INTRODUCTION
Zanzibar is a multiracial composed of people from Asia, Africa and Europe. Zanzibar has its own judiciary which is not a union matters. The apex of the Court System in Zanzibar is the High Court of Zanzibar. The High Court has unlimited original jurisdiction in all civil and criminal matters. It is also the appellate court hearing and determining appeals from lower courts including Kadhi’s Courts. Appeals from the High Court lie to the Court of Appeal except in constitutional and Islamic law matters. A bench of three Judges of High Court constitutes an appeal court for hearing appeals on constitutional matters. Below the High Court there are two tiers of courts, mainstream courts and Kadhi’s Court. The lowest court is the Primary Court. At the next level there is the District Court and above it is Regional Court.
ORIGINAL RESIDENT OF ZANZIBAR.
ü These are Tumbatu, Hamidu, and Pemba.
ü Original visitors, these are Hindu, Jewish, Arabs, Syria and others.
THE OLD COURT SYSTEM
The Sultan of Zanzibar did establish formal courts but the Judicial powers were exercised by Sheikhs and Kadhi’s. In 1897 the Sultan recognized the system of Judiciary by establishing formal courts presided by Walii, matter of time the courts were again re-structured & looked a closed.
At the bottom there were Lower Court, District Court, Kadhi’s Courts Supreme Court which was presided over by the Sultan and two Kadhi’s. Considering the nature of the court system at that time, some Constitution principles were violated such as Separation of Powers, Independence of Judiciary and Rule of Law.
ZANZIBAR COURTS DURING THE BRITISH ADMINISTRATION
By the two Historical treaties;
(a) National Treaties
(b) Dd
Zanzibar was wider official British colonization in 1890, British establish CONSULAR COURTS to resolve disputes involving British subject in Zanzibar and non-Moslems, these courts were presided over by Judges and Assistant Judges appointed by his majesty in Zanzibar (Majesty-Queen or Kings). Members in Subordinate courts were appointed by Secretary of the state. Appeals from Zanzibar Courts went to the High Court located in Bombay. Zanzibar was considered to be a District of the president of Bombay.
APPEAL SYSTEM TO BOMBAY
However appeal was abolished in 1914, appeal diverted to East African Court of Appeal. The British did not abolish the court system before colonization in Zanzibar as the results there were two court system in Zanzibar during British error;
ü For Arabs
ü Courts of British subject and non-Moslems
ARABS AND BRITISH SUBJECT AND NON-MOSLEMS COURTS
Arabs were mainly applying Islamic Law while the British applied English Common Law and some Statute of General Application.
ZANZIBAR COURTS AFTER INDEPENDENCE
Zanzibar got independence on 12 November, 1963; the Bill giving independence of Zanzibar was passed. The British Legislature is composed of the lower chamber and the upper chamber. The lower chamber is made for the House of Common. The upper chamber is made for House of Lords. The last institution is Queen. On 3rdDecember, 1963; the law was enacted giving independence to Zanzibar on 10thOctober, 1963; Zanzibar gain its independence.
ZANZIBAR REVOLUTION
On 12thJanuary, 1964; month independence there was a blood revolution in Zanzibar, the Sultan government by Said Bin Jamshr Bin Abdullah and the Prime Minister Shamte was overthrow. It was believed that the revolution was organised by some of the delegates who attended a constitution conference in London.
IS SUCCESSFUL REVOLUTION LEGAL?
When revolution succeeds is legal but when fail is illegal.
THE COURT SYSTEM AT THE TIME
1. High Court
2. District Court
3. Kadhi’s Court
4. Primary Court
5. Juvenile Court
In 1969 the Peoples Court Decree was enacted, this decree establish a different and district court system for the Ireland comprises five of it.
1. At the bottom there was the People’s Areas Courts;
2. Peoples District Court;
3. The Kadhi’s Court;
4. High Court of Zanzibar;
5. Supreme Council Court.
1. PEOPLES AREAS COURT
This court was presided over by people appointed by the president. They had jurisdiction to hear minor criminal cases such as common assaults, criminal trespass. They had also power to sentence up to six months imprisonment at so called “Education Centre”. Again they had powers to impose fine and compensation for amount which does not exceed 600/= shillings. In civil cases the subject matter was of value which not exceed 2000/=shillings.
2. PEOPLES DISTRICT COURTS
These courts have jurisdiction in all criminal cases except murder, attempted murder, manslaughter and treason. In civil cases the subject matter was limited to the value of 10,000/=shillings. They were also empowered to deal with Juvenile offenders. Also the court had appellate jurisdiction for appeals arising from Peoples Court.
3. KADHI’S COURT
Parties were to be Moslems and the subject matters were Marriage, Divorce, Wakf, Guardianship, Inheritance, Maintenance and Custody of Children.
4. HIGH COURT OF ZANZIBAR
The High Court had overall inherent jurisdiction as provided by the High Court Decree. It had also appellate jurisdiction to resolve cases arising from the Peoples District Court and the Kadhi’s Court.
5. THE SUPREME COUNCIL COURT
This Court had appellate jurisdiction over all matters from High Court. It could hear and determine all matters of public importance referred to it by the president.
COMPOSITION OF SUPREME COUNCIL
It was presided over by the Chairman appointed by the president of Zanzibar, also there were other members appointed by the president. Their qualifications were not described by any law.
CURRENT JUDICIAL STRUCTURE IN ZANZIBAR
The Judiciary is not a union matters and Administration of Justice is not a union matter.
So the current Court System in Zanzibar was established in 1984/1985 and it is composed of the following;
(I) Magistrate Court of three types namely as follows;
ü Primary Courts;
ü District Courts;
ü Regional Courts.
(II) Kadhi’s Courts;
(III) High Court of Zanzibar;
(IV) The Court of Appeal of Zanzibar.
A. PRIMARY COURT OF ZANZIBAR
ESTABLISHMENTS
A Primary Court is established in every District in Zanzibar as per section 3(1) of the Magistrates Court Act, 1985 of Zanzibar which provides as follows;
“…There is hereby established in every district a primary 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…”
“…The Chief Justice may, if thinks fit so to do, establish another primary court in any district so that the number of primary courts in that region may be more than one…”
COMPOSITION OF THE PRIMARY COURT OF ZANZIBAR
The Primary Court of Zanzibar is presided over by the Magistrate who is holding a Certificate or Diploma in Law as per section 5(2) a & b of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…A person shall be qualified to be appointed as a primary court magistrate if, and shall not be so qualified unless he holds a certificate in law or any other equivalent certificate recognized as such..”
“There shall be a primary court magistrate who shall be appointed by the judicial service commission”
LANGUAGE OF THE PRIMARY COURT OF ZANZIBAR
Language of the Primary Court of Zanzibar is Swahili language as per section 7 of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…The language of primary courts shall be Kiswahili…”
ASSESSORS OF THE PRIMARY COURT OF ZANZIBAR
Normally the primary court magistrate seats with not less than two assessors
As per section 6(1) of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…In every proceeding in the primary court, including a finding, the court shall sit with two assessors…”
Also the decision in all matters under the primary court of Zanzibar is given by the vote of the majority as per section 6(2) of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…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 guilty or innocence of any accused person, the determination of sentence, the assessment of any monetary award and all questions and issues what soever shall be decided by the votes of the majority…”
SERVICE OF THE LAWYER UNDER THE PRIMARY COURT OF ZANZIBAR
Advocates or State Attorney are not allowed to appear or to attend before the primary court of Zanzibar so as to represent for any party as per section 8(1) of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…No advocates or State Attorney may appear or act for any party before a primary court magistrate…”
However under primary court of Zanzibar people may be represented by “Wakyls” apart from advocates’ and State Attorney as per section 8(2) of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…Wakyls may appeal for or on behalf of any party before the primary court…”
These Wakyls are not defined any where but generally they are considered to be paralegals holding certificate or Diploma in Law.
JURISDICTION OF THE PRIMARY COURT OF ZANZIBAR
Primary Court has criminal and civil jurisdiction, the sentence in criminal cases shall not exceed three (3) months imprisonment, and civil cases five (5) million for immovable properties and one (1) million for movable properties.
NB; Read more section 4 of the magistrates’ Court Act, 1985 of Zanzibar.
B. DISTRICT COURTS OF ZANZIBAR
ESTABLISHMENT
District Court is established in every District in Zanzibar as per section 9(1) of the Magistrates’ Court Act, 1985 of Zanzibar which provides 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…”
However the House of Representatives may establish more District Courts in any designated area as per Article 100 of the Constitution of Zanzibar.
COMPOSITION OF THE DISTRICT COURT OF ZANZIBAR
Provided under section 10(1) of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…There shall be a District Magistrate for every District Magistrate’s Court who shall be appointed by the Judicial Service Commission…”
Magistrate appointed by the Judicial Service Commission, they must be holding a Diploma Law or equivalent from any recognized university as per section 10(2) of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…A person shall be qualified to be appointed as District Magistrate if, and shall not be so qualified unless he holds a diploma or degree in law or equivalent from any recognized University or Institution…”
SERVICE OF THE LAWYER UNDER THE DISTRICT COURT OF ZANZIBAR
Advocates are allowed to appeal before the district court of Zanzibar as per section 32 of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…Lawyers and State Attorney may appeal for and on behalf of any party in the District or Resident Magistrate Court…”
LANGUAGE OF THE DISTRICT COURT OF ZANZIBAR
The language of the district court of Zanzibar shall be either English or Swahili as per section 15 of the Magistrates’ Court Act, 1985 of Zanzibar which provide as follows;
“… The language of the court shall either be in Kiwahili or English and the records shall be kept in Kiswahili or English as the Chief Justice may direct…”
JURISDICTION OF THE DISTRICT COURT OF ZANZIBAR
The district court have both original and appellate jurisdiction in criminal and civil cases. In criminal cases seven years is maximum sentences and specified amounts of fine as may be changed by the Chief Justice from time to time. In civil cases ten (10) million is maximum for immovable properties and five (5) million for movable properties.
Also appeals from the Primary Courts lie to the District Court as per section 17(1) a of the Magistrates’ Court Act, 1985 of Zanzibar which provide as follows;
''…An appeal has been filed by a person entitled to appeal to a District Court…”
Also the District Court has supervisory powers over Primary Courts as per section 17(1)b of the Magistrates’ Court Act, 1985 of Zanzibar which provide as follows;
“… A District Court calls for the record of any proceedings under section 16 of this act…”
NB; Read section 11, 13, 14, 16 & 17 of the Magistrates’ Court Act, 1985 of Zanzibar.
C. REGION COURTS OF ZANZIBAR
ESTABLISHMENT
Regional Courts is established in every region of Zanzibar as per section 18(1) of the Magistrates’ Court Act, 1985 of Zanzibar which provide as follows;
“…There is hereby established in every region a Resident Magistrates’ Court…”
The Region court is presided over by the magistrate who is holding a Degree in Law and may has additional experiences in law matters. A Regional Magistrate’s is appointed by the Chief Justice. He or she must have a degree in law and must have experience of not less than three years as provided under section 19(3) of the Magistrates’ Court Act, 1985 of Zanzibar which provide as follows;
“….A person shall be qualified to be appointed as Resident Magistrates’ if, shall not be so qualified unless he holds a degree in law and has an experience of not less than three years of service…”
SERVICE OF A LAWYER IN THE REGION COURT OF ZANZIBAR
Legal representative is allowed in the region court of Zanzibar as per r section32 of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…Lawyers and State Attorney may appeal for and on behalf of any party in the District or Resident Magistrate Court…”
LANGUAGE OF THE REGIONAL COURT OF ZANZIBAR
The language applicable or used in the regional court shall be Kiswahili or English as per section 23 of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…The language of the court shall be both Kiswahili and English and the proceedings shall be either in Kiswahili or English as the Chief Justice may direct…”
JURISDICTION OF THE REGION COURTS OF ZANZIBAR
CRIMINAL JURISDICTION
The regional court of has criminal jurisdiction and its powers to impose sentences of imprisonment is limited to seven (7) years.
CIVIL JURISDICTION
The region court of Zanzibar has the jurisdiction to hear and determine civil cases where by the value of the subject matter doesn’t exceed fifty (50) million for immovable properties and thirty (30) million for movable. Regional court is also the Juvenile Court in respect of cases involving juvenile in conflict with the law or Juvenile matters.
ORIGINAL JURISDICTION
Also the Regional Court has original jurisdiction as provided for under section 21(a) & (b) of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…subject to the provisions of any law for the time being in force, the powers of courts of resident magistrate shall be limited, and their practice and procedure regulated in the exercise of their original criminal jurisdiction, by the penal code and the Criminal Procedure Code and civil jurisdiction in accordance with the principles and provisions of the Civil Procedure Code, so far as the same shall be applicable and suitable provided that in Criminal matters all matters listed in Schedule I of the Criminal Procedure Decree and as may be amended from time to time which were then heard by a subordinate court of First Class shall be heard by the Resident magistrates …”
APPELLATE JURISDICTION.
A Regional Magistrate’s Court hears and determines appeals from districts courts as per section 25 of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…The Resident Magistrate’s Court shall have appellate power for all cases from the District Court…”
SUPERVISORY POWER
Also has a supervisory power over both district and primary courts. He or she may call for any record from a Primary or District Court and examine the same to satisfy him the legality and propriety of the decisions made by the lower courts. This has been provided under section 19(1) of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“… The Chief Justice shall appoint for each region a resident magistrate in-charge to perform the supervisory, administrative and judicial functions of a resident magistrate in-charge in the region…”
Also the Regional Magistrate’s is also the chairperson of the Juvenile Court as provided for under section 22 of the Magistrates’ Court Act, 1985 of Zanzibar which provides as follows;
“…The resident magistrates shall, by virtue of his post be a chairman of the Juvenile Court…”
Read more section 20, 21, 24, 22, 25 34, of the Magistrates Court Act, 1985 of Zanzibar.
NB; The Regional court in Zanzibar is the same as the Resident Magistrates’ Court in Tanzania mainland.
D. KADHI’S COURT OF ZANZIBAR
The Kadhi’s Court is an important institution in Zanzibar because of the very set up of the society on the Isles. The Kadhi’s Court is established under the Kadhi’s Court Act No. 3 of 1985. According to section 6 of that Act, the jurisdiction of the Kadhi’s Court is restricted to the determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all parties profess the Muslim faith.
In Zanzibar more than 95% percentage of all inhabitants are Muslims and therefore the importance of this court can hardly be overemphasized. The Act provides for the establishment of the Kadhi’s Court in each district of Zanzibar with jurisdiction in that district. The Court of Appeal of Tanzania is specifically kept out of the issue relating to Kadhi’s Courts.
“…All Kadhi’s to preside over the Kadhi’s Court shall be appointed by the Judicial Service Commission…”
TYPES OF KADHI’S COURT
ü Kadhi’s Court;
ü Chief Kadhi’s Court.
JURISDICTION OF THE KADHI’S COURT
Jurisdiction of the Kadhi’s court is limited to questions of Islamic Law and on issues of personal status such as marriage, divorce, inheritance, wakf. They are presided over by the people who must profess and follow Islamic faith and these are known as “Moslems Intellectuals” who must possess Islamic Knowledge. Also they are appointed by Judicial Service Commission in consultation with the president and the chief Kadhi’s.
CHIEF KADHI’S COURT
The court is presided over by the person appointed by the president of Zanzibar.
“…Chief Kadhi’s is appointed by the president of Zanzibar…”
This is appellate court for all Kadhi’s Court found in Zanzibar and has no original jurisdiction.
“… Appeals from Kadhi’s Court go to the Chief Kadhi’s Court which has no original jurisdiction but acts as an appellate court for the decisions of the Kadhi’s Court…”
HIGH COURT OF ZANZIBAR
Both the union constitution and constitution of Zanzibar recognize the High Court of Zanzibar. Additional there is a special Act that is High Court Act No. 2of 1985 which established the High Court. Also the second schedule of the union constitution under list two, the last page item no. 6, the High Court of Zanzibar is listed and protected.
High Court of Zanzibar is established also under Article 114 of the Constitution of the United Republic of Tanzania of 1977 which recognize the High Court of Zanzibar, which provides as follows;
“…For the purposes of construing the provisions of this Chapter of this Constitution, it is hereby declared that the provisions contained in this Chapter do not prevent the continuance or establishment, in accordance with the law applicable in Zanzibar of the High Court of Zanzibar or courts subordinate to it…”
LANGUAGE OF THE HIGH COURT OF ZANZIBAR
The language of the High Court of Zanzibar shall be English or Kiswahili as per section 14 of the High Court Act.
COMPOSITION OF THE HIGH COURT OF ZANZIBAR
The High Court of Zanzibar shall be presided over by Chief Justice of Zanzibar and other Judges whose number shall be not less than two.
ASSESSORS
The assessors shall seat in the High Court of Zanzibar so as to advice the judges on point of fact. However their opinion does not bind the judges.
JURISDICTION OF THE HIGH COURT OF ZANZIBAR
Article 115 of the Union constitution provide for the jurisdiction and must be read together with section 93(1) of the Constitution of Zanzibar.
“…Subject to Articles 83 and 116 of this Constitution; the Jurisdiction of the High Court of Zanzibar shall be as specified in the laws applicable in Zanzibar. But subject to the provisions of this Constitution or of any other law enacted by Parliament, where any law enacted by Parliament and which is applicable in Mainland Tanzania and also in Tanzania Zanzibar vests any power in the High Court, then the High Court of Zanzibar may exercise that power concurrently with the High Court of the United Republic…”
High Court of Zanzibar is the highest appellate court in Zanzibar. It is also the court of records with unlimited jurisdiction on both criminal and civil matters. It has appellate, review and supervision powers. It entertains appeals from the Chief Kadhi’s Court from Zanzibar where its decision is final and conclusively.
For the purpose of hearing appeals from Chief Kadhi’s Court the High Court Judge must sit together with four Sheikhs who are well conversant in Islamic Law and the final decision is based on the opinion of the majority of the members.
In Zanzibar some matters cannot be the subject of Appeal from the High Court of Zanzibar to a Court of Appeal of the United Republic of Tanzania. This includes cases concerning interpretation of Zanzibar Constitution and matter arising from Kadhi’s Court since the decision of the High Court of Zanzibar on those matters is final and conclusively.
RELATIONSHIP BETWEEN HIGH COURT OF ZANZIBAR AND HIGH COURT OF TANZANIA MAINLAND
SIMILARITIES
ü Both are the highest court in their area of jurisdiction.
ü Both have concurrent jurisdiction on some matters as per Article 115 of the Union Constitution.
ü Both have unlimited jurisdiction.
ü Both are courts of records;
ü Some of their decision may be the subject of appeal to the Court of Appeal of United Republic of Tanzania.
DIFFERENCES
ü Appeal from High Court of Zanzibar to the Court of Appeal of United Republic of Tanzania is unlimited while Appeal from High court of Tanzania mainland is widen scope.
ü While the High Court of Tanzania mainland has subject matter jurisdiction for the union disputes originating from Zanzibar but High Court of Zanzibar has no jurisdiction for any case or dispute arising from Tanzania mainland.
ü While the High Court of Zanzibar entertain the matter pertaining to Kadhi’s Court but the High Court of Tanzania Mainland does not deal with matters arose from Kadhi’s Court.
WEAKNESSES ON ADMINISTRATION OF JUSTICE IN TANZANIA WHICH ARE ROOTED FROM THE STRUCTURE OF DUAL COURT SYSTEM
ü A divided Judicial, because a Judicial is divided against justice;
ü Application of different laws;
ü Limited Jurisdiction of the Court of Appeal of Tanzania as per Article 115 of the Union Constitution;
ü Novel special constitution of court;
ü Weak position of Chief Justice of Judicial in Tanzania;
ü Legal labyrinths of the Union Constitution of Tanzania and that of Zanzibar.
IDENTIFICATION OF PROBLEMS
The problem can be identified in the following areas;
§ Why union;
ü This concern with the history before union.
§ Ratification;
ü It is a record that Tanzania Mainland find the union but there is no evidence that Zanzibar ratifies the Article of union.
§ Structural ambiguities of union;
§ Issue of whether Zanzibar is a state addressed in case of SMZ V. Machame Criminal Appeal of 2012, Court of Appeal at Zanzibar.
CONDITIONS FOR EXISTENCE OF THE STATE
ü There must be permanent citizen or people;
ü There must be country or territory which has its boundaries;
ü Existence of Government;
ü Government must be sovereignty.
Sovereignty, the supreme of the authority or an authority which is in dependence of any other. Authority or complete independence within and outside the boarders and outside the state. Court build that this the proper juncture to set out that Zanzibar.
