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

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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).

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THE BRIEF HISTORY OF THE JUDICIARY OF TANZANIA

1.    INTRODUCTION:

The United Republic of Tanzania (URT) was born on the 26th April, 1964 when the Republic of Tanganyika and the Peoples Republic of Zanzibar united and formed a single country in the name of Tanzania.

The Administration of Justice in Tanzania is an exclusive constitutional mandate of the Judiciary of Tanzania (JOT) vide articles 4, 107A and 107B of the Constitution of the United Republic of Tanzania 1977, Cap. 2 of the Laws. Its history can be traced back to the pre-colonial era, which said history developed gradually depending on the political and economic organization of the society as demonstrated herein bellow.

Despite the union of the two countries, one can still safely argue that Tanzania enjoys a twofold Legal System namely; that which applies in Tanzania Island (Zanzibar) on one hand and the other which is relevant to Tanzania Mainland (Former Tanganyika) though the two systems merge at the apex for, appeals from both the High Court of Zanzibar and that of Tanzania Mainland go to the Court of Appeal of Tanzania which is the Union Organ.

2.    THE HISTORY OF ADMINISTRATION OF JUSTICE IN TANZANIA.

2.1: Administration of justice in Zanzibar

The judicial system in Zanzibar derives from a distinct history from that of Tanzania Mainland, hence deserving a separate account. The Administration of justice in Zanzibar has a long history which goes back to the early 19th century. The first court to be introduced was the Consular Courts, and then followed by the Liwalis’ Courts, Peoples’ Courts and finally the present dual system of Subordinate Courts with the High Court of Zanzibar as the appellate court, this was introduced in 1985 by the Zanzibar Constitution of 1984 and legislations passed by the House of Representatives.

The subordinate courts consist of Civil Subordinate Courts which enjoy both Criminal and civil jurisdiction and Kadhis’ Courts enjoy only civil jurisdiction where both parties are Muslims.

The Civil Subordinate courts which consist of Primary, District and Regional Magistrates Courts, apply statutory laws while the Kadhis’ Courts apply Islamic law exclusively. The Chief Justice of Zanzibar is the in charge of the Judiciary in Tanzania Zanzibar.

2.2: Administration of justice in Tanzania Mainland

2.2.1: 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.

2.2.2: Colonial Period

2.2.2.1: 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.

2.2.2.2: 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.

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.

2.2.3: Post independence (from 1961).

As hinted herein above, Tanzania mainland attained its independence in December 9th, 1961. In 1963 the courts system was integrated and racism was eliminated in the administration of justice by the enactment of the Magistrates Courts Act of 1963. This system remained undisturbed until 1984 when the present court system was introduced through The Magistrates Court Act 1984.
However, there was significant development in 1977 when the Constitution of the URT came into force and in 1979 when the Court of Appeal of Tanzania was established. These particular developments created the High Courts of Tanzania Mainland, that of Zanzibar and the Court of Appeal, a union matter. The Principal Judge is the Head of the High Court of Tanzania (Mainland). As I said above, appeals from both the High Courts of Tanzania (Mainland) and that of Zanzibar go to the Court of Appeal of Tanzania.

2.3: Historical Performance Of The Court Of Appeal (A Union Organ).

The Court Of Appeal of Tanzania was established in 1979 and its jurisdiction as a union organ and a final appellate judicial body is provided for by article 117 of the URT Constitution. The court is a successor to the Court Of Appeal For Eastern Africa and the Privy Council. The court has contributed a lot in the development of the law in Tanzania since its establishment. The Chief Justice of Tanzania is the Captain of both the Court of Appeal of Tanzania as a final Appellate Court in the country and the JOT as one of the three Pillars of the State, the two others being the Executive and the Legislature.

3.    THE HISTORY OF LAW REPORTING IN TANZANIA

So long as the Judiciary of Tanzania and the whole legal fraternity in the country practice the law on the basis of the Common Law tradition, they strongly believe and uphold the doctrine of Precedent which cannot be effectively applied in the absence of reliable law reporting system, hence a need to recognize a brief history of Law Reporting in this forum.

In Zanzibar the law reporting started as early as 1861 by the Zanzibar Protectorate Law Reports of 1861 whereas in Tanzania Mainland it came during the British Colonial rule in 1921 by the Tanganyika Territory Law Report 1921.

The system continued after the independence. The Faculty of Law for the University of Dare es salaa compiled the High Court Digests (HCD) from 1967-1972, followed by the Law Reports of Tanzania (LRT) from 1973-1979. The current law reports in Tanzania are the Law Reports of Tanzania (TLR) from 1980-1998, which are the results of the industry of the Editorial Board operating under the chairmanship of the Hon. the Chief Justice of Tanzania.

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THE TANZANIAN LAW OF MARRIAGE CASEs

THE TANZANIAN LAW OF MARRIAGE ACT

The term marriage refers to an agreement by which a man and a woman enter into a relationship with each other and which creates and imposes mutual rights and duties (N.V. Lowe & G. Douglas. Bromley’s Family Law 9th ).
Marriage is the voluntary union for life of one man to one woman to the exclusion of all others (S.M. Cretney, et al Principals of Family Law)

In Hyde v. Hyde (1866 LRIP & D 130, 133), it was stated that marriage is the voluntary union for life of one man and one woman to the exclusion of the others.

In Ahmmed Said Kidevu v. Sharifa Shamte (1989 TLR 148) Maina , J. Observed that marriage is the voluntary union of a  man and a woman and it is contracted with the consent of the parties.

The provision of s.9 of the Law of Marriage Act, Act No.5 of 1971(Cap, 29 R.E.2002) defines the term marriage as the voluntary union of a man and a woman intending to last for their joint lives.

Generally marriage can be defined as a contract between a man and a woman that contracted with their free consent with the intention of living together for the whole of their lives.

The Law of Marriage in Tanzania is originated from the colonialists. In Tanzania by then Tanganyika, the British introduced the Tanganyika Order in Council (T.OC.) of 1920 that introduced the application of Customary Laws and the enactment of the Judicature and Application of Laws Act (JALA) (Cap, 358 R.E.2002) by then The Judicature and Application of Laws Ordinance (JALO).This provided for the application of Islamic and customary laws in marriage matters in the country.


Due to plurality in laws during colonialism and after independence there was internal conflict of laws. Tanzania tried to solve some of them; in 1969 the government issued the white paper which was like a palimateria from the report of the Spry Commission in Kenya. The white paper leads to the enactment of the Law of Marriage Act. Hereinafter referred to as the “Act”.

To some extent the Act represents the big effort by the Legislature to integrate and streamline various personal laws without unduly interfering with people’s customs and religious beliefs as hereunder provided in a nutshell:

The  Act prohibit blood related relatives to get marry each other, this is provided under the provision of s.14 also in Tanzania there is no any religion or custom that allows such situation.

It prohibits too a married woman to contract another marriage while the former one still exist. Neither the Act, religion nor people’s custom do allow the married woman to contract another marriage. This is governed by s.15 (3).

To avoid the marriage from being declared nullity the Act under the provision of s.16 requires consent to be there as a general rule. Also in Tanzania as a general rule all kinds of religions and customs do require consent of the parties to marriage. This is supported by the case of Ahmad Said Kidevu v. Sharifa Shamte (1989 TLR 148), in this case the parties were married under Islamic law, they quarreled  and separated  after the respondent had issued one ‘talaka’. It was stated that marriage is a voluntary union of a man and a woman and it is contracted with the consent of the parties.

Not only consent but also the manner of contracting the marriage. This is supported by the provision of s.25 (1). It is elaborated more in Daniel Masalu v. Musa Shadrack (1987 TLR 35), the appellant clamed damages of five head of cattle for adultery against the respondent. He paid the bride price of 10,000/= he wanted to contract marriage but he traveled from the place where his spouse was living and on return he found the woman married to the respondent. It was held that the payment of 10,000/= as a bride price did not constitute marriage according to the Sukuma customary law rites as stipulated under s.25 (1) (d) of the Act and there were no marriage at all.

Under religious marriage and customary marriage there must be witnesses at least two, one for a man and another for a woman. The Act too under s.27 (1) requires marriage to be conducted under the presence of at least two witnesses. In Ramadhan Ramadhan v. Sungi Andalu (1984 TLR 15), the appellant filed a suit claiming from the respondent four head of cattle as damages for inducing his wife to desert him. The issue was whether and Zainabu the respondent’s daughter were married, there was no marriage certificate which was issued but the appellant alleged that he married Zainabu in 1973 under customary law. It was held that payment of bride wealth even if proved, is not existence of marriage. There must be a clear evidence of marriage ceremony. The appellant failed to prove that there was marriage ceremony under s.27 (1) of the Act.

Most of religious and custom marriages are conducted openly and publicly, also the introduction of the Act incorporated this situation per s.28 that states that marriage should be public. The purpose of this is to enable many people to participate the event and them to give evidence when the issue of whether the parties were married or nor not arises.

In Tanzania the parties are allowed to petition   for a decree of divorce or separation in the court of law regardless as to whether their marriage was a customary marriage or religious marriage. And the Act by virtue of  s.99 reads together with s.140 provides the rights for married couples to seek for a decree of divorce or separation.
In Mariam Tumbo v. Harold Tumbo (1983 TLR 293), the petitioner filed a suit to the court asking inter alia the dissolution of her Christian marriage and the division of matrimonial assets. Lugakingira, J. as he then was dissolved the marriage but the matrimonial assets were not divided.

In Ahmed Said Kidevu v. Sharifa Shamte (1989 TLR148), the parties were married under Islamic law. They quarreled and separated after the respondent had issued one ‘talaka’ . The appellant filed a suit to compel the wife to live with him. It was held that marriage is a voluntary union of a man and a woman and it is contracted with the consent of the parties . It is intended that the marriage will last for their joint lives of the parties. However, when difficulties arise in a marriage and one spouse who has been deserted is to commence or separation proceedings, the court can not compel him or her to live with her or his spouse.



CRITICISM

To some extent the Act under the provisions of s.99 and s.140 interferes the religious beliefs especially Christianity on the issue of divorce and separation, for Christians marriage is considered to be a sacrament between the couples. This is clearly shown in the case of Mariam Tumbo v. Harold Tumbo (supra).

Not only the issue of divorce and separation but also presumption of marriage, s. 160 of the Act states that if the couples have stayed together for two years or more than that they are presumed to be married until proved contrary while under religious beliefs and customs the parties are regarded as adulterers. In Hoka Mbofu v.Pastory Mwikaje (1983 TLR286), the appellant appealed against the decision of the district court that was requiring her to issue a decree of divorce to the respondent due to the fact that they lived in a concubine marriage for sixteen years. The High Court looked upon their life style and held that s.160 should not apply and the order of the district court was quashed.







PRIMARY SOURCES

Tanzania government of, the Judicature and Application of Laws Act (Cap, 358 R.E.2002) Government Printers, Dar-es-salaam.

Tanzania government of, the Law of Marriage Act (Cap, 29 R.E.2002) Government Printers, Dar-es-salaam.

SECONDARY SOURCES

Cretney, S.M et al (2003) Principles of Family Law

Lowe, N.V & G. Douglas (1998) Bromley’s Family Law. 9th Ed, Butterworth, London.

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