Legal governance in Tanzania: How the laws are made, executed and Interpretation

A law system is a huge and complex system to understand if not well explained, the system is often well understood by the few individual privileged to serve it. The systems deffer from one place to another (One country to another), but the system is basically built under the principles of common laws. This is to say, many system share some similarities and many values. In this session we shall discuss the common law system basically, we shall focus on Tanzania Law and governance system, we shall also look at the Constitution and law making bodies together with their roll. This will help many to simplify the division of power and duties of the government’s arms.

Tanzania Governance system.

It is usually to be told that in Tanzania the governance system act on the principle of Division of Power, this is to say, the Government is divided in three Arms. Executive, Legislature, Judiciary. These are the arms recognized by the Country’s Constitution of 1977. The constitution further provides general orders. which address the duty and mandate of each arm. Here we shall focus on general provisions.

General concept.

The concept is usually one and the same, that Avery arm has its main roll, and none of it should interfere the other. It is indeed a theory of how to explain the separation of power, but in reality the reverse is the case, all the government’s arms are somewhere connected direct with each other as well as depend on each other practical. That each arm should not practice or act the duties of other arm, therefor to avoid the conflict of the law, then each arm shall only execute its mandate in accordance with the Constitution. But practically it is total different, because we shall see how each arm operate and where one arm perform the duty of the other accordance with the laws and even the constitution it self.

Rolls of the government’s Arms……

• Executive to execute the laws.
• Legislature to Make the Laws.
• Judiciary to Interpreter the laws.

Legislature.

The law makers, Government’s Adviser and Executive’s Supervisor.

We are all familiar with legislature, because this class is formed by individuals (Politicians), this class constitutionally is formed by political parties and through general election. Legislature is formed by two parts, The President and all members of parliament.

Leaders of the Legislature

• Speaker of National Assembly, is elected my members but he/she required to be an elected member of parliament.
• Deputy Speaker, who is elected by members but he/she is not obliged to be a member of parliament.
• Parliament Secretary, who is appointed by a President and
• Parliament’s Chairperson (s).

Also the Parliament has its traditional and standing orders, which lead it to conduct its daily mandate, the leadership of the parliament is in accordance with the Tanzania constitution of 1977. And in standing orders we find other leaders of the parliament such as parliament chairperson (s), who are elected by members of the parliament and leaders of the committees, who are appointed by Speaker of the national Assembly.

Among the members of the parliament is where we also get Government’s

• Prime Minister,
• Ministers and
• Deputy Ministers,

this is in accordance with the Tanzania Constitution of 1977. The Prime Minister, ministers and deputy ministers are appointed by the President, who is both the part of parliament and the head of government, they serve as top leaders in ministries under an executive arm. The president being the part of parliament, means the survival of the parliament is the survival of the president, so in order the Presidency to function it must first open the parliament, as well as the presidency to cease it must cease the parliament. This is what it called SEMI PRESIDENCIAL SYSTEM, (when the parliament cease the President also cease).

Policy to laws.

The parliament make laws by discussing and passing the bills by vote of one third of all attended members of parliament, the bills are prepared by the central government and brought to the parliament by a minister or any member of the parliament. After the bills are passed, require the approval of the President to become a Laws. Therefor when we say the Parliament makes Laws, simply means The whole members of the parliament and the President, together they make Laws. The laws made by the parliament are called statutes. Statutes (Written Laws). These are the main laws in the land, after the Constitution which is the Supreme Law.

The president as a part of parliament.

President as a part of the parliament doesn’t means he is supposed to attend all the sessions of the parliament, because the prime minister act as the leader of the government’s activities in the parliament. But we normally see the president participate as a part of parliament in two occasion, During the open and the close of the parliament’s conferences, and During the approval of the bills to laws, in these two occasion is when the president participate and act as a part of the parliament.

Executive.

The Presidency and The law executors.

Many are familiar with the word “Government”, but this is what it called the Executive, this class is also famous, because it is also made up by political class, it is consist of Country’s, President, Vice President and Prime Minister. President is the head of executive with the following functions.

Functions of the President.

1. Head of the State.
2. Head of the Government.
3. Commander in chief of the armed forces.

The President act upon those tree mentioned functions, this means, there is a time when the President performs the duties of State, then there is time when the President performs duties of the Government and also the duties of Commander in chief. Through these functions which are provided under the 1977 Constitution of Tanzania, the executive execute its constitutional mandate. aws made by Executives are Regulations, bylaws, Instruments and Policy

The cabinet makes Instruments for the Ministries, Ministries make Regulations for its organs, and organs make policy and and Bylaws. This is in accordance with the provision under 1977 constitution where the Parliament delegates some of its power to the Government to act on its behalf in some matters, and on the state of emergency. At the end page I’ve shown through flowchart on how these mentioned laws operate. These laws are minor to those of the parliaments, so if those regulations conflicts with the written law, then it must be taken to the parliament for amendment. And the parliament may amend it or make some suggestions to amend or order the government to reverse it.

Judiciary.

The Court and The Laws Interpreters.

Judiciary is one of the Government’s arm, a Judiciary is headed by His Lordship The Chief Justice. Judiciary legality is under the Tanzania Constitution of 1977. and judicial system is consist of Chief Justice. Justices, Magistrates, Lawyers, Court’s Clerks and other administrators. The head of the judiciary is the Chief justice of Tanzania, who is constitutionally appointed by the President of Tanzania. And once appointed can never be removed, until the retirement.

In an exercise of their mandate Judiciary enjoys full liberty and SUO MORTU. Which is the power to intervene any matter with the public interest, also Judiciary is the last decider of all state affairs, simply the judgement of the court is the last decision.

Court System.**

1. Primary court. (with limited jurisdiction)
2. District Court. (with limited jurisdiction)
3. Resident Magistrate Court. (with limited jurisdiction)
4. High Courts. (with no jurisdiction)
5. Court of appeal. (with no jurisdiction)

The Laws interpreted/matters decided by Courts are known as Court’s Rulings/Judgments, Court’s Orders

Then these rulings/Judgement are taken back to the Law school, or education institutes for the purpose of case study, simply they are known as Case Laws (Precedents). These Laws when ruled by a Higher Court, then are usually the binding laws to the subordinates court’s decisions. Also When matter taken to court and it involves one/both of the arms, Courts have power to gives Orders to be executed by both The parliament and Executive.

The current system of Law making and its Execution.

flowchart TB
  A[(The </br> Republic)] --> B{The </br> Constitution}
  B --> C[Legislature]
  B --> D[Executive]
  B --> E[Judiciary]

flowchart TB
  C[Legislature] --> D[Executive]
  D -- Bill--> C
  C --> E{Judiciary's </br> Decisions}
  D[Executive's </br> Instruments] --> F(Ministry's </br> Regulations and </br> Rules )
  F --> G(Ministry's Organs, </br> Institutes and </br> Local Governments)
  G -- Policy --> D
  G -- Bylaws and guide lines --> A[(The </br> Republic)]
  E{Judiciary's </br> Decisions} -- Rules and Orders --> A[(The </br> Republic </br>)]
  E -- Orders --> C[Legislature's </br> Statutes]
  E -- Orders --> D

General Summary.

The concept that Legislature is the only arm that makes Laws, is practically not applicable in common law system, because during the execution, other arms also make some laws to execute both the Mother law as well as other written laws. Therefor these are the Executable Laws made under the provision of the constitution of Tanzania of 1977. The legislature makes Laws called Statutes/Written Laws. The Executive makes Laws called Instruments, Regulations and Bylaws. The Judiciary makes Laws called Precedents/Case Laws and Rules.