The Law School of Tanzania Journal

ANALYSIS OF THE LEGAL FRAMEWORK GOVERNING THE APPLICATION OF THE TRANSPARENCY AND ACCOUNTABILITY PRINCIPLE IN MAINLAND TANZANIA’S PETROLEUM SECTOR.

Emmanuel Malya, Ryoba Marwa — Wed, 30 Jul 2025 00:00:00 +0000

In recent years, the petroleum industry in Mainland Tanzania has experienced significant growth, and numerous discoveries have been made. Many companies, including domestic and foreign ones, have been investing in the industry due to this development. This has provided the government of Tanzania with the opportunity to collect taxes and other earnings from the sector's exploration and production activities. Nevertheless, the sector's operations are not without governance difficulties, such as corruption and misappropriation of funds, to name a few. This article analyses different binding and non-binding legal instruments that necessitate the implementation of transparency and accountability principle in the sector to tackle these challenges. Nevertheless, its application in the sector is impeded by various obstacles, including inadequate punishment for non-compliance and non-verification of information. These obstacles must be promptly eliminated to facilitate the implementation of the principle and enhance the sector's governance.

CRITICAL EXAMINATION OF THE LEGAL AND PRACTICAL CHALLENGES ON THE USE OF WITNESS STATEMENTS IN CIVIL CASES IN TANZANIA.

Vicent Bartholomew Mtavangu — Wed, 30 Jul 2025 00:00:00 +0000

Traditionally, the common law (which is an adversarial legal system) requires a witness to appear physically before the court and adduce his evidence viva voce. However, another approach has been recently developed whereby a witness may give his/her evidence through a witness statement. However, this approach – which aims at accelerating justice, seems to be favorable for complex cases, such as commercial disputes, arbitral proceedings and election petitions – is not free from challenges.

Thus, the purpose of this paper is to examine practical and legal challenges relating to the use of witness statements in civil proceedings in Mainland Tanzania. Apart from some lacunae in the legal framework (like not providing a room to rectify the witness statement already filed in the court), determination of the actual time for filing a witness statement is among the challenges noted in this paper. As such, the paper recommends, among others, for the amendment and harmonization of laws and rules governing witness statements in Mainland Tanzania.

ACHIEVING INDEPENDENCE OF THE BAR:

Elias C. Joseph, Mwaisiki E. Mwaisiki — Wed, 30 Jul 2025 00:00:00 +0000

This article charts out a course of achieving independence of the private Bar in Mainland Tanzania.While highlighting the role of the independence of the private Bar in enhancing independence of theJudiciary, rule of law and justice; the article premises its analysis along four indicators ofindependence of the Bar to shed some light on the broader significance of this principle. The article,among others, underscores that the disciplinary framework for members of the private Bar in MainlandTanzaniacompromisesits independence and consequently renders the assertion on judicialindependence questionable. It echoes that; effective independent regulation, freedom from fear of prosecution and professional privilege have not been effectively achieved. Ultimately, the article
proposes for reform of the disciplinary framework and urges lawyers to take lead in asserting theirindependence from external forces. The article reveals the current state and prospects of the independence of the private Bar in Mainland Tanzania

APPLICATION OF THE PUBLIC POLICY EXCEPTION TO THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN TANZANIA IN COMPARISON WITH SELECTED COMMON LAW JURISDICTIONS.

Julius Clement Mashamba, Aristarik Hubert Maro — Wed, 30 Jul 2025 00:00:00 +0000

The purpose of an arbitration agreement is that the parties should resolve their dispute amicably and through arbitration, in which case, they should readily comply with the arbitral award rendered in that arbitration process.

When parties to a dispute resort to arbitration they uphold the doctrines of finality in its bindingness and enforceability of the arbitral award – i.e., they demonstrate a clear intention that the arbitral tribunal will fairly and expeditiously determine the dispute and such determination is conclusive, final, binding and enforceable. However, where the award-debtor fails to comply with the arbitral award in good faith, the award-creditor should embark on court proceedings for enforcing the arbitral award. In some instances, the court may refuse to recognise and enforce a domestic or foreign arbitral award. Such instances include where the court finds that the concerned award was made contrary to “public policy” of a given country.

This article examines refusal of recognition and enforcement of foreign arbitral awards in Tanzania on the ground of public policy as entrenched in Section 83(5)(b) of the Arbitration Act, Cap. 15 R.E. 2020. It considers the public policy exception to the enforcement of foreign arbitral awards in Tanzania by specifically looking at the scope and applicability of this exception in domestic and international arbitration law. It draws comparative cases on public policy exception to recognition and enforcement of foreign arbitral awards as applied in other selected common law countries.

The article concludes that, courts should only interfere with arbitral awards when faced with extreme violations of the public policy exception; and should not use the public policy exception as an excuse to dig into the merits of the arbitral award.

REVIEW OF THE LEGAL FRAMEWORK ON DIGITAL COMMERCE AND ELECTRONIC CONSUMER PROTECTION IN TANZANIA’S DIGITAL ECONOMY.

Mary W.M. Bishota — Wed, 30 Jul 2025 00:00:00 +0000

Digital commerce (E-C) and electronic consumer protection in Tanzania’s digital economy are two very crucial and important phenomena that work hand in hand in digital realm. They have been established by the Information and Communication Technology (ICT) advancements which in turn have revolutionized the global marketplace. The buying and selling online has been ushering in numerous e-challenges, that are demanding for more and new e-enactments to regulate them in the digital marketplace. Certainly, existing offline laws cannot regulate ICT field satisfactorily. The present regulating laws were enacted before digital era, meaning that they were not tuned for digital commerce. Hence, the need to scrutinize the current existing laws that are governing digital arena and identify the legal gaps therein. Internet and other related advances of ICT are rapidly changing
the marketplace. Certainly, laws ameliorate the legal grounds by giving certainties and predictability forcing Tanzania to have a comprehensive and enforceable legal framework.

STATUTORY INTERPRETATION OF THE WORD “SHALL”:

Humphrey R. Shonga — Wed, 30 Jul 2025 00:00:00 +0000

This article delves into the realm of statutory interpretation, focusing particularly on how courts interpret the term “shall.” Despite its frequent usage in legal texts, the interpretation of the word shall remain a subject of debate amongst members of the legal profession, leading to inconsistencies and uncertainties in legal outcomes. Through an examination of judicial decisions, legislative history and scholarly views, this article elucidates the multifaceted nature of the word “shall” and provides clarity and guidance for its interpretation in legal contexts. By dissecting various judicial decisions and scrutinizing the applied approaches, the article offers insights into how courts can navigate the complexities of “shall” to ensure consistent and equitable application of the laws interpreted. The findings underscore the importance of context, and legislative intent, in mitigating the ambiguity inherent in the word “shall”, thereby enhancing the efficacy and integrity of statutory interpretation practices in the process of justice delivery.

CRITICAL ASSESSMENT OF EMPLOYEE’S RIGHT TO EFFECTIVE ADMINISTRATIVE AND JUDICIAL REMEDIES IN THE PUBLIC SERVICE IN TANZANIA .

Gaspardus K. Rwebangira, William Miigo — Wed, 30 Jul 2025 00:00:00 +0000

Access to effective administrative and judicial remedies is one of the rights recognized and protected by national and international laws. Victims of administrative decisions and orders, including servants in the public and private sector, must be able to access competent and independent tribunals and courts for pursuit of labour justice and enforceable remedies. The existing labour framework in Tanzania appears to guarantee workers in the private sector with adequate protection compared to workers in thepublic sector. This article critically analyzes the existing legal framework on protection of employee’s right to effective and administrative and judicial remedies in the public service. It applies doctrinal and comparative research methodologies and provides possible legal reforms.