The Law School of Tanzania Journal

THE LAW SCHOOL OF TANZANIA AND THE FUTURE OF LEGAL EDUCATION AND PRACTICE

Dr. GERALD NDIKA, Mr. GOODLUCK CHUWA — Tue, 13 Feb 2024 00:00:00 +0000

The Law School of Tanzania (LST) is the only institution in Tanzania mandated to offer post-university vocational legal training. Compared with similar institutions in the East African region, the LST is relatively new, having started offering training just eight years ago in 2008. In this article, the two authors who have been involved in designing, managing and running training activities at the school since its inception, share their perspectives on the successes and challenges experienced so far, as well as offering some suggestions on issues that need to be addressed to enable the school play its role in legal education and practice more effectively, in collaboration with key stakeholders in the legal sector.

ACCESS TO JUSTICE AND INEVITABLE REFORMS TO THE CIVIL JUSTICE SYSTEM

Mr. GASTORN KENNEDY — Tue, 13 Feb 2024 00:00:00 +0000

The article examines two aspects of the on-going reform to civil justice in Tanzania which are the introduction of case management and the state of the legal aid services. It states that any access to justice can only be achieved if the system provides legal aid services to indigents or those of slender means as well as providing the necessary resources to defend legal rights or to prosecute his or her case in order to bring equality among the parties to a dispute. To ensure timely justice, case management is central to effectively reduce the legal costs of civil litigation, delays, formality, technicality and complexities of the legal process. The article borrows experiences from other commonwealth jurisdictions where case management has been instituted such as Great Britain and Singapore. Tanzania has a common law adversarial system for its civil justice system. Although the article is by no means a comprehensive study of the performance of the judiciary in Tanzania it provides a useful reflection of the civil justice system in Tanzania.

THE LAW AND PROCEDURE ON LITIGATION OF HUMAN RIGHTS IN TANZANIA

Dr. JULIUS MASHAMBA — Tue, 13 Feb 2024 00:00:00 +0000

On 26th May 2014, the Tanzania Chief Justice, adopted the Basic Rights and Duties Enforcement (Practice and Procedure) Rules to advance and realize the basic rights and duties contained in the Constitution. The new Rules have brought about a number of important elements in the practice of human litigation in Tanzania, including elaborating the necessary stages in litigating human rights in court (both in the High Court and the subordinate courts), which is missing in the Basic Rights and Duties Enforcement Act. The Rules have also set out timeframes within which litigants they can undertake certain steps in pursuing their rights in courts; and have introduced a mandatory requirement for the parties to submit written submissions before hearing commences as well as the basic contents of such submissions. However, the Rules have also come out with a number of legally challenging aspects, including clothing District Courts and Courts of Resident Magistrates with jurisdiction to entertain human rights cases on referral from Primary Courts, contrary to Article 30(3) of the Constitution that vests exclusive jurisdiction on the High Court. Therefore, this article examines the progressive elements and challenges brought about by the new Rules in the procedure and practice relating to human rights in Tanzanian courts.

PROMOTING SUSTAINABLE ECONOMIC GROWTH THROUGH COMPETITION REFORMS

Mr. DEO NANGELLA — Tue, 13 Feb 2024 00:00:00 +0000

This article discusses the challenges facing the competition regime in Tanzania with

particular focus on policy, institutional, and implementation of the Fair Competition Act. It argues that, successes or failures of competition reform, or any regulatory reform, depend on the political will of the government of the day. Taking Tanzania as the case study, this article analyses the government’s role in the competition reform process in the country and the role competition policy has been playing in promoting healthy markets, consumer welfare, employment and innovation in Tanzania.

Additionally, the article examines areas that still call for further reform. It also lays an emphasis on the role which government should continue to play, in terms of providing strong and consistent support to the institutions vested with the mandate to provide competition regulation oversights. The article is in support of the view that while sustainable economic growth is a function of regulatory reforms, such reforms must essentially aim at eliminating or minimizing costs of doing business in order to stimulate investments, industrialization, and ultimately providing new employment opportunities that add to stability and total sociopolitical and economic welfare.

THE INFLUENCE OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS IN TANZANIA

Mr. FAHAMU MTULYA — Tue, 13 Feb 2024 00:00:00 +0000

The article assesses the influence of the Universal Declaration of Human Rights in Tanzania through judicial interpretation on fundamental rights and freedoms. It begins by revisiting the Universal Declaration of Human Rights and its elaboration, including nature and influence on human rights and freedoms. It proceeds with comparing the Declaration and the Constitution of the United Republic of Tanzania. The article finally attempts to show judicial influence of the Declaration through judicial interpretation. It is submitted that the Declaration embodies aspirational goals and cardinal provisions that are recognized and applied in Tanzania. The Declaration serves as a legitimizing power of the judiciary in interpreting human rights and freedoms. The article concludes that there has been back-forth movements in recognizing and applying the Declaration, though it sets a benchmark and a beacon upon which states may treat its citizens in protecting and promoting human rights and freedoms.

DIGITAL TRADEMARKS

Mr. INNOCENT KIBADU — Tue, 13 Feb 2024 00:00:00 +0000

When digital trademark law had yet to be enacted, infringements of digital trademarks are subjected to traditional trade and service marks and cybercrimes laws. This approach results in considerable conflict. The conflict paves the way for the consensus appealing for legislators to intervene and enact specific digital trade and service marks legislation suiting to confront the online digital trademarks infringement. Many countries in the world responded by enacting new provisions of laws covering digital trademarks and many others are on their way to take similar legislative steps, while others are still reluctant. The article highlights and addresses the legal concern developing digital trademarks provisions. On the bases of law, the article argues that the penetration of internet and its use in Tanzania requires effective measures to ensure legal framework is inevitable at national level through enactment or amendment of existing laws.

FOREIGN JUDGMENT RECOGNITION AND ENFORCEMENT IN COURTS OF TANZANIA AND KENYA

Mr. MOHAMMED HUSSAIN, Mr. MOHAMMED KHARTOUM — Tue, 13 Feb 2024 00:00:00 +0000

This article focuses on the Recognition and Enforcement of Foreign Judgments (REFJ) under Private International Law Rules, Convention, Treaties among nations and more particularly Tanzanian and Kenyan Courts. The concept of recognition, grounds for REFJ and enforcement in international law and private international law perspectives have been discussed. The research article overviews the reciprocal treaties to Tanzania and Kenya and theories which provide justification for REFJ. The procedures in enforcement of foreign judgment in Tanzanian and Kenyan courts are also examined. Finally it examines various court decisions in Tanzania and Kenya in relation to the issues at hand with a view to assessing their strengths and possible weaknesses in REFJ with conclusion and recommendations at the end.

FOUNDATION FOR ADMISSIBILITY OF ELECTRONIC EVIDENCE IN TANZANIA

Dr. ZAKAYO LUKUMAY — Tue, 13 Feb 2024 00:00:00 +0000

This article is a modest attempt to investigate the required standards for proper foundation of admissibility of electronic evidence in the courts in Tanzania. For such proper foundation to be laid, the e-evidence should pass through a number of tests as established under section 18 – 20 of the Electronic Transactions Act, 2015as well as judicial pronouncements as discussed in this discourse. These standards range from authenticity, relevance, rules against hearsay, and the best evidence rule. A proponent who fails to meet these tests will not be allowed to rely upon any piece of electronic evidence.

The article recommends that sections 69 and 78 &79 of the Tanzania Evidence Act, 1967 should be amended to introduce words to the effect that the requirement of authentication or identification is a condition precedent to admissibility and it is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. It is further recommended that merged to govern authentication of electronically stored information in the country. A good example in this respect are provisions of the US Federal Rules of Evidence which have been written in a more general manner to accommodate all evidence including evidence in electronic form.

Another provision worth adding to the Law of Evidence Act, 1967 is the one that should allow authentication or identification provided by the Act of Parliament or by other rules prescribed by the highest court in the hierarchy pursuant to statutory authority. The rationale of the proposed amendment is to give legal effect to the efforts by a few pro-active judges seeking to accommodate changes brought about by the ever advancing technologies.

THE UNIT TITLES ACT (2008)

Dr. SIST MRAMBA — Tue, 13 Feb 2024 00:00:00 +0000

The article examines the Unit Titles Act, its background, prospects and enforcement challenges. It is clear that the enactment of the Unit Titles Act aimed to inter alia ameliorate the problems associated with urban housing by providing for division of properties into units where common areas on land may be shared, including facilities and services thereupon. This form of common property ownership provides economized costs by spreading the cost among the occupiers.

The article surveys the various modes of disposition through which a person can acquire or transfer a unit property in Tanzania. The modes include sale, lease and mortgage. The article notes that there are challenges that impinge on realization of effective disposition under the Act. Hence, there is need for an effective legal and institutional regime for the Act to achieve its intended objective. Laws like the Land Act, Registration Act should be harmonized with the Unit Titles Act. There should also be robust, well-coordinated administrative machinery to ensure effective development and transfer of unit title properties. Such effort should go hand in hand with improving the capacity of the relevant land departments in the office of the Registrar of Titles and Local Government Authorities.