SOURCES OF LAW IN TANZANIA

SOURCES OF LAW IN TANZANIA

1. Statutes 
A statute may be defined as an express and formal laying-down of a rule or rules of conduct to be observed in the future by persons to whom the statute is expressly, or by implication, made applicable.
(a) Primary or principal legislation
These are the laws made by parliament, after a bill has passed by majority of parliament. These laws must not conflict with the constitution. It should be noted that, the parliament is the supreme legislative body; it can make or unmake any law to any extent. Any act passed by parliament which is of general application is absolutely binding on all persons within the sphere of parliament’s jurisdiction.
(b) Subordinate or subsidiary legislation
The power of the parliament to delegate its authorities is found under article 97(5) of the constitution of the United Republic of Tanzania which states that:-
“The provisions of this article or article 64 of this constitution shall not prevent the parliament from enacting laws making provisions conferring on any person or department of Government the power to make regulations having the force of law or conferring the force of law on any regulations made by any person, or any department of Government”
Because parliament is legislatively omnipotent, it can grant to some other person or body the power to make orders, regulations or rules which have the force of law. In strict legal theory, the parliament ought to retain in its own hands the power and duty to enact all the laws and rules affecting the state. In practice, the parliament cannot discharge this duty mainly because it has so much to do and so little time in which to do it. It overcomes this difficult by resorting to delegated legislation, sometimes called subordinate legislation.
Acts of parliament tends to lay down general principles or policy and to leave the working out of the administrative details to subordinate authorities who are responsible for carrying the Acts into effect. For instance the Road Traffic Act, 1973 empowers the minister responsible for transport to make regulations in respect of road-traffic matters by means of statutory instruments.
The subordinate legislation as a matter of general principle, a subordinate legislation should not conflict with a parent statute which enabled its creation. In practice, parliament cannot discharge this duty mainly because it is difficulty by resorting to delegated legislation, sometimes called subordinate legislation
Reasons for delegated legislation
(a) Lack of parliamentary time. The legislature has insufficient time to deal with and debate all necessary measures for efficient government
(b) Urgency/emergency. Parliament is not always is session, some of the things requires urgent attention
(c) Flexibility. A statute requires elaborate and cumbersome procedure for its enactment.
(d) Technicality of subject matter
(e) Future needs

2. The ConstitutionAll other legal rules in the country derive their authority from it. Any other law that is inconsistent with the constitution will therefore be declared invalid by courts of law. By virtue of article 64 of the constitution, the parliament has power to make laws; these laws are what we refer to as statutes. The constitution is the basic law of the Land (mother law. It provides for the structure of the state organs i.e. the Judiciary, the parliament, and the executive. Each of the organs above is vested with powers derived from the constitution, which provides powers and duties in a general way which later are clarified and implemented by statute enacted by parliament as from time to time.
The constitution of the united republic of Tanzania is of 1977. Under article 64 the parliament is given legislative power in relation to all union matters concerning mainland Tanzania and the House of Representatives in respect of Zanzibar matters (article 64(3)). Under article 64(5) any law that is in conflict with the constitution shall be void to the extent of the inconsistency.
From the constitution, we derive the rights and duties of citizenship and the government. For instance, in terms of labour law, the constitution provides for the freedom of expression (article 18), the person’s freedom of association (article 20), the right to work (article 22), the right to just remuneration (article 23), the right to own property (article 24) and the duty to participate in work (article 25).

3. Case law or precedents
The reasons for decisions of the higher courts may serve as precedent for future courts to follow in the event that a similar fact situation is adjudicated again
The courts are bound to follow precedent cases in accordance with the doctrine of stare decisis. Essentially the common law contains a set of principles enunciated through the decisions of courts over the past six hundred years. The reasoning behind the ruling in the judgment is called ratio decidendi. The ratio decidendi of the case is what is followed in the next case of the same facts or similar circumstances. That becomes a precedent. A precedent is said to be authoritative when it comes from the court above in the hierarchy.
Characteristics of Precedent
(i) Certainty
(ii) Continuity
(iii) Precision
(iv) Flexibility
(v) Uniformity
(vi) Rigidity
(vii) Predictability 

4. Customary Law or customs
A custom is defined as a usage that has obtained the force of law and is binding as regards the particular place, persons and things with which it is concerned. Customs are not written laws; they develop from a particular usage or traditions. In modern law, custom has very limited role to play and a narrower meaning: that is, a particular rule which has existed since time immemorial and must have obtained legal status within a particular location.
The characteristics of custom are:-
(a) It must have existed in fact, or by presumption, since time immemorial, namely 1189
(b) The custom must be local, that is, confined to a particular locality. A custom cannot exist in one place which purports to confer a right to something in different locality
(c) Custom is an exception to the normal operation of the common law-though many customs have abolished by legislation.
Essential elements of custom
(a) Time 
(b) Must be reasonable
(c) Must be certain
(d) Must be obligatory
(e) Must not have been interrupted
Customs as a source of law forms the body of laws known as customary law, thus a customary law may be defined as the body of customs which by usage has acquired the force of law. As such it is constantly changing with changing life.
Customary law in Tanzania.
Read section 11(1) (a)-(c) of JALA 
Customary law shall be applicable to, and courts shall exercise jurisdiction in accordance therewith in, matters of a civil nature.
(a) Between members of a community in which rules of customary law relevant to the matter are established and accepted, or between a member of one community and a member of another community if the rules of customary law of both communities make similar provision for the matter
(b) Relating to any matter of status of, or succession to, person who is or was a member of a community in which rules of customary law relevant to the matter are established and accepted; or
(c) In any other matter in which, by reason of the connection of any relevant issue with any customary right or obligation, it is appropriate that the defendant be treated as a member of the community in which such right or obligation obtains and it is fitting and just that matter be dealt with in accordance with customary law instead of the law that would otherwise be applicable.

5. Islamic law 
It is applicable to the people who profess Islam. It Began about 600 A.D
S.11 (2) (a)(ii) of JALA; It is used in matters of marriage, divorce, guardianship, inheritance, waqf and similar matters in relation to members of a community which follows that law.

6. Received Laws
These are the laws received from England through India by via the Tanganyika Order in Council of 1920, famously known as the Judicature and Application of Laws Ordinance (JALO) which is now known as the Judicature and Application of Laws Act (JALA).
Section 2 of the JALA, 1961
The jurisdiction of the High court shall be exercised in conformity with the written laws, the common law, the doctrines of equity and the statutes of general application in force in England on the 22nd day of July 1920.
Provided always that, the said common law, doctrines of equity and statutes of general application shall be in force in Tanzania only so far as the circumstances of Tanzania and its inhabitants permit and subject to such qualifications as local circumstances may render necessary
To-date the above section in referred to as section 2(2) of the Judicature and Application of Laws Act, Cap. 358 (R.E. 2002)

Section 9-The provisions of the acts of parliament of the United Kingdom.....as amended prior to the 22nd day of July 1920 shall apply to and have effect within Tanzania subject to the exceptions, adaptations and modifications set out therein.
These are:-
(i) The Foreign Tribunals Evidence Act, 1856
(ii) Evidence by Commission Act, 1859
(iii) Foreign Law Ascertainment Act, 1861
(iv) British Law Ascertainment Act, 1861
(v) Conveyancing (Scotland )Act, 1874-section 51
(vi) Colonial Prisoners Removal Act, 1884
(vii) Evidence by Commission Act, 1885
In force in England on the 22nd day of July, 1920
Common law, also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law,[1] on the principle that it is unfair to treat similar facts differently on different occasions.[2] The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent.[3] Thereafter, the new decision becomes precedent, and will bind future courts.
Note: Equity is the body of rules and principles developed by the Lord Chancellor. They were based on concepts of fairness and justice. They were applied in special courts known as the courts of chancery which began to recognise and enforce new rights and duties, thus providing an alternative system of justice to that of the common law courts.
The rights and remedies developed under equity.
(i) The trust
(ii) The equity of redemption
(iii) The doctrine of part performance
(iv) The equitable lease
(v) The doctrine of equitable estoppel
(vi) Restrictive covenants
(vii) Contractual licenses
(viii) The remedy of injunction
(ix) The remedy of specific performance
(x) The remedy of rectification
(xi) The remedy of rescission 
(xii) The remedy of accounts
(xiii) Delivery up and cancellation of documents
(xiv) The process of discovery of documents
(xv) The sub-poena
(xvi) The appointment of receiver.
N: B. Equitable remedies are discretionary, so that even if a litigant wins a case on the merit the remedy might be withheld if, for example the winning litigant had himself been guilty of unconscionable conduct during the dispute. Thus “he who comes to the equity must come with clean hands”


TANZANIA COURT SYSTEM HIERARCHY
Court system refers to the legal framework of judicial organs in Tanzania. i.e how the judicial organs have been organised or arranged in Tanzania.
The judiciary is the body empowered by the constitution to dispense justice by giving decisions on various legal issues brought before it and interpret the laws. This is by virtue of article 4 of the constitution of the United Republic of Tanzania, 1977.

In view of the above, the court hierarchy is arranged as follows

THE COURT OF APPEAL
This is the apex and supreme court of the land that is established by virtue of article 117 of the URT constitution, 1977. It has original and appellate jurisdiction.

THE HIGH COURT
The High court of Tanzania is established by virtue of article 108 of the URT Constitution, 1977 and it has both original and appellate jurisdiction as well as unlimited jurisdiction in all legal matters. The High court of Tanzania is organised through divisions which are the Main registry, the Land Division, the Labour Division and the Commercial division.
When cases reach the High court all land matters will be dealt with land division, if its a labour matter it goes to the labour division and if it is a commercial matter it goes to the commercial division. Take note that, land matters do not go to ordinary courts, they have their own hierarchy of dealing, which is the Village Land Tribunal, The Ward Tribunal, The District Land and Housing Tribunal then the High Court.

THE RESIDENT MAGISTRATE COURT&DISTRICT MAGISTRATE COURT
These are two courts with concurrent jurisdiction and they are established through the Magistrate’s Court Act, 1984. The district court is established by virtue of section 4 (1) of the MCA 1984 in every district of Tanzania and it has jurisdiction to exercise powers within the district it is formed. A district court exercise jurisdiction in all proceedings of a criminal nature and in all such other proceedings under any written law where the value of the property does not exceed 150 million shillings
The court of the Resident Magistrate is established by order of the chief justice vested in him under section 5(1) of the MCA, 1984, to exercise jurisdiction in such areas as may be specified in the order establishing it. A resident magistrate court shall have jurisdiction in all proceedings in respect of which jurisdiction is conferred and any law for the time being in force conferring power to the resident magistrate.



THE PRIMARY COURT
The primary court is established by virtue of section 3 of the MCA 1984 in every district and it has jurisdiction in all proceedings of a civil nature where the law applicable is customary law or Islamic law, and for the recovery of civil debts, rent or interest where the value of the subject matter does not exceed 5 million shillings and for the recovery of civil debt arising out of contract where the value does not exceed 3 million shillings.