MUHTASARI WA SHERIA MBALIMBALI ZA TANZANIA

MUHTASARI WA SHERIA MBALIMBALI ZA TANZANIA

KATIBA YA JAMHURI YA MUUNGANO WA TANZANIA
Katiba ilianza kutumika tarehe 26 April 1977
KUJIUZULU KWA VIONGOZI WA KIKATIBA
IBARA YA 149
a] RAISI WA JAMHURI YA MUUNGANO-Taarifa ya kujiuzuru ataiwasilisha kwa spika

b] SPIKA/NAIBU WAKE –Taarifa hiyo ataiwasilisha kwenye Bunge la Jamhuri

c] MBUNGE-Taarifa hiyo ataiwasilisha kwa Spika

d] Kama mtu ameteuliwa/ amechaguliwa atawasilisha kwa mtu aliyemteua/aliyemchagua e.g anaweza kuwa mtu au kikao

PROCEDURE-Taarifa ya kujiuzulu ataiwasilisha kwa kutoa taarifa ya maandishi na kutiliwa sahihi na mkono wake.

WATU AMBAO KIKATIBA MADARAKA YAO HAYAWEZI KUKAIMIWA
Ibara ya 150-Waziri,Naibu Waziri,Jaji wa Mahakama ya Rufani,Jaji wa Mahakama Kuu,Mjumbe wa Tume ya Kudumu ya Uchunguzi au Mjumbe wa Tume ya Uchaguzi.
MAMBO YA MUUNGANO
1. Katiba ya Tanzania na Serikali ya Jamhuri ya Muungano wa Tanzania
2. Mambo ya nchi za nje
3. Ulinzi na Usalama
4. Polisi
5. Mamlaka juu ya mambo yanahusika na utangazaji wa hali ya hatari
6. Uraia
7. Uhamiaji
8. Mikopo na biashara ya nchi za nje
9. Utumishi katika serikali ya Jamhuri ya Muungano
10. Kodi ya mapato ,forodha na ushuru unaosimamiwa na idara ya forodha.
11. Bandari,usafiri wa anga,Posta na Simu
12. Sarafu na fedha kwa ajili ya Malipo yote halali,Mabenki na shughuli zote za mabenki,Fedha za kigeni na usimamizi wa fedha za kigeni.
13. Leseni ya viwanda na Takwimu
14. Maliasili ya Mafuta na gesi.
15. Baraza la Mitihani la Taifa
16. Usafiri na usafirishaji wa anga
18. Utafiti
19. Takwimu
20. Mahakama ya Rufani ya Jamhuri ya Muungano wa Tanzania
21. Uandikishaji wa vyama vya siasa.

MAHAKAMA MAALUM YA KATIBA YA JAMHURI YA MUUNGANO
IBARA YA 126.
JURISDICTION-Kusikiliza shauri lililoletwa mbele yake na kutoa uamuzi wa usuluhishi juu ya suala lolote linalohusika na Tafsiri ya Katiba hii
UWEZO WA KUFUNGUA SHAURI-Ni serikali ya Muungano na Serikali ya Mapinduzi Zanzibar tu ndizo zina uwezo wa kufungua shauri

-Mahakama ya Katiba haitakuwa na uwezo wa kubadili maamuzi ya Mahakama ya Rufaa.

-RUFAA-Hakuna haki ya kukata Rufaa dhidi ya Uamzi wa Mahakama ya Katiba

-Kila upande utachagua nusu ya wajumbe na wajumbe hao watatakiwa kuwa majaji au wenye uwezo wa kufanya kazi ya Jaji.

-IBARA YA 117[2]Mahakama ya Rufaa haitakuwa na Uwezo wa kushughulikia ubishi kati ya serikali mbili juu ya katiba hii
QUORAM-Lazima wajumbe wote wawepo

MAHAKAMA YA RUFANI YA JAMHURI YA MUUNGANO.[IBARA YA 116]
Ina uwezo wa kusikiliza na kutoa uamzi juu ya kila Rufaa iliyoletwa mbele yake kutoka Mahakama kuu au Mahakama ya Hakimu
-FULL BENCH-Majaji watano
-Kusikiliza application-JAJI MMOJA
-Kusikiliza Appeal-Majaji watatu

2. THE TRANSFER OF PRISONERS ACT 2004
The Act provides for the Transfer of Prisoners between the URT and other countries for the purposes of enforcing sentences of imprisonment passed upon them.

TARGET-Tanzania Prisoners serving their sentences in a foreign country or a non Tanzanian serving his sentences for offences committed in the URT

TRANSFER OF PRISONERS TO URT
There must be an agreement between Tanzania and that country and every request must be in writing.

WHO MAY REQUEST FOR THE TRANSFER
A] A prisoner himself-but the country where he is to be taken must consent to receive him
B] His representative –but the country where he is to be taken must consent to receive him

C] The country concerned may apply that a particular prisoner be transferred to its jurisdiction

However the Minister concerned has to ask the Attorney General if the prisoner request to serve his sentence in the URT

The Minister concerned has the right to query for information whether
-the Prisoner applied himself and consented for the transfer proposed by the government or his relatives.
If the Prisoner is a resident of Zanzibar, the Minister in Zanzibar has to be consulted first
-If the Prisoner has 6 months left to finish his sentence then he is not eligible, unless there are special circumstances.
-If the Minister wants that a particular prisoner be transferred to Tanzania he issues a warrant
-If the Minister refuses to allow a prisoner to serve his sentence in the URT,he may appeal to the Court of LAW
-Even insane are eligible, but the A.G has to consent.
TRANSFER OF PRISONERS FROM THE URT
-There must be an agreement
-The principal commissioner of prisoners shall cause to be foreign prisoners to be informed of the agreement.
APPLICATION
The prisoner has to apply to the Minister through the Principal Commissioner of Prisons to be transferred to his own country
-The president has the power to pardon him of his sentence even if he is in his own country and the Minister has the duty to inform that country of the same
-The cost of the transfer shall be borne by URT and that other country
-But if he is a Tanzanian citizen, the cost has to be borne by himself or his agent or in exceptional circumstances, he may not

PRISONERS IN TRANSIT
The minister may to refuse a permit for transit where
-the prisoner is a citizen of URT
-The offence he has been convicted is not an offence under the laws of URT
-Prisoner is also wanted in Tanzania for some offences



THE INQUEST ACT, 1980
Inquest means an inquiry held by a coroner under this Act into the death of any person.
The minister may, after consultation with the principal judge by order establish a coroner’s Court
-Where a coroners court is not established in a particular area,inquest in that area shall be conducted by the District and Resident Magistrates

FUNCTION OF THE CORONER’S COURT
To inquire into the death of any person who
1. Is suspected to have died violently or of unnatural cause
2. Dies a sudden death the cause of which is unknown
3Dies or is found dead in such place and in such circumstances as to require an inquest in pursuance of the provision of any written law

QUALIFICATION FOR AN APPOINTMENT
1. Public officers or retired public officers who are qualified shall be appointed by the principal judge after consultation with the appropriate authority
2. Principal judge, after consultation with the chief Justice appoint a Magistrate

POWERS AND DUTIES OF A CORONER
1. May proceed suo mottu upon the receipt of the information
2. Upon the opinion of the appropriate authority, the coroner can be directed to conduct an inquiry.

POWER TO DISPENSE WITH AN INQUEST
1. Where there is a clear medical report on the matter
2. Where there is any other evidence which is clear
That there was no problem with the death of the deceased

POSTPONEMENT AND ADJOURNMENT OF INQUEST
1. Where there are proceedings in court concerning the same matter and person are about to be brought in court concerning the same matter.
-But on conclusion of the case he may proceed to investigate where he sees that there are some issues of public interest, but if he discovers that there is no public benefit, he should certify and inform the DPP
-If the inquest is conducted after the conclusion of the case, it shall not contain fact which charges a person with an offence

POWER TO ORDER EXHUMATION
The coroner has power to order exhumation if the death of the person attracts inquest. He also has power to order the conduct of post mortem examination

HOLDING OF INQUEST

-Can be conducted if a person is dead or a body is found of a person who died under mysterious circumstances.
--The one who finds it is obliged to inform the coroner or the police officer or an appropriate authority
-Upon receiving that information, the police officer or that appropriate authority shall inform the coroner

PRELIMINARY EXAMINATION OF THE BODY
When a dead body is brought to the hospital, a medical practitioner authorized by his in charge shall make external examination of it and make a report to the Coroner who if he thinks fit may order post mortem examination and the same should be reported to the coroner

INQUEST OF SUDDEN OR VIOLENT DEATH
May be conducted by the coroner by viewing the body or not

WITNESSES
The CORONER HAS THE POWER TO CALL WITNESSES and MAY CONDUCT THE CASE WITH THE AID OF ASSESSORS
*Even if the death occurred outside the URT, still the Coroner has jurisdiction to query.

EXECUTION AND DEATH IN PRISONS
Where the offender is executed, within 24 hrs,the coroner must inquire into and ascertain the identity of the body and the cause of death and whether the judgment was duly executed.
-whenever a person dies in custody, the coroner must soon hold an inquest with not less than 3 assessors
-DPP has power to order an inquest be conducted by the coroner
THE AIM OF INQUEST
-To ascertain who the deceased was
-How, When and where he came by his death
-whether the circumstances of his death discloses an offence
*The coroner is not allowed to express his opinion more than the above three or shows that there is a civil liability.

VIEWING THE BODY
Shall be viewed by a coroner, or he shall satisfy himself that the body has been viewed by the police officer, or a medical practitioner or any trustworthy person before the inquest
-evidence shall be adduced by reading statements recorded by police officers or other public officials and no personal appearance is allowed

APPEARANCE OF WITNESSESS
Can be made at the request of an interested party or by coroner’s motion and shall have powers of the magistrate r.g issuing of summons

EXAMINATION OF WITNESSES
Is allowed at the request of an interested party to cross examine them IN
PERSON OR THROUGH AN ADVOCATE

DEATH IN THE COURSE OF EMPLOYMENT
-The member of a trade union
-the employer
-any appointee of the ministry of labour

MODE OF EXAMINATION
The coroner--------the person assisting the witness
------no one is allowed to address the coroner as to the fact, but with leave of the it,he may address the law.

CONCLUSION OF AN INQUEST
-State whether an offence is disclosed but he should name no one in connection with an offence release the witness and send a report to the DPP
-He shall deliver a report to the Registrar of the High Court

POWER OF THE HIGH COURT
1. it can reopen the inquest for taking further evidence
2. Quashing the findings and substituting it with another lawful finding according to the evidence.
3. Quash an inquest without ordering anything

THE EXECUTIVE AGENCIES ACT, 30 1977
-They are semi autonomous
The executive agencies have power to enter into contracts in their own name-ss 3
-capable of suing or sue in their own name in contract,
-all laws applicable to legal proceedings shall apply save for the government proceeding act
-Have power in their own name to –borrow
- hold or dispose movable and immovable property with the approval of the permanent secretary





THE NGO ACT, 2002
-Each NGO shall be registered by the Registrar; however, if the law requires it to be registered under other laws, it has to.
-However, if it is registered or established under any other written law, it has to apply for a certificate of compliance from the Registrar under this Act, and it shall be issued if the NGO complied with the requirements of this Act and shall have similar effect as a certificate of Registration issued under this Act.
-Certificate of compliance requires no fee
-Application for registration shall be submitted by one or more persons being founder members and shall be accompanied by

a] A copy of the constitution of the NGO
b] Minutes containing full names and signatures of founding members
c] Personal particulars of office bearers
d] Address and physical location of the Head office of the NGO
e] Application fee
f] Any other particulars as may be required

-Upon receiving the application, the Registrar shall refer it to the Board within one month, and within two month, the Board shall consider and make determinations of the matter
-The Board may approve or disapprove the application

GROUNDS FOR REFUSAL
1. Its activities are not for public interest or contrary to any written law
2. The NGO has given false or misleading information
3. on recommendation of the Council
The applicant has to be informed of the refusal within 21 days



APPEAL
If the applicant is not satisfied with the Board’s decision it may appeal to the Minister.
REVIEW
The applicant may apply to the Board for review of its decision
-If the applicant does not wish to apply to the Board for review, the applicant may appeal to the Minister against the decision of the Board and the Minister shall make decision within 2 months and he may

a] Uphold, quash or vary the decision of the Board
b] Require the Board to revise or review its decision
c] Require the Board to inquire into specific information from the applicant and make further consideration of the applicant

GROUNDS FOR SUSPENSION OR CANCELLATION
1. If it has not complied with the Certificate’s condition
2. If it has ceased to exist
3. It acted unconstitutional
4. On council’s recommendation
PROCEDURE FOR CANCELLATION OR SUSPENSION
Registrar serves a notice to the applicant prescribing the default
-The applicant upon receiving the Notice reply in writing to the Registrar regarding remedy or rectification of the default
-On failure to rectify or reply, the Registrar shall submit to the Board a motion for suspension or cancellation and if the Board is satisfied it may direct for suspension
REVIEW-To the Board
APPEAL-To the Minister
LEVEL OF REGISTRATION
1. DISTRICT-If the NGO intends to operate at that level and it shall be registered at that District by an officer in that District
2. REGION-If the NGO intends to operate at Regional level, it shall be registered at that Region by an officer in that Region
3. MORE THAN ONE REGION/INTERNATIONAL NGO.
Shall be registered at National level

THE PAROLE BOARD ACT NO 25 OF 1994
An Act to establish the Parole Boards, to provide for the Procedure to release prisoners on parole and other matter related to the parole system
ELIGIBILITY AND CONDITION
A prisoner who is serving a sentence of imprisonment for a period of 8 years or more shall be eligible for Parole if
A] He is not serving a life sentence
B] He is not serving a sentence for the offence of armed robbery, dealing in dangerous drug or defilement
C] His sentence has not otherwise been commuted
D] He has served his sentence for 4 yrs r one third of the sentence, whichever is greater
E] He has good behavior in jail
-If a prisoner fails to comply with Parole condition, he commits an offence
-if he commit an offence under this law or ANY OTHER LAW if he is convicted of an offence
*Be called to serve the remainder of the sentence for which he was released on parole
*Serve the Sentence for offence he is convicted
WHO CAN MAKE AN APPLICATION FOR PAROLE
1. An officer in charge of the Prison if he is satisfied that the Prisoner meets the condition and he proposes to the Regional Parole Board that the Prisoner be Considered for release on Parole
2. A prisoner himself may make an application to the Board if he thinks that he meets the criteria
The Regional Parole Board if it is satisfied that the Prisoner is eligible, it shall forward that prisoner’s name to the National Parole Board for further scrutiny and recommendation and advice to the Minister
-The Minister may accept or refuse

TANZANIA COMMUNICATION REGULATORY AUTHORITY ACT 2003
It regulates telecommunication, postal services, broadcasting, management of radio spectrum, covering electronic technology and other Information Communication Technology and provide for its operation
-The Authority is a body corporate with power to sue or be sued, enter into contracts, acquire properties etc
-Even though the authority is a body corporate capable of suing or be sued, the Attorney General has the Power to intervene or join in any proceedings and the Government proceeding Act shall apply accordingly.
It promotes competition, eco
nomic efficiency; protect consumers, availability of regulated services, solving complaints or disputes

THE TAX REVENUE APPEALS ACT, 2000
The Act establishes the TAX REVENUE APPEALS BOARD and THE TAX REVENUE APPEALS TRIBUNAL
THE BOARD
COMPOSITION-Chairman-Two Vice Chairmen-Four other Members
JURISDICTION-The Board shall have jurisdiction in all proceedings of a civil nature in respect of disputes arising from revenue laws administered by TRA
PROCEDURE IN INSITUTING THE CASE
1] Filing of the Notice of Objection by any person aggrieved the COMMISSIONER’S ASSESSMENT
-But the person objecting has to pay the amount of tax that is not in dispute or one third of it whichever is greater pending the determination of the dispute
-if the law is uncertain or the facts are uncertain, or there is much hardship or consideration of equity or impossibility or undue difficulty or expense of recovery of tax the commissioner may allow the person to pay lesser tax or no tax at all
-The NOTICE MUST CONTAIN GROUNDS for the objection and MUST BE FILED WITHIN THIRTY DAYS after the receipt of the assessment
EXCEPTION
If one failed to file the notice of objection in time he may apply to the Commissioner under the following excuses to file it out of time
-If a person is outside the URT
-Sickness
-Or other reasonable cause

2] If the Commissioner refuses to admit the notice of objection, the aggrieved party may appeal to the Board but the taxes have to be paid as aforesaid
-The decision of the Board shall be final

3]. Where the Commissioner General receives a notice of objection he shall call for, hear, or receive any evidence relevant to the assessment and he can amend the objection or refuse to amend it
-Where the Commissioner does not reply to the objection within six months he will be deemed to have conceded to the objection

POWERS OF THE BOARD AND THE TRIBUNAL
The Board shall have power to take evidence on oath, resolve any complaint or appeal by mediation, conciliation or arbitration; it can issue warrants of arrest for failure to comply with summons, order payment of cost, dismiss any matter before it and adjourn the proceedings before it

APPEALS AFFECTING TWO OR MORE PERSONS
If the decision of the Commissioner General affects or is likely to affect two or more persons they must be served with documents and shall have the right to appear on the hearing of the appeal as if they were parties thereto. If the Board thinks that any other person be joined it may do so.

OPINION OF MEMBERS
The chairman and the vice Chairman are not bound by their opinion but he shall give reason for so doing.

ENFORCEMENT OF THE DECISION OF THE BOARD OR TRIBUNAL
Any decree or Order of the Board or Tribunal given in the exercise of its jurisdiction shall be enforceable and executed as if it were a decree or order issued by a court of law.

APPEAL AND STAY OF EXECUTION
An appeal shall not operate as a bar for execution of any decree or order of the Board or Tribunal.

APPEAL
-Lies to the Court of Appeal on matters of laws only and the provision of the Appellate Jurisdiction Act shall apply

PRESUMPTIONS
1. COMMORIENTES
In all cases where two or more persons have died in such circumstances rendering it uncertain which one survived the other, such death shall for all purposes affecting the title to property, be presumed to have occurred in the order of seniority.
2. PRESUMPTION OF DEATH
If the person is not heard of by those who would be likely to have done so, there is a provisional presumption that he is dead. The presumption becomes persuasive is unheard of for 5yrs.
3. PRESUMPTION OF LEGITIMACY
The childe is presumed legitimate on proof of birth or conception in lawful wedlock, but it does not apply under the following circumstances
-if they are under separation
-in cases of impotence
-Non access
-blood group
-color or other features
-admission by the wife
4. PRESUMPTION OF FORMAL VALIDITY OF MARRIAGE
Where there is evidence of a ceremony of marriage which, on due compliance with the requisite formalities, is capable of producing a valid marriage by local laws, the validity of marriage would be presumed even though it can not be proved that all the formalities were followed
4. COHABITATION AND REPUTE
There is a persuasive presumption that parties are validly married where they are proved to have lived together, holding themselves out as man and wife.
4. RES IPSA LOQUITUR
5. PRESUMPTION OF INNOCENCE

THE DIPLOMATIC AND CONSULAR IMMUNITIES AND PRIVILEDGE ACT CAP 356
The provisions of the Vienna Convention on diplomatic Relations and the Vienna Convention on Consular relation shall have the force of law in the URT
-Family of head of mission /diplomatic staff/domestic staff are immune
-Immunity is for suits/legal process/inviolability of official archives
--Premises of a consular post of a foreign sovereign power shall not be entered by a police officer or other person acting in the execution of any warrant or other legal process except with the consent of the consular officer in charge or if that consent is withheld or cannot be obtained, with the consent of the minister
ENTRY
Entry in the consular premises is prohibited save where
-There is a permit or legal authority for fire extinguishing
-a police officer having reasonable cause to believe that a crime involving violence is being committed
-a person is entitled to entry by virtue of any easement, contract or other private right.
*this does not apply to any consular post being under charge of a Tanzania or is not a national of the country by which the post is maintained
They are exempt from tax

WAIVER OF IMMUNITY
Can be done by the consular himself or head of mission or the government which appointed them
-Immunity of any staff of international organizations can be removed by a
minister

QN; what does the following phrases mean-Transfer of shares and transmission of shares
TRANSMISSION OF SHARES-between the deceased or on being bankruptcy, it is usually by operation of the law.
TRANSFER OF SHARES-between leaving person

QN; which laws govern juvenile offenders
-Children and Young Offenders Act
-Corporal Punishment Act
-The evidence Act
-Criminal Procedure Act
-Prison Act

QN;Which laws govern fugitive offenders
-The Extradition Act and the Fugitive offenders [pursuit] Act.
There must be an extradition treaty between the countries concerned
The offence shall not be political
The procedures for returning the offender home are as follows
*The charge must be prepared and filed

*The High Court issues Summons for arrest

QN; involving the district Court and a party want to appeal to the High Court.
-The Appeal to the District Court shall be by way of petition-20[3] and shall be filed within 30 days
IN CRIMINAL CASES
-Can be done by a convicted person or if the person is acquitted by the complainant or DPP
IN CIVIL CASES
-any party
Section 25 of the Magistrate Court Act and section 23
-The Appeal is by way of petition
DOCUMENTS
In criminal cases
-petition
-judgment or order
-proceedings
QN; what happens when a person charged of murder pleads
-self defence=manslaughter
-provocation=manslaughter
-mistake of fact=manslaughter
-Insanity=section 219[2] of CPA
QN; what laws were amended by the sexual offences [special provisions] Act, 1998
-Penal Code
-Minimum sentences Act
-Criminal procedure Act
-Evidence Act
-Children and Young offenders Ordinance
in the penal code there is an addition of a definition of rape, in the minimum sentences Act there is an addition of 30 years imprisonment

THE EXTRADITION ACT CAP 368
Fugitive criminal-means any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or suspected of being in Tanzania
For the Act to apply there must be an agreement of that other country with Tanzania
REQUEST FOR SURRENDER
Shall be made to the Minister by a diplomatic representative or consular officer of that country and the minister may, by order signify to a magistrate that a requisition has been made and require a magistrate to issue a warrant of arrest and detention but if the offence is of a political nature the minister may refuse
The magistrate may issue the warrant only if there is evidence to justify the issue of warrant or on any information or complaint and any evidence
-if the magistrate issues a warrant without the order of the minister, he has to sent it to him to decide
-the prisoner is free to apply for habeas corpus
-every warrant of arrest issued by a foreign court must be endorsed by a court in Tanzania
RESTRICTION
No extradition for political offences
-if he has a case in Tanzania or is serving a sentence in Tanzania
-If the offence is of a political nature the magistrate must refer the proceedings to the minister and adjourn the case pending the minister’s decision if he decline or not
TAKING EVIDENCE FOR CRIMINAL TRIALS IN OTHER COUNTRIES
Minister may by order require a magistrate to take evidence for the purpose of any criminal matter pending in any court or tribunal in any other country and may be taken in the presence or absence of the accused
EXTRDITION CRIMES
Murder and the related offences, injury to person amounting to homicide, abduction, rape and similar offences, narcotics and dangerous drugs, damage to property, falsification of currency and similar offences, forgery and similar offences, misappropriation ,fraud and similar offences, piracy and similar offences, slave dealings

THE FUGITIVE OFFENDERS [PURSUIT ACT] CHAPTER 57
An act to make provision for enabling the police of certain contiguous countries to be authorized to pursue within the United Republic offenders fugitive from such countries
-extradition crime means those prescribed under the extradition Act.
-fugitive offender means any person accused or convicted of an extradition crime committed within the jurisdiction of any contiguous country to which this Act applies
-First that other country must have reciprocal provision for it to exercise such a right
-When such police officers of a foreign country arrest the person, they shall deliver him to the nearest police post who shall as soon as possible bring him before the magistrate
-if the magistrate is satisfied he may order that he be returned to his country from which he is a fugitive
-the Act goes together with the extradition Act
-the fugitive offender has the right of appeal/habeas corpus
-minister may order that he be discharged
THE AFFILIATION ACT CAP 278
The Act provides for maintenance of children born out of wedlock
-magistrate means a district magistrate
APPLICATION
HOW IS MADE
-On oath and served on a person alleged to be the father of the child and if an application is made before the birth of the child a woman has to make a deposition upon oath stating who the father of the child is
WHEN IS MADE
-before the child is born
-within 12 months after the birth of the child

THE REGISTRATION OF DOCUMENTS ACT CAP 117
-No document of which the registration is compulsory shall be effectual to pass any land or any interest therein or render such land liable as a security for the payment of money or be received as evidence of any dealing affecting such land unless and until it has been registered
-the registrar has the power to refuse to register a document presented y a native if he is satisfied that he didn’t understand the effect of it or its terms appear to be harsh and unconscionable
-The REGISTRAR shall give reasons for refusal to register a document
APPEAL
-Where a Registrar refuses to register a document a person aggrieved may appeal within 30 days to the High Court in suit for a decree directing the document to be registered in the appropriate register
CAVEAT
-Intends to inform the Registrar that he must be served of any document presented for registration executed by any person
-caveat shall be effective for only one year
WITHDRAWAL OF CAVEAT
Can be withdrawn by
1. The maker of it
2. Application to the Registrar by the one against whom the caveat was lodged if it was unnecessary or the claim on it cannot be sustained
APPEAL ON WITHDRAWAL OF CAVEAT
-To the High Court within 30 days
-damages can be recovered for unreasonable caveat
POWER OF THE HIGH COURT TO CANCEL REGISTRATION
-If it is a forgery
-if it contravenes this Act
-or where the instrument is rectified or set aside by a Competent Court

QN. What is the procedure in applying for prerogative Orders
APPLICABLE LAWS
1. LAW REFORM [FATAL ACCIDENTS AND MISCELLEANOUS PROVISIONS] ACT CAP 310
-Section 17 [2] In any case where the High Court would have jurisdiction to issue prerogative Orders it shall do so.
-CPC section 68 and 95
-Any person aggrieved by the decision of the High Court may appeal to The Court of Appeal
The following are the prerogative orders
1] Certiorari
2] Mandamus
3] Prohibition
4] Habeas Corpus

THE BASIC RIGHTS AND DUTIES ENFORCEMENT ACT No 33 OF 1994
The Act provides for the procedures for the enforcement of constitutional basic rights, duties and related matters.

TERRITORIAL JURISDICTION- The Act applies to Tanzania Mainland and Zanzibar

APPLICATION OF THE ACT =The Act applies only for the purposes of enforcing the provisions of the basic rights and duties set out in part III of Chapter 1 of the Constitution of the United Republic of Tanzania from article 12 up to 29.However the application of the Act is without prejudice to ant other action with respect to the same matter that is available.
COURT-Only the High Court has original jurisdiction

MODE OF MAKING THE APPLICATION-The application to the court has to be made by petition to the High Court by originating summons.

CONTENTS OF THE PETITION
I. Name of the Court
ii.Name and address of the Petitioner
iii.Name and address of the Respondent
iv.Grounds
V.Specific part of the constitution which is the basis of the Application
Vi.Particulars of facts
Vii.Redress sought

# Future breaches such as a bill proposed in parliament cannot be petitioned against until it is a law
# One cannot ask the court to pass prerogative orders under this Act
MATTERS ARISING OUT OF SUBORDINATE COURT
-If the matter arises out of Primary Court and it has touched the matters of basic rights and duties, the PCM has to refer it to the RM who shall examine it to see if it is a case fit for reference to the High Court.
-District Courts and Resident Magistrate Courts have the authority to refer the matter directly to the High Court.

COMPOSITION OF THE HIGH- 3 Judges for hearing the Petition
-1 Judge for hearing an Application

POWER OF THE HIGH COURT
Where any law is or action is made contrary to the constitution, the High Court shall not declare the law or action invalid or unconstitutional and in appropriate cases it may allow Parliament or other legislative authority or the government or other authority concerned as the case may be ,to correct any defect in the impugned law or action within a specified period, subject to conditions as may be specified by it, and the law or action impugned shall, until the correction is made or the expiry of the time limit set by the High Court, whichever is shorter, be deemed to be valid.

APPEAL-To the Court of Appeal of Tanzania’


THE GOVERNMENT PROCEEDINGS ACT CAP5 R.E 2002
The Act provides for the rights and liabilities of the government in civil matters, for the procedure in civil proceedings by or against the government and for the related matters.

PROCEDURES OF INSTITUTING SUITS AGAINST THE GOVERNMENT

[a].NOTICE OF INTENTION TO SUE
A ninety days notice of the intention to sue has to be submitted to the government must be issued to the Government Minister, Department or officer concerned specifying the basis of the claim and a COPY of the Notice must be send to the ATTORNEY GENERAL

[b]INSTITUTION OF SUITS
After the expiry of the Notice, all suits against the government shall be brought against the ATTORNEY GENERAL and a copy of the Plaint shall be served upon the Government Ministry, Department or Officer that is alleged to have committed the civil wrong on which the civil suit is based.

COURT-All suits against the government shall be instituted in the High Court of Tanzania in the area where the claim arose.

TRANSFER OF PROCEEDINGS FROM SUBORDINATE COURT TO HIGH COURT
Where the government has instituted a suit in a magistrate court, and the defendant satisfies the court that he has a claim against the government and he has obtained a consent to pursue his claim against the government, and the claim may be pursued by way of set off or counter claim in the proceedings instituted by the government, the magistrate’s court shall transfer such proceedings to the High Court.

JUDGEMENTS AND EXECUTION
SATISFACTION OF ORDERS AGAINST THE GOVERNMENT

ISSUANCE OF A CERTIFICATE BY THE OFFICER OF THE COURT
In proceedings against the government, where any order is made by a court in favour of a person against the government of officer of the government the proper officer of the court[Registrar],on application made by that person or any other in his behalf issue a certificate containing the particulars of the order
-If the certificate provides for the payment of money by way of damages or other relief or cost, the certificate shall state the amount so payable and the Permanent Secretary to the Treasury or such other government accounting Officer as may be appropriate, pay the person entitled or his advocate the amount appearing by the certificate to be due to him together with interest
-Provided that no execution, attachment or similar process shall be issued to enforce payment by the government of any money or cost.

Read more ...

SAYING “KAFFIR” IS A PUNISHABLE OFFENCE IN SOUTH AFRICA

Extracts from legal and court papers below:

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO: CA 165/2008
In the matter between
MIETA M RYAN Appellant

VS
RODWIN PETRUS Respondent
JUDGMENT
PICKERING J:
I turn then to consider the words uttered by defendant. It will be convenient to commence with the use of the highly offensive word “kaffir”.
As far back as 1976 James JP in Ciliza v Minister of Police and Another 1976 (4) SA 243 (N), after having referred to various dictionary definitions of the word, stated at 247H:
“It follows that in my opinion one of the recognised meanings which the word ‘Kaffir’ now bears in South Africa is that such a person is uncivilised, uncouth and coarse and that if one calls a person a ‘Kaffir’ this will in certain circumstances constitute an iniuria.”
In that matter a white policeman had used the word in addressing the plaintiff, who was a black man. Plaintiff was awarded the sum of R150,00 as damages.
In Mbatha v Van Staden 1982 (2) SA 260 (N) the plaintiff, a black man, sued the defendant, a white man, for iniuria after the defendant had repeatedly called him a “kaffir” and assaulted him. At 262 H – 263A Didcott J stated as follows:
“The tirade’s worst feature was the use of the epithet ‘kaffer’. Such alone can amount today to an actionable wrong, according to the decision of the Full Bench here in Ciliza v Minister of Police and Another 1976 (4) SA 243 (N). Everything depends, of course, on the context in which the word is uttered. Settings which make it innocuous can no doubt be imagined. Ordinarily, however, that is not the case when, in South Africa nowadays, a Black man or woman is called a ‘kaffer’ by somebody of another race. Then, as a rule, the term is a derogatory and contemptuous one. With much the same ring as the word ‘nigger’ in the United States, it disparages the Black race and the person concerned as a member of that race. It is deeply offensive to blacks. Just about everyone knows that by now. The intention to offend can therefore be taken for granted, on most occasions at any rate.”
The plaintiff was awarded the sum of R2 000,00 as damages.

In S v Puluza 1983 (2) P.H. H150 (E) van Rensburg J (with whom Jennett AJ concurred) referred with approval to the Ciliza andMbatha cases, supra and added:
“(W)hen a black man is called a ‘kaffir’ by somebody of another race, as a rule the term is one which is disparaging, derogatory and contemptuous and causes humiliation.”
See too: S v Steenberg 1999 (1) SACR 594 (N).
In the present case neither party is a black African. It may well be that if the word is uttered pejoratively by a white person to a black person the amount of damages which would be awarded to compensate the latter for the affront would be greater than when the recipient of the insult was not a black African, because of the racial overtones involved. It is, however, not necessary to determine this issue. In the present case it is abundantly clear from the context in which the word was used that defendant intended to give offence and used the word in its injurious sense of uncivilised, uncouth and coarse. As was stated in Ciliza’s case, supra at 248H such a use of the word constitutes an unlawful aggression upon appellant’s dignity.
*** **** ****
The actio injuriarum is a civil claim where a wronged party sues for monetary compensation.
Race based insults that are directed at individuals have traditionally been dealt with under this head. For example, compensation was given to a victim for derogatory use of the word ‘kaffir’ in Mbatha v Van Staden.
Racist insults can also be criminal and result in criminal penalties and a criminal record. ‘[P]rovided the required intention is proved, … calling a person a ‘kaffir’ is a violation of that person’s dignitas and constitutes the crime of crimen injuria’.

In S v Steenberg the view was expressed that the decision to criminalise the intentional degrading use of the word ‘kaffir’ is ‘today under the newdispensation even more valid’ than it was under apartheid.
While derogatory language is reprehensible and reflects appallingly on the perpetrator rather than the victim, it seems thatthe more disempowered a group, the more its members need legalprotection. 
The Judge compared the case with S v Steenberg where a white accused insulted a black complainant by calling him a ‘kaffir’ and was sentenced to R1 000 or six months conditionally suspended for five years.
The Steenberg case was regarded as more serious because:
‘Steenberg was of a previously advantaged class who gratuitously without any kind of provocation from the complainant, delivered a stinging insult to a man of previously disadvantaged class who was bound to feel severely hurt by it. There is no reason to doubt that if the suspended sentence were to be put into operation, Steenkamp was in a position to pay the fine and escape the alternative prison
sentence… 
But the delivery of insults often says more about the person who delivers them than about the person to whom they are delivered. Having due regard to the complainant’s high standing, this was in my view a clear case in which he was well placed to withstand the insults on the basis that they reflected much greater discredit on the accused than on the complainant. .’


Saying “KAFFIR” is a punishable offence

Read more ...

THE TANZANIAN LAND ACTS, 1999:

THE TANZANIAN LAND ACTS, 1999:

AN ANALYSIS OF THE ANALYSES

Robin Palmer

Land Policy Adviser, Africa

Oxfam GB

March 1999

Introduction

On 11 February 1999 the Tanzanian Parliament passed The Land Act, 1999 and The Village Land Act, 1999.

The first deals with general land, including urban areas and private estates outside the customary sector, and is fairly complex; the second deals with village lands and is generally more straightforward. At one stage of the drafting process, the two bills were combined. They were later divided into two for greater digestibility, but they form part of a whole and should be seen and interpreted together.

Among those interpreting the Acts in recent articles are Issa Shivji, Liz Wily and the Ministry of Lands, in the form of Stella Longway, the Commissioner of Lands, and Fidelis Mutakyamilwa, Legal Officer, Land Development Services in the Ministry.

Their articles are listed in an appendix at the end.

Issa has written two submissions to a parliamentary committee, a workshop address and a newspaper article; Liz a presentation to district officials and an analysis for donors; the Ministry a paper for a DFID workshop on land tenure in sub-Saharan Africa. All are in effect analyses of the new Acts, though both Liz (whose papers were written last November) and Issa acknowledge that because there were changes in the Acts at the last minute, their comments will need to be revised to take account of this. What they have written are thus only preliminary assessments.

Because of that, I have just attempted here to sketch the highlights rather than go into any great detail.

It is important to be aware that the new Acts will not come into force until they have been translated into Kiswahili and gazetted. It view of the facts that, taken together, they are very long and extremely complex, the meaning is unclear in some places, and they will therefore not be easy to translate, this could take a considerable period of time.

Liz Wily stresses that the two laws will provide what is in effect a body of new basic land law for mainland Tanzania with a new regime for the holding of rights in land and for controlling and managing land tenure. Eleven existing laws will be repealed by the Acts and six others amended.

She notes with approval that ‘provision is made for the law to be under constant review and that amendments are routinely anticipated.’

Engaging with the Ministry?

It is interesting to note the different approaches of Liz and Issa. Liz has regularly engaged with the Ministry of Lands, she wrote a paper for district officials in Arusha Region, and at the DFID workshop at Sunningdale was often locked in discussion with Stella Longway and Fidelis Mutakyamilwa. Issa, by contrast, has studiously avoided contact, doubtless fearing cooption or manipulation. He did, however, as the Bills finally came before Parliament, lobby a parliamentary committee. According to the paper by Longway and Mutakyamilwa, prior to the Bills coming before Parliament the Ministry ‘did not have any formal interaction with Hakiardhi’ (Issa’s research institute), only indirectly through the Gender Land Task Force.

A real national debate?

Liz and Issa also differ on whether there has been a genuine national debate on land, with Issa, surprisingly, being the more positive. In his most recent paper, he acknowledges that ‘there has been considerable public debate’; in an earlier paper he says ‘there has been some debate.’ Liz comments however that ‘most of the debate has derived from a limited source - mainly urban and academic persons.’ She points out that as yet there has been no attempt to publish, translate or disseminate widely either the Acts or the 1995 National Land Policy, nor has there been any attempt at consultation on the content of the Policy or the new laws. For her, ‘the outstanding weakness of the proposed legislation, is not its substance or even form but the fact that it has reached final draft without the benefit of input from ordinary citizens from all over the country. This poses problems not only for thrust and content, but for its workability, and legitimacy.’ Through inadequate consultation, she says, the Tanzanian Government has placed itself in the unenviable position of still needing to secure national support to implement what she believes are basically good laws.

Lessons for civil society?

Issa seems to acknowledge that the particular struggle over the Acts has come to an end, and that things went rather better than might have been anticipated. He concludes his most recent paper from a workshop at Morogoro:

The great value of the debate and NGO activism behind the Land Acts lies not so much in getting the law that they advocated but rather in bringing the land question on the public agenda. In this, I believe, for the first time civil society has scored a reasonable victory. It is a victory of the Cause and a legitimate cause for celebration. The politicians did not have a field day. At every step, they had to justify and answer even if most of the time they did not convince anybody, not even themselves. But I am sure they have learnt a good lesson in good governance, to use the jargon. The activists of the civil society have also learnt a lesson on ‘how to pressurise your rulers without being manipulated’. In this sense, therefore, there is a cause for celebration.

Good laws?

Liz believes that the two laws are ‘basically sound’ and that if the weaknesses she noted in her November papers were addressed (and she certainly lobbied long and hard for this), they would enter the category of ‘very good’ laws. At Sunningdale, she argued that it was the best land law passed in Africa in terms of ‘vesting authority and control over land at the local level.’  

Who benefits?

There is a conflict of views, with Issa is far more pessimistic: ‘it is difficult to see how the large majority of land users in this country, that is peasants, pastoralists and middle level rural entrepreneurs, stand to benefit.’ Liz, on the other hand, sees real gains for women (co-occupancy), pastoralists (equal rights with agriculturalists) and dependents (their needs must be considered before an owner sells or leases). She believes ‘abundant attention was given to the rights to institutionally weaker sectors of society’ and that ‘the spirit of the new laws is singularly Tanzanian and builds upon Tanzanian realities in a highly significant way.’

Genuine decentralisation?

Issa and Liz also differ sharply on the degree of decentralisation implicit in the new Acts. While Issa asserts that too much control has been retained at the centre, specifically in the hands of the Commissioner of Lands, Liz believes there has been a radical change and that ‘once vested at the periphery, powers will not be readily surrendered, and will consolidate and mature over time.’ For Issa:

The most striking feature of the two bills is the enormous powers over the ownership, control and management of village land placed in the hands of the Ministry, and through the Ministry, the Commissioner. The Commissioner has even greater powers over reserved and general land. The role of more elective bodies, like the local authorities, and more representative and open bodies, like the village assembly, has been virtually done away. Village council manages village land more as an agent of the Commissioner rather than as an organ of the village accountable to the village assembly

Liz counters:

It is true that the Commissioner of Lands has a lot of power, but it not true that ‘the village councils are agents’ of the Commissioner, or that administration of village land will be a ‘top-down process which can not be managed at the village level’. The whole point of The Village Land Act is for devolved land administration, by the village, at the village, for the village. The village in Tanzania has existed for a quarter of a century as the social, spatial and legal institutional foundation of Tanzanian society. The outstanding difference of the Tanzanian Bills with other new land laws [in Africa] is the vesting of (most) control over land tenure administration at the grassroots in the hands of the ‘governments’ (village councils) elected by the members of each registered village community.

The Village Land Act, Liz says:

sets out how each village may declare its village land. This does not have to be surveyed. The critical criterion is simply agreement with neighbours. It provides for registration of village land at the village level. The most important feature is that this will be generally undertaken at the village level by villages.  

The decentralisation of land registration to the local level is a good example of strategic soundness. Lodging registers at the local level will also enhance the accountability for their being kept up and kept properly. Accessibility by ordinary villagers will also be greatly enhanced.

Customary land rights?

For Liz:

The law visibly protects existing rights in land. It does this through removing inequalities between statutory and customary rights. They are made fully equal in the eyes of the law. The bills allow for traditional ways of holding land to be recognised and supported fully in the law and for the fundamental operational base of customary land law and tenure to continue - community assent and direction - through embedding local level authority and management of village land in the hands of villagers (the elected village council).

The National Land Policy (1995)

According to Liz, the new laws need to be seen in perspective. They do not depart from the 1995 National Land Policy in significant ways, but iron out many of the ambiguities and inconsistencies of the Policy, which is already in force. In most respects the laws ‘improve’ the Policy, and Liz believes it has taken some time for critics to absorb this and the fact that in a significant way they ‘re-introduce some of the [Shivji Presidential Land] Commission’s concepts.’

Dispute mechanisms?

Issa and Liz are agreed that the new Acts are very weak on mechanisms for settling disputes. Liz believes the Government should have adopted the Shivji Commission’s strategy in its entirety and that as the law stands, ‘there is little to suggest that resolution of disputes will become speedier or fairer.’

New structures?

In direct contrast to Uganda, where the Land Act (1998) envisages the establishment of 45 entirely new District Land Boards and 9,000 parish level land committees, no new land management institutions will need to be established in Tanzania.

Radical title?

Issa has always been strongly critical of both the National Land Policy and now the Acts for vesting radical title in the President, while for Liz this is a far less important issue than where control over land tenure matters is actually vested and the degree of accountability surrounding it.

A land market?

For Issa, the Acts will usher in a land market, which could well result in poorer people in villages loosing their lands, while for Liz:

the new laws do provide for a market in land but one that is by no means free. Constraints are imposed from three directions: definition as to who may acquire rights in land; what kind of property may be freely bought and sold; and especially the means through which transactions are undertaken.

Unjustified fears?

Liz believes that

Fears that land will be ‘taken by foreigners’, that the state will use the issue of Certificates of Village Land to return as much possible land as they can under their own aegis as general land, fears that rampant appropriation of property is going to take place, that women are going to be deprived of rights, are all thoroughly unjustified fears.

The next steps?

The Ministry in its paper agrees with Liz that ‘the enactment of the new land laws marks the start (not the end) of a long process of land tenure reform which will take place for several decades to come.’ 

The Ministry also agrees with Liz on the need for the production of a simplified English version of the law; preparation of an explanatory text for each clause; and preparation of information sheets targeted at different sectors dealing with a wide range of subjects under the law, such as ‘how to use the law’ and ‘how does the land law affect me’.

The Ministry has already formed one Committee for Immediate Action and another for Long Term Action. It recognises the need for special attention to be paid to women to enable them to recognise their rights under the new laws and to change the attitude of men, as custodians of tradition and custom at the village level.

The whole exercise calls for special expertise and funding. ‘We need to share experiences with various experts from various countries. It is our sincere hope that this interaction will not end in the hall [at Sunningdale] but rather that it will be the beginning of the consultative network in land tenure policy reforms.’ 

Donor support?

Finally, Liz says ‘It is likely that the Government of Tanzania will both need and deserve donor support for all or most of the above activities.’

What lessons for Oxfam?

·      Lawyers never agree and it’s helpful and instructive that they don’t!

·      There were clearly tactical arguments both for and against engaging with the Ministry in the past; neither was necessarily ‘wrong’.

·      Issa’s conclusion that Tanzanian civil society has learned some lessons and enjoyed a modest victory is something to reflect on - together with Liz’s caution that the debate was limited in scope.

·      A new phase is clearly beginning, even though it will take time for the Acts to be translated and to come into force.

·      Looking forward, I would advise Oxfam in Tanzania to examine practical ways in which in can help the communities it works with to establish their rights under the new laws and generally help consolidate the process of village democracy.

·      I would also advise Oxfam to take up the Ministry’s challenge to engage with it generally and specifically to help women assert their rights.

·      Finally, Oxfam should lobby donors to support the kind of information dissemination and awareness raising work listed above.

APPENDIX

ARTICLES ON THE TANZANIAN LAND ACTS, 1999

1. BY ISSA SHIVJI

‘The Land Acts 1999: a Cause for Celebration or a Celebration of a Cause?’,

Keynote Address to the Workshop on Land held at Morogoro, 19-20 February 1999.

‘Lift the Whip’,

The African, 6 February 1999.

‘Protection of Peasant and Pastoral Rights in Land: A Brief Review of the bills for the Land Act, 1998 and the Village Land Act, 1998’,

Paper presented to the Parliamentary Committee for Finance and Economic Affairs on the Bills for the Land Act and the Village Land Act, Dodoma, 26-28 January 1999.

‘Land as a Constitutional Category’,

Paper presented to the Parliamentary Committee for Finance and Economic Affairs on the Bills for the Land Act and the Village Land Act, Dodoma, 26-28 January 1999.

2. BY LIZ WILY

‘The Village, Villagers and the Village Land Bill’,

Paper prepared for the Land Management and Natural Resources Programme, Arusha Region, November 1998.

‘An Executive Summary of “A Review of Planned Land Legislation in Tanzania”’, November 1998.

3. BY THE MINISTRY OF LANDS

Stella Longway (Commissioner of Lands) and Fidelis Mutakyamilwa (Legal Officer, Land Development Services, Ministry of Lands)

‘Legal Land Reforms against Gender Discrimination’,

DFID Workshop on Land Tenure, Poverty and Sustainable Development in sub-Saharan Africa, Sunningdale, 16-19 February 1999).

Read more ...