Q&A – 2 December 2019
Application of customary law
I am confused as to the sources of laws in Tanzania. Is customary law relevant in this time and era in Tanzania and if so how is it applied?
UM, Dodoma
You cannot undermine customary law, or customs and traditions in any time and era. In fact, with the current ‘googalisation’ of the world, there is a serious risk that we are trying to adopt into customs that were nonexistent before. In Tanzania, we still maintain our culture and heritage, and hope that we continue to do so.
Customary law is formally recognised as a source of law by the Judicature and Application of Laws Act. Since enacted laws have been developing over the years, customary laws application has continued to decrease but it is still existent even today.
According to the Act, customary laws may only be applied by Courts in matters of civil nature and with respect to cases (a) between members of a community in which rules of customary law relevant to the matter are established and accepted, or (b) 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.
If customary law is applied, the Court concerned is required to apply the customary law prevailing within the area of the local jurisdiction of the Court, or, if there is more than one such law, the Court is required to apply the customary law applicable in the area in which the act, transaction or matter occurred or arose.
It is the District Councils that are given the task of identifying customary laws prevalent in areas of their jurisdiction and recommend to the Government which of those customary laws should be declared as laws to be applied by Courts within areas of such District Councils. We recommend you read the Act for further details.
Death penalty abolished in Tanzania
I have read with great pleasure the African Court on Human and Peoples’ Rights decision forcing Tanzania to abolish the death penalty. What happens next? How is the decision going to be implemented? My observation is that this Court is very slow as most of the case numbers are those of 2015.
KI, Dar
We address this question having just received it as it is in the media and that it has been slightly misrepresented.
First, we must appreciate that Tanzania is one of the few African countries that has allowed its people and NGOs direct access to this African Court. Most African countries have not deposited the Article 34(6) Declaration that allows persons and NGOs such access. To that extent Tanzanians should be proud.
Second, the African Court did not abolish the death penalty in its recent November 2019 decision. It simply stated that the mandatory death penalty imposition should be changed i.e. not all sentences should have a minimum of a death penalty. At the moment, for offences like murder and treason, the only sentence available is death by hanging which is what the African Court has directed be changed. Death penalty may still stay but it should not be the minimum sentence.
Lastly, your observation on speed is true. The Court still has over 300 cases/applications outstanding but you must remember that there is a process to follow. Moreover, one cannot entirely blame the Court as African countries commitment to the Court, shamefully so, is questionable as is the funding available to the Court. These factors, amongst others, does not make this Court to be the most efficient in case disposition. To put this into perspective the equivalent European Court has a budget 10+ times that available to the African Court.
Seizure of property in economic offence
If a person is charged with an economic offence, apart from being sentenced can the Court confiscate his properties?
OL, Dar
Under the Economic and Organised Crimes Control Act, where the Court convicts a person of any economic offence, it may make any order in respect of the property of that person including forfeiture. The Court shall not make an order for the forfeiture of the property of any person convicted of an economic offence if the property in question or any part of it is not proved to have been involved at all in the commission or facilitation of the offence.
Males only mentioned in our laws, does it mean females nonexistent
There is a Tanzanian law that mentions only the male gender and totally ignores the females who should be equally bound by the law. Is such a law, that is only targeted to males not discriminatory? As a male I am very upset that Tanzania is so advanced in overprotecting women.
YU, Dodoma
Do not panic. Tanzania is playing its part in protecting women but your interpretation in this is misconstrued. The new way of drafting a law is by using the word person, instead of ‘he.’ There are, however, some laws that are decades old which still apply but use the word ‘he’ instead of person.
Vide the Interpretation of laws Act, the ‘he’ in such laws refers to both genders. Section 8 states that in any written law (a) words importing the masculine gender include the feminine; (b) words importing the feminine gender include the masculine; (c) words in the singular number include the plural and words in the plural number include the singular. Hence the law is not discriminatory as it applies to both genders although the male gender is the only one that it refers to.