Alternative Dispute resolution (ADR) in Tanzania
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CHARTER
ONE
GENERAL
INTRODUCTION
1.1 INTRODUCTION
Alternative
Dispute Resolution (ADR) has gained international recognition and is widely
used to complement the conventional methods of resolving disputes through
courts of law. ADR simply entails all modes of dispute settlement or resolution
other than the traditional approaches of dispute settlement through courts of
law.[1] While
the most common forms of ADR are mediation
and arbitration,
there are many other forms; judicial settlement conferences, fact finding,
ombudsmen special masters, etc. Though often voluntary, ADR is sometimes
mandated by the courts, which require that disputants try mediation before they
take their case to court.[2]
However, most of the methods of ADR that are
promoted for inclusion in African justice systems are similar to pre-colonial
African dispute settlement mechanisms that encouraged restoration of harmony
and social bonds in the justice system. In Tanzania ADR was introduced in 1994
through Government Notice No. 422, which amended the First Schedule to the Civil
Procedure Code Act (1966), and it is now an inherent component of the country's
legal system. In recognition of its importance in civil litigation in Tanzania,
ADR has been made a compulsory subject in higher learning or training
institutions for lawyers.[3] Tanzania
Mediation relies on the parties to reach a voluntary, consensual settlement
agreement. While the responsibility for conducting the Tanzania mediation rests
with the Tanzania Mediator. The primary responsibility for dispute resolution
and settlement rests with the parties. Tanzania Mediation provides confidential
and neutral setting for dispute parties to discuss their viewpoints. Improving
communication in Tanzania Mediation can lead to mutually satisfactory dispute
resolutions. In the majority of Tanzania mediation cases, the parties have
reached mutual resolution thereby avoiding further legal action and legal
expenses. Tanzania Mediation enables the parties to have full control over the
outcome of their dispute resolution and settlement agreement.[4] Tanzania Mediation is utilized when there is
an adversarial situation and the parties wish to resolve the dispute in private
without court litigation. If legal action is necessary, before contacting a
Tanzania Mediator, we suggest that you educate yourself on law and the legal
process by reading the books mentioned in our recommended reading section.
Mediation is a dynamic,
structured, interactive process where a neutral third party assists disputing
parties in resolving conflict through the use of specialized communication and
negotiation techniques. All participants in mediation are encouraged to
actively participate in the process.[5]
Mediation, as used in law, is a form of alternative dispute resolution (ADR),
a way of resolving disputes between two or more parties with concrete
effects. Typically, a third party, the mediator assists the parties to negotiate a settlement. Disputants may mediate
disputes in a variety of domains, such as commercial, legal, diplomatic,
workplace, community and family matters.
The
term "mediation" broadly refers to any instance in which a third
party helps others reach agreement. More specifically mediation has a structure,
timetable and dynamics that ordinary negotiation lacks. The process is private
and confidential, possibly enforced by law. Participation is typically
voluntary. The mediator acts as a neutral third party and facilitates rather
than directs the process. Mediation is becoming a more peaceful and
internationally accepted solution in order to end conflict.[6] As
the practice gained popularity, training programs, certifications and licensing
followed, producing trained, professional mediators committed to the
discipline. However by the government
notice no. 196 of 1995 the provisions of order 8A and 8B were made applicable
only to Mwanza, Arusha and Dar-es-salaam regions.[7]
Although more than one year has passed, mediation as of early 2002 is not
practiced in the other area, but technically mediation can be practiced in the
rest of the country. The reason for the restriction was that at the time
mediation was introduced at the end 1994, very few judges, resident and
district magistrates had been trained as mediators. At the moment virtually all
of them have been trained as mediators.[8]
Arbitration, a form of alternative dispute resolution (ADR), is a technique for the resolution of disputes outside the courts. The parties to a dispute refer it to arbitration by one or more
persons (the "arbitrators", "arbiters" or "arbitral tribunal"), and agree to be bound by the
arbitration decision (the "award"). A third party reviews the evidence in the case and imposes a
decision that is legally binding on both sides and enforceable in the courts.[9]
Arbitration can be either voluntary or
mandatory, although mandatory arbitration can only come from a statute or from
a contract that is voluntarily entered into, in which the parties agree to hold
all existing or future disputes to arbitration, without necessarily knowing,
specifically, what disputes will ever occur and can be either binding or non-binding. Non-binding arbitration is similar to
mediation in that a decision cannot be imposed on the parties. However, the
principal distinction is that whereas a mediator will try to help the parties
find a middle ground on which to compromise, the (non-binding) arbitrator
remains totally removed from the settlement process and will only give a
determination of liability and, if appropriate, an indication of the quantum of
damages payable. By one definition arbitration is binding and non-binding
arbitration is therefore technically not arbitration.
Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute use a conciliator, who
meets with the parties both separately and together in an attempt to resolve
their differences.[10]
Conciliation differs from mediation in that in conciliation, often the parties are in need
of restoring or repairing a relationship, either personal or business. A
conciliator assists each of the parties to independently develop a list of all
of their objectives, the outcomes which they desire to obtain from the
conciliation. The conciliator then has each of the parties separately prioritize
their own list from most to least important. He or She then goes back and forth
between the parties and encourages them to give on the objectives one at a
time, starting with the least important and working toward the most important
for each party in turn. The parties rarely place the same priorities on all
objectives, and usually have some objectives that are not listed by the other
party. Thus the conciliator can quickly build a string of successes and help
the parties create an atmosphere of trust which the conciliator can continue to
develop. Most successful conciliators are highly skilled negotiators. Some
conciliators operate under the auspices of any one of several non-governmental
entities, and for governmental agencies such as the Federal Mediation and Conciliation Service in the United States.
ALTERNATIVE
DISPUTE RESOLUTION (ADR) IN KENYA POSITION
Mediation
is a voluntary, non-binding dispute resolution process in which a neutral
third party helps the parties to reach a negotiated settlement which, when
reduced into writing and signed by all the parties, becomes binding.[11]
It is one of the dispute resolution mechanisms known as alternative dispute
resolution (ADR), as opposed to the legal mechanisms, such as litigation and
arbitration.[12] Advantages of mediation, Mediation is
voluntary and seeks to encourage parties to find solutions that are agreeable
to all of them and, as such, yields a win for all parties and preserves the
relationship between parties. The salient features of mediation are that it
emphasises interests rather than (legal) rights and it is cost effective, informal,
private, flexible and easily accessible to parties to conflicts.
Arbitration, The Arbitration Act, 1995
defines arbitration to mean any arbitration whether or not administered by a
permanent arbitral institution.[13] This is not very elaborate and regard has to
be had on other sources.[14]
An arbitrator is a private extraordinary judge between party and party, chosen
by their mutual consent to determine controversies between them, and
arbitrators are so called because they have arbitrary power; for if they
observe the submission and keep within their due bonds, their sentences are
definite from which there lies no appeal.[15]
An
arbitrator is also defined as a legal arbitrator; a person appointed by two
parties to settle a conflict, arbitrate, and decide by arbitration, judge
between two parties to a conflict (usually at the request of the two parties).[16] Advantages of Arbitration, Being a
practical mechanism of conflict resolution that has been tested over the years,
arbitration has a number of advantages. It is confidential; Parties select an
arbitrator privately and proceedings are held privately. The process also has
flexibility of time, procedure, and venue and is not expensive compared to
litigation. Further, there is minimum emphasis on formality, which fact
encourages expeditious disposal of matters. Arbitration also limits appeals
against awards, a fact which impacts policy on expediency of the arbitral
process.
Conciliation, The Commission for Conciliation, Mediation
and Arbitration (CCMA) defines a conciliation hearing as a process where a
commissioner (or a panelist, in the case of a bargaining council or agency)
meets with the parties in a dispute explores ways to settle the dispute by
agreement.[17]
The advantage of conciliation, is that it extends the negotiation process and
allows for settlement between the parties: for example, where a procedure
requires that conciliation be attempted before industrial action can be
undertaken, time is allowed for both parties to cool off, for approach each
other in a friendlier manner whilst seriously attempting to settle before
engaging in industrial action which might eventually destroy the relationship.[18]
If the dispute is settled, the commissioner will draw-up a settlement agreement
which both parties sign and then issue a certificate recording that the dispute
is settled. A conciliation agreement is final and binding on both parties. It
can be made an award and thereafter certified as an order of court. If the
dispute is not settled, there are two options available.[19] Thus,
when parties settle, society gets less than what appears and for a price it
does not know, parties might settle while leaving justice undone.[20]
1.2 BACKGROUND TO THE RESEARCH
His
Lordship the chief justice of Tanzania visited the united state of America
where he happened to come across the mechanisms of Alternative Dispute
Resolution in the superior court of the district of Colombia, Washington. The
system appealed to him and when he came back he thought seriously about
introducing it into our courts. To start
with, in 1994 three resident magistrates went to Washington to study mediation
for one month. When they came back they trained the judges and resident magistrates
in the Dar-es-salaam, Mwanza and Arusha zone. It was then decided that the ADR
system be introduced into our court civil justice process, but as it will show
presently that decision was implemented piecewise.[21]
Mediation does have traditional
roots in Tanzanian culture. It is common practice for many tribal groups to
apply traditional methods of resolving disputes through the use of respected
traditional wise men or persons within a community or a tribal chief who would
reside over a conflict and assist the parties to resolve the matter.
Nonetheless, Tanzania still lags behind in having a friendly environment for
mediation. As a result, voluntary mediation is not widely used in major
commercial disputes and its usage is growing at a slow rate. There are no statistics or any data available
on mediation proceedings, however, it is correct to say that the success rate
of mediation in court-annexed and at the CMA has proved it to be a great
alternative and it is currently gaining interest.[22]
Alternative Dispute resolution is
an age long cultural phenomenon in most African Countries. Reconciliation is
the traditional means of solving disputes arising from a breach in a
relationship between two or more parties. In fact traditionally African
societies have resolved disputes through the use of a negotiated settlement.
Unfortunately as these countries became colonized, the government controlled
dispute resolution mechanisms replaced the old customary law systems. Some of the
traditional dispute resolution mechanisms survived only as informal systems and
as lower courts in the judicial hierarchy.[23]
In the traditional setting, (villages, hamlets, settlements, and towns),
dispute resolution is almost as old as the traditions and customs of the
people. Customary law is generally known to be the accepted norm in a
community, it is unwritten and one of its most commendable characteristics is
its flexibility.
Resolution
and reconciliation was and in some places still is major way of solving
disputes under the indigenous system of governance. In Kenya, 51% of Kenyans
prefer to report problems to community leaders rather than the police and 60%
don’t ever use the courts.[24]
For example, the role of arbitrator or conciliator was taken up by the elders
or the chief and all resolutions were meant to maintain social cohesion in the
village or settlement. “Any person who is concerned that a dispute
between the parties threatened the peace of the community could initiate the
process. In the process, parties have the opportunity to state their case and
their expectation but the final decision is that of the elders. Customary
arbitration is not private but is organized to socialize the whole society,
therefore the community is present. Parties could arise from the whole process
and maintain their relationship and where one party got an award the whole
society was witness and saw to it that it was enforced. Social exclusion or
ostracism was a potent sanction for any erring party therefore enforcement of
an award was not a problem.[25]
This way of solving disputes showcases the ability for African countries to
take hold of a traditional way of solving disputes and using it in a more
directed and commercialized nature. Given that the term commercial “has a wide
interpretation and includes ‘matters arising from all relationships of a
commercial nature, whether contractual or not including the simple supple or
exchange of goods and services'”, one can see how even village relationships
can benefit from ADR and can be incorporated on a small scale level in the
continent.[26]
In fact is already being seen in Uganda where the 1995 Constitution
has incorporated traditional customary law into the trial process, by requiring
that parties be subject to reconciliation in all matters handled by the
judiciary involving commercial disputes, and the 2000 Arbitration and
Conciliation Act allows for new judicial powers that can allow judges to submit
cases to mediation for amicable resolution. [27]
Each of the ADR processes addressed
herein, arbitration, mediation, negotiation, and conciliation provides
important benefits to parties and is seen as being complementary to the whole
judicial process.[28]
Their records are transmitted to the court of first instance which either confirms
the successful conciliation or assumes jurisdiction if the conciliation fails.[29]
If affirmed the conciliation record acquires the force of a final judgment and
can only be contested to questions of law through an appeal to a higher
Court. It also showcases the potential of the continent if allowed to
evolve naturally.
Although mediation goes back hundreds of years, alternative
dispute resolution has grown rapidly in the United States since the political
and civil conflicts of the 1960s. The introduction of new laws protecting
individual rights, as well as less tolerance for discrimination and injustice,
led more people to file lawsuits in order to settle conflicts. For example, the
Civil Rights Act of 1964 outlawed discrimination in employment or public
accommodations on the basis of race, sex, or national origin. Laws such as this
gave people new grounds for seeking compensation for ill treatment. At the same
time, the women's movement and the environmental movements were growing as well
leading to another host of court cases. The result of all these changes was a
significant increase in the number of lawsuits being filed in U.S. courts.
Eventually the system became overloaded with cases resulting in long delays and
sometimes procedural errors. Processes like mediation and arbitration soon
became popular ways to deal with a variety of conflicts because they helped
relieve pressure on the overburdened court system.
1.3 STATEMENT OF THE PROBLEM
Effective
implementation of any dispute resolution approach mainly depends on the legal
framework in Tanzania where it is subject of the Alternative Disputes
Resolution as a mechanism of resolving the disputes which immediately amends
the civil procedure code the three new orders were added immediately below
order VIII, namely Order VIIIA, VIIIB and VIIIC. Order VIIIA prescribes the
rules for pre-trial settlement and scheduling conferences, but that order a
first settlement and scheduling conference must be held within a period of
twenty one days after conclusion of the pleadings and has to be attended by the
parties or their advocates or recognized agents. [30] Under
the Order the Chief Justice may be notice in the Gazette exempt any part of the
High Court or any subordinate court from the application of the rules either in
respect of all cases or a particular class of cases for a specified period of
time. In the exercised of such power the Chief Justice has duly exempt all
courts from the mediation procedure except the courts in Dar-es-salaam, Mwanza
and Arusha.[31]
They also observed live mediation proceedings at those places and participated
in the mediation of cases. There was
consequently the need to acquaint all the judges’ resident magistrates and district
magistrate with the mediation idea, procedure and basic techniques. At the same
time it was deemed that expedient to have our own mediator trainers. Towards
that end four High Court judges and two resident magistrates were sent to
Washington to learn the requisite skills. Both research and conventional wisdom
show that the majority of cases that currently go to litigation in the court do
not involve the issues of law but concern issue of fact. This means that the
judges and magistrates, who are legally trained and qualified, spend much time
deciding disputes without applying their legal training. This is clearly a
misuse of a rare human resources and result in the fossilization of the law. We
must move away from this situation to a position where judges and magistrates
spend much of their time deciding cases involving the law and thus development
the law. The constitution of united republic of Tanzania under[32]
which provides to promote and enhance dispute resolution among persons involved
in the disputes.
Despite
the factor that civil procedure code under Order VIIIA, VIIIB and VIIIC, provides
that mediation and arbitration as a mandatory procedure for the civil
litigation to be conducted by the judges and magistrates as a mandatory
proceeding while Judges and magistrates
they are not acquire special knowledge on how to conduct mediation and
arbitration.
1.4 OBJECTIVE OF THE STUDY
The
aims of writing this research paper is to discover or identify the reasons why
mostly of the cases which are taken to the commissioner for mediation and
arbitration (CMA) are not succeed in the pre- trial settlement of the dispute. Whether the problem is the
law applicable which use on resolving the dispute arise between the parties or
whether the problem is a judges and
magistrates who were empowered by the judicially to conduct the mediation and arbitration as a
mandatory procedures to all civil suit
before the trial litigation.
1.5 RESEARCH QUESTIONS
1. Why
is an Alternative Dispute Resolution not effectively conducted in it procedures
of resolving the existing disputes, though there are appointed mediators?
2. Whether
there are efficacies with the mediations process in resolving the disputes in
Tanzania?
3. Whether
there are possible causes which led the mediation process to failed on the
resolving the disputes in mediation procedures?
1.6 SIGNIFICANCE OF THE STUDY
This
paper is to be used as an additional to the existing knowledge to compliment
the available literatures on the Alternative Dispute Resolution on it
application of resolving the existing dispute. Also this research is to be used
as a filling gap utensil in place with these ambiguities.
1.7 SCOPE OF THE STUDY
This
research based on the analysis of the efficacy of mediation procedure and
resolution of disputes in Tanzania. The findings of this research will be based
on the judges and magistrate who were practice the mediation proceeding without
having the special knowledge or skills on how to conducting mediation as a
mandatory pre-trial settlement before the trial litigation.
1.8 RESEARCH METHODOLOGY
This
research is essentially a study which
aims to collect and asses data which will be used to establish the existence of
the problem why the Judges and Magistrates who were empowers by the Court to arrange mediation and other
forms of ADR. For the purpose of encouraging settlements of cases, judiciary
bodies were not aware of them to attending the special training on how to conduct
mediation procedure this led to the mostly of cases which were taken for
mediation proceeding not been satisfied by the decision made of the
commissioner for mediation and arbitration(CMA).
1.8.2
RESEARCH METHODS
The
methods that will be employed on data collections in this research papers it
will includes the following methods, secondary data collections, report,
articles, journal textbooks, data base of the mediations cases, report and unreported cases the statistics of cases refers to
Commissioners of Conciliation, Mediation and Arbitrations (CCMA).
1.8.1 SOURCES OF DATA
The
research data will be secondary collections. It will then employed the
following research methods, which based on the secondary data collections which
will be employed the Tuma library, books, journal and articles.
1.8.2
LIBRARY RESERCH
Data
collection from libraries will include; research report, reported and
unreported cases, legislations, text books and various articles relevant to the
subject. This study involved both oral research and library research has
involved reviewing various books, cases statistics and internet, library work
has enabled the findings out on how the various authors have responded to the
recognition of the Alternative Dispute Resolution the mechanism which has it
several forms of settlement of the dispute. Therefore in respect of the
recognition of the alternative dispute resolution as a mechanism of dispute
settlement which includes the members of the judicially, judges and magistrates
the scope and context to which they are required to attend in the subject
matter of mediating process. Thus, from these findings generally new ideas or
argument were gathered which will assist in the whole process of accumulating
data for this study. It is from library work that enabled to draw the basis
from which the field research attached.
1.8.3 ELECTRONIC DATA BASED
RESEARCH
This
will include website links such as; http://www.iwgia.org,
http://www.africa-union.org,
https://www.academia.edu,
www.comcourt.go.tz
1.9 LITERATURE REVIEW
There
are some literatures in this field of the efficacy of mediation procedure in
resolution of dispute in Tanzania though the mechanism adopted in Washington in
1994 by the honorable Chief Justice of Tanzania, the methods known as
Alternative Dispute Resolution (ADR) on how this method will be use by the
judges and magistrate on the dispute settlement in Tanzania mainland.
Clement J. Mashamba,
Alternative Dispute Resolution (ADR) has gained international recognition and
is widely used to complement the conventional methods of resolving disputes
through courts of law. ADR simply entails all modes of dispute
settlement/resolution other than the traditional approaches of dispute
settlement through courts of law. Mainly, these modes are: negotiation,
mediation, reconciliation, and arbitration. The modern ADR movement began in
the United States as a result of two main concerns for reforming the American
justice system: the need for better-quality processes and outcomes in the
judicial system; and the need for efficiency of justice. ADR was transplanted
into the African legal systems in the 1980s and 1990s as a result of the
liberalization of the African economies, which was accompanied by such
conditionalities as reform of the justice and legal sectors, under the
Structural Adjustment Programmers’. However, most of the methods of ADR that
are promoted for inclusion in African justice systems are similar to
pre-colonial African dispute settlement mechanisms that encouraged restoration
of harmony and social bonds in the justice system.[33]
This
handbook provides theories, principles, examples of practice, and materials
relating to ADR in Tanzania and is therefore an essential resource for
practicing lawyers as well as law students with an interest in Tanzania. It
also contains additional information on evolving standards in international
commercial arbitration, which are very useful to legal practitioners and law
students. Any meaningful study of dispute resolution must necessarily entail an
understanding of what disputes or conflicts are, in this study we prefix an analysis
of conflicts and the need to manage them.
This
is done here because conflicts are endemic to and form and integral part of
human life. Thus the society should always look at ways to manages or contain
them. From time immemorial, societies around the world have grappled with
conflicts or disputes and have come up with different approaches to managing
them from such endeavors normative laws evolved.[34] An
interesting definition of conflicts or disputes is one offered by the Danish
centre for conflicts resolution, which simply states that; Conflicts are
disagreements that lead to tensions within and between people.[35]
Jeff Miller Brent, Alternative dispute resolution (ADR;
known in some countries, such as India[36]
as external dispute resolution)
includes dispute
resolution processes and
techniques that act as a means for disagreeing parties to come to an agreement
short of litigation. It is a collective term for the ways that
parties can settle disputes, with (or without) the help of a third party.
Despite historical resistance to ADR by many
popular parties and their advocates, ADR has gained widespread acceptance among
both the general public and the legal profession in recent years. In fact, some courts now
require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried
(indeed the European Mediation Directive (2008) expressly contemplates so-called
"compulsory" mediation; this means that attendance is compulsory, not
that settlement must be reached through mediation). Additionally, parties to merger
and acquisition
transactions are increasingly turning to ADR to resolve post-acquisition disputes.[37]
The rising popularity of ADR can be
explained by the increasing caseload of traditional courts, the perception that
ADR imposes fewer costs than litigation, a preference for confidentiality, and
the desire of some parties to have greater control over the selection of the
individual or individuals who will decide their dispute.[38]
Some of the senior judiciary in certain jurisdictions (of which England and
Wales is one) are strongly in favor of this (ADR) use of mediation to settle
disputes. [39]
Alternative dispute resolution (ADR) is
generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. Sometimes a fifth type, conciliation, is included as
well, but for present purposes it can be regarded as a form of mediation. See conciliation for further details. ADR can be used
alongside existing legal systems such as sharia courts within common law
jurisdictions such as the UK. ADR traditions vary by country and culture. There
are significant common elements which justify a main topic, and each country or
region's difference should be delegated to sub-pages.[40]
There are in addition free standing and or independent methods, such as
mediation programs and ombuds offices within organizations. The methods are
similar, whether or not they are pendant, and generally use similar tool or
skill sets, which are basically sub-sets of the skills of negotiation.
Alternative Dispute Resolution its includes informal tribunals, informal
mediative processes, formal tribunals and formal mediative processes. The classic formal tribunal forms
of ADR are arbitration (both binding and advisory or non- binding) and private
judges (either sitting alone, on panels or over summary jury trials). The
classic formal mediative process is referral for mediation before a
court-appointed mediator or mediation panel. Structured transformative
mediation as used by the U.S. Postal Service is a formal process. [41]
S. J. WARE, Alternative Dispute Resolution (ADR) is defined as
encompassing all legally permitted processes of dispute resolution other than
litigation. It is also seen as an umbrella term that refers generally to
alternatives to the court adjudication of disputes such as negotiation,
mediation, arbitration, mini trial and summary trial.[42]
ADR is also known as appropriate dispute resolution or amicable dispute
resolution. It is seen as a colloquialism for allowing a dispute to drop or as
an alternative to violence.[43]
Like many concepts, hardly do we find a uniform definition of ADR. Though,
there are common elements in the above three definitions. Since definitions in
general do not offer a comprehensive nature of a subject, it is appropriate to
describe the essential elements of this institution.
There
are different kinds of ADR processes. One process differs from the other. The
notable ADR processes are: negotiation, mediation, arbitration, settlements,
summary jury trial, early neutral evaluation, the mini-trial, consensus
building, and negotiated rule making.[44]
ADR practitioners have well defined process of resolving conflicts within their
jurisdiction. The choice of a particular process depends on the kind of
conflicts and the interests of the parties involved. In mediation process, with
the aid of the mediator, disputants resolve their conflict themselves. On the other
hand, in arbitration process, there is adjudication, which binds the parties[45]
B. D. Chipeta, In
all jurisdictions, various modes of settling disputes have been put in place
for orderly and efficacious settlement of disputes. These modes are usually created
by the statutes and in some cases by practice in the relevant tribunals. In
Tanzania until late 1994, the mode of settling the disputes were; Adversarial
procedures, Reconciliation procedures and Arbitratory procedures. In some
jurisdictions they apply the modes of inquisitorial procedures, in 1994 there
was introduced a fourth mode of settlement of disputes, that is, the
Alternative Disputes Resolutions (ADR) procedure simply called mediation.[46]
In the year 2000, the mediation process was incorporated into the supreme law
of the land, that is the constitution of the united republic of Tanzania and
that was done by the thirteenth amendment of the constitution provides[47].
Rutinwa B[48],
in his book titled The New Employment and
Labour Relations Law in Tanzania explained that Representation of parties
in a dispute by a person of choice is another challenge facing the Commission.[49]
As this provision was not discussed in Tripartite Task Force, it is not clear what
was meant by ‘a personal representative’ but since it is up to the party to
choose their representatives, presumably the party can choose any person
including a co-employee, an assistant, or advisor to represent him before the
CMA.
Furthermore
Professor Rutinwa pointed out that another challenge facing the Commission for
Mediation and Arbitration is the provision of Section 27 of Labour
Institution’s Act which provides for the liability of the Commission which
provides for “the Commission shall be liable for any loss suffered by any
person as a result of any act performed or omitted in good faith in the course
of exercising the functions of the commission”[50]
however this was certainly a slip of pen. Consistently with similar provision
on exemption of public bodies from liabilities for bona fide acts, the provision was intended to shield the commission
from liabilities for acts or omissions done in good faith. Professor Rutinwa
also recommended that “the Government should take the earliest opportunity to
correct this fundamental error”[51]
however when Labour Institution’s Act was amended in 2006 this provision was
not amended to correct the error.
In the memorandum of Avon Global
Centre for Women and Justice[52]Lack
of resources that hinder the Prevention and Combating of Corruption Bureau also
other governmental institution that have the ability to address corruption
especially through persecution cases. Example heavy caseload and lack of
resources to be able to handle this caseload have been highlighted as major
factors contributing to judicial inefficiency which in turn contributes to
Prevention and Combating of Corruption Bureau unsuccessful of corruption case
inefficiency of the Governmental Institution and lack of resources.
The
Prevention and Combating of Corruption Bureau which prosecuting is the primary
Tanzania institution charged with prosecuting corruption cases faces a serious
lack of resources and related problems of inefficiency that hampers its Ability
to carry out successful prosecutions. [53]However
this efficiency has been falling ever since, largely due to magnitude and
complexity of the recent cases that involve large amounts of money and high
ranking officials, and since tracing the paper trail involves a lot of
background checks, accounts tracking international cooperation, mutual legal
assistance and extradition matters in relation to corruption offences that have
been included in the Prevention and Combating of Corruption Act (PCCA)[54] Also in referring the law the law reform
commission, the civil justice review system,[55]
Mandatory mediation has been pointed out as a contributory factor to delay
cases when parties granting half hearted support and thus attend mediation
session just as a matter of procedure.
Wilbert Kapinga[56]
of Mkono & Company Advocates had this to say in
his journal of Employment
and Labour Law, Global Legal Insights. Where he had expressed that a party is aggrieved by the award of the CMA
arbitrator, he is entitled to apply to the Labour Court for revision of the
award. Such an application is sustainable only where the revision application
reveals issues relating to jurisdiction, material irregularity, error material
to the merits of the case. Further appeal against the decision of the Labour
Court lies in the Court of Appeal of Tanzania.
This is to say that there is no finality of the proceedings.
Overview of the chapter
Chapter one lays
down on the introduction of the research on what the researcher is dealing
with, background to the research and the problem, sets forth the aims and
objectives of the study, research questions, significance and limitations of
the research, outlines the methodology and literature review.
CHAPTER
TWO
2.0
THE LEGAL FRAME WORK OF THE MEDIATION PROCEDURE IN TANZANIA
2.1
INTRODUCTION
In
Tanzania the mechanism of resolving disputes known as the Alternative Disputes
resolution (ADR), it is provided in the civil procedure code under order VIIIA,
VIIIB and VIIIC as a mandatory procedure in all civil suit must be passed
thought the mediation procedure to resolving the existing dispute between the
parties before the trial litigation. In other words the Alternative Dispute Resolution (ADR) is the name given to the
process where parties in a dispute come to a compromise (or settle their
dispute) without going to court. The main reason people use ADR is to save the
expense of using the courts and solicitors. There are four main forms of
Alternative Dispute Resolution process which might be applied on resolving the
disputes.[57]
Mediation, this is where a neutral
person (the mediator) helps the parties to reach a compromise. The job of the mediator is to consult with
each party and see how much common ground there is between them. S/he should act as a facilitator, taking offers
between the parties. The mediator
doesn't offer an opinion. Mediation is
most suitable where there is some chance that the parties will co-operate. Mediation is not legally binding on the
parties[58].
However, the Centre for Dispute Resolution report that around 80% of the
disputes they deal with are settled without the need for any court action.
There are now many mediation services offered on-line such as The Mediation
Room and Mediate.
Conciliation, this is similar to mediation where a neutral third party helps the
parties to resolve their dispute; however, the conciliator plays a more active
role in the process. S/he will be
expected to suggest ways in which a compromise could be reached. Conciliation is not legally binding on the
parties.
Conciliation
Services the Advisory, Conciliation and Arbitration Service (ACAS) is used by
many employers and Trade Unions to settle disputes before (and sometimes
during) industrial action takes place.
ACAS offers conciliation to both sides in unfair dismissal claims before
the claim can be taken to an Employment Tribunal. Around 60% of unfair dismissal claims are
settled without the need for a hearing at an Employment Tribunal.
Arbitration is the most formal of the methods
used to settle disputes without using the courts. Arbitration is where the parties with a
disagreement pass their dispute to a third party, who will make a judgment on
their behalf. This judgment will then be
legally binding on the parties. The relevant law on arbitration can be found in
the Arbitration Act 1996. The agreement
to go to arbitration can be made by the parties at any time.[59] The parties will normally appoint someone who
is an expert in their particular area of business. There is also the Institute of Arbitrators
who will provide trained arbitrators to parties who wish to settle a dispute.
The actual procedure to be followed in any arbitration hearing is left to the
parties to decide. Therefore,
arbitration hearings can take many forms.
The parties can decide on a paper arbitration, which means the parties
submit everything to the arbitrator in writing, which will then read everything
and make a decision. However the parties
can also have a hearing at which they appear and give evidence and witnesses
may be called. The decision made by the arbitrator is called an award and is
legally binding on the parties.
2.2 THE EMPLOYMENT AND LABOUR
RELATION ACT.
The Commission for
Mediation and Arbitration (CMA) was established to foster the settlement of
labour disputes by means of Conciliation, Mediation and Arbitration without
unnecessary delay and/or expenses. The two relatively laws the Labour
Institutions Act 2004[60] and
the Employment and Labour Relations Act, 2004[61] track the cornerstones of
the modernized labour relations system in Tanzania. The Acts establish new
labour institutions an important one of which being the Commission for
Mediation and Arbitration (CMA) as a means of resolving labour disputes. The recent labour system introduces the principle that labour disputes
should be resolved as early and at a low level as possible. It is emphasized
therefore that labour disputes should be resolved at the work place. This
requires among other things, that both the employers and employees must be
aware or be informed of their rights and obligations and how to manage these rights.
Over the years, trade unions and employers’ organizations such as the Trade
Union Congress of Tanzania (TUCTA) and the Association of Tanzanian Employers
(ATE) have sacrifice courses to their members and representatives on the new
labour laws. Tanzania Union Congress of Tanzania and Association of Tanzania
Employers have also established capable units to assist their members on labour
relations issues. However, despite this there is still no suspect that many
employers and employees are not completely familiar with the content of the new
labour laws as well as the procedures associated with them. If it is not possible to settle the
disagreement at the workplace, the parties can bring their disputes to the
Commission for Mediation and Arbitration. It is the expectation that the
Commission for Mediation and Arbitration will provide a new, less legalistic
and bureaucratic system for resolving labour dispute through an informal but
structured hearing and discussion process.
The
Commission for Mediation and Arbitration will achieve this first by mediation,
if unsuccessful; the case will go for arbitration. In short, the difference
between the two processes is that the mediation process attempts to find a
settlement which is acceptable to both parties, whereas the arbitration process
allows the arbitrator to make a decision based on hearing. Under,[62]
referral the disputes for mediation under this Act, according to [63]
which provides for the disputes referral to the commission shall be in the
prescribed form.
The
party, who refers the dispute under subsection (1), shall satisfy the
Commission that a copy of the referral has been served on the other parties to
the dispute. According to [64]
which stipulated that Subject to the provisions of section 87, the mediator
shall resolve the dispute within thirty days of the referral or any longer
period to which the parties agree in writing.[65]
Provides the mediator shall decide the manner in which the mediation shall be
conducted and if necessary may require further meetings the period referred to
in subsection (4). One of the
preconditions for a well functioning Commission for Mediation and Arbitration
is that the parties have faith in the institution, its procedures and the
mediators and arbitrators. The Commission for Mediation and Arbitration is
independent of the government, political parties, trade unions and employers
association.
A Code of Conduct has
been developed governing the functions of mediators and arbitrators. The
mediators and arbitrators are well versed with labour relations and some have
even previously worked as labour officers. During the process of establishing
the Commission for Mediation and Arbitration, tailored training was offered to
mediators and arbitrators aimed at preparing them for their new duties and
responsibilities to service the entire country.
The Commission for
Mediation and Arbitration has established eleven (11) operational zonal offices
as follows: Dar es Salaam zone, Dodoma zone, Morogoro zone, Arusha zone, Tanga
zone, Mwanza zone, Mbeya zone, Mtwara zone, Songea zone, Iringa zone and Tabora
zone. When a dispute is adduced to the
Commission for Mediation and Arbitration, the parties must be represented by a
third party, the trade union, Association of Tanzania Employees or a lawyer specialized
in labour affair. The Labour Court has been consistent in enforcing the rule
that all labour disputes must first be referred to the Commission for Mediation
and Arbitration for arbitration. In the case of Hector Sequeiraa v. Serengeti Breweries Ltd[66] the Labour Court dismissed the case as
“incompetent” a labour complaint which was filed directly in the Court without
first pursuing mandatory Commission for Mediation and Arbitration mediation.
2.3
THE CIVIL PROCEDURE CODE CAP 33 R.E. 2002
According
to the order VIIIA of the civil procedure code which prescribed the first
pre-trial settlement under[67]
which suggest that in every case assigned to a specific judge or magistrate a
first schedule and settlement conference attend by the parties or their recognized
agents or advocate shall be held and prescribed over by such judge pleadings
for the purpose of ascertaining the speed track of the case, resolving the case
through negotiation, mediation, arbitration or such other procedures not
involving a trial.[68]
In ascertaining the speed track of the case, the presiding judge or magistrate,
shall after consultation with the parties or their recognized agents or
advocates determine the appropriate speed track for such a case make a
scheduling order, setting out the dates or time for future events or steps in
the case, including preliminary applications, affidavits, counter affidavits
and notices and the use of procedure for alternative disputes resolution. According
to the order VIIIB of the same Act under[69]
the Chief Justice may, by notice published in the gazette, exempt any part of
the High Court or any subordinate court from the application of any rule or
rules under this order either in respect of all cases or a particular class of
cases for a specified period of time.[70]
It
suggest that where, after full compliance with the directions made under
sub-rule (2) of rule 3 of Order VIIIA, the case remains unresolved, a final
pre-trial settlement and scheduling conference shall be held, presided over by
the judge or magistrate assigned to try the case for the purpose of giving the
parties a last chance to reach an amicable settlement of the case and for
enabling the Court to schedule the future events and steps which are bound or
likely to arise in the conduct of the case, including the date or dates of
trial.[71]
The final pre-trial settlement and scheduling conference shall be held within a
period not exceeding thirty days, forty days or sixty days from the time of
full compliance with the first pre-trial conference order in respect of cases
allocated to Speed Track One, Two or Three respectively.
In
case the matter are not settled within the time prescribed for the matter to be
settled according to the civil procedure code in it provision the matter shall
be arranged for the final pre- trial as it prescribed by the Act and if it
failed to be resolving in the final pre-trial, the matter will be refer to the
trial litigation for the first hearing in the court proceeding according to the
provisions provided by the Act.[72]
Where an amicable settlement of the case is not reached pursuant to the
provisions of sub-rule (1) of this rule, the judge or magistrate presiding at
such conference, shall, after consultation with the parties or their recognized
agents or advocates, make a final pre-trial conference order therein framing
the issues according to provisions of Order XVII of this Code, and fixing the
trial date or dates and generally providing for matters necessary for the
expeditious trial of the case according to the relevant Speed Track.
The
directions are to be made by the Chief Justice under the government notice no.
422 of 1994 as it provided under[73]
where the parties are in the conflict this offered the mandatory procedure to
helding by the between the party to resolving the existing dispute outside the
court room, which called an Alternative Disputes Resolution by using it
mechanism of resolving the disputes which are arbitration, negotiations and
mediation procedure. Where negotiation or mediation or other similar alternative
procedure for resolving the matters in dispute between the parties is directed
by the court under a scheduling order made under sub-rule (2) of rule 3 of
Order VIIIA or under sub-rule (1) or rule 3 of Order VIIIB, such negotiation,
mediation or similar alternative procedure, other than arbitration, shall be
conducted in accordance with directions issued by the Chief Justice.[74]
2.4
THE CONSTITUTION OF UNITED REPUBLIC OF TANZANIA OF 1977
The
Tanzanian legal system is based on the English Common Law system. The
first source of law is the Constitution of 1977, (although a new constitution,
which was approved by a special Constituent Assembly, is awaiting a public
referendum initially set for April 30, 2015 but postponed indefinitely);
followed by statutes or acts of parliament; and case law, which are reported or
unreported cases from the High Courts and Courts of Appeal and are used as
precedents to guide the lower courts.[75]
There are three specialized divisions within the High Courts. Commercial,
Labour, and Land.[76]
The High Court of Tanzania and the District and Resident Magistrate Courts also
have original jurisdiction in commercial cases subject to specified financial
limitation.
Apart
from the formal systems of courts, there exist quasi-judicial bodies including
the Tax Revenue Appeals Tribunal, which was established under the Tax Appeals
Act, and the Fair Competition Tribunal, which was established under the Fair
Competition Act. Notwithstanding the court and quasi-judicial bodies,
Tanzania also has alternate dispute resolution procedures in the form of
arbitration proceedings. According to the constitutional of the country it
allowed the dispensing of the justice.[77]
The Judiciary shall be the
authority with final decision in dispensation of justice in the United Republic
of Tanzania. In order to promote and enhance dispute resolution among persons
involved in the disputes, and
to dispense justice without being tied up with technicalities provisions which
may obstruct dispensation of justice.
2.5 THE LEGAL FRAMEWORK FOR
ARBITRATION IN TANZANIA MAINLAND
The
legal framework for arbitration in Tanzania Mainland is governed by two main
pieces of legislation, the Civil Procedure Code[78]
and the Arbitration Act,[79]
together with the Arbitration and the Arbitration Rules.[80]
There is also a separate and distinct legal regime for arbitration in labour
matters and for land matters at the lower levels.
The
rule of domestic arbitration law is that the arbitral tribunal should apply the
substantive law chosen by the parties in the agreement. For this purpose the
choice of the laws of a country shall be understood to refer to the substantive
laws of that country and not to its conflict of laws rules. If, or to the
extent that, there is no such choice or agreement, the tribunal shall apply the
law determined by the conflict of laws rules that it considers applicable. In
Tanzania there are two principal arbitration bodies, both with their own set of
arbitral rules, namely, the Tanzania Institute of Arbitrators (TIA) and the National
Construction Council (NCC). While the TIA was established six years ago in
accordance with the Arbitration Act, the NCC is a statutory body created under
the National Construction Council Act (No. 20 of 1979).[81]
The
Civil Procedure (Arbitration) Rules are contained in the Second Schedule to the
Civil Procedure Code. The Code which is pari materia with the Indian Civil
Procedure Code of 1809 was received in the Tanganyika Territory by way of India
during the British colonial rule. Tanzania Zanzibar, a constituent of the
“union” also has its own Civil Procedure Decree, which also traces its origin
from the Indian Civil Procedure Code. The Arbitration Act of Tanzania Mainland
traces its origins in the colonial Arbitration Ordinance, which was promulgated
by the British colonial government in 1957.
The
historical origins of the Civil Procedure Code and the Arbitration Act, may
account for the existence of two separate legal regimes on arbitration in this
country, the Civil Procedure (Arbitration) Rules are contained in the Second
Schedule to the Civil Procedure Code, which governs the enforcement of domestic
arbitration and the Arbitration Act and its Rules for the enforcement of
domestic awards and enforcement and recognition of foreign awards.
As
I intimated to earlier in this paper, I do not intend to go into the practical
minefields of arbitration. In the same vein I do not intend to discuss in
details the provisions in the Civil Procedure (Arbitration) Rules which are
contained in the Second Schedule to the Civil Procedure Code or the Arbitration
Act and its Rules. I shall however, only make some general observations as
regards the shortcoming in some of the provisions for the purpose of informing
the discussion on the practical problems judges and practitioners may encounter
in applying those provisions.
2.5.1 THE CIVIL PROCEDURE
(ARBITRATION) RULES
Order of reference to arbitration in a suit
The Civil Procedure (Arbitration) Rules make provisions for reference to
arbitration in “a matter in difference between parties in a suit.”[82]
The Rules therefore only come into play where there is a “suit” already filed
in court and a matter in difference between the parties arise in that suit
which merits to be resolved by arbitration. In my considered view, if this
procedure is resorted to by parties it could serve a lot of the parties’ and
the court’s time. Where the court sees no cause to remit the award or any of
the matters referred to arbitration for re-consideration, and no application
has been made to set aside the award in a suit or the court has refused such
application, after the time for making such application has expired, “the court
shall proceed to pronounce judgment according to the award.”[83] The
Rules explicitly bars any appeal against a decree from a judgment pronounced on
an award in a suit except where the decree is “in excess of, or not in
accordance with, the award.
Order
of Reference on Agreements to Refer to Arbitration the Civil Procedure
(Arbitration) Rules also provide for reference on agreement to refer to
arbitration by way of “application in court.[84]
Reference on agreement to refer to arbitration presupposes the existence of an
agreement between persons involved in a suit in court to refer their
differences to arbitration prior to fling the application. Upon the application
being filed in court, it has to be numbered and registered as a suit.[85]
Arbitration
without the Intervention of Court Rule 20 of the Civil Procedure (Arbitration)
Rules deals with the filing of award in a matter referred to arbitration
“without intervention of court.”In order for the Court to intervene under Rule
20, there has to be a matter already referred to arbitration without its
intervention, and an award which has been made, which is now sought “to be
filed” in court. Rather strangely however, Rule 20 of the Civil Procedure
(Arbitration) Rules does not limit the opportunity to file the application to
file the award only to the person who is “a party to the agreement to refer to
arbitration.” It widens the opportunity to “any person interested in the
award”, which escapes any definition under the Rule and thus a recipe for
confusion. The legal net cast by the Rule is too wide, since “any person
interested in the award” would mean any person interested in having the award
filed in court. The award is filed in Court to seek enforcement by the judicial
process of an award made by agreement of the parties without the intervention
of the court. The award may impact not only the parties to the agreement to
arbitrate but to other interested parties as well. Where the Court is satisfied
that the matter has been referred to arbitration and that an award has been
made thereon, and where there are no grounds for making an order of remittance
or reference or for setting aside the award, the Court will make an order for
the “award to be filed,” and proceed to “pronounce judgment” and a decree to
follow.
The
law expressly bars appeal from such decree expect “in so far as the decree is
in excess of or not in accordance with the award.[86]
Rule 20 of the Civil Procedure (Arbitration) Rules concerning the filing of
award in a matter referred to arbitration without intervention of court is also
a fertile source of confusion. There are more or less similar provisions in the
Arbitration Act and the Arbitration Rules, which regulate the procedure for
filing, recognition and enforcement of domestic and foreign arbitral awards in
matters referred to arbitration without the intervention of the court. We
should think seriously if it serves any useful purpose to continue having in
place two separate schemes for the filing and enforcement of domestic arbitral
awards. The need for harmonizing these two legal regimes and put in place a
single legal regime for filing and enforcing domestic awards made with or
without the intervention of the court cannot be overemphasized
2.5.2 THE ARBITRATION ACT AND
ARBITRATION RULES
The
Arbitration Act[87]
(Arbitration Act) still incorporates multilateral agreements like the
Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the
Execution of Foreign Arbitral Awards of 1927.[88]Tanzania
has to date entered into 17 bilateral investment agreements incorporating
arbitration provisions.[89] The Arbitration Act provides for “arbitration
of disputes.” The Act does not define what kind of disputes are amenable to
arbitration but provides further that it applies “only to disputes which, if
the matter submitted to arbitration formed the subject of a suit, the High
Court only would be competent to try.” The Act does not distinguish between
commercial and non commercial disputes.[90]
That the conferment of powers on subordinate courts has to be made by the
President with the concurrence of the Chief Justice is peculiar enough. That
the vesting of powers otherwise exercisable by the High Court on subordinate
courts has not been done to this date is rather telling. Consequently, only the
High Court has jurisdiction over disputes concerning all commercial arbitral
awards. The idea to confer such powers on subordinate courts at least at the
level of Resident and magistrate courts should further be explored and
implemented.
Arbitration
falls within the category of Commercial Dispute Resolution (CDR) component[91],
which is comprised of the formal court system, alternative dispute resolution
(ADR) techniques[92],
and international arbitration.[93]
ADR in the form of arbitration proceedings and court-annexed mediation (CAM)
constitute one of the procedures in the three classical forms of third party
intervention in dispute resolution, the judge in a domestic court or tribunal,
the arbitrator; and the mediator (Makaramba, 2009). All these forms share a
common feature, resolution of disputes by third party intervention after the
dispute had become a significant bone of contention between the parties
(Makaramba, 2009). The two main features of dispute resolution mechanisms, the
process (third party intervention); and the timing, that is after the dispute
has matured, which were also used by our ancestors, are still very much part of
the modern landscape for dispute resolution in this country (Makaramba, 2009).
Arbitration is an alternative dispute resolution mechanism.
It
is touted as a mechanism for saving time and costs. One of its main attractions
is the ability of parties to resolve disputes privately without the
intervention of courts. This is called party autonomy and gives rise to
arbitral justice. It means that the process of resolving disputes by
arbitration is taken outside of the glare of the publicity that might arise in
litigation before courts, or what we may call formal state justice. There is
however, an inherent conflict between the “right to a judge” in formal state
justice as a content of the constitutional right to a fair and public hearing
and the right to an arbitrator encompassed in the agreement on submission to
arbitration normally contained in the arbitration clause. The arbitration
clause is a contractual document which is governed by the normal common law
doctrines of freedom of contract and freedom of trade and commerce.
2.5.3
AD HOC ARBITRATION
Ad
hoc arbitration is conducted independently and according to the rules specified
by the parties and their attorneys. The parties therefore agree to execute the
arbitral process themselves by appointing the arbitrator and attending to the
necessary administrative requirements before and during the hearing. The
parties then conduct the arbitration under the procedural rules designated by
the contractual arbitration clause; or, more often than not, by the rules
agreed to once the dispute has arisen. On its face, ad hoc arbitration may seem
to be less expensive and more flexible, which is why it is touted as the
cheaper option because no administrative fees are paid for the referral.
However, counterarguments suggest that the absence of facilitative processes
may cause the parties to incur unforeseen expenses exceeding the administrative
fee.[94]
2.5.4 INSTITUTIONAL ARBITRATION
An
institutional arbitration is one that is entrusted to one of the major
arbitration institutions to handle. It provides an independent, neutral set of
rules that already exist. It requires that an institution provide services that
are critical to ensuring that the arbitration proceeds smoothly. For example,
the International Court of Arbitration (ICA)[95]
decides on the number of arbitrators and their fees, appoints the arbitrators,
ensures that the arbitration is being conducted according to International
Chamber of Commerce Rules, determines the place of arbitration, sets time
limits, and reviews arbitral awards. In addition, an arbitral body will ensure
controlled costs, since it will have a pre-determined framework of charges. An
arbitral body sets forth a set of arbitration rules that governs the potential
arbitration. It may also issue a model arbitration clause that can be
incorporated into the contract or business agreement when the transaction is
made. In institutional arbitration, the specialist institution generally
administers the arbitration under its own rules, unless it agrees to do so
under another set selected by the parties. The arbitration institution appoints
the tribunal and, in most cases, acts as the intermediary between the parties
and the tribunal until the hearing commences, undertaking all necessary
administrative arrangements.
In
choosing an arbitration institution however, parties must ensure that its
procedural rules are compatible with the laws of the lex arbitri, that is, the
place where the arbitration is to be held or seat of arbitration for that
matter. In recent years institutional arbitration has grown fast. One reason
for such growth is that there are now many arbitral bodies, and parties can
select one that is best suited to their needs. Some organizations welcome any
type of dispute. In contrast, there are organizations that specialize in
particular types of disputes, such as those involving investment disputes,[96]
or that focus on a particular topic, such as intellectual property disputes.[97]
Specialize in disputes in particular industries.[98]
This
clearly shows that arbitral awards may be issued by a number of institutions,
which may complicate research in this particular area. Another factor in
selecting an institution is the nature of the party; one institution may be
open only to states or member governments, while another may be available to
any entity or individual.[99]
BIBLIOGRAPHY
BOOKS
·
Alternative Disputes Resolution by Clement J.
Mashamba.
·
Civil procedure by B. D. Chipeta.
·
Code of Civil Procedure of 1908 by D.F. Mulla, in
volumes 2.
·
Brudige.E.2012.
Avon Global; centre for Women and Justice at Cornell law school.
·
K.W. Patchett, Recognition of Commercial
Judgments and Awards in the Commonwealth (London: Butterworths, 1984)
pp.195-201
·
Pieter Sanders, “The making of the
Convention”, Enforcing Arbitration Awards under the NYC. Experience and
prospects, New York 1999, United Nations,
www.uncitral.org/pdf/english/texts/arbitration/For the full texts of the Miami
Draft, the Comparison Table and the Explanatory Note, see www.newyorkconvention.org.
·
Robert Vincent Makaramba, Arbitration as a Mechanism to Speed up
Delivery of Justice 2012.
STATUTES
·
The Civil Procedure Code Chapter 33 Revise
Edition, 2002 as amended from time to time since 1966 of Civil Procedure Code.
Government Printers, Dar es salaam.
·
The Constitution of United Republic of Tanzania 1977,
as amended from time to time,
Government Printers, Dar es salaam.
·
Arbitration Act Cap. 15.
·
The law of marriage Act Cap. 29
·
The employment and labour relation Act, 2004
OTHER SOURCES
·
The Manual For Mediation Training in Tanzania,
prepared by Hon. D. P. Mapigano, J, Hon. B. D. Chipeta, Hon. J. A. Mrosso
J, Hon. J. M. Mackanja, J, Mr. J. E. Mtotela, PRM and Mrs. R. A. Teemba, SRM.
·
Quoted in Hammerich, E., Meeting conflicts mindfully.
Tibetan Centre for Conflicts Resolution (TCCR) and Danish centre for Conflict Resolution
(DCCR).
·
Training Manual on Labour Law, Collective Labour
Law (Mimeo) (2005) pg 42
·
The Employment Ordinance Conciliation Boards.
INTERNATIONAL
INSTRUMENTS
·
Albert Jan van den Berg, The New York
Arbitration Convention of 1958: Towards a uniform judicial interpretation
(1981).
·
Albert Jan van den Berg, Hypothetical
Draft Convention on the International Enforcement of Arbitration Agreements and
Awards, www.newyorkconvention.org/draft-convention.
·
Nussbaum, “Treaties on Commercial
Arbitration – A Test of International Private Law Legislation” HLR 56, 1942,
219.
CASE
·
Republic V. Makaramba (2009) “Commercial
Disputes Resolution in Tanzania: Challenges and Prospects” in The Tanzania
Lawyer, Vol. 3 No. 2 (2009) pages19-38.
[1]
Alternative dispute resolution" (ADR) is a term
generally used to refer to informal dispute resolution processes in which the
parties meet with a professional third
party who helps
them resolve their dispute in a way that is less formal and often more
consensual than is done in the courts.
[2]
Mainly, these modes are; negotiation, mediation,
conciliation, and arbitration. The modern ADR movement began in the United
States as a result of two main concerns for reforming the American justice
system: the need for better quality processes and outcomes in the judicial
system and the need for efficiency of justice. ADR was transplanted into the
African legal systems in the 1980s and 1990s as a result of the liberalization
of the African economies, which was accompanied by such conditional ties as
reform of the justice and legal sectors, under the Structural Adjustment
Programmers’.
[3]
This handbook provides theories, principles,
examples of practice, and materials relating to ADR in Tanzania and is
therefore an essential resource for practicing lawyers as well as law students
with an interest in Tanzania. It
also contains additional information on evolving standards in international
commercial arbitration, which are very useful to legal practitioners and law
students.
[4]
In the Tanzania Mediator Directory you will find
Tanzania Mediators and their expertise. Select the Tanzania Mediator who has
expertise in your dispute. For example, a dispute involving an employment
agreement may be best handled by the Tanzania Mediator with expertise in
Tanzania employment and labor contracts. What types of disputes can be mediated
through Tanzania Mediation? Any type of disagreement can be mediated, including
disputes involving Tanzania divorce, business, consumers, employment, real
estate and construction issues.
[5]
Mediation is a "party centered" process in
that it is focused primarily upon the needs, rights, and interests of the
parties. The mediator uses a wide variety of techniques to guide the process in
a constructive direction and to help the parties find their optimal solution. A
mediator is facilitative in that manages the interaction between parties and
facilitates open communication. Mediation is also evaluative in that the
mediator analyzes issues and relevant norms "reality testing" while
refraining from providing prescriptive advice to the parties.
[7]
The rest of the registries of the High Court,
resident and district magistrates were exempted from applying those provisions
for one year. In other words mediation, was permitted only in those three area
loosely referred to as the “Pilot areas.”
[9]
O'Sullivan, Arthur;
Sheffrin , Steven M.
(2003). Economics: Principles in Action. Upper Saddle River, New Jersey:
Pearson Prentice Hall. Arbitration is
often used for the resolution of commercial disputes,
particularly in the context of international
commercial transactions. In certain
countries such as the United States, arbitration is also frequently employed in
consumer and employment matters, where arbitration may be mandated by the terms
of employment or commercial contracts.
[10]
They
do this by lowering tensions, improving communications, interpreting issues,
encouraging parties to explore potential solutions and assisting parties in
finding a mutually acceptable outcome. Conciliation differs from arbitration in that the conciliation
process, in and of itself, has no legal standing, and the conciliator usually
has no authority to seek evidence or call witnesses, usually writes no
decision, and makes no award.
[11] P.
Fenn, “Introduction to Civil and Commercial Mediation”, in Chartered Institute
of Arbitrators, Workbook on Mediation, (CIArb, London, 2002), p.10.
[12] J.G. Merrills, International Dispute
Settlement, 4th edition. (Cambridge University Press, Cambridge, 2005), pg. 28.
[14]
According
to Khan, arbitration is a private consensual process where parties in dispute
agree to present their grievances to a third party for resolution.
[15] B.
Totterdill, An Introduction to Construction Adjudication: Comparison of Dispute
Resolution Techniques. (Sweet & Maxwell, London, 2003), p. 2
[17] The
CCMA is a dispute resolution body established in terms of the Labour Relations
Act, 66 of 1995 (LRA) of the Republic of South Africa.
[19]
Firstly,
if the matter remains unresolved and relates to probation, the matter must
continue as on Conciliation Arbitration (CON-ARB) basis. If the matter relates
to dismissal (conduct/incapacity) or unfair labour practice and the parties do
not object to the process, the matter will continue on CON-ARB basis. Secondly,
the commissioner might issue a certificate of non resolution and the applicant
can then apply for arbitration. Arguments against ADR mechanisms, whereas the
ADR mechanisms are lauded as having all the above advantages, there is still a
school of thought that is completely against it. Owen Fiss in forefront of criticizing ADR mechanisms
and the whole notion of it on the premises that; a) There is imbalance of power between the
parties. There is absence of authority to consent (especially when dealing with
aggrieved groups of people), ADR presupposes the lack of a foundation for
continuing judicial involvement and Adjudication promotes justice rather than
peace, which is a key goal in ADR.
[21]
The
civil procedure code (amendment of schedule) rules, 1994 which were published
in the gazette under GN No.422 of 1994 and which came into operation on 1st
November 1994. The amendments had
reference to the first schedule. Rule 2 orders IV was amended to make it
mandatory for a judges or magistrate in charge of a court to cause a suit to be
assigned to a specific judges or magistrate and to do so within four days after
the institution of the suit.
[23]
D.
Kohlhagin, “Alternative Dispute Resolution and Mediation: The Experience of
French Speaking Countries” Presentation at EACC Conference: How to Make ADR
Work, in Addis Ababa, Ethiopia
[25] Owasanoye,
Bolaji, “Dispute Resolution Mechanisms and Constitutional Rights in Sub-Saharan
Africa,” UNITAR, (2001).
[28]
However
conciliation represents the closes embodiment of traditional customary law in
African societies. An example of this is seen in Benin, which has
throughout the country specialized conciliation tribunals that are considered
competent to hear almost all matters of disputes related to civil law.
[29]
Kohlhagen, Domink “How to Make ADR
Work in Ethiopia” EACC Addis Abada, Supra at 8. In this way Benin has mixed conciliation, arbitration and the
judicial process in an integrative way that is quite exceptional.
[30]
The
conference is held for the purpose of enabling the judges or magistrate
handling the case to determines the appropriate speed track of the case and
ascertain whether it can be resolved through negotiations, arbitration,
mediation or such other procedures not involving a trial.
[31] In
1995 the Chief Justice and two judges went Washington to familiarize themselves
with the ADR processes. Soon thereafter several judges of the superior court of
the district of Colombia and other American experts in ADR came to Tanzania at
the invitation of the Chief Justice. They trained the judges and some of the
magistrates in Dar-es-salaam, Mwanza and Arusha for mediation. A decision was ultimately taken
that the mediation process should extend over the whole Tanzania mainland.
[33]
In
Tanzania ADR was introduced in 1994 through Government Notice No. 422, which
amended the First Schedule to the Civil Procedure Code Act (1966), and it is
now an inherent component of the country's legal system. In recognition of its
importance in civil litigation in Tanzania, ADR has been made a compulsory
subject in higher learning/training institutions for lawyers.
[34]
See
generally, as human
beings have conscience and intelligent to think about the future, definitely
there will be conflicts. Conflicts are made by human beings and methods to resolve
them must be created through human intelligent. It is wise to solve the
conflict through dialogue, not through weapons. H.H. the Dalai Lama, Dharamsala 29.11.2001.
[35] Inspired
by Buddhist philosophy, the Dalai Lama which gives more elaborations from the
perspective of dharma, we say that the root causes of conflict are hatred and
attachment and a strong separation of “we” and “others”. Building this strong
notion of “self” and “others” is based on ignorance or not knowing reality. All
these problems are caused by ignorance of the concrete grasping of the self, which
is diametrically opposed to the comprehension of selflessness. This is a very
profound discussion of the Buddhist philosophy.
[36] Australian
Securities and Investments Commission Complaints resolution schemes.
Asic.gov.au. Retrieved on 2013-07-14.
[38]
Totaro, Gianna., "Avoid
court at all costs" The Australian Financial Review Nov. 14 2008. (April
19, 2010)
[40] ADR
is of two historic types. First, methods
for resolving disputes outside of the official judicial mechanisms. Second,
informal methods attached to or pendant to official judicial mechanisms.
[41]
Classic
informal methods include social processes, referrals to non-formal authorities
such as a respected member of a trade or social group and intercession. The
major differences between formal and informal processes are (a) pendency to a
court procedure and (b) the possession or lack of a formal structure for the application
of the procedure.
[43] Alternative
Dispute Resolution, http://en.wikipedia.org/wiki/Alternate dispute resolution, Retrived
December 10, 2008.
[46]
This was done by the
government notice number, 422 of 1994 which amended the first schedule to the
civil procedure code Act, of 1966. This mode of settlement of disputes is dealt
with in greater detail later in this book
[49]
A
party in a dispute can be represented by a member or official of that party’s
trade union or employers association or an advocate as per section 86 and 88 of
ELRA, Rule 23(1) of LIA (Mediation and Arbitration) Rules and Rules 7 and 21 of
Labour Institutions act (Mediation and Arbitration) Guidelines. However Section
2 of the Written Laws (Miscellaneous Amendment) Act, 2006 which among other
things allowed a party to arbitration proceeding to be represented also by a
personal representative of the party’s own choice.
[53]
In
additionally, the Prevention and Combating of Corruption Bureau may also become
under its purview due to its lack of Independence from other able to
successfully prosecute all the corruption cases that come under its purview due
to its lack of Independence from other government institutions. In Mr. Hoseah’s
study he finds that until 2002 all cases that were reported to the Prevention and
Combating of Corruption Bureau were investigated.
[57]
Negotiation, this is the simplest form of ADR.
Where two people have a dispute they can negotiate a solution
themselves. The advantages to the
parties involved are that it is completely private and it's fast and
cheap. Where parties to a dispute cannot
settle it themselves they may instruct solicitors who will negotiate on their
behalf. Even when negotiation fails at
these early stages of a dispute and court proceedings start solicitors will
usually continue to negotiate on their client's behalf. This results in many cases being settled out
of court.
[58] Mediation
Services, There are a number of organizations that offer mediation
services. One of the main ones is the
Centre for Dispute Resolution Many companies use their mediation services to
save £1,000s in legal fees. The only
disadvantage of using mediation to settle a dispute is there is no guarantee
that a settlement will be reached. This
means that you still have to use the courts, so in effect failure at the
mediation stage can result in extra delays and extra costs.
[59]
It
can be written into a business contract by what is called a Scott v Avery
clause or the parties may just agree on arbitration when a dispute arises. The
parties can agree the number of arbitrators who will hear their dispute. It could be three, two or just one person.
[60] (CAP
300 R.E 2009)
[69] Order
VIIIB, Rule 2 of the civil procedure code. [cap 33, 2002]
[70] Order
VIIIB, Rule 3(1) of the civil procedure code [cap 33, 2002]
[71] Order
VIIIB, Rule 3(3) of the civil procedure code [cap 33, 2002]
[74]
Order
VIIIC, Rule 2 of the civil procedure code [cap 33, 2002] the procedure on
arbitration shall refer any matter in dispute referred to arbitration under a
court order shall be dealt with as provided for under the Second Schedule to
this Code.
[75]
https://www.export.gov/article?id=Tanzania-Dispute-Settlement.
The Court of Appeal of
Tanzania, which handles all the appeals from Mainland Tanzania and Zanzibar, is
the highest ranking court in the country, followed by the High Court of
Tanzania, which handles all types of civil and criminal cases and commercial
matters.
[76]
The
Labor and Land divisions have exclusive jurisdiction over their respective
matters, while the Commercial division is without exclusive jurisdiction.
[81]
In
2001, the NCC adopted a set of Arbitration Rules (Rules), to enable parties to
settle their construction disputes under these Rules. Nonetheless, since
arbitration is relatively undeveloped in Tanzania, parties can resolve their
disputes under the Rules, regardless of the subject matter of the dispute.
Notably, the majority of arbitral proceedings that have taken place in Tanzania
over the years have been conducted in a disorganized and ineffective manner,
leading to most disputes ending up before international arbitration bodies such
as the International Centre for Settlement of Investment Disputes (ICSID), the
International Chamber of Commerce (ICC) and the London Court of International
Arbitration (LCIA).
[88]
The
New York Convention entered into force in Tanzania on 11 January 1965. There
have been no declarations made according to articles I, X and XI of the
Convention. Tanzania has also been a contracting state to the Convention on the
Settlement of Investment Disputes between States and Nationals of Other States
(ICSID) of 1965 since 17 June 1992 and to the Multilateral Investment Guarantee
Agency of 1985 since 19 June 1992.
[89]
The
corresponding countries are: Denmark (in force since 21 October 2005), Finland
(in force since 30 October 2002), Germany (in force since 12 July 1968), Italy
(in force since 25 April 2003), the Netherlands (in force since 1 April 2004),
Sweden (in force since 1 March 2002), Switzerland (in force since 6 April 2006)
and the United Kingdom (in force since 2 August 1996). Tanzania also has
agreements with Egypt, Jordan, the Republic of Korea, Mauritius, South Africa,
Turkey and Zimbabwe, Canada, Oman which have not entered into force yet.
[90]
There
is a proviso in the Act that in
regard to disputes which, if they formed the subject of a suit would be triable
otherwise than by the High Court, the President may, with the concurrence of
the Chief Justice, confer the powers vested in the court by this Part either
upon all subordinate courts or any particular subordinate court or class of
court.
[91] COMMERCIAL
LAW HARMONIZATION AND BILATERAL ASSISTANCE” by Charles A. Schwartz available at
http://www.uncitral.org/pdf/english/congress/Schwartz.pdf.
[92]
Alternative
Dispute Resolution ("ADR") refers to any means of settling disputes
outside of the courtroom. ADR typically includes arbitration, mediation, early
neutral evaluation, and conciliation. As burgeoning court queues, rising costs
of litigation, and time delays continue to plague litigants, more governments
have begun experimenting with ADR programs. Some of these programs are
voluntary; others are mandatory. There are some more forms of Alternate Dispute
Resolution like Evaluation, Early Neutral Evaluation, Neutral Fact Finding,
Ombudsman etc practiced in other parts of the world.
[93]
The
resolution of disputes arising from international commercial disputes by
arbitration is governed by the 1958 New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (The New York Convention – NYC). With
the accession of Liechtenstein to the NYC on 7th July 2011, Liechtenstein
becomes the 146th State party to the NYC. Tanzania
ratified the NYC in 1965. Fifteen (15) and twenty nine (29) countries have enacted
legislation based on the 1985 UNCITRAL Model Law on International Commercial
Arbitration, which provides a harmonized system of national legislation to
regulate private arbitration processes – for further details visit the UNCITRAL
Website at http://www.un.or.at/uncitral/english/status/index/htm. The Fourth
Schedule to the Tanzanian Arbitration Act, [Cap.15 R.E. 2002], makes the 1927
Geneva Convention on the Execution of Foreign Arbitral Awards and the 1923
Geneva Protocol on Arbitration Clauses, which was opened at Geneva on 24th
September, 1923, part of the law of Tanzania and thus recognized as binding
although these two Conventions have since been superseded by the New York
Convention.
[94]
Ad
hoc arbitration allows the parties to tailor the arbitration process to the
specific circumstances of their dispute.A successful ad hoc arbitration often
depends on the skill and experience of the attorneys and arbitrators involved.
Our attorneys have successfully represented clients across the world in numerous
international ad hoc arbitration proceedings.
[97]
The
WIPO Convention, the constituent instrument of the World Intellectual Property
Organization (WIPO), was signed at Stockholm on July 14, 1967, entered into
force in 1970 and was amended in 1979. WIPO is an intergovernmental
organization that became in 1974 one of the specialized agencies of the United
Nations system of organizations and has its own Rules of Arbitration for
settling IPR Disputes.
[98] An
example is the American Arbitration Association (AAA) ((http://www.adr.org),
which has different sets of special rules governing disputes in different
subjects.
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