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The court system during colonialism in Tanzania.

Introduction.
Pre-colonial Period
Administration of justice during this time depended heavily on the social economic and political organization of the society in Tanganyika. Two systems of administration of justice namely; The Centralized and the Non-Centralized systems could be identified at the time.
The Centralized Systems was applicable to societies with chiefs who played both roles of adjudicators and that of governors. In the Non-Centralized systems the entire community took part in the adjudication of disputes. However in both systems there were no formalization of procedure in adjudication, the customs of the respective societies prevailed in the process.

Colonial Period
The German Colonial Period.
The Land currently covering Tanzania Main Land, was then included in what was called the German East Africa, it was subjected to the German Colonial Rule from 1886 up to the end of the First Ward War, 1918. During this Germany Colonial Rule the Administration of Justice was basically racial; there were two systems, one for Natives and another for Non-Natives. The adjudication at this time was made by the Governor and other Administrative Officers. The law applicable in matters relating to Native was actually vague.
The Germans left behind a Three-tier Court System; one for Europeans, a second under the Local Authorities and the Military Commanders for the natives in effectively occupied areas and lastly, the Traditional Judicial Institutions in areas without effective German Control. The German Colonial Administration successfully attempted to impose upon the natives a Pan-Territorial Legal System for the first time in the area though the system was strange to them, discriminatory and brutally applied by law enforcers.

The British Colonial Rule.
Britain was given mandate to administer the then German East Africa (the area currently covering Tanzania Mainland inclusive) after Germany had lost the First Word War vide article 22 of the Covenant of the League of Nations, this part of the World was renamed Tanganyika Territory following the Tanganyika Order in Council of 1920. In 1945 however, Britain opted to rule the Land as a Trust Territory, and this was so until the 9th of December, 1961 when Tanganyika Territory became independent.

The British Rule introduced two separate structures of judicial hierarchies and this was done through the above cited Tanganyika Order in Council 1920. The two hierarchies constituted a limb which had the High Court and Subordinate Courts which operated according to English law on one hand,  and the limb which catered for matters where both disputants were natives applying customary law on the other. Despite several amendments to the law the administration of justice during British rule never did away with the racial discrimination.

The High Court was established under the Article 17(1) of the Tanganyika Order-in-Council, 1920. 24 Styled as His Majesty’s High Court of Tanganyika, the court was vested with unlimited jurisdiction, civil and criminal, over all persons and matters in the territory of Tanganyika. The scope of jurisdiction of the court could also be glared from the laws it could administer. In accordance with Article 17(2) of the Tanganyika Order-in-Council, 1920, the High Court could apply the Civil Procedure and the Penal Codes of India, other Applied Indian Acts, Tanganyika Ordinances, substance of the Common Law, Equity and statutes of General Application. The High Court could also apply customary law by virtue of Article 24 of the same Order-in-Council, which provided that: “In all cases civil and criminal, where natives are parties, the courts shall be guided by native law, provided it is not repugnant to morality and justice, or inconsistent with any Order-in-Council or any written law, Doctrines of Common Law, Equity and Statutes of General Application.”

The High Court was presided over by judges like any other of his Majesty’s High Courts established throughout the British Colonies. The Tanganyika Order-in-Council, 1920, did not make provisions for appeals arising from the High Court’s decisions. This was so because, indeed, the Order-in-Council was not concerned with just setting up courts but was a broader constitutional statute designed to set up the machinery of the colonial state of which courts were only a part. The question of details was left to subsequent statutes.

THE SUBORDINATE COURTS.
The Structure of subordinate Courts under the Courts Ordinance, 1920. Article 22(1) of the Order-in-Council provided for the constitution of the courts subordinate to the High Court and Courts of special jurisdiction. The Courts Ordinance, 1920, established three different courts subordinate to the High Court. Section 3 of the Ordinance read as follows: “3. There shall be and are hereby constituted courts subordinate to the High Court as follows, namely: (1) Courts of a Magistrate of District Political Officer to be called subordinate courts of the First Class. (2) Courts of an Assistant District Political Officer to be called subordinate courts of Second Class. (3) Courts of Assistant Political Officers of the Second Grade to be called subordinate courts of the Third Class.

In areas where the traditional system of courts existed there was no disruption of the indigenous society, the laws administered were known and accepted by the people and the Court Holders were familiar to the people, the system thus operated as a cushion to the impact of foreign domination. However, at this period, there was a combination of Executive and Judicial functions, this meant that majority of the people were condemned to executive justice in which impartiality and fair play could not be guaranteed.

COMPOSITION
Section 4 of the Ordinance governed the composition of subordinate courts. The section provided that in the absence of any special appointment every Magistrate of Political Officer was to be deemed to have been appointed to hold within his district a subordinate court of a class corresponding to his rank. The section also empowered the Governor to appoint any political officer to preside over a subordinate court above his rank.

JURISDICTION
The powers of subordinate courts were limited both territorially and in terms of subject matter. Under section 5, the geographical limitation of any subordinate court of the First, Second or Third Class was the district within which such court was situated. However, where an Assistant Political Officer was placed in charge of a sub-district or portion of a district. The subject matter jurisdiction of subordinate courts was governed by section 18 and the schedule in criminal and civil matters respectively. Section 18 vested, respectively, subordinate courts of the First, Second and Third Classes same jurisdiction and powers as those prescribed for a Magistrate of the First, Second and the Third Class under the Criminal Procedure Code. The Governor could exercise any of these powers in accordance with his powers under the Fourth Schedule of the Criminal Procedure Code. In terms of punishment, a court of First Class could pass a sentence of imprisonment for a term not exceeding 2 years, a fine not exceeding Florins 1,500 and whipping. A court of Second Class could give an imprisonment term not exceeding 12 months, a fine not exceeding Florins 750 and whipping not exceeding 12 strokes.
A court of Third Class could impose a fine not exceeding Florins 250, whipping up to 8 strokes, or as the High Court may direct and an imprisonment term of up to one month. Any imprisonment term for more than one month or a fine exceeding Florins 50 had to be confirmed by the District Political Officer. Section 19 provided for certain sentences and fines by subordinate courts to be confirmed by the High Court. Section 17(1) gave subordinate court’s jurisdiction to try all suits of civil nature. However, section 17(2) empowered the High Court to limit such jurisdiction.
Further, section 17(3) reserved for the High Court jurisdiction in suits for the subject matter of which no money value could be assigned. By virtue of the schedule, the ordinary jurisdiction (of subordinate courts) in suits and proceedings of civil nature wherein the subject matter in dispute was capable of being estimated at monetary value was limited to the value of 1,500 Florins, 500 Florins and250 Florins for subordinate courts of the First, Second and Third Classes, respectively.

APPEALS, REVISIONS, AND SUPERVISIONS
Section 22 provided for all appeals, references, revisions and similar matters from or in any proceedings before a subordinate court to lie and be heard and disposed of by the High Court. The High Court also enjoyed supervisory and review powers over subordinate courts by virtue of sections 9, 25, respectively. By virtue of section 26, the High Court could order transfer of cases from one subordinate court to another or to itself. Decisions of the High Court were appealable to his Majesty’s East Africa Court of Appeal pursuant to the Court of Appeal for Eastern Africa Order-in-Council, 1921.
Inappropriate cases, appeals could lie to the Privy Council.27From the structure of the subordinate courts, one fact is clear, that officers who were purely political performed judicial duties. It seems that the fusion of the judicial and executive functions was not accidental, and this survived until independence when complete separation of the judiciary and the executive was achieved.

THE COURT STRUCTURE UNDER THE COURTS ORDINANCE, 1920
(i)                 Although each of these subordinate courts had different territorial and pecuniary jurisdiction, none of them had appellate jurisdiction over the other. Appeals from either of these courts lay to the High Court and then, except for Native Courts, to the Court of Appeal for Eastern Africa and finally to the Privy Council.
(ii)               Appeals from Native Courts of the Second Class had to go to the Native Court of the First Class and then to the subordinate court (1st or 2nd class) before it went to the High Court. This was provided for by the Native Courts Proclamation, 1925.

THE STRUCTURE OF SUBORDINATE COURTSUNDER THE COURTS ORDINANCE, 1930
New Set of Subordinate Courts.
In 1930, the Subordinate Courts Ordinance, 1930 (No. 13 of 1930), was enacted to repeal and replace the Courts Ordinance of 1920. The new ordinance established a new set of courts subordinate to the High Court. These were enumerated by section 3 as follows:“(a) The Court of Provincial Commissioner, to be called the court of the Provincial Commissioner for the Province within which the Commissioner is appointed Every such court shall be a subordinate court of the First Class; (b) The Court of Resident Magistrate, a District Officer or an Administrative Officer in charge of a district, to be called a subordinate court of the First Class; (c) The Court of an Assistant District Officer, to be called a subordinate court of the Second Class; (d) The Court of an Administrative Officer of cadet rank, to be called a subordinate court of the Third Class.”
COMPOSITION
The 1930 Ordinance did not make any radical change to the existing court system. The courts were still presided over by administrative (Executive) Officers as did their predecessors. The only notable development was the introduction of the court of a Resident Magistrate. This marked the beginning of the professionalization of the Judiciary in Tanganyika.
JURISDICTION
Section 11 of the Ordinance gave the subordinate courts criminal jurisdiction to try cases in accordance with the Criminal Procedure Code. Section 12 vested the courts with jurisdiction to try all cases of a civil nature. Section 13 required the courts in the exercise of their civil jurisdiction to follow the principles of procedure laid down in the Civil Procedure Code so far as the same could be applicable and suitable.
Pecuniary jurisdiction of all subordinate courts was enhanced to Shs. 4,000 in case of subordinate courts of the First Class, Shs. 2,000 for subordinate courts of the Second Class and Shs. 1,000 for subordinate courts of the Third Class.28

APPEALS AND REVISIONS
The right of appeal to High Court was expressly provided for in criminal matters. However, no right of appeal on the civil side was given from any of the courts established under the 1930 ordinance. This lacuna led to the passing of the Subordinate Courts (Civil Appeal) Ordinance, 1935 (No. 38 of 1935).

REFERENCES
Native Courts Proclamation, 1925
Subordinate Courts Ordinance, 1930
Subordinate Courts (Civil Appeal) Ordinance, 1935 (No. 38 of 1935).
Tanganyika Order-in-Council, 1920

BOOKS
Victor, T. History of the Court System During Colonial Era
Yale Law Journal, (1907) The Judicial System of the British Colonies.

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