There is no specific legislation in Tanzania that criminalises gay marriage. Section 9(1)of the Law of Marriage Act defines marriage as a voluntary union of a man and a woman intended to last for their joint lives. Gay marriage does not fit within this definition of marriage in Tanzania but that does not mean gay marriage is a crime in Tanzania. It only means gay marriage is not recognised as a valid marriage and cannot be enforced in Tanzania.

What the law prohibits in Tanzania is having sexual intercourse against the order of Nature as provided for under section 154 of the Penal Code. Both parties to the act of sexual intercourse against the order of nature are held criminally liable. But for the law to be enforced there must be a complaint to the police and proof of the act that two men had sexual intercourse against the order of nature. In short, you can enter Tanzania as a gay couple or gay person, but cannot indulge in intercourse against the order of nature.

The Interpretation of Laws Act is clear in that the subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and subsidiary legislation shall be void to the extent of any such inconsistency. There is also a limit as to the amount of a fine that can be imposed by the regulations.

It is also not true that the National Assembly has no power over subsidiary legislation. Under our laws, all regulations must be laid before the National Assembly within 6 sitting days of the National Assembly next following publication of the regulations in the Gazette, and the National Assembly has a right to disallow any such regulations, although we have not seen that happen as in our opinion regulations are not normally carefully scrutinised. This may however change if this is brought to the attention of the National Assembly.

Infact section 38(2) of the Interpretation of Laws Act states that notwithstanding any provision in any Act to the contrary, if the National Assembly passes a resolution disallowing any regulations of which resolution notice has been given within 14 sitting days of the National Assembly after such regulations have been laid before it or if any regulations are not laid before the National Assembly, such regulations shall cease to have effect, but without affecting the validity or curing the invalidity of anything done or of the omission of anything in the meantime. This law further states that subsection (2) applies notwithstanding that the period of 14 days referred to in that subsection, or part of that period, does not occur in or during the same session of the National Assembly, that in which the regulation is laid before the National Assembly concerned. In subsection 4 the law states that notwithstanding any provision in any Act to the contrary, if the National Assembly at any time passes a resolution amending any such regulation or substituting another regulation or part of a regulation for that which has been disallowed by the National Assembly under subsection (2), then on the passing of any such resolution (a)  amending a regulation or part of a regulation the regulation or part of a regulation so amended shall, after the expiration of 7 days from the publication in the Gazette of the notice provided for in subsection (5), take effect as so amended; (b)  substituting a regulation or part of a regulation in place of a regulation so substituted shall, after the expiration of 7 days from the publication in the Gazette of the notice provided for in subsection (5), take effect in place of that for which it is so substituted.

The Regulations can also be challenged in Court and there have been various instances of Courts striking down regulations that are made beyond powers vested on Ministers. Your lawyers can guide you further on this.

Inconsistent decisions are part and parcel of building legal jurisprudence and this happens around the world, and Tanzania is no different. The current Court of Appeal is trying hard to fast track cases but we agree that there is a need for consistency, which should not be dispensed at the expense of speed.

If there are inconsistent decisions, and if this is brought to the attention of the Court, the Chief Justice may order that a full bench of 5 or even 7 justices be appointed to hear parties on these decisions so that the Court can come with one decision of the Court.