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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