KENYA REVENUE AUTHORITY . The plaintiffs claimed that counsel for the defendants had in the earlier stages of the case met them and tried to convince them that they were better placed to handle their case. Later the plaintiffs came to realize that the lawyers that had tried to lure them were on the side of the defendants. The court strongly expressed its dissatisfaction with the act when it held;

‘It is in deed a disgrace to the legal profession for any sworn advocate to attempt to lure a rival’s client to his side, or to try to discredit a rival advocate with the sinister motive of winning the advocate’s client to his side. It is misconduct of the highest order.’

3.0 CONCLUSION

On the basis of the above discussed issues, we therefore clear Gaucho’s doubt that what Rooney has done is not acceptable in as far as the legal profession in Tanzania is concerned. Hence there is equally no doubt that disciplinary action can be taken against him by the advocates committee pursuant to section 13(1) (c) of The Advocates Act [cap 341 R.E. 2002] which provides that;

‘The committee shall have jurisdiction to hear and determine any allegation of misconduct made against any advocate by any person.’

The same section under subsection (b) empowers the committee to remove the name of any advocate from the roll upon the proof of any allegation of professional misconduct.

                     BIBLIOGRAPHY 

STATUTES

Tanzania Government of, The Constitution of the United Republic of Tanzania 1977, Government printers, Dar-es-salaam.

Tanzania Government of, The Advocates Act [CAP 341 R.E. 2002] Government printers, Dar-es-salaam.

Tanzania Government of, The Tanganyika Law Society Act [CAP 307 R.E. 2002], Government printers, Dar-es-salaam.

Tanzania Government of, The Advocates Disciplinary Rules of 1995, Government printers, Dar-es-salaam.

CASES

RE A SOLICITOR [1945] KB 368

SHELLY BEACH HOTEL AND KENSINGTON INTERNATIONAL V KENYA REVENUE AUTHORITY. High court of Kenya at Mombasa, civil appeal no. 306 of 2001/ [2006] eKLR

BOOKS

Fauz T, (1997) The Legal Profession in Tanzania: The Law and Practice, Bayreuth African studies, Breitinger.

[edit] scenerio two

Kamnyonge District Council is planning to make by- laws to carter for livestock activities in Mganyizi District. The district director has approached you and requested to you to draft such by laws for the council. He has promised you a very attractive package if the job will be done satisfactory. Please draft such by-laws taking into consideration all the rules in drafting by laws

1.0 Introduction:

According to the traditional theory, the function of the executive is to administer the law enacted by the legislature, and in the ideal state, the legislative power must be exercised exclusively by the legislators who are directly responsible to the electorate. But as a matter of fact, apart from pure administrative functions the executive performs many legislative and judicial functions. In England, theoretically it is only parliament which can make laws. Looking to the legislative process, however, it is really the Government which makes the laws subject to parliamentary control

According to Wharton’s law Lexicon , the term By-laws means the laws, regulations, and constitutions of corporations, for the government of their members.

Also By-laws may be defined as orders, ordinances, regulations, rules and statutes made by any authority subordinate to the legislature. The subordinate authority must, of course, have power expressly or impliedly conferred on it to legislate on the matters to which the by law relates.

In Kruse .V. Johnson , the term bye-law was defined to mean an ordinance affecting the public imposed by some authority clothed with statutory powers ordering something to be done or not to be done and accomplished by some sanction or penalty for its no- observance… it has the force of law within the sphere of its legitimate operation. By-Laws are sometime referred to as delegated or subordinate legislation.

There are many reasons which are responsible for the rapid growth of delegated legislation in every modern democratic state as it was rightly observed by the committee on ministers’ power.

The truth is that if parliament were not willing to delegate law-making power, parliament would be unable to pass the kind and quality of legislation which modern public opinion requires.

Thus; By-laws are the result of the pressure upon parliamentary time – As a result of expanding horizons of state activity, the bulk of legislation is so great that it is not possible for legislature to devote sufficient time to discuss all the matters in detail. Therefore legislature formulates the general policy-the skeleton and empowers the executive to fill the details-thus giving flesh and blood to skeleton.

Another reason is technicality –the subject matter on which legislation is required is so technical in nature that the legislator, being himself common man, can not be expected to appreciate and legislate the same, and the assistance of experts may be required.

Flexibility-it is impossible for legislature to foresee all the contingencies, and some provisions are required to be made for these unforeseen situations demanding exigent action.

Also, in times of emergency, quick action is required to be taken. The legislative process is not equipped to provide for urgent solution to meet the situation. Delegated legislation is the only convenient remedy.

While tracing rules, bye-laws, regulations etc, the parent Act or enabling statute may require the delegate to observe a prescribed procedure, such as holding of consultations with particular bodies or interests because consultation is an important measure to check and control the exercise of legislative power by executive through which affected interests may participate in the rule –making process.

Another procedure to adhere before drafting by-laws is publication- it is a fundamental principle of law that ignorance of law is not excuse (ignorantia juris non excusant) but there is also equally established principle of law that the public must have access to the law and they should be given opportunity to know the law.

Also, the rules and by- laws drafted need to lodged before the parliament. This procedure serves two purpose firstly it informs the legislature as to what rules have been made by the executive authorities in exercise of delegated legislative power and secondly it provides an opportunity to the legislators to question or challenge the rules already made or proposed to be made

Failure to comply with the above procedures may invalidate rules so framed but at the same time it is also to be noted that failure to observe the procedural requirements does not necessarily and always invalidate the rules.

                       GOVERNMENT NOTICE NO………….PUBLISHED ON……….

THE LOCAL GOVERNMENT (DISTRICT AUTHORITIES) ACT [CAP 287 R.E. 2002]

BY-LAWS

Made under section 155

MGANYIZI DISTRICT COUNCIL (LIVESTOCK ACTIVITIES CONTROL)

Citation 1.These by- laws may be cited as The Mganyizi District Council,

and Title           (livestock   activities control) By-law, 2007.

Interpretation 2.In these By-laws:

                    “Authorized officer” means any Health officer, District or any other officer  
                      of the council authorized by the District Director in writing; 

“Council means the Mganyizi District council” District of Mganyizi” area means all the area lying within the boundaries

                      “Director” means the person for the time being holding the position acting 
                       in the capacity of the Municipal Director and includes any other officer 
                       of the council duly authorized by him in writing;

                     ‘livestock’ includes cattle, donkey, goat, pig and sheep.       

                      “Medical officer of Health’’ means the Medical officer of health of the      
                      council;        

                     “Permit” means a permit issued under By-laws.

                     “Pound” means the animal pound maintained by the council;
                   
                     “proper officer” means all the area lying within the boundaries of Mganyizi 
                  
                    

livestock 3. No person shall keep livestock within the District area unless he not to be kept Shall have first obtained from the Director a permit without permit

building etc 4. Subject to any permit issued under these By-laws allowing livestock to be approved to be removed, all livestock within the District area shall be kept in a

                      building, structure or enclosure approved by and maintained to the 
                      satisfaction of the council.

No animals in 5. No livestock shall be kept in any building or part of building that is used dwellings for human habitation.

Removal of 6.The Medical officer of health or a Health officer may require any manure person permitted to keep livestock in the District area to make such

                     arrangements for the removal of manure, liquid filth and refuse as he shall         
                     consider necessary. 

Right 7.The Medical officer of Health or any authorized officer may at Officers to any reasonable time enter any premises in which livestock are kept Inspect or in which he has good reason to believe that livestock are being kept Premises for the purpose of inspecting such premises and any person obstructing such

                     officer or hindering him or giving him false information shall be      
                     guilty of an offence 
  
                                          .

livestock 8.No livestock shall be removed through any part of the District unless the not to be owner is in possession of permit issued by the Director such permit shall moved specify the number and kinds of livestock to be moved, the exact route to be without followed and the day or days on which the movement is to take place. permit

                     Provided that this By-law shall apply in the case of any livestock being  
                     removed through the District area by a vehicle to an abattoir or to or from  
                     any place where livestock are permitted to be kept or to any livestock being  
                     removed under a general movement permit issued under By-law 9.
 
                     Provided further that no permit shall be necessary for the movement of  
                     livestock in a motor vehicle licensed for that activity.

General 9.The Director may issue to any person licensed to keep Permit to livestock under these by- laws who habitually moves such livestock from Move livestock the place where they are kept to a grazing ground or to the abattoir or for Grazing general permit to move livestock.

Council 10.The council shall not be liable for any damage caused to animals not liable being moved under a permit issued under these By-laws. For damage

Validity 11.Permits issued under these by law shall be valid for a period of two years permits from the date of issue. The fees payable for such permit shall not exceed

 fees                those set out in schedule A here to.

Remission 12.Notwithstanding the provisions of these By- laws the council may,

of                   with the prior approval of the proper officer, remit the whole or any

Fees part of the fee payable for any kind of a permit

Appeal 13.In any case where the Director refuses to issue a permit the applicant may Against request that his application be put before the council and the Director shall refusal of there upon have the application put down for consideration at the next Permit meeting of the relevant committee of the council

Fines for 14.In case livestocks are found either singly or in number moving or scattering livestock unnecessarily in roads streets activities one prohibited under by-law 8 council without will detain the livestock above mentioned and the owner will be changed for permit livestock as indicated in the schedule B hereto.

Deadline 15.The livestock will be kept for 7 days commencing with the day of detention for if the owner of livestock in the period fails to pay fines and restore his detaining livestock in the period provided the auction for livestock will follow livestock and the council, will cut off the amount for the fine and of the livestock.

Impounding 16.Any police officer or any authorized officer may take or cause to

 of                   be taken to the pound:

livestock (1) any livestock which in record seen to have not been taken to the pound

                    (2) any livestock which reasonably seen to have not been taken to the  
                           Pound.
                    (3) any livestock which is reasonably affected by the pests or likely to be  
                          attacked by pests.

Offence 17 Any person in possession of livestock, who shall go contrary to these

                    rules provided under this by-law will have committed an offence and will be 
                    liable to pay a fine of 100,000 Tsh.(one hundred thousand shillings) or   
                    imprisonment of not more than six months or both consecutively

SCHEDULE A

PERMIT FEES:

(Under section 11)

      Livestock                                     Fees       
     1 cattle                                          10000
     2. Goats                                           7000
     3. Sheep                                          7000
     4. Pig                                               5000
     5. Donkey                                        5000

SCHEDULE B

FINES FOR MOVING LIVESTOCK WITHOUT PERMIT

   (Under section 14)
   Livestock                               fine for each.
   1 cattle                                            5000
   2 Goats                                            3000
   3 Sheep                                           3000
   4 Pigs                                              2000
   5 Donkey                                         2000

The common seal of Mganyizi district Council is hereunto affixed in pursuance of the resolution passed at a meeting of the said council dully convened and held on the 20th Nov.,Year 2007 and the same was affixed in the presence of-

                                                                                                     …………………..........
                                                                                                      John Malay
                                                                                                      Secretary,
                                                                                            Mganyizi District council

                                                                                                          ….................................
                                                                                                           Mushobozi, Julius
                                                                                                           Director,
                                                                                            District Executive Council

I APPROVE

                                                                                                            ……………………
                                                                                                                     Mizengo Pinda                         
                                                                                   Minister for Regional Administration  
                                                                                                  and Local Governments.

                                     
                                                                                                                      
                                                   

. Dodoma Date ……………………..

BIBLIOGRAPHY

STATUTES

Tanzania Government of, The Deportation Act, [Cap. 380 R.E. 2002], Government, printers,Dar es Salaam. .

Tanzania government of, The Government Proceedings Act,[ Cap 5 R.E. 2002],Government, Printers,Dar es salaam.

LIST OF CASES.

KRUSE .V.JOHNSON

BOOKS

Binamungu, C.S 8C.M.C. Mukoyogo, Studying law skills, A Guide for Beginners in law, Mzumbe Book Project, Mzumbe, 2005.

[edit] scenerio 3

Sinahela is a businessman whose business makes him travel everyday between two small towns of Uyole and Mbalizi. One day when traveling from Mbalizi to Uyole using his bicycle, Sinahela was knocked down by a long vehicle famous knock as “fuso” which was driven by one Mabangi. The driver, Mabangi, ran away but he was caught by the police who opened a criminal charge against him and he was found guilty of negligent driving and he was sentenced two years imprisonment. Sinahela who lost his leg in that accident has consulted advocate Kirevi to institute civil proceedings against Mabangi and his employer Josh & Sons Co. Ltd claiming 550,000,000/= Tshs as damages. The company has approached you to defend it in that case and it has asked you as to whether it can join Sameer & Sons Insurance Company as a Third party in the proceedings since it is in the company which insured the vehicle that was involved in the above accident. Please draft appropriate documents for that purpose. OUTLINE

1.0 INTRODUCTION

2.0 FIRST DOCUMENT – CHAMBER SUMMONS

3.0 SECOND DOCUMENT - AFFIDAVIT

4.0 THIRD DOCUMENT - THIRD PARTY NOTICE

5.0 REFERENCE

1.0 INTRODUCTION

In considering the facts provided in the question we are of the considered opinion that Josh and Sons Co. Ltd can join Sameer & Sons Insurance Company as a third party in the proceedings.

We presume that according to the facts given, leave to file a third party notice has been granted by the court as per Order I rule 14(1) of Civil Procedure Code [Cap 33 R.E 2002]. Therefore, the relevant documents which we have identified are:

(i). Chamber Summons (ii). An affidavit to accompany the Chamber Summons (iii). A Third Party Notice to join Sameer & Sons Insurance Co. Ltd

2.0 First document

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (IN THE MBEYA DISTRICT REGISTRY AT MBEYA) CIVIL CASE NO 9 OF 2007

SINAHELA ……………………………………………..……… PLAINTIFF

VERSUS

1. MABANGI ……………………………………………………….1st DEFENDANT

2. JOSH & SONS Co LTD ………………………………………2nd DEFENDANT

CHAMBER SUMMONS {EXPARTE}

(Made under Order 1 Rule 14 (1) of the Civil Procedure Code (CAP.33 R.E 2002) and all other enabling provisions of the laws)

LET ALL PARTIES concerned to appear before the Honourable Judge in chambers room number 3 at the High Court of Tanzania at Mbeya, Mahakama Avenue Mbeya on 17th day of December 2007 at 9:00 am in the fore noon thereafter when the Counsel for the applicant can be heard upon the application for the following ORDERS:

1. THAT this Honourable Court be pleased to grant leave to the APPLICANT to issue a Third Party Notice.

2. Costs of this application be provided for

3. Any other orders as this Honourable Court shall deem just

This application is made on the ground and reasons set forth in the affidavit of Josh & Sons Co Ltd at Mbeya 15th Day of November 2007, which is annexed hereto and for further grounds and reasons to be adduced on hearing.

GIVEN under my hand and seal of the Court 16th Day of November 2007

……………………………………………………………….. REGISTRAR

Presented for filling this 16th Day of November 2007

…………………………………………………………………

      REGISTRY OFFICER

COPY TO BE SERVED UPON: 1. KIREVI AND ADVOCATES, P.O BOX 29, MBEYA.

2. MABANGI, P.O BOX 50 MBEYA.

DRAWN AND FILLED BY: XXX & COMPANY ADVOCATES, MBALIZI STREET, P.O BOX 420, MBEYA.

3.0 Second document:

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (IN THE MBEYA DISTRICT REGISTRY AT MBEYA) CIVIL CASE NO 9 OF 2007

SINAHELA ……………..………...………………………… PLAINTIFF

VERSUS

3. MABANGI ………………………………………………….1st DEFENDANT

4. JOSH & SONS Co LTD ……………………………………2nd DEFENDANT

AFFIDAVIT

(Made under Order 1 Rule 14 (2) of the Civil Procedure Code (CAP.33 R.E 2002) and all other enabling provisions of the laws)

I, Josh and Sons Co Ltd., operating business at Mbalizi Street in Mbeya District do hereby making an oath: and STATE as follows;

1. THAT, I am a defendant in the above main suit and therefore conversant with the fact which I am about to depose in the following paragraphs;

2. THAT, I have been served with a copy of a plaint by the plaintiff who is claiming 550,000,000 Tshs. arising out of the accident caused by the 1st defendant.

3. THAT, I am insured with policy number 255 issued by Sameer Insurance Company, a copy of the policy is annexed hereto as annexture “A” and I crave for leave of the Court to refer to it as part of this affidavit.

4. FURTHER that by virtue of the said policy, I am entitled to indemnity from the Sameer and Sons Insurance Co. in respect of any amount I shall be found liable to pay to the plaintiff.

5. THAT, Sameer Insurance Company has disclaimed liability on the said policy. The

   copy of the letter to that respect is hereto annexed as annexture “B” and I crave   
   for the leave of the court to refer it as a part of this affidavit.

6. THAT, in the premise of what is stated hereinabove it is just and proper that the

   order sought in the Chamber Summons be granted so that the liability of Sameer    
   & Sons Insurance Company be determined together with the liability of the   
   defendant to the plaintiff.

7. THAT, all which is stated in paragraph 1-6 is true to the best of my knowledge.

         Dated this 15th  Day of November 2007

____________________ DEPONENT

SWORN AT MBEYA by the said Josh & Sons Company Ltd who is personally known to me of has been identified to me by Sinahela who is personally known to me this 15th Day of November 2007 in my presence. _________________________ COMMISSIONER FOR OATH

Presented for filling this 15th Day of November 2007

______________________ REGISTRY OFFICER COPY TO BE SERVED UPON: 1. KIREVI AND ADVOCATES, P.O BOX 60 MBEYA.

2. SAMEER AND SONS INSURANCE COMPANY, P.O BOX 300 MBEYA.

DRAWN BY: XXX & COMPANY ADVOCATES, MBALIZI STREET,

   P.O BOX 420, 

MBEYA.

4.0 Third document:

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (IN THE MBEYA DISTRICT REGISTRY AT MBEYA) CIVIL CASE NO. 9 OF 2007

SINAHELA …………..…………………….……………………… PLAINTIFF

VERSUS

5. MABANGI ………………………………….…………………….1st DEFENDANT

6. JOSH & SONS Co LTD ……………………….………………2nd DEFENDANT

THIRD PARTY NOTICE

Issued pursuant to the Order of the Court under Order I Rule 15 of the Civil Procedure Code (CAP 33 R.E 2002)

To: SAMEER & SONS INSURANCE COMPANY P.O BOX 300 MBEYA.

1. TAKE NOTICE THAT this action has been brought by plaintiff against the defendant. The plaintiff claims from the defendant 550,000,000/= Tshs being damages arising out of the accident as it appears in the plaint annexed herewith.

The claim arises from the accident by the vehicle which was being driven by the first defendant owned by the second defendant. The plaintiff alleges that, the first defendant was negligent in driving. The plaintiff while traveling using his bicycle from Mbalizi to Uyole was knocked by the first defendant who was driving a long vehicle known as “Fuso”.

2. THE NATURE of the defendants claims against you is a as follows; The defendant claims against you to be indemnified by you in all amount which the defendant will be found liable to pay the plaintiff on the basis of indemnity arising out of the Insurance Policy No 255 issued by you in the business of the defendant.

3. AND TAKE NOTICE that if you wish to dispute plaintiff’s claims against the defendant or that of the defendant’s against you, you must file a written statement of defence within 21 days after the service of this notice, the day of service also inclusive, otherwise you shall be taken to have admitted the plaintiff’s claims against the defendant and that of the defendant against you and you will be bound by any judgment of decision given on that suit and in accordance with Order I Rule 19 of the Civil Procedure Code (Cap 33 R.E 2002).

Dated at Mbeya this 1st Day of December 2007

                                                                           XXX                    

ADVOCATE OF THE DEFENDANT

    Presented for filling this 5th Day of December 2007

                                                                                        ……………………………………..                                        
                                                                                            REGISTRY OFFICER

COPY TO BE SERVED UPON 1. KIREVI & ADVOCATES P.O BOX 29 MBEYA.

2. SAMEER& INSURANCE COMPANY P.O BOX 300, MBEYA.

DRAWN AND FILLED BY: XXX & COMPANY ADVOCATES MBALIZI STREET P.O BOX 213 MBEYA.

REFERENCE

STATUTE

Tanzania Government of, The Civil Procedure Code [Cap 33 R.E 2002] Government printers, Dar es Salaam

[edit] tanzania legal instruments

OUTLINE

1.0 INTRODUCTION

• The concept of Legal documents

2.0 MAIN BODY (a) Sales Agreement

(b) Transfer deed

(c) Will • Affidavit

3.0 CONCLUSION

4.0 BIBLIOGRAPHY

1.0 INTRODUCTION

Legal documents are important instruments in the legal skills and the judiciary at large. The question at hand demands us to draft appropriate legal documents pertaining to sale agreements, transfer deed, wills and accompanying documents.

2.0 MAIN BODY

(A) Sales Agreement A sale agreement is a legal document drafted in order to transfer ownership of property from one person to another. The property concerned may be movable or immovable. Any standard form Sale Agreement should contain inter alia the following elements:

(i) The name of the seller (vendor). (ii) The name of the purchaser. (iii) The property offered for sale. (iv) A proper statement describing the location of the property, and mode of its delivery. (v) A statement verifying that the vendor is willing to sell the property and the buyer is willing to buy the said property. (vi) The agreed price. (vii) Payment terms ie. In full or by installment, by cheque or by cash. (viii) The law applicable eg. Tanzanian law, etc. (ix) Obligations of each of the parties. (x) A statement stating what is going to be done in case of any dispute. (xi) Signature of the parties concerned. (xii) An attestation clause.

SALE AGREEMENT

BETWEEN

JONAS KAKOLAKI KASHOZI

AND

IDRAN MRINA SHAUZI

SALE AGREEMENT

THIS AGREEMENT is made this 29th day of November 2007

BETWEEN

JONAS KAKOLAKI KASHOZI of P.O Box 2728, Mbeya (hereinafter referred to as the VENDOR) of the one part,

AND

IDRAN MRINA SHAUZI of P.O Box 300, Mbeya (hereinafter referred to as the PURCHASER) of the other part.

WHEREAS the VENDOR is the lawful owner of the Toyota Saloon Car, TZR 23564

AND WHEREAS the VENDOR is desirous of selling and the PURCHASER is desirous of buying the Toyota Saloon Car, TZR 23564,

NOW THIS AGREEMENT WITNESSES as follows: 1. That in consideration of the total sum of T.Shs 12,000,000 (say, twelve million shillings only) the VENDOR sells and the PURCHASER buys the Toyota Saloon Car, TZR 23564. 2. That by executing this Agreement the VENDOR acknowledges to have received the purchase price in full from the PURCHASER. 3. That upon execution of this Agreement the VENDOR shall give to the PURCHASER all necessary documents evidencing ownership of the Toyota Saloon Car, TZR 23564. 4. That the VENDOR shall assist the PURCHASER to have the Toyota Saloon Car, TZR 23564 formally transferred to the latter. 5. That in the event the necessary consent is withheld and or registration of the property in favor of the PURCHASER is not obtained the VENDOR shall refund the purchase price that has been paid.

IN WITNESS WHEREOF the parties hereto have executed these presents on the day and date first above written.

SIGNED and DELIVERED by the said JONAS KAKOLAKI KASHOZI ……………………. who is personally known to me in my VENDOR presence this 29th day of November, 2007.

Name: ABC Advocates

Signature: …………………

Postal Address: 654, Mbeya

                        Tanzania

Qualification: Advocate

SIGNED and DELIVERED by the said JONAS KAKOLAKI KASHOZI who has been identified to me by IDRAN MRINA SHAUZI ………………….. the latter being personally known to PURCHASER me in my presence this 29th day of November, 2007.

Name: ABC Advocates

Signature: ……………………………

Postal Address: 654, Mbeya

                       Tanzania

Qualification: Advocate

( B) Transfer deed This s a legal document which transfers title in real or landed property from one person to another, it contains provisions showing that one party has transferred his property to another party for a consideration or for love and affection. The following are the contents of the transfer deed:

(i) The title (ii) The transfer deed title number (iii) Names and address of the parties concerned (iv) The property concerned (v) The agreed price (vi) Witnesses (vii) Signature of both parties (viii) Attestation clause.

THE LAND REGISTRATION ACT, (CAP 334)

TRANSFER OF RIGHT OF OCUPANCY

TITLE NO…………

IN CONSIDERATION of love and affection, I, JONAS KAKOLAKI KASHOZI of P.O Box 2728, Mbeya (hereinafter referred to as the transferor) hereby transfer to CHAUREMBO PIUS CHOMBO of P.O Box 100, Mbeya the right of occupancy registered under the above reference.

SIGNED and DELIVERED by JONAS KAKOLAKI KASHOZI Who has been identified to me by .………………………

CHAUREMBO PIUS CHOMBO                                             TRANSFEROR                                       

the latter being personally

known to me in my presence this

29th day of November 2007

Name: ABC Advocates

Signature:

Postal Address: P.O Box 654

Mbeya,

Tanzania.

Qualification: Advocate

SIGNED AND DELIVERED by JONAS KAKOLAKI KASHOZI who

is personally  known to me by      ………………………….
CHAUREMBO PIUS CHOMBO                                                  TRANSFEREE

in my presence this 29th day of November 2007

Name: ABC Advocates

Signature:…………………

Postal Address:

P.O. Box 654,
Mbeya,

Tanzania.

Qualification: Advocate

( C ) WILL

A will is a legal document or disposition or declaration by the person making it which provides for the distribution or administration of the maker’s property after his death; the maker is called a testator who should be an adult (must have attained the age of majority and of a sound mind). Connected to a will is a codicil which is a legal document referring to a will as an annexture to qualify what has been stated in a will, it can add, remove or amend a will.

The following are the basic contents of a will; (i) Heading ( e.g. This is the last will and testament of Ally Omari) (ii) An article stating the revocation of the wills made in the past if any (iii) Article stating the names of the respective relatives (iv) Article bequeathing (directing) oneself (v) The name of a person who will take the property if the donee will not survive (vi) Appointment of an administrator (vii) A name of the person who will hold the residue of the estate (viii) The law applicable (ix) Testamentary Trust i.e. a person to take care of a property of a minor until he reaches the age of majority (x) The statement to the effect that whoever is not mentioned in the will shall not have any right to the estate (xi) The signature of the testator and the witnesses

As a general rule, a will is accompanied by an Affidavit which a sworn written statement made by a deponent stating the facts for the matters which are to his own personal knowledge.

WILL

THIS IS THE LAST WILL AND TESTAMENT OF ME JONAS

                     KAKOLAKI KASHOZI OF P.O. BOX 2728, MBEYA. 

I HEREBY revoke all former wills, codicils and other testamentary dispositions made by me in the past.

1. I HEREBY APPOINT JOHN MUNKABI SETERA of P.O Box 604, Mbeya, Tanzania to be the Sole Executor of this my WILL.

2. I HEREBY DEVICE my interest in that piece of land situated in the District of Mbozi in Mbeya containing 17 sq km known as Plot No. MB/0/345 Area Mbozi B and registered under Certificate of Title No. 002/MB/04 and the other two pieces of land in Dodoma; one in the district of Dodoma Urban containing 5 sq Km known as Plot No. D0/0/1341 Area Area C and registered under certificate of Title NO. 015/DO/1250 and the other in the district of Kongwa containing 10 sq Km known as Plot No. D0/0/1353 Area Mwembeni to my three sons namely; ARISTEDES RWIZA KASHOZI, VALENTINE KATO KASHOZI and VALERIAN ISHENGOMA KASHOZI jointly as joint tenants in undivided equal shares;

3. I HEREBY BEQUEATH my interest in my two daladala vehicles with the registration no. T451 AMN and T5461 BWN to my two wives; MARIA JONAS KASHOZI and DIANA JONAS KASHOZI;

4. I HEREBY BEQUEATH my interest in the following bank accounts to my two

     wives MARIA JONAS KASHOZI and DIANA JONAS KASHOZI;

(a) CRDB Bank Branch: AZIKIWE

(i) Savings Account No.

      01J1205445660,
      worth T.shs 10 Million

              (b)  National Bank of Commerce               Branch: LUMUMBA         

(i) Current Account No.

    02261035208,
    Worth T.shs 8 Million                         

(ii) Savings Account No.

     01345678902
     Worth 8 Million Shillings

(iii) Savings Account No.

                             01987654321
                              Worth 8 Million Shillings

5. I DIRECT that other properties not mentioned in the will should all be left to my young brother JAMES KIHORO KASHOZI

6. I FURTHER DIRECT that if my said administrator shall predecease me, ANDREW JOHN MUJUNI shall take the said administration by substitution the administration of my estate as EXECUTOR would have done if he had survived me.

7. I AUTHORISE my Executor to pay all debts and funeral expenses in connection

     with obtaining the PROBATE of this my WILL.

IN WITNESS WHEREOF I have set my hand this 29th Day of November, 2007.

SIGNED by the above named JONAS KAKOLAKI KASHOZI as his LAST WILL in the presence of us both present at the same time who at his request in his presence and in the presence of each other have hereunto subscribed our names as witnesses.

Signature …………………………………

Postal Address: Joseph Mwakibolwa ,

                         P.O. Box 200, 
                         Mbeya,
                         Tanzania.   

Qualifications: Pastor

Signature ……………………………………

Postal Address: John Mwakibeta,

                         P.O. Box 345,
                         Mbeya,
                         Tanzania.

Qualification: Peasant

Signature ……………………………………

Postal Address: Anna Mwampamba,

                         P.O. Box 45,
                         Mbeya,
                         Tanzania.

Qualifications: Doctor

DRAWN by: ABC ADVOCATES P.O Box 654 Mbeya Tanzania

                                      AFFIDAVIT

I, JONAS KAKOLAKI KASHOZI, Adult, Christian and Resident of Mbeya do hereby SOLEMNLY SWEAR and STATE as follows:

1. That I JONAS KAKOLAKI KASHOZI solemnly swear that the following facts are true to the best of my knowledge

I make this declaration conscientiously believing the same to be true and in accordance with the provisions of the OATHS (Judicial Proceedings) and Statutory Declarations Act, 1966.

AFFIRMED at Mbeya by the said JONAS KAKOLAKI KASHOZI ………………… Who is personally known to me the latter DEPONENT Being personally known to me in my Presence this 29th day of November, 2007.

Signature:…………………………

P.O Box: P.O. Box 2728,

               Mbeya,
               Tanzania.

Qualification:

3.0 CONCLUSION

The above drafted legal documents are very necessary in sale agreements, transfer of property and desired wills. Failure to abide to the above legal drafting skills may render the transaction inappropriate hence inapplicable.

4.0 BIBLIOGRAPHY

STATUTES

Tanzania Government of, The Land Act (CAP. 113 R.E. 2002), Government Printers

                                         Dar es Salaam.

Tanzania Government of, The Sales of Goods Act (CAP 214 R.E. 2002), Government

                                         Printers Dar es Salaam.

Tanzania Government of, The Land Registration Act (CAP. 334 R.E. 2002),

                                          Government Printers Dar es Salaam

BOOKS

Rylance P, (1994), Legal Practice Handbook: Legal Writing and Drafting Blackstone

                              Press Ltd, London

Twalib F, (1997), Legal Profession in Tanzania: The Law and Practice, Bayrenth

                            African Studies, Bayreuth.

[edit] scenerio

QUESTION 19 Kalimanzira is a young practicing advocate. It was very unfortunate that when he was pursuing his bachelor in Laws degree at Mitimikavu University he was uninterested to study the subject of Legal Skills. He failed two times that subject and came to hate it so much. Two months ago he was successfully admitted into the Roll of advocates. He has just realized how important is the knowledge of Legal skills subject in the start of his practicing profession. He knows that you are a fresh graduate from Mzumbe University who passed very well in Legal Skills subject. He comes to you and ask for help in the following areas;

OUTLINE

1.O INTRODUCTION

1.1

2.0 MAIN BODY

2.1 Major Priorities for establishment of the Law Office

2.2 How to deal with clients

2.3 Pre-trial Preparation 2.3.1 Pre-trial in Civil cases 2.3.2 Pre-trial in Criminal Cases

3.0 CONCLUSION

4.0 BIBLIOGRAPHY

1.0 INTRODUCTION A lawyer is any person who is trained and qualified to advice people about the law and represents them in the court of law and to write legal documents. Meanwhile, a lawyer is a also very crucial person in a society as he plays a number of roles including providing of legal advice, drafting legal documents, representing people before the courts of law, assisting the court to reach a correct and just decision and so on.

A legal profession is an occupation, calling or vocation of those people who have attained advanced specialized education and training in the field of law and are qualified and licensed to practice law.

2.0 MAIN BODY 2.1 A) He wants to establish a law firm and operate as a sole practioner but he knows nothing about the major priorities of establishment of such an office.

A sole practitioner is a person (in a form of business association) trading on his own account or where a person deals with a business on his own or using his own name or business name.

In conducting any other type of business including a law firm, it requires a hard-working and tolerant heart and one should be ready for challenges, setbacks and risks.

Since Mr. Kalumanzira already decided that he wants to practice as a sole practitioner which is a bit difficult to deal with compared to a situation whereby one decides to join a partnership or seeking employment in a law firm, then he will have to and put into consideration the following;

Finding a conducive area for establishing an office; He will have first to take his time to find a good and conducive area of establishing his office which should meet at least the medium standard of being called a law office .

Permanent address; It is necessary for that office to have a permanent address which helps his client to reach him. This will also, help the court to get hold of him easily especially during the service of various Court Chamber summons.

Registering a Business; Mr.Kalumanzira is advised to register his law firm to the Business Registration and Licensing Agency (BRELA) as per section 13 of Business Licensing Act . Also, as per section 5(3) of the same Act which prohibit carrying on business without a license.

Consulting Revenue Authority; After establishing an office address, the next step will be to consult Tanzania revenue Authority (TRA), as soon as possible in order to acquire a business license which will make his office legally recognized. This is according to Income Tax Act and Tanzania Revenue Authority Act , which the Former in Section 3(2) that income upon which tax is chargeable is income in respect of gains or profit from any business or services rendered.

Rule Against Advertising; According to rule 4 of the Rules of Professional Conduct and Etiquette , Mr. Kalumanzira is not allowed to advertise his law firm as other types of business. Hence, he is adviced not to do so.

Buying of Office Furniture; Then Mr. Kalumanzira should start buying office furniture and arrange them in good order in his office.

Thereafter, he can start making arrangement of in storing water and electricity since they are important in any office.

Employing staffs; When advocate Kalumanzira is sure that his office is equipped with all necessary requirements mentioned above, then he can start employing staffs such as the office secretary and accountant.

Legal Documents; For his office to be recognized as a law office, he will have to contain some legal documents. Thus, we will advice Mr. Kalumanzira to buy legal documents such as a sets of Law reports from various jurisdictions, volumes of Principal and subsidiary legislation, books of prominent authors, famous journalist together with newsletters, police documents, copies of unreported case as well as other necessary documents.

Lastly, he should make sure that his office is equipped with facilities which will enable him to access information worldwide and help him in communication such as telephones and computers which will be connected with internet service.

Therefore, the above things are the most important which we will advice Mr. Kalumanzira to take into consideration.

2.2 B) He knows that in his home town there are a lot of clients seeking for an area to get legal service but he is wondering how he is going to deal with such clients in his office.

As fresh graduates from Mzumbe University who passed very well in legal skills subject, we will assist Mr. Kalamanzira to deal with the clients in his office as follows;

He should employ a secretary in his office who will be the first person that client will meet whereby he will state in brief what matter has brought him to that particular office then the secretary will ask him to pay consultation fee if he wants to see the Advocate.

While the client is in his advocate’s office, Mr Kalumanzira has to deal with him as follows.

Firstly, Mr. Kalumanzira should offer the client a seat and shall let him introduce himself and why he has visited his office then he will allow the client to narrate his problems. While he will be recording them.

Secondly, Mr. Kalimanzira has to be patient when taking instructions from the client and allow to narrate the story any how he feels while he keeps taking note of everything narrated and should not become angry by anything said by the client or show sympathy on anything that may threaten the client in course of narrating his story, and he should also make sure that he follows his client’s feelings in the course of narration.

Thirdly, in order for the advocate Kalimanzira to satisfy himself that the fact stated are actually what the client meant, we would advice him to go through what he was recording. If possible restate all facts in order to ensure that the client concurs to what he was recording. This will allow him to make corrections in any area which he did not state properly.

Fourthly, Mr. Kalumanzira has to make efforts to hear the other side of the story by allowing his clients to give a story on what the other side says about the same problem. This should go together with questions that Kalimanzira will ask the client politely to test same of the facts narrated to him in order to know other facts which seem to be hidden by his clients. The client should not be forced to give answers to some questions which he might not be interested to answer. However, the advocate should warn his clients on the danger of hiding any relevant information.

Fifth, after having recorded the fact Advocate Kalumanzira should write opinion and give it to his client and on writing this opinion the rule that it is a simple answer then give it right away should apply but he should always be sure of it otherwise, he should ask for time to conduct more research. While encouraging his client that he will try to do his best to help him to solve the problem at hand. Also, the advocate should not show his weakness to the client in case the problem is not of his area of specialization.

Sixth, Mr Kalumanzira should make efforts to understand his client’s character or disposition from the first time he or she enters in his office should study his or her attitude in one way or another and must know the psychology of his client.

Seventh, while dealing with the client’s case, Mr. Kalumanzira has to forget all his lousiness and concentrate on the case at hand, this will help to strengthen the confidence which the client has on his advocate.

Then, Mr. Kalumanzira is advised to charge the client whereby an agreement with the client on a certain fee must be put in writing and signed by the advocate and the client. This should be done according to Advocate’s Remuneration and Taxation of Costs Rules (GN No 515) . Normally, the agreement lies on 50% on the agreed fees to be paid at the start of the case and 50% upon completion of the case.

2.3 C) PRE TRIAL As a practicing lawyer, one must be acquainted with all procedures of litigation before the court of law. Among those procedure is pre-trial.

According to Black’s Law Dictionary, pre-trial means “…setting out the claims and defenses to be tried, the stipulations of the parties and the cases procedural rules as agreed by the parties or mandated by the court…”. This briefly means a preparation basing on investigation to decide whether a case should be recommended for forwarding to a general court.

So far, an advocate must be aware of the pre-trial procedures in both civil litigation as well as criminal cases as follows;

2.3.1 PRE TRIAL IN CIVIL CASES

Under this procedure which sometimes refers to as ‘Conference’, judge and the parties or counsel for the parties meet in chamber before the actual trial begin to survey the areas of possible agreement. Judges use pre-trial conference with lawyers for many reasons. One type of conference gaining popularity is the status conference (sometimes called the early conference). This conference held after all initial pleading have been filed, helps the judge manage the case. Judge use to it to establish a time frame for concluding all pre-trial activities and may set a tentative trial date at this time.

In some jurisdiction, certain kinds of disputes - such as disagreement over child custody must be referred to a third party that will try to facilitate a settlement. The mostly ways used here engaged is the ADR (Alternative Dispute Settlement) system, which includes Mediation, Reconciliation, Arbitration and Negotiation...

2.3.2 PRE TRIAL IN CRIMINAL CASES

Pre-trial procedures in criminal cases follow the general pattern of civil cases but with important variations. For one thing, the process is apt to be very different depending on the severity of the crime. In general the more important the offence, the more elaborate the process.

Generally being the case, judges use pre-trial conferences to encourage setting cases. At the conference, the judge and the lawyers can review the evidence and clarify the issue in the dispute. If the case has not been settled, many court set a time for an issue conference. The lawyers usually appear at this hearing before a judge without their client and try to agree on undisputed facts or point of law. Such agreements are called Stipulations.

The issue conference can shorten the actual trial time by determining points that do not need to be proved during the trial. If a settlement does not take place through pre-trial conferences, the judge sets a date for the trial.

In general, the following are the mater to be considered upon pre-trial conference;

- The simplication of the issue

- The necessity or desirability or amendment of the pleading.

- The limitation of the number of expert witnesses.

- The possibility of obtaining admission of facts and documents which will avoid unnecessary proof.

- The advisability of a preliminary reference of issue to a master for finding to be used as evidence when the trial is to be by jury.(in some other jurisdiction)

- Such other matter as may aid in the disposition of the action.

3.0 CONCLUSION A legal Practitioner such as a lawyer is therefore expected to be of great help to the society as it has been shown. This is because, not only he is helpful to the court to reach fair and just decision, but he also provides legal services outside the court to the society in general. Hence, it is a challenge to them to observe various professional conducts so that a legal profession does not give a bad image to the society and consequently remove the trust, people have in a legal profession in Tanzania.

4.0 BIBLIOGRAPHY

STATUTES

Tanzania Government of, Advocate’s Remuneration and Taxation of Costs Rules (GN

                                  No 515) [CAP 341 RE 2002] Government Printers, Dar es Salaam.

Tanzania Government of, Business Licensing Act [CAP 208 RE 2002], Government

                                         Printers, Dar es Salaam.

Tanzania Government of, Income Tax Act [CAP 332 RE 2002], Government

                                        Printers, Dar es Salaam.

Tanzania Government of, Tanzania Revenue Act [CAP 399 RE 2002], Government,

                                        Printers, Dar es Salaam. 

BOOKS Anderson, R.A., Business Law, 11th Ed, South Western, Ohio, 1980

Gardner, B, The Black’s Law Dictionary, 8th Ed, Street and Maxwell, London.

WEBSITES www.abanet.org/publiced/court/conference.html Visited on 5th December 2007.

www.abanet.org/publicd/court/pre-trial-Criminal .html Visited on 5th December 2007.

www.edu.org/law Visited on 5th December 2007.

www.lrct.org/pdf/civil delay.html Visited on 5th December 2007.

[edit] administration of justice

1.0 INTRODUCTION

For the purpose of administration of justice, it is not only every men who has ability to defend himself on his own. He may be tongue tied or nervous confused or wanting intelligence. It is at this point where the concept of advocacy is of central importance. Advocacy is not only an art but a special art which include multiplicity of things. A lay man or any person without legal knowledge does not only need a lawyer but a competent lawyer having advocacy skills. This paper therefore intend to define the basic terms, a critical analysis of statement shall be explain and finally we can conclude

1.1 DEFINITIONS OF TERMS

The term advocacy is define to mean the capacity to project a point in a manner that impress the judge or magistrate and ultimately convinces the judge that your line of reasoning is correct. Moreover, advocacy consist of various factors such as mastery of facts, mastery over the law as a rules of interpretations, thorough knowledge of the latest cases capacity to fit the evidence and prelogical theories acceptable to the court lucid language, pleasing court manners and reading with (charpners of mind)

The term advocate on the hand has the meaning according to section 2 of Advocates Act , which defines an advocate as any person who duly entered as an advocate upon the roll. The role means the list of the advocates kept in accordance with the provisions of part iv of the Advocate Act.

Moreover according to the Leslie Rutherford and Shelle Bone , an advocate is the one who pleads the course of another in a judicial tribunal like a barrister or solicitor.

Generally as far as advocacy skills concerned, an advocate is a person involved in advising client and drafting legal document as well as appearing in the court of law to defend their clients. In connection to the advocacy skills as a special art, our discussion will center on who is an advocate and how he master his carrier.

2.0 MAIN BODY

Admittedly, it is plainly known that advocacy skills is the special art and thus its need competence and high standard of exercise. It is for thus reason that only the few lucky ones can exercise only the medium standard of it. Therefore the few lucky ones are those with special qualifications recognised by law. The following are the qualifications for one to be an advocate who may apply to the chief justice to be admitted as an advocate .

Firstly, a person must be a holder of a degree in law granted after examination of any university of other institution as may be recognised by the council for the purpose of section 8(1)(a)(i) of the Advocate Act . Secondly, a person may be qualified to be an advocate if he is the legal practitioner( by whatever name called) and thereby as the right of audience before any court having unlimited jurisdiction in civil and criminal matters in any common wealth country or in any other country designated by the minister for the purpose of section 8(1)(a)(ii) of cap 341.

Thirdly, a person may become an advocate if he is a solicitor of the supreme court in England, Northern Ireland or Republic of Ireland, a writer to the signet, a solicitor of a supreme court of Scotland or a person admitted or deemed to have been admitted as a solicitor under solicitors (Scotland) Act, 1933 of the united Kingdom, or if he is a holder of any similar qualification which is acceptable by the council as a professional qualification for the purpose of section 8(1)(a)(iii) of Cap 341.

In practice, and before the enactment of School of Tanzania Act , one would upon attending the bar examination and passed almost 70% of the questions asked to him. This examination was conducted by the council of legal education which has confined itself on among other functions, the admission of the advocates.

With strictly regards to the current position of the law in Tanzania and according to section 12(2) and (3) of the Law School of Tanzania Act , subsection (2) is to the effect that a student who complete the programme (Law school programme) shall be awarded a post graduate diploma in legal practice and subsection (3) of the same provision is of the effect that the post graduate diploma issued by the school shall, upon the clearance by the chief justice, qualify and entitle the holder to practice as an advocate of the High Court as the court subordinate thereto or employed in the public service.

Basing on the above qualifications and as far as the question is concerned, we partly prove the statement that advocacy skills is the special art and only the few luck ones can exercise it. On the other hand, it should be made clear that, being an advocate by virtue of the qualifications explained above, does not mean one is competent advocate. Advocacy skills being a special art, includes multiplicity of things and those not all advocate can exercise advocate skills with a maximum standard. Only few luck ones can do, as in actual fact one can not stop in his entire practicing life.

To prove the above statements, the truth is that advocacy skills is to be viewed in practice and not merely by looking on the certificates but how competent one is in practice. The art of an advocate is seen on how he performs his duties either in court or to the clients. As to the court and in performing artistic advocacy skill, the following duties may be vested to determine one skills.

With regards to advocacy skills being a special art, an advocate must be courageous and quick minded. Adding on what Lord Macmillan stated, Mwalusanya J (as then he was) in the case of Khassim Manywele v R insisted that “…a good advocate must be histrionic, craft. Courageous, eloquent, quick minded charming and great hearted…”. From his lord ship we can observe that, just like an artist an advocate with a good skills of advocacy must be quick minded and charming. This means that contrary to Mwalusanya’s statement one may be a mere advocate but not a good advocate, only the few luck ones can exercise not to the maximum but to the medium standard of it.

Moreover advocacy skills needs a research. It is a duty of an advocate with a good advocacy skills to make a research in order to be sure of his submission. In the case of Abually Bhai Aziz v Bhatia Brothers Ltd , the court of Appeal of Tanzania recommended the work done by the counsel in both sides and amicus Curie which ultimately drove the court to come up with a brilliant decision on the matter. There Lord ship stated that “…we must at this stage express our appreciation for the industrious research made by all advocates in generally and by Mr Jadey’s and Professor Fimbo in particular. As it will presently be apparently this extensive research as a direct impact on the quality of our decision”.

On addition to that and as far as advocate skills is concerned, an advocate should make available to the court all relevant literature. As pointed out by Kalegeya J in the cse of NBC v Nabro Ltd and Meeda Ruben Naburi , in his word quoted as follows “…a counsel as an officer of the court should always, as and when he get it make available to court all relevant literature for the purpose of assisting the court to reach a sound and just decision…”

On our observation on two above cited cases it means that being a special art, advocacy skills needs extensive research and relevant literature for the purpose of assisting the court to reach a sound and just decision. This proves the statement of the question that in actual fact one can not stop learning it his entire practicing life.

For the purpose of this point, the practice as shown that not all the advocate have the culture of making research and providing to the court relevant literatures. This prove again that only few lucky ones can exercise it. For example in the case of Dr masumbuko Lamwai v Venance F Nguha and AG , where the court showing its disappointment had this to say “…we are compelled to express our disappointment at the conduct of the learned advocates both whom we know are capable of doing better than they did…it is apparently that the learned advocate did not make any legal research to assist the court. To paraphrase a Swahili proverb we think it is unjust, KUVUNA USICHOPANDA…”.

Moreover, advocacy being an art, the advocate playing therein have the duty to themselves. With strict regards to this point, an advocate must be presentable in all occasions and must appear in the court only in the prescribed attire.Though we have not managed to find any case showing an advocates misconduct on presentability before the court but we see the them in various occasions, the judges dismissing an advocates who appear before the courts roughly. It should be born in mind that, to be presentable is also an art which not all can exercise but only the few.

Likewise, advocate skills being a special art can be traced on the language. To list this art, an advocate has to appear before the legal council of legal education for interview. The practice shows that the purpose this council is to know how much one knows Law both substantive and procedural law. It intend to test whether the person is a good command of the language of the court, mostly English language. It is to be made clear that to know a certain language is one thing but to be competent in that language at a specific place and time is a special art which needs a special skills. Advocacy being one of the special skill needs competence in a legal language which only the lucky ones can exercise the medium of it.

On the other side, advocacy skills can be viewed on drafting legal documents. This on our view may be the heaviest task which needs a very special art especially in civil litigations. The legal documents include bills, sales agreement, partnership deed, tenants agreement, plaints and many others. All these legal documents have special rules which must strictly be followed. We have seen in various occasion the court dismissing legal document drawn by some advocate due to lack of some aspect which are important in such documents. For example according to order vii rule 11 , the plaint shall be rejected where it does not disclose a cause of action, where the suit appears from the statement in that plaint to be barred by any law and many other ground. This means that not all advocates can draft legal documents as required. Only those with the art of doing it can exercise and those are the few luck ones. This means ones cannot stop of learning in his entire practicing life.

Moreover advocacy skills can be seen on rules of preparing finally submission. To make a submission is a one thing but to make a good submission is another thing and different thing. Here there are special rules which only few and lucky advocates can exercise it. If it is the plaint he rule include thorough reading of plaint, thorough reading of the attachments or annextures to the plaint, thorough reading of the defence, going through the notes, the advocate took earlier, thorough research on the law both against and for the advocate and finally submission. The above explained advocacy skills needs a special art which of course few lucky ones can exercise medium of it. The same also reveal that in advocacy skill one can not stop learning in his entire practicing life.

Also, advocacy skills involved mastering of fact. Here we consider the capacity of an advocates to how he handle his client in his office, how he listen to his problem, how he take note of the problem and cover the cause of action from the story, and how he can frame issue from the story. Which can be presented in the court of law.

On addition, it includes mastering over the law and the rule of interpretation. An advocates after hearing the issue of the case he has to look on the law applicable on the issue he has raised, whether the law is still applicable or have been repealed. This make advocates skills for one who want to practice it not to stop learning.

If that is not enough it involve thorough knowledge of the latest case law. The good advocate who want to impress the judge or magistrate must be aware of the latest case law, that means the case law which has develop certain principle new from the previous decision, that had to be aware of that case and cite it in his defence or submission. Example the case of Pallangyo was repelled by the case of Juwata. Therefore the good advocate with advocacy skills should not cite the repealed cases. This knowledge of the latest cases make advocates skills special art and one can not stop learning it, as it need to be current.

Lastly, an advocate must master procedural of evidence in order to impress the judge, that he must be able to present his evidence logically with clear language, to know how to adduce evidence in examination in chief, cross examination and re examination. Example in cross examination we must know how to put question which can help him when the witness of the opposite side responding to it. This is a special art it needs some one who knows the kind of witness which asking questions, misunderstanding. Therefore one can not stop learning it since every human or witness a different character from others.

3.0 CONCLUSION

To sum up, it should be born in mind that advocacy skill is a special art in the sense that it deals with legal matters most of which are very scientific and technical. Performance is for many but competent is for the few lucky ones. According to Honorable Johson P.M. Mwanyika, Attorney General , “…competence does not hide itself, it manifest when you see it. You can feel it day in day out as you set out to discharge your duty as advocate…”. From there it is proper to add that a good advocate must be in born and cultured. This means that an advocate is actor or main character in advocacy skill. Furthermore he is an eternal student as hearing process is continuous because law is like a living thing, it is born, it dies and emerge again.

Question 21 “Public confidence in judiciaries of East Africa is eroded by irresponsible or improper conduct by judicial officers [Judges and Magistrates].A judicial officer must avoid all impropriety and appearance of impropriety. A judges or Magistrates must expect to be the subject of constant public scrutiny. A judicial officer must therefore accept restriction on his or her conduct that might be viewed as burdensome by the ordinary citizen and should do so forcedly and willingly. Honourable Edward G. Hosea, Director of the PCCB, in his paper titled ‘ Judicial Ethics: Impact of the Corruption in East AFRICA’ presented at Regional Workshop for Magistrates, White sands Hotel, Mombasa-Kenya.September 19th to 21st ,2002.

In light of this observation asses the effectiveness of the Judicial Code of Conduct and Ethics in curbing the above enumerated problem.

TABLE OF CONTENT

0.1 INTRODUCTION

1.1 SCOPE OF THE CODE

2.0 MAIN BODY

2.1 ASSESMENT ON THE EFFECTIVENESS OF THE JUDICIAL CODE OF ETHICS AND CONDUCT AND ETHICS IN CURBING THE ENUMERATED PROBLEM.

2.2 Although the Code of Conduct has archived some development, its enforcement has become difficult due to the following reasons.

2.3 RECOMMENDATIONS

2.4 CONCLUSSION

2.5 BIBLIOGRAPHY

1.0 INTRODUCTION

Code of conduct is a collection of rules agreed by the professionals to govern their profession. Judicial Officers are not entitled to violate the rules of the Code, and any breach of the rules amounts to a misconduct and may subject a judicial officer to disciplinary measures. Legally, it may be difficulty to get a clear definition of the phrase “Code Of Conduct/Ethics”, but one Justice Dato Siti Norma Yaakob tried his best in defining the phrase, he illustrated the same in the following terms when discussing Codes of ethics and conduct generally and specifically;

“Codes of Ethics and conduct are usually a set of written rules or guidelines that govern the conduct of public officials. They are designed to prevent unethical behaviour and can hold such officers accountable for their individual actions. Such codes can either take the form of a stand-alone document or enacted and enforced by way of sanctions and penalties for violations of specific conduct. Professionals…have adopted their own codes of ethics and conduct to discipline their own members in the execution of their professional duties. Likewise codes on judicial conduct have now been widely formulated and accepted in most commonwealth judiciaries…”

According to Justice Yaakob, Codes of Ethics have been prompted, to a certain extent by the increase in media scrutiny as well as the erosion of public confidence following instances of injudicious conduct and judicial scandals. This view carries truth in it. From the above definitions, A Code of Conduct for Judges and Magistrates (the Code) in Tanzania can thus be said to be a collection of rules or guidelines agreed by Judges and Magistrates (herein called Judicial Officers) to govern their professional conduct. It must be noted however that the conduct of judicial officers in Tanzania is not solely governed by the Code; there are other devices which act in conjunction with the code to ensure their proper conduct for the sake of effective performance of judicial duties.

According to the preamble to the Code, Judicial Officers of Tanzania were mainly prompted by the following objectives in approving the Code;

a) To create an independent, strong, respected and respectable judiciary for the sake of impartial administration of justice which is necessary in a democratic state.

b) To encourage Judicial Officers to actively participate in establishing, maintaining, enforcing, and observing high standards of conduct so as the integrity and respect for the independence of the judiciary is preserved.

c) To make it clear to Judicial Officers that their official duties prescribed by the law take precedence over all their other activities.

d) To make the standards of conduct of Judicial Officers prescribed and published for the information of the Judicial Officers themselves and the public in general so as to achieve the objectives (highlighted above).

1.1 Scope of the Code;

The application of the Code however, is limited to Tanzania Mainland only and does not apply to Zanzibar . Apparently this discriminatory applicability of the Code constitutional in the sense that it derives its essence from the Constitution Of The United Republic Of Tanzania 1977 as amended from time to time, which said constitution creates two judiciaries, one in respect of Tanzania mainland and another in respect of Zanzibar .

The code consists of 4 rules which are;  The rule against impropriety ( Rule;1)

 The Rule in respect of Adjudicative and Administrative duties (Rule 2)

 The rule governing engagement in improving the law, the legal system and the administration of justice( Rule 3)

 The Rule to minimizing Extra- judicial activities so as to minimise the risk of conflicting with judicial duties (Rule 4).

2.0 MAIN BODY

The rules are of most important as they aim in controlling the conducts of judicial officers as they work as a watch dog in monitoring the conducts of judicial officers so as to avoid irresponsible or improper conducts by judicial officers. The rules provide directions on how the judicial officer should always act in respect of their duties. This can be seen as follows;

The Rule Against impropriety (Rule; 1)

Rule one of the codes instructs a judicial officer to conduct himself in accordance to the following guidelines;

He must in all times conduct himself in an impartial behaviour, i. e.

• He should not allow his family or relatives or other persons close to him to influence his judicial conduct or judgement.

• He should not use his office to favour other persons’ interests. • He should not show an impression that other persons have chance to influence him.

The Rule in respect of Adjudicative and Administrative duties (Rule; 2).

Guidelines under this rule can be categorised into 2, Adjudicative Duties on one hand and Administrative Duties on the other;

Adjudicative Duties (Rules; 2; A, C and D).

Guidelines in respect of this rule relate to judicial functions of judicial officers, and they may be sub-divided into three sub-headings;

a) Adjudicative Duties per se (Rule; 2; A);

b) Disqualification (Rule; 2; C)

c) Waiver of Disqualification (Rule; 2; D)

Adjudicative Duties per se (Rule; 2; A);

Guidelines under this particular rule require a judicial officer, in his adjudication functions to conduct to observe the following;

a) He should be true and faithful to the law and must demonstrate competence in administering the law. [Rule 2; A (1)]

b) He must maintain order and decorum in his proceedings. [Rule 2; A (2)]

c) He must be patient, dignified and courteous to all persons with whom he deals in his official capacity, and he should require similar conduct from them. [Rule 2; A (3)]

d) He must observe closely the right to be heard to parties to proceedings, and he should avoid as much as possible ex –parte verdicts, (unless necessitated by the law). [Rule 2; A (4)]

e) He can receive advice from colleague judicial officers, or other persons who are bound to advice him, or from uninterested experts as amicus curriae; [Rule 2; A (4)]

f) He must ensure speedy determination of matters before him, i.e. punctual attendance to court, devoting adequate time to cases, timely decisions, and he should ensure that interested parties to proceedings and officers assisting him follow his tune. [Rule 2; A (5)]

g) He is restrained from commenting about any pending or impending proceedings in courts of this country, and he should instruct those under him to abide with this requirement, but he can make statements on procedure of the court if not prejudicial to the judiciary. [Rule 2; A (6)]

h) He should prohibit publications of court proceedings, or during recesses between sessions or around it so as to prevent distortion or dramatisation of the proceedings, such prohibited publications include broadcasting, televising, recording or photographing etc. unless they are important for evidential purposes, ceremonial proceedings in which they will not be exhibited until the end of proceedings and so long as they do not affect the proceedings. [Rule 2; A (7)]

Disqualification (Rule; 2; C);

As a general rule a judicial officer is bound to finally determine the matter assigned to him unless he has sufficient grounds for not doing so, sufficient grounds may include transfer, poor health, death etc. However, under some circumstances he is bound to withdraw himself from presiding over the matter for the sake of justice, as in the case of ZABRON PANGAMALEZA v JOACHIM KIWARAKA & ANOTHER where the Court of Appeal was of the views that; when the credit of a judicial officer trying a matter is challenged or doubted by parties then the safest thing for him is to give the benefit of doubt to the accuser by retiring from the case, The Court repeated this stance in TANZANIA TELECOMMUNICTION CO. LTD v. MIC TANZANIA LTD . This decision thus underlined the rule of the Code in respect of self-disqualification. The circumstances under which a judicial officer must disqualify himself are, according to Rule 2; C (1) (a)-(d) as follows;

a) Where he has personal bias or prejudice concerning a party to proceedings or personal knowledge of the matter.

b) Where he had served as a lawyer in the matter.

c) Where a person closely related to him (e.g. spouse or member of house hold) has financial interests in the matter.

d) Where a spouse or person related to him is a party, or acts as a lawyer or is likely to be material witness.

Also a judicial officer is bound to inform himself about his personal and fiduciary financial interest and make reasonable efforts to know financial interests of members of his family. [Rule 2; C (1)].

Waiver of Disqualification [Rule 2; D]

According to this rule, a judicial officer may disclose to parties and in the records his relationships or financial interests mentioned under Rule 2; C as bases of his disqualification, the parties to proceedings or their representatives or lawyers may however opt to agree that such relationship or interests are immaterial and insubstantial, hence the judicial officer may proceed to preside over the matter so long as he records the consent of the parties, which said record becomes part of the records of the proceedings.

Administrative Duties (Rule 2; B)

A judicial officer is also bound to diligently perform his administrative duties and maintain competence in judicial administration; he must also facilitate administrative duties of other judicial officers and court officers [Rule 2; B (1)].

Again, he must ensure that his staff and other court officials observe standards of faithfulness and industry that apply to him. [Rule 2; B (2)].

He must also be prepared to take steps in initiating or taking disciplinary measures against un behaving lawyers and other judicial officers upon detecting them, this includes reporting the misconducts to appropriate organs. [Rule 2; B (3)].

In addition, a judicial officer must avoid nepotism and favouritism in performing his administrative duties [Rule 2; B (4)].

This rule (2;D) of the Code is equally very crucial for, in most cases administration of justice goes hand in hand with administrative duties of judicial officers as far as the management and assignment of cases, control of the staff and finance etc. are concerned.

The Rule Governing Engagement in Improving The Law, The Legal System and the Administration of Justice (Rule; 3).

A judicial officer is entitled to engage himself in activities aimed at improve the law, the legal system and administration of justice so long as he does not affect the performance of his judicial duties and he does not cast doubt on his capacity to decide impartially matters coming before him. Activities in which he may engage himself under this rule include the following;

a) Speaking, writing, lecturing or teaching. (Rule; 3; A).

b) Appearing at a public hearing before an executive or legislative body or official. In this respect he may also consult with them on matters relating to administration of justice only. (Rule; 3; B).

c) He may serve as a member, officer or Director of an organisation or government agency devoted in matters stated above. (Rule; 3; C).

The Rule Related to Minimising Extra-Judicial Activities so as to Minimise the Risk of Conflicting With Judicial Duties (Rule; 4).

Apart from activities listed under Rule 3 of the Code, a judicial officer is also entitled to participate in arts, sports, other social recreational activities, Civic and Charitable or religious activities so long as they do not adversely affect the dignity of his office and the performance of his judicial duties. (Rule; 4; A and B). This rule intends to permit a judicial officer, with dignified limitations to associate himself with the society in which he lives without isolation as one of the members of the society.

Despite the association in activities mentioned under this rule, a judicial officer is prohibited from serving as executor, administrator, trustee, and guardian or in other fiduciary relationship except for the estate, trust or person of a member of his family or close relative if the service will not interfere with the proper performance of his judicial duties. (Rule; 4; C).

Again, a judicial officer is not entitled to practice law (Rule; 4; D). This rule is meant to keep away judicial officers from taking sides in matters before them or before other courts of law. Therefore the Code of Ethic and Conduct for Judicial officers aimed at controlling the conducts of both Judges and Magistrates as they are the one who play the role of administering justice

Therefore the rule is effective in curbing the problem of irresponsibility and improper conduct of judicial officers including corruption which Honorable Edward G. Hosea, the Director of the PCCB, addressed in his paper titled ‘Judicial Ethics: Impact of corruption in East Africa’ presented at Regional Workshop for Magstrates,Whitesands Hotel,Mombasa-Kenya, September 19th to 21st ,2002.In his paper he discussed on the corruption in the Judiciary the causes and effects of corruption and the way in which it can be removed.

2.1 ASSESMENT ON THE EFFECTIVENESS OF THE JUDICIAL CODE OF ETHICS AND CONDUCT AND ETHICS IN CURBING THE ENUMERATED PROBLEM.

The Judicial Code of Conduct and Ethics some how has achieved in curbing the problem of irresponsible and improper conduct of Judges and Magistrate, this can seen in practice when Judicial officers conducts their duties. IN the case of HAMISI MASISI AND 6 OTHERS V REPUBLIC where the court held that a magistrate is required to disregard any extraneous pressures that might be applied on him and he should only act in accordance with the law. This decision emphasizes on the obligation on the part of the magistrate to abide with the law as also provided in the code.

Also in the case of ZABRON PANGAMALEZA V JOACHIM KIWARAKA AND ANOTHER In this the court again emphasizes on the rule of self disqualification by judicial officer when he is challenged or doubted by parties to the suits.

Furthermore the court of Appeal in the case of THE JUDGE IN CHARGE HIGH COURT ARUSHA & ANIOTHER V N.I. N MUNUO NGUNI went further and provide that the Judge of the High court though are empowered to suspend advocates who commit misconducts they should not do so without giving them the right to be heard. The decision here emphasizes the rule in the code in respect of observing the right to be heard.

Also in the case of REP V D. 3769 PC TEGEZA In this the High court strongly warned the conduct of magistrate who involved themselves deeply in the investigation of criminal offences in corporation with the police force. This decision is indeed in support of the directives in the Code to the effects that, magistrate should not conduct themselves in manner which will indicate that they can be influenced in their decisions.

Moreover in the case of D.P.P V EDWARD MAIGA LISSO AND ANOTHER In this the a Resident Magistrate was convicted of the offence of demanding and receiving corruption in this the High court ordered him to save five years in prison. The High court put more emphasis on the rules that judicial officers should not use his office to favor other person’s interests.

2.2 Although the Code of Conduct has archived some development, its enforcement has become difficult due to the following reasons.

Firstly the Codes lack proper sanctions in case the judicial officers went contrary to the rule which make them not to adhere to the requirements of the rule.

Also the problem of poor remuneration especial to the Magistrate. Salaries of the judicial officer is not enough inn providing their basic needs hence make them to engage in corruption as a means of increasing their low wages which is contrary to the rules.

Furthermore the general public is mostly unaware of the codes of judicial ethics and behavior of the judicial officers they do not know that the judicial officers are countable for their action especial where they demanded corruption.

Another impediment is to the fact that codes are not sufficiently publicized to judicial officers themselves.Forexample a judicial officer will not consider accepting gifts from the a litigant as an unethical because it’s the cultural practices in his society to accept gifts as a sign of appreciation. This made them to receive corruption and treat it as gifts.

Lastly the general public is unaware on the procedure to follow in making their complaints this make them to fail to take steps toward a judicial officer who went contrary to judicial duties like asking for corruption.

2.3 RECOMMENDATIONS

The Code of Conduct and Ethics is a further step toward the development of the society and the judiciary hence the Codes should make positive changes in judicial system as the organ which is entrusted in administration of justice. Therefore the following is our recommendations:

The public should be made aware of the of the existence of codes of conduct and ethics of judicial officers and the consequences of breaches this will help to make the codes more effective.

Judicial officers should be trained at regular intervals on the codes regulating ethics and behavior, ant-corruption and the consequences of breach. Again the newly appointed judicial officers should not begin to edjucate without at least two weeks training in judicial ethic and behavior including the knowledge of the law which is to be provided to them, a judicial officer must know what he can or cannot do.

The code should also provide for appropriate sanctions and implementation mechanisms, also it should be periodically reviewed and updated to meet the exigency of the time. And where necessary the salaries for the judicial officers should be increased so as to cater for their basic needs and avoiding corruption in judicial activities.

2.4 CONCLUSSION

Judicial officer not only occupies a position of authority, he wields tremendous power the propensity to be corrupted by judicial authority is tempting. Without the codes to guide them the society will be in problem. Therefore the codes of conduct are considered fundamental to standardize behavior of judicial officers.

BIBLIOGRAPHY

Tanzania The Government of The Code of Conduct of Judicial officers in Tanzania Government Printers, Dar es Salaam.

Tanzania government of, The Advocates Act, [Cap 341, RE 2002],Government

                           Printers,Dar es Salaam

Tanzania government of, Tanganyika law society Act, [Cap 307 RE 2002] Government Printer

BOOKS:

      Chipetta B.D, Magistrates manual; TMP Book Department, Tabora 

       Das Cyrus and kandra,K. (2004); Judge and Judicial Accountability, Eastern 
     Book company,Lucknow

       Twaib F, (1997), The Legal Profession in Tanzania, The Law and Practice,
                                    Bayreuth African Studies, Bayreuth.   

OTHER REFERENCES

Mkwawa “Judicial independence , Accountability and ethics”, a  paper presented at the institute of judicial administration  , Lushoto  for judicial administration course for resident magistrates held from  14TH -24TH , august 

Hossea G. E. Code of Ethics and conduct, A Paper presented at the commonwealth Magistrate and judges association , 13th Triennial conference Mangochi, Malawi on 24th_ 29th August,2005

BIBLIOGRAPHY

Tanzania government of, The Advocates Act, [Cap 341, RE 2002], Government

                           Printers

Tanzania government of, Tanganyika law society Act, [Cap 307 RE 2002] Government Printer

BOOKS:

         Twaib F, (1997), The Legal Profession in Tanzania, The Law and Practice,
                                     Bayreuth African Studies, Bayreuth.   

 Chipetta B.D Magistrates manual  

Judicial independence , Accountability and ethics”, a  paper presented at the institute of judicial administration  , Lushoto  for judicial administration course for resident magistrates held from  14-24, august at p.9
 Code of Ethics and conduct . a Paper presented at the commonwealth Magistrate and judges association , 13th Triennial conference Mangochi, Malawi on  24th_ 29th August,2005

[edit] scenerio on advocate

Question 22
A senior advocate shombe was charged with misconduct in his legal profession that caused his client’s case to be dismissed in Resident magistrate court, Iringa Region. The facts were that early November,2004 the SBC Co Ltd in Iringa filed a civil suit against GFD Bank Iringa Branch claiming that the bank negligently caused loss of 60 Millions Tsh that was being transferred from one of the accounts of the company in that bank to another account in JKC Bank Dodoma Branch. The company hired advocate Shombe to re[resent it in  court following the failure to reach consensus outside the court with the  defendant bank. Initially the proceedings went very well in the side of the company and the Mr. Shombe was attending all the time when the proceeding was set in court.

After six months of the proceeding Mr. Shombe started to give a lot of excuses that made him not to appear in court session resulting into several adjournments. When the company asked Mr. Shombe to withdraw from the case so that it can hire another advocate to proceed with the case Mr. Shombe declined. He assured the company that he will proceed to handle the case and that the company should not be worried at all. However Mr Shombe failed to appear before the court in other three consecutive sessions and the court dismissed the case with cost. There was spread rumours that Mr.shombe met with the counsel for the Bank Mr Mlungura and agreed together that Shombe should assist the Bank to win the case and in return the Bank will open him a prestigious bank with a deposit of 10millions Tsh. It was said that Mr. Shombe agreed on that deal. The company filed the case against Mr Shombe to the Advocate committee claiming among other things for removal of Mr Shombe’s name from the roll of Advocate and 100million TSH damage for the dismissal of their case in the court. The evidence produced before the committee proved that Mr Shombe actually conspired with the bank against his own client, the company and that such conspiracy amounted to grave professional misconduct. The committee found him guilty of the allegations put on him and granted the application as sought and ordered for removal of his name from the roll of advocates. Mr. Shombe was aggrieved by that decision and appealed to the High Court of Tanzania Iringa Registry. In his grounds of appeal he asserts all allegations but asks the court to reverse the order given by the committee and grant a lesser punishment .He has advanced his defence and started that the allegation against him are of the first instance and he has a good record in practice for his twenty years in legal profession and moreover he has big family depending on him. Assume that you are members of the full bench of the High Court considering this appeal. Prepare your judgement on this case.

OUTLINE

1.0 INTRODUCTION

   1.1. General introduction

   1.2. Meaning of Judgment

   1.3 Contents of judgment

2.0 MAIN BODY

   2.1. Judgment

3.0. CONCLUSION

1.0. INTRODUCTION Every person is entitled to seek the help of the court or tribunal when they fail to settle their dispute out of the court. On resortion to the court, the respective parties are seeking the position or stand of the court on the particular subject matter of their dispute .The Judge or Magistrate as the case may be after admitting the case, hearing the evidence and records the final submission, he is duty bound to prepare and pronounce the stand of the court on the subject matter of dispute between the parties within a reasonable time .The final position of the court on such particular matter before the court is what is called judgment. Parties to the case or suit are entitled by law if they are aggrieved by the decision of the court to appeal to the higher court or tribunal with competent jurisdiction. Moreover on pursuing their rights before courts of law, parties have right to engage an Advocate to represent them.

According to section 3 of civil Procedure Code Act judgment, means the statement given by a judge or magistrate on the grounds for a decree or order. Section 312(1).of Criminal Procedure Act provides that every judgement shall be written by or reduced into writing under the personal direction and superintendence of the presiding Judge or Magistrate in the language of the court.

According to Chipeta J in his manual titled Magistrate Manual Judgment in civil suit is written documents prepared by the court which resolves the issues in the suit and finally determine the rights and liability of the parties in a suit

Oxford Dictionary of law defines judgment as a decision made by a court in respect of the matter before it. It can be said that it is a process of reasoning by which the courts decision was arrived at.

Generally judgment is the balancing and weighing up of evidence or submission of the parties in the court, by the court in making a decision

A well written judgment should contain the following a concise statement of the case, the points for determination, the reason for determination and the decision thereon. This is as per Order XX r. 4 of the Civil Procedure Code Act. In additional to the above requirement any judgment should also contain the name of the court, names of the parties, case number, Coram, the date on which the judgment was pronounced, conclusion and it must be signed by a Judges or Magistrate who prepared that particular judgment.Morever judgement must be written or reduced into writing.

In the case of Amirali Ismail v. R it was stated that “ a good judgment is a clear systematic and straight forward, every judgment should state the facts of the case establish each fact by reference to the particular evidence, give sufficiently and plainly the reasons which justify the finding. It should state the sufficient particulars to enable the court of appeal to know what facts are found and how”

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IRINGA DISTRICT REGISTRY AT IRINGA

APPELATE JURISDICTION

CIVIL APPEAL NO 1 OF 2008

                    (Original Civ. Case NO.8 of 2005, Advocates Committee)

  JACKSON SHOMBE …………….. ……………………..APPELLANT

                                                                     VERSUS

  ADVOCATES COMMITTEE……………………………….RESPONDENT

CORAM: PANGIPTA .J. KALUMUNA J, BASINDA J, MGOMBERA J AND GEMBE.J

PANGIPITA J

JUDGMENT The appellant Mr. Shombe, who is a learned Advocate appealed against the decision of the Advocates Committee which ordered the removal of his name from the roll as an advocate following the professional misconduct. He was charged before the advocate committee for professional misconduct which led the resisted magistrate court, Iringa Region to dismiss the case of his client. It was alleged that Mr. Shombe without any justifiable reasons failed to appear before the court to represent his client despite several adjournment of the case due to his absence. Before the dismissal of the case, the appellant had been asked to withdraw from so that the client could engage another Advocate but the appellant declined and assured his client that he will handle the case to its final verdict. After the dismissal of the case, there were spread of romours that the appellant had conspired with the counsel for the Bank.Mr. Mulunga that the appellant should assist the bank to win the case in return of which the Bank would open a prestigious bank account with deposit of 10millions Tanzania shillings the act which the appellant did. Being dissatisfied by the conduct of the appellant his client field a suit against the appellant, claiming among other things the removal of appellant name from the roll as an Advocate and Tsh 100 Millions as damage for the dismissal of the case in the resident Magistrate court Iringa Region.

The evidence before the Advocate committee proved that the appellant (Advocate Shombe) actually did conspire with the bank against the interests of his client, the company. The Advocate committee was of the view that such conspiracy amounted to profession misconduct. The appellant was found of guilty of the allegation put against him and granted the application as sought by his client. The advocates committee ordered the removal of the name of the appellant from the roll and ordered the appellant to pay Tsh 100 Millions as damages resulting from his conduct to his client case. Being aggrieved with the decision of Advocates committee, the appellant appealed under section .24A (1) of Advocates Act to this High court of Tanzania, Iringa District Registry.

In his memorandum of appeal; the appellant had asserted all the allegations advanced against him before the advocate committee, but he is asking this honourable court to reverse the order given by the advocates committee and grant a lesser punishment.

On dealing with this appeal, the appellant has reduced the task of the court on determine the merits of his appeal by raising one ground of appeal. It is our profound view that before we considering the merits or otherwise of this appeal it is better and for sake justice, to see to it, whether the act committed by the appellant could amount to grave professional misconduct as it was considered by the advocates committee.

The appellant had been alleged to have conspired with the Advocate of the opponent party to help the opponent party to win the case by conducting himself in a manner which could lead the court to dismiss the case of his client, the act which the appellant did in consideration of being opened an account valued 10 millions Tanzania shillings by the opponent party. Also being asked to withdraw from the case to afford an opportunity to his client to engage another advocate the request which the appellant declined.

To that end, the appellant who is a learned Advocate was ignorant of the right of a client to instruct and withdraw his instruction from the advocate .A client be it natural person or legal person in both Civil and Criminal cases is free to withdraw his, her or its instruction from the advocate at any stage of proceedings. Regarding the alleged conspiracy, the appellant was duty bound to act by all his skills and fairness to defend the interest of his client. Rules 37(1)(2) of Rules of Professional Conduct and Etiquette of the Tanganyika law society Provides that “Subject to his overriding obligation to act at all times in an honest upright………..

Advocate paramount duty is to his client to serve his interest with all best skill and to preserve his confidence and to be eligent …..Over his financial dealings with him” 

The foregoing rule imposes an obligation to the Advocate to act in openness, honest and fairness in defending the interest of his or her client, but not to defeat them in any unlawful manner. The honourable court of Appeal of Tanzania in the Case of Charles U.S. Mwailunga v. Advocates Committee [1982] TLR 282observed that

“An advocate is an officer of the court he stands in fiduciary relationship with his client; his duty is to conduct litigation properly, both in respect of his client and the court”

The same Honourable court emphasizing on the duty of advocate to defend the interest of his client had stated in the case of Akena Adoko v. Advocate Committee [1982] TLR 290 that

“It is the duty of the advocate to transact his business with skill and diligence both to his client and the court”

Basing on these legal authorities, our minds entertains no doubt that, the appellant who has been trained in a noble profession and acquired a status of an Advocate of the High Court and courts subordinate thereto, was duty bound to represent his client and defend his interest .The conduct of the appellant to act against the interest of his client [SBC CO. Ltd] amounted to grave professional misconduct.

Even under common law.the appellant had definite obligation towards his client in the preparation and conduct of the case, as stated in Halsburys Law of England (Lord Simonds Vol 36) stated

“In equity the relationship of solicitor and clients is recognized as a fiduciary relationship and thus means that the solicitor has to act with strict fairness and openness towards his client and common law imposes on the Solicitor the obligation to be skillful and carefully other wise he will be liable in contract for negligence”

The learned author goes on to state that “since a solicitor holds himself to his clients as possess adequate skills, knowledge and learning for the purpose of properly conducting all business that he undertakes whether contentions or not he is guilty of negligence giving raise to an action for damages by his client if he causes loss or damage to his client owing to want of such knowledge as he ought to possess or the want of such care as he ought to exercises” .

Despite the fact that the reasoning of Lord Simonds is persuasive to our courts, it is important as it shows the universal duty of an Advocate to the clients and action resulting from their misconduct. We see no reasons as to why should we not concur with the finding of the advocates committee. We are satisfied that the act of the appellant did not amount to professional misconduct only but also to a grave professional misconduct. This was prejudice of his clients’ interest and the entire discipline of law advocacy in particular. Turning to the ground of appeal the appellant has asserted all allegations against him, in his memorandum of appeal as advanced by the applicant before the advocate committee but he is seeking this court to apply its wisdom to reverse the order of the advocate committee and grant a less punishment. 

As afore said rule 37(2) of rules of Professional Conduct and Etiquette of the Tanganyika law society impasses a duty to the appellant as an advocate to act in fairness and openness towards the conduct of the case of his client. The appellant was in breach of this duty, which resulted to dismissal of his client case. The act of appellant was fatal to the rights of the client and the whole profession. The cited legal authorities above proves that if these acts, like this of the appellant are to be allowed in the discipline of law advocacy for such matter, it will negativate the positive perception of the right thinking members of this society towards this noble professional that, without lawyers, advocates in particular, the world is a terrible place to live in. A reputable Tanzania Professor of the law Mr. Peter Maina had noted saying “the world is a dangerous place to live in, not be because of those who do evils but because of those who watch and let it happen”

The advocates committee as an organ empowered to control among other things profession misconduct of Advocates had to look on the act of the appellant with wider eyes. It could be fatal and shame to the profession if the advocate committee could hold otherwise on this matter. To this end we are compelled to reasons in line with the advocates committee in its findings.

We therefore share the sentiments, which might have been experienced by the advocates committee bearing in mind that one of its duties is to see to it and ensure that members of the public are properly guarded from unfair and sharp practice of any advocate and taking into account the number of complains like this against some advocate from the members of the public reaching us and the advocate committee in general. The conducting of the appellant and any as like it, should not be tolerated by any body empowered to control them. We also share similar sentiments expressed by William J in Re Garbett [1956] 139 ER 14 25 when dismissing the applicant, application to be readmitted to the roll, he stated as follow

“I therefore agree with my Lord in thinking   that we should be guilty of a very gross dereliction of the duty, if by replacing this man on the roll of attorney we were to put him in a position to exercise his talents to the possible detriment of the public”

Advocates as officer of the court are custodian of Criminal and Civil justice of their clients by helping the court to reach a fair and just decision .They have to use their best skills to defend the interest of their clients .The acts of some advocates which are contrary to the well founded duty of advocate to the client should not be allowed by any organ empowered to control and govern the professional misconduct of advocates. Any advocate proved to be guilty of professional misconduct should be punished according to the offence he or she has committed, but basing on some already provided punishment by the law and other orders which the court or the advocates committee may deem fit. This should be in consideration of preserving the well perception and reputation of the legal discipline, advocacy in particular, which the society has conferred to this profession. The confidence of the public should not be eroded by some grave professional misconduct of some advocates.

We think on determining the appropriateness of the punishment, the advocates committee was justifiable by invoking the power vested to it by section 13 (1)(b)&(c) and also Section 13(4)a of Advocates Act . For the totality of these reasons above, we are satisfied with the findings, order and punishment of the advocates committee on this matter. It is our considerable view that this appeal has no merit and we dismiss it in its entirety.

Order accordingly Appeal dismissed

Judgement read in open court this ___________day of January 2008

J. PANGIPTA Judge

N. KALUMUNA Judge

A. BASINDA Judge

  G.   MGOMBERA

Judge

                                                              N.   GEMBE

Judge

CONCLUSION Borrowing the words of justice Chipeta, preparing a judgement is the most difficult task to the judge or magistrate. It is inevitable and unevitable duty of the court the judgement as the document determining the fate of the parties in a case or suit should be well constituted on the facts of the respective case and principles of law.

BIBLIOGRAPHY

STATUTE

The Tanzania Government of, The Advocate Acts [Cap 341 RE 2002] Government Printers Dar es salaam.

The Tanzania Government of, The Civil Procedure Code Act [Cap 33 RE 2002] Government Printers Dar es salaam.

The Tanzania Government of, The Criminal Procedure Act [Cap 20 R.E 2002] Government Printers Dar es salaam.

CASES Amirali Ismail v. R 1TLR ® 370 Akena Adoko v. Advocate Committee [1982] TLR 290

Charles U.S. Mwailunga v. Advocates Committee [1982] TLR 282

Re Garbett [1956] 139 ER 14 25

MANNUAL Chipeta B.D Magistrate Mannual Printed by TMB Book Department Tabora