Judiciary and Good Governanee in

Contemporary Tanzania
Problems and Prospects

Sufian Hemed Bukurura

R 1995: 3
September 1995

. Report ..

-I Chr. Michelsen Institute

Bergen Norway
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 Judiciary and Good Governanee in
Contemporary Tanzania
Problems and Prospects

Sufian Hemed Bukurura

R 1995: 3
September 1995

. Report

-I Chr. Michelsen Institute

Bergen Norway
Copyright (Ç Chr. Michelsen Institute, 1995

CM! Report Series

Editorial coordinator: Svein Gjerdåker
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ISSN 0805-505X

Indexing terms
Legal institutions
J udicial system
Good governance
Tanzania
fufure v
Contents

-,... -,'.'1"";"-":,'": '''',_C¡ ,;':_':':

1. Introduction: The Judiciary and Good Governance 1

2. The Legacy of Liberal Legalism and the Marginalization of Law 8
2.1 The Legacy of Liberal Legalism 8
2.2 Marginalization and Hatred of Law & Legal Institutions 12

3. Judiciary: Towards Rebuilding its Image 19

3.1 Descending From the Ivory Tower 19
3.1.1 Enhancement of Efficiency 20
3.1.2 Judicial Accountability and Discipline 21
3.1.3 Mending Fences with the Public 24
3.2 Funding of the Proposed Reforms 26
3.3 From Marginalization to Prominence: What Next? 29
4. Leading the Reforms: An Articulation of Constraints 32
4.1 Chief Justice Francis Nyalali: A Legacy in Two Phases? 33

Compliant 34
4.1.1 Phase 1: Cautious, Conservative and Probably

4.1.2 Phase 2: Reformer, Vocal and Critical 35

4.2 Justice Mwalusanya: A Critical Insider 36
4.2.1 Judicial Contributions 38
4.2.2 Extra-Judicial Pronouncements 39
4.3 Skepticism and Contradictions 41
4.3.1 Skepticism about the Attempted Reforms 41
4.3.2 Contradictions in Mwalusanya's Approach 44
4.4 Implications for the Judiciary! 47
5. Conclusion: Legal Prominence in Hostility 51
5.1 Limited Consultations 52
yle of Judicial Opinion 54
5.3 Hostile SUIToundings 56
5.2 Choosing a St

5.4 Concluding Remarks 59

References 62

111
. C." ','I' i-"",;~,-.; ",.,
Preface
The preparation of this study was facilitated by funding from Chr.
Michelsen Institute which enabled me to spend two months in Bergen. The
intellectual atmosphere at the Institute, particularIy the interaction with
research fellows, with diverse experiences, has been a very stimulating
experience which enabled me to address some of the problems related to
legal institutions in general, and the judiciary in particular.
In this task I have received intellectual and material support from
different sources. Chr. Michelsen Institute researchers, librarians and
administrative staff helped in many different ways. I would like to mention,
specifically, Steinar Askvik, David Gairdner, Andy Kwawukume and Ussif
Rashid Sumaila who read and commented on various sections of the
manuscript.
The e-mail facility made it possible for Professor Bartazar Rwezaura, of
Hong Kong University, to read and comment on certain chapters. Michael
Wambali (University ofWarwick), Jill Cottrell (Hong Kong University) and
Dr. Gordon W oodman (University of Birmingham) helped to locate and
obtain some important literature. Colleagues in the Law Subject Panel at
the Institute of Development Management, Mzumbe, to ok over my teaching
work load during the two months I spent at Chr. Michelsen Institute. Other
people, numerous to be named, also helped in many different ways. I am
indebted to all of them for their support in the work, but they are not in any
way responsible for the blemishes and limitations in this study.

Bergen, July 1995

v
1. Introductiofi:"Tl1e"Jud'Ìciãry'and Good
Governanee
The observance of the rule of law and respect for individual human rights
are said to be among the important components of good governance and
market economy. The judiciary is known to be the custodian of most, if not
all, the ideals that goes with the rule of law and human rights. Law and the
judiciary, therefore, are expected to be among the essential pillars in the era
of political pluralism as the two are central in the regulatory process for
purposes of fair play (WorId Bank 1989). Many of these observations are
made by the proponents of poliÜcal pluralism and good governance. These
sentiments are also echoed by the players in the game of power and power-
seeking and, heard by the all of us (small time players and spectators in
most of the time). Very little is said about the complexities of the law and
the uncertainties sUITounding justice administration.
Very rarely have the proponents involved in political pluralism, good
governance and free market, taken sober and concerted effort to examine
the practices, strength and constraints inherent in the law, the legal system
and the institutions expected to be responsible for providing the necessary
regulation during the era now in the makng. One political commentator
recently suggested that the judiciary was favouring the opposition in
Tanzania (The East African, 17th April 1995). The cartoon that
accompanied the story showed a person wearing a ruling party shirt playing
volleyball against the another in opposition shirt with the judiciary on the
opposition side. My own view is that these observations, which have been
heard even before the publication of this newspaper article, are partly based
on a faulty understanding of legal technicalities and may not reveal the
complexities inherent in judicial decision making.
This study is an attempt to draw attention to the complexities involved
in regulating contending economic and political interests and, in particular,
an effort towards highlighting the challenges facing the judiciary as
Tanzania, like other third worId countries, move towards the market
economy and multi-party political systems. My own view is that evidence
available in Tanzania, and elsewhere, suggests that only in very limited
situations have the judiciary stood for change. In most cases judiciaries are
known to be very conservative and go to great length in support of the
status quo. There is very little in Tanzania to sugge st otherwise.

1
 This skeptical and pessimist observatÏon derives not from my disrespect
for the rule of law and independence of the judiciary or the distrust of
personalities entrusted with the regulatÏon process. Far from it. It is based
on abundant evidence available from place divergent geographically,
economically and culturally."Thereis'~plenty oP'literature to show that the
judiciary can be compliant and executive-minded, to the detriment and at
the expense of individual rights. These concerns ne ed to be addressed
during the transition period.
What is very disturbing, to me at least, and the very reason prompting
this study is that discussion on this important aspect of political pluralism,
democratization and even the market economy, seem to be lacking in
Tanzania. Law and legal institutions are taken for granted to an extent that
an opportunity for reflecting on the strengths and weaknesses of the system,
the institutions, and the persons who are the main actors in the institutions
is wasted.
The elevation of law and legal machinery from marginality, suffered in
the last two decades, to centrality during the democratization process and
liberalization of the economy, without adequate discussion, not only
obscures the history of the English legal system in general, and its
application in Tanzania in particular, but also blind us from learning
significant lessons of what has happened elsewhere. The euphoria, with
which the centrality of law and legal institutions in general, and the
independence of the judiciary in particular, has been received is under-
standable after many years in obscurity. However, the consequences, for
lack of reflection and rigorous discussion of the significant issues at stake
may be devastating. This study does not provide any answers to the
questions it raise but marks signposts towards the search for answers. An
opportunity to reflect on the questions may help us to come to terms with
what we have already observed (cases decided by judges in our courts) and
prepare our min ds for more things to comt; By so doing we may be able
not only to understand court processes and decisions in their perspective,
but we may also avoid making rushed conclusions.
Literature on the state of the judiciary in Tanzania shows that since
independence the executive branch of government has amassed enormous
powers and misused them. In that process it also downgraded the judiciary.
The same body of material, however, recognises that within the judiciary
there has been a tendency towards subservience to the executive. Whereas
these tendencies are known to exist little, if anything, has been written on
how they emerged and developed and how that affects the image of the
judiciary to the general public. This study takes as its starting point the fact
that the executive played a part in the marginalization of law and legal

2
institutions in general, and the judiciary in particular, have been very well
argued and documented. What seems to be lacking in the literature is that
these institutions, and the judiciary in particular, did not make sufficient
efforts and initiatives to resist marginalization (see Olowofoyeku 1989 on
the Nigerian judiciary). Instead; thejudiciaryehose to remain silent, which
may even be interpreted as amounting to acquiescence.
In his sophisticated analysis of why executive powers were not
challenged in courts, and if challenged stood little chance of success,
Professor Shivji identified a combination of factors among which was
"timidity and mediocrity on the part of judges accompanied by loyalty born
out of pressures and expectations of favour from the executive" (Shivji
1985:7). Judicial silence and/or acquiescence to executive excesses and
violation of legal powers partly contributed to the eros ion of the legitimacy
of the judiciary as custodian and fountain of justice in Tanzania and
elsewhere. Writing about detention without tri al and constitutional
safeguards in Zimbabwe, for example, Hatchard noted that the existence of
any enforceable individual rights in practice depends on the role the
judiciary is prepared to play in upholding those rights. A weak judiciary
can sound the death knell for individual freedoms (Hatchard 1985:57, see
also Kuria 1991, Nwabueze 1977: Chapter 15 and Shimba 1987). There is
plenty of literature, from countries of geographical and political diversity,
which shows that weak and compliant judiciaries have not fared very well
in the protection of individual rights. Examples are given in chapter 2.
The decline of the legitimacy of the judiciary, therefore, not being a
phenomenon limited to Tanzania, could not have happened as an event but
as a process. That process has to be understood in its historical context. The
suitability of the adversarial system of justice, imposed on Tanganyika by
British rulers, was a subject of intense and unresolved debate even among
colonial rulers (see Morris & Read 1972 and Lyall 1988). The British
system of justice was inherited as part of tht independence package. To
what extent the inherited system of justice administration served
independence aspirations and beyond (for both the rulers and subjects) is
now a matter of history. The relevance of that history is significant to the
contemporary situation.
Law and legal institutions in general, and the judiciary in particular,
which took over the traditions, forms, procedures and content of the British
legal system, continue to be plagued by them as part of history (see Asante
1988 for a review of over 100 of the national legal system in Ghana).
Those, like Nyerere and Chief Justice Geörges, who expected the
machinery of justice to adopt to social and economic changes introduced
in the 1960s, ultimately despaired (and even became angry in the case of

3
Nyerere) when they found that these hopes could not be realised. The
problems which were identified as being part of the limitations in the
administration of justice were neither resolved nor taken seriously at the
time (see Read 1966 and Kakooza 1969). It appears that we are back to that
situation once again. Hopes arehigh,that'law "and 'legal institutions in
general, and the judiciary in particular, will provide the necessary regulation
of contending economic and political interests, preserve and protect human
rights and safeguard the rule of law (W orId Bank 1989). Whether this
optimism is based on any evidence in history is a matter which needs to be
carefully examined, considered and thoroughly discussed.
The extent to which the role of law in general, and that of courts in
particular, have changed over the years has been very well documented
(Shetreet 1988 & Theberge 1979). It is from such analysis that our
discussion should proceed. There appears to be httle disagreement among
legal scholars that the function of courts have expanded beyond the primary
duty of resolving ordinary disputes. There is a recognition of the fact that
"courts may have to deal with problems involving political and social
issues" (Shetreet 1988: 469). Court decisions on sensitive matters of
political and social significance bring into light the manner in which the
interpretation of the law is caried out.
Two dominant styles of opinion exist in the Anglo-American legal
tradition: judicial restraint and judicial creativity. Under judicial restraint,
it is argued that judges do not make law but they administer the law. It is
said that they do that by interpreting the law literary by seeking to ascertain
its purport through the sole medium of words. The argument goes on that
by so doing judges are acting in accordance with the doctrine of separation
of powers, which among other things, requires that each branch of govern-
ment should perform only the functions entrusted to it. In the case of the
judiciary, the function is to interpret the law and never to make it. By
restricting themselves to the interpretation of law they not only maintain
their independence but also their impartiality. Judges in this category are
also called formalists, timorous souls, traditionalists etc.
Judicial creativity is discouraged by traditionalists because it amounts to
judicial law making which is unacceptable because it is undemocratic and
that if allowed would create rights where there was none. Mauro
Cappelletti, who has researched extensively on the law making powers of
judges, has observed that:

in all its expressions, formalism tended to accentuate the element of pure

and mechanical logic in judicial decision making, while neglecting, or
hiding, the voluntaristic, discretionary element of choice ... choice means

4
 discretion even though not necessarily arbitrariness; it means evaluation
and balancing; it means giving consideration to the choice' s practical and
moral results; and it means employment of not only the arguments of
abstract logic, but those of economics and politics, ethics, sociology, and
psychology (1981).

He concludes that even those who argue that the ro le of judges is only to
interpret the law literary do in fact exercise an element of choice and
discretion which is intrinsic in any act of interpretation. He quotes a
statement once made by Lord Reid that there was a time in history when
"it was thought almost indecent to suggest that judges made law rather than
merely declaring it".
The opposite of judicial passivity is judicial creativity. Some theorists
have suggested that judicial creativity was a revolt against judicial
formalism. They emphasize that it was false and illusory to suggest that
pure deductive logic could help the judge ascertain the law'uncreatively and
without personal responsibility. In this judicial approach it is argued that in
the field of judicial interpretation there is a middle ground where choice
and discretion may be exercised. Judges in this category are also known as
judicial activists, bold spirits etc.
In its history revolt against judicial restraint has not been smooth.
However, through it legal rights were extended to blacks and women in
America which no one disputes today. In England judges read into the
common law, without the intervention of ParIiament (though endorsed
later), the rights of the wife to hold title to property jointly with her
hus band when the title was doubtfuL. There are many examples of rights
created through judicial activism.
What emerges from the history of English law and legality in general,
and the imposition of the British legal system and its inheritance at
independence in particular, taken together with the two styles of judicial
opinion, is that there are forces within the'judiciary in Tanzania and
elsewhere contended with the maintenance of the status quo (inclined
towards judicial restraint). There are others inclined towards change, the
judicial activists. Factors influencing which st yle of judicial opinion a judge
will take are varied. Paries to the cases which are taken before the High
Court in Tanzania, and those which might ultimately go before the Court
of Appeal, will find out who among the thirty justices (in the High Court
and Court of Appeal) belong to which one of the two prominent styles of
judicial opinion. The general public, if not by themselves, then through
legal and political analysts will learn as well, who among the justices prefer
judicial restraint instead of judicial activism. It is already clear, though, that
among the justices in both the High Court and Court of Appeal, one has
5
already declared himself to be a judicial activist. The majority, if not all,
of the rest have preferred to remain silent. That silence is a continuation of
their past trends. Commenting about judicial conservatism in Tanzania,
Peter (1992), who had together with another (Wambali & Peter 1987, see
Shivji 1985: footnote 18)been charitabletothe'jticlieiary, noted thatjustices
in the Court of Appeal were champions. This study shows, among other
things, the ambiguities, complexities and contradictions revealed by the
judge who has declared which one of the two styles of judicial opinion he
favours.
The new ro le and place of the judiciary during the transition to market
economics and political pluralism, has obvious implications to the general
public. Since democratic governance entails, among other thing, partici-
pation in matters of national interests, the question do arise, as to what
extent has the general public been in volve d in the preparation of the
necessary ground for the legal tasks ahead? Jf these issues have been
confined within professional circles (where the complexities are probably
already well known any way), how will that affect public responses in the
light of past experiences?
The way in which the general public perceives law and legal institutions
in general, and the judiciary in particular is crucial for law to realize its
intended aims. This perception has to be traced to the history of law in
Tanzania and other third worId countries in general (see Nyachae 1992:79
and Mingst 1988:140). As correctly noted by Professor Ghai (1981:155,
173), among others, in East Africa and elsewhere in the third worId, public
perception of law and legal institutions has been that of fear and dis trust.
How this fear and dis trust of law and legal institutions came about need to
be reflected upon. Whether the change from marginality to centrality will
bring about public trust of law and legal institutions are important matters
that need to be thoroughly discussed beyond professional confines.
What we have been witnessing, so far, is that only minor and cosmetic
changes have been introduced. Such changes, welcome as they are, do not
go far enough to empower the general public in the struggle for the
preservation, protection and promotion of their human rights. Most, if not
all, of the reforms have been introduced without broad consultation with the
public. Lack of broad based discussion on these issues creates at best an
impression of complacency and at worst secrecy on the part of the powers-
that-be. Both, complacency and secrecy, are inconsistent with democratic
governance. This study attempts to bring these issues out in the open for
discussion.
In writing this study I have kept in mind the fact that the judiciary is
only a part (an important one at that) of the legal system and that there

6
other important actors, themselves a part of the political, economic and
social set up of the country. Such a recognition is significant not only in
our understanding of the limits within which the judiciary in particular, and
the legal system in general, operate, but also that political, economic and
social organizations of the"eountry' are determined and shaped by what.
takes place around the worId. In this case, the W orId Bank, the
International Monetary Fund, and other bilateral donor perception of what
constitutes good governance in general, and the role of law and legal
institutions in particular, in market economies and political pluralism, have
played an important role in what has taken place (and continue to happen)
in the judiciary in Tanzania.
Thoughts put together in this study are, on the whole, tentative and more
need to be done if the intricacies and ambivalences involved in regulation
of competing political and economic interests are to be satisfactorily
understood and ultimately disentangled. The study is organized as follows.
Chapter 2 focuses on how the present legal system came into being in
Tanzania and the processes which caused law and legal institutions to be
downgraded. Chapter 3 demonstrates how the judiciary responded, albeit
late, to marginalization and the steps that were taken to restore its
credibility. There is also a discussion of how these reforms could be
financed. Chapter 4 highlights two principal actors or reformers in the
judiciary and how they help us to understand inherent limitations to the
proposed reforms. Chapter 5, which is also the conclusion, brings together
some loose ends in the discussion by showing, not only how consultations
have been limited, within the legal system, but also that the general public
has been excluded all together. In that chapter a discussion on the
yle of judicial opinion against
difficulties involved in the choice of one st

the other are also outlined. The studyends with an observation regarding
public hostility to law and legal institutions that exist in Tanzania and
elsewhere. Public hostility need to be understood if the general public is to
play any significant role in the administration of justice. Since good
governance and democracy involves, among other things, transparency and
accountability, relevant issues ne ed to be thoroughly discussed beyond
professional circles.

7
2. The Legacyöf Libe'raIN~I.~galism and the
Marginalization of Law
This study is about law and legalism in contemporary Tanzania. But, most
if not all, of what is taking place in the legal field at the present have to a
great extent been influenced by what happened in the past and cannot
therefore be properIy understood without it. A brief review of the past is,
therefore, in order. The legal system and the attendant legal principles
applicable in Tanzania is basically English in origin. With very minor
exceptions (the restructuring of the judicial system in 1963 and the
establishment of Ward Tribunals in 1985) the Englishlegal system and
English legal principles continue to apply, the Arsha Declaration and
socialist aspirations of the 1970s notwithstanding. One can safely conclude
that the judiciary imposed on Tanzania (then Tanganyika) in 1920, survived
as an institution through the colonial era, to independence through the
socialist construction and now into the multi-party system of government
(Wambali & Peter 1987:133).
Although personalities have to a large extent changed, due to wear and
tear and other reasons, the institution and most of the rules and practices
applicable have remained largely the same. This partly reflects the
resilience of the institution in question but, on the other hand, it is also
evidence of how some institutions are very difficult to change. The
judiciary being professional in character, the manner and patterns of its
application of legal rules are matters acquired through long term
professional training and assimilation and, therefore, internalized and not
easy to shake off.

2.1 The Legacy of Liberal Legalism

Since the present Tanzanian legal system derives from the colonial era it
is important to state here that the colonial history has a bearing on the way
in which law and legalism are viewed by both the populace and the
executive. The legal principles imposed on Tanzania as on other British
colonies, inc1ude the whole notion of constitutionalism and its COITe-
sponding elements such as: the rule of law, the separation of powers, the
independence of the judiciary, parliamentary sovereignty, to mention only

8
some. It is from these principles that current demands and debates about
human rights, representative democracy are derived. Since this study is not
meant to examine these principles in any detail it is sufficient for this
discussion only to note what prominent constitutional scholars have already
made clear. It has beendemonstrated that the'history of the rule of law can
be traced to the specific historical, economic and political struggles between
the monarchy and the bourgeoisie (Luckham 1981, Baxi 1982, Shivji 1995
and Ghai 1990).
On the relationship between the rule of law and democracy, Professor
Ghai has noted, that the two are not synonymous and that in historical
terms the rule of law came before democracy and that in its origin the rule
of law had little to do with democracy, political freedoms or social justice.
Overtime, however, the rule of law has "broadened to encompass them,

1989).'
particularIy by the extension of franchise and the recognition of certain
social and collective rights" (1990:1,3. See also Sejersted 1988 and Aubert

Although the liberal democratic principles were known to the English

colonial rulers, they were not made part of the colonial administrative
practices in the colonies (Seidman 1969). It was only during the
decolonization process that the dep ters thought it was
arting colonial mas

appropriate to incorporate them in independence constitutions, inc1uding

that of Tanganyika (now Tanzania). As part of the decolonization process
little or no arguments were raised against them and they, therefore, became
part of the independence constitution (see Baxi 1982: Chapter 2). That part
of the history is important to our endeavour to locate and understand the
CUITent events and processes, especially those related to democratization,
political pluralism and free market economics, sweeping through the third
worId in general and Tanzania in particular.
After Tanzania's independence in 1961 the country's leaders continued
to reaffirm their commtment to liberal democr(;tic values in general and the
rule of law and independence of the judiciary in p articul ar. Commenting
about Nyerere's view of law during that time Ghai observes that:

his views bear dose resemblance to the bourgeois concept. Re has

constantly emphasized the equal and impartial administration of law, and
has said that it is the duty of judges to enforee law even if it is unjust.
Their job is to enforee the law fearlessly, and the responsibilty for bad
law is not theirs (1976:52).1

Ghai (1976) analyzes in detail the attitudes of the executive towards law, legality and
the ambiguity of the situation between independence and the mid 1970s. See also Martin

9
At the same time as the above positive comments were being made,
however, the judiciary was.also urged to appreciate and take part in the
changes that were taking place in society. Speaking to judges and
magistrates in 1965, President Nyerere remarked:
'''_''''-'_''_._'',~_",__..A.';¡_, ""'fi~"';'''-''''Y;''

All aspects of our national life are changing very rapidly, and it is
important that all responsible servants of the people should be clear about
their duties and opportunities for service in the developing situation ... It
is impossible for the judiciary to continue to operate in the colonial
tradition when every thing else in the society is changing. What is
necessary, instead, is for the basic purposes of our judicial system to be
understood so that the implementation processes of those basic purposes
can be adapted to the new society, and the fundamental principles thus
preserved (Nyerere 1965:107).

Even when Tanzania proclaimed the Arsha Declaration in 1967, and

declared its intention to build socialism, similar political attitudes of urging
the judiciary to be part of these changes continued (see Nyerere 1971). It
is not in any doubt that socialism is based on principles different from
those of capitalism. Its construction, therefore, depends on conditions which
are different from those of capitalism, which include not only a different
legal system but also a different set of legal rules. Tanzania, unlike other
countries of the worId which declared their intention to build socialism,
from popular struggles and revolutions, on its part stated its corntment
to socialism through a political platform. The legal structures and personneI
inherited from the British colonial mas ters at independence, were therefore,
not transformed. They were, instead, expected to adjust themselves and
respond to socialist needs and aspirations of the country. Besides the few
nationalization laws, which placed private businesses under national control,
only speeches by political and government leaders gave guidance on what
the judiciary was expected to do in the matchtowards socialism.
The role of the judiciary in the construction of socialism was discussed
in several judicial conferences in the 1960s and early 1970s. Chief Justice
Georges (who was Chief Justice between 1965-1970), for one, was in the
forefront of reminding his brethren on the need to identify not only with the
masses, but also with government policies (see James & Kassam 1973 for
his speeches)? At the end of his tenure, President Nyerere praised him for

(1974).
2
It seems to be a shared view among commentators that expatriate judges, the category
in which Chief Justiee Georges belonged, tended to be more passive and compliant, see
Nwabueze (1977), Ross (1992) and Days, ILL et al. (1992). I am to Id that most members

10
being a very good example of what was expected of the judiciary in
Tanzania. The following words from the President' s speech illustrates this
point:

The Chief Justice has;'in"fact"shown by'"all his actions that the

independence of the judiciary does not mean the isolation of the judiciary
from the life of. the nation. Re.. has shown a recognition of its true
meaning; that in the consideration of cases, and in the giving of
judgements, a judge or magistrate takes orders from no one, but uses his
own brains, his training in law, and his independent judgement about the
issues in dispute and the facts involved. And he does this regardless of
other factors, because he knows that this is the service the people have
demanded of him 000 (Nyerere 1973:261).

Not all members of the judiciary agreed with Chief Justice Georges.
Disagreements to his standpoint are known to have taken place during
judges and magistrates' conferences and by individual magistrates and
judges. Those who did not agree with Chief Justice Georges held very
strongly to the vie w that the judiciary had to be independent of the
executive and decide cases which went before them in accordance to the
law, no more no less (Biron 1973 quoted in Wambali and Peter 1987 at p.
143). I am convinced that the role of the judiciary in the construction of
socialism in Tanzania, though discussed within the judiciary, was never
resolved. It appears now, with the benefit of hindsight, that the political
expectations, expressed by Nyerere and others, and efforts made by Chief
Justice Georges to convince his brethren, were not very successfuL. With
only a few exceptions, most of the judicial work was carried on according
to the English liberal legal traditions. Here is the point where problems
could be said to have emerged.3

of the judiciary in Tanzania in the late 1960s and early 1970s understood Chief Justice
Georges' comments and support for government policies to be prompte d by his
executive-rindedness.
3 There is plenty of literature on the inadequacies of law and the legal systems of the
newly independent states. For a review see Mingst (1988) and Nwabueze (1977: Chapter
15). Seidman, for one, notes that the rigid, complex and slow procedures of these system
(including the judiciary), makes them merely rule applying and not problem solving
institutions (1978:218). The relevance of Common Law to the contemporary African
context was a theme of the Second Commonwealth Africa Judicial Conference held in
Arusha in August 1988 (See Commonwealth Secretariat 1988 and 1986). Ghai (1976 &
1981) outlines, among other things, factors which right have contributed to the strong
suspicion and distrust of legality and court processes in Tanzania.

11
 It might have been difficult to discern, at that time, how the political
leaders felt about that judicial attitude, but from the events that followed a
little later some of which are discussed below, one can safely say that these
leaders soon ran out of patience and probably got tired of urging the
judiciary to be responsive to"social~needs.
As will be seen later, and with examples from elsewhere, such executive
attitudes could arise irespective ofwhether the regime was one party and/
or socialist oriented. As Professor Ghai has noted the existence of other
different legitimating ideologies at the time of independence affected the
force of constitutionalism and the rule of law as power legitimation. These,
together with authoritarian tendencies, influenced the way in which law and
legal institutions were viewed by the rulers from the time of independence
and beyond (1990).

2.2 Marginalization and Hatred ofLaw and Legal

Institutions
It is common knowledge that different forms of crises involving the state
in Tanzania, as elsewhere in Africa in the 1970s, also affected the legal
system. The Executive monopoly and domination which did not end with
the economic sphere but extended to the political process, including the law
making body (the legislature) also had an impact on the judiciary. There is
no doubt that the judiciary was aware of the trends in the exercise of
executive powers and observed the events like other members of the
society.
Tanzania, unlike other countries of Africa and the third world in general,
appear to have respected law and legal institutions for some time after
independence, and these institutions do not seem to have been disregarded
outright until the mid 1970s. Although political speeches made in the mid-
1960s had a tone of caution to lawyers 011 what was expected of them,
President Nyerere was still paying lip-service commtment to the rule of
law. This view is partly reflected in the Report of the Pre sidenti al
Commission on the establishment of a Democratic One-Party State
(Tanzania, United Republic 1965) where it was expressly stated that the
Commission believed thatthe independence of the judiciary was the
foundation of the rule of law.
The events of the mid 1970s, however, gave indicators of what was in
stock for the legal system in general and judiciary in particular. It was in
1973 that Nyerere first revealed his impatience with the law and the legal

12
institutions in general, and the judiciary in paricular. Addressing judges
and magistrates in Dar es Salaam on 16th May 1973 he called upon them:

to adhere to the principles of administering justice properly within the

framework of the anation'sobjectives. He,also.saidthat he would never
hesitate to take action against them, independence of judiciary
notwithstanding, whenever they misbehaved ...
... the country had now reached a very unpleasant stage where people are
complaining about ... the poor services and irresponsibility of certain
members of the judiciary ... (Daily News, 17th May 1973).

It may be recalled that the above speech was made at the height of massive
corruption allegations within the police force and the judiciary.4 Several
senior police officers had already been retire d allegedly in the public
interest. One informed commentator writing about the workings of the
judicial system (at the district level) observed that:

This part of the system deteriorated from about 1970 onwards. Petty
corrption became so widespread in the police that the easiest way to
defend a case was to bribe an officer to lose the case fïle. This led to
repeated adjournments, waste ofwitnesses' time... It became hardly worth
while prosecuting for burglary or assault, unless the unfortunate offender
was nearly destitute.
The authority of the legal system was further undermined by the
unwilingness of the politicians to enshrine what they were do ing in law
(Coulson 1982:221).

From these events, and with the benefit of hindsight, it may be said that the
caution in President Nyerere's speeches in the mid-1960s and early 1970s
also embodied important signals of his concerns about law and legal
institutions. When the opportunity presented itself, in the form of public
complaints against the legal machinery in general and the judiciary in
particular, that became the starting point for executive confrontation with
the law and legal institutions.

4 This led to the appointment of the Msekwa Commssion in November 1974 with the
following statement as part of the terms of reference: "to review certain aspects of the
legal system and to recommend changes aimed at improving the adnnnistration of justice
in the country...". The Commssion presented its report in 1977 (Tanzania, United
Republic 1977).

13
 As will be shown in chapters 3 and 4 not very much is known to have
been done, on the part of the judiciary, 5 in response to the President' s
caution and threat in comparison to the reforms which were introduced in
the mid-1980s. This lack of visible action is very difficult to understand
and/or explain. In my own viewthe sIlence,on the part of the judiciary;"
was itself a philosophical reaction. Both individually and collectively, under
the doctrine of the independence of.the judiciary, judicial officers decided
to watch the events from their secluded chambers without raising a finger.
There could have been a fe eling that such statements from the executive
branch were no more than executive interference. As one legal presumption
go: allegations of criminal nature need to be proved beyond reasonable
doubt, by those who make them. The allegations above were no exception.
In his discussion, with examples, of the relationship between government
and the courts in Tanzania in the 1980s, Mwaikusa (1991) identifies three
important features. These are: court's attitude of subservience to the
executive, executive disregard of court orders, executive mistru st and
(sometimes outright hatred) of the judiciary (see also Wambali & Peter
1987: 136- 141). It was President Nyerere' s speech, at the time of launching
the anti-economic sabotage campaign, on 5th April 1983 that the hostile
relationship between the executive and the judiciary were clearly exposed.
Suspected economic saboteurs were not to be taken to ordinary courts but
to an anti-economic sabotage tribunal created for that purpose.6
A year later he met judges and magistrates and said that it was not an
occasion to speak about successes but about problems and faIlures affecting
justice and its administration. He told them of the government' s
commtment to the rule of law and the equality of all people before the
law, and noted that:

5
Two important events relevant to this discussion need to be mentioned: first, a study was
commissioned by the government in 1978 to find out the possibilities of decentralizing
the judiciary. The report was accepted in October 1980 and a decentralized system
became effective on 1st July 1981; second, a tribunaL, convened in accordance with the
provisions of the Constitution, held the first judicial enquiry into the discipline of four
judges in 1982. The second such enquiry to be held in Tanzania was held in March
1991. See chapter 3 for details about the circumstances in which it was held.
6
See the following report in the Africa Contemporary Records: Annual Survey and
Documents, (1982/83) volume 14 at B281. "The reasons given for short-circuiting the
standard legal procedure turn on the difficulty of securing evidence adequate to convict
major offenders, and the tendency for courts to impose trivial sentences." Also Peter
(1983) and Wambali & Peter (1987:140). Justice Kisanga was the only judge to speak
about the anti-economic sabotage campaign in public. See Kisanga (1983).

14
 we cannot say that our people are absolutely equal before the law. It is
stil an advantage to be educated, to be wealthy or have wealthy friends
or relations, or to have friends or relations in high places. And the great

1984).7" ' .' ,

public dissatisfaction with the administration of the law - often fully
justified - hasnQtJ~çlJo~1ht..,Jl~ç.~ssary'ç9rrectlve . (iction (Nyerere

He categorically stated that the judiciary was doing nothing or very little
(either for failure or unwillingness) to remedy the situation. Sources in the
Attorney GeneraIs' Chambers, well informed of the events of the 1980s,
talk of President Nyerere's intention to sack a High Court judge, for
example, for giving a judgement in the case involving a public corporation
which the President thought "unacceptable". The senior lawyer, to whom
the President spoke, advis ed the President of the appeal option available to
the government and the dangers involved in the sacking of the judge. The
President is said to have reluctantly accepted the advice and the appeal to
the Court of Appeal subsequently succeeded.8 As Mwaikusa has cOITectly
noted, the events of the mid 1980s vividly demonstrate how the executive
mistrusted (and/or hated) the judiciary. In chapter 3, I will discuss how the
judiciary came out of the closet and reacted to these challenges, unlike the
manifest silence that greeted the Presidential speech in the earIy- 1 970s.
From the two speeches above and the executive actions of that time in
general, we may deduce several kinds of criticisms which have been
levelled against the judiciary in Tanzania.9 Besides inefficiency and non-
accountability (which took many different forms), there were criticisms on
responsiveness to social needs, criticisms about maladministration (in the
form of corruption, abuses of power and favouritism). There were also

7
There appears to be an interesting coincidence here. Whereas the President gave his
speech at Arusha on 15th March 1984, the Chie:FJustice addressed the National
Executive Comnttee of the ruling party on the need to observe the rule of law on 30th
May 1984, see the discussion in chapter 4, especially 4.1.2.
8
The case of National Agricultural and Food Corporation v. Mulbadaw Vilage Council,
Court of Appeal civ. app. 3 of 1985 decided on 21st June 1985 overturning the High
Court decision of Judge D'Souza given on 3rd December 1984.
9
My own survey of the Permanent Comnssion of Enquiry Reports revealed that the
judiciary occupied 13 or 14 positions of government departments against whom
complaints were filed in the early 1970s. That position changed from 1976/77 when the
judiciary ranked among the top 4 of the departments complained about. Although these
reports are not conclusive in any way, as they contain reports of both complaints found
to be valid and those which are not, the change in the total number of complaints
received against the judiciary partly indicate the feelings of injustices caused by the
department to the complainants.

15
criticism about the colonial image of the judiciary. Chapter 4 will highlight
what Justice Mwalusanya has called abuses of power by the judiciary
(albeit by omission). It needs to be stressed that criticisms of this kind were
and still are made against the judiciary in Tanzania and elsewhere. They
have been made againstjudiciaries in'countries'with or without a one-party..
political system and countries pursuing or not pursuing socialism as a
political ideology.
I can only mention here countries on which literature is readily available
and the crises of the judicial system, like those observed in Tanzania, have
been outlined and to some extent discussed. On the African continent, they
include Ghana (Koilarbi 1989), Kenya (Kuria 1991, Muingai 1991, Days,
ILL, 1992 and Ross 1992), Lesotho (Amoah 1987a), Botswana and
Swaziland (Amoah 1987b), Nigeria (IkharialeJ990, Olowofoyeku 1989),
Zambia (Chanda 1995, Mbao 1992) and South Africa (Cameron 1990,
Corder 1984, Dyzenhaus 1991 and Ellmann 1992). India is an example
from Asia (Baxi 1982, lyer 1987 and Bhagwati 1987). Zagaris (1988)
indicates that almost all the Commonwealth Caribbean countries have faced
crises, Castaneda (1991) discusses crises in Colombia while Anderson
(1989) documents the same in Guatemala. Developed countries have not
managed to avoid some of these problems either. There is evidence of
crises in judicial systems from the United State of America (Franck 1949
and Frank 1972) and England (Thomas 1982 and Johnson 1992) as well.
Although the kinds of crises and the magnitude of the problem differ
certain things appear to be common. In South Africa, the judiciary suffered
from the legitimacy problem generally . Nigeria, Ghana, Kenya, Lesotho,
Botswana, Swaziland and India almost have similar problems like those in
Tanzania. The United States of America and England, like all the countries
mentioned above, have problems related to lack of efficiency in general and
delays in particular, especially regarding criminal trials. In England, public
confidence in the criminal justice syste,ll si;~lls to be on the decline as
well. Out of all the countries mentioned, only the Indian Judiciary appears
to have come to terms with the problem and have even gone to extent of
inventing special procedures to deal with some specific pressing aspects
(see Bhagwati 1987, Cottrell 1992 & 1993).
Chief Justice Francis Nyalali, however, seems to confine his inter-
pretation of the events discussed above, and the marginalization of law and
legal institutions in general, to the one party political monopoly. In his
opinion, which is best expressed in the following long quotation, the one-
party ideology displaced liberal legal ideology.

16
 It was for that reason that the ruling party ideology and party constitution
was taught in Tanzanian schools, and the party was organized at alllevels
and in all sectors of the society, from the nationallevel down o the cell
lev el constituting of ten households. It was for the same reason that civics
and the country' s cQnslitigiog c.~a~~StJ9 be tayglit in Tanzanian schools
by the end of the 1960's. It is in that context that it was possible to move
the vast majority of the rural population into about 800 new ujamaa
vilages without enacting or using any law to legalize such a far reaching
programme. It was similarly possible to nationalize a wide range of
commercIal private enterprises by skeleton legislation, which dis-applied
the time-tested Companies Ordinance, without providing for alternative
legal norms to regulate the activities of the nationalized firms. The same
explains why government was managed by a politicized cIvil service
which increasingly became ignorant of administrative law and practice. It
also explains why public offices ceased to keep proper records of statutes
or Acts of Parliament, and why court libraries ceased to be supplied with
new law books ... There are endless ilustrations of this state ofaffairs
right up to the time when the historic decIsion to change from one party
to multi-party democratic state was made (Nyalali 1994b).

The Chief Justice' s limited interpretation seems to me to miss several

significant points, especially the positive way in which law was viewed in
the earIy parts of the one-party era. Such a restriction has adversely affected
the reform process initiated by the judiciary and might as well have
consequences on the direction the judiciary wants to take during political
pluralism and market economy now in the making in Tanzania. This will
become clearer in the chapters ahead when a discussion of the reforms he
has been attempting to put in place is made and how these have been
understood both within and outside the judiciary.
It is in order at this point to state in very clear terms that complaints
regarding the performance of the judicial branch were made and heard from
many quarters (the executive, legislature, theruling party and the general
public) since the 1960s and 1970s. These grievances, valid or otherwise,
together with authoritarian tendencies among some executives, were not
necessarily led by or confined to (although they might have been
strengthened and hardened by) the one-party political ideology prevalent at
the time. The persistence of complaints and grievances ultimately led to a
re-examination of attitudes among senior judicial officers. Such a re-
consideration was necessary, if the judiciary was to command any respect
at all. As will become apparent in the following discussion these responses,
however, might have come too late and may not be adequate to have any
apparent impact.

17
 That background and con text of the marginalization of law and legal
institutions in Tanzania, and possibly in other third worId countries where
it has arisen, has to be taken into consideration. Such an understanding
suffice as a basis for reflection about the changing fortunes of law and legal
institutions (from marginalization-to'prornnel1ce),"instead of the changes
coming as a surprise or even bein g taken for granted and lightly.

18
3. Judiciary: T()wOards~Reboiiding its
Image
The marginalization of law and legal institutions, discussed in the preceding
chapter, had (and continue to have) immense implications to the legitimacy
of the legal system as the whole and the judiciary in particular. Not only
was the law of the land disregarded, the judiciary was sometimes outrightly
hated by the executive, Mwaikusa cOITectly observes (1991:101). As a
consequence legal institutions were also starved of financial and other
resources. Commenting on this aspect the WorId Bank noted that there was
a widespread institutional decay in most of the sub-saharan African
countries, including the breakdown of the judicial system (1989:3, 22 and
30).
In this chapter an attempt is made to discuss how the judiciary in
Tanzania responded to some criticisms levelled against it. The chapter
begins with what is called "the climbing down from the ivory tower", and
describes how its leaders reacted to marginalization in order to capture lost
grounds and restore its image and legitimacy. It then goes on to show how
these attempts coincided, in many respects, with donor thinking at the time
and how the WorId Bank and other donors responded positively towards
assistance to the legal sector, including the judiciary. By way of conclusion
and with the benefit of experiences from other crisis-ridden judiciaries with
an English law origin, a pessimistic note is sounded that although both the
responses initiated by the judiciary and the assistance given by the donors
are welcome and commendable, they are not by themselves enough to
change the bartered image of the judiciary..and restore positive public
confidence. Other important issues and questions have to be adequately
addressed.

3.1 Descending from the Ivory Tower

Criticisms against the judiciary had been thrown from right, left and centre.
Departmental leaders had no option but to climb down from the ivory
tower, re-examine and respond to some of the criticisms which were not
only persistent for years, but also valid in some respects. Although some
measures were introduced in the mid 1980s, it was not until earIy 1990s,

19
that members of the judiciary came out in theopen and asked themselves
sour searching questions regarding some of these criticisms (see Nyalali
1988, Bahati 1989, Chua 1989, Mfalila 1989, Mwalusanya 1989).
Conferences were organized for judges in 1991 and 1992 at which papers
and reports were presentedwith'findingsand"recommendations, some of
which were unheard of in the past (see Chipeta 1991, Kisanga 1991,
Mrosso 1991a and 1991b and Ny alali 1991). Issues, such as the causes for
the crisis of confidence in the rule of law, were raised and discussed. The
existence of corrption, among individual judicial officers, were mentioned
in public and measures aimed at combating them were outlined (Justice
Lubuva in the Daily News, 7th May 1988 at Tabora and Daily News 20th
March 1989 an Mwanza and Justice Mwaikasu in the Daily News 2nd
August 1991). Members of the judiciary (atJ~ast the senior ones) showed
their willingness to discuss openly transgressions among their own ranks
and make recommendations. This was in shar contrast with the past when
only a few brave officials were willing to' acknowledge that there were
problems in the judiciary. Reference will be made to these reports at
appropriate stages of this chapter. The initiatives and changes are numerous,
and some are far reaching. For ease of presentation, I have categorized
them under three broad headings: those introduced to enhance efficiency,
measures meant to strengthen discipline and accountability among judicial
officers, and those related to increasing' public awareness of judicial
activities and public relations.

3.1.1 Enhancement of Efficiency

The judiciary, like all government departments, cannot disregard the calls
for efficiency and effectiveness. Complaints regarding delay in the hearing
and disposal of cases, delay in delivery of judgements, were made at
different times in the history of the judiciary in Tanzania as elsewhere.
Judiciary bosses could not afford to dismiss these complaints on the pretext
of keeping the executive away from interfering with the independence of
the judiciary. At different times the judiciary responded by introducing
measures which were meant to do away with or at least reduce such delays.
In response to the problem of delays in disposal of cases, for example,
both legal and administrative measures were taken. For the purpose of this
discussion only administrative measures will be dealt with. These include
the introduction of case flow management procedure (by Chief Justice
circular number 2 of 1987), hearing of cases on shift basis (otherwise
known as the relay system, by Chief Justice circular number 3 of 1987).
Other efforts include: filing and admission of cases and applications in the

20
registries (also known as case stock taking, by Chief Justice circular
number 1 of 1992), a requirement that magistrates should produce reports
on cases conducted by advocates (also known as disposition of advocates,
by Chief Justice circular number 2 of 1992), and the introduction of
individual calendar (by .ehiefJustice 'circular'number 3 of 1993). One
senior judicial officer observed to me that in three years (i.e. between 1992
and 1994) the honourable Chief Justice issued many more circulars than he
did for the previous 15 years (i.e. 1977 to 1991) put together. That
comment could not be an over-exaggeration.
For want of time and space these measures can only be mentioned here
in passing but it suffices to mention here that the introduction of the shift
system, for example, followed the challenge made by President Ally Hassan
Mwinyi during a speech to Judges and Magistrates in Arusha on 27th
August 1986. The President challenged judicial officers to work out
mechanisms for speeding up the hearing of criminal cases by comparing
their services to those of the medical staff. It is on record that the President
remarked that:

considering that court proceedings normally start late even this period is
not fully utilized. A system could be revised to ensure that those rooms
could be used for a much longer period by working in shifts. Hospital
staff work in shifts to ensure that patients are .attended to all the time.
They have great concern for the people they serve. Judges and magistrates
should demonstrate the same sensitivity for the people they are supposed
to serve (Mwinyi 1986). i

The above remark is important when considered together with questions

related to discipline among judicial officers to which I now turn.

3.1.2 Judicial Accountability and Diseipline

Demanding discipline and accountability among judicial officers is one of
the matters which has for a long time been considered a taboo, on the
pretext that raising it amounted to executive interference with the independ-
ence of the judiciary. Any attempt at raising the same, by members of the
public and the press has in some other countries been encountered by
charges of contempt of court (see lyer 1987 and 1991). Chief Justice
Georges' attempts in the late 1960s and earIy 1970s were brushed aside as

This faet is aeknowledged in the introduetion to the Chief Justiee eireular number 1 of
1987.

21
being motivated by his executive-mindedness. The events of the mid 1970s
and mid 1980s necessitated for a reconsideration of these attitudes.
I indicated above how in May 1973 the President at the time (Julius
Nyerere) expressed his fears about discipline among law enforcement
officers (including judges 'and 'magistrates) and how this was followed by
the appointment of the Msekwa Commssion. In 1984, following the anti-
economic sabotage campaign in April 1983, these fears were echoed again
in a more critical manner. In his opening address to the judges and
magistrates conference the President spoke at length about the problems and
failures affecting justice and its administration. He noted that:

The truth is that the protection of the principle of the Independence of the
Judiciary is in your hands, and especially in the hands of senior judges ...
y ou must enforce discipline throughout the judiciary ... There are jobs in
our society which can be done by undisciplined people and people whose
personal integrity can be called into question; being ajudge or magistrate
is not among them (Nyerere 1984).

At the meeting where the above opening speech and remarks were made a
Code of Conduct for Judicial Officers was adopted. The code covers the
conduct of all judges and magistrates and a violation of any rule constitutes
a judicial misconduct and entails disciplinary action. Since its introduction
several magistrates and a judge are known to have been disciplined. In
March 1990, for example, a High Courtjudge was suspended (Daily News,
14th March 1990) and in less than a month's interval a senior resident
magistrate was also suspended (Daily News, 4th April 1990). Both faced
disciplinary charges a little later. 2
In 1990 and 1991 several other measures were taken to tighten the grip
and further enhance discipline among judicial officers. These include: the
amendment of the Advocates Ordinance; Chapter 341 of the Laws (Act 12
of 1990), and the delegation of disciplinarypowers of judicial officers to
Regional and District Judicial Boards (Government Notice 510 and 511 of
1991). The amendment to the Advocates Ordinance was meant to giv e
powers to judges to suspend advocates suspected of causing delays in the
hearing of cases in which they are representatives of contending parties.

2
It must be noted that disciplinary measures against the judge and magistrate took place
during or at about the same time as the March 1990 cabinet resignation event. The
ConstItutional tribunal for the inquiry into the discipline of the judge was ultimately
convened in March 1991. This was the second in the history of Tanzania since
independence. For the circumstances and context in which the first tribunal was held, see
chapter 1.

22
Advocates, through the Tanganyika Law Society in which all practising
lawyers are members, protested this amendment. When the law was
proposed they met the Attorney General and urged him to withdraw it,
contending that the law was unconstitutional and that it would lead to
anarchy in courts. The Attorney~Generai told.them.that the basic aim of the
law was to instil discipline and control in the profession (Daily News, 2nd
April 1990). The law was ultimately passed but advocates continue to
protest it even today. 3
It must be said in regard to disciplinary powers that, before the 1991
amendment of the disciplinary rules and the delegation of powers to the
Regional and District Judicial Boards, most powers were vested with and
exercised by the Judicial Service Commssion, appointed under the
authority of the JudiciaZ Services Act, Chapter 504 of the Laws.4
There are complaints regarding the Code of Conduct among junior
magistrates, for example, who argue that its equal application to all judges
and magistrates across the board does not take into consideration the fact
that judges are relatively better remunerated and have relatively better
working conditions, which places them very far away not only from
executive pressure and scrutiny, but also from public eyes and day to day
temptations. It is argued that in present circumstances and in its current
enforcement procedure, magistrates are much more likely to be found in
breach than judges. This is not because magistrates are more indisciplined
than judges, but because the former are more exposed than the later. A
point is also made that most decisions regarding discipline within the
judiciary are taken at higher levels (by Chief Justice and senior judges)
without adequate consultations with the lower levels (magistrates) and that
the latter is usually informed of the decisions by way of circulars.
Since 1991 the judiciary has also intensified the system applicable for the
recruitment of magistrates at all leveIs. I am informed that the new
procedure is intended to ensure that the peapl~,(l.ppointed to these sensitive

3
I am reliably informed, by sources within the Tanganyika Law Society, that clashes have
already occurred between some advocates and judges following the latter' s exercise of
disciplinary powers over the former. This partly confirms the fears expressed by Law
Society members before the bil in question became law.
4
Rules for the discipline of primary court magistrates and district and resident magistrates,
can be found in Government Notice 57 of 1965 and 175 of 1965 respectively. This
disciplinary procedure, however, was on many occasions in the past blamed, not only
for being dis tant and far removed from the stations where most magistrates work, but
it was also said to be slow to obtain any favourable results in cases where insconduct
was alleged because of the lengthy appeal procedures embodied in it. For a general
discussion on the accountability of judges, see Cappelletti (1983:46-52).

23
jobs, in the administration of justice, do not have a record of bad
reputation.
In the bid to sharen the focus on discipline among magistrates and
judges, a recommendation was made by the Mrosso Commission (1993)
that complaints officers neededto be appointed within the judiciary. The
recommendation on the appointment of such officials means that the
judiciary has started to take the question of discipline (or indiscipline)
among its ranks very seriously, and complaints officers will deal full time
with matters related to the discipline of all judicial officers.

3.1.3 Mending Fences with the Public

Since the inheritance of the judiciary from the English colonial mas ters at

independence, its operations have been conducted in an aura of mystique

and guided by the principle of the independence ofthejudiciary. This
approach, however, could not withstand the needs and demands of our time.
President Nyerere is on record calling upon judges and magistrates to
identify with the masses only a few years after independence. In a speech
to judges and resident magistrates held in Dar es Salaam on 7th December
1965, Nyerere said among other things that:

It is only by being an active part of our society that our judiciary can play
its full part in shaping the development of our society. What better place
to teach, both by example and by precept, the fundamental principles of
the rule of law than at Party meetings and Party activities? Our national
unit y allows us this opportunity for sowing an understanding of the
requirementsof justice, and for learning about the people's meaning when
they talk of justice (Nyerere 1968: 113).

On many occasions in the late 1960s and earIy 1970s, Chief Justice
Georges urged judicial officers to identify with the masses (see James &
Kassam 1973). Like issues of efficiency and discipline, this call was
disregarded and misinterpreted for compromising the cherished doctrine of
judicial neutrality.
When crises crept in and things started to go wrong, the judiciary not
only remembered the wisdom of identifying with the people, but also to ok
initiatives to make the people aware of theIr legal rights. With effect from
July 1992 the Judiciary has been involved in mass education about legal
rights and duties. This is done through radio programmes (broadcast twice
a week), newspaper colurns and weekly meetings with identified
audiences.

24
 A journal known as Judicial Bulletin: a Journal of Judges and
Tanzania was launched in 1991 (as volume 1 for
Magistrates Association of

1989). The honourable Chief Justice writing in its foreword, stated that:

A professional journalisessential'forany dynamic'professional body, like

the Judges and Magistrates Association of Tanzania ... such a journal is
a necessary medium for the interaction of professional minds within the
professional body on the one hand, and the dissemination of ideas,
knowledge and information to the public, on the other (Nyalali 1989).

The above statement has elements both of legal awareness and publicity.
That issue of the journal had interesting articles covering a variety of
pertinent issues, including those under discussion here. There were three
articles on the administration of justice and one on the prevention of crime
in Tanzania. An article titled "Administration of Justice in Tanzania: Delays
in the Disposal of Case" written by Justice Mfaliladeserves a special
mention for the openness and self-criticism approach with which it was
written.
After highlighting on how the problem of the disposal of cases was
notorious, and how a long time advocate advised some of his clients to seek
for assistance elsewhere, instead of going to courts (which the justice of
appeal considered to be a bad commentary on the country' s judicial
system), the author gave one example of the cases he found pending at
Arusha (one of the eight High Court registries) to illustrate the nature of the
problem.

It was High Court criminal appeal No, 22 of 177 which went before the
judge for admission on 11th June 1977. It was not until30th August 1979
that it was admitted to hearing! The appeal is stil pending (at the time he
was writing in 1989). Yet the admission note which took two years to
write was only a two line affair - "Adi:it tp scrutinize evidence". I
thought any c1erk could have written that (1989:15).

These were serious observations made by a justice about another judge. The
observations and the approach in which they were made, however, partly
reflect the change of attitude within the judiciary on matters its members
were willing to talk about and criticize. Such an attitude and criticisms
could not have been heard of in the past. For reasons we need not go into
here no other issue of the journal has since been published.
Judicial initiatives and efforts towards publicity and increased public
relations activities in order to facilitate the portraying of the positive image
of the judiciary to the public were given another boost in 1993. The Mrosso

25
Commssion (1993) recommended, among other things, the establishment
of a public relations unit within the judiciary and the appointment of public
relations officers. The implementation of the above recommendation, like
other proposals floated within the judiciary in recent years, will no doubt
be subject to the av of fundsfrom ~thei"very government, which is
ail ability

already operating on a shoe-string budget, and engaged in retrenchment of

employees as part of the WorId Band and IMF led Civil Service Reform
programme.

3.2 Funding of the Proposed Reforms

Judiciary officials were (and still are) aware that most of the initiatives put
in motion and recommended reforms needed immense funding. They were
(and still are) also conscious of the fact that the government could not be
expected to provide all the funds needed for these efforts. I am reliably
informed, by sources within the Nordic donor community and elsewhere,
that senior officials within the judiciary presented a number of requests for
assistance in relation to some of these reforms in 1990.
As luck would have it, this was the very time when the W orId Bank, in
collaboration with other donors, was already looking into the possibilities
of providing financial assistance to areas critical to the efficiency of the
public service, to the rule of law, and in particular, to the success of
Tanzania' s economic reform program. The two areas identified by the
W orId Bank were: public sector fin al management (especially
anci

accounting and auditing) and the legal and regulatory framework. So

judiciary requests and applications for funding were not only timely but
were also received with compassion. The World Bank assistance to the two
identified areas became known as the Financial and Legal Manpower
Upgrading Project - FILMUP (W orId Bank 1992). FILMUP must be
understood in the context of two distinct' bulrelated developments and
experiences worthy of mentioning.
FILMUP-like project, known as Administration of Justice Improvement,
was introduced in the Commonwealth Caribbean in 1986.5 The project was
introduced following the Kissinger Report which recommended that the
Reagan Administration should encourage, among other things, the building
of strong judicial systems to enhance the capacity to redress grievances
concerning personal security, property rights and free speech. The focus of

5 According to Zagaris (1988:561-3) the Kissinger Report was produced in 1984. Funding
for the project were authorized in 1985 for the project to become effective in 1986.

26
the project was to enable the rule of law to build a cornerstone of
democracy and a positive force for just economic and social development
(Zagaris 1988:561).
Closely related to the Caribbean experience above is the W orId Bank
(1989) publicationwhich focused"sharply on the "restructuring of the
African state in order to make it supportive of long term strategy for the
liberation of the market forces and entrepreneurial potentials of African
society" (Beckman 1992:83). It was in this report that the WorId Bank
expressed the ne ed to rehabilitate, among other things, the judicial systems
in sub-saharan Africa so that they could become well - functioning again and
be relied on to protect property and to enforce contracts (1989:9 & 192).
It followed, therefore, from the above that law and legal institutions were,
as of necessity, to become prominent not only for the regulation of free
market, but also for safeguard of the rule of law, the independence of the
judiciary and protection of human rights (1989: 192).
The purposes and even the language of the Caribbean project' and the
W orId Bank Report discussed above are similar in many respects. And
although the FILMUP project in Tanzania is related to the above two
developments and experiences it also differs from them in some ways. One
such difference need to be mentioned here, if only because that is explicitly
stated in one of the W orId Bank reports. The Caribbean experience was
initiated by America and funded by North American organizations (with the
exception of the Commonwealth Fund for Technical Development and the
British Development Division in the Caribbean which came in much later).
FILMUP, on the other hand, was initiated by the WorId Bank with the
British and Nordic perspectives and dimensions added to it. The project
was (and still is) funded by the W orId Bank, the British Overseas Develop-
ment Agency (ODA), and Nordic donor organizations (DANIDA, SIDA
and NORAD) and the Canadian eIDA (being the only North American
organization). This cannot be sheer coincidence or accident. The influence
of the Nordic donor organizations can be found in the following quotation
which expresses these organizations' influence in Tanzania and their
concerns for good governance and human rights related issues which are
not WorId Bank concerns:

Government, Bank and donor interests in public financial accountability

are similar and non-controversial: good accounting and auditing systems
are essential for good economIc management. With regard to the legal
framework, however, the Bank approaches issues of legal reform from the
stand-point of economic efficiency, but many bilateral donors, now keenly
interested in the legal framework, approach it from the point of view of
human rights and good governance. The two interests converge in

27
 practice, not only because good "economic" laws governing, for example
rights to property, serve as a logical starting point for good governance,
but also because the same legal institutions (e.g. the Ministry of Justice)
administer the legal framework for both economic and political rights
(World Bank 1992: par~LL042~",

The addition of both the British and N ordic dimensions in the Tanzanian
FILMUP have a history (in the case of the British) and practical influence
aspects (in the case of the Nordic donor organizations) attached to them
which I ne ed not go into here. That history and influence are important,
however, to the proper understanding of the intended reforms.
At the time of writing an assistance, to the tune of USD 5.0 million as
immediate direct assistance to alleviate some of the pressing needs of the
legal sector as a whole, had already been given. For the judiciary,
assistance was given to "finance training, library support, typewriters, and
computers and other office equipment needed for a first-"stage management
information system" (WorId Bank 1992:19). Further funding was directed
towards a study meant to determine a long term development strategy for
the legal sector including the judiciary. At the time of writing the ten sub-
projects had submitted their reports.6 A general country report was still
being prepared and results anxiously awaIted.
All legal institutions in Tanzania are excited by and optimistic about not
only the change from the marginalization of their institutions to prominence
accorded them by the WorId Bank and the free market economy and
political pluralism as a whole, but also with the FILMUP which was
working towards the revitalization of legal institutions. Private legal
practice in Tanzania has recently increased from less than 100 registered
advocates in 1982 to slightly over 250 in 1994. This is still a small number
when compared with Kenya, which had 852 practising lawyers in 1987 and
1200 in 1991 (Ross 1992:424 & Kariuki 1992: 155), for example, but it was
by any standard an unprecedented upward'increase. This excitement and
optimism were echoed by the honourable Chief Justice in a speech he gave

6 Out of the ten sub-projects covered by the FILMUP study eight are of immense direct
relevancy to the judiciary. These are:
i) The Administration of Justice; ii) Legal Education; iii) Law Libraries; iv) Quasi-
Judicial and Alternative Dispute Resolution; v) Law Reform and Law Revision; vi)
Legal Database and Registries; vii) Legal Literacy; viii) Legal Profession.
The other studies are:
i) Attorney General, Government Legal Offices and Tanzania Legal Corporation; ii)
Ombudsmanfermanent CommIssion of Enquiry.

28
at the Law Society Dinner on 13th August 1994, where he said among
other things that:

The administration of justice is a crucial component of the Rule of Law

and, consequently; of Good~Governance,. Itseems, to me that until fairly
recently, the administration of justice in developing countries was given
the lowest priority by both international and national agencies of
economic development. There is now an encouraging realIzation
nationally and internationally that there can be no sustainable economic
development without the enabling environment of the Rule of Law. As
you are all aware, there is currently going on a wide ranging study of our
legal sector ... It is unprecedented in scale and objectives on the African
continent. We must give this exercise our total support. The study, code
named FILMUP, seeks to identify the deficiencies currently afflicting the
legal sector and to recommend appropriate remedies. With the active and
enlightened commtment of its legal profession, Tanzania stands a good
chance of becoming a model of how a one party state in' Africà 'can trans-
form itself into a multi-party state with solid roots in the Rule of Law.
As we await the outcome of the FILMUP exercise, we must however
press ahead with the obvious reforms in the legal sector which do not
require large additional resources to implement. We in the judiciary are
committed to do so. (Nyalali 1994a).

What the FILMUP study findings will be we cannot tell at this stage.
However, there is little doubt that lots of money will be required given the
neglect and run down that has gone on for many years. One significant
caution needs to be made here. Not all the money required for the
rehabilitation of the legal sector will be provided by the W orId Bank and
other bilateral donors. Some of it will have to be raised by and come from
the government of Tanzania itself.7 How much the government will be
willing to give depends not only on what will be available in government
coffers, but also on the government understanding and appreciation of the
problem at hand and more so on its willingness to disburse funds for that
expenditure item. That is where some of the existing optimism might have
to start fading.

3.3 From Marginalization to Prominence: What Next?

It must be said at this stage that initiatives of both the mid 1980s and those
of the early 1990s were to a great extent influenced by political and

7 This point is evident all along the World Bank (1992) publication.

29
executive events that took place at the time. It has already been shown
above, how the judiciary responded and acted following the two
Presidential speeches related to the anti -economic sabotage campaign in
on
1983 and 1984. I also mentioned that in 1986 the judiciary was called up

by the President to emulate workersby"working on shift basis and

hospital

that they responded accordingly. Two further important events ne ed to be

discussed here: the Presidential speech to journalists in 1988 and the March
1990 cabinet resignation.
On 24th December 1988 President Ally Hassan Mwinyi spoke to
journalists. The important part of the speech, relevant to this discussion, is
reproduced below from the front page of the Sunday News, 25th December
1988.

President Mwinyi has said the iron broom is sweeping quietly to avoid
intimidating the faithful and alerting the unscrupulous elements in
government and public institutions ... The President, h6wever, said the
speed of the broom was being regulated by the rule of law. "Since we
accept that the rule of law should prevail, we should allow the law to take
its course", said the President, adding that the same law was at times
protecting people who were publicly known to be wrong-doers. "The
problem is not with lawyers, it is the law itself. That is why we have the
Law Reform Commission to review the law so that it do es not protect
undesirable elements", President M winyi stressed.

The other event worthy taking note of happened in mid March 1990. It was
first on the 12th March that President M winyi asked all ministers to resign
their posts to allow him to appoint a new cabinet (see Daily News, 13th
March 1990). Three days later a new cabinet was formed with seven
ministers dropped, including the Minister for Justice, Minister for Health,
Minister for Home Affairs and Minister for Tourism, Lands, and Natural
Resources, among others.
When the President was asked why he asked the cabinet to resign, he
said that it was prompted by the fact that corruption had become rampant
in government and that there was a lack of accountability. In his own words
he noted that "malpractice were widespread throughout the government, but
they are worse in these ministries" (meaning of course those ministries for
which the seven ministers were dropped. See Daily News, 16th March
1990). An understanding of the efforts and initiatives proposed and put into
place by the judiciary must take these events and processes in mind.
d
It is my humble suggestion that the judiciaty has, all along, been force

into reacting and responding to events. It was not, as we may be led to

believe, that the department has been preparing itself, and the legal system

30
as a whole, for the demands of transition to political pluralism and free
market. This diametrically opposed view has enormous implications, for the
prominence accorded to the law and legal institutions, especially the
judiciary. Important issues which need to be discussed and reflected upon
are not only taken forgranted;.they~areals00being"disguised. This is unsafe
at this time when transparency and accountability are part of democratic
requirements. Some examples of existing limitations and constraints will be
shown in chapter 4. It suffices to emphasize here that other judicial
systems, similar to that of Tanzania but also different from it, have been
plagued by crises as well. The understanding of the fact that other
judiciaries elsewhere are experiencing problems like those seen in Tanzania
may help us to know the place and role of law and legal institutions in the
transition to both political pluralism and free ,market economy. Such a
background may be a trigger to a discussion of issues that have otherwise
been taken for granted.
This is not an appropriate occasion to go into the' details of these
problems, but one general comment may be in order. There are certain
notions and principles of the adversarial system of justice which make the
judiciary isolated, paternalistic and out of step with social needs and
demands. An uncritical adherence to some of these may be leading towards
self destruction. Although an understanding of the existence of such
limitations already exists, views on how they may be mitigated or even
outrightly jettisoned differ (see Cappelletti 1981 & Shetreet 1988). These
differences and other constraining factors are discussed in chapter 4.

31
4. Leading theRef(Jrms:~~'*n"'''Articuiation
of Constraints
The judiciary is an institution, but it is at the same time composed of
individual actors. These are the nuts and bolts without which the institution
cannot do anything. These include judges (both in the High Court and
Court of Appeal, magistrates (in the resident magistrates' courts, district
courts, and primary courts). They also include all the supporting staff, the
court clerks, process servers, administratorsand accountants, and their
assistants and secretaries of course. These are the actors all of whom
together make the judiciary tick. As an institution these actors work
together and portray the image of that institution. The actors, therefore, giv e
the institution an image of oneness.
The fact that institutions are composed of individual actors makes it
necessary to understand that there are roles and contributions which these
individuals play as individuals, and which cannot necessarily be attributed
to the institution in which they belong. These roles and contributions
differentiate the individuals in question from their colleagues and counter-
parts in the institution. In studying institutions, both the oneness of the
collection of individuals and the differences between them, have to be
properIy understood. Such an understanding may help in determining how
and to what extent the actions and decisions of individuals are representa-
tive (or otherwise) of the institution in which they are members.
I have a feeling that since reforms have very of ten been led by
individuals, a study of individuals may help to highlight some of these
problems as well. Warren Burger and John Marshall (in USA), Lord
Denning (in England) and Bhagwati and Krishna lyer (in India) are among
prominent examples of, not only how individual justices constitute
component parts of judicial institutions, but also how individuals shaped
and moulded institutions in which they were a part. I, therefore, decided to
survey and document, as part of this study, some individual actors who, I
and probably others feel, have played leading roles in the judiciary
department, and who at the same time epitomize some of the inherent
constraints reflected in the reform process. Choice of individual justices in
Tanzania has not been an easy task but a starting point had to be made. For
reasons which will become apparent in the course of the discussion, the
reformers I have chosen to document are: the honourable Chief Justice

32
Francis Nyalali and honourable Justice James Mwalusanya. The two are in
many respects different in theIr judicial outlook and approach, but the
similarities between them are also glaring. Both have theIr admirers as well
as critics.

4.1 Chief Justice Francis Nyalali: A Legacy in Two Phases?

Honourable Chief Justice Francis Nyalali was appointed in 19771 taking
over from Augustine Said who served as Chief Justice between 1971 and
1977. Chief Justice Nyalali has been the longest serving Chief Justice in
Tanzania since the introduction of the English legal system. During all
these years of service in that honourable capacity, the judiciary has
witnessed a variety of developments. Most of these have been attributed to
him as the Chief Justice.
At the time of his appointment the judiciary was already experiencing a
difficult time especially in its relationship with the executive as shown in
chapter 2. My informants suggest that in those circumstances the appointee
had to exercise a lot of caution, not only in the way he conducted himself
but also in the manner in which he led and handled the department.
Between 1977 and 1984 the Chief Justice very sparingly made comments
or gave speeches. Of late, however, he has beeii making speeches.
There is a difference of opinion as to when the Chief Justice changed his
outlook. There are people who suggest that he appeared to be a changed
person when he addressed the National Executive Commttee of the ruling
party in May 1984 (Daily News, 31st May 1984). That is the time when he
called upon the ruling party and government officials to observe the rule of
law.
The other suggestion is that he displayed a change in attitude from 1992.
This is traced to what he has been saying after he chaired a Presidential
Commssion for multi-party politics. Whicheveris the exact timing of the
change, however, it is an acknowledged fact that the present Chief Justice
is not the same as the one in the earIier part of his tenure.

The Chief Justice is both the President of the Court of Appeal (a judicial role) and the
official head of the judiciary (an administrative post). It is common knowledge wIthin
the judiciary and political circles that the incumbent office holder had to argue very
forcefully to have both roles combined when the Tanzania Court of Appeal was created
in 1979 following the collapse of the East African Community and its instItutions
including the Court of Appeal for Eastern Africa.

33
 l

4.1.1 Phase 1: Cautious, Conservative and Probably Compliant

In the first half of his term of office the Chief Justice is said to have been
very reserved, cautious and even conservative. Some of his critics have
even suggested that he was executive-minded.rn this respect the finger is
pointed at what transpired and was recorcÌeci b'y'the trial judge in the case
of Ally Juuyawatu v. Loserian Mo 1979 LRT no. 6 where, according tolle L

the trial judge, "the honourable Chiêf Justice telephoned judge Mnzavas at
Moshi and the latter had to rise from the High Court sitting for the matter
to be communicated appeared to have been treated under certificate of
urgency or emergency". The trial judge considered that to be a violation of
the independence of the judiciary doctrine from within the department
itself.
The reasons for caution and conservatism~ ... on the part of the Chief
Justice, are varied. On the one hand, there is a suggestion that since he was
appointed when legalism and law in general were already marginalized and
less valued, and the judiciary in particular, was mistrusted or outrightly
hated by the executive, there was very little he could have done as Chief
Justice. In those circumstance, it is argued, he had to trade very carefully
indeed. There is also a suggestion that at the time most professionals were
looking for careers in politics and that the Chief Justice was no exception.
sted,
He himself had political ambitions.2 With such ambitions, it is sugge

he might have adopted a cautious, conservative and compliant standpoint

as a strategy towards a position in the National Executive Commttee and
the Central Commttee of the ruling Party.
There is a very scant material on which an independent and objective
conclusion can be made about the Chief Justice during the first phase. This
fact is in itself informative, especially if taken together with what has been
going on since 1987. As shown in chapter 3 and in the next section, there
appears to be a lot of material in the later part of his term in office
compared to the first. These range from administrative circular to extra-
judicial speeches.

2
Several senior professionals secured seats in high political commIttees. They include,
among others: Amon N sekela (Chief Executive of the National B ank of Commerce) and
Gibson Mwaikambo (Chief Executive of the National Insurance Corporation). As late
as March 1995 honourable Nyalali's name was stil being mentioned among Presidential
contenders (see Mfanyakazi, 4th March 1995).

34
4.1.2 Phase 2: Reformer, Vocal and Critical
It was shown in chapter 3 how the judiciary has under gone a variety of
changes since the mid 1980s. Most, if not all, of these changes were
initiated by the Chief Justice in his capacity,. as chief executive of the
judiciary. Observations have been made that the speech the Chief Justice
gave to the National Executive Committee of the ruling party on 30th May
1984 marked the turning point in his career and his office. The contents of
that speech have not been available for scrutiny but the following was the
reaction of the ruling party as reported in the Daily News of 31st May 1984
(the official mouthpiece of the government):
The Political Propaganda and Mass Mobilization Department of the
National Executive Commttee issued astatement ... calling on the people,
especially Party and Government leaders, to respect and follow the
country' s law.

That speech ismentioned by observers to demonstrate the fact that the

Chief Justice had come out of the shadows of the executive to demonstrate
that he was his own man. Commenting recently on the events of the 1980s,
and shedding more light on the context in which that maiden speech was
given, honourable Nyalali has on two occasions made the following
observations which illustrate his present standing:

Under the one-party rule laws enacted by parliament and judgements

passed by courts were often disregarded in favour of political expediency.
By 1984 the situation had become so alarming that I got myself, as Chief
Justice, invited to the Central Committee and subsequently to NEC to
speak and warn against what I saw to be the impending dangers to the
country arising from widespread disregard of the rule of law (Daily News,
8th June 1993).

Under the one-party state, law reflected that reality and judges were
expected to interpret the law in harmony with political party ideology and
party directives. Under that system, the crucial bonds which hold people
together within the nation state were neither the law of the land nor the
government of the country, but the party ideology and party organization
(Nyalali 1994b).

As much as he was willing to demonstrate to the executive his independent

personality and that of his office, by warning against the abuse of the rule
of law and the independence of the judiciary, he also had to contend with
and respond to the criticisms which were being laid at the doorstep of the

35
department of which he was (and still is) the boss. It is within this context
that the initiatives and reforms discussed in chapter 3 have to be under-
stood.
As luck would have it, the Chief Justice was later appointed Chairman
of the PresidentialCommssiou"on"ene Party ,Multi Party System in
'or

Tanzania. Following this Commission report, published in February 1992,

the multi-party system of government was introduced in Tanzania. Since
that time the Chief Justice has been among those in the forefront, not only
advocating the virtues of democratization and the multi-party system, but
also highlighting the vices of the one-party system. In one of his recent
speeches, for example, he made the following observation:

It is realized in Tanzania that under a multi~p,arty democracy, law and

government must replace political party ideolog y and organizations as the
fundamental bonds which hold people together in the nation state. There
can be no doubt that, without establishing law and government as such
new bonds, the process of change from one-party state could lead to the
disintegration of society. There are numerous ilustrations of this
phenomenon including Somalia, Rwanda and former Yugoslavia (Nyalali
1994b).

Both the administrative circulars that the Chief Justice has issued since the
late 1980s and the speeches he has made, since the introduction of the
multi-party politics in Tanzania, demonstrate what my informants called
"the two phases of Chief Justice Nyalali's term of office". Statements made
and actions taken during these phases, however, implicitly suggest a
number of limitations encountered in attempts towards reforming the
judiciary. Before we examine them let us pause for a while to record other
forms of changes which emerge from Justice Mwalusanya.

4.2 Justiee Mwalusanya: A Critical Insider3

The appointment of Justice Mwalusanya to the High Court of Tanzania in
1984 coincided with the year in which the Constitution of Tanzania was
amended to incorporate the Bill of Rights provisions. The association
between these two (the phenomenon of human rights protection in Tanzania

3
Without being explicit about it, Justice Mwalusanya seems to be following the footsteps
of the example shown by the lndian justices, especially Chief Justiee Bhagwati and
Justiee Krishner lyer, of being critical of the very system in which they are members.
This practice is helpful to researchers who do not have access to inside information.

36
 and the person of Justice Mwalusanya) are both interesting and remarkable.
It is interesting because although Justice Mwalusanya was appointed
together with others to the High Court, it is only him who has become a
vocal custodian of human rights than his colleagues. Not only that his
judgements have, on the' whole,"been influencecl' by the bill of rights
provisions in the Constitution, his approach has also nourished and enriched
the otherwise empty provisions of the bill of rights.
His appointment to the High Court bench took place during the era of
economic centralization, one-party monopoly and socialist construction.
That was the time when government policies, at least at the lev el of
rhetoric, also proclaimed the concern for the masses of Tanzania. That era
ended with the W orId Bank - IMF led liberalization of the economy and the
ushering in of free market and introduction of political pluralism. Like his
identification with human rights, he has as well identified himself with
c progressive forces and political change.
These two developments have formed the backdropof his judgements
and extra-judicial statements. In the ten years he has been on the High
Court bench his contribution has been so enormous. He has not only struck
down sections of the law that he found to be in violation of the
Constitution, he has also indicated what he is likely to do in his judicial
capacity if certain things and conditions are not fulfilled. In the political
sphere he has shown what course of action the government needs to take
in furtherance of good government during the process towards political
pluralism. Justice Mwalusanya is one (and probably the only one) of the 30
plus justices in the High Court and Court of Appeal in Tanzania, who has
expressly stated his standpoint on all these issues. The rest of his brethren
have remained silent and non-commttal, probably in furtherance of the
principle of judicial neutrality.
Justice Mwalusanya's approach is also remarkable. In most of his
writings (both in his judgements and extr~-ju,dicial statements ) he has
demonstrated a very high degree of industry through his research and
proficiency. He makes reference to a variety of books (legal and non legal),
magazines and newspaper reports, and all sorts of documents and
memoranda that can be found to justify his decisions (in case of
judgements) and/or support his points (in case of extra-judicial papers). One
High Court judge, who has been to Justice Mwalusanya's office,
commented to me that the office was full of human rights related
documents and could not guess where he got them from. Justices of the
Court of Appeal have, on more than one occasion, praised his research
efforts and industry. On another occasion, however, they did not hesitate
to comment negatively about his style. Their Lordships observed that "the

37
 yle he has used in writing the judgement, dividing it into parts and
st

yle is more
sections, with headings and sub-sections, c(was)- unusual. The st

suited for a thesis than for a judgement" (See Ramadhani J.A. in the case
of Mbushuu (g Dominic Mnyaroje and another v. RepubZic).
His combination of interests (human rightsand political pluralism) have
to be understood in the context of political and social developments of the
worId as a whole and in Tanzania in particular. What is unique, however,
is the way he has managed to distinguish himself among the progressive
fore es out of all the justices in both the High Court and Court of AppeaL.
Whereas he shows concern for the poor common people of Tanzania,
whom he attempts to speak for both in his judgements and extra-judicial
speeches, he at times contradicts himself and despises the very people,
whose cause he has been attempting to defend..This point will be discussed
further at a later stage of this chapter.

4.2.1 Judicial Contributions

I mentioned earlier that Justice Mwalusanya was appointed to the High
Court in 1984. Attempts at tracing his decisions since his appointment, in
order to determine when he became a judicial activist, did not reveal much.
This is partly not only because decisions of the High Court and Court of
Appeal in Tanzania have not been reported since 1982, but also because the
High Court Registries at both M wanza and Dar es Salaam do not have
adequate and proper records of court decisions. I was able, however, to find
his judgement in the case of R. v. Buruhani Athman and others, where his
judicial activism could be traced.
This was a case in which the aceused persons, charged with robbery with
violence, applied for bail pending trial. The tri al court refused to release
them on bailon the authority of section 148(5)(e) of the CriminaZ
Procedures Act 1985 which made the offence they were charged with
unbailable. The accused person further applied to the High Court for bail.
Justice Mwalusanya analyzed the legal provision in very detail and
observed that the law in question was bad law and urged the Law Reform
Commssion to take up the matter very urgently in order to remedy the
legal anomalies associated with section 148(5)(e). He concluded by saying
that:

Otherwise when the day of reckoning arrives, that is on 16th March 1988
when the court wil be empowered to dec1are any law invalid if it is
inconsistent with the Constitution, this provision under discussion stands
no chance of survivaL.

38
The day of reckoning did come and the Law Reform Commssion had not
heeded to his lordship' s advice and things were not yet right. Justice
Mwalusanya was ready and willing to exercise his judicial discretion and
exercise it he did. His judicial contribution has been very well documented
and readily available (Shivji 1991;~Petel',i992rand Mwalusanya 1994 &
1995a). It suffices here to mention only in outline. His judgements on the
protection of human rights include: the right to be heard, the right to
freedom of movement, the right to bai!, the right to personal freedom, the
protection of the rights of women against discrimination and the right to
legal representation, among others. The totality of his contribution puts it
beyond doubt that as an individual Justice Mwalusanya has made extensive
contribution to the protection of human rights in Tanzania. I am reliably
informed that even the South African Supreme Court recently considered
and benefitted from his reasoning in their consideration of the
constitutionality of death penalty.

4.2.2 Extra-Judicial Pronouncements

Unlike judicial decisions, which could not reveal when Justice Mwalusanya
started being an activist, vocal and critical, his first extra-judicial statement
was made in September 1992.
ne of Justice Mwalusanya's
I had the benefit of identifying and locating ni

extra-judicial documents. It appears to me that, besides the Chief Justice,

Justice Mwalusanya has a bigger number of extra-judicial speeches than
each of the remaining justices in both the High Court and Court of AppeaL.
In all of these speeches the protection of human rights and the necessary
conditions for the success of political pluralism in Tanzania rank high on
his lordship' sagenda.
In his September 1992 speech, for example, he wrote and spoke about
conditions for the functioning of a democratie Eonstitution. It was in that
speech that he identified several pieces of legislation which in his opinion
not only violated the Constitution, but were also an impediment towards
democracy in Tanzania. He categorically stated that if and when these
matters went to court they were likely be struck down. On two other
occasions he has been invited to speak to journalists. At both occasions he
spoke about the role of the media, the freedom of the press and political
pluralism in Tanzania. In one of these speeches, he quoted at length
examples from England (Lord Denning) and Zimbabwe (Justice Enock
Dumbutshena) to show that there were judges who were compliant and
executive-minded who "believed that they owe their existence to govern-

39
ment and refuse to do anything that might disappoint the government". He
concluded by cautioning that:

these judges have to examIne their conscience and cultivate a new outlook
as to the proper rolethejudgesaFeexpected,to.playjn society... a judge
must steer his way between the Scylla of subservience to government and
the Charybdis of remoteness from constantly changing social and political
pressures as well as economIc needs (Mwalusanya 1995a:46).

In his recent paper titled "Checking the abuse of power in a democracy"

Justice Mwalusanya has extended his attack on the abuse of power into the
judicial realm. He observes that "the judiciary is not spared of the
condemnation of abusing its powers at least by omission" (Mwalusanya
1995b). Between pages 23 and 33, that is about 20% of the 53 page paper,
a discussion of the ways in which the judiciary has abused its power is
presented under six sub-headings. These are: the failure: to use purposive
and generous construction of the Constitution, failure to deliver justice at
the expense of the law, delay of cases, abdicating their adjudicative role on
the ground that the matter is not justiciable, failure to use the power of
judicial review (by means of prerogative orders) effectively, and failure to
bring domestic law in to harmony with innovations in international human
rights norms.
The contents of one of his lordship's publications landed him into
trouble. The Attorney General objected against Justice Mwalusanya
presiding over the hearing of apetition filed by Christopher Mtikila in mid
1994. The State Attorney, who represented the Attorney General in that
case, observed that Justice Mwalusanya' s stand point on certain provisions
of the Constitution disqualified him from adjudicating the petition in
question. Justice Mwalusanya ultimately withdrew and the hearing of that
petition had to be presided over by another judge.
In December 1994, another executive-initiated move, with the approval
of the executive dominated legislature, a law was passed which requires,
among other things, that a panel of three High Court judges sit together for
the hearing and determination of petitions for the enforcement of
constitutional rights. Both the Attorney General' s objection (in Mtikila
petition) and the stringent and restrictive legal provisions of the Basic
Rights and Duties Enforcement Act, number 33 of 1994 have severe
implications to the administration of justice in general and attendant
intricacies during political pluralism. In the following section, an attempt
is made to show how the above judicial processes have been interpreted in

40
Tanzania, and how that interpretation parly explains the constraints on the
judiciary.

4.3 Skepticism and Contradictions''''(il

So far the trends demonstrated by the two justices have only been presented
as positive and commendable. It must be said, however, that there are also
several skeptical voices both within and outside the judiciary which ne ed
to be brought out as well. In the following section, an attempt is made to
discuss some of the comments made about the direction taken by the Chief
Justice, and contradictions and inconsistencies apparent in Justice
Mwalusanya' s approach.

4.3.1 Skepticism about the Attempted Reforms

It was indicated in chapter 3 that the judiciary has of late been involved in
a variety of reforms. These were classified as attempts towards increased
efficiency, internal control and disciplinary measures, and legal literacy and
public relations. Reactions to these measures and efforts both within and
outside the judiciary have been mixed. These views may be divided into
two categories. There are those who haveobserved that the Chief Justice
has been doing too much too quickly. There also those who comment that
he has done too little too late. Due to space limitation only some of these
comments and observations can be treated here as illustrations of the
general patterns.
Let me start by observing that the necessity and desirability of these
reforms were acknowledged by all informants. This agreement seems to
come from the fact that efficiency, effectiveness and discipline among
judicialofficers are considered necessary..andip:portant for the restoration
of public confidence in the judicial system. Differences and a divided
opinion, therefore, on ly arise on matters of details and methodology
adopted towards achieving the desired end.4
The creation of the post of the Secretary to the Regional and District
Disciplinary Boards and the subsequent appointment of personnel to these
offices, for example, is pointed out as one of the areas where the Chief
Justice appeared to be in a rush. Senior district magistrates, appointed to
these seemingly prestigious offices, have complained about their appoint-

4
For same of the written criticisms from within the judiciary, see Kalegeya (1993) and
Mushi (1993).

41
ments. They, on the one hand, commented that the offices have very little
to do and, on the other hand" that their appointments were made in
secretive circumstances. These officers (officially known as secretaries to
Regional and District Disciplinary Boards) argue that they are under-
utilized, in the sense that they' haveonly to sit in their offices waiting for
allegations of indiscipline to arise in the districts or regions in which they
have be en posted. With regard to the secrecy sUITounding their appoint-
ments, it has been observed that the appointments were made along certain
predetermined lines which left the appointees suspicious of the intentions
of their bosses at department headquarters.5
The creation of these posts is also said to be causing confrontation
between practising magistrates and office occupants (board secretaries ).
Board Secretaries are said to be unnecessarily blamed by their practising
magistrate colleagues whenever disciplinary charges are preferred. Accusing
fingers are said to be pointed at these officials in their respective districts
and/or regions. This, it has been said, is likely to continue being a cause of
unnecessary enmity and suspicion which may ultimately affect working
relationship between magistrates where nothing like it existed in the past.
This situation is said to have arisen because magistrates (appointed as board
secretaries) have been set against fellow magistrates in matters concerning
discipline instead of leaving it to officials outside the judiciary, as the
practice was in the past. Arguments along similar lines have also surfaced
with regard to the implementation of the individual calendar and the
admission of charges circulars discussed in chapter 3. In the latter circulars
magistrates in charge of districts or regions are expected to report on the
conduct of cases by the individual magistrates in the districts or regions.
Two further complaints need to be mentioned. It has been observed that
at the time when the Chief Justice was introducing some of these far
reaching changes, significant safeguards against judicial interference have
been eroded especially at the level of the m(lg!,~tracy. In effect the Chief
Justice has been blamed for relinquishing his disciplinary powers to the
executive branch which in turn compromises judicial independence. The
other observation made is that these changes, genuine and necessary as they
are, have to correspond with the working conditions and remuneration of

5
This view is partly reflected in the following comrent made by the Registrar of the
Court of Appeal (Kalegeya 1993). Re said that secretaryship to Judicial Boards is "one
of the most hated post in the Department by most of the potential magistrate candidates
to hold it". It is said that only senior District Magistrates, who had arisen from the ranks
and had not gone through the two year diploma training introduced for magistrates by
the judiciary, were appointed to these posts. A suspicion arose in the mInds of the
appointees and their colleagues that the department was phasing them out.

42
judicial officers, especially magistrates and staff in junior ranks. I have
heard comments to the effect that the Chief Justice appears to be willing to
respond to executive demands for increased efficiency and tightening of
discipline, but he has not been able to impress on the executive on the need
to improve the appalling and terrible'working',conditions and remuneration
for his colleagues and subordinates. I, for one, have read newspaper reports
where magistrates lamented that they had to ask complaining parties to
provide typing and duplicating paper, writing pads and folders for their
cases to be registered and heard. These complaints were made by a senior
district magistrate in response to allegations made by the district
commssioner accusing magistrates for delay in the hearing of cases. The
magistrate said that "some of the problems facing the courts adversely
affected the dispensation of justice and evep. caused unnecessary delays"
(Daily News, 10th April 1990). In another report the roof of the courthouse
was known to be falling down "with the magistrate operating with the
fallen piece of tin sheeting less than a footabove his head" (Daily News,
21st January 1991). Such reports, which are not journalistic exaggeration
but a rule, illustrate what the working conditions are within the judiciary.6
Proponents of these two comments go to the extent of playing down the
whole reform exercise and initiatives. They suggest that the reforms may
in the long run not improve the image of the judiciary as a department, but
that of the Chief Justice as a person. Such pessimism in turn makes the
Chief Justice look more compliant and subservient to the executive.7
Some remarks have also been heard with regard to the introduction of
legal literacy and public awareness and alternative dispute resolution. An
observation made here is that the principal function of the judiciary is that
of hearing of cases, and resolution of disputes and that the existing
workload for both judges and magistrates is already very high and likely to
increase with the current political and economic changes. It is argued that
the decision to add these two new duties -: training the public in legal
awareness and involvement in the reconciliation of potential disputants,
amounts to the overstretching of the already tired human resources. Such

6
The question of the appallng working conditions and remuneration for judicial officers
is discussed in details in one of the FILMUP sub-project reports (see Tanzania, United
Republic 1994a) which was written by a distinguished English barrister, Louise Blom-
Cooper. The Mrosso Commission (1993) states categorically that most of the
recommendations made in their report are subject to the improvement of the working
conditions and remuneration of judicial officers at all leveIs.
7
This view seems to be supported by sources dose to the Chief Justice. It is said that the
boss is very keen to leave his mark on the judiciary as he comes dose to retirement.

43
an extension of duties and functions of the judicial officers is interpreted
as over ambitious on the part of the Chief Justice.
I indicated that the other category of view critical of the Chief Justice
argue that he seems to be doing too little too late. Here, reference is made
to what was attempted by GhiefJustieeGeoFgesbetween 1965-1970. Their
argument is that most of what the present Chief Justice has been advocating
were first initiated in the mid 1960 and earIy 1970s by Chief Justice
Georges. Very little is known about the reasons why those initiatives failed.
The fact that those initiatives were not implemented partly suggest that they
were either rejected or thought to be unacceptable at that time. The
question asked now is whether the reasons which made those initiatives
unacceptable have changed. Jf those reasons have changed, then, the delay
in the implementation of those initiatives haveprobably made them more
difficult to achieve the desired objectives now, as attitudes have crystallized
and circumstanced changed.
Also relevant here, to the effect that the Chief Justice has done too little
too late, are questions asked about the fate of the Msekwa Commssion
Report presented to the government in 1977. That report, it is noted, was
about the review of the judicial service. Many observations and recommen-
dations were made among which could have improved the judiciary. It is
noted that the Chief Justice could have taken up the matter with the govern-
ment to see to it that recommendations were implemented. Very little, or
nothing at all, was done in that respect. The Chief Justice, however, appears
to be very optimistic and hopeful with the FILMUP project as a potential
for the rectification of existing judicial maladies. An observation is made
that the inability to appreciate and accept Chief Georges's initiatives and
the failure to follow up the implementation of Msekwa Report recommen-
dations in time, were not only regrettable but also wasted opportunities,
which may haunt the judiciary for a very long time.

4.3.2 Contradietions in Mwalusanya's Approach

Justice Mwalusanya's enormous contribution to the interpretation of the
Constitution and laws of Tanzania has already been noted. He has shown
what the High Court is capable of doingin the protection of individual
human rights in Tanzania, and what steps the government need to take
during the transition towards good governance. These efforts, commendable

44
as they are, have not been without inconsistencies and/or contradictions.8
I will show how Justice Mwalusanya has confused socialist political
rhetoric, prevalent in Tanzania since the mid 1960s, to the actual
governmental practices in Tanzania. It will also be shown how his lordship
has, on the one hand, attempted to"interpret the law in the interests of the
general impoverished public but, on the other hand, he seems to underrate
and ridicule the very people that heseeks to speak and stand for.
Before the advent of multi-party politics in Tanzania, Justice Mwalusanya
attempted to justify some of his decisions by making reference to socialist
aspirations that Tanzania had declared since 1967. He also made reference
to ruling party documents which stipulated that Tanzania was a democratic
country. His lordship made these assumptions and observations part of this
judgements in order to impress on the gOVtrnment in general and the
parties to the case in particular, that certain government practices were
inconsistent with its own declared direction. He did this at the time when
Tanzania was a one-party state, and that ruling party was not only supreme
in the constitutional sense, but also over and above all other organs. It
could be said that although Justice Mwalusanya knew that the rhetoric was
extremely the opposite in practice, he went ahead to substantiate his
decisions on the basis of rhetoric than practice. In actual fact, one may say
that he was trying to question why the practice was different from the
declared goals. It appears to me that his lordship was attempting to come
to terms with the irreconcilable gap between government statements and
government deeds. The question which arises here is whether his lordship
was right in making these assumptions?
My answer to the question posed above is that he was not. With the
benefit of hindsight and after the introduction of multi-party politics, it has
now become clearer, as noted by the Chief Justice in June 1993, that the
one-party rule was not only undemocratic, but that it also marginalized the
law and judiciary in favour of political ÇOllY~J:ience. Justice Mwalusanya
was not able to notice this at the time, and if he did, he did not speak about
it. Justice Mwalusanya has already taken up these issues in both his judge-
ments and extra-judicial speeches. There seems to be a contradiction here.
Justice Mwalusanya has also been attempting to speak on behalf of the
masses, the poor and downtrodden in Tanzania in both his judgements and
extra-judicial speeches. In more than one of his judgements he has urged
the judiciary to be relevant to the society (Daudi Pete v. R., Obadiah
SaZehe v. DOWICO., and Hamisi ManyweZe v. R.). He concludes that 'the

8
For another line of argument on contradietions in Justiee Mwalusanya's judgements, see
Shivji (1991).

45
judiciary needs to come to the aid of poor citizen and if it cannot then we
can as well do without it' (Chumchua Marwa v. Attorney General,). In
other judgements he has indicated that the judiciary and the bar and the
judicial process were in the dock for neglecting the poor and that the two
(iudiciary and bar) had forvery long.~'buried,theirheads in the sand like
ostriches" (Ham is i Manywele v.R., and Thomas Mjengi v. R.). These
comments were made in his lordship's attempt to impress his colleagues in
the judiciary and elsewhere of the desperate situation facing the common
men and women who approach the legal machinery seeking for remedies
in Tanzania. To some ex tent these comments suggest that JustIce
Mwalusanya not only understood the living conditions of common
Tanzanians, but that he was also willing to use his legal discretion to
provide legal remedies in recognition of tl:ese difficult conditions and
circumstances. The practices in the High Courts and Supreme Courts of
India have been very instructive on this (see Cottrell 1992 & 1993).
His lordship, however, has not been consistent in his understanding of
and sympathy with the problems facing poor and common Tanzanians. I
will giv e two examples to illustrate this. Between 1987 and 1990 Justice
Mwalusanya decided cases involving Sungusungu members and groups.9
Sungusungu arose among the Sukuma and Nyamwezi people following a
wave of'crime and criminality which was judicially noticed.lO It was also
apparent that the official institutions, responsible for the maintenance of law
and order, had proved incapable of coping with the increasing crime wave.
In all his decisions he found Sungusungu activities to be illegal and
unconstitutional. His lordship did not hesitate to comment that resorting to
self-help was unacceptable and that the people who engaged in Sungusungu
activities were rolling the wheel of progress a hundred years backwards
(see Magreth Maduka v. Mponyo Makambi, High Court Mwanza Registry,
decided on 30th July 1987). His lordship did not show any appreciation of
what these people did in defence of their liyesand property in dangerous
and helpless circumstances nor did he consider that these measures, taken

9 For a discussion on the Sungusungu phenomenon, see Abrahams 1987 and Bukurura
1994 and literature cited therein.
10 In the case of Charles Cha
ra ri Maitari v. Matiko Cha cha Cheti and 4 others, High
Court civ. cas. no. 15 of 1987, in recognition of the state of criminality in Tanzania,
Justice Mwalusanya commented as follows: "... we must not allow even our disgust at
the poor performance of our police and courts and the increasing lawlessness, to
overcome our commitment to the principles of the Rule of Law."

46
in desperation, amounted to a "common man's sense of justice" that he
advocated elsewhere.11
The second example is found in his lordship's decision on the constitu-
tionality of the death penalty (R. v. Mbushuu and another). In that case, as
elsewhere in his lordship's"decisions;'"sentimentswith'regard to the plight
of the common man are displayed. Justice Mwalusanya goes to the extent
of demonstrating how the government had created the living conditions
from which murders emerge. He observes that: "the grinding poverty and
hunger lead to brutalization because the economy has been mismanaged by
the government." Having revealed his concem for the poor mas ses of
Tanzania, Justice Mwalusanya, in total disregard of his common man's
sense of justice, goes forward to despise the very people that he has been
attempting to speak for. He makes an observati()n that death penalty had the
support of many people in Tanzania, but goes further to comment that the
majority who support the death pen alt y did so blindly, and that "these are
not enlightened and are not initiated or aware of the. ugly aspects of the
death penalty. Apparently it is so because the death penalty is carried out
in secrecy."
The contradictIon in both examples is that whereas, on the one hand, his
lordship has attempted to show his understanding of and sympathy with the
plight of the poor masses he, at the same time, went out of his way to
underrate their wisdom and judgement. One would have expected that the
judge who identifies with the poor and downtrodden, would as a matter of
course, comprehend and sympathize with their anger and frustration. Justice
Mwalusanya' s insufficiency in this respect, neither differentiates him from
the other lawyers and justices, "with a dense ideological fog", as he
labelled them in the case of Daudi Pete, nor does it help to enhance
community confidence in the judiciary as a protector of society, the course
he has been advocating.

4.4 Implications for the Judiciary!

Skepticism, contradictions and inconsistency discussed above reveal and
partly explain the complexities and difficulties in the reform processes
initiated by both the honourable Chief Justice Nyalali and Justice
M walusanya. These difficulties are relevant to our endeavour towards the
understanding of the judiciary as an institution, the individuals who are the
nuts and bolts and who operate the institution (judges, magistrates and the

11 For a critique of this and similar legal arguments, see Baxi (1982:328),

47
supporting staff) the judicial processes and the over all sUIToundings in
which most of these events and processes take place. It is evident from the
above discussion that individuals (Chief Justice Nyalali and Justice
Mwalusanya) contributed their part. However influential, powerful and/or
convincing these individuals maybe"theyare"subject to professional;
internalized conceptions and practices, gained over a long period of training
and practice. Theyare equally and importantly subject to the system in
which they are a part, and surroundings and circumstances within which
they work.
The two phases through which Chief Justice Nyalali's term of office has
passed shows how ones stay in office not only affect the way one thinks
and works, but also the direction in which one can initiate, influence and
manage change. Justice Mwalusanya, on theother hand, demonstrates how
ones training, practices and in-built professional prejudices cannot be
obliterated or even suppressed. These tendencies revealed themselves in the
course ofhis judgements on Sungusungu issues and the constitutionality of
the death penalty.
Both individuals discussed above attempted to do what they thought was
right and within their individual abilities, powers and discretion. They also
attempted to influence their colleagues' comprehension and reasoning. In
both cases some forms of suspicion, doubts and even resistance have been
detected. To my mind, however, all the attempts discussed above did not
go far enough.12 The failure to do this partly reflects internal inhibitions
as well as system-based constraints.
One need to mention here how Chief Justice Bhagwati of the Indian
Supreme Court managed to convince and bring on board his doubting
colleagues to go along with him. Chief Justice Nyalali, on his part, has not
attempted the Bhagwati approach nor is there any evidence to show that he
is willing. Justice Mwalusanya, on the other hand, seems to be alone and
probably spe aking to himself. Individual,.,. efforts may be thwarted by

12 Tanzanian judges in both the High Court and the Court of Appeal are quite aware of

Indian legal developments in general and social action litigation in particular. See
Kisanga (1985), Ramadhani (1989), and Justice Lugakingira in the case of Christopher
Mtikila v. Attorney General, to mention only a few. Chief Justice Bhagwati was in fact
invited to and did speak at the Second Commonwealth Africa Judicial Conference held
at Arusha (8th-12 August, 1988). In his speech, he among other things, urged the
judiciary to be relevant to society and to adopt an "activist-goal oriented approach". He
said: "... let us not forget that protection of the Rule of Law and advancement of human
rights are cointted to our care by society and have to fulfil the expectations of
deprived and vulnerable sections of society, through fearless discharge of our functions
... We must not live in the ivory tower ..." (Bhagwati 1988:100).

48
executive exercise or legislative measures. This observation is illustrated by
the barier erected by the Attorney General (by way of an objection in
Mtikila' spetition) and the stringent and restrictive legal provisions of the
Basic Rights and Duties Enforcement Act, number 33 of 1994.
The experience fromcthe'abovediscussion also shows that the
individual' s ability to influence others is subject to team rules and spirit,
within which that individual has to play (in this case the judicial system).
The existing judicial system has its inherent constraints which the attempts
made by the two discussed justices have not managed to surmount.
What are the effects of the discussion above to our understanding of
these judicial processes in political pluralism and free market economy?
One revelation is that there are inherent limitation both within and outside
the judiciary. The challenges ahead are enorl1OUS, so are the limitation.
Speaking in August 1994 the Chief Justice alluded to some. The following
quotation is part of what he said:

For the first time in the history of our country, a court is empowered to
adjudicate on the constitutionality of a law enacted by the Parliament and
to declare null and void any law which is violative of the Constitution.
Currently there are twenty three cases pending in the High Court country-
wide. This confers an enormous power and responsibility upon the
Tanzanian judiciary ... It is however a power and responsibility which
demands the highest standards of integrity , judiciousness, learning and
wisdom on the part of the judges. The exercise of this enormous power
without due regard to these standards is simIlar to launching an unguided
mIssile with a nuclear war-head. It may boomerang and destroy those who
launched it, and in any event, it is bound to wreck havoc to all and sundry
(Ny al ali 1994a).

In the above quotation the challenges ahead are highlighted but a word of
caution as to how those challenges have to be tackled is also made. Were
the judges being called upon to exercise restraint as the means of avoiding
the boomerang effect? Can the regressive steps in the political field taken
in December 1994 be called such a boomerang? The Chief Justice' s caution
must be left to the individual interpretation (of the judges and analysts) in
light of what we have shown in this chapter and the preceding ones.
Whichever course of action is taken by individual judges hearing the cases
will be guided by legal doctrines of what their lordships con sider to be fair
and just in the circumstance. The justice of the particular cases cannot be
predicted even with the aid of modern technology and jurimetrics. With or
without political pluralism the role of the legal system and the judiciary in
the modern society is already complex and existing legal principles

49
developed over a long time will remain to be the guides to judicial decision
making. The public will have to remain in the shadows of the judicial
minds which act in accordance to what was once best in England. One
English senior police officer once remarked that the English legal system
is archaic and out of step. l.q:hat daes not seem to be recognized by some
members of judiciary in Tanzania.

13 Albert Pacey (former Chief Con

stable of Gloucester and now Director General of the
Criminal Intelligenee Services) in the Daily Telegraph, 25th August 1993. See also
comments by Charles Pollard, Chief Constable of Thames Police Daily Telegraph, 30th
October 1993.

50
5. Conclusion:Legal Prominenee in
Hostility
In the preceding chapters an attempt has been made to show how liberal
legalism found its way into Tanzania during the colonial era, and that some
of its principles were made part of succes sive Constitutions of Tanzania
from independence and that most of these were on the whole retained all
along to the present. It was also shown that the marginalization of law and
outright hatred of legal institutions crept in the mid 1970s. For want of
adequate information, but with the benefit of the attitudes of the time, we
decided to engage in some guess work, from which a suggestion was made
that this marginalization and hatred was probably a result of the inability
of law and legal institutions to change and adapt to new demands after
independence and beyond.
Chapter 3 outlined the measures taken by the judiciary towards rebuilding
its image. These were examined under three broad headings as: the
enhancement of efficiency, increased discipline and the training of the
public about their legal rights and public relations exercise. These changes
were boosted by the way in which the WorId Bank and other donors
viewed the role of law and legal institutions during both the economic
reforms and democratization proeesses that were being introduced in
Tanzania at that time. An observation was made that, whereas some sources
in the judiciary would like us to believe that these measures were
deliberately initiated in recognition of the changing political landscape and
for the purposes of preparing the way for a responsible judiciary in the
changing political and economic circumstancesof Tanzania, a careful and
systematic analysis of the events and processes surrounding the initiatives
suggest otherwise. A cautious note was sounded to the effect that crises in
the law and legal systems was not unique to Tanzania and that examples
existed elsewhere from which the reforms introduced by the judiciary in
Tanzania might be compared with and lessons learnt.
Examples from two honourable justices who have been behind some of
these reforms, were sketched in order to illustrate some of the constraints
inherent in the reform process. The constraintswere identified both at an
individual level and within the judiciary department. These constraining
forces may have enormous implications, to the whole legal system.

51
 When all the above have be en said, it is also important to stress that
liberal democratic principles are part and parcel of political pluralism, and
the free market economy, sweeping through Tanzania and other third worId
countries. The importance of the rule of law, the protection of individual
human rights and independence of the judieiary cannot be otherwise but
prominent and high on the agenda. As the central role of law and legal
institutions is recognised the need to examine its background and assess its
operations during past political and economic phases has also to be done
as of necessity, instead of being taken for granted. This has to be done, as
already started, by the judiciary itself, its friends and critics as well. Such
a discussion helps to identify the strong points as well as its weaknesses,
both of which need to be known if the judiciary is to perform the important
role and duty assigned by the Constitutioll~ For this exercise to be
successful, therefore, a discussion need to be broadened further than the
initiatives outlined above.
That takes me to matters that seem to me to have been completely left
out or inadequately considered in the reform exercise discussed above and
the hostile circumstances within which the reforms are taking place. The
two are intertwined and closely related and need to be understood as
important and, therefore, placed on the agenda for discussion. The issues
left out and the hostility that exist have implication both for the changes in
question and the potential for their acceptability or otherwise. I will confine
myself to the limited consultations with interested parties, the choice of
approach to legal interpretation from among the exist two styles, from
which Justice Mwalusanya has picked one as against the other, and a brief
highlight of the hostile sUIToundings within which legal prominence has
come about. These issues are raised as part of an attempt to understand the
whole reform process in a broader perspective, instead of confining it
within the professionals circ1es.

5.1 Limited Consultations

It may be clear by now that most of the reforms discussed above were
either introduced by or at the initiative of the judiciary. I have also
mentioned that there are reforms which were instituted by way of circulars
and/or by laws, and others by way of legislation. The reasons for this may
not be hard to find. As highlighted earIier, it was because the judiciary was
reacting to events or responding to challenges urged upon it from else-
where. Before turning our attention to a discussion of the limited con sulta-
tion with other bodies involved in legal duties, it is necessary to note that

52
even within the judiciary itself there appears to have been limited consul-
tation.
My first impression was that consultation took place within the judiciary
on the introduction of these reforms. On further inquiry, however, Ilearnt
that there was a problem regarding the extent ofthese consultations. I was
told that even within the judiciary discussion took place at higher levels
only (i.e. among judges). It is said that most of the details were discussed
at seminars organized for judges from which instruction, in the form of
circulars, were issued to the subordinates to implement. Whereas these
comments may be difficult to verify, they, in themselves, raise very
significant points.
Related to the limited in-house consultation is the question of lack of or
at least limited consultation with, other bodies and departments concerned
with the administration of justice and the legal system in general. As noted
earlier absence of consultations has not been without its difficulties. I
mentioned in chapter 3, for example, that advocates have protested and
continue to protest the law that subjects their performance and discipline
before the judges. I have also heard advocates complaining about some
circulars, especially circular number 2 of 1992 which stipulates that
appearance before another court may not constItute sufficient ground for
non-appearance before another court. The argument raised against this
circular is that it almost demands that advocates should have only one case
a day on their calendars in order to avoid the problem of collisions in court
appearances and subsequent non appearance in other courts. Such a demand
seems unreasonable to practising advocates who feel subjected to "only one
case aday" timetable.
There are also complaints concerning work schedules of other
departments which deal with the judiciary. For want of time and space I
need not get into these here, it has been heard, from departments including
the Police and Prisons, that some of the Cntef Justices' circulars are making
it difficult for them and causing complication in their work. The circular
mentioned in this respect is the one on the shift system.
Information available to me from sources within other departments
related to the administration of justice indicate that consultations have not
been made in time, and in some cases it has not been adequate. I am told,
for example, that in regard to the introduction of the shift system, a circular
was issued by the Chief Justice and received by other departments with
instructions to implement. The departments concerned issued follow-up
circulars to their subordinates to implement the Chief Justice' s circular. In
the course of its implementation, however, some limitations were

53
encountered. As a result of these snags the said circular is now known to
be implemented in some regions and districts and not others.
One general observation which have to be made here is that some of
these cIrculars were only piecemeal solutions to some of these problems
and that they needed extra considerations and consultations before they
could be considered as adequate solutions for perceived problems. One
observer noted that the judiciary was probably not the best department to
be in the forefront in the initiation of some of these reforms. My informant
thought that the Law Reform Commission was probably the most appropri-
ate institution to initiate discussion and conduct research on the kind of
changes needed. There was still a feeling, though, that the Law Reform
Commssion itself suffered from resource constraints as well (be it material,
financial or human) which contributed to its inability to perform its
statutory functions.
Whereas consultation has been limited and/or inadequate both within the
judiciary and related legal institutions, consultation with the general public
has been totally lacking. Although the judiciary has been trying to identify
with the public, as shown by the legal awareness training and publicity-
related efforts, it has not come to the attention of the judicial reformers that
the general public need to be approached and consulted, as advisers to the
judiciary, in the whole reform process. On the one hand, lack of public
consultation does not bode well with the fence-mending exercise envisaged
by the judiciary reformers. On the other hand, however, it may partly be a
reflection of professional superiority and paternalism which detests
consultation.1
What ne ed to be stressed here is that, on the whole, reforms introduced
for the judiciary can only be successful if they involve all important actors.
Such reforms affect other departments in the legal system and the general
public, as much as they are dependent upon them. Any failure or disregard
of the views from these other importantplayers has colossal effect on the
implementation of the intended reforms.

5.2 Choosing a St yle of Judicial Opinion

In chapter 1 a suggestion was made that there are two prominent styles of
judicial opinion. The approach taken by Justice Mwalusanya, for which he

Arguments advanced and conclusions made by Schraeder (1994) regarding the limits of
bureaucracy-led political reforms in Africa appear to apply to judiciary initiated reforms
in Tanzania as weli.

54
has urged and recommended his brethren to follow, is that of judicial
activism. I am not in any doubt that judges in both the High Court and the
Court of Appeal are aware of the existence of these two styles and
approaches to constitutional interpretation. His lordship' s calls and
recommendations, which appear. to fallen on deaf ears of his
have..sO' far

colleagues, are not without their problems. There is an exercise of choice

whether to follow it (like he does) or to ignore it and remain silent about
it (as they did in the past and are doing now). These facts are important not
only to Justice Mwalusanya, but to other judges and observers.
Justice Mwalusanya in all his judgements and extra-judicial speeches in
which he urges his colleagues to follow his lead, does not adequately take
into account the justifications for the other kind of judicial reasoning
Qudicial passivism). The problem here is thalhis failure to address this
makes his calls both unreasonable and even empty. The question asked in
this regard is what makes him feel that his approach is the best of the two?
Although Justice Mwalusanya is admired and his effortsappreciated, even
by his critics, it is argued that his persistence with only one st yle to the
exclusion of the other is in itself self destructive.
This is said to be the case because by insisting on only one st yle his
position as a judge becomes predictable even be fore the matter comes
before him for hearing. Such a situation is said to be inconsistent with the
office of the judge as an impartial and neutral arbiter of disputes. The
argument goes that when and if the neutrality and impariality of the judge
is questioned the holder of such an office ceases to be a judge.2 An
example given here is the case of Christopher Mtikila v. Attorney General,
in which the State Attorney raised an objection regarding the impartiality
of Justice Mwalusanya3 which led to his ultimate withdrawal from hearing
the case.
It is argued that the two approaches are not mutually exclusive and that
there are instances where the two approaches l1ay be combined in the same
judgement. Jf that is the case, it is argued, Justice Mwalusanya has no
reason of making capital of judicial activism or despise judicial restraint.
By stating categorically what his approach is, it is said, he is not doing

2 Bell (1987:37) notes that a "frequently used argument to restrain what is considered

excessive judicial activism is that it wil bring the judiciary into disrepute and threaten
the continuance of the present judicial arrangements". See also Cappelletti (1981).
3
It is more that probable that, in view of what Chief Justiee Nyalali has been saying
lately, similar objections may be raised by the Attorney General against him as it
happened against Justiee Mwalusanya. We may not have to wait for long before it
happens.

55
himself any good because he is alienating himself from his friends and
creating uncalled for enemies in the process. He has be en said to have put
his neutrality and impartiality unnecessarily into question.4
What the above arguments come down to is that whichever st yle of
judicial opinion a judgeadopted'it-is his/hef'i'own choice, like any other
choices exercised in judicial decision making, in the case being decided at
that particular time and there is nothing that can be done about it. Analysts
are entitled to make their own conclusions about the styles as much as
judges stick to the business ofhearing cases, resolving disputes and handing
down judgements, impartially.
My reply to this is that the public's ability and ne ed to demand
accountability of the judges and magistrates can no longer be taken for
granted. These matters are likely to intensify. in. the era of democracy and
political pluralism. As and when they are made they will have to be
answered, and there will be very little chance for masking behind the veil
of judicial independence or any other legal camouflage. Which forms these
calls and demands for judicial accountability will take need not to be
discussed now. There is need, however, of thinking about what is likely to
happen as democracy and accountability begin to take roots instead of
ly far-fetched dreams
closing our eyes and ears waiting as if these are mere

which are unlikely to happen. What Justice Mwalusanya has done in most
of his judgements and extra-judicial speeches, especially the one in which
he identifies the abuses of power by the judiciary, is simply to draw our
attention to the issue, from where a discussion might have to start. The fact
that judicial accountability has been raised by a sitting judge, and a well
informed insider, is in most respects indicative of how important it is for
the public at large and cannot be left for the professionals alone.

5.3 Hostile Surroundings

The fact that law and legal institutions were marginalized and even hated
has been alluded to several times in the above discussion. I have also

4
The effect of this argument is the same as that raised about the politics of United States
Supreme Court where it has been argued that the Court was getting toa much into
politics beyond the extent allowed by the Constitution, expressed as the self-inflcted
wounds, see Theberge (1979) especially chapter 1. A counter-argument to the one stated
above, has been made in India and USA, that when both the law makng body and
executive have failed the people it is the judiciary which must speak out loudly and
clearly "because it is held in higher public esteem than the other two branches". See
Theberge (1979:24). Also lyer (1987:92) and Baxi (1982:16-29).

56
argued that the reason for this seem to be varied. The consequences of the
marginalization, like the reasons for it, are also various. The Chief Justice
acknowledges that law and legal institutions were marginalized. Unlike
myself, however, he attributes this to the one-party ideology. For that
reason, even the reforms "'he"has"initiated,""have been restricted. The
honourable Chief Justice hopes that the situation will change with the
introduction of the multi-party and free market systems which place
emphasis on the prominence of law. His approach, therefore, does not
include any consideration of the hostile sUIToundings in which law in
general and judiciary in particular have been elevated to. It is my opinion
that the reform exercise discussed above has fallen short of facing squarely
and coming to terms with the forms, causes and consequences of the
marginalization of law and legal institutions that has gone on for more than
two decades.
There are some important questions to be asked, and issues to be raised,
in any fruitful consideration and attempts at coming to terms with both
marginalization and hatred of the law and legal institutions. Such questions
and issues cannot be taken for granted. These include: whether, in the light
of the discussion above, the legal system in general and judiciary in
particular is best placed for the tasks ahead? How are the lawyers in
general, and magistrates and judges in particular, prepared to face the
challenges created by the centrality of law after many years of
marginalization and hatred ? What should be done to change the attitudes
of politicians and government functionaries who, for a very long time,
disliked the application of law in theÌr administrative functions? What
should lawyers and legal institutions in general do to impress on political
actors and civil servants about the central role of law during multi-party
politics and free market economy? How can lawyers and legal institutions,
in which they are a part, help to influence the development and
consolidation of a democratic culture in Tanzania? What can lawyers in
general, and judiciary in particular, do to reverse the negative attitude
towards law and legal institutions, created among the members of the
public, as a result of the marginalization and hatred processes? To what
extent does legal awareness campaign, introduced by the judiciary,
empower the public in the struggle to preserve, protect and promote human
rights? These are some of the questions which need to be adequately
captured in order to understand what constitutes a proper course of action
under the circumstances.
When carefully considered these questions and issues lead to a revelation
that the elevation of law and legal institutions, including the judiciary, to
a central position in political pluralism and free market, is a very intricate

57
matter embodied with ambivalences. Not only that the law itself, and the
institutions which man age it, will have to change, but also that the law
givers (legislature), the law implementors (the executive at all leveIs) and
the public (who are in most cases on the receiving end) will have to change
as well. Whether the mentioned'actors"have'changed and/or willing to
change and by how much, are among the issues which have not yet been
addressed.
An illustration of part of this hostility and its consequences can be found
in the legislative measures related to the 11th Constitutional Amendment
of the Constitution of Tanzania in December 1994. The Bill, which
subsequently became law (Act number 34 of 1994), sought to amend,
among other things, Article 21 of the Constitution in order to abrogate part
of the decision of the High Court (passed on . 24th October 1994) which
declared that independent candidates be permitted to con test both the
ParIiamentary and Presidential elections.5 The effect of the amendment of
Article 21 (2) was to prohibit independent candidates. from contesting
parliamentary and presidential elections.
Commenting on these events, the honourable Chief Justice has gone to
the extent of saying that the events are retrogressive steps taken in the
political field which con cern the Constitutional role of the judiciary. He
noted that:

these retrogressive steps are indicative of a failure to appreciate and

accept the real nature and scope of the constitutional changes that have
taken place in this country during the last few years. There is a regrettable
faIlure to realise that as Parliament has been empowered by these
momentous changes to impeach the President, confirm the appointment
of a new Prime Minister and remove him or her from office on a vote of
no confidence for the good of the people of this country, so has the
judiciary been empowered by these changes to enforce human rights and
nullfy unconstitutional laws for the good of the people of this country
(Nyalali 1994c).

5
Events of a similar nature happened in Tanzania 1963 when a law known as Chiefs
(Abolition of Office: Consequential Provisions) Act 1963, chapter 535 of the Laws of
Tanzania was passed to overrule the decIsion of the court in the case of Chief Marealle
v. Kilimanjaro District Council, Arusha civil case 44 of 1961 (see Martin 1974:57). This
was partly a reflection of executive mistrust of the judiciary discussed in chapter 2.
Krishna lyer (1987:91-92) comments that there is an uneasy relationship between the
lndian Executive and Legislature, on the ane hand, and the Judiciary on the other.

58
Both the retrogressive steps taken by the government and the Chief
Justice's speech indicate the complex and ambiguous relationship between
the executive, on the one hand, and the judiciary on the other.6 There is no
way one can tell what the relationship between these two will be during the
multi-party era. Assuming~"that".the'goveliiment continues the trend
demonstrated above, what is the judiciary in general and the Chief Justice
in particular likely to do? Assuming yet again, that a confrontation between
the two continue along the above pattem, what are the likely implications
of that? Assuming for another moment that some members of the judiciary
decide to avoid such confrontation as urged by the honourable Chief Justice
in his August 1994 speech (Nyalali 1994a), what may be the likely
consequences of that for the interpretation of the Constitution and others
laws in general and the protection of human rights in particular? These
questions are raised only to show how complex, ambiguous and ambivalent
these developments are likely to be given the hostile sUIToundings in which
law and legal institutions are becoming central and significant to both
political pluralism and the free market economy.
N one of these questions has been directly faced and addressed by the
reform processes or at any other occasion. In actual fact, these questions
seem to be taken for granted or bein g swept under the carpet due to
euphoria on the part of lawyers in general and judiciary in particular. The
reforms are, however, very much welcome only as a starting point but not
an end in themselves. They seem to me to be very limited both in extent
and scope. Jf these reforms end where they already are a lot will have been
left undone. Implicit in this conclusion is that there is still much to be done
both within and outside the judiciary.

5.4 Concluding Remarks

The fact that law in general, and thejudiciary in particular, were
marginalized and even hated by the executive in Tanzania since the mid
1970s, is not in dispute, at least among legal and political scholars. An
attempt has been made in the above discussion to put that marginalization
and hatred in perspective. Doubts have also been expressed about the
restrictive view taken by the honourable Chief Justice who confines
marginalization to the one-party political ideology prevalent at the time. It

6 One needs to recall here that only a few months earlier, in August 1994, the same Chief
JustIce cautIoned his brethren of their exercise of powers of review of executIve actIon
and constItutIonal interpretatIon to avoid the boomerang effect. See the discussion in the
conc1usion to chapter 4.

59
has been argued that attempts towards the revival of the legitimacy of law
in general and judiciary in particular has to take into account the
background causes which gave rise to the marginalization of law in the first
place, the consequences created by it and the present conditions prevailing
in Tanzania. Reformswhiclrdonot'take fnlland complete grasp of these
important situations will at best be partial and piecemeal in character, and
at worst a waste of both opportunity and resources, i.e., time, financial,
material and human.
When the above have been said, however, one important thing also need
to be taken into account. That is, the struggle for the promotion,
preservation and protection of individual and community rights is probably
greater now than it has ever been (see Baxi 1987). The question which
arises, therefore, is in which ways and by whatmeans are these individual
and community rights going to be safeguarded? That question gives rise to
more questions like: what rights are we talking about? Are we talking about
the conventional human rights as defined by and promulgated in the inter-
national conventions or different kinds of rights? Are the conventional
mechanisms for the protection of these rights the appropriate and best in the
prevailing conditions ? Jf they are, what need to be done in order to
strengthen them? Jf not, what are they to be substituted with and by what
mean? There are a lot more questions that need to be asked and solutions
sought than taking conventional wisdom, definitions and institutions for
granted. World Bank (1989) stipulation on the centrality of law and legal
institutions in general and the independence of the judiciary in particular
might not, by themselves, revive the public confidence lost in the process
of marginalization and hatred nor can these stipulations secure the
legitimacy required for effective performance of their functions. More need
to be done including careful considerations and thorough discussion of all
important issues in question. Unless these and other important questions are
asked, answers might not be sought. As denionstrated above most of these
questions have not been considered in the reform processes cUITently going
on within the judiciary in Tanzania.
We do not know whether this conspicuous omission has been accidental
or deliberate. Jf it has been accidental, then this is a modest beginning
towards marking the signposts for constructive participation in the
discussion. Jf it has been deliberate, a caution need to be raised that the
CUITent trends of public thinking and action in Tanzania is no longer in
favour secrecy but transparency and accountability. Soon or later some of
these questions will be asked, by the very members of the public whose
legal awareness the judiciary has been attempting to enhance. At that point
answers will have to be given. Public demand for accountability will not

60
only be confined to the executÏve and legislative branches of government
but will extend to the judicial branch as well. The earlier these issues are
addressed the better.

61
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The W orId Bank identified judiciary among institutions which ran down
during centralized governance. The Bank also expressed the need for and
willingness to take part in rebuilding these institutions so that they could
effectively regulate competing political and economic interests during
political pluralism and the free market systems, preserve the rule of law and
protect human rights. This study traces the changing role of the judiciary
in Tanzania (from being marginal for more than twenty years to becoming
central during political pluralism and market economy) and characterizes
what has been done by the judiciary as damage limitation. The study notes
that in order for these reform initiatives to be effective, public indignation
ed to be recognised and addressed. Such
with law and legal institutions ne

comprehension calls for constructive public participation in legal reform.

Sufian Hemed Bukurura (horn 1956) is Leeturer in Law at the Institute of

Development Management (IDM) at Mzumbe, Morogoro (Tanzania). He
completed his Ph.D. at the University ofCambridge (England) in February
1994 with a dissertation on local governanee and the maintenance of order
in rural Tanzania. In May and lune 1995 he was a visiting researchfellow
at Chr. Michelsen Institute. His research interests include: local
governance, informal justiee mechanisms and public participation in justiee
administration.

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