INTRODUCTION
Under the Union Constitution the judiciary is not a union matter within the union between the former Tanganyika and Zanzibar. Therefore each party of the United Republic has its own judicial system. The only unifying factor is the Court of Appeal. This court was established in 1979 following the collapse of the East African Community in 1977 which resulted in the winding up of the activities of the former Court of Appeal for East Africa. The Court of Appeal is the “Union Matter” and thus has jurisdiction in both Tanzania Mainland and Zanzibar.
Cases coming from both the High Courts of Tanzania Mainland and Zanzibar are entertained by this court. There are some conflicts between the Zanzibar Constitution and the Union Constitution on the jurisdiction of the Court of Appeal. According to the Appellate Jurisdiction Act, 1979 [CAP 141 R.E. 2002]; the Court of Appeal has powers to hear appeals on the matters originating from both parts of the union.
But under Zanzibar constitution, the Court of Appeal does not have power to hear Islamic matters from Zanzibar and matters related to the interpretation of the Zanzibar constitution. This conflict remains unresolved. In 2000 the 13thamendment to the Constitution of the United Republic of Tanzania, 1977, independence of the judiciary was reaffirmed in an explicitly of the constitution as per Article 107A and 107B.
COURT SYSTEM OF TANZANIA MAINLAND
COLONIAL COURT SYSTEM
Before colonialism customary dispute resolution was organized by traditional institutions such as council of elders, the chiefs etc. the coming of colonialism disrupted the system, formal courts were introduced after colonialism.
FEATURES OF COLONIAL COURT SYSTEM
1. Dual court system.
There were two types of court namely as follows;
- High Court and Subordinate Court.
- Native Court.
2. Absence of Independence of judiciary.
3. Lack of separation of powers.
4. Application of foreign laws such as Indian Civil Procedure and Penal Code, Common
Laws, Doctrine of Equity and the Statutes of General Application.
5. Dominance of legal technicality arising from procedural and evidential technicalities.
6. Political and administrative officers played role of magistrates.
7. Existence of Customary offences.
8. Absence of Rule of Law.
STRUCTURE OF COLONIAL COURT SYSTEM
HIGH COURT AND SUBORDINATE COURT
I. HIGH COURT
This court was established under Article 17 of the Tanzania Order in Council of 1920.
II. SUBORDINATE COURT
This was established and changed in form and character by various colonial ordinances;
- The 1st Ordinance is No. 6 of 1920
- The Subordinate Court Ordinance No. 13 of 1930
- The Court Ordinance of 1947
STRUCTURE OF NATIVE COURT
(a) The Courts established under the Courts Ordinances of 1920, under that ordinance a native court was defined to mean a court of Liwals, Kadhi, Akida, Chief, Headman and other person as empowered by the government.
(b) Native Courts established under the Native Court Ordinance of 1929 and those established under the Courts Ordinances No. 13/1930
(c) Local Courts Ordinance No. 44/1951
PRESENT COURT SYSTEM/COURT SYSTEM AFTER INDEPENDENCE
After the independence the court systems have the notable features;
I. Integration of Local and Subordinate Court system.
This was done by abolishing the dual court system.
II. The Courts of law were divorced from the political ties.
STRUCTURE OF COURT SYSTEMS AFTER INDEPENDENCE
The bottom we had the following courts;
ü Primary Court
ü District Court
ü Resident Magistrates’ Court
ü High Court
ü East African Court of Appeal
ü Privy Chancellor
Four Courts established by our law that is from Primary Court up to High Court.
PRESENT COURT SYSTEM IN TANZANIA
THE PRIMARY COURT
The Primary Court established under section 3(1) of the Magistrates’ Court Act [CAP 11 R.E. 2002] which provides as follows;
“…There are hereby established in every district primary courts which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction within the respective districts in which they are established…”
The Primary Court is the lowest court in judicial ladder in the country and was established in the 1960’s. The rationale behind the establishment of the Primary Court is the courts which would deal with small matters expeditiously while at the same time be close to the community in which they dispense justice. Thus the procedures in this court are supposed to be simple and parties themselves can conduct cases without the aid of the prosecutors and advocates.
COLUMN OF THE PRIMARY COURT
All cases in the Primary Court must be presided over by a magistrate assisted by two assessors and the decision of the case is reached by the majority of three. The column in the Primary Court is one magistrate seating with two assessors and the decision is made by consensus in case of disagree the votes of the majority shall prevail. However the magistrate has the casting vote as provided under section 7(1) & (2) of the Magistrates’ Court Act [CAP 11 R.E. 2002] as follows;
“… (1) In every proceeding in the primary court, including a finding, the court shall sit with not less than two assessors. (2) All matters in the primary court including a finding in any issue, the question of adjourning the hearing, an application for bail, a question of guilt or innocence of any accused person, the determination of sentence, the assessment of any monetary award and all questions and issues whatsoever shall, in the event of difference between a magistrate and the assessors or any of them, be decided by the votes of the majority of the magistrates and assessors present and, in the event of an equality of votes the magistrate shall have the casting vote in addition to his deliberative vote…”
APPOINTMENT OF THE PRIMARY COURT MAGISTRATES
Primary Court Magistrates like other categories of magistrates in the judiciary are appointed by the Judicial Service Commission which is a special body established under Article 112 & 113 of the Constitution of the United Republic of Tanzania [CAP 2 R.E. 2002] which provides as follows;
“…There shall be an Appointments Advisory Commission for Judges and Magistrates in Mainland Tanzania which in this Constitution shall be Known as the “Judicial Service Commission and the functions of the Commission shall be and includes the appointment of magistrates and control of their discipline…”
ASSESSORS
Assessors of the Primary Court must be of the age between 30 and 60 years old as provided under section 8(1) of the Magistrates’ Court Act [CAP 11 R.E. 2002] as follows;
“…All persons between the age of thirty and sixty years shall be liable to serve as assessors in courts…”
But some persons are excluded from being assessors in Primary Court as per section 8(2) of the Magistrates’ Court Act [CAP 11 R.E. 2002] due to various factors as follows;
“…Ministers and members of the National Assembly, magistrates and judges, persons actively discharging the duties of priests or ministers of their respective religion, physicians, surgeons, dentists and apothecaries in actual practice, legal practitioners in actual practice, officers and men in the Armed Forces of the United Republic on full pay, persons disabled by mental infirmity, officers of the Police and Prison Services and such other officers of the Government and such other persons as may be exempted by the Chief Justice from liability to serve…”
LANGUAGE OF THE COURT
Language applicable or used in Primary Court is Swahili language as per section 13(1) of the Magistrates’ Court Act [CAP 11 R.E. 2002] which provides as follows;
“…The language of primary courts shall be Kiswahili…”
SERVICE OF A LAWYER IN THE PRIMARY COURT
Criminal cases in the Primary Courts are instituted by the complaints themselves, not by the police. At the same time “advocates”are not allowed to appear in this court and the reasons for this prohibition have given as follows;
ü Because of the superior education of the advocates, who are not only law graduates but people whose skills and knowledge of law and practice have been tested through skills and knowledge of law and practice have been tested through examination by the council for Legal education; such advocates, it felt are likely to intimidate Primary Court Magistrates.
ü Primary Courts are suppose to be close to the communities and dispense justice expeditiously; they are supposed to adopt reconciliation and arbitration rather than long wrangling legal arguments typical of litigation in higher courts as the methods of dispute resolution.
ü It is recognized that it is expensive to hire advocates and it is not necessary that in small matters complainants and defendants should have to incur big expenses in resolving their disputes.
However there is some rethinking on these issues in view of the fact that Primary Courts also have criminal jurisdiction which means they can deprive a person of person liberty (imprisonment) without being adequately and professionally defended. The new direction of development of Primary Courts is likely to be long two line; to have trained magistrates atleast at the level of degree in law on the one hand which has achieved now (in 2012) and to allow appearance of advocates which is still a debate up to now.
JURISDICTION OF THE PRIMARY COURT
CIVIL JURISDICTION AND CRIMINAL JURISDICTION
ORIGINAL JURISDICTION
Original jurisdiction refers to the power of a court to hear the case as a matter of a first instance. This requires that a particular type of case should only be commenced and tried in the lowest court in the ladder. Before moving to the next court in the hierarchy if need to be, A court with original jurisdiction may hear the case , make various findings and order, pass judgment and sentence the accused with the limit provided for with the law.
According to section 18, of the Magistrates’ Court Act [CAP 11 R.E 2002] provides that Primary Court has original jurisdiction in matrimonial, inheritance and civil matters arising out of customary law or Islamic law.
“…A primary court shall have and exercise jurisdiction in all proceedings of a civil nature where the law applicable is customary law or Islamic law…”
GEOGRAPHICAL & TERRITORIAL JURISDICTION
By territorial jurisdiction means the geographical area within which a court may exercise its powers for instance the Primary Court has territorial jurisdiction within the District in which it was established as per section 3(1) of the Magistrates’ Court Act [CAP 11 R.E. 2002] In the case of SHARMA V REPUBLIC 20 EACA 310 VOLUME 20.
“…In this case it was pointed out that proves of place of commission of offences is essential to the prosecution case and that although it is not always capable of exact proof evidence should be led on which the necessary inference can be drawn...”
It is for reason that a charge must always state in the particulars where the alleged offence was committed and it is those particulars that the court know whether has jurisdiction or not. If the court discovered that on the reading the charge or in the cause of the trial that the offence was committed outside of its territorial jurisdiction it must immediately make an order for transferring the case to a court to whose jurisdiction the offence was committed.
CASE: MRISHO S/O PAZI V. TATU D/O JUMA 1968 HCD NO. 119.
“…This case concerned the inheritance of property as between appellant, the husband of deceased, and respondent, deceased’s daughter by a previous marriage. The property in question included a shamba at Kibaha and gold ornaments and Khangas. There was some doubt as to whether the gold ornaments and Khangas. There was some doubt as to whether the gold ornaments and Khangas existed. Although both parties live in Magomeni where there is a Primary Court, the case was brought in the Primary Court of Ilala.
The court held (1) under section 4 of the Magistrate’s Court of Ilala. Cap. 537, each Primary Court within a district has jurisdiction within the whole district. As a result, a party may file an action in any Primary Court within the district even though his choice causes inconvenience and expense to his opponent. The Court characterized this result as “unfortunate”.
(2) The Primary Court had no jurisdiction to deal with the shamba at Kibaha which lies outside the district in which the court is located…”
SUBJECT MATTER JURISDICTION
Jurisdiction by subject matter which is sometimes called jurisdiction of categorization of offences is the type of jurisdiction expressly converts by a legislation that provides which offences are tried by which court, for instance the 1stSchedule of the Magistrates’ Court Act provides offences which may be tried by the Primary Court and where by some offences under Penal Code have been listed.
PECUNIARY JURISDICTION
Pecuniary means something in relation to money or monetary value. Pecuniary jurisdiction means the limits within which the court can exercise judicial function within a certain amount of monetary value. The pecuniary jurisdiction of the Primary Court is thirteen (30) millions for movable property and fifty (5o) millions as per section 18 of the Magistrates’ Court Act [CAP 11 R.E. 2002]
APPELLATE JURISDICTION
By appellate jurisdiction we mean the power of the court to hear and to try the matter on appeal from another inferior court. Under the Ward Tribunals Act [CAP 206 R.E. 2002] the Primary Court has appellate jurisdiction over ward tribunal as follows;
“…A person aggrieved by a decision of a Tribunal may within sixty days appeal in writing to a Primary Court. Except with the leave of the Primary Court, no appeal shall be entertained under the following circumstances– (a) in criminal cases in which the fine imposed does not exceed five hundred shillings, (b) in civil matters where the award does not exceed eight hundred shillings…”
SENTENCING JURISDICTION
Sentencing jurisdiction is the limit described by the law within which the court may impose the sentence. The sentencing jurisdiction of Primary Court is provided under rule 2 (1) of the Primary Courts Criminal Procedure Code (Under the 3rdschedule of the Magistrates’ Court Act) that;
“…Court may impose imprisonment, fine or corporal punishment, a court may, in the exercise of its criminal jurisdiction, in the cases in which such sentences are authorised by law, pass the sentence of imprisonment for a term not exceeding twelve months, a fine not exceeding ten thousand shillings, and corporal punishment not exceeding twelve strokes…”
REVISIONAL JURISDICTION
Revisional jurisdiction is the power vested in a superior court to examine the records of an inferior court in order to satisfy itself as to the legality, correctness, or propriety of any decision or order made by such an inferior courts. Thus in terms of section 21 of the Ward Tribunals Act [CAP 206 R.E. 2002] the Primary Court may call for any examine records of proceedings of the Ward Tribunal and revise them.
“…A Primary Court may call for and examine the record of any proceedings of a Tribunal, for the purpose of satisfying itself as to whether in such proceedings the Tribunal's decision–does not contravene any Act of Parliament, or subsidiary legislation and does not conflict with the rules of natural justice; and was made by such Tribunal when it was properly constituted or without excess of jurisdiction, and may revise any such proceedings…”
Also the primary court also hears cases relating to children in which case it sits as a juvenile court, this was provided under the Government Notice No. 64 of 1964.
NB; Civil jurisdiction of the Primary Court has been provided under the 4thSchedule of the Magistrates Court Act [CAP 11 R.E. 2002]
LAWS APPLICABLE IN PRIMARY COURT
The law applicable in Primary Court has been provided under section 18 of the Magistrates’ Court Act [CAP 11 R.E. 2002] that is customary law or Islamic law.
DISTRICT AND RESIDENT MAGISTRATE COURT
These courts have been established under the Magistrates Court Act. The District Court has been established under section 4 of the Magistrates Court Act [CAP 11 R.E. 2002] and exercised its jurisdiction within the District in which it was established.
“…There is hereby established in every district a district court which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction within the district in which it is established…”
Also the Resident Magistrates’ Court has been established by Chief Justice under section 5(1) of the Magistrates Court Act [CAP 11 R.E. 2002] and exercised its jurisdiction within the area it was established and specified by the Chief Justice.
“…The Chief Justice may, by order published in the Gazette, establish courts of a resident magistrate which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction in such areas as may be specified in the order…”
COLUMN
District Court is constituted when presided by a District or Resident Magistrate Court however the Chief Justice may direct two or more magistrate to seat for hearing of the case as per section 6(3) & (4) of the Magistrates’ Court Act [CAP 11 R.E. 2002]
“… (3) Where two or more magistrates of the same description are assigned to a particular magistrates' court each may hold sittings of the court concurrently with the other or others. (4) Notwithstanding the foregoing provisions of this section, the Chief Justice may direct two or more magistrates of the same or other appropriate description to sit for the hearing and determination of any proceeding or any category thereof, and in any such case the court shall not be duly constituted for such proceeding nor any proceeding of such category, unless it is composed of the number and description of magistrates so directed…”
ASSESSORS
The District and Resident Magistrates’ Court may seat with assessors in the matter of Customary or Islamic Law as per section 7(3) of the of the Magistrates’ Court Act [CAP 11 R.E. 2002]
.
“…In any proceeding in any other magistrates' court in which any rule of customary or Islamic law is in issue or relevant the court may, and when directed by an appropriate judicial authority shall, sit with an assessor or assessors; and every such assessor shall be required, before judgment, to give his opinion as to all questions relating to customary or Islamic law in issue in, or relevant to, the proceeding; save that in determining the proceeding the court shall not be bound to conform with the opinion of the assessors…”
LANGUAGE OF THE COURTS
Language applicable in District and Resident Magistrates’ Court shall be either English or Kiswahili but the record and judgment shall be in English language as per section 13(2) of the Magistrates’ Court Act [CAP 11 R.E. 2002]
“…The language of courts of a resident magistrate and of district courts shall be either English or Kiswahili or such other language as the magistrate holding such court may direct; save that in the exercise of appellate, Revisional or confirmatory jurisdiction by a district court (in which case the record and judgment may be in English or Kiswahili), the record and judgment of the court shall be in English…”
APPOINTMENT OF DISTRICT AND RESIDENT MAGISTRATES’ COURT
The power to appoint both District Court and Resident Magistrate’s Court is vested in the Judicial Service Commission. The powers of the Commission are wide. They include confirming them in their posts, promoting them as well as disciplining and even removing them from office as per Article 112 & 113 of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002] as follows;
“… To appoint magistrates and control their discipline and to establish various committees for purposes of implementation of its functions …”
Usually, both the Resident Magistrates and District Court magistrate should be a university graduate with at least the first law degree in Law.
SERVICE OF A LAWYER
Advocates are allowed to appeal before the District Court and Resident Magistrates’ Court to represent on behalf on the parties to the suit or case.
JURISDICTION OF THE DISTRICT AND RESIDENT MAGISTRATES’ COURT TERRITORIAL JURISDICTION
The resident of magistrate court is sometimes confused as a regional court that is a court at the administrative level of region. This is incorrect since the Resident Magistrates Courts are not regional courts. Their geographical jurisdiction is determined by the instrument (order) establishing it as provided under section 5(1) of the Magistrates’ Court Act [CAP 11 R.E. 2002] as follows;
“…The Chief Justice may, by order published in the Gazette, establish courts of a resident magistrate which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction in such areas as may be specified in the order. …”
But the District Court on the other hand have territorial jurisdiction within the District in which it was established as provided under section 4(1)of the Magistrates’ Court Act [CAP 11 R.E. 2002] as follows;
“…There is hereby established in every district a district court which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction within the district in which it is established…”
PECUNIARY JURISDICTION
Pecuniary jurisdiction of the two should not exceed 150 million for immovable property and not more than 100 for movable properties as provided under Miscellaneous Amendment Act No. 25 of 2002. But the District Court can only entertain a civil matter when he has specifically been appointed to do so as a civil magistrate.
SUBJECT MATTER JURISDICTION
Jurisdiction by subject matter which is sometimes called jurisdiction of categorization of offences is the type of jurisdiction expressly converts by a legislation that provides which offences are tried by which a particular court. So the criminal jurisdiction of the Resident Magistrate’s Court covers all offences under the Penal Code [CAP 16 R.E. 2002] except those offences for which the High Court has been specifically mentioned as being the court of first instance such as the High Court has original jurisdiction to hear and determine all cases involving capital punishments which means murder and treason cases. So the only condition is that the offence should have occurred within geographical jurisdiction of the court.
District Court on the other hand in criminal matters has the same jurisdiction as the Resident Magistrate’s Court. This fact leads many people to question the logic of having two distinct courts in the same area with more or less the same powers. In civil matters there is difference. That is the District Court can only entertain a civil matter when he has specifically been appointed to do so as a civil magistrate.
APPELLATE JURISDICTION
One of the powers exercised by the District court, and not Resident Magistrate Court, is that of receiving and hearing appeals from the Primary Court as per section 20(1) of the Magistrates’ Court Act [CAP 11 R.E. 2002] as follows;
“…In proceedings of a criminal nature, any person convicted of an offence by a primary court, or where any person has been acquitted by a primary court, the complainant or the Director of Public Prosecutions or in any other proceedings, any party, if aggrieved by an order or decision of the primary court, may appeal there from to the district court of the district for which the primary court is established. …”
REVISIONAL JURISDICTION
Is the power vested in a superior court to examine the records of an inferior court in order to satisfy itself as to the legality, correctness, or propriety of any decision or order made by such an inferior courts. It is the District Court only which is also responsible for the revision of cases decided by the Primary Court within its jurisdiction.
Discrepancies in these cases can be discovered in the course of inspection of the work of the subordinate courts done by the District Court Magistrate in charge or following a complaint by one of the parties to the matter in the lower court. Thus in terms of section 22 of the Magistrates’ Court Act [CAP 11 R.E. 2002] a District Court may call for and examine records of proceedings in a Primary Courts and revise them as explains as follows;
“…A district court may call for and examine the record of any proceedings in the primary court established for the district for which it is itself established, and may examine the records and registers thereof, for the purposes of satisfying itself as to the correctness, legality or propriety of any decision or order of the primary court, and as to the regularity of any proceedings therein, and may revise any such proceedings…”
In addition District Courts have jurisdiction in relation to affiliation cases and juvenile cases as provided under section 3(1) of the Children and Young Persons Act [CAP 13 R.E. 2002]
“…A district court when hearing a charge against a child or young person shall, if practicable, unless the child or young person is charged jointly with any other person not being a child or young person, sit in a different building or room from that in which the ordinary sittings of the court are held…”
EXTENDED JURISDICTION
When subordinate courts is given power to try offences not ordinarily tried by subordinate courts then that court is said to exercise extended jurisdiction for example the Resident Magistrate Court can be given power to entertain Economic Offences which is tried by the High Court and the decision which come from that court for the purpose of appeal lies to the Court of Appeal. Indeed it is ought to be born in mind that extended jurisdiction is not for the Court but for the magistrate.
A magistrate with extended jurisdiction has got powers to impose any sentence which may lawfully be imposed by the High Court. Therefore for the purpose of any appeal from or revision of his decision in the exercise of his or her jurisdiction such Resident magistrate is deemed to be a judge of the High Court and the court presided by him or her is deemed to be the High Court. Extended jurisdiction is vested upon the Resident Magistrate’s only and not a District Magistrate and this jurisdiction has been covered under section 173(1) of the Criminal Procedure Act [CAP 20 R.E. 20002] which provides as follows;
“…The Minister may after consultation with the Chief Justice and the Attorney General, by order published in the Gazette–invest any resident magistrate with power to try any category of offences which, but for the provisions of this section, would ordinarily be tried by the High Court and may specify the, area within which he may exercise such extended powers; or invest any such magistrate with power to try any, specified case or cases of such offences and such magistrate shall, by virtue of the order, have the power, in respect of the offences specified in the order to impose any sentence which could lawfully be imposed by the High Court…”
HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
ESTABLISHMENT
The High Court of the United Republic of Tanzania is established under Article 108(1) of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002]
“…There shall be a High Court of the United Republic (to be referred to in short as “the High Court”) the jurisdiction of which shall be as specified in this Constitution or in any other law…”
Also the High Court is the superior court of records and at the apex of judicial system.
COLUMN OF THE HIGH COURT
The High Court is presided over by the Principal Judge (Jaji Kiongozi) and other presiding judges whose number should not be less that THIRTY (30) and shall be appointed by the president after consultation with the Judicial service Commission as provided under Article 109(1) of the Constitution of the United republic of Tanzania of 1977 [CAP 2 R.E. 2002] which provides as follows;
“…There shall be a Principal Judge of the High Court (who in the following provisions of this Constitution shall be referred to as the “Principal Judge”) and other Judges of the High Court who shall be not less than thirty who shall be appointed by the President after consultation with the Judicial Service Commission…”
Also the judge who are presiding in the High Court may have professional qualification as provided under the Advocate’s Act [CAP 341 R.E. 2002]
The Principal Judge is the special assistant to the Chief Justice in the administration of the High Court and all subordinate courts to it and is to perform such other duties as may from time to time be assigned by the Chief Justice and also the Principal Judge is also the Head of the High Court as provided under Article 109(2) of the Constitution of the United republic of Tanzania of 1977 [CAP 2 R.E. 2002] which provides as follows;
“…The Principal Judge shall be the special assistant to the Chief Justice in the administration of the High Court and of all the other courts subordinate to it, and in the discharge of the functions of that office, the Principal Judge shall perform such functions and duties as he may, from time to time, be instructed or directed by the Chief Justice and, for the purposes of this Article, the Principal Judge shall also be known as the Head of the High Court. …”
There some seven High Court centers in the country. These are Dar es Salaam, Arusha, Moshi, Mwanza, Tabora, Bukoba and Songea. Each of these centers is headed by a Judge-in-charge. In places where there is no High Court centers, High Court judges from nearby centers go on session.
The High Court has unlimited Jurisdiction however the territory jurisdiction is limited to the territory of the state.
SERVICE OF A LAWYER IN THE HIGH COURT
Advocates as well as State Attorney are allowed to appeal before the High Court to represent on behalf on the parties to the suit or case.
JURISDICTION OF THE HIGH COURT
ORIGINAL JURISDICTION
Original jurisdiction refers to the power of a court to hear the case as a matter of a first instance. This requires that a particular type of case should only be commenced and tried in the lowest court in the ladder. Before moving to the next court in the hierarchy if need to be, a court with original jurisdiction may hear the case , make various findings and order, pass judgment and sentence the accused with the limit provided for with the law.
The High Court of Tanzania has unlimited jurisdiction, Further guidance regarding jurisdiction of court in Tanzania may be found in other laws for instance the Criminal Procedure Act sets out offences in connection with the High Court may exercise original jurisdiction. These offences are provided for in the 1stschedule of the Criminal Procedure Act. Similarly original jurisdiction with regard to ECONOMIC OFFENCES lies with the High Court as per section 3 of the Economic and Organised Crime Control Act [CAP 200 R.E. 2000] as follows;
“…The jurisdiction to hear and determine cases involving economic offences under is vested in the High Court and the High Court when hearing charges against any person shall be an Economic Crimes Court. …”
High Court has jurisdiction on any matter which is not specifically precluded by either the constitution or any other law; also High Court has jurisdiction to deal with matters which under the legal traditions obtaining in Tanzania are handled by the High Court. The geographical Jurisdiction is the whole of Mainland Tanzania as provided under Article section 2(3) of the Judicature and Application of Laws Act [CAP 358 R.E. 2002] and Article 108(2) of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002] which provides as follows;
“…..Where this Constitution or any other law does not expressly provide that any specified matter shall first be heard by a court specified for that purpose, then the High Court shall have jurisdiction to hear every matter of such type. Similarly, the High Court shall have jurisdiction to deal with any matter which, according to legal traditions obtaining in Tanzania, is ordinarily dealt with by a High Court provided that; the provisions of this sub article shall apply without prejudice to the jurisdiction of the Court of Appeal of Tanzania as provided for in this constitution or in any other law….”
GEOGRAPHICAL & TERRITORIAL JURISDICTION
Territorial jurisdiction means that the geographical area within which a court may exercise its powers for instance the High Court has jurisdiction within territorial limits of the state as per article 108 (1) of the Constitution of the United Republic of Tanzania of 1977. Therefore before the court begins to inquire into a particular offence it must be satisfied that such offence was committed within its territorial jurisdiction.
SUBJECT MATTER JURISDICTION
In practice, the High Court normally entertains criminal cases which attract heavy penalties such as death penalty of life sentence. In cases of this nature, the judge of the High Court sits with two lay assessors to assist the Court on issue of fact. Offences which attract heavy penalties include treason, murder, attempted murder, incest.
SUBJECT MATTER JURISDICTION
Subject matter jurisdiction which is sometimes called jurisdiction of categorization of offences is the type of jurisdiction expressly converts by a legislation that provides which offences are tried by which court for instance the 1st schedule of the Criminal Procedure Act sets out what offences are tried by subordinate courts and what offences are tried by the High Court.
APPELLATE JURISDICTION
Appellate jurisdiction means the power of the court to hear to try the matter on appeal from another inferior court. The High Court also hears appeals from the District Court, the Resident Magistrates’ Court and the Housing Tribunal.
Further in terms of section 25 of the Magistrate Court Act provided that parties aggrieved by the decision of the District Court in the exercise of appellate jurisdiction may further appeal to the High Court.
“…In proceedings of a criminal nature, any person convicted of an offence or, in any case where a district court confirms the acquittal of any person by a primary court or substitutes an acquittal for a conviction, the complainant or the Director of Public Prosecutions or in any other proceedings any party, if aggrieved by the decision or order of a district court in the exercise of its appellate jurisdiction may, within thirty days after the date of the decision or order, appeal there from to the High Court; and the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired…”
The High Court can also review its own decision as well as revise the decision of subordinate Court particularly the District Court and Court of Resident of Magistrates’. Under the constitution, the High Court has entrusted with the duty of entertaining all cases relating to the enforcement of the fundamental rights and freedom.
PECUNIARY JURISDICTION
In civil matters the High Court has a much wider jurisdiction. As a court of first instance, it can entertain matters relating to contract worth more than Tanzania shillings 50,000,000/=for immovable properties and 100,000,000/=for movable properties and cash.
REVISIONAL JURISDICTION
Revisional jurisdiction is the power vested in a superior court to examine the records of an inferior court in order to satisfy itself as to the legality, correctness, or propriety of any decision or order made by such an inferior courts. Thus under section 372 of the Criminal Procedure Act [CAP 20 R.E. 2002] the High Court has got power to call for records of a subordinate court for the purpose of examining those records and satisfy itself as to the legality, correctness or appropriate of any finding, sentence or order recorded or passed by that court.
“… The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court. …”
SUPERVISION JURISDICTION
Supervision come from the word supervise. The High Court exercise the general powers of supervision of all subordinate Courts in the exercise of their jurisdiction and therefore it has got powers to do the following.
1. To call and inspect the records of any proceeding in any subordinate court.
2. To direct any District Court to call for and inspect the record of any proceedings in Primary Court established within local limits of district and examine its records and register in order to satisfy itself as to legality, correctness, propriety of any proceeding their in. This has been covered or explained under section 30(1) of the Magistrate Court Act [CAP 11 R.E. 2002.
“…In the exercise of its revisional jurisdiction under this Part, the High Court shall have all the powers conferred upon it in the exercise of its appellate jurisdiction under this paragraph including the powers to substitute a conviction or a conviction and sentence for an acquittal or an acquittal for a conviction or to make a declaratory order; and the provisions of the proviso to paragraph (b) of section 29 shall apply in relation to an order quashing proceedings and ordering a rehearing which is made in the exercise of the High Court's revisional jurisdiction as they apply in relation to any such order made in the exercise of its appellate jurisdiction. …”
The high court has supervision jurisdiction. This means that it can hear and determine the legality of any body or official which has made a decision affecting the rights and duties of citizens. This is called “Judicial Review”. Under this power, what the High Court examines is whether the body concerned followed the procedure and correctly applied the law. It does not look at whether the decision was right or wrong. It looks at whether the decision was proper or not, that is whether it was according to law.
SENTENCING JURISDICTION
Sentencing jurisdiction is the limit described by the law within which the court may impose the sentence. The sentencing jurisdiction of the High Court is provided for under section 166 of the Criminal Procedure Act [CAP 20 R.E. 2002].
“….The High Court may pass sentence or make any other order authorised by law….”
EXCLUSIVE JURISDICTION
This entails the power to deal with a certain cases in exclusion with a certain courts. Example the High Court when dealing with offences falling under Economic and Organised Crime, Murder and Treason.
Also all Elections Petitions go to the High Court. Another set of cases that specifically go to the High Court are those relating to adoption of Children as per section 3 Adoption of Children Act [CAP 335 R.E. 2002]
Note; the powers of the High Court are exercised by a single judge unless the law provides differently or the Chief Justice so orders. For example, constitutional petitions are heard by the full bench of the High Court which means three judge.
CONCURRENT JURISDICTION
Means court trying the case which can as well as be entertained by another court example High Court is empowered under section 164(1-2) CPA to try cases that can be tried by the subordinate courts. Also read section 63 of the Magistrates’ Court Act [CAP 11 R.E. 2002].
“…Subject to the provisions of any law for the time being in force, where jurisdiction in respect of the same proceedings is conferred on different courts, each court shall have concurrent jurisdiction therein…”
Proviso tax cases, land tribunal, probate cases is not the subject under that section for concurrent jurisdiction as follows;
“…Provided that no civil proceedings in respect of marriage, guardianship or inheritance under customary law, or the incidents thereof, and no civil proceedings in respect of immovable property, other than proceedings relating to land held on a Government lease or a right of occupancy granted under the Land Act * or proceedings under section 22 or 23 of the Land Act shall be commenced in any court other than a primary court unless the Republic is a party thereto or unless the High Court gives leave for such proceedings to be commenced in some other court…”
HIGH COURT DIVISONS
High Court has several divisions as discussed as follows;
HIGH COURT OF COMMERCIAL DIVISION.
This has been established under section 5A of the High Court Registry Rules of 1984 as amended in 1999.
HIGH COURT OF LAND DIVISION
This has been established under section 167 of the Land Act [CAP 113 R.E. 2002]
“…The following courts are hereby vested with exclusive jurisdiction, subject to the provisions of this Part, to hear and determine all manner of disputes, actions and proceedings concerning land, that is to say the Court of Appeal, Land Division of the High Court established in accordance with law for time being in force for establishing courts divisions, District Land and Housing Tribunals, Ward Tribunals, Village Land Councils…”
Also the High Court land division has been established under section 62 of the Village Land Act [CAP 114 R.E. 2002]
“..Where the parties or any of them do not accept the conclusions of any mediation into a dispute or wish to cease to make use of the services of the village land council, they may refer the dispute to a court having jurisdiction over the subject matter of the dispute. Those courts are the Court of Appeal, the Land Division of the High Court, the District Land and Housing Tribunal, the Ward Tribunal, the Village Land Council…”
Also under section 3 (1) & (2) of the Land Courts (Dispute Settlement) Act [CAP 216 R.E. 2002] provides as follows;
“… Subject to section 167 of the Land Act *, and section 62 of the Village Land Act *, every dispute or complaint concerning land shall be instituted in the Court having jurisdiction to determine land disputes in a given area. The Courts of jurisdiction under subsection (1) include, the Village Land Council, Ward Tribunal, District Land and Housing Tribunal, High Court (Land Division), the Court of Appeal of Tanzania…”
The Land Division is a more recent creation at the High Court. This can be said to have been a result of the needs of the people. Land is a serious and delicate matter and there are many cases involving land. This division is currently housed in rented premises in Upanga area in Dar es salaam.
HIGH COURT OF LABOUR DIVISION
This has been established under section 50(1) of the Labour Institutions Act No. 7 of 2004 which provides as follows;
“…There shall be established a Labour division of the High Court…”
Also it was established under section 94(1) of the Employment and Labour Relations Act No. 6 of 2004 which provides as follows;
“…Subject to the Constitution of the United Republic of Tanzania, 1977, the Labour Court shall have exclusive jurisdiction over the application, interpretation and implementation of the labour matters…”
THE HIGH COURT OF GENERAL DIVISONS
CHALLENGES ASSOCIATED WITH HIGH COURT DIVISIONS
When we have established High Court divisions, this seems to minimize the jurisdiction of the High Court. High Court has been established by the Constitution of the United Republic of Tanzania of 1977 while the High Court divisions have been established by statutes and other written laws.
HIGH COURT OF TANZANIA AS UNION COURT
Under Article 108(1) of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002] shows that the High Court is the union court. But the judiciary is not listed as one among the union matters as listed in the 1st schedule of the of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002]
CASE: SEIF SHARRIF HAMAD V. SMZ [1998] TLR 148
“…In this case it was held that the High Court and Subordinate Courts thereto are not union matters, this includes court procedure and processes…”
CASE: HAJI V. NUNGU AND ANOTHER [1987] CONSTITUTION CASE NO. 224
“…In this case it was held that the High Court of Zanzibar has no jurisdiction to hear and determine parliamentary election petitions; also the High Court of United Republic of Tanzania has no territorial jurisdiction in Zanzibar. This has been provided under Article 83(1)b and 115 of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002]…”
QUALIFICATIONS, APPOINTMENT AND REMOVAL OF JUDGES
The minimum qualifications required to be appointed a judge of the High Court are similar to those for practicing as an advocate provided these qualifications are held for not less than five (5) years are as follows;
(1) Must be a holder of a recognized University degree in law;
(2) Must pass examination and fulfill other requirements set by the council of legal education. Currently, this includes, among other things, pupilage in an advocate’s office or judicial for six months and appearing for and passing an interview before the council of Legal Education.
The qualification of being appointed as the High Court Judge have been provided clearly under Article 109 of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002]
A judge of the High Court serves until she/he reaches the age of fifty five (55) years where by such a judge can voluntarily retire. Compulsory retirement age for judges of the High Court is sixty (60) years. However, the President may block a judge from retirement when he finds it fit to do so as per Article 110 (1) & (2) of the Constitution of the United republic of Tanzania of 1977 [CAP 2 R.E. 2002] which provides as follows;
“….Every Judge of the High Court shall vacate his office on attaining the age of sixty years, but may retire from office in the service of the United Republic at any time on attaining the age of fifty five years, except where the President directs that he should not retire from office, and if the President so directs, then the Judge to whom the directions of the President relate shall not retire from office until the expiry of the period specified by the President for that purpose….”
Notwithstanding attainment of the retirement age, a judge is required to prepare and deliver all decisions and to complete other business connected with the office of the judge as per Article 110(4) of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 200] which provides as follows;
“….Notwithstanding that a Judge has attained the age at which he is required by the provisions of this Article to vacate office, a person who was holding the office of Judge of the High Court may continue to perform the functions of that office after attaining that age until he completes the preparation and delivery of the decision or until he completes any other business in connection with matters which he had started hearing before attaining that age….”
A judge of the High Court may be removed from his office only for his inability to perform the function of office either due to illness or to any other reason, or for misbehaviour, that is behaviour which is inconsistent with the ethics of the office of a judge or with the law concerning the ethics of public leaders as per Article 110A (2) of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 200] which provides as follows;
“….A Judge of the High Court may be removed from office only for inability to perform the functions of his office (either due to illness or to any other reason) or for behaviour inconsistent with the ethics of office of Judge or with the law concerning the ethics of public leaders and he shall not be so removed except in accordance with the provisions of sub article (4) of this Article….”
However for removing a judge the President is required to form a Special Tribunal of atleast three persons for that purpose. The Chairperson and atleast half of the members of the Tribunal should be persons who are judges of the High Court or Court of Appeal in any country within the Commonwealth country as per Article 110 A(3) of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002] which provides as follows;
“…Where the President considers that the question of the removal of a Judge from office needs to be investigated, then the procedure shall be as follows:
(a) The President shall after consultation with the Chief Justice, suspend that Judge from office.
(b) The President shall appoint a Tribunal which shall consist of a Chairman and not less than two other members. The Chairman and with at least half of other members of the Special Tribunal must be persons who are judges of the High Court or Justices of Appeal in any country within the Commonwealth.
(c) The Tribunal shall investigate the mater and make a report to the President, advising on the whole matter, and shall advise him whether or not the Judge concerned should be removed from office in accordance with the provisions of this Article on the grounds of inability to perform his functions due to illness or any other reason or on grounds of misbehaviour…”
The Special Tribunal Investigates the matter and makes a report to the President on the whole matter and advises the President on whether to remove the Judge concerned or not. During the period of investigation, the President may suspend the judge involved. Such a judge shall be removed from office if the Special Tribunal recommends so or his suspension will lapse if the Tribunal advises that the judge should not be removed from office as per Article 110(4) of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002] which provides as follows;
“…If the Tribunal appointed in accordance with the provisions of sub article (3) advises the President that the Judge the subject of investigation by the Special Tribunal be removed from office on grounds of inability to perform functions due to illness or any other reason or on grounds of misbehaviour, then the President shall remove the Judge from office and the employment of that Judge shall cease…”
This means that the President cannot remove a judge if the Tribunal does not recommend removal as per Article 110A (5) of the Constitution of the United republic of Tanzania of 1977 [CAP 2 R.E. 2002]
“…If the question of removing a Judge from office has been referred to a Tribunal for investigation pursuant to the provisions of sub article (3) of this Article, the President may suspend the Judge concerned from duty, and the President may at any time rescind the decision to suspend such Judge, and in any case such decision shall lapse if the Tribunal advises the President that the Judge be not removed from office….”
COURT OF APPEAL OF TANZANIA (CAT)
ESTABLISHMENT
The Court of Appeal of Tanzania was established in 1979. This was after the collapse of East African Community which resulted in the collapse of the Court of Appeal for East Africa. The Court of Appeal for East Africa used to serve as an appellate court to hear and determine appeals from the High Court of each of the three East African Countries that is Kenya, Uganda, and Tanzania. The Court of Appeal of the United Republic of Tanzania us established under Article 117(1) of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002] which provides as follows;
“…There shall be a Court of Appeal of the United Republic of the (to be referred to in short as “the Court of Appeal”) which shall have the jurisdiction of the Court of Appeal as provided in this Constitution or any other law…”
The law does not set a number of justices of appeal. Traditionally there have been seven (7) judges of appeal. Appeals are heard and determined by a bench of three judges. In special cases, the Chief Justice may order a matter to be heard by five (5) judges and occasionally even seven (7) judges. A bench of seven judges has sat in a matter which involved deciding whether the court’s own previous decision was correct.
The head of the Court of Appeal is the Chief Justice. The Chief Justice is appointed by the President and the other judges are also appointed by the president on advice of the Chief Justice.
The minimum qualifications for the appointment of a justice of appeal are the same as those for High Court judges. The retirement age of a justice of appeal is sixty-five (65) and an appellate judge cannot be removed except for the reasons and following the procedure as prescribed for High Court judges.
The Chief Justice of the United Republic of Tanzania, besides being the Chief Judge in the Court of Appeal is also overall in charge of the judiciary and its head. Article 118(1) of the Constitution of the United Republic of Tanzania of 19877 [CAP 2 R.E. 2002] which provides as follows;
“…There shall be a Chief Justice of the Court of Appeal (who in the subsequent Articles of this Constitution shall be referred to in short as “the Chief Justice”) and not less than four other Justices of Appeal save that a full bench of the Court of Appeal shall consist of not less than five Justices of Appeal. …”
FUNCTIONS OF THE COURT OF APPEAL
The main function of the Court of Appeal is to hear and determine all appeals arising from the High Court and Courts of Resident Magistrates. As per Article 117(3) of the Constitution of the United Republic of Tanzania of 19877 [CAP 2 R.E. 2002] which provides as follows;
“…The functions of the Court of Appeal shall be to hear and determine every appeal brought before it arising from the judgment or other decision of the High Court or of a magistrate with extended jurisdiction.…”
The Court of Appeal also hears and determines appeals from the High Court of Zanzibar. However, according to the Zanzibar constitution the Court of Appeal has no jurisdiction to hear appeals from Zanzibar involving the following matters’
- Interpretation of Zanzibar constitution;
- Islamic matter arising from Kadhi’s courts;
- Any matter prescribed in the Zanzibar constitution or law passed by the House of Representatives.
The Court of Appeal is also not allowed to deal with matters relating to a dispute between the government of the United Republic of Tanzania and Zanzibar. According to Article 117(2) of the constitution of the United Republic of Tanzania [CAP 2 R.E. 2002] which provides as follows;
“…The Court of Appeal shall not have any jurisdiction in arbitration of any matter which is to be dealt with in accordance with the provisions of Article 126 of this Constitution concerning a dispute between the Government of the United Republic and the Revolutionary Government of Zanzibar. …”
Matters of that nature are handled by a Special Constitutional Court 127(1) of the constitution of the United republic of Tanzania [CAP 2 R.E. 2002] which provide as follows;
“…The sole function of the Special Constitutional Court of the United Republic is to hear and give a conciliatory decision over a matter referred to it concerning the interpretation of this Constitution where such interpretation or its application is in dispute between the Government of the United Republic and the Revolutionary Government of Zanzibar…”
COMPOSITION OF THE COURT OF APPEAL
The Court of Appeal is composed of the Chief Justice of the United Republic of Tanzania and Justices of Appeal whose number shall be not less than (4) four. A full bench of this court is composed of not less than five (5) Justice of Appeal as per Article 118(1) of the Constitution of the United Republic of Tanzania of 1977[CAP 2 R.E. 2002] which provides as follows;
“…There shall be a Chief Justice of the Court of Appeal (who in the subsequent Articles of this Constitution shall be referred to in short as “the Chief Justice”) and not less than four other Justices of Appeal save that a full bench of the Court of Appeal shall consist of not less than five Justices of Appeal. …”
The Chief Justice of the United Republic of Tanzania is appointed by the President and shall be the head of both the Court of Appeal and the Judicial Department as provided for Article 118(2) of the Constitution of the United Republic of Tanzania of 1977[CAP 2 R.E. 2002] which provides as follows;
“…The Chief Justice shall be appointed by the President from amongst persons who possess qualifications to be appointed as a Justice of Appeal and shall be the Head of the Court of Appeal and of the Judiciary as defined in Article 116 of this Constitution and shall hold the office of a Chief Justice until he attains the retirement age of the Justice of Appeal, except if he resigns; or his office becomes vacant on grounds of illness or death or he is removed from the post of the Chief Justice by President…”
Other Justices of Appeal are appointed by the President in consultation with the Chief Justice. These should be persons who qualify to be appointed Judge of the High Court of Tanzania or the High Court of Zanzibar as provided for under Article 118(3) of the Constitution of the United Republic of Tanzania of 1977[CAP 2 R.E. 2002] which provides as follows;
“…The other Justices of Appeal shall be appointed by the President after consultation with the Chief Justice, from amongst persons who qualify to be appointed Judges of the High Court of the United Republic as provided for in Article 109 of this Constitution, or from amongst persons who qualify to be appointed Judges of the High Court of Zanzibar in accordance with the laws
applicable in Zanzibar and have possessed such qualifications for a period of not less than fifteen years. …”
PROTECTION AND TENURE OF JUSTICE OF APPEAL
In order to be able to administer justice without fear of losing their jobs in case of unpopular decisions, the Justices of Appeal have been guaranteed their tenure of office. Firstly, the office of a Justice of Appeal cannot be abolished if it is occupied as per Article 118(8) of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002] which provides as follows;
“…For the avoidance of doubt over the construction of the provisions of sub article (1) of Article 119 of this Constitution, it is hereby declared that a person appointed an Acting Justice of Appeal shall have full power of a Justice of Appeal and shall discharge all duties of Justices of Appeal, and that the quorum of Justice of Appeal mentioned in Article 122 of this Constitution shall not be invalid on ground only that one or more than one Justice of Appeal at any sitting is an Acting
Justice of Appeal. …”
Secondly, a Justice of Appeal can be removed from office only for failure to perform his or her duties due to ill-health or any other reason, or for bad behaviour.120A(2) of the Constitution of the United Republic of Tanzania of 1977[CAP 2 R.E. 2002] which provides as follows;
“…A Justice of Appeal may be removed from office of a Justice of Appeal for reason of inability to perform the functions of his office (either due to illness or to any other reason) or for misbehaviour and shall not be removed from office except in accordance with procedural provisions similar to those prescribed for removal from office of the Judge of the High Court as stipulated in sub article (2) and (3) of Article 110A of this Constitution, and for that purpose the
provisions of sub article (4) of Article 110A shall apply to the Justice of Appeal in the same manner as applied to the Judge of the High Court…”
Even then, there are procedures to be fulfilled before a judge can be removed. These include forming a commission of experts to inquire into his conduct. These experts should be people from the Commonwealth who qualify to be appointed Judges of the High Court or Justice of Appeal in their respective countries. It is this Commission which recommends to the president either to remove or not to remove a Justice of Appeal from office his office.
The retirement of a Justice of the Court Appeal is sixty-five (65) years as per Article 120(1) of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002] which provides as follows;
“… Every Justice of Appeal shall vacate his office upon attaining the age of sixty-five, but the provisions of this sub article shall apply subject to the subsequent provisions of this Article. …”
That requirement can be waived by the direction of the President if he is in the opinion of it is in public interest for a Justice of Appeal who has reached the retirement age to continue with his work and the Judge concerned agrees as per Article 120(3) of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002] which provides as follows;
“…In the event that the President considers it to be in the public interest that a Justice of Appeal who has attained sixty-five years of age continue in office, and the Justice of Appeal agrees in writing to continue in office, then the President may direct that the Justice of Appeal continue in office for any period which may be specified by the President…”
JURISDICTION
Jurisdiction of Court of Appeal Tanzania is provided by the constitution and other law such as The Appellate Jurisdiction Act which provides that the Court of Appeal of Tanzania has appellate jurisdiction to hear and determine appeals from the High Courts and other Subordinate Courts with Extended jurisdiction. This has provided under section 4(2) of the Appellate Jurisdiction Act [CAP 141 R.E. 2002] as follows;
“…The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court and from subordinate courts with extended jurisdiction …”
The Chief Justice has been provided under Article 116(1) of the Constitution of the United Republic of Tanzania [CAP 2 R.E. 2002] that has no power of any matter concerning the structure and administration of day to day business of the Court s of Zanzibar.
“…The Chief Justice shall have no power over any matter concerning the structure and administration of the day-to-day business of the courts established in accordance with the Constitution of Zanzibar, 1984, or any law of Tanzania Zanzibar…”
But as the exception the Chief Justice of the United Republic of Tanzania from time to time may consult the chief justice of Zanzibar on the issues of administration of the business of the Court of Appeal and the appointment of Justice of Appeal as per Article 116(2) of the Constitution of the United Republic of Tanzania [CAP 2 R.E. 2002]
“…The Chief Justice shall from time to time consult with the Chief
Justice of Zanzibar concerning the administration of the business of the Court of
Appeal in general and also concerning the appointment of Justices of Appeal…”
Also the Court of Appeal is listed as one among the union matter as provided in the 1stand 2nd schedule under item 21 of the Union Constitution.
HEAD OF THE COURT OF APPEAL
The head of the Court of Appeal is the Chief Justice. Where there is a conflict between the Union Constitution and Constitution of Zanzibar, the Court of Appeal has no power to hear and determine the matter. According to the Union Constitution the matter may be referred to the special Constitution Court established under Article 125 of the of the Constitution of the United Republic of Tanzania [CAP 2 R.E. 2002]
“…There is hereby established the Special Constitutional Court of the United Republic whose jurisdiction, constitution and procedure shall be as stipulated in the provisions of Articles 126, and 128 of this Constitution…”
GENERAL PROBLEMS OF COURT OF APPEAL
1. (a) Limited of jurisdiction.
(b) The Court of Appeal has limited powers and not inherent powers.
(c) The Court of Appeal has never has ordinary jurisdiction but has a mere appellate
jurisdiction.
(d) Not all matters are subject to the Court of Appeal.
In Zanzibar the Court of Appeal has very limited jurisdiction.
2. Powers of Chief Justice has been provided under Article 116 of the Constitution of the United Republic of Tanzania [CAP 2 R.E. 2002]
3. Absence of the Union Government on the Judiciary.
4. Administration of Justice is not a union matters.
5. Separate Court System.
That the High Court and the Subordinate Court are not union matters
LAWS GOVERNING COURT OF APPEAL
ü Constitution of Tanzania
ü The Appellate Jurisdiction Act [CAP 141 R.E. 2002]
ü The Appellate Jurisdiction Act ( Court of Appeal Regulation of 1979 as amended time to time)
ü The Constitution of Zanzibar.
SPECIAL CONSTITUTION COURT OF THE UNITED REPUBLIC OF TANZANIA
The court has been established under Article 125 of the Constitution of the united Republic of Tanzania of 1977 [CAP 2 R.E. 2002]
“…There is hereby established the Special Constitutional Court of the United Republic whose jurisdiction, constitution and procedure shall be as stipulated in the provisions of Articles 126, and 128 of this Constitution…”
The jurisdiction of the Constitution Court is provided under Article 126-128 of the Constitution of the united Republic of Tanzania of 1977 [CAP 2 R.E. 2002]
COMPOSITION OF THE CONSTITUTION COURT
- Number of members is not specifically provided.
- They shall be half from Tanzania mainland and half from Tanzania Zanzibar.
- Their appointed by authority from Tanzania mainland and Tanzania Zanzibar, that is the Government of the United Republic of Tanzania and Revolutionary Government of Zanzibar.
POWERS OF THE SPECIAL CONSTITUTION COURT
The special Constitution Court is empowered to hear and reconcile the disputes between the Union Government and the Government of Zanzibar; the disputes must be in respect of the interpretation of the Constitution of the United Republic of Tanzania.
THE ISSUE OF LOCUS STAND
“The right to sue or Right to move the court”
ü The law doesn’t expressly provide that who may sue or who shall move the court; However by necessary implication the locus stand is exclusive to the two government (Union Government and the Government of Zanzibar)
ü It must be noted that the special Court is empowered to nullify or to alter any decision given by the High Court or the Court of Appeal of Tanzania. The decision given by the Special Court is final and conclusive therefore cannot be the subject of Appeal as provided under the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E. 2002].
JUDICIAL ETHICS
Every professional has it own ethics. The ethics set the basic minimum standards of what can be done and what cannot be done. These are the boundaries which cannot be crossed if the profession is to retain its credibility and integrity. These are such ethics for the judiciary as well.
The work of judges and magistrates is a serious one. The society has entrusted them to decide what is legal and what is not legal, who is right and who is wrong. This is an enormous task which requires humility, seriousness, discipline and integrity. It is type of job which cannot be done by any person. One needs more than average qualities to perform the functions of a judge or a magistrate and retain respect of the public. As Mwalimu Julius Kambarage Nyerere underlined;
“…There are jobs in our society which can be done by undisciplined people and people whose personal integrity can be called into question; being a Judge or Magistrate is not among them…”
This is because the decisions of the Courts of law affect the life and liberty of people and therefore need to be seriously considered before they are made. Therefore, a judge or magistrate need to make decisions without fear and favour and a member of the bench should not place himself or herself in a position where members of the public will doubt his or her impartiality and integrity in general. For judges and magistrates, justice should be the yard-stick and they should stand by it by all means even if the government of the day is involved.
