INTRODUCTION
DEFINITION AND NATURE OF LAW
In
the realm of the legal theory, the word law is a complex term which is capable
of multiple definitions and has for a long time been subject of legal writers
arguments. However simply stated, the term law presupposes presence of rules
that affect the daily lives and activities of peoples. These rules emerge in
different ways, though in most cases there must be a consensus, as to whether
or not such rules are desirable. On being widely accepted this rule will become
law when a class of persons who are in power (the government, for instance in present
day societies) in any given society enforces it.
The
enforcement of a rule makes it a legal rule which status is a condition
precedent before it gains the title of law in its real sense. It follows
therefore that not every rule that has been consented to by the members of a
particular society is legal; many of these rules fall way short of being legal
rules. Paul Denham (see references at p.g. 17 of this work) furnishes an instance
of these non -legal rules which he names as conventions and in his own
phraseology he states as follows:
‘It is
a convention that a man will normally take his hat off in a church. But it is a
legal rule that one person shall not hit another.’ Or that it is just a
convention that the young will normally respect the elders. But it is a
legal rule that the young or any other person should not
abuse
another.
You
should be able to distinguish between legal rules and non-legal rules. Non
legal rules, when they are breached there may never be enforcement. Due to
this, then, the law may be defined as: ‘The
complete body of all those individual rules that bind the society together’
The
definition of law may also include ‘the process by which these rules are created
and applied’ Collectively, the development of these rules, their substance
(content), and the application together make up a legal system [Denham]. This
includes the process of making of these rules by the relevant organs,
interpretation of the rules by courts of law and enforcement by the police and
other organs charged with that duty; all of these are subject to presence of
the rules. If there were no rules what would the courts interpret or the police
enforce?
1.2
GENESIS AND DEVELOPMENT OF LAW
Genesis
How
did the law begin for the first time? Who brought it? When was it and why? These
are the basic questions one might ask himself.
As
it has been shown above, law began as a rule (s) set by people in a given
society to govern their conducts. The law becomes more important when the
relations between persons in a given society are complicated. Usually as the
society develops the relations of production turn out to be more or less of
conflicting interests . To understand better this statement I would , by way of
illustration, adopt the “desert island analogy” given by Gregory Allan in his
article titled , The origin of law [refer to pg. 17 for full reference]
He
states with my own emphasis that :
“if
one man lives alone on a desert island, he has no use for any law to guide his
conduct in
which
case he can do whatever he pleases without causing any injury to any other
soul. He
thus
needs no law.”
The
situation would be different if another man showed up on the same island. There
would be the two of them now. When two persons live together, it is certain
that there will be disagreements on certain matters and they will always have
arguments. It is likely that the stronger man will take advantage of his
strength to dominate the weaker man who in turn will be submissive. This
delicate situation entails requirement of law to guide them so that no one of
them may be disadvantaged.
Whatever
the case Gregory Allan states:
“…In
the end they will either agree on certain rules of behaviour or conduct.”
These rules of behavior become customarily binding to the present as well as
the men who later become the members of that society. If there was this
agreement, why is that only a section of the members of the public become the
makers and enforcers of the law?
This
has to do with the influence the development of a society has had on the development
of the law. In its development the human society has passed through five stages
namely, communalism, slavery, feudalism, capitalism and socialism. During the
era of communalism the nature of life the members of these societies were leading
was such that they worked together and shared out the fruits of their labour on
equitable basis. During this time technology was rudimentary (low) and man only
struggled to produce for his subsistence. Later better technological tools were
discovered and those who seized the early advantage of the advent of this
technology began to produce enough food not only for subsistence but also for
surplus. The power of surplus food made them prominent and superior over
others. It was the powerful that later dominated the less powerful, it was them
who later made the rules and the weaker followed. That was the beginning of the
so called centralized governments which later turned out to be the makers and
enforcers of the laws they made. This is the reason why it is the governments
that make law to day.
You
will agree with me that it takes one to have enough resources to gain power.
DEVELOPMENT OF THE LAW IN TANZANIA
In
Tanzania, like it is in most of the Common Wealth Countries, the original law
is customary law which developed from rules of conduct set by the indigenous
societies to govern their behaviors such as marriage, contracts inheritance
etc. There are about 120 tribes in Tanzania; every one of them had a set of its
own customary rules necessary to govern their way of life.
However
the dominant law in Tanzania is not
customary law, why is this so? The answer is simple: because our country
has been, at some time, the subject of colonial rule. Though there were two
colonial masters in our country namely Germans and the British I am inclined to
discuss the latter (British) only since their influence in country is greater than
that of the former (Germans). The British who ruled Tanganyika from 1818-1961
imposed the nature of their Legal System to Tanganyika which we still use to
day. Before going further into the effect of this imposition to Tanzanian Law
let me offer an insight into the English Legal System, in brief so that you may
know what kind of system Tanzania has adopted and what is the extent of this
adoption.
NATURE OF THE ENGLISH LEGAL SYSTEM
The
laws which were applicable to England before it was brought to Tanganyika was
based
on two major sources, namely Judicial Precedent and codification (acts of
Parliament/
statutes)
1.
Judicial precedent:
This
refers to application of a decision by judges, reached in a particular case to
a similar case that arises later, if the facts of the two cases are materially
the same. What law did the judges in English Courts apply in deciding these
cases? They applied common law [comprises of a body of customary laws of
England, similar to customary laws of Tanganyika before the coming of the British]
and Equity [a body of rules devised by
the English courts on the basis of fairness and good conscience to remedy the
short comings of the common law]
These
two laws i.e. Common law and equity were, before 1873, administered by different
courts namely Courts of Common law of England and Courts of Equity respectively.
In 1873 a law was passed; the Judicature Act of 1873. This law united the two
courts and created the Court of Appeal and the High Court of Justice which
could apply both Common Law and Equity.
2. Codification (Acts of Parliament/
Statutes)
Codification
refers to the process whereby the various rules of law are created by the parliament
and laid down in books of law called statutes. This is the model of English Law
which was imposed on Tanganyika during the British rule. I hope you have gained
a clear insight into the kind of legal system that our country has adopted.
THE EXTENT OF APPLICATION OF
ENGLISH LAWS TO TANZANIA
Before
the coming of the British, the indigenous population as it has been illustrated
above, mainly used customary laws. When the British came these customary laws
began to apply subject to English law highlighted above which was dominant
then. This means the English Law was received in Tanganyika. July 22nd
1920 is a very important date in Tanzania. It is referred to as the reception date.
It was the date on which the extent of application of English Law to Tanganyika
was declared by the British Colonial Government by the Tanganyika Order in
council of 1920 which met at the Court of Buckingham Palace.
THE TANGANYIKA ORDER IN COUNCIL OF
1920
This
is an order which defined the scope of application of English laws as well as laws
of other countries to our country:
WHAT WAS THIS DECLARED LAW?
The
Colonial Government on behalf of his majesty King of England declared
1. The substance of Common Law (that which
used to be applied by the courts of law in England as shown above)
2.
Principles of Equity (that which was
applied by the courts in England as shown above)
3.
Statutes of General Application.
As
the laws that would apply to Tanganyika.
OTHER LAWS WHICH WERE DECLARED
APPLICABLE TO TANGANYIKA
By
s. 13 (a) (9) the Tanganyika Order in Council declared that any Ordinance which
by s. 13 (a) (1) the governor of the Tanganyika territory is allowed to pass
may apply to the territory (i.e. Tanganyika) any Act or law of the United
Kingdom, or of any legislature of India, or of any Colony or Protectorate,
subject to any exceptions and modifications which may be deemed fitting.
WHAT IS THE IMPLICATION OF THIS
APPLICATION?
It
implies that English laws would, by this declaration, apply to Tanganyika as
they were standing by 22nd July 1920 and other laws adopted from other
countries would apply subject to modification, so that they suit the local
environment. This means all cases decided by the Common Law and Equity Courts
before 1920 apply to Tanganyika and allmthose which were decided by the English
courts above 1920 are persuasive to local courts.
WHAT ARE OTHER LAWS APPLICABLE TO
TANGANYIKA APART FROM THE ENGLISH LAW?
By
s. 13 (a) (1), the governor of Tanganyika acquired a legal authority to apply
to Tanganyika the Indian Contract Act of 1872 whose application to Tanganyika
ended in 1961 and its place was taken by the Law of Contract Ordinance of 1961,
Cap 433 hereinafter called the LCO.. Therefore with minor modifications this
Act has, since its application, been the relevant Act directly providing for
the matters pertaining to contracts in Tanzania. The substance of this act is
the same as that of its counter part, The Indian Contract Act of 1872. In law
they are called statutes in parimateria. The LCO, 1961, with the general
revision of the laws in Tanzania, is now referred to as the Law of Contract
Act, Cap 345 of 2002. In 1961, a Law known as the JUDICATURE AND APPLICATION OF LAWS ORDINACE [JALO] was passed with
the view to restrict application of customary laws in Tanganyika. By s. 11 this law declared that these customary
laws would only apply when they did
not conflict with the general laws of the land. And in 1963 two years later most of the customary Laws that were
still applicable to Tanganyika and
which were thought to be not able to conflict with the general law were codified under a statute known as the
Local Customary Law (Declaration) Order of
1963.
Therefore
customary laws apply to Tanganyika subject to such limitations underscored above.
Due to the effects of the imposition and adoption of the English Law to Tanganyika,
development of our Law is largely through judicial precedent and codification
by the parliament just like in the English Legal System. Law made by the parliament
is largely characterized by public opinion rather than customary practices. You
will, thus, notice later that all the laws in Tanzania that relate in one way
or another to business have a more or less direct relation to the English law
and Practices. Judicial Precedents from English courts will, by and large, be
of that inevitable significance to this course. Indian cases might be of some
use in the general understanding of some issues especially in contract cases
for we share with them common matters in various aspects of contract law and
due to the fact that some part of their law has at some point in time been
imposed on our legal system.
Therefore
this account, in short illustrates the development of the law in Tanzania.
CLASSIFICATION
OF LAW
There
are various ways of classifying laws; thus it may be classified as one of the following
groups:
·
Public/
Private
·
Civil/Criminal
·
Substantive/
Procedural
·
International/
Municipal
·
Common
Law/ Equity
However,
to simplify the classification, as the legal systems develop the rules of law it
tend to fall into two major groups[Soulsby] i.e. criminal law and civil law
CRIMINAL LAW
This
deals with the relationship between the individuals and the state. That is why
you might have seen criminal cases being referred to as R v. Cash Book, the
letter R refers to the Republic (the government of Tanzania)
CIVIL LAW
This
deals with the relationships between individual persons. Instances of this law
are company law, contract law, banking Law, business law etc. the cases under
this law are cited as: Yahoo.Com v.
Hotmail.Com, IAA v. NBC.. You might be wondering why it is said that the
law governs relationships between individual persons and a case has its parties
as IAA v. NBC. In law there are two kinds of persons; natural persons, you and
I for instance, and legal persons, those which are established by law like the
IAA, the NBC, and the STUDENTS’ LOANS BOARD. You shall encounter a lot of these
as you move forward in this course.
FUNCTION OF CIVIL LAW
Since
civil law involves individual persons, its main function is to protect these individual
persons against the wrongful acts or omissions of other persons. A simple instance
of a wrongful act is breaching a contract. A person who suffers loss due to a
wrongful act of another may open up a civil case before a court of law [after
opening that case he will be called a plaintiff] and if he proves to have
actually suffered that loss, the person who caused such loss [the defendant] is
said to be liable and the court may order him to indemnify the victim. Upon
proving that he has suffered a particular loss, the remedies that may be
awarded by the court into which he has filed the case are of two kinds:
1.
Common law remedies e.g. Damages
2.
Equitable remedies e.g. Specific
performance or rescission of a contract, Courts Injunction This is how the
rules of law are being enforced. One thing worth noting, is that to get benefit
of the remedies above and many others you should be able to prove that you actually
suffered a loss and that it was caused by your adversary. In Criminal as well
as in Civil Law there is one legal duty known as the burden of Proof [it refers
to the duty to prove your claim before a court] is upon the Plaintiff in Civil
Matters and in the Prosecution in Criminal matters.
SOURCES OF LAW
The
sources of law in Tanzania are as follows:
i.
The Constitution of the United Republic
of Tanzania of 1977
This
is the Highest Law of the Land, all other laws must be made subject to this
law. In more precise terms other laws of the land must not contravene the
provisions of the constitution, if they do the constitution will prevail and
the other law will be declared null and void [treated as no law].
ii.
Legislation: statutes/ Acts of
Parliament
A
great majority of laws are made through the parliament which is the only organ
vested with that duty by the constitution. The process is that, the government
must show an intention to have a particular law in place bringing a bill to the
parliament for the proposed law on which the parliament will debate and decide
if it is a suitable law. The response of the interested parties would be sought
before passing the law. To become the law the president must assent to it and
the same must be advertised in the gazette. A law, once established, remains in
force until it is repealed [shorn of its legal force by another law made by the
parliament].
iii.
Delegated Legislation
Though
the supreme law making body of the country is the parliament, it usually delegates
[assigns], its power to make the law through the laws it has made to specific authorities
in charge of that law. This authority to which power to make law is delegated by
the parliament will make a valid and enforceable law only when it does not
exceed the powers granted to it. The laws made by delegated power are known as
by-laws, regulations and circulars.
iv.
Customary and Islamic Laws
You
already know what are customary laws, these together with the Islamic laws,
apply subject to the limitation that they should not infringe the general law
of the land. Remember s. 11 of the Judicature and Application of Laws Ordinance
of 1961
v.
English Law subject to Reception
Clauses, 22nd July 1920
vi.
Case Laws and Precedents, decided by the
higher Courts of the land i.e. The High Court and The Court of Appeal.
You
already know what is and how judicial precedent applies to the courts. However
to
consolidate
your understanding, the courts in Tanzania use the principles established in the
already decided cases to future cases whose facts are materially the same as of
those cases
End
This
Article was prepared and submitted by Kisilwa,
Zaharani, Business Law Instructor at the Institute of Accountancy Arusha
