Q&A – 18 May 2015

Court following unfair law

The Law of Marriage Act is one of the most unfair laws I have seen in Tanzania. For example it allows marriage of girls below the age of 16, does not allow consensual divorces and is not specific enough when it comes to what the women rights are when it comes to a broken marriage. My question is when everyone is making such a big noise about this, why are the judges sticking to following this law? Should they not be interpreting the law the way people want the law to be interpreted? Who should we contact to exert more pressure?
WE, Mwanza

The following phrase is engraved above the entrance of the United States Supreme Court building: “Equal justice under law.” It is important to note that it does not say “Equal Justice” because that is limited to the context of the “Law.” In other words, a court’s role is to resolve cases and controversies in accordance with the law, and to interpret the law, if necessary. By the way, “fairness” is a synonym for “justice.” One of the gravest mistakes people make is equating law with concepts of justice and fairness.

The job of the Judges is to interpret the law and ensure that people follow the law. The Judges have no responsibility of changing the law. That power is vested in parliament. No matter how wrong a law is, the judges are bound to follow it, although they may use their creativity to dilute or circumvent certain circumstances.

We agree with your concerns on the law of marriage act. Unfortunately, even if the Judges agree that the law is outdated, they are bound to follow it. It is for parliament to change the law, and despite announcing that the law is going to “soon” change, we have seen no action over the past 7 years. It is unfortunate that this outdated law still persists, but it is a fact and is not something that Judges can change. With parliament soon to be dissolved, sadly it is unlikely you will see any change of this law this year.

We must add that the Law of Child Act defines a child as anyone below 18, yet the law of marriage act allows a girl below 16 to get married. We recommend you contact the Ministry of Community Development, Gender and Children which we believe should be leading this change of the law of marriage act initiative.

We share your concerns and suggest you also contact the Gender Equality and Women Empowerment programme (GEWE II) being implemented by Tanzania Media Women’s Association (TAMWA), Tanzania Gender Networking Programme (TGNP), the Tanzania Women Lawyers Association, (TAWLA), The Zanzibar Female Lawyers Association (ZAFELA) and TAMWA’s Crisis Resolving Centre- (CRC) who are all thinking along the same lines as you.

If the new marriage bill is still being drafted, it is a shame that it has taken so long despite everyone agreeing that the law of marriage act, as it stands now, is prejudicial to women and outdated. Your follow up may help accelerate this process (assuming it has started).

Reference to Hansard for interpretation

There are certain tax laws that have clear ambiguities and can be interpreted either way. How does one possibly get some form of certainty? Can one use the Hansard?
TE, Dar

If the tax issue is related to Income Tax, you may invoke section 131 of the Income Tax Act to get what is called a private ruling which is made in advance of a transaction. Section 131 states the following: (1) The Commissioner may, on application in writing by a person, issue to the person, by notice in writing served on the person, a private ruling setting out the Commissioner’s position regarding the application of this Act to the person with respect to an arrangement proposed or entered into by the person. (2) Where prior to the issue of a ruling under subsection (1), the person makes – (a) a full and true disclosure to the Commissioner of all aspects of the arrangement relevant to the ruling; and (b) the arrangement proceeds in all material respects as described in the person’s application for the ruling, the ruling shall be binding on the Commissioner with respect to the application of this Act to the person with respect to the arrangement. (3) A ruling shall not be binding on the Commissioner under subsection (2) to the extent to which the Act as in force at the time the ruling is issued is changed.

We now come to your question on the useage of Hansard for interpretation purposes. For the benefit of readers, Hansard is the name of the transcripts of Parliamentary Debates in Tanzania. Everything that is said in parliament, including introductions and purposes of Bills, is recorded in Hansard, which is publicly available. The question is whether or not, after the Bill becomes law, one can use the Hansard to try and interpret any area in the law that is unclear. The answer is yes, but to an extent.

We have not found a reported Tanzanian case law on this point but the general authority that is widely used in commonwealth jurisdictions is a British case, Pepper versus Hart, a landmark decision of the House of Lords whereby the Justices ruled that Hansard could be used in statutory interpretation. The court established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to Hansard in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege.