Sunday, August 14, 2011

Legal History:

The Bantu ancestors of the majority of current-day Tanzania's population settled in the region in approximately 500 CE. Arab settlers in the coastal regions introduced Islam to the region in the 9th and 10th centuries. European interest in the region began to increase with Portuguese explorers arriving in the region in the late 15th century, although the Portuguese never established settlements in Tanzania. In the late 19th century, Germany gained increasing control over the area from the coast inland to Ruanda and Urundi, establishing the Protectorate of German East Africa. Soon after in 1890, the islands of Zanzibar and Pemba were declared a British Protectorate. Following World War I, the League of Nations extended the British mandate to Tanganyika, while other parts of German East Africa (Rwanda and Burundi) were placed under a Belgian protectorate. A legislative council was established in 1926 and Tanganyika became a UN trust territory in 1946. The legislative council was expanded over the next decade in order to provide equal representation to Africans, Asians and Europeans. The Tanganyikan African National Union (TANU) established by Julius Nyerere in 1954 began calling for increasing African representation and by the late 1950s for full independence. TANU's appeal was clear from elections held in 1958 and 1960, and Tanganyika achieved its independence in December 1961, becoming a republic one year later. Zanzibar achieved independence in 1963, and the Sultan was overthrown the following year. The two states unified in April 1964 to form the United Republic of Tanzania. Both independent states had a single-party system and the two parties eventually merged to form the Chama Cha Mapinduzi (CCM). Under increasing internal and international pressure, the Tanzanian government introduced constitutional reforms permitting the establishment of opposition parties in 1992.

     ������ Under the federal agreement unifying Tanganyika and Zanzibar, the two units have separate legislative, executive and judicial institutions. Union matters are defined in the first addendum to the Constitution; personal status comes under those areas defined as "non-union matters", thus the Marriage Act that applies in mainland Tanzania is not applicable in Zanzibar. Prior to 1971, Muslims, Christian, Hindu and customary laws governed marriage and divorce, in addition to a civil marriage regime. The proposal of a new marriage law in 1967 aroused intense debate, especially relating to the role of the shari'a in matters relating to Muslim personal status. One of the proposals drawing most criticism related to the requirement of the first wife's permission for contracting a polygamous marriage. Despite much criticism and opposition, the uniform Marriage Act was passed into law in Tanganyika in 1971. The new Act integrated existing marriage laws while preserving the right to religious solemnisation and the option of polygamy. Elements that are uniformly applicable relate to the basic requirement of free consent, a common definition of permanent impediments to marriage, a minimum marriage age (although there is some leeway provided by grounds for judicial discretion and by the terms of the Penal Code), a common definition of void or voidable marriages, and certain preliminaries such as a notice-period before marriage.

More recently, the Law Reform Commission of Tanzania has conducted several long-term studies, through its Family Law, Child Law and Succession Law Committees, on the reform of those applicable laws. The Committees have recommended such changes as raising the minimum marriage age to 18 for both parties, raising the 'tender age' presumption stating that women are the more appropriate custodians for children under 7 years to 14 years, harmonising succession laws, gradually eliminating the category of 'illegitimacy', etc.

Schools of Fiqh: The majority of Tanzanian Muslims are Shafi'i, with significant Hanafi, Ja'fari and Isma'ili communities and small Ibadi, Maliki, Hanbali and Ahmadi communities. The majority of Zanzibar's population is Muslim, with Christianity and indigenous religions predominant in Tanganyika.

Constitutional Status of Islam(ic Law): The Constitution was adopted on 25th April 1977, with major revisions in 1984 and the insertion of a Bill of Rights in 1988. It adopts no official state religion.

Court System: The judiciary is organised under the Magistrates' Courts Act 1963. There are primary courts in each of 25 administrative regions; the jurisdiction of primary courts includes all civil suits related to customary and Islamic law and all civil and Christian matrimonial suits. The next level of courts are District Courts, then Resident Magistrates' Courts, then two High Courts in Zanzibar and Tanganyika. The Court of Appeal serves as the highest court in judiciary.

Notable Features: The minimum marriage age under the Marriage Act 1971 is 18 for males and 15 for females.� Courts may permit underage marriage of parties who have reached 14 years of age if specific circumstances make the marriage appear desirable. The Penal Code provides that persons of "African or Asiatic descent" may marry or permit marriage of a girl under 12 years of age in accordance with their custom or religion so long as the marriage is not intended to be consummated before she attains 12 years. The Marriage Act only specifies the free consent of marrying parties for validity, and dispenses with the need for the guardian's consent if the have attained 18 years of age.
Marriage registration is obligatory and non-compliance is punishable by a fine, but will not render the marriage void.� The Marriage Act provides for the licensing of religious functionaries as Marriage Registrars.
Polygamy is permitted with the consent of the first wife; the marrying parties must state in the notice of intention to marry whether the marriage is intended to be monogamous, polygamous or potentially polygamous. There is a rebuttable presumption that customary and Muslim marriages are potentially polygamous and others monogamous. It is also possible to "convert" a marriage to polygamous or monogamous by the spouses' joint declaration. This facility exists in the registration of civil marriages as well, although Christians married in church cannot do so as long as both parties remain Christian.� Maintenance of the wife or wives is specified as the husband's duty, and becomes the wife's duty in cases where her husband is incapacitated and unable to earn a living. The Court may order the payment of maintenance in limited circumstances where the husband refuses or neglects to support his wife.

     ������ The Marriage Act provides that, except in extreme cases, no petition of divorce is to be heard before a marriage has subsisted for two years. Either spouse may apply for divorce on grounds of breakdown, but no decree of divorce can be granted unless the court is convinced of irreparable breakdown. The party seeking the divorce must first apply to the Marriage Conciliatory Board.� The board must certify failure to reconcile parties before the divorce suit can be initiated. Evidence of irreparable breakdown of marriage for court's purposes must indicate one of the following grounds: mental or physical cruelty; wilful neglect; desertion; voluntary separation; or change of religion that dissolves the marriage under the religious law the parties were subject to at the time of their marriage. Talaqis not recognised as an automatic dissolution of marriage, but a concession provides that any act dissolving a marriage under Islamic law is a compelling ground for divorce, but the act must have occurred after the Marriage Conciliatory Board has certified its failure to reconcile the couple.� In dividing marital property and passing decisions on maintenance, courts must consider the customs of the parties' community, the contribution made by each party towards acquisition of the property in money, property or work, the debts owed by either party for acquiring property for their joint benefit, and the needs of infant children. Beyond that, the court may order maintenance for former wives in very limited circumstances, such as enforcing the Muslim wife's right to maintenance during 'idda.� In determining matters of child custody and guardianship, the Courts are directed to consider paramount the welfare of the ward.� There is a rebuttable presumption that children should remain with the mother until the age of 7.� Courts are also directed to consider the customs of the community to which the parents belong, the economic circumstances of both parents, the housing that both parents can provide, and the behaviour of the mother and whether or not she is considered to have contributed to the marital breakdown.

     ������ Succession is governed by statutory, customary, Islamic and Hindu law in Tanganyika. The Non-Christian Asiatic (Succession) Ordinance directs the application of the personal law of the deceased according to the individual's religion.� Islamic law is applicable to African Muslims under the Judicature and Applications of Laws Ordinance empowering courts to apply Islamic law to matters of succession in communities that generally follow Islamic law in matters of personal status and inheritance.� The Courts, in determining the appropriate legal regime to apply to cases where there is a conflict of laws (i.e., when there is a dispute over the division of the estate of an African Muslim who also came under a system of customary law) employ two tests: the "mode of life" and the "intention of the deceased" tests.� In deciding between the application of customary or statutory law, the "mode of life" test considers whether the deceased was part of a community where the customary law is widely accepted and applied.� The "intention of the deceased" test considers statements and deeds of the deceased which could have indicated his/her preference.

Notable Cases: 
Law/Case Reporting System: Law reporting is through the Gazette of the United Republic of Tanzania and there are loose-leaf editions of the Laws of Mainland Tanzania issued periodically. Reports of High Court and Court of Appeals decisions are published in the Tanzania Law Reports which replaced theHigh Court Digest in 1975.
International Conventions (with Relevant Reservations): Tanzania acceded to the ICCPR and ICESCR in 1976 without reservations.
Tanzania signed the CEDAW in 1980 and ratified it in 1985 without reservations.

Tanzania signed the CRC in 1990 and ratified it in 1991 without reservations.
Background and Sources: Redden, "Tanzania" in Modern Legal Systems Cyclopedia, vol. 6, Buffalo, NY, 1990; Rwezaura, "Tanzania: Family Law and the New Bill of Rights," Journal of Family Law (University of Louisville), v. 29, no. 2 (1991): 453-461; Rwebangira, The Legal Status of Women and Poverty in Tanzania, Uppsala, 1996; Rwezaura, "Tanzania: Gender Justice and Children's Rights: A Banner for Family Law Reform in Tanzania," in The International Survey of Family Law, Bainham, ed., 1997: 413-443; Rubin & Cotran, "Tanzania" in Annual Survey of African Law, vols. I-IV, 1967-1970; "Tanzania" in Women of the World: Laws and Policies Affecting Their Reproductive Lives- Anglophone Africa, Center for Reproductive Law and Policy & International Federation of Women Lawyers (Kenya Chapter), New York, 1997.

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