Q&A – 27 July 2020

Applicability of Customary, Statutory and Islamic law in Tanzania

I am a law student studying for a LLB. I find it quite intriguing how there are various laws when it comes to inheritance matters amongst others. How do I know when to apply Customary, Statutory or Islamic law in a matter? Please guide.
YT, Dar

Hopefully this is not an assignment that you had in school that you have reassigned to us! In any case, this is a very interesting question and we decided to answer it.

It is worth noting that the connecting factor to any of the stated regimes is ethnicity, religious affinity or race. In order to determine the applicability and choice of law in Tanzania, we should in brief understand the Laws governing succession/inheritance in Tanzania and the time of their applicability.

For statutory law, the relevant statute is the Indian Succession Act of 1865 which was made applicable to Tanzania by the Indian Acts (Application) Ordinance, Cap.2. Under section 24, a man is considered to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. The Indian Succession Act is applied to Christians and all those who are not governed by the Islamic religion or customary rights.

Islamic Law applies to all those who proclaim the Muslim faith and who live according to such faith. The main law that provides for the application of Islamic Law in Mainland Tanzania in matters relating to succession/inheritance where parties are members to the Islamic faith is known as the Succession (Non-Christian Asiatic) Ordinance (Cap.112).

For Customary law, the rules of testate and intestate succession are embodied in the Local Customary Law (Declaration) Order (No.4) of 1963 which provides for inheritance related issues. Customary law is applied to all those living according to the tribe rites, tradition and customs of a given society.

However, in most cases determination of applicable law may not be straight forward and in most cases administration of the estate of a deceased person may be convoluted by conflicts and choice of applicable laws. It is not always easy to claim explicitly that a deceased person was a Christian completely detached from the customs and traditions of the society in which s/he belonged. Thus, in most cases, the beneficiaries of the estate would always be in favour of the law that will favour them in the administration of the estate of the deceased. For instance, since customary law is more inclined to men, a widow would likely prefer statutory law over customary law while the relative of a deceased male would usually favour customary law which favours them best.

It is worth noting that since a deceased is not around to determine or state which law is to be applied in the administration of their estates, Courts developed tests that can be used to determine conflicts and choice of law in administration of estates. The tests are a) Mode of Life tests – evidence of the lifestyle of the deceased etc. b) Intention of the deceased – where one lives a will, makes written or oral declarations in relation to the administration of his or her estate when still alive.

In most cases, in case of conflicts over applicable law in the administration of the estate of the deceased, the Court will be the one responsible to determine the law applicable depending on the evidence adduced by contesting parties. Thus, whether the estate of the deceased can opt out one of the legal regime and apply the other depends on the nature of the case, issues arising out of the case and evidence adduced by the contesting parties.

The case of Re Innocent Mbilinyi, deceased [1969] HCD No.283 illustrates how the mode of life test is applied by Courts. The deceased was a Ngoni married to a Chagga woman under Christian marriage rites. Both were staying in Dar es Salaam. The deceased had left Songea when he was still of tender age of about 7 years. He was educated outside Songea till he graduated with a Bachelor of Arts Degree. Both rarely visited Songea or Moshi. They had three children from the marriage. Innocent died intestate and the matter was brought before the High Court to determine which law was to apply in the administration of deceased’s estate.

The Judge held that, “on these facts which are in no way controverted I am satisfied that it can be said that the deceased had abandoned the customary way of life in favour of what may be called a Christian and non-traditional way. There is satisfactory evidence that he was to a large extent alienated from his family and that his children had no connection whatever with them. Accordingly, I would direct that the law to be applied in the administration of the estate of the deceased should be the Indian Succession Act”.

In another case of George S/O Kumwenda v. Fidelis Nyirenda [1981] TLR 211, the deceased Martin Kumwenda was a Malawian national living in Dar es Salaam and at the time of his death he left a house. The Primary Court invoked the application of customary law and on appeal the District Court overruled the Primary Court and opted for the application of statutory law. In the High Court Kisanga J. (as he then was) ordered a retrial because the two Courts below had arbitrarily made a choice of law without first investigating the mode of the life of the deceased.

Lastly, in the case, in the matter of the Estate of the Late Salum Omari Meremi [1973] LRT No.80, the deceased was a Hehe Moslem. He was an army Officer and married a member of his own tribe but contracting a civil marriage. He was a practicing Muslim. Justice Mfalila held that applying mode of life test (that he was a practicing Muslim) the deceased had intended his estate to be administered according to Islamic Law and not Hehe Customary Law, as the deceased’s manner and way of life was far removed from his tribal customs.

From the above you will observe that there is no generic answer to your question and it all depends on the facts and particulars of each case. Bottomline is to make sure you have a Will. It will save your loved ones a lot of troubles.