Short Course Paralegal Training Manual

THE UNITED REPUBLIC OF TANZANIA

MINISTRY OF CONSTITUTIONAL AND LEGAL AFFAIRS

SHORT COURSE PARALEGAL TRAINING MANUAL

2022

List of Abbreviations

Acknowledgement

This Paralegal Revised Training Manual has been developed by the Ministry of Constitutional and Legal Affairs, with technical assistance from Dr. Natujwa Mvungi a lecturer and Legal Aid Centre Coordinator from the Law School of Tanzania who was the consultant on development of this manual. The development of this manual has been funded by the European Union under the project of Improving accountability through fighting Corruption and increased access to justice IMPACT Programme.

Introduction

The Ministry of Constitutional and Legal Affairs developed this manual with the intent to help the trainers and paralegals during training of paralegals under short course and provision of legal aid services. On 31^st January 2017, The Parliament of Tanzania enacted the Legal Aid Act (No.1 of 2017). The Act was enacted to regulate and coordinate the provision of legal aid services to indigent person and recognise paralegals. The overall objective of this manual is to enhance the knowledge and skills of paralegals and also serve as reference material for the paralegals

The training will impart basic legal knowledge and relevant skills that paralegal will need to apply in their paralegal work so as to ensure effective delivery of quality services and rights of legal aid clients are adequately protected in the justice system. The training will be offered to persons who aspire to become paralegal with aim of providing of legal aid in context of Section 20 of the Legal Aid Act.

How to use this guide

The Manual is designed to be as clear and accessible as possible, while providing important legal information on basic legal framework in different areas of the law. The manual can be used as a first hand tool and that it does not intend to cover all areas of the law. Thus, the substantive as well as subsidiary law remain main sources of the Law. The manual should also be used with other reference materials as well as curriculum to complement learning.

Module 1: Fundamental of Pralegalism

Learning Objectives

1.1 Paralegalism

1.1.1 Definition of Paralegal

According to the Legal Aid Act, a paralegal is a person who is certified to provide legal aid services after completing the necessary training in the relevant field of study approved or recognized by the Legal Aid Act.

Generally, speaking a paralegal is a person who provides legal aid to persons in need of justice. A paralegal is not a lawyer. Paralegal assist members of the community by offering advice and assistance on a range of legal issues including: inheritance, land, matrimonial matters etc. Universally,

paralegals provide basic legal education, legal advice and assistance free of charge. Thus, paralegal is a community-based individual, who is not a lawyer but who has basic legal knowledge and skills.

1.2 Qualities of a Good Paralegal

A good paralegal must be:

1. Patient;

2. Disciplined;

3. Open;

4. Dedicated and committed to work;

5. A person of integrity;

6. Familiar with local customs;

7. Tactful;

8. Of good character and reputation;

9. Humble;

10. Trustworthy;

11. Courageous;

12. Sociable;

13. A good listener; and

14. Able to read and write Swahili language and effectively communicate in the local language of community

1.3 Roles and Importance of Paralegal Work in Accessing Justice

Under the law, paralegals do not carry out activities reserved for advocates (such as representing people in court, drafting and attesting of legal documents),^[1] nor charge a fee for their services.^[2] Paralegals are vested with a task/ duty of providing legal education to the community he/she is serving, assist the aided persons in the procedure to obtain necessary legal documents, guiding an aided person to a proper forum or access justice and resolving disputes using non judicial mechanisms^[3]

1.4 Qualifications of Paralegals and condition for registration

The Legal Aid Act lists down the following academic qualifications for a person to be trained as a paralegal^[4]:

1. Possession of any Bachelor Degree in any discipline from an accredited institution, save for a bachelor degree in laws, (b) any diploma or certificate from an accredited institution and (c) any certificate of secondary education.

The section provides academic qualification of a paralegal, however in order for a person to qualify working as a paralegal subsection (1), requires that person to undergo necessary training as prescribed in the Legal Aid Regulations of 2018^[5].

It should be noted that, after the training, paralegals are required to be registered^[6]. The Act requires Registrar to recognize and register such paralegals that are specifically trained and met the basic requirements as set out by the Law.

1.5 Roles, Duties and Importance of Paralegals

In general, the main duty of the paralegal is to bridge the gap in the legal system by acting as a first legal aid service provider to indigent client.

Paralegals assist people in their community to understand, demand for and access their rights in the justice system. They help people resolve their disputes by enabling them to proffer options to resolving conflicts or to avert looming conflicts.

Generally, the Act provides the following duties to paralegals^[7] :-

1. Carrying out educational programs in national or local language on legal issues and procedure of concern to the community

2. Assisting aided person in the procedures to obtain necessary legal document

3. Guiding an aided person to a proper forum or to access justice and

4. Advising the conflicting parties to seek amicable settlement or referring them to dispute settlement institution. Carrying out education programs in national or local languages on legal issues

1.6 Ethics of Paralegals

Section 42 (2) of the Legal Aid Act gives powers to the Minister to prepare rules on ethics for Advocates and Paralegals

Reference shall be made to the specific rules made under Section 42 (2) of the Legal Aid Act, on the other case ethics issues include:

Impersonation - A paralegal must always remember that he/she is not a lawyer and as such cannot practice law. Impersonation is a criminal offence.

Confidentiality - A paralegal should be able to keep secrets and not divulge information about his/her clients. Never discuss client issues with a third party unless you are reporting to a referral agency from which you need assistance.

Politeness - Always treat clients with respect and courtesy.

Promptness - Always provide prompt services. Do not keep people waiting unnecessarily.

Impartiality - A paralegal must always be unbiased and impartial. Do not handle cases in which you have an interest so as not to run the risk of taking sides. Always refer such cases to another paralegal or legal aid clinic.

Fairness and Justice - Always be fair in your decisions. Do not let your culture, emotions or religion weigh heavily in the decisions you make or advice that you give, make sure you are just and fair.

1.7 Limitation of Paralegals

Things paralegals must never do

1. Never claim to be a lawyer, could led to charges of impersonation.

2. Never charge fees for the service(s), they should not accept any kind of payment from the client including presents. If they do so, they will make the paralegal profession/ scheme to fail.

3. Never ask for or receive any form of gratification for services or counseling rendered. The services of paralegals are free.

4. Never meddle in complex legal problems or issues. Always they should refer cases that are not able to handle.

5. Never take the position of a judge in any matter.

6. Never lose temper even when people are rude.

7. Never discuss client‘s case with friends or relations. Confidentiality should be watchword.

1.8 Disciplinary actions against a paralegal and legal aid provider

The Registrar may issue a written warning, suspend or cancel certificate of registration of a paralegal or legal aid provider if a paralegal or legal aid provider has done the following misconducts

1. Breached a code of conduct for legal aid providers and paralegals

2. Engaged in an activity that is reserved for an advocate

3. Charged fees from an aided person.

The Registrar may cancel a certificate of registration of a paralegal if he is satisfied that

1. Registration was obtained by mistake, fraud, undue influence or misrepresentation

2. The paralegal has failed to comply with the conditions of registration

3. The paralegal has been convicted of an offence which touches his integrity, accountability or is subject to an order made under relevant

Where the Registrar suspends or cancels certificate of registration, he will notify the said paralegal /legal aid provider in order to stop providing legal aid. A person who is aggrieved by the decision of the Registrar may appeal to the Legal Aid Advisory board.

1.9 Meaning of Law

In a simple definition law is the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. To ensure the laws are followed there are institution that have been created for law enforcement like investigatory organs, prison and the office of the Attorney General.

Law can be categorized differently depends with your working angle. It could be between principal law and subsidiary law, public law and private law, criminal law and civil law.

1.10 Sources of Law

Tanzania’s legal system is based on the English Common Law system. But that does not mean that is the only law that Tanzanian’s legal system is based on. That is because the system is customized with some exceptions and modifications to suit the local circumstances.

The following are the sources of the Law in Tanzania:

a) Constitution

The Constitution of the United Republic of Tanzania (1977) provides in its preamble that Tanzania aims at ‘building a democratic society founded on the principles of freedom, justice, fraternity and concord’. As such, Article 4 of the Constitution of the United Republic of Tanzania, 1977, provides for three organs of the Government i.e., Parliament, the Executive and the Judiciary.

b) Statutes

These are written laws that are made by the parliament to cater for the needs and prevailing circumstances of its community. A statute may forbid a certain act, direct a certain act, make a declaration, or set forth governmental mechanisms to aid society. These written laws include Principal legislation, which is the major document covering the law on that particular subject or area and subsidiary legislation which include any proclamation, rules, regulation, order, resolution, notice, rule of court, by laws or other instrument made under or by virtue of any principal legislation.

c) Common law

Common law is the law that was developed through usage rather than being imposed by written legislation. Common law developed based on the outcomes of individual court cases. Each court case provided a basis for judging the next case of a similar nature

d) The Doctrine of Equity

Equity is the body of principles constituting what is fair and right. That is to mean Doctrine of equity was applicable where legal remedy was insufficient or inadequate in some way. It has been there to assist people to get their rights. Doctrine of Equity has been a good source of laws in Tanzania example labour law.

e) Case Law

These are the laws developed from decisions made by the superior courts (the High Court and Court of Appeal) which are either reported or unreported that are used as precedent and bind lower courts. Reported Tanzanian cases are found in the Tanzania Law Reports, High Court Digests and East Africa Law Reports etc.

f) Customary

Customary law is a particular way of behaviour that has long been established among members of a social group or tribe, and can develop and acquire the force of law or right. Customary law is in effect only when it does not conflict with statutory law.

g) Islamic Law

Islamic law is applicable to Muslims under the Judicature and Applications of Laws Act [CAP 358 R.E 2002], empowering courts to apply Islamic law to matters of succession in communities that generally follow Islamic law in matters of personal status and inheritance.

h) International Law (Treaties and Conventions)

International Laws include Treaties and Conventions which are agreements between two states or more concerning a certain issue and they are not self­executing. The Act of Parliament can apply treaties and conventions to which Tanzania is a party in the Courts in Tanzania only after ratification

1.11 Government Structures and the Law-Making Process

1.11.1 Introduction

Tanzania is a unitary state made up of Mainland Tanzania and Zanzibar. In Tanzania, all state authorities are exercised and controlled by the government of the United Republic of Tanzania (union government) and the Revolutionary Government of Zanzibar. The union government is vested with authority over all union matters in the United Republic and all other matters of concern to mainland Tanzania. The Revolutionary Government of Zanzibar, on the other hand is vested with authority over non-union matters in Zanzibar.

This module intends to give a brief picture of the foresaid structures and special emphasis has been placed on the government structure of the United Republic.

1.11.2 Government Structures

(i) Executive Branch of Government

This is the supreme organ in the government structure of the United Republic of Tanzania. The organ is vested with general mandate over all union matters, listed in the first schedule to the Constitution, and non­union matters affecting mainland Tanzania. The executive branch is comprised of the President of the United Republic, the Vice President, the President of the Revolutionary Government of Zanzibar, the Prime Minister and the cabinet ministers.

The President of the United Republic of Tanzania

Administratively, the executive organ of the United Republic of Tanzania is headed by the President of the United Republic. According to Article 33(2) of the Constitution of the United Republic of Tanzania, the President of the United Republic is the head of state, the head of government and the Commander in Chief of the armed forces.

The Vice-President

The Vice President is the principal assistant to the president generally and in particular is responsible for assisting the President in; making a follow-up on the day-to day implementation of Union Matters, performing all duties assigned to him by the President, and performing all duties and functions of the office of the President when the President is out of office or out of the country.

The President of the Revolutionary Government of Zanzibar

The President of Zanzibar is a Head of the Executive for Zanzibar; Head of the Revolutionary Government of Zanzibar and the Chairman of the Zanzibar Revolutionary Council.

The Prime Minister

The Prime Minister of the United Republic is the Leader of Government Business in the National Assembly and has authority over the control, supervision and execution of the day-to-day functions and affairs of the Government of the United Republic of Tanzania. Also performs any matter or matters that the President directs to be done.

The Cabinet

The Cabinet members are Vice President, Prime Minister, the President of Zanzibar and all Ministers. The president shall attend and preside over those cabinet meetings.

(ii) The Judiciary Branch

This is another state organ charged with mandate of administering justice in Tanzania. The organ is established under article 107A of the Constitution of the United Republic of Tanzania. It comprises of three organs, namely, the Court of Appeal of the United republic of Tanzania, the High court for mainland Tanzania and the High Court for Tanzania Zanzibar.

Roles and functions of the Judiciary

Interpreting laws, hearing and deciding cases filed before the court, facilitating maintenance of peace and order through good governance and the rule of law.

The Hierarchy of the Judiciary

The judiciary of mainland Tanzania consists of a number of courts established under different pieces of legislation. These courts include:

1. the Court of Appeal established under Article 117(1) of The Constitution;

2. the High Court established under Article 108(1) of the Constitution together with its divisions, namely,

1. Commercial Division established under rule 5A of GN. No. 141 of 1999,

2. Land Division Established under Rule 5E of GN. No. 63 of 2001,

3. Labour Division established under Rule 5A of the High Court Registries (1984) Rules and

4. Corruption and Economic Crimes Division established under section 3 of the Economic and Organized Crime Control Act, Cap. 200 R.E. 2002.

3. the Resident Magistrate’s Court established under Section 5(1) of the Magistrates Court Act, Cap 11 R.E. 2002,

4. District Courts established under Section 4 of the Magistrate courts Act, Cap 11 R.E. 2002, and

5. Primary Courts established under Section 3 of the Magistrate courts Act, Cap 11 R.E. 2002

(iii) The Legislative Branch

This is a supreme law making organ of any state. For the Union Government, this particular organ is established under article 62 (1) of the Constitution of the United Republic of Tanzania. The legislative branch is composed of the President and National Assembly

The President

The president is not a member of the National Assembly. However, according to the scheme of the Constitution, he is charged with key responsibility of assenting to all bills passed by the national assembly before they become Acts of Parliament.

National Assembly

The National Assembly, on the other hand, and on behalf of the people, is charged with general functions of making laws and, overseeing and advising the Government of the United Republic of Tanzania and all its organs in the discharge of their respective responsibilities. To be more specific, functions of the National Assembly as follows: (i) to enact laws; (ii) to debate on major issues of concern to the public; and (iii) to scrutinize government policy and administration, including proposals for expenditure.

When it comes to composition, the National Assembly is composed of; (i) members elected directly to represent constituencies, (ii) five members elected by House of Representatives from among its member, (iii) the Attorney General and, (iv) ten members nominated by the President, and women members being not less than fifteen percent of the member of all categories on the basis of proportional representation among those parties in the parliament.

1.11.3 Local Government

1.11.4 Meaning of Local Governments

Local Government may be defined as a form of public administration which, in a majority of contexts, exists as the lowest tier of administration within a given state. Major aim of the local government is to empower citizens to participate in the planning and implementation of development programmes within their respective areas and generally throughout the country.

1.11.5 Legal Framework

Article 145(1) of the Constitution of the United Republic of Tanzania of 1977 provides for the establishment of local government in every Region, District, Town and Village in the United Republic of Tanzania.

1.11.6 Functions of Local Government

Article 146(2)(a)-(c) of the Constitution of the United Republic of Tanzania is a starting point. It provides for the core functions of the Local Government in Tanzania. These include:

1. Maintenance of Law and order;
2. Promotion of economic and social welfare of the people in their areas; and
3. Ensuring effective and timely delivery services to people within their localities.

Apart from the foresaid functions, other functions are: -

1. Formulation, coordination and supervision of the implementation of all plans for economic, industrial and social development in their areas of jurisdiction;
2. Monitoring and controlling the performance of duties and functions of the council and its staff;
3. Ensuring the collection and proper utilization of the revenues of the council;
4. Making by-laws applicable throughout their areas of jurisdiction, and considering and improving by-laws made by village councils within their areas of jurisdiction;
5. Ensuring, regulating and coordinating development plans, projects and programmes of villages and township authorities within their areas of jurisdiction;
6. Regulating and monitoring the collection and utilization of revenue of village councils and township authorities;
7. facilitating maintenance of peace, order and good governance; and
8. Promoting social welfare and economic well-being of the local community

1.11.7 Structure

Local Government Authorities are classified into District Authorities and Urban Authorities.

(i) District Authorities

These are district-based local government authorities established under the Local Government (District) Authorities Act, Cap. 287, R.E. 2002.

The Council

Each District Local Authority functions under the Council. The District Council is the supreme organ which formulates and approves by-laws, the budget and other development programs in the respective District.

District Councils; through the appropriate District Development Committee supervise the implementation of all plans for economic, commercial, industrial and social development in their respective areas. Also, the council approves by-laws made by the village councils and co-ordinates plans, projects and programmes for the villages within its area of jurisdiction. Apart from the DDC, there are other council committees. These committees 17

are for finance, administration and planning; education, health and water; and economic affairs and environment.

The Ward Development Committee

The Ward is a political and administrative structure from which councillors are elected. Administratively, the Ward functions under the Ward Executive Officer who is appointed by the Council. The Ward Executive Officer is responsible for the day-to-day management of the Ward Development issues as well as resolving disputes that arise within his or her respective ward.

The Ward Executive Officer functions under the Ward Development Committee which comprises of the ward councillor, street government (village) chairpersons, as well as council administrative staff assigned responsibilities in respective Wards. The committee meets monthly to discuss developmental issues concerning the entire ward.

The Village

At the village level, the government structure is comprised of a village assembly. The assembly is made up of all residents aged 18 and above who are vested with mandate to formulate and approve by-laws and policies for their respective village.

The Assembly, works under the Chairperson who is elected by the residents. The chairperson is administratively assisted by the Village Executive Officer who is responsible for planning and executing approved policies.

There are also village committees covering such matters as planning, finance, economic affairs, social services, security, forest protection, water resources etc.

The Assembly is another structure for strengthening harmony, promoting representative and participative democracy and, detecting and resolving any disagreements that may arise amongst the Village residents.

The 10-House System

In each village there 10-household structures headed by their respective 10- household chairpersons. The Chairperson is elected by the people residing in the 10-household. Some of the functions of the 10-households structure include the mobilization of the residents for development activities such as maintenance of general cleanness in the area. It is also responsible for resolving disagreements or conflicts that may arise amongst the residents in the ten households.

Common problems that this structure deals with relate mostly to disagreements over inter-household demarcations, spouse

misunderstandings, drunken residents who disturb peace, as well as cases of thefts and sexual abuse. Cases that demand higher expertise are normally submitted to respective Village government committees for further action.

(ii) Urban Authorities

Local Government (Urban Authorities) Act, Cap. 288 R.E. 2002 provides for the establishment, composition, functions and legislative powers of the urban based local government authorities (urban councils) in Tanzania. The Urban Council is comprised of the governing bodies for Townships, Municipalities and City Council (Commission).

The Council

Composition of a Town Council is provided for under section 24 of the Local Government (Urban Authorities) Act, Cap. 288 R.E. 2002. Township councils cannot have more than three members appointed by the Local Minister of government affairs. The council is comprised of members elected from the ward within the town and members of parliament representing constituents within the town [Section 24(1)]. The elected members then elect a chairman and vice-chairman for each town council.

A Municipal Council is made up of members elected from wards within the municipality; member of the parliament representing the constituencies within the municipality; not more than three (3) members appointed by the minister responsible for the local government affairs from among the residents of the municipality [Section 24(2)].

Section 8 and 25 (3) of the Act provides for the establishment of City Councils. City councils are composed of one member elected form each wards within the city; the members of the Parliament representing constituencies within the area of the city council; and not more than three (3) members appointed from the residents of the city [section 24 (4)].

Section 47 of Act number 8 provides for the establishment of the Urban Authorities Committees who are in charge of finance and administration; economic affairs, health and education; and urban planning and environment. The city council shall establish such committees as may be determined by the minister in the order establishing it.

DISTRICT COUNCIL

MODULE 2: LAND LAW AND ADMINISTRATION

2.1 The Meaning of Land

Land according to the Land Act, Land includes ‘the surface of the earth and the earth below the surface and all substances other than minerals and petroleum forming part of or below the surface, things naturally growing on the land, buildings and other structures permanently affixed to land.

2.2 Laws Governing Land Tenure in Tanzania

2.2.1 Principal Land Laws

1. Constitution of the United Republic of Tanzania
2. The Land Act
3. The Village Land Act

The Land Act is specific for administration of land other than village land while the Village Land Act is specific for village land.

2.2.2 Other Laws Relating to Land

These include the Land Registration Act Cap 334, Registration of Documents Act Cap 117, Land Acquisition Act 47/1967, the Land Disputes Courts Act 2002, Cap 216/2002 etc.

2.2.3 Constitution of the United Republic of Tanzania

URT Constitution (1977 as amended) is the fundamental law of the land and by virtue of its principles; it is also one of the laws that must be considered in dealing with land matters in the country. For instance, URT Constitution provides clearly for private property and compensation to all those who their property (including land) has been acquired.

2.3 Division of Land

All land is public land vested in the President as a trustee for and on behalf of all citizens of Tanzania. Land is divided in the following categories;

1. Village Land
2. Reserved land
3. General land

The president may transfer land from one category to another category but by following legal procedures.

2.4 Administration of land

According to the Land Act, the administration of land other than the village land is vested to the President. The law provides that all land in Tanzania is public land vested in the President, as a trustee for and on behalf of all the citizens of Tanzania. President is required to manage the land for the benefit of the citizens.

Despite this custodial duty vested in the President, land administration is undertaken by specific officers and institutions legally mandated such as:-

1. Minister for land matters
2. Commissioner for land
3. Appointed Officers
4. Land Allocation Committees
5. Local Government Authorities
6. National Land Advisory Council.

2.5 Administration of Village Land

The Village Land Act deals with village land. Section 7(1) of the Act defines village land as a land may qualify to be a village land if it meets any of the stated criteria. These include where:

1. land is within the boundaries of a village registered in accordance with the provisions of section 22 of the Local Government Act No.7 (District Authorities) Acts of 1982;
2. land has been designated as village land under the Land Tenure (Village Settlements) Act, 27/1965;
3. land has boundaries which have been demarcated as village land under any law or administrative procedure in force at any time before the Village Land Act came into operation;
4. land has boundaries which have been agreed upon between the village council and the village council of a contiguous village or the Commissioner; or, the official or public organization for the time being responsible for a reserved land; or a local authority having jurisdiction over an urban land or peri-urban land; or person or body whose land borders the village land of the respective village land;
5. land has been occupied and used regularly by villagers during the twelve years preceding the enactment of the Village Land Act as a village land including land lying fallow at any time during the said preceding twelve years or used for de-pasturing cattle belonging to villagers or to persons using that land with the agreement of the villagers or in accordance with customary law and land customarily used for passage or land used for de-pasturing cattle provided it is not a reserved land.

Where the boundary of the Village land is not in dispute the commissioner for land is required to issue a certificate of village land. The village council of the village to which a certificate of village land has been granted to maintain and at all times to keep secure that certificate of village land

2.6 Institutions/Officers under the Village Land Act

1. The Commissioner may give any advice, either generally to all village councils or to a specific village council on the management of village land.
2. The Village Council is responsible for the management of all village land.
3. The Village Assembly approves allocation and grant of customary right of occupancy
4. Village Council allocate and grant a customary right of occupancy after approval of the village assembly
5. The District Council may provide advice and guidance to any village council situated within its area of jurisdiction concerning the administration by that village council of village land.

2.7 Land Acquisition

In Tanzania, land may be acquired under any of the following ways:

1. Clearing of virgin forest
2. Allocation by the relevant authorities e.g., the chief, village headman, chairperson, village council or Commissioner for Lands.
3. Purchase;
4. Inheritance or
5. Given as a gift.

2.8 Forms of Land Tenure

There are two forms of land tenure as per presidential commission of Enquiry into land matters:

2.9 Granted Right of Occupancy

The Land Act provides for the right to occupy land on individual basis or in association with others. Such Right can either be of a granted right of occupancy or a derivative right.

The rights can be enjoyed by both citizens and non-citizens^[8]. For citizens, their occupation is general and not restrictive. For non-citizens their occupation of land is qualified and restricted to investments approved by Tanzania Investments Centre (TIC) or Export Processing Zones Authority (EPZA), in which case they are provided with the derivative right in the form of a license or lease on land from TIC, EPZA or private persons.

2.10 Customary Rights of Occupancy

This is a right of occupancy created by means of the issuing of a certificate of customary right of occupancy under section 27 of the Village Land Act.

This right of occupancy is allocated by the village council. It extends to include the deemed right of occupancy^[9] which is more informal compared to the right allocated by the Village Council and can be acquired under customary law through inheritance, clearing of a virgin forest, gift or purchase of land held under customary tenure. Customary Right of Occupancy therefore includes land allocated by the Village Council under the customary law and held by the villagers.

2.11 Women and Access to Land

The Constitution and other laws recognize the right of every woman to acquire, hold, use, and deal with land to be of the same extent and subject to the same restrictions as a right of any man^[10].

The laws also require women’s participation in land governance institutions in Tanzania. The Land Act requires that the Minister of Land, Housing and Human Settlements Development must have regard for the importance of ensuring a fair gender balance in appointing members to the National Land Advisory Council^[11].

According to the Local Government (District Authorities) and Local Government (Urban Authorities) Acts of 1982, women must now constitute one-third of the members of each District Council and one-fourth of the members of each Township Authority and Village Council.

Under the Village Land Act, seven-member Village Land Councils must be comprised of at least three women^[12]. The Village Council nominates members, who are approved by the Village Assembly. The Village Land Council has a minimum quorum of four members, at least two of whom must be women.

The Act provides that the nine-member Village Adjudication Committees, tasked in part with safeguarding women’s interests, must be comprised of at least four women. Five members are required for a quorum; at least two of which must be women^[13].

The Court (Land Disputes Settlements) Act of 2002 also establishes requirements for women’s participation at Ward-level tribunals and appellate tribunals. The Act provides that each Ward-level Tribunal (the court of first instance for local land disputes) shall consist of four to eight members elected by the Ward Committee, a minimum of three members must be women^[14].

Also, the Act requires that every mediation to includes three members of the Tribunal, of whom at least one must be a woman^[15]. The Act also establishes an appellate body for the Ward Tribunals, called the District Land and Housing Tribunal. The Tribunal consists of the Chair [person] and up to seven assessors, who are appointed by the Minister. At least three of these assessors must be women^[16].

With the representation of women in all levels of land governance and adjudication, it is obvious that the rights of women in relation to land are well protected. It is also obvious that where it is discovered that a decision of a public officer vested with functions to administer land or an adjudicating authority was actuated by bias or favouritism it can be challenged for being illegal^[17].

2.12 Land Dispute Settlement Mechanisms

Over ages, land ownership has been characterized by struggles in acquiring and inconsistencies in possessing it simply because land touches every aspect of human survival^[18].This struggle therefore comes with disputes emanating from, though not limited to Population Pressure, maladministration, delays and low compensation payments, invasion in conflicting land use (e.g., Pastoralist & Farmers), increase in land values, unclear boundaries, encroachments, trespass and Conflict of Customary & Statutory Laws. Generally, it is the nature of the dispute which determines what mechanism can be employed to resolve the land matter at hand.

2.13 Categories of Land Dispute Settlement Mechanism

Land dispute settlement mechanism is categorized into two that is Judicial and Non-Judicial dispute settlement^[19] mechanism.

2.14 Non-Judicial Mechanism

1. Mediation through the Mediator appointed by the Minister

This is applicable where there is a dispute between the village using the village land against a person or body which is in occupancy with the land or boundaries demarcated as village land. Where there is such a dispute over the village land, the Minister responsible for lands may appoint a mediator whose role is to persuade the parties to reach a compromise over the boundaries.

In case mediation comes out successful, then the dispute stands concluded as per the agreement. In case the matter is not resolved then the second approach is resorted to as an inquiry^[20].

2.15 An Inquiry

This is further categorized into two parts:

The first category of Inquiry takes place where the Mediator under Section 7(2) (a) of the Village Land Act, has failed to mediate the parties on the matter in dispute. The Minister therefore appoints an Inquiry upon receiving the report on mediation failure^[21].

The inquiry shall be open to the public save when the chairperson to the inquiry considers otherwise for the interest of the evidence to be provided^[22].

The Second Category of Inquiry is made under Section 8(8) (d) of the Village Land Act. This happens where there is a dispute between: -

1. The Village Council and Village Assembly or
2. The Village Council and the villagers who do not form a minimum of one hundred villagers.

The gist of the dispute must be the allegations by the villagers or the village assembly to the effect that the village council is not exercising the functions of managing the village land as per the Village Land Act.

The other reason that may be advanced as an allegation to the village council calling for an inquiry is that it does not operate as per principles governing the trustee in the course of managing the village land^[23].

Last, the inquiry may be conducted if there is an allegation from the Village Assembly or at-least one hundred villagers that the village council is against any other laws operating over the village land in Mainland Tanzania.

Under these circumstances, the District Council after having received the complaints may recommend to the Commissioner for Lands that the inquiry be commissioned under section 18 of the Land Act, to investigate the complaint and make recommendation.

2. Land Adjudication Committee

This is the body that deals with village land adjudication particularly where there is a need for demarcation of the village land before obtaining the certificate of customary right of occupancy. Where it is established that the need so arises and upon approval by the village assembly, a village land adjudication committee may be established of whose members are elected by the Village Assembly.

The committee for that matter is vested with jurisdiction over all claims made during adjudication process and it is empowered to conduct a hearing by determining its own procedures after a notice has been issued and published in prominent places in the village. The rationale for the notice is to specify the adjudication area, to require any interested person to forward his claims and requiring any interested person to specify his boundaries within the adjudication area.

2.16 Judicial Mechanism

a) The Village Land Council

The Village Land Council is established by the Village Council within a given village upon approval by the Village Assembly. This body is established under Section 167(1)(e) of the Land Act to mean one of the Courts of law empowered to deal with land matters. The same proposition is provided for, under the Courts (Land Dispute Settlement) Act.^[24]

The Village Land Council is vested with two major powers: Appellate capacity and the Mediation capacity.

The Appellate Capacity: the first instance on appellate capacity is when the decision of the Village Adjudication Committee is challenged by any interested party aggrieved by the decision through appeal within a period of thirty days from the date provisional adjudication record was published by the Committee.

It is worth noting here that the decision issued thereto is appealable to the District Land and Housing Tribunal within the locality and it is done after the leave has been sought.

Mediation Capacity of the Village Land Council: The Council is purposely established for this main task when it falls within the hierarchy of the bodies established to settle land disputes. It is set as the lowest court with exclusive jurisdiction to settle land disputes. The rationale of its establishment is to mediate the parties and thus assists them to arrive at mutually acceptable solution on any matter concerning land.

The powers of the Village Land Council to operate as the mediating body are when there is a joint village lands use agreement between two villages.

In case of any adjudication process in respect to the said and that both interested parties are still willing to use the said in duality an agreement may be entered in respect to joint use of the village land.

In that agreement the rights to use the said land shall be established and the arrangements for resolving any disputes between them shall be set^[25].

b) The Ward Tribunal

This body is under the control of the Ministry responsible for Local Government and accountable to the Director of District Council of the locality.

The Ward Tribunal is vested with the original jurisdiction to mediate land disputes. The Tribunal is governed by two laws in the process of functioning as a quasi-judicial body^[26].

The members of the Tribunal are appointed by the Ward Committee and shall consist of not less than four nor more than eight members of whom three shall be women^[27]

In the course of exercising its powers, the Tribunal is not bound by any rules of evidence or procedure applicable to any court and thus shall regulate the procedures of its own^[28].

c) The District Land and Housing Tribunal (DLHT)

The DLHT is established under different laws of the Tanzania^[29].It is vested with territorial jurisdiction which enables it to operate in a District, Zone or Region within which it is established. It is vested with pecuniary jurisdiction to a tune of two hundred and three hundred Million Tanzanian Shillings for a movable and immovable property respectively.

The Tribunal is composed of the Chairman and the two assessors at the hearing, though each tribunal must have at least seven Assessors. It is trite principle of law that the assessors are required to give their opinion before the chairman gives an award.

The tribunal is vested with four major tasks when dealing with administration of justice over the land disputes.

1. It operates as a court of original jurisdiction

2. It is an appellate body for appeals emanating from Ward Tribunals,

3. A revising body,

4. An executing body of its own decision and the decision issued by the Ward Tribunals.

d) The High Court of Tanzania

The jurisdiction of the High Court in a special power may be vested to the Court by the statutory law. In this case the statutory powers of this High Court derive from the Courts (Land Dispute Settlement) Act. The same force and validity emanate from the Land Act and the Village Land Act.

In exercising its powers under the law, the Court has various obligations.

1. It is a Court which entertains matters of which it has original jurisdiction,

2. Appeals from the District Land and Housing Tribunal,

3. Revisionary,

4. Supervisory powers and

5. It executes its own orders.

When the Court sits as a Court of original jurisdiction, it is empowered to deal with all subject matters of land nature whose pecuniary jurisdiction exceeds two hundred and three hundred Million Tanzanian Shillings for a movable and immovable property respectively. On the same circumstance the High Court is vested with mandate in all the proceedings relating to land but where there is no specific Court that has been vested with such

e) The Court of Appeal of Tanzania

This is the Supreme Court in Tanzania and it is established under the Constitution. The laws vest this Court with powers to determine appeals on land matters. The Court is also empowered like any other land Courts to apply laws as they are elaborated under the Land Act.

In all land matters any person aggrieved by the decision of the land Courts must seek leave in order to appeal to the Court of Appeal.

When leave is rejected by the High Court then leave has to be sought to the Court of Appeal as a second bite. But in all matters which originate from the Ward Tribunal and appeal is then preferred from the third appeal, the applicant shall be required to seek a certificate from the High Court certifying the existence of the point of law involved on appeal.

The Court of appeal is also vested with powers to revise the proceedings of the High Court when performing the functions as a land Court. Revision powers of the Court may be done suomoto or by an interested party to the proceedings.

The Court is also vested with review powers of its own decision. This remedy is entertained in a very limited way provides for the instance which attract this remedy. These include the instance when the decision was based on a manifest error on the face of the record resulting in the miscarriage of justice; when a party was wrongly deprived of an opportunity to be heard; .

MODULE 3: CRIMINAL LAW AND PROCEDURE

3.1 Meaning of Criminal Law and Procedure

Criminal Law is the body of law that defines offenses against the community at large, it regulates how suspects are arrested, investigated, charged, tried, and establishing punishments for convicted offenders.

3.2 What is a crime

According to Penal Code CAP 16 Section 3, a crime is defined as an act, attempt or omission punishable by law. It is an offence that attracts community condemnation and punishment usually by way of fine or imprisonment.

Crime is different from a civil wrong, which is an action against an individual that requires compensation orrestitution. Criminal offences are normally prosecuted by the State, whereas for civil wrong it is usually an individual who take a civil action to court.

3.3 The Rights of an Accused Person

An accused person is presumed innocent until it is proven contrary in the court of law. An accused person has several rights pending his/her trial in the court of law.

a) Right to be informed of the reasons for arrest;

He or she must be informed the reason of her/his arrest by the Police or person arresting so that he/she becomes aware of the crime committed.

b) Right to remain silent;

The law requires arresting police officer to inform the person under arrest of his/her right to remain silent as whatever he/she says might have legal consequences.

c) Right to communicate with lawyer, relative or friend;

The person under arrest has the right to communicate with his/her lawyer, relative or friend.

d) Bail;

An arrested person has a right to bail with exception of offences that are not bailable or where the Director of Public Prosecution has filed a certificate restricting bail to the accused person of the offence that otherwise would be bailable.

e) Legal aid:

An accused and arrested person has a right to legal aid services

f) Rights to dignity:

Every accused or arrested person has the rights to his/her dignity i.e. not to be subject to any kind of torture or degrading punishments.

3.4 Criminal Procedure

Is the adjudication process of the criminal law, it provides for the rules governing the mechanisms under which crimes are investigated, prosecuted, adjudicated, and punished.^[30]

3.5 Basic Principles of Criminal Responsibility

Article 13(6)(b) of the Constitution of the URT guarantee equality before the law by providing presumption of innocence to every accused person and thus for any successfully prosecution, the state must prove the criminal offense beyond reasonable doubt.

3.6 Elements of a Criminal Offence

The two elements of a criminal offence

For a criminal offence to be proved there must be two main elements - the prohibited conduct or act (actus reus) and the mental element (mens rea).

With exception ofstrict liabilityoffence, theprosecutionmust, in order to prove that a person has committed an offence, show that both elements are present.

3.6.1 Mens Rea

This is the basic element of every crime; it is the state of mind or knowledge of wrongdoing of the accused person at the time of commission of the offense. The Penal Statutes provides for different states of mind that is applicable to different crimes or omissions, for example guilt of an accused person can be attributed to an individual who acts “purposely,” “knowingly,” “recklessly,” “negligently,” or “with malice aforethought.”

3.6.2 Actus Reus

The guilty mind (Mens rea) must be accompanied by the criminal/prohibited act (Actus Reus). The accused person is said to have committed the Actus Reus of an offence if he has done some act that is an action prohibited by the law.

For an accused person to be found guilty of an offence, there should be a co­existence of the Mens rea and actus Reus, in other words, the two must exist simultaneously.

A person cannot be found guilty for “thinking” about a prohibited action, in this case, although there might be a Mens rea, absence of an actus Reus makes a person not criminal liable. However, in “strict liability” offences, a person can be found guilty for Actus Reus alone without considering the Mens Rea. Example of the strict liability offense is trespass to land, traffic offenses etc.

The procedures in criminal proceedings are governed by the Criminal Procedure Act, Cap 20, which provides for the procedure to be followed in the investigation of crimes and the conduct of criminal trials. A typical criminal proceeding will include the following stages:

1. Arrest of an accused person,
2. Investigation of the crime,
3. Institution of criminal proceedings,
4. Bail,
5. Conduct of criminal trials/proceedings (includes taking evidence and exhibits),
6. Judgment,
7. Conviction,
8. Mitigation
9. Sentence, and
10. Appeal.

MODULE 4: CIVIL PROCEDURE AND OBLIGATIONS

4.1 Meaning of Civil Procedure

Civil procedure is the body of law that sets out the rules and procedure that has to be followed by the courts when adjudicating civil suits.

Civil suits are disputes between private parties, which can include suits between individuals themselves or an individual against an organization or government etc. The procedure in civil suits is governed mainly by the Civil Procedure Act, Cap. 33 R.E. 2002.

The parties to a civil case are two or more legal persons. The one who claims that a civil wrong has been committed against him is called a plaintiff while the one who is alleged to have committed the wrong is called the defendant.

The procedure is normally that the person who alleges that a wrong has been committed against him/her will initiate the proceedings by way of a Plaint^[31] which will state all the relevant facts about the claim and the remedy that he is asking the court to grant. The plaint and all other documents filed in court in relation to the civil suit are called Pleadings

4.2 Courts’ Civil Jurisdiction

4.2.1 Magistrates Courts

The courts in Tanzania derive their civil jurisdiction from the specific laws that establishes them. The Magistrates courts (Primary, District and Resident Magistrate courts) derive their civil jurisdictions from the provisions of the Magistrates Court Act, Cap 11 [RE: 2002].

4.2.2 High Court

The High Court is established under the Constitution of the United Republic of Tanzania of 1977, Article 108(1).

The High Court is a superior court of record and at the apex of the judicial system in the country. It derives its jurisdiction from the Constitution itself and the provisions of section 2 of the Judicature and Application of Laws Act. Article 108(2) of the constitution, which is the supreme law of the land, grants the High Court unlimited jurisdiction.

The import of Article 108(2) of the Constitutions is to give the High Court of the United Republic of Tanzania unlimited territorial and pecuniary jurisdiction in determining disputes arising from Mainland Tanzania.

4.3 The Jurisdiction of Courts in Civil Proceedings

Jurisdiction is the power to hear and determine matters which are litigated before the court or a tribunal. Jurisdiction is a question of law - a creature of statute and it is determined before the beginning of the proceedings.

Note: Section 13 of the Civil Procedure Act provides that every suit should be instituted in the Court of the lowest grade competent to try it.

4.4 Types of Jurisdiction

4.4.1 Territorial Jurisdiction

Every court has a limited geographical area in which it operates. This is provided by statute establishing that court and in some cases by the subsidiary legislation.

In Tanzania, there is only one court having jurisdiction over the whole country, this is the High Court of Tanzania. There are two High Courts in the United Republic of Tanzania. These are - the High Court of the United Republic of Tanzania and the High Court of Zanzibar. The two High Courts have concurrent jurisdiction.

(i) Resident Magistrate’s Courts

Resident Magistrates’ Courts have a wider jurisdiction. Their territorial jurisdiction is the region in which that court is established. Refer the Magistrates’ Court Act, 1984.

(ii) District Court

Territorial jurisdiction of a District Court is the boundaries for which the district is established, refer the Magistrates’ Courts Act, 1984.

(iii) Primary Courts

Territorial jurisdiction of a Primary Court is limited to the district where it is established.

4.4.2 Jurisdiction in Respect of Immovable Property

The court in which area the property is situated has jurisdiction over the property. In claims relating to immovable property the party can chose between where the claim arose and the area where the other party voluntarily resides and/or works for gain.

Note: Primary Court has unlimited jurisdiction over property held under customary law and in matters of Islamic Law.

4.4.3 Exclusive Jurisdiction

This is jurisdiction vested in a particular court in exclusion of any other court. This jurisdiction is normally vested in that court by a statute.

4.4.4 Pecuniary Jurisdiction

All courts except the High Court are courts of limited jurisdiction. The Magistrates Courts Act provides for unlimited jurisdiction over Islamic & Customary Law to Primary Courts Under the Magistrates Courts Act, all civil proceedings in respect of Islamic and Customary law must be commenced in primary court unless the Republic or the President is a party or the High Court has granted leave to the parties to otherwise commence the civil proceedings in the Primary Court.

4.5 Stages (procedures) in Civil Proceedings

The following are the stages in Civil Proceedings under the Civil Procedure Act.

1. Plaintiff files the case in court by way of a Plaint.
2. The court notifies the defendant of the case by way of summons. The summons will tell the defendant that a case has been filed against him/her and requires him to file a Written Statement of Defence within a specified time.
3. Should the defendant accept liability for the complaint, judgment will be entered by the court (consent judgment). If the defendant denies the case then the case will go for hearing.
4. First pre-trial conference will be scheduled to determine the “speed track” of the case, i.e. the case should take how long before it is conclusively determined.
5. Mediation will be conducted with the aim to settle the dispute amicably, in case of a failure, the case shall be referred back to the Judge/Magistrate to proceed with the trial.
6. Second pre-trial conference will be conducted for framing and settlement of issues.
7. Hearing will start by hearing the testimonies of the witnesses. Normally, it is the plaintiff who will start to present his case then followed by the defendant.
8. Upon conclusion of the hearing, the court may order the parties to present the final submissions.
9. Judgment will be prepared and delivered.
10. Execution of the decree.

4.6 Execution of Court’s orders in civil proceedings

In any civil proceeding, a court can issue different kinds of orders depending on the nature of the suit or application. The orders that can be issued include the following;

a) Dismissal

This can be the dismissal of the whole suit or an application due to various reasons including non-appearance of the plaintiff or both parties etc.

Dismissal has the effect of finalizing the matter. However, depending on the circumstances of the case the party may be allowed to apply for the restoration of the suit if the dismissal was due to the non-appearance of the Plaintiff. Otherwise, if the matter has been determined on merits, the available remedy is appeal, revision or review.

b) Striking out

Due to a certain irregularity in the pleadings or procedure, the court can strike out the suit, unlike the dismissal of the suit or application, in case of striking out, the affected party has the right to refile the suit after rectifying the errors or omissions subject to the law of limitations.

c) Security for costs

Where, at any stage of a suit, it appears to the court that a plaintiff(s) is/are residing out of Tanzania, and that such plaintiff does not, or that no one of such plaintiffs does, possess any sufficient immovable property within Tanzania other than the property in suit, the court may, either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs, within a time fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant.

In the event of such security not being furnished within the time fixed, the court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw there from.

d) Injunction

Where in any suit it is proved that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit of or suffering loss of value by reason of its continued use by any party to the suit, or wrongly sold in execution of a decree or that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors, the court may make an order granting a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, loss in value, removal or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders:

e) Payment of compensation/ Damages

Normally at the end of the civil suit, the court will issue a judgement and grant the winning party a prayer for compensation/damages. The damages can be specific or general. In case of the later, it is the court that will assess the quantum.

4.7 Remedies available to a person who is dissatisfied by the Court’s order

In case a party to the civil suit is dissatisfied by the order of the court, he has the following remedies.

a) Appeal

A party has the right to appeal to the higher court in case he is dissatisfied by the decision of the lower court. However, it is worth noting that the orders from which the appeals are allowed have been provided under order XL of the Civil Procedure Act and that appeal is not allowed for any order that do not determine the matter to the finality.

b) Revision

The High Court has powers to call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies thereto, if such subordinate court appears:

• to have exercised jurisdiction not vested in it by law,
• failed to exercise jurisdiction so vested or
• acted in the exercise of its jurisdiction illegally or with material irregularity.

c) Review

Any person aggrieved by a decree or order from which

• an appeal is allowed, but no appeal has been preferred or
• by a decree or order from which no appeal is allowed,

And from the discovery of new and important matter or evidence which,

• was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or
• on account of some mistake or error apparent on the face of the record, or
• for any other sufficient reason, desires to obtain a review of the decree passed or order made against him,

May apply for a review of judgment to the court which passed the decree or made the order

4.8 Contracts

4.8.1 Meaning of Contracts

According to section 2(1)(h) of the Law of Contract Act, Cap 345, “an

agreement enforceable by law is a contract”. In other words, an agreement which can be enforced in a court of law is known as a contract. Thus, a contract must have the following two elements:

1. An agreement; and
2. Enforceability

In the form of an equation, it can be shown as under:

Now the question arises, “what is an agreement?” and “what is enforceability of an agreement?”

4.8.2 What is an Agreement?

According to section 2(1)(e) of the Law of Contract Act, “every promise and every set of promises forming the consideration to each other is an agreement.

What is a promise? According to section 2(1)(b) of the Law of Contract Act, “a proposal when accepted, becomes a promise”.

In other words, an agreement consists of an offer by one party and its acceptance by the other. In the form of an equation this can be shown as under:

An agreement is said to be enforceable by law if it creates some legal obligation.

In other words, the parties to an agreement must be bound to perform their promises and in case of default, by either of them, must intend to sue.

4.8.3 Elements of a valid contract

According to section 10 of the Law of Contract Act, “all agreements are contracts if

1. they are made by the free consent of parties competent to contract,

2. for a lawful consideration,

3. with a lawful object, and

4. are not hereby expressly declared to be void”

The analysis of the provisions of section 10 of the Law of Contract Act shows that a valid contract must have certain essential elements. These elements are: Agreement; intention to create legal relations; free consent; capacity to contract; lawful consideration; lawful object; agreement not expressly declared void.

a) Proposal/offer

An offer is the starting point in the making of an agreement. An offer is also called “proposal”. According to section 2(1)(a) of the Law of Contract Act, a person is said to make a proposal when he signifies to another his willingness to do or to abstain from doing anything with a view the assent of that other to such act or abstinence.

Thus an offer involves the following essential elements:

i) It must be made a proposal/an offer by one person to another person. In other words, there can be no proposal by a person to himself.

Who are those persons?

According to section 2(1)(c) of the Law of Contract Act, the person making a proposal is called the “promisor” and the person accepting the proposal is called the “promisee”. (Offeror and offeree)

It must be an expression of readiness or willingness to do (i.e positive act) or not to abstain from doing (i.e negative act)

Essential requirements of a valid offer

An offer must have certain essentials for it to be valid. These are:

1. The offer must be made with a view to obtain acceptance (section 2(1)(a) of the Law of Contract Act.
2. The offer must be made with the intention of creating legal relationship.
3. The terms of the offer must be definite, unambiguous and not vague.
4. The offer must be communicated
5. It must be a firm and final expression by the offeror of his willingness to be bound should the offer be accepted.

Acceptance

Acceptance means giving consent to the offer. It is an expression by the offeree of his willingness to be bound by the terms of the offer. According to section 2(1)(b) of the Law of Contract Act, “a proposal is said to be accepted when the person to whom the proposal is made signifies his assent thereto. A proposal when accepted becomes promise”

In other words, an acceptance is the consent given to the offer.

Intention to Create Legal Relationship

There must be an intention among parties to create a legal relationship. The intention in question can be ascertained from the terms of their agreement and the surrounding circumstances. Normally, in case of social or domestic agreements, the usual presumption is that parties do not intend to create legal relationship but in commercial or business agreements, the usual presumption is that parties intend to create legal relationship unless otherwise agreed.

b) Free Consent

It is essential to the creation of a contract that both parties agree to a thing in the same mind. When two or more parties agree upon the same thing in the same mind, they are said to consent.

For the purpose of having a valid contract the law emphasizes on the requirement that consent of the parties must be given freely. That is to say, there must be free consent of the parties for the purpose of creating a valid contract.

According to section 14 of the Law of Contract Act, consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake. If the consent is not free, then there is no valid contract.

c) Capacity of Parties

The parties to the agreement must be competent to contract. In other words, they must be capable of entering into a contract.

Who are competent to contract?

According to section 11 of the Law of Contract Act, every person is competent to contract who is of the age of majority according to the law to which he is subject and who is of sound mind and is not disqualified from contracting by any law to which he is subject.

If the parties to the agreement are not competent to contract, then there will be no valid contract.

4.8.4 Lawful Consideration

An agreement must be supported by lawful consideration. Consideration means something in return. According to section 23 of the Law of Contract Act, “the consideration is considered lawful unless it is forbidden by law or is fraudulent or involves or implies injury to the person or property of another or is immoral or opposed to public policy.”

4.8.5 Lawful Object

The object of an agreement must also be lawful. According to section 23 of the Law of Contract Act, the object is considered lawful unless it is forbidden by law or fraudulent or involves or implies injury to the person or property of another or is immoral or is opposed to public policy.

4.8.6 Agreement not Expressly Declared Void

The agreement must not have been declared void under sections 24 to 30 of the Law of Contract Act to be valid.

Examples of agreement which have expressly been declared void are:

• Agreement in restraint of marriage,
• Agreement in restraint of legal proceedings,
• Agreement in restraint of trade and
• Agreement by way of wager.

4.8.7 Remedies for Breach of Contract

There are several remedies for breach of contract, such as award of damages, specific performance, rescission, and restitution.

4.8.8 Damages

What damages can be awarded?

There are two general categories of damages that may be awarded if a breach of contract claim is proved.

a. Compensatory Damages

This category of damages covers the loss the non-breaching party incurred as a result of the breach of contract. The amount awarded is intended to make good or replace the loss caused by the breach.

There are two kinds of compensatory damages that the non-breaching party may be entitled to recover:

b. Specific Damages

Specific damages cover the loss directly and necessarily incurred by the breach of contract. Specific damages are the most common type of damages awarded for breaches of contract.

c. General Damages.

General damages (also called “consequential damages”) cover any loss incurred by the breach of contract because of circumstances or conditions that are not ordinarily predictable. These are actual losses caused by the breach, but not in a direct and immediate way.

d. Punitive Damages

Punitive damages (also called “exemplary damages”) are awarded to punish or make an example of a wrongdoer who has acted wilfully, maliciously or fraudulently. Unlike compensatory damages that are intended to cover actual loss, punitive damages are intended to punish the wrongdoer for and to deter others from acting in a similar manner. Punitive damages are awarded in addition to compensatory damages.

4.8.9 Rescission/Cancellation of Contract

When a contract is broken by one party, the other party may treat the contract as cancelled. In such a case he is freed from all of his obligations under the contract and is entitled to compensation for any damages that he might have suffered.

4.8.10 Suit for Specific Performance

Where damages are not an adequate remedy in the case of breach of contract, the court may in its discretion in a suit for specific performance direct party in breach, to carry out his promise according to the terms of the contract.

4.8.11 Restitution

This remedy is designed to restore the injured party or the party who suffered damages, to the position they were before the formation of the contract. Parties that want restitution cannot seek lost profits or earnings caused by the breach.

To obtain restitution, the plaintiff must include his claim in the initial complaint. Also, restitution will not be awarded if the amount cannot be calculated with certainty.

Restitution is awarded for two main purposes:

1. To “make the victim” whole and restore him to his initial status before breach of contract occurred.

2. To prevent the unjust enrichment of the defendant (i.e., prevent them from unlawful gains)

4.9 Rights and Obligations of Loan Recipients

4.9.1 The Borrower Rights;

1. The lender cannot change the terms of the loan without borrower consent.
2. The interest rate for your loan(s) is specified in the loan agreement.
3. The lender must return the security to you when the loan is paid in full.
4. The lender will provide you with a repayment schedule before the repayment period begins.
5. You have a right to repay the whole or any portion of the loan at any time without penalty.
6. Your loan obligation may be cancelled in the event of your death or permanent and total disability in accordance with applicable laws and regulations.

4.9.2 Borrower’s Responsibilities:

1. To read the terms of the agreement and repay the money with interest
2. To repay the loan including all accrued interest and deducted fees according to the repayment schedule.
3. To understand that the lender may charge an insurance premium and you will most likely not be entitled to any refund of this premium.
4. To notify the lender promptly if you change any personal particulars
5. To understand that if you fail to repay your loan, you will be considered in default and the lender will be entitled to enforce the contract and they also have the right to take anything you have set as collateral if you do not make payments.

4.10 Employment and Labour Relations

4.10.1 Meaning of Employer and Employee

According to the Labour and Employment Relations Act 2004, employee means an individual who­

1. has entered into a contract of employment; or

2. has entered into any other contract under which

i. the individual undertakes to work personally for other party to the contract and

ii. the other party is not a client or customer of any profession, business, or undertaking carried on by the individual

‘‘Employer’’ means any person, including the Government and an executive agency, who employs an employee

4.10.2 Employment Contract

According to the Labour and Employment Relations Act; contract with an employee shall be of the following types

1. A contract for an unspecified period of time

2. A contract for a specified period of time for professionals and managerial cadre

3. A contract for a specific task.

4.10.3 Contract of an unspecified period of time

This is a contract in which the duration of the employment contract is unspecified. This can be termed as permanent contract.

4.10.4 Contract of the specified period of time

This is a kind of contract in which the work duration is specified and come to an end within the specified time. Employers can prepare contract for specified period of time example one month, three months, one year or two years and so on

4.10.5 Contract for a specific task

This is a kind of contract in which a person is employed to perform a specific task and once the specified task is completed then that contract comes to an end. A good example can be of a person employed to offload crates of soda from a truck and once that task has been completed then the contract ends and get paid as per agreed terms.

4.11 Rights and obligations of employee and employer

4.11.1 Prohibition child labour

The law prohibits the employment of children who are under the age of 18 years. Where the employer entertains doubt as to whether a potential employee is of majority age, the law requires the employer to investigate the issue of age prior to hiring.

An employer commits a criminal offence if recruits a minor. The only exception to the above prohibition of child labour is where there are special circumstances that require a child of the age not below 14 years to work in order to earn livelihood. In these circumstances, the child should be assigned light work which shall not prejudice the child’s education or vocational training.

4.11.2 Prohibit forced labour

The Employment Act prohibits forced labour. A criminal offence is committed where an employer exact forced labour from a person.

Nevertheless, the Act provides five exceptions where a person may be compelled to work despite his unwillingness, for instance, providing compulsory labour under the National Defence Act, 1966 for work of a military character.

4.11.3 Rights to non-discrimination

The labour laws prohibit discrimination in the workplace, of any kind, by the employer, trade union or employers’ association. The breach of this prohibition amounts to a criminal offence.

4.11.4 Right to form or join a trade union

Every employee has the right to form or join a trade union and participate in its lawful activities. However, a senior management employee is barred from joining a trade union that represents non-senior management employees of the employer. On another note, every employer is entitled to form or join an employers’ association and participate in its lawful activities.

4.11.5 Hours of work

The Employment Act regulates the hours of work of an employee. The ordinary days of work are set at six days in a week. Further, the ordinary hours of work are set at 45 hours in a week, and 9 hours in a work day, inclusive of a 1-hour meal break per work day.

An employee can be required to work for overtime hours only where the parties have concluded an agreement to that effect. In any event, the law provides a ceiling of 12 working hours per day inclusive of ordinary and overtime working hours.

4.11.6 Rights to fair wages

The Employment Act enacts detailed guidelines for the calculation of wages of an employee who is entitled to hourly, daily, weekly and monthly wage rates. The payment of remuneration to an employee must be in the form of money not in kind.

An employer is not entitled to make any deductions from an employee’s remuneration. The exception thereto is where the deduction is permitted by written law, collective agreement, wage determination, court order or arbitration award. Where the deduction is not based on any of the above grounds, the employee must agree in writing to such deductions from his remuneration.

4.11.7 Rights for Leave

(i) Annual Leave

An employee is entitled to annual leave of not less than 28 consecutive days during one leave cycle. One leave cycle is constituted by a period of 12 months’ consecutive employment. The 28 days’ leave is inclusive of any public holiday which may fall within the period of the leave.

During the annual leave, the employee is entitled to payment of his full remuneration inspite of his absence from work.

(ii) Sick leave

An employee is entitled to sick leave for at least 126 days during one leave cycle. The employee is entitled to full wages during the first 63 days of the sick leave. For the second 63 days, the ailing employee is entitled to half wages. An employer is not obliged to pay an employee wage during sick leave if the employee does not produce a medical certificate issued by a medical practitioner. It is further noted that no wages are payable to an ailing employee if the employee is entitled to paid sick leave under any other law, fund or collective agreement.

(iii) Maternity leave

A female employee is entitled to paid maternity leave of not less than 84 days during one leave cycle. The maternity leave period would be 100 days if the employee gave birth to more than one child. The employee is entitled to an additional 84 days’ paid maternity leave within the same leave cycle if the child dies within a year of birth.

Where the employee is breastfeeding, the employer is obliged to allow her time off, not exceeding two hours, to feed the child during working hours for 6 months.

During any leave cycle, a male employee is entitled to 3 days of paid paternity leave. The only conditions stipulated are that the employee must be the father of the newly born child and that the leave must be taken within the first seven days of the birth of the child.

(iv) Compassionate leave

An employee is entitled to 4 days’ paid leave in the event of death or sickness of the employee’s child spouse, parent, grandparent, grandchild or sibling.

4.12 Termination of employment

4.12.1 Lawful termination

Lawful termination of employment can either be initiated by any of the parties to a contract of employment and can be for four reasons

(i) Termination of employment by agreement

This is the termination which comes into effect when the employer and employee agree to bring a contract of employment to an end in accordance with an agreement. For example, if there is a contract for a period of one year and the agreed period expire then the contract will obviously come to an end.

(ii) Automatic termination

This is a termination of which a contract of employment may be terminated automatically in circumstances such as death or loss of business of the employer.

(iii) Termination of employment by the employee/resignation

This happens when an employee due to material breach of the contract by the employer decides to resign from the employment

In order for the termination to be fair in the eyes of the law it has to be both employer and employee have to have valid reasons for termination.

14.12.2 Unlawful termination

It is unlawful for an employer to terminate the employment of an employee unfairly. A termination of employment by an employer is unfair if the employer fails to prove that the reason for the termination is valid and a fair reason and that the employment was terminated in accordance with a fair procedure.

It shall not be a fair reason to terminate the employment of an employee for the reason that he/she

1. Discloses information that the employee is entitled or required to disclose to another person

2. Fails or refuses to do anything that an employer may not lawfully permit or require the employee to do

3. Exercises any right conferred by agreement

4. Belongs, or belonged, to any trade union or participates in the lawful activities of a trade union,

5. Including a lawful strike

Unfair reason also includes any reason related to

1. Pregnancy

2. Disability, and

3. Discrimination

4.13 Terminal benefits

The conditions and types of terminal benefits as stated by the ELRA of 2004 include

1. Any remuneration for work done before termination

2. Any annual leave pay due to an employee for leaves that employee has not taken

3. Any annual leave pay accrued during any incomplete leave cycle

4. Any notice pay due

5. Any severance pays due if an employee qualifies for this

6. Any transport allowance that may be due

7. Certificate of Service

No employee shall be entitled to severance pay if the termination of employment was on the grounds of misconduct.

4.14 Disability or injury benefits

An employee is entitled to compensation in case of disability or injury during working hours. Workman compensations are of four types: to mention permanent total incapacity, permanent partial incapacity, temporary incapacity and fatal injury leading to death.

The accepted compensation rates as per the Workman’s compensation act are follows

1. In the case of permanent total incapacity/disability, the amount payable is 70% of average daily earning for the total period of disability.

2. In the case of permanent partial disability, amount of compensation depends on the assessed degree of disability. If the assessed degree of disability is less than 30%, a lump sum amount is paid. The maximum partial disability benefit is 84 times the insured’s average monthly earnings, according to the assessed degree of disability.

3. In the case of temporary disability, an insured worker after certification from medical board can get temporary disablement benefit as 60% of his average daily earning up to 26 weeks.

4. In the case of fatal injury, dependents (widow/widower/minor/ children/parents) receive survivors’ benefits a lump sum of twice the deceased worker’s average monthly wages. A death benefit, for eligible survivors, is also available up to TShs. 300,000

4.15 Procedure for settlement of employment disputes

All labour disputes must first be referred to the CMA for mediation. The mediator is required to resolve the dispute through mediation within 30 days unless the parties agree to a longer period.

If mediation fails, either party may further refer the labour complaint to a CMA arbitrator; or in the case of a dispute of interest, to the High Court, Labour Division (the Labour Court).

The Labour Court has been consistent in enforcing the rule that all labour disputes must first be referred to the CMA for arbitration. Where a party is aggrieved by the award of the CMA arbitrator, he is entitled to apply to the Labour Court for revision of the award. Such an application is sustainable only where the revision application reveals issues relating to jurisdiction, material irregularity, error material to the merits of the case. Further appeal against the decision of the Labour Court lies in the Court of Appeal of Tanzania.

MODULE 5: LAW AND DOMESTIC RELATIONS

5.1 The Concept of Family and Domestic Relations

Definition of marriage: According to the Law of Marriage Act, a marriage is the voluntary union of a man and a woman, intended to last for their joint lives. It can be a

1. Monogamous marriage which is a union between one man and one woman to the exclusion of all others or

2. Polygamous/potentially polygamous marriage which is a union in which the husband may, during the subsistence of the marriage, be married to or marry another woman or women.

5.2 Laws Regulating Family and Domestic Relations

Essentially, the Law of Marriage Act, Cap. 29 R.E. 2002 is the main law that deals with all matters relating to marriages and dissolution of marriages in Tanzania.

5.3 The Manner of Contracting Marriage

A marriage may be legally contracted in the following forms;

1. in civil form;

2. in accordance to the religious rites where parties are of the same religion; or

3. in accordance to the rites of the customary law where the parties belong to a community or to communities which follow customary law,

5.4 Restrictions on Marriage

5.4.1 Minimum Age

The law of Marriage Act provides that the minimum age of marriage to be eighteen for both male and female.^[36]

5.4.2 Prohibited Relationships

The parties to the marriage should not be of a close blood relationship, the law of marriage Act has a list of prohibited relations.^[37]

5.4.3 Subsisting Marriage

No person, while married by a monogamous marriage is allowed to contract another marriage or a man, while married by a polygamous or potentially polygamous marriage to contract a marriage in any monogamous form with any other person. ^[38]

5.4.4 No Marriage without Free Will and Consent of the Parties

Marriage should be contracted out of free will and the parties should give voluntary consent. If the consent is influenced by coercion or fraud, mistaken as to the nature of the ceremony or was suffering from mental disorder or mental defect, whether permanent or temporary, or was intoxicated, so not to understand the nature of the ceremony is deemed to be void.

5.4.5 Void Ceremonies

A marriage ceremony shall be a nullity if in the following circumstances;

1. In case either party thereto is below the minimum age for marriage;

2. If the parties thereto are within the prohibited relationships;

3. If either party is incompetent to marry by reason of an existing marriage;

4. If the consent of either party was not freely and voluntarily given thereto;

5. If both parties knowingly and wilfully acquiesce in a person officiating thereat who is not lawfully entitled to do so;

6. Unless two competent witnesses are present thereat;

7. If the intended marriage is expressed to be of a temporary nature or for a limited period; or

8. If the wife was a widow or a divorced woman prior to the marriage, and her previous marriage having been contracted in Islamic form, she contracts the other marriage during the customary period of iddat.

5.4.6 Voidable Marriages

A marriage shall be voidable if at the time of the marriage-

1. either party was incapable of consummating it;

2. either party was subject to recurrent attacks of insanity or epilepsy;

3. either party was suffering from venereal disease in a communicable form; or

4. the wife was pregnant by some person other than the husband; or

5. the marriage has not been consummated owing to the wilful refusal of one party to consummate it;

6. The wife had not attained the age of eighteen years and consent to the marriage as required had not been given and the court sees good and sufficient reason to set the marriage aside.

5.4.7 Separation and Divorce

I. When, on what grounds and who can petition for a decree of separation or divorce

Any married person may petition the court for a decree of separation or divorce on the ground that his or her marriage has broken down irreparably.

However, no person is allowed to petition for divorce before the expiry of two years from the date of the marriage unless with the leave of the court. In this case, the party should satisfy the court that exceptional hardship is being suffered by him.

II. Mandatory procedure to follow before petitioning to court for a decree for divorce or separation.

Before making a petition to court, the party must first refer the matrimonial dispute or matter to a Marriage Conciliation Board (established in every Ward) which must certify that it has failed to reconcile the parties.

III. Grounds on which the mandatory procedure can be dispensed

The requirement of a referral to the Board may be dispensed in the following grounds;

1. Where the petitioner alleges that he or she has been deserted by, and does not know the whereabouts of, his or her spouse;

2. where the respondent is residing outside Tanzania and it is unlikely that he or she will enter the jurisdiction within the six months next ensuing after the date of the petition;

3. where the respondent has been required to appear before the Board and has wilfully failed to attend;

4. Where the respondent is imprisoned for life or for a term of at least five years or is detained under the Preventive Detention Act for a period exceeding six months.

5. where the petitioner alleges that the respondent is suffering from an incurable mental illness;

6. Where the court is satisfied that there are extraordinary circumstances which make reference to the Board impracticable.

In deciding whether or not a marriage has broken down, the court may accept any one or more of the following matters as evidence that a marriage has broken down irreparably.

1. adultery committed by the respondent, particularly when more than one act of adultery has been committed or when adulterous association is continued despite protest;

2. sexual perversion on the part of the respondent;

3. cruelty, whether mental or physical, inflicted by the respondent on the petitioner or on the children, if any, of the marriage;

4. willful neglect on the part of the respondent;

5. desertion of the petitioner by the respondent for at least three years, where the court is satisfied that it is willful;

6. voluntary separation or separation by decree of the court, where it has continued for at least three years;

7. imprisonment of the respondent for life or for a term of not less than five years, regard being had both to the length of the sentence and to the nature of the offence for which it was imposed;

8. mental illness of the respondent, where at least two doctors, one of whom is qualified or experienced in psychiatry, have certified that they entertain no hope of cure or recovery;

9. Change of religion by the respondent, where both parties followed the same faith at the time of the marriage and where according to the laws of that faith a change of religion dissolves or is a ground for the dissolution of marriage.

Upon successful proof of any of the above facts, the court shall make a finding that the marriage has irreparably broken down and grant a decree of divorce. The Court shall have powers to make an order for the custody of the children and division of matrimonial properties.

5.5 Presumption

The law of marriage provides that where there is proof that a man and woman have lived together for two or more years or as a husband and wife, there shall be a rebuttable presumption that they were duly married.

5.6 Probate and Administration of Estates

5.6.1 Meaning of Probate and administration of Estates

A Probate is a legal process in which a will is reviewed to determine whether it is valid and authentic. Also, probate generaly refers to the process of administering of a deceased person’s estate.

5.6.2 Who appoints the executor or administrator of estate?

The court appoints either an executor named in the will (or an administrator if there is no will) to administer the process of collecting the assets of the deceased person, paying any liabilities remaining on the person’s estate, and finally distributing the assets of the estate to beneficiaries’ names in the will or determined as such by the executor.

5.7 Sources of Law of Succession, Probate and Administration of Estate

The community in Tanzania is diverse and so is the legal system governing succession. This diversity is based on ethnicity, religion, affinity or race. As a result, there are four competing legal systems on matters of succession;

1. Statutory Laws

2. Customary Law

3. Islamic Law, and

4. Hindu Law

Thus, internal conflict of laws

5.7.1 Statutory Laws

1. The Judicature and application of Laws Act [Cap. 358: R.E 2002] (‘JALA’);

i. Permits the application of the Indian Succession Act, 1865 and the Hindu Wills Act of 1870 (S. 14)

ii. to Christians Reception date- 1^st December 1920 (S. 14)

iii. Future amendments- do not apply (S. 17)

2. The Indian Succession Act of 1865 (ISA);

i. Applies and all those of European Origin

ii. Does not apply to estates of deceased Moslems

iii. Equality among the heirs

3. The Hindu Wills Act of 1870

There are no known court cases on Hindu Law

5.7.2 Customary Law

1. To African members irrespective of their religious affiliation

2. There are many tribal groupings in Tanzania. Thus, many customary laws

3. Some of the customary rules are codified and some are not. See the Customary Law (Declaration) (No. 4)) Order of 1963). [GNs No.436 of 1967 & 219 of 1967] (‘the order ’The order applies to all communities in the districts that are specified

4. The rules apply to patrilineal communities. Patrilineal communities form 80% of the local population.

The remaining 20% are matrilineal. Their customary rules on succession are not codified. Hence, little is known about them.

Customary Law and Heirs

1. Children (sons and daughters),

2. Grand children

3. Brothers, sisters and their respective children

4. Father

5. Paternal uncles and aunts, husband or wife

Customary Law and Degree of Heirs

Three degrees: -

1. First son from the first house

2. All other sons

3. Daughters

Customary Law and Female Heirs

1. The Order still maintains a limited position as regards the right of women to inherit. It recognizes their right to inheritance only with respect to movable property. As regards (immovable property) clan land, female heirs are only entitled to usufructury rights i.e. they cannot dispose of (S. 20).

2. Article 13(4) of the Constitution of the URT, 1977 (as amended): bars discrimination based on sex

3. Bernado Ephraim vs Holaria Pastory and another (HC- unreported): section 20 of the Order is inconsistent with Article 13(4). Both men and women can equally inherit.

4. No Court of Appeal decision on a similar matter. Hence, the position not fully settled.

Customary Law and Widows

1. Widows have no share where there are issues of the union (S. 27)
2. Husband cannot inherit from wife: unless (i) there is a Will, (ii) there are no issues or any member of her own family (S. 28)

5.7.3. Islamic Law

Males are accorded bigger shares compared to female irrespective of age and ability to care for the family

Level I - Primary (Immediate) Heirs

The primary (or immediate) heirs classified as Level I are: -

1. The spouse (Husband or a maximum of four Wives)

2. The children (Sons and Daughters)

3. The parents (Father & Mother)

4. The grandchildren (Son’s son or Son’s daughter only) [applicable only when the son is already deceased only and has offspring]

Level II - Secondary Heirs

The secondary heirs classified as Level II are: -

1. The grandparents (Paternal and Maternal)

2. The brothers and/or sisters (In the absence of father and son only)

3. The uncles and/or aunts (In the absence of grandparents only)

4. The nephews and/or nieces (In the absence of brothers and sisters only)

5.8 Choice of Law

1. Mode of life Test

2. Intention of the deceased Test (section 88(1) a of Cap, 352)

5.9 Jurisdiction of Courts

1. Primary Court (section 18 of Cap 11).

2. District Court (Section 6 of Cap 352)-Small estates.

3. High Court (sections 3 and 4 of Cap. 352).

5.10 The Procedure for Administration of Estates

1. The principal legislation is the Probate and Administration of Estates Act, Cap. 352 together with the Probate Rules, GNs. No. 10, 107 and 369 of 1963.

2. It applies to all estates irrespective of religion, ethnicity or race of the deceased.

3. Testacy vs intestacy

5.11 Wills

1. Statutory Law

2. Customary Law

3. Islamic Law

5.11.1 Wills According to Statutory Law

1. Indian Succession Act, 1865

2. Hindu Wills Act, 1870

5.11.2 Wills According to the Indian Succession Act of 1885

1. Privileged (Section 52);

2. Unprivileged (Section 50)

5.11.3 Wills According to Customary Law

Local Customary Law (Declaration Order) (No.4 ) of 1963

1. Testator’s age - 18

2. Witnesses: 3 witness including the wife(s)

3. Absence of the wife- the will becomes defective (LwehaburavsLwehabura, (1968) HCD. 358)

4. Beneficiaries cannot become witnesses except the wife(s).

5. Witnesses to a written will must be literate.

6. If the testator is illiterate- 4 witnesses are required

7. Date, Signature/thumbprint

5.11.4 Islamic Wills

1. No special form

2. May be oral or written

3. Must be proved by witnesses.

4. Regard should be had to relations and next of kin when making wills.

5. One cannot bequeath more than one third by way of a Will

6. Heirs may consent to an excess bequest.

7. Will is an exception and not the rule

Hassan Matola vs. Kadhi wa Msikiti wa Mwinyi mkuu [1985] TLR 53

5.11.5 Islamic Wills-Witnesses

1. Adult Muslim males from the testator’s relations, etc.

2. Just persons

Quran: Ch. V Verse 106

1. Signing and/or attestation not necessary

2. Approval by the testator before death is sufficient

5.12 Reasons for beneficiary not to inherit

The Local Customary Law (Declaration) No.4 order GN.219 and 436 of 1967 has stated reasons that can warrant a beneficiary not to inherit which are:

1. If the beneficiary has committed adultery with the spouse of the maker of the will.

2. If the beneficiary has attempted to kill, attack or injure the maker or the mother of the maker of the will.

3. If the beneficiary without any good reason did not take care of the maker of the will during times of hardship and sickness.

Further if the beneficiary has destroyed/ruined or wrecked the assets of the maker of the will, it will be counted as part of the inheritance the beneficiary ought to have received.

5.13 Powers and Duties of Executors and Administrators s.99-113 Probate Act

The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him such as:

1. power to sue on behalf of the deceased person

2. power to dispose of movable and immovable property as he /she thinks fit according to the Law.

3. May incur expenditure for the purpose of taking care of the deceased property.

4. May not derive benefit from his duties unless there is express provision to that effect in the will.

5. He is not allowed to buy, either directly or indirectly, any property of the deceased such sale is voidable.

6. Has the duty to provide funds for the performance of funeral ceremonies of the deceased; if he has left property sufficient for the purpose.

7. Take inventory and accounts to court

8. To collect the property of the deceased

9. Distribute the property to the persons entitled or to trustees as the case may be

10. Power to pay debts due to the deceased before any legacy

NB. If the assets, after payment of debts, necessary expenses and specific legacies, are not sufficient to pay all the general legacies in full, the latter shall abate or be diminished in equal proportion.

5.14 Revocation of administrators and Executors

The grant of Probate and letters of administration may be revoked for any of the following reasons:

1. If the proceedings of obtaining the grant were defective in substance;
2. If the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case;
3. If the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, even if the allegation was made in ignorance or inadvertently.
4. If the grant has become useless and inoperative.
5. If the person to whom the grant was made has wilfully and without

reasonable cause omitted to exhibit an inventory or account or has exhibited under that Part an inventory or account which is untrue in a material respect.^[39]

5.15 Gender Concept and Perception

5.15.1 Gender

Gender refers to the characteristics of women, men that are socially constructed. This includes norms, behaviours and roles associated with being a woman, man, girl or boy, as well as relationships with each other. It is referred to the general differences between male and female entities.

Gender is determined by social factors-history, culture, tradition, societal norms and religion.

5.15.2 Gender Roles

The sets of behaviour, roles and responsibilities attributed to women and men respectively by society which are reinforced at the various levels of the society through its political and educational institutions and systems, employment patterns, norms and values, and through the family.

5.15.3 Sex

Sex refers to the biological characteristics between man and a woman (including genetics, anatomy and physiology). Sex defines humans as female or male. Note that these biological characteristics are not mutually exclusive; however, there are individuals who possess both male and female characteristics.

5.15.4 Gender Equality

It refers to the equal treatment of women and men, girls and boys so that they can enjoy the benefits of development including equal access to and control of opportunities and resources. It involves the equality of women and men in human rights, legal system and constitutions.

5.15.5 Gender Equity

Gender equity refers to justice and fairness in the treatment of women and men in order to eventually achieve gender equality, often requesting differential treatment of women and men (or specific measures) in order to compensate for the historical and social disadvantages that prevent women and men from sharing a level playing field.

5.15.6 Gender Balance

Having the same (or a sufficient) number of women and men at all levels within the organization to ensure equal representation and participation in all areas of activity and interest.

5.16 Gender Based Violence

5.16.1 Definition of key terms

Gender-Based Violence is a form of discrimination that seriously inhibits person ability to enjoy rights and freedoms on a basis of gender^[40].

Gender-Based Violence is violence that is directed against a woman because she is a woman or that affects women disproportionately. ^[41]

Gender refers to the different characteristics, roles, and expected behavior that the society assigns to being males and females.

Gender roles are not innate. They are learnt throughout the individual’s life and they can change in relation to time, culture and environment. For example; the common representation of the male as a breadwinner and the female as the housekeeper; or of men as sources of security and women as providers of love and care.

5.16.2 Forms of Gender Based Violence

GBV can take place within the family or in the community (school, workplace). GBV can appear in many forms such as:

1. Sexual Violence: any unwanted act of a sexual nature. It also includes child sexual abuse, which is any sexual act involving children, regardless of the consent of the child to the act.

2. Physical Violence: the use of physical force with the intention of causing bodily harm.

3. Emotional-Psychological Violence: any conduct that makes another person feel constantly unhappy, humiliated, ridiculed, afraid or depressed or to feel inadequate or worthless or infliction of mental or emotional pain or injury.

4. Economic Violence: is the use of control over economic resources to dominate another person.

What are the key guidelines/issues which must be taken into account or adhered to in providing legal services to clients who are victims of GBV?

It has to be understood that clients who are victims of gender especially those who have suffered severe gender violence be it physically or psychological are very vulnerable.

1. International Organizations through various policies and guidelines urge for special treatment of GBV victims.

2. GBV victims often do not even comprehend that they are victims at all i.e., in rape cases.

3. Some get used to be mistreated that it becomes difficult to even seek for help.

4. For some they even believe it is their fault that violence has been inflicted upon them.

5. Cultural norms and believes are one of the biggest setbacks for GBV victims, fearing how the society will view them and even believing that they will be outcast of their society.

It is due to those factors that Legal Aid providers when dealing with Victims of gender and especially those suffering from GBV that should at least consider the following:

1. Create a friendly and confidential environment for their clients.

2. Take time to listen and understand.

3. Try to make the client understand that he/she is not alone and it is not their fault.

4. Make the client understand that they have a choice and that is either through Mediation in non-criminal cases but also can take legal actions and that support will be given to them.

5. Assist the client through the police procedures and court attendance.

MODULE 6: JUSTICE SYSTEM AND DISPUTE RESOLUTION

6.1 Dispute Settlement Institutions

6.1.1 Introduction

This chapter highlights both formal and informal organs available in solving different legal disputes in Tanzania.

6.2 The Court System in Tanzania

6.2.1 The Court of Appeal of Tanzania

The Court of Appeal of Tanzania saves for Zanzibar and Tanzania Mainland. The court of Appeal is established under Article 108 of the Constitution of the United Republic of Tanzania of 1977

Who constitute the court of appeal?

1. Chief Justice

2. Other Justices of Appeal.

What is the primary function of the court of appeal?

Its primary function is to determine appeals as an apex court in the hierarchy of the courts in Tanzania.

6.2.2 The High Court of Tanzania (Mainland Tanzania)

Jurisdiction of the court

The High Court has unlimited jurisdiction to entertain all types of cases of civil nature including Constitution cases. Also, the High Court enjoy appellate jurisdiction on cases of civil and criminal nature.

6.2.3 Specialized Divisions of the High Court

(i) The High Court of Tanzania (Commercial Division)

The High Court Commercial Division was established by the High Court Registries Rules in 1999, by virtue of GN 141 of 1999, Rule 5 A.

Jurisdiction of the court

The Court was established to adjudicate commercial dispute however, it does not have exclusive jurisdiction to entertain all commercial dispute as commercial litigants have option of instituting a commercial case either in the Ordinary Registry of the High Court or in the Commercial Division of the High Court.

(ii) The High Court of Tanzania (Labour Division)

The Labour Institution Act is the foundation of the High Court (Labour Division).

Jurisdiction of the court

1. It is responsible for hearing and determining employment matters and thus it has exclusive civil jurisdiction over any matter reserved for its decision by the labour laws.

2. It has revisional jurisdiction over the matters decided by the Commission for Mediation and Arbitration (CMA).

3. It has also powers to entertain applications for execution of arbitral awards from CMA

(iii) The High Court of Tanzania (Corruption and Economic Crimes Division)

It is established under S. 3 of the Economic and Organised Crime Control Act Cap 200 R.E. 2002 as amended by Act. No. 3 of 2016.

Jurisdiction of the court

The Court is established to hear and determine specified corruption and economic offences whose value is not less than one billion shillings, and other specified economic offences regardless of their value.

6.2.4 Subordinate Courts

(i) Resident Magistrate Court/ District Court

Resident Magistrate Court and District Courts are established under Magistrate Courts Act Cap 11 R.E. 2002

Jurisdiction of the court

They have unlimited geographical jurisdiction in the Region/District which is established. These two courts have concurrent jurisdiction and they handle criminal and civil cases as long as it is within their jurisdiction.

(ii) Primary Court

They are established under the Magistrates Courts Act of 1984.

Jurisdiction of the court

They deal with criminal cases and civil cases. Primary courts have exclusive jurisdiction in all proceedings of civil nature where the applicable law is Customary or Islamic.

6.2.5 Tribunals and Quasi-Judicial Bodies

i) Land Tribunals

These are tribunals which have original jurisdiction to entertain land disputes from the village to the district level.

a) The District Land and Housing Tribunal

It is established under different laws of the Tanzania^[42]42

Jurisdiction of the court

1. It is vested with territorial jurisdiction which enables it to operate in a District, Zone or Region within which it is established.

2. It is vested with pecuniary jurisdiction to a tune of two hundred and three hundred Million Tanzanian Shillings for a movable and immovable property respectively.

Composition of the tribunal

1. Chairman and

2. The two assessors at the hearing, though each tribunal must have at least seven Assessors.

b) Ward Tribunal

Jurisdiction of the tribunal

It has jurisdiction over land dispute in relation to the area of a District Council in which it is established. The pecuniary jurisdiction of this tribunal is limited to the disputed land or property valued at three million shillings.

Composition of the tribunal

Its composition includes four but not exceeding eight members elected by the Ward Committee.

Mode of handling cases by the tribunal

Cases are handled basing on customary principles of mediation. If there is lacuna, then principles of natural justice will be applicable. This does not hinder members of the tribunal to use other principles and practices of mediation that they have been trained on.

c) Village Land Council

Composition of the tribunal

It consists of seven members of whom three shall be women, all nominated by the Village Council and approved by the Village Assembly.

Mode of disposition of disputes

The disputes are disposed is through mediation. If parties are aggrieved with the decision of the Council, the dispute is referred to the Ward Tribunal.

ii) Labour Tribunal

a) Commission for Mediation and Arbitration

It has original jurisdiction in resolving labour disputes. Its functions are to mediate and arbitrate labour disputes.

6.3. Alternative Dispute Resolution

6.3.1 Introduction

This chapter highlights the basic and legally formalized alternatives to dispute resolution (ADR)

In ADR processes such as mediation, parties play an important role in resolving their own disputes. This often results in creative solutions, longer- lasting outcomes, greater satisfaction, and improved as well as sustained relationships between the disputing parties.

6.3.2 The Meaning and Scope of ADR

ADR refers to all modes of dispute settlement/resolution other than the traditional dispute settlement through courts of law. As considered below, mediation covers a broad spectrum of approaches of dispute settlement in civil litigation.

6.3.3 Types of ADR

The following are the major types of ADR:

i. Negotiation

Is the most direct way to reach a mutually accepted resolution between the parties. It is a process in which parties to a dispute discuss possible outcomes directly with each other until the solution is reached or impasse declared.^[43] it involves the parties themselves or with their advisers without the involvement of a third party.

ii. Mediation

Is a process by which a neutral and impartial third party(mediator) aids the disputants to reach a mutually agreed solution. In Tanzania mediation is common, it is used in most communities and has been made part of the civil procedure and practice in courts. On failure of negotiation, parties can further go for mediation.^[44]

Functions of the mediator

The role of the mediator is to facilitate communication between the parties, assist them in focusing on the real issues of the dispute, and generate options that meet the interests of all relevant parties. They have no power to render decision.

Who can be a mediator?

A mediator may be hired, appointed, or a volunteer to help in facilitating the mediation process. They should have no direct interest in the conflict and its outcome.

Arbitration

Arbitration is a mechanism for resolution of civil disputes which takes place, usually in private, pursuant to an agreement between the parties to the dispute, under which the parties agree to be bound by the decision to be given by the arbitrator according to law, after a fair hearing, such decision being enforceable at law.^[45]

6.3.4 Advantages and Disadvantages of ADR

Advantages of ADR

ADR is regarded as having many benefits over the formal litigation mechanisms - such as

1. less expensive,

2. speedier^1[46],

3. less formal

4. more flexible.

5. It maintains ongoing relationships even after the dispute is resolved. For instance in disputes including employer and employee, landlord and tenant, and family relationships.

Disadvantages of ADR

1. It does not compel parties to resolve disputes by any form of ADR without their wishes;

2. Unless it is put in writing, parties to ADR can easily repudiate the validity of the outcome of ADR;

3. The fact that ADR is confidential, it merits certain risks: parties may resolve a dispute without knowing all the relevant facts; and

4. ADR is not appropriate in all cases, for example, where a client needs an injunction or in summary cases, or where the other party admits liability.5.6

6.3.5 Fundamental Principles Governing ADR

(a) Voluntary Participation

The participation of the parties and the mediator or arbitrator in the ADR process is voluntary, even where laws make reference of disputes to any of the ADR methods as first mandatory. The parties and/or the mediator or arbitrator have the freedom to either proceed with or leave the process at any time.

(b) Participation of Third Party

In most ADR processes there is a third party, a mediator or arbitrator, who facilitates the resolution process in a fair and faithful manner.

(c ) Confidentiality

ADR process is off the record. For example, the mediators and/or arbitrators are bound not to divulge any of the information they hear from one party to the other or to anyone else without permission, so the parties can feel free to confide in the mediator or arbitrator. The mediator or arbitrator will not share the confidential information, not even with a judge.

(d) Informality

Although arbitration is more or less formal akin to adjudication, negotiation and mediation are conducted in a form of guided dialogue, where the parties have the ability to express their feelings, not only facts, so that venting anger can help them in reaching an agreed solution.

(e ) Ownership of the Outcome

Since ADR is voluntary in nature, parties thereto tend to own the outcome and are responsible for implementing it. The court’s role is to validate the outcome and give it force of law in case of non-compliance. For that matter, in certain mediation processes, the court normally recognizes a mediation agreement and an arbitral award as a decree of the court

(f) Maintenance and Often Improvement of Relationship

In ADR process, the parties gain understanding of each other’s motives, needs, and interests. This understanding can often improve the relationship between them.

6.3.6 Applying ADR and Its Outcome in Civil Litigation

i) When can ADR be applied in civil Cases

ADR is an integral part of the civil litigation process and it can be applied at any stage in the process before judgement is rendered by the court. Whereas negotiation can be done at any time and an out-of-court settlement deed be voluntarily signed by the parties, mediation is fixed to take place after the completion of pleadings and before hearing commences

ii) Negotiation and Out-of-Court Settlement

Parties involved in an ongoing civil litigation may engage themselves in negotiations with a view to amicably settling their dispute. This may happen at any stage before judgement is pronounced. It may take place upon the leave of the court or amicably upon the parties own initiatives.

Its outcome should be reduced into writing, duly signed by the parties and filed in court for further action. In practice, the outcome of such negotiation is called an “out-of-court settlement deed”. When an out-of-court settlement deed is filed in the before which the case is pending, the parties are required to make an oral prayer to the court for it to render the deed as a decree of the court.

iii) Outcomes of Mediation

Mediation may yield into either of the two results: successful settlement of the dispute or an impasse. If the mediation process does not result in settlement, each side can continue to enforce their rights through appropriate court or tribunal procedures. But, if a settlement has been reached through mediation, legal rights and obligations are affected in differing degrees. In some situations, the parties may only wish to have a memorandum or a moral force agreement put in place; these are common in community-based mediation. In other instances, a more comprehensive deed of agreement is drafted and this deed serves to bring a legally binding situation.

iv. Legal Effects of the Settlement Agreement

The signed Consent Settlement Order Form must be filed in the court for record, where it will be recognized as a decree; because it has the same legal force as an ordinary court decree; so, it can be executed as a decree in case of default by any party.

MODULE 7: HUMAN RIGHTS AND DUTIES

7.1 The Concept of Human Rights

Human rights are the basic rights and freedoms that belong to every person in the world. Human rights are based on important principles like dignity, fairness, respect and equality. They protect an individual in his or her everyday life regardless of who they are, where they live and how they choose to live their life.

7.2 The Nature of Human Rights

These rights are all; Universal, Interrelated, interdependent, indivisible.

7.2.1 Universality of Human Rights

Universality of human rights entails that every human being is entitled to human rights regardless of their nationality, colour, gender, ethnicity, religious beliefs, age, economic, social or political status, etc. it is the duty of States to promote and protect ALL human rights and fundamental freedoms, regardless of their political, economic and cultural systems.

7.2.2 Interdependence and Indivisibility of Human Rights

All human rights are indivisible that is they cannot be divided since they are all important, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education, or collective rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others.

7.2.3 Inalienability of Human Rights

Human rights are inalienable in that they are absolute rights that are they cannot be taken away by anyone, fundamental freedoms and civil liberties. They should not be taken away, except in specific situations and according to due process of law. For example, the right to freedom of association may be restricted if a person is found guilty of a crime by a court of law.

7.3 State Obligation for Human Rights

International human rights law imposes that states are obligated to adhere to international treaties that they are signatories to, they have to adopt the principles of the treaties in their local legal framework^[47].Further more hey have to ensure that even private parties protect, respect and fulfil international human rights treaties within their territories.

Protection of the individual’s rights and freedoms demands that the state maintains law and order to ensure that its citizens live freely and in peace, without interferences of their rights even by third parties. The responsibility to maintain law and order in any country ‘lies with the state specifically with the police force of that country.’^[49] Therefore, it is the duty of the state ‘to ensure through its police force that where there is a breakdown of law and order, the perpetrator are arrested and brought before the domestic courts of the country.’^[50]

7.4 Duties and Responsibilities of the Individual

One of the distinctive features of the African Human Rights System is the vesting of duties on an individual. They form the inner core of the peoples’ rights in the African Human Rights System. ^[51]

7.5 Rights of Persons with Disabilities

The Convention on the Rights of Persons with disabilities (CRPD) adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights andfundamental freedoms. It clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced.

7.5.1 Ways of accessing rights for persons with disability

The rights to access relates to:^[52]

1. Buildings, roads, transport and public facilities like schools, housing, hospitals, clinics and workplaces

2. Information, communications and other services, including electronic services like the internet and emergency services

3. Public services such as education and healthcare, public institutions such as the justice system and courts and other public activities such as voting and advocacy

4. Employment

5. An adequate standard of living, including adequate food, clothing and housing

6. In-home, residential and other community support services, or

7. Mobility aids, assistive devices and technologies designed for people with disabilities.

8. Sets standards and guidelines for access to facilities and services to ensure that private businesses that provide facilities or services to the public take into account access for people with disability, and/or

9. Relates to capacity to make decisions or legal rights and recognition before the law.

7.5.2 Challenges faced by people with disability in accessing their rights

1. Many public places are not built in a way that is easy for people with disability to access.

2. People with disability face education barriers since there a few schools in the country to accommodate various forms of learning disabilities that they face.

3. The majority people with disability do not get access to adequate healthcare.

4. They are many myths and stereotypes that are believed in the society some leading to put the lives of people with disabilities in danger.

5. People with disability in sometimes feel that they are ignored in the society for being able to live up to the societal standards of performance.

6. People with disability face lack of employment however the government has set special requirements that they have to be given priorities in working environments that they can easily work.

7. People with disability are easily teased and abused.

7.6 Vulnerable and marginalized groups in the society

Marginalisation or social exclusion refers to the relegation to the fringes of society due to a lack of access to rights, resources, and opportunities. It is a major cause of vulnerability, which refers to exposure to a range of possible harms, and being unable to deal with them adequately.

7.6.1 Who are Vulnerable and Marginalized groups in the society?

Women, the elderly, adolescents, youth, and children, persons with disabilities, indigenous populations, refugees, migrants, and minorities experience the highest degree of socio-economic marginalization. Marginalized people become even more vulnerable in emergencies. ^[53]

7.6.2 Women’s Rights

International human rights law provides special protection to women.^[54] In particular, the African Charter Human on Peoples’ Rights, obliges parties to ensure the elimination of every form of discrimination against women.^[55] States Parties are also obliged to ‘ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.’

In a more solid tone, special protection of women is clearly and comprehensively set out in the Maputo Protocol under Article 2-7, 9,11-19 and 20-24. They include rights such as:

1. The Protocol protects the African women’s rights to dignity^[56], to life, integrity and security of the person.^[57]

2. It especially protects women in Africa against; inter alia, discrimination^[58]; sexual violence and harmful traditional practices.^[59]

3. It also protects women in all spheres concerning their personal status - marriage^[60], separation, divorce, annulment of marriage^[61]; the rights of widows^[62]; and succession rights.^[63]

7.6.3 Rights of the Elderly

International human rights law protects the rights of aged persons and requires that special measures of protection of the elderly ‘in keeping with their physical and moral needs.’^[64] This special protection is founded in the African value embraced in the doctrine of Ubuntu, whereby both society and grown up “children” are obliged to provide protection and maintenance to their elderly members of society.

So, the dialectics of the peoples’ rights in the African Human Rights System require that the aged persons should be adequately protected and maintained by the State, community and members of their families, including their adult children.

How can Vulnerable and marginalized groups be protected in the society?

Delivery systems should therefore be particularly attuned to the challenges and obstacles faced by vulnerable and disadvantaged groups and take special measures to protect these. Indeed, a human rights-based approach to social protection requires that States give special attention to those persons who belong to the most disadvantaged and marginalized groups in society. This entails guaranteeing non-discriminatory treatment as well as adopting proactive measures to enable those suffering from structural discrimination (for example, ethnic minorities or indigenous peoples) to enjoy their rights. Affirmative action and other proactive measures should aim at diminishing or eliminating conditions that give rise to or perpetuate discrimination, and at countering stigmas and prejudices.

How can Laws protect Vulnerable and marginalized groups in the society

The CESCR’s General Comment 20 recommends the use of a range of laws, policies and programmes, including special measures to tackle discrimination. The measures that States adopt should pay attention to the specific human rights problems that emerge with relation to, for example, gender, age, disability, migration and displacement. Of particular relevance in this context are the obligations imposed by the Convention on Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC), Convention on the Rights of Persons with Disabilities (CRPD) and International Convention on the Protection of the Rights of All Migrant Workers and their Families. The CRPD also stresses that the special needs of women and children with disabilities must be duly taken into account (Articles 3, 6 and 7).^[65]

7.6.4 Childrens’ Rights

In Tanzania a child is deemed to be a person below the age of eighteen years.^[66]The state is obligated to make sure that children’s rights are protected and that all institutions responsible such schools, courts, social welfare, and even parents/guardians adhere to principles and laws that protects the welfare of a child.

Africa is the only continent that has a specific treaty promoting and protecting the rights and welfare of the child. The African Charter Rights and Welfare of the Child (ACRWC) promotes and protects children’s rights concurrently with the United Nations Convention on the Rights of the Child (CRC).

1. Protection of the Child against all forms of discrimination^[67]; protection of the rights to life and the development of the child

2. The right to education, health and medical services.

3. It also guarantees and recognizes to every child the personal status: right to name and nationality.

4. The right to private life^[68]; and ensures that the child fully participates in leisure, recreation and cultural activities.^[69]

The ACRWC provides special protection to children under articles 8, 9, 13, 15, 24, 26, 27, 28, 29 and 30 they include:

1. With disabilities^[70] and those involved in armed conflicts as well as child refugees.^[71]

2. It also prohibits all forms of worst child labour^[72] and offers to all children protection against negative social and cultural practices.

3. It further guarantees to every child the right to protection against child abuse and torture.

4. It also requires that where children are to be placed under adoption, it has to be in the best interests of the child^[73]etc .

7.6.5 Types of violence against children

According to WHO most violence against children involves at least one of six main types of interpersonal violence that tend to occur at different stages in a child’s development.^[74]

1. Maltreatment (including violent punishment) involves physical, sexual and psychological/emotional violence; and neglect of infants, children and adolescents by parents, caregivers and other authority figures, most often in the home but also in settings such as schools and orphanages.

2. Bullying (including cyber-bullying) is unwanted aggressive behaviour by another child or group of children who are neither siblings nor in a romantic relationship with the victim. It involves repeated physical, psychological or social harm, and often takes place in schools and other settings where children gather, and online.

3. Youth violence is concentrated among children and young adults aged 10-29 years, occurs most often in community settings between acquaintances and strangers, includes bullying and physical assault with or without weapons (such as guns and knives), and may involve gang violence.

4. Intimate partner violence (or domestic violence) involves physical, sexual and emotional violence by an intimate partner or ex-partner. Although males can also be victims, intimate partner violence disproportionately affects females. It commonly occurs against girls within child marriages and early/forced marriages. Among romantically involved but unmarried adolescents it is sometimes called “dating violence”.

5. Sexual violence includes non-consensual completed or attempted sexual contact and acts of a sexual nature not involving contact (such as voyeurism or sexual harassment); acts of sexual trafficking committed against someone who is unable to consent or refuse; and online exploitation.

6. Emotional or psychological violence includes restricting a child’s movements, denigration, ridicule, threats and intimidation, discrimination, rejection and other non-physical forms of hostile treatment.

7.6.6 Strategies/remedies against violence against Children

According to WHO there are seven strategies to deal with violence against children which are^[75]:

1. Implementation and enforcement of laws (for example, banning violent discipline and restricting access to alcohol and firearms);

2. Norms and values change (for example, altering norms that condone the sexual abuse of girls or aggressive behaviour among boys);

3. Safe environments (such as identifying neighbourhood “hot spots” for violence and then addressing the local causes through problem-oriented policing and other interventions);

4. Parental and caregiver support (for example, providing parent training to young, first time parents);

5. Income and economic strengthening (such as microfinance and gender equity training);

6. Response services provision (for example, ensuring that children who are exposed to violence can access effective emergency care and receive appropriate psychosocial support); and

7. Education and life skills (such as ensuring that children attend school, and providing life and social skills training).

MODULE 8: OFFICE MANAGEMENT

8.1 Office Practice

8.1.1 Introduction

Management is the key to success for any organization; it is universally applied in all fields of organized human activity. Therefore, office management is an integral part of the total management of the organization.

It provides centralized guidance, which diverts the individual efforts towards a common goal or objectives.

8.1.2 Office Management Skills

1. Decision Making Skills: The process by which a course of action is consciously chosen from available alternatives for the purpose of achieving a desired result.

2. Organizing Skills: The process by which the structure and allocation of jobs are determined.

3. Staffing Skills: The process by which managers select, train, promote and retire subordinates.

4. Planning Skills: The process by which a manager anticipates the future and discovers alternative courses of action open to him.

5. Controlling Skills: The process that measures current performance and guides it towards some predetermined goal.

6. Communicating Skills: the process by which ideas are transmitted to others for the purpose of affecting a desired result.

7. Directing (1eadership) Skills: the process by which actual performance of subordinates is guided towards common goals. Supervising is one aspect of this function at lower levels where physical overseeing of work is possible

8.1.3 Functions of an Office

The following are the function of the office;

1. To direct jobs for all categories
2. To keep records of all employees
3. Planning and Calculation of Budget.
4. Maintenance of Public Relations.
5. Maintenance of establishment of Office Staff

8.1.4 Qualities of the Office Manager

He is the leader of the team working in the office.

Characteristics of a good manager are dependable.

1. Intelligent

2. Having Initiative,

3. Good Judgment Skill,

4. Good mental health,

5. Integrity

6. Perseverance

8.1.5 Qualities of the Paralegals Office

According to Section 10 of the Legal Aid Act, an institution shall not be registered as a legal aid provider unless it has the following qualifications-

1. it has been registered under the relevant laws;

2. the provision of legal aid services is one of its core functions;

3. it has office premises and office facilities;

4. it has not less than­

i. two advocates;

ii. one advocate and one lawyer;

iii. one lawyer and two paralegals;

iv. one advocate and two paralegals; or

v. three paralegals; and

5. it has been cleared by the body that has registered it as to its records pertaining to management of finances.

Accordingly, Section 24 of the Legal Aid Act provide a mandatory requirement which requires a legal aid service to be provided by an advocate, a lawyer or a paralegal on behalf of the legal aid provider. Moreover, it further states that a person shall not provide legal aid services unless that person is an advocate, a lawyer or paralegal attached to a legal aid provider. Any person who contravenes a provision of this section commits an offence and shall, upon conviction be liable to a fine of five million shilling or to twelve months imprisonment or to both.

Particularly, Section 5(6) of the Legal Aid Regulations requires a legal aid office to have the following basic requirements: -

1. a separate room for the advocate or paralegal;

2. a secretarial desk and a computer;

3. chairs or benches for clients;

4. a basic collection of reference material including legal materials and paralegal manual currently in use;

5. a book shelf;

6. filing cabinet or places for properly keeping of the records; and

7. physically easily accessible by people with disability.

MODULE 9: RESOURCE MOBILIZATION AND SUSTAINABILITY

9.1 What is resource mobilization?

Resource mobilization refers to all activities involved in securing new and additional resources for an organization. It also involves making better use of, and maximizing, existing resources. Resource mobilization is often referred to as ‘New Business Development.^[76]

9.2 Why is resource mobilization important?

Resource mobilization is critical to any organization for the following reasons:

1. Ensures the continuation of an organization’s service provision to clients

2. Supports organizational sustainability

3. Allows for improvement and scale-up of products and services the organization currently provides

4. Organizations, both in the public and private sector, must be in the business of generating new business to stay in business.^[77]

9.3 What is Local Resource?

The term “local resources” refers to financial and non-financial contributions to community improvement projects from local sources, including individual citizens, local government, businesses, institutions or other actors. Local resources not only allow for the implementation of successful community projects, but also contribute to the long-term sustainability of initiatives conducted by paralegal organizations by building lasting relationships.

Local Resource Mobilization describes the activity of finding new ways of engaging resources in the local environment (i.e., funds, people, goods and services) to support an organization and make it self-sustaining. It encompasses a wide range of strategies going from income generation schemes to locally based fundraising or building volunteer constituencies for example. It finds expression in a variety of fresh approaches which integrate cultural, social and economic contexts.^[78]

9.4 Why local resource mobilization?

By mobilizing local resources to support local NGO/Paralegal organizations both local organization and local contributors benefit in a number of ways^[79]:

1. Sense of ownership: By contributing their time and resources, citizens, institutions, businesses, and others can assume greater ownership of activities that directly contribute to the positive development of their communities. The sense of “ownership” comes from the pride and accomplishment of knowing that they have done their share to make their community a better place to live.
2. Building social capital — Social capital refers to the value of social networks and the increased willingness of individuals and organizations to help one another as a result of these relationships. By seeking local support, NGOs and Paralegal organizations are more likely to build long-term relationships with other institutions and organizations. These relationships contribute to the social capital within the community.
3. Sustainability — mobilizing local resources increases the sustainability of community initiatives. As relationships and communication between NGO/Paralegal organizations and supporters develop, future support is more likely. As members of the community with long-term interests in community projects, local supporters are more likely to continue supporting initiatives than external donors
4. Independence — raising resources locally also gives NGO/Paralegal organizations more independence and flexibility to implement activities targeting needs that a community finds important. Additionally, local support means that NGO/Paralegal organizations do not have to adjust their programs to meet the needs and interests of external donors.

9.5 How is successful resource mobilization done?

1. Organizations are not entitled to support; they must earn it.
2. Successful resource mobilization requires a lot of work and takes a lot of time.
3. If an organization needs additional revenue one year from now, start today!
4. An organization must be ready, willing and able to sell their organization and the programs for which they are raising money.
5. Resource mobilization efforts should align with an organizational mission, objectives and strategic plan.
6. Resource mobilization is also about the needs of the (prospective) funder.
7. Understanding the needs of clients (target population/funders).
8. An organization must be prepared to provide evidence-based results.
9. An organizational performance today impacts its ability to generate resources tomorrow.
10. An organization must establish and maintain organizational

credibility and reputation.

9.6 What kind of Resources can be mobilized?

Some of the possible resources which can be mobilized within the community are:^[80]

1. Financial resources: These are probably the key resources that all Paralegal Organizations need to be able to function and carry out their work. Depending on the source, financial resources may be targeted to specific expenses or be used at the PO discretion. Financial resources can be raised from local citizens, business, local authorities, or other in a variety of forms and through many means, including:

• Donations of cash or Grants from local authorities or other community organization
• Registration fees
• User fees for participation in various activities
• Subscription fees
• Fundraising events
• Sponsorship of POs and/or their activities by local business
• Consultants
• Economic generating activities.

2. In-kind material donations: can help reduce the costs of implementing an activity significantly. Examples of in kind material donations include:

• Office supplies needed for the operation of an PO
• Building materials for the reconstruction of community buildings
• Use of a car or other vehicle to transport or visit beneficiaries o Sports and recreational equipment for playgrounds or youth programs
• Food and drinks to offer to volunteers or beneficiaries

II . In-kind intellectual services: can be an extremely valuable contribution for projects that require expensive expert and professional service s such as legal, accounting, medical, psychological or counseling.

III. Space: such as the free use of a room, office building, community center, school or playground for regular or special events

9.7 What is meant by organizational sustainability

Sustainability refers to the ability of something to maintain or “sustain” itself over time. Whereas organizational sustainability means equipping organizations with the people and structures necessary for success that is having the leadership, talent, global insights and change strategies necessary to rise to the unique challenges facing organizations today. ^[81]

These include but are not limited to:

1. Maximizing a global talent pool which includes four generations spread across many cultures

2. Creating an inclusive workplace

3. Developing leaders who can leverage diversity

4. Developing female talent globally

5. Implementing customized diversity strategies (rather than one size fits all)

6. Communicating with impact and across borders

Sustainability involves all the elements and functions of an organization, and every major decision made within the organization from human resources to finances to service delivery must be considered through the filter of sustainability. This is because sustainability is a process, not an end. An organization does not “become” sustainable and then rest on its success.^[82]

9.7.1 Types of Sustainability

In order for legal aid providers to maintain standard provision of legal aid they have to focus on three types of sustainability.

a) Financial Sustainability

Financial sustainability can be gauged by an organization’s net income (the surplus of revenues over expenses); liquidity (the cash available to pay bills); and solvency (the relationship of assets and debt or liabilities). Again, this manual promotes a broad, interdisciplinary role for financial management, as one component of overall sustainability.

b) Organizational Sustainability (Institutional)

Organizational sustain-ability is the ability of the organization to secure and manage sufficient resources to enable it to fulfil its mission effectively and consistently over time. Most efforts to improve sustainability in Legal aid delivery focus first on organizational sustainability. Organizational sustainability is the ability of the organization to secure and manage sufficient resources to enable it to fulfil its mission effectively and consistently over time without excessive dependence on any single funding source.

The objective is to maintain and build the capacity of an organization that is providing a beneficial service in a community. The benefits of improving the organizational sustainability of Legal aid organizations can be far-reaching because, in most cases, such organizations play a vital role in delivering services that would otherwise be unavailable or reaching people that would otherwise be unserved.

c) Sustainability of Services (Programme)

Sustainability of services means that the services provided, and/or the legal aid services made, continue long after the original or primary donor funding is withdrawing. The sustainability of services and their benefits is especially relevant to the Legal aid sector and is defined by the following statement:

Basing on Tanzania context, the programme sustainability is likely to be more realistic basing on the following techniques;

• Networking (partnership, collaboration), with the other like­minded organisation
• Increase performance
• Relevancy of the programme
• Community participation

Efforts to improve the sustainability of services focus on maintaining and improving the provision, quality, and impact of services rather than on building the capacity of the organizations that provide those services. In other words, the focus is on ensuring the continuation of services, not the organizations that deliver them.

9.7.2 Pillars of Sustainability

The Three Pillars of Sustainability are:

1. Social

2. Environment

3. Economic

9.7.3 Why is Organizational Sustainability Important?

Organizations that have built sustainability into their operations have a great advantage to succeed if they make sure that everyone in the organization is engaged with the sustainability goals. Internal and external stakeholder’s engagement results in several benefits:

i. It provides competitive advantage

When an organization communicates transparently about what they are doing it gives them competitive edge against their competitors. A sustainable company attracts new talents, new customers and new investors because they positively affect the society. In other words, companies who make a difference for customers, employees and other groups in society attract impact investors and increase the overall stakeholder engagement.

ii. It increases the bottom line

Organizations that create sustainable growth will be eventually rewarded. Providing products and services that are sustainable throughout their life cycle and social aspects, attract clients who are increasingly aware of the responsible production and consumption patterns. Likewise, in legal aid provision, legal aid clients are more seeking sustainable legal aid services that they can rely on and those LAPs that answers to this need are growing quicker.

iii. It reduces costs

All organizations look for growth but what matters is how its achieved. Becoming more circular in design state of everything by applying circular economy principles or making investments for equipment and innovations that optimize product manufacturing process all save costs. One single aspect that increases costs are stranded assets, unnecessary loss and waste of materials that are composed in production phase. By reducing or completely eliminating these waste and infra trails, an organization can increase its savings.

iv. It builds employers image and brand

All organizations consist of values, goals and practices that form their working culture. A sustainable organization commits in zero tolerance of discrimination, bullying, illegal practices and inequalities linked to diversity (sex, age, status, nationality and disability) as well as making no harm to the environment. This builds an image as an employer and how stakeholders see an organizational brand. ^[83]

1. Section 20(5) of the Legal Aid Act, No. 1 of 2017 ↑

2. Ibid, Section 20(5). ↑

3. Ibid S. 20 (a) ↑

4. Ibid S. 19 (1) ↑

5. Regulation 12 of G.N No. 44/2018 ↑

6. Sec. 19 (4) of the Legal Aid Act, 2007 ↑

7. Ibid Sec. 20 ↑

8. See Section 19(2) (a) & (b) of the Land Act, Cap 113 ↑

9. Deemed Right of Occupancy is a title of a Tanzanian citizen of African descent or a community of Tanzanian citizens of African descent using or occupying land under and in accordance with the customary law. ↑

10. See Sec. 56, 65 and 114 of the Law of Marriage Act, See also section 3(2) of the Land Act and section 3(2) of the Village Land Act. ↑

11. See Section 17(2) of the Land Act ↑

12. See section 60(2) & (9) of the Village Land Act ↑

13. See Section 53(2) of the Village Land Act ↑

14. See section 11 of the Courts (Land Disputes Settlements) Act ↑

15. See Section 14 of the Courts (Land Disputes Settlements) Act ↑

16. See Section 26 of the Courts (Land Disputes Settlements) Act ↑

17. See generally, Duncan, J., Women Land Rights Guide for Tanzania, Centre for Women’s Land Rights,

    2004 athttps://wwwJandesa.org/wp-content/uploads/LandWise-Guide-Womens-land-rights-

    guide-for-Tanzania.pdf ↑

18. Tenga, W.R and Mramba, S.J., (2014), Theoretical Foundations of Land Law in Tanzania,1^stEd. Law Africa Publishing (T) Ltd, Dar Es Salaam, p.169 ↑

19. Generally See, Ngemera, S., Land Dispute Settlement Machineries: Is inaccessibility a Source of Village Land Disputes in Morogoro?,IJSRP, Vol 7, No. 3 (2017) ↑

20. See Section 7(2)(a) and (b) of the Village Land Act ↑

21. See Section 7(2)(b) and Section 8(8)(d) of the Village Land Act, See also, Sec 18 of the Land Act, Cap 113. ↑

22. See Sec 18(4) of the Land Act, Cap 113 ↑

23. See Sec 8(2) of the Village Land Act. ↑

24. See Sec 3(2) (a) of Courts (Land Dispute Settlement) Act ↑

25. See Sec 58 (1)(a) & (b) of the Village Land Act ↑

26. See Sec 10 of the Land Disputes Courts Act and Section 3 of the Ward Tribunal Act, Cap 206 ↑

27. Ibid S.11 ↑

28. See sec 15, Ibid ↑

29. See sect 22 ibid, Section 167 of the Land Act and Sections 62 of the Village Land Act ↑

30. Black’s Law Dictionary. ↑

31. See generally Orders VI and VII of the Civil Procedure Act, Cap. 33 R.E. 2002 ↑

32. Arbetman, L.P., et al, Street Law: A Course in Practical Law, op. cit. ↑

33. Garner, B.A., (ed.), Black’s Law Dictionary (8^thedn.) (New York: West Publishing Company, 1999), p. 637. ↑

34. Olson and DeFrain, op. cit., p. 10. ↑

35. Ibid, p. 8. ↑

36. See AG vs Rebeca Z. Gyumi, Civil Appeal No.204 of 2017 at Dar Es Salaam. ↑

37. Section 14 of The Law of Marriage Act Cap 29 R: E 2002 ↑

38. Ibid, section 15 ↑

39. Part ix of the Probate and Administration of Estate Act ↑

40. The CEDAW Committee, 1992 ↑

41. CEDAW General Recommendation No 19, above note 15, paragraph ↑

42. No footnote in original ↑

43. Mashamba, C.J., Alternative Dispute Resolution in Tanzania: Law and Practice, op. cit. ↑

44. Ibid. ↑

45. Mashamba, C.J., Alternative Dispute Resolution in Tanzania: Law and Practice, op. cit. Under the common law, there is an older version of the definition of arbitration that was made in 1850’s by Ramilly, M.R., in Collins v. Collins (1858) 26 Beav. 306, 312 reported in English cases at 916-919to the effect that: ‘arbitration is a reference to the decision of one or more persons, either with or without an umpire, of some matter or matters in difference between the parties.’ ↑

46. In a number of cases, the courts in Tanzania have held that resort to ADR reduces delays in determination of legal disputes. See particularly CRDB Bank Ltd. v. Seif Ahmed Sharji, High Court of Tanzania at Mbeya, Civil Case No. 11 of 2002 (Unreported); David N. Mushi v. Joseph Massawe, High Court of Tanzania at Dar es Salaam, Civil Case No. 109 of 2001 (Unreported); M/S Greenway Co. Ltd. v. Tanzania Breweries Ltd., High Court of Tanzania at Dar es Salaam, Misc. Civil Case No. 4 of 1997 (Unreported); and Tanzania Harbours Authority v. Mathew Mtakula & 8 Others, Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 46 of 1999 (Unreported). ↑

47. See, for example, Article 1 of the African Charter on Human and Peoples’ Rights (1981) and Article 1 of the African Charter on the Rights and Welfare of the Child (1990). ↑

48. Ibid. ↑

49. Zimbabwe Human Rights NGO Forum v Zimbabwe Communication No. 245/2002 (21^st Activity Report, 2006), para 70. ↑

50. Ibid. ↑

51. See particularly Ilesanmi v Nigeria Communication No. 268 of 2003 (18^th Annual Activity Report, ACHPR). This communication is reported in Institute for Human Rights and Development in Africa, Decisions of the African Commission on Human and Peoples’ Rights on Communications 2002-2007 (Banjul: Institute for Human Rights and Development in Africa, 2008), pp. 301-309. ↑

52. see CRPD Article 9 (1)(2) ↑

53. For the purpose of relevance this module will cover the rights of women, the elderly, Children and people with disabilities. ↑

54. The role and implications of the Maputo Protocol on bringing about equality between women and men in Africa is examined at some length in Kombo, B., et al (eds.), Journey to Equality: 10 Years of the Protocol on the Rights of Women in Africa (Nairobi: Solidarity for African Women’s Rights/African Commission on Human and Peoples’ Rights/Make Every Women Count, 2013). ↑

55. Article 18(3), the African Charter Human on Peoples’ Rights ↑

56. Article 3 of the Maputo Protocol ↑

57. Ibid, Article 4. ↑

58. Ibid, Article 2. ↑

59. Ibid, Article 5. ↑

60. Ibid, Article 6. ↑

61. Ibid, Article 7. ↑

62. Ibid, Article 20. ↑

63. Ibid, Article 21. ↑

64. Article 18(4) of the ACHPR ↑

65. https://socialprotection-humanrights.org/inclusion-of-vulnerable-groups/as of 9^th of January 2022. ↑

66. s.4 Law of the Child Act 2019 ↑

67. See particularly Article 3of the ACRWC. ↑

68. Ibid, Article 10. ↑

69. Ibid, Article 12. ↑

70. Ibid, Article 13. ↑

71. Ibid, Article 23. ↑

72. Ibid, Article 15. ↑

73. Ibid, Article 24. See generally Hussain and Mashamba, Child Rights and the Law in East Africa, op. cit. ↑

74. https: / / www.who .int/ news-room / fact-sheets / detail / violence-against-childrenas of 9th of January 2022.

75. https: / / www.who .int/ news-room / fact-sheets / detail / violence-against-childrenas of 9th of January 2022 ↑

76. https: / /healthcommcapacity.org/resource-mobilization-important/as of 9^th of January 2022. ↑

77. https: / /healthcommcapacity.org/resource-mobilization-important/as of 9^th of January 2022. ↑

78. LSF: Training Manual on local resource mobilization to the paralegal organizations in Tanzania ↑

79. Ibid ↑

80. https://actionmclusion.org/leadership-diversity-change/what-is-organizational-sustamability/as of 10^th of January 2022. ↑

81. LSF: Training Manual on sustainability to Paralegal Organizations in Tanzania 2017, pg.2(unpublished). ↑

82. https://4circularity.com/why-sustainability-is-important-in-business/ as of 12^th January 2022 . ↑