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Thursday, 7 November 2019

UNDERSTAND HOW PROCEDURAL LAW WORKS


Law can be categorized into two main branches, which are procedural laws and substantive laws. These two branches are interdependent and complementary to each other. The focus here is to discuss what procedural law is and explain how procedural law works.

Law can be categorized into two main branches, which are procedural laws and substantive laws. These two branches are interdependent and complementary to each other. The focus here is to discuss what procedural law is and explain how procedural law works.

What is Procedural Law?

Procedural law is the branch of law which is a directory in nature. It deals with legal steps which individuals shall comply when seeking a particular legal right against an individual or corporation in the court of law or any other organs established by law.

Further, procedural law comprises the set of rules that govern the courts or any other organ established by law in dealing with the dispute. The court needs to conform to the standards set up by procedural law during the civil or criminal proceedings. These rules ensure fair and consistency in the due process.
Generally procedural the law deals with and lays down ways and means by which substantive law can be enforced.

Objective of Procedural Law

The main objective of procedural law is to provide a guide to attain justice or any legal right. Civil Procedure helps in making availability of right clear through procedural rules. Procedural law assures individuals that the rights given by the substantial law are obtainable.  

How Procedural Law Works
Generally, procedural law works as a servant of substantive law. Example, if a person commits a tort or breach of contract, tort and contract are substantive law which provides only rights and duties of individuals, therefore, in order for that person to claim for his right on tort or contract, he must invoke procedural law into play. Procedural law is there to guide him and courts towards his right.

Procedural Law at Pre-trial Stage

The observance of procedural law is required even before the trial. It is important to know, understand and observe a procedural aspect of the law right from the beginning. At the pre-trial stage, procedural laws set the rules on preliminary matters to comply before going to court example issuing of demand letter, parties to sue, where to sue (jurisdiction of courts) form and contents of documents to be used (pleadings), the time limitation for commencing a certain legal process example, time for the institution of the suit.

 Procedural Law at Trial Stage

Procedural law proceeds to serve substantive law even at trial stage. Here procedural law acts as a conduit for accessing legal right by providing rules on who may commence the proceedings, how the evidence should be adduced before the court, how attendance of the parties and witnesses before the court can be procured (summons), It guides how proceedings are to be recorded, it provides the framework of hearing of cases i.e. from pleadings stage, hearing stage, and judgment stage. It guides how proceedings are to be recorded.

Procedural Law at Post-Trial Stage
Individuals enjoy the service of procedural law even after the trial. During this stage, procedural law is working by guiding parties on how to execute and enforce the court's judgments and decrees, how a winner of the case can claim the  refund of the cost of the case (Bill of cost), it guides on how the aggrieved party can seek remedies either through appeal, review or revision. It is also provide on how these remedies can be exhausted.

Final Remarks
In the case of Iron and Steelwares Ltd. V. C.W. Martyr & Co. (1956) 23 E.A.C.A 175 on page 177 court stated that “procedural law is intended to serve as the hand-maidens of justice, not to defeat it.” This means, in the course of seeking justice, an individual might fail to comply with certain rules of procedure; In this case, that individual must suffer legal consequences. For Example, if an individual failed to comply with the rules of pleadings then his case will be struck out, in the light of the above court statement; the individual may amend the pleading and reinstitute his case.
In other words, for the interest of justice, procedural law provides for remedying procedures in case an individual or court has failed to comply with a prescribed legal procedure.

Tuesday, 5 November 2019

LEGAL IMPLICATIONS OF ADMISSION AND CONFESSION IN CRIMINAL CASES


Admission and confession are among the important issues in criminal liability. Black’s Law Dictionary, defines admission as a voluntary acknowledgment made by a party of the existence of certain facts that are inconsistent with his claim in an action.  A confession within the context of criminal law is the statement, oral or written which admits all the essential elements or ingredients of the offense. In confession, an admission of one or only some of the ingredients of the offense is not sufficient.  In some instances, confession may be retracted or repudiated. Retracted confession occurs where the accused, having made a confession later at his trial retract it, usually by maintaining that it was not true having been procured from him as the result of ill-treatment or the threat of ill-treatment while repudiated confession occurs where the accused maintain that he never made the confession at all, or that the record, probably through faulty translation does not represent what he actually said.    The following cases demonstrate the implications of admissions and confessions in criminal cases.

Admission and confession are among the important issues in criminal liability. Black’s Law Dictionary, defines admission as a voluntary acknowledgment made by a party of the existence of certain facts that are inconsistent with his claim in an action.
A confession within the context of criminal law is the statement, oral or written which admits all the essential elements or ingredients of the offense. In confession, an admission of one or only some of the ingredients of the offense is not sufficient.
In some instances, confession may be retracted or repudiated. Retracted confession occurs where the accused, having made a confession later at his trial retract it, usually by maintaining that it was not true having been procured from him as the result of ill-treatment or the threat of ill-treatment while repudiated confession occurs where the accused maintain that he never made the confession at all, or that the record, probably through faulty translation does not represent what he actually said.

The following cases demonstrate the implications of admissions and confessions in criminal cases.

ADMISSION

SIMON KILOWOKO v REPUBLIC 1989 TLR 159 (HC)

Facts
In an appeal against a conviction for theft the appellate judge found that the appellant had admitted that there may have been loss of money, but there was no sufficient proof that he stole the money.   

Held
Admission that there may have been loss does not amount to admission to having stolen the money. The prosecution has to prove beyond a reasonable doubt that the appellant committed the offense charged.

MATHEI FIDOLINE HAULE v REPUBLIC 1992 TLR 148 (CA)

Facts
The appellant assaulted his mother whom he believed to be a witch. In convicting the appellant the trial judge relied on two pieces of evidence. The first was a statement the appellant made to his village chairperson that he had assaulted his mother. The second was a cautioned statement alleged to have been made by the appellant before a police officer who at the time of the trial was reported dead. The trial judge treated both pieces of evidence as a confession.

Held
The mere admission by the appellant that he had assaulted his mother could not really be taken to amount to a confession to the offense of murder with all its essential ingredients, especially as at the time the appellant was making the admission the victim was still alive and receiving treatment at the hospital;

CONFESSIONS

HEMED ABDALLAH v REPUBLIC 1995 TLR 172 (CA)

Theme: retracted confession must be corroborated. The court can rely on it after satisfied that it is true.

Facts
The High Court convicted the appellant of murder on the basis of his retracted confession. Before convicting the court warned itself of the danger of basing the conviction on an uncorroborated retracted confession. On appeal, the appellant argued that the trial court's conviction should be faulted because the learned Trial Judge did not give reasons why he relied on the uncorroborated confession.   

Held
1. Generally, it is dangerous to act upon a repudiated or retracted confession unless it is corroborated in material particulars or unless the court, after full consideration of the circumstances, is satisfied that the confession must but be true; 
2. Once the trial court warns itself of the danger of basing a conviction on uncorroborated retracted confession and having regard to all the circumstances of the case it is satisfied that the confession is true, it may convict on such evidence without any further ado;
3. It is not a requirement of the law that reasons have to be given for the trial court's finding that there is no danger in accepting a retracted confession
4. The learned Trial Judge found no danger in founding a conviction on the confessional statement because he was satisfied that the confession was true. 

THADEI MLOMO AND OTHERS v REPUBLIC 1995 TLR 187 (CA)

Theme: Involuntary confession is admissible if the court believes it to be true. Repudiated confessions can be used to support conviction of co-accused.

Facts
Three appellants appealed against conviction of murder by the High Court. In convicting two of the appellants the court relied on retracted confessions which had been made involuntarily but which the court admitted under s 29 of the Evidence Act, 1967. The third appellant was convicted on the basis of the statements made by the co-accused. On appeal two of the appellants challenged the trial court's admission of the repudiated confessions. The third appellant attacked his conviction which was based on the repudiated confessions of the co-accused.    

Held
1Under Section 29 of the Evidence Act 1967, an involuntary confession is admissible if the court believes it to be true.
2. There was corroborative evidence to support the conviction of the third appellant on the basis of the repudiated confessions of his co-accused.

MICHAEL LUHIYE v REPUBLIC 1994 TLR 181 (CA)

Theme: A court may convict on retracted confession even without corroboration.


Facts
The appellant is this case appealed against conviction the murder contrary to Section 196 of the Penal Code. He argued that the confession from him to the police was involuntary as he was subjected to violence before he made it; and that his confession was retracted but was nevertheless relied upon by the court without independent evidence to corroborate it.

Held
It is always desirable to look for corroboration in support of a retracted confession before acting on it but a court may convict on retracted confession even without corroboration. 

 JOSEPHAT SOMISHA MAZIKU v REPUBLIC 1992 TLR 227 (HC)

Theme: Confession is not automatically inadmissible simply because it resulted from threats or promise

Facts
Josephat Somisha alias Maziku the appellant was at the material time, employed as a watchman by Tabora Region Co-operative Union. On 1/5/90, it was discovered that 18 louver glasses had been extracted from windows and one typewriter were stolen. Through interrogation by Sungusungu, the appellant confessed to having stolen the louver glasses but not the typewriter. The appellant, in his cautioned statement to 7909 D/Cpl. Benjamin further confessed to have stolen the louver glasses. On the strength of this evidence, the trial Magistrate convicted the appellant on the charge of stealing by public servant c/s 270 and 265 of the Penal Code.  In his memorandum of appeal, the appellant contended that his confessions to the Sungusungu were extracted by threats and with violence.

Held
1While it is trite law that the condition precedent for the admissibility of a confession is its voluntariness, a confession is not automatically inadmissible simply because it resulted from threats or promise, it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admission of guilt.
2.Where you have threats and a confession far apart without a causal connection, and no chance of such threats inducing confession, such confession should be taken to be free of inducement, voluntary and admissible;
3. It is a principle of evidence that where a confession is, by reason of threat,  B  involuntarily made and is therefore inadmissible, a subsequent voluntary confession by the same maker is admissible, if the effect of the original torture, or threat, has before such subsequent confession, been dissipated and no longer the motive force behind such subsequent confession. 

 SHIHOBE SENI AND ANOTHER v REPUBLIC 1992 TLR 330 (CA)

Theme: A village chairman is a proper authority to take confession.


Facts
The appellants were convicted of murder and sentenced to suffer death by hanging. They appealed against both conviction and sentence attacking the evidence on the basis of which they were convicted. The appellants were said to have made confessions which they later repudiated. Some of the confessions were made to the village chairman.

Held
A village chairman is a person in authority under section 27(3) of the Evidence Act and so a confession made to him is involuntary if the Court believes that it was induced by any threat, promise or other prejudice. There is not a thread of doubt that the confessions to the village chairman were not induced by threat, promise or other prejudice.
           

Monday, 4 November 2019

GROUNDS FOR EXTENSION OF TIME IN CIVIL CASES


The legal system in Tanzania allows the court to extend the time for exercising several legal rights when a person is time-barred. However, it is well settled that the court may only extend the time when sufficient reasons of delay have been shown by the applicant.  In the case of REGIONAL MANAGER, TANROADS KAGERA vs. RUAHA CONCRETE COMPANY LIMITED- CIVIL APPLICATION NO. 96 OF 2007- COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM explained what amount to sufficient reason. The court stated that “What constitutes “sufficient reason” cannot be laid down by any hard and fast rules. This must be determined by reference to all the circumstances of each particular case. This means that the applicant must place before the Court material which will move the Court to exercise its judicial discretion in order to extend the time limited by the rules:”  Here is the compilation of the cases on the subject above. These cases demonstrate what amount to sufficient reason and what does not amount to sufficient reason.

The legal system in Tanzania allows the court to extend the time for exercising several legal rights when a person is time-barred. However, it is well settled that the court may only extend the time when sufficient reasons of delay have been shown by the applicant.
In the case of REGIONAL MANAGER, TANROADS KAGERA vs. RUAHA CONCRETE COMPANY LIMITED- CIVIL APPLICATION NO. 96 OF 2007- COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM explained what amount to sufficient reason. The court stated that “What constitutes “sufficient reason” cannot be laid down by any hard and fast rules. This must be determined by reference to all the circumstances of each particular case. This means that the applicant must place before the Court material which will move the Court to exercise its judicial discretion in order to extend the time limited by the rules:”
Here is the compilation of the cases on the subject above. These cases demonstrate what amount to sufficient reason and what does not amount to sufficient reason.

SAMSON KISHOSHA GABBA v CHARLES KINGONGO GABBA 1990 TLR 133 (HC)

Facts
The appellant filed an application at Kakoro Primary Court, in Ngudu, for him to be appointed administrator of estate of his deceased father Gabba Mpondamali. In his application he claimed that the two houses on plots No. 125 and No. 33 Block A, in Ngudu Township belonged to him (applicant) and not the deceased, though the said plots were in the name of the deceased. The respondent on behalf of other members of the family filed on the objection  in court against the appointment of the appellant as administrator. The trial court was satisfied and found candidates unfit for the job and instead, the court-appointed the Ward Secretary of the area to be the administrator of the estate. In addition, the court did two things: First, it held that the houses on plots No. 125 and No. 33 block A in  Ngudu township belonged to the deceased and not the appellant. Second, the Court distributed the property of the deceased to his children. The appellant, after his attempt to file an appeal out of time, was rejected, filed on an application for leave to appeal to the District Court out of time. The District Court rejected the application on the ground that no reasonable ground for the delay was shown. He appealed to the High Court.
  
Held
In determining whether or not to allow an application for leave to appeal out of time the court has to consider reasons for the delay as well as the likelihood of success of the intended appeal;
           

FELIX TUMBO KISSIMA v TANZANIA TELECOMMUNICATION CO LTD AND ANOTHER 1997 TLR 57 (CA)  

Facts
The applicant applied for leave to file his appeal out of time. It appeared that the applicant had lodged the notice of appeal in time and had engaged an advocate to pursue his appeal. The advocate, apparently mixing politics and the legal profession, had failed to pursue the appeal and in fact, lied to his client.

Held
The applicant had given sufficient reasons for delaying in lodging the appeal.  

UMOJA GARAGE v NATIONAL BANK OF COMMERCE 1997 TLR 109 (CA)  

Facts
The applicant applied for an extension of time to file a notice of appeal. The same application had been made before but had been refused. There had been two sets of proceedings in the matter and the applicant, who was aggrieved by the outcome of the proceedings, wished to prosecute the appeal and sought copies of the proceedings. The Registrar supplied a certificate of exemption for the one case but not the other and counsel used the incorrect certificate in the attempt to save the purported appeal in the present case which was long time-barred.    

Held
  1. It was clear that the error had been committed by the applicant's counsel and the Registrar could not be held blameworthy;
  2. In the circumstances, no sufficient cause had been made out for enlarging the time as prayed.

 MICHAEL LESSANI KWEKA v JOHN ELIAFYE 1997 TLR 152 (CA)  

Facts
The applicant applied for an extension of time within which to serve a copy of a notice of appeal and a copy of his letter to the Registrar applying for proceedings in the case. It appeared that the advocate's clerk had, through inadvertence, failed to serve the two documents on the respondent's advocate. 

Held
  1. The Court had power to grant an extension of time if sufficient cause had been shown for doing so;
  2. In the instant case, the applicant had shown reasonable diligence in correcting the error immediately upon discovery and this conduct warranted consideration for enlarging the time in his favor.

FORTUNATUS MASHA v WILLIAM SHIJA AND ANOTHER 1997 TLR 154 (CA)  

Facts
The applicant applied for an extension of time within which to file the appeal. The application was opposed by the respondent.

Held 
A distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case, the applicant had acted immediately after the pronouncement of the ruling of the court striking out the first appeal. In these circumstances, an extension of time ought to be granted.  

 WILLIAM SHIJA v FORTUNATUS MASHA 1997 TLR 213 (CA)

Facts
The respondent had been granted an extension of time by the Court of Appeal within which to file an appeal after his appeal had previously been struck out on the ground that it was incompetent for not having the extracted order attached. The single judge of the Court of Appeal held that the delay on the part of the respondent had been technical and not actual and that the original appeal, though incompetent, had been lodged in time. In the present reference, the applicant contended that the application ought not to have been granted because it lacked the requisite notice of intention to appeal as with the striking out of the appeal the notice of appeal had also disappeared.

Held    
  1. The applicant was correct in contending that when the appeal had been struck out the notice of appeal was also struck out: in that situation if a party still wished to appeal a fresh application had to be filed in the High Court seeking extension of time in which to give notice of appeal;
  2. In determining whether the application should nonetheless be granted, the court took into account that counsel had been negligent in adopting the correct procedure and this could not constitute sufficient reason for the exercise of the court's discretion.


INSPECTOR SADIKI AND OTHERS v GERALD NKYA 1997 TLR 290 (CA)

Facts
The applicants were the respondents in an action for malicious prosecution in the High Court in which judgment was given against them. The applicants filed a notice of appeal within 6 days of the  judgment having been granted but the respondent was neither served with a copy of the notice of appeal nor a copy of the letter requesting copies of the proceedings. It appeared that the applicants reacted only some 40 days after they became aware of the omission.


Held
The cause of the delay in the present case was the error of the applicants. These circumstances did not constitute `sufficient reason' for the purposes of Rule 8.

HELEN JACOB v. RAMADHANI RAJABU 1996 TLR 139 (HC)

 Facts
The Applicant, having lost her case in the Primary Court of Magomeni failed to appeal its decision within the statutory thirty-day period. Her application to the District Court for leave to appeal out of time was dismissed. She presently appeals against that decision.
Held
The fact that The applicant was busy complaining to the CCM and the Minister for Home Affairs is not sufficient reason for extending the time allowed for   noting an appeal and does not constitute any explanation for failing to appeal in time.

COSMAS CONSTRUCTION CO. LTD v ARROW GARMENTS LTD 1992 TLR 127 (CA)

Facts
This was an application, by the applicant company, for extension of time to institute an appeal. The proceedings giving rise to this application were heard by the High Court in the absence of the applicant, the applicant has refused to accept service of summons. It was in evidence that the applicant was not given notice of judgment. On appeal, it was submitted by counsel for the respondent that the High Court had no obligation to notify the applicant of the date when the judgment was going to be delivered. In his application for extension of time, the applicant said that he was not given notice of judgment but did not disclose when he got to know of the existence of the judgment.

Held
A party who fails to enter an appearance disables himself from participating when the proceedings are consequently ex-parte, but has to be told when the judgment is delivered so that he may, if he wishes, attend to take it as certain consequences may follow;
Without disclosing when the applicant got to know of the existence of the judgment it is not possible to gauge the extent of the delay. No sufficient cause for the delay has been established. 

SHEMBILU SHEFAYA v OMARY ALLY 1992 TLR 245 (CA)


Facts
The applicant who lost an appeal in the High Court delayed filing his notice of appeal within the prescribed 14 days period. Then he filed an application in the High Court for extension of time to file a notice of appeal. The application was dismissed because "ill health without elaboration cannot amount to a good reason...." Aggrieved by the decision of the High Court the applicant appealed to the Court of Appeal

Held
No sufficient reason has been given for the delay. 

 MARTHA DANIEL v PETER THOMAS NKO 1992 TLR 359 (HC)

Facts
The applicant lost an appeal in the District Court. Instead of filing her petition of appeal in the District Court the applicant filed the petition of appeal directly in the High Court in contravention of the procedure stipulated in section 25(3) of the Magistrates' Courts Act, 1984. The High Court struck out the appeal which was not properly before it. When the applicant wanted to file the appeal according to the laid down procedure it was discovered that time for so filing had ended. It was, thus, necessary to apply for an extension of time to file the appeal. One of the reasons advanced was that the applicant was a layperson who did not know the rules.

Held
A plea by a layperson that he be allowed to file an appeal out of time in an appropriate court an appeal which was struck out or is voluntarily withdrawn from the High Court because it had been wrongly filed there, but timely constitutes a sufficient reason.

RAJABU KADIMWA NG'ENI AND ANOTHER v IDDI ADAM 1991 TLR 38 (HC)

Facts
This was an application for leave to appeal out of time.  The delay was slight, about a week.  The Court considered the prospects of success of the intended appeal in order to grant the application or otherwise.

Held
Since the intended appeal has absolutely no chances of success the application must fail.


Sunday, 3 November 2019

LAW OF BAIL TANZANIA REPORTED CASES


This compilation act as the one stop source of bail cases in Tanzania.

LAWRENCE MATESO v REPUBLIC 1996 TLR 118 (HC)

Theme: Conditions for granting bail pending appeal.

Facts
The appellant was convicted with malicious damage to property by the district court. One appeal he applied for bail pending the determination of his appeal. In the course of ruling whether to grant bail or not, high court elucidated conditions necessary for granting bail pending appeals. Those conditions are:

  1. That bail pending the appeal is the discretion of the court
  2. On deciding whether to grant bail or not, the court must balance the liberty of the individual with the proper administration of justice;
  3. That the applicant must prove beyond a reasonable doubt that justice will not be jeopardized by his liberty and there are unusual and exceptional reasons for granting bail.
  4. That the appeal has overwhelming chance of success

DIRECTOR OF PUBLIC PROSECUTIONS v DAUDI PETE 1993 TLR 22 (CA)

Theme: Denial of bail in a criminal trial does not violate the presumption of innocence.

Facts
The respondent was accused of the offense of robbery with violence. His application of bail pending appeal was denied by District Court on the ground that the offense committed was not bailable.
The respondent appealed against the bail order to the High Court. The high court found that section 148(4) and (5) of the Criminal Procedure Act [CAP 20 R.E 2002] was unconstitutional consequently declared null and void and proceed to grant bail to the respondent.
The Director of Public Prosecutor aggrieved by the decision of the High Court and appealed to the Court of Appeal.

Held
  1. The Court of Appeal held that denying bail to an accused person does not necessarily amount to treating such a person like a convicted criminal so section 148(5)(e) of the Criminal Procedure Act does not violate Article 13(6)(b) of the Constitution of United The Republic of Tanzania, 1977. (the Constitution).
  2. Courts have discretion to grant bail to persons accused of offenses specified under section 148(5) (e) of the Act, which discretion should be exercised judicially taking into account the interests of both the individual and the community.


REPUBLIC v ATHUMANI ALLY MAUMBA 1988 TLR 114 (HC)


Theme: Bail may be refused when accused safety is in danger


Facts
The appellant was refused bail by the District Court because it believed appellant's safety would be better protected if he remained in custody. The appellant had violated some children and police argued that the appellant could be assaulted by parents of the victim children.

Held
Before the provisions of section 148 (5) (f) of the Criminal Procedure Act [CAP 20 R.E 2002] is invoked to the detriment of an accused person the prosecution must clearly show that the accused's safety is in danger and such the information must be verified as to its authenticity.

JUMA JOSEPH SILIMU, DANIEL JOSEPH SILIMU and ONESMO JOSEPH SILIMU v REPUBLIC 1987 TLR 114 (HC)

Theme: Procedure when bail is refused by the District court.

Facts
The appellants applied to the High Court for bail after several unsuccessful attempts   therefore to the District Court of Mbeya before which they were facing a joint charge of injuring animals contrary to section 325 of the Penal Code.  The application was made under section. 149 of the Criminal Procedure Act [CAP 20 R.E 2002] which vest powers to the High Court to grant or to vary terms of bail which was determined by a lower court.

Held
When deciding on the procedure applied by appellants, High Court directed that where an application for bail is refused by a subordinate court, the applicant may appeal against the refusal order to the High Court, and it is improper for the applicant to move the High Court by way of a fresh application.


REPUBLIC v OMARI KIBWANA 1986 TLR 16 (HC)

Theme: Court should give surety enough time to find the accused person when the accused fails to appear.  

Facts
Omari Kibwana stood surety for an accused person. The bail bond was Tshs. 60,000/=. On one occasion he failed to produce the accused before the Court as required. He himself attended the court and explained that the accused was sick. The magistrate ordered forfeiture of the bond or six months imprisonment. Kibwana was imprisoned. The record of proceedings was called by the High Court for inspection and revision.  

Held
  1. Where the accused fails to appear on an appointed date it is preferable not to forfeit the bond of the surety too quickly, it is best to adjourn and allow the surety time to find the accused if he thinks he can get him
  2. There was no reason to make the court think that the surety was lying it was clearly wrong on the part of the learned Senior Resident Magistrate to sentence the surety to a term of imprisonment.


Friday, 1 November 2019

ATTORNEY GENERAL V REBECA Z. GYUMI: COURT OF APPEAL OF TANZANIA DECLARED SECTIONS 13 AND 17 OF THE LAW OF MARRIAGE ACT UNCONSTITUTIONAL


In the case of Attorney General v Rebeca Z. Gyumi Civil Appeal no. 204 of 2017 Court of appeal of Tanzania At Dar es Salaam, on its judgment delivered on 15th day o October 2019 declared sections 13 and 17 of The Law of Marriage Act [CAP 29 R.E 2002] (LMA) unconstitutional and ordered the government to cause the amendment of The LMA within one year.

In the case of Attorney General v Rebeca Z. Gyumi Civil Appeal no. 204 of 2017 Court of the Appeal of Tanzania At Dar es Salaam, on its judgment delivered on 15th day of October 2019 declared sections 13 and 17 of the Law of Marriage Act [CAP 29 R.E 2002] (LMA) unconstitutional and ordered the government to cause the amendment of The LMA within one year. The said sections which declared unconstitutional provides as follows;

 Section 13.  Minimum age

      (1) No person shall marry who, being male, has not attained the apparent age of eighteen years or, being female, has not attained the apparent age of fifteen years.
      (2) Notwithstanding the provisions of subsection (1), the court shall, in its discretion, have power, on application, to give leave for a marriage where the parties are, or either of them is, below the ages prescribed in subsection (1) if–
      (a) each party has attained the age of fourteen years; and
      (b) the court is satisfied that there are special circumstances which make the proposed marriage desirable.
      (3) A person who has not attained the apparent age of eighteen years or fifteen years, as the case may be, and in respect of whom the leave of the court has not been obtained under subsection (2), shall be said to be below the minimum age for marriage.

Section 17.  Requirement of consent

      (1) A female who has not attained the apparent age of eighteen years shall be required,
before marrying, to obtain the consent–
      (a)      of her father; or
      (b)      if her father is dead, of her mother; or
      (c)      if both her father and mother are dead, of the person who is her guardian,
but in any other case, or if all those persons are dead, shall no require consent.
      (2) Where the court is satisfied that the consent of any person to a proposed marriage is being withheld unreasonably or that it is impracticable to obtain such consent, the court may, on application, give consent and such consent shall have the same effect as if it had been given by the person whose consent is required by subsection (1).
      (3) Where a marriage is contracted in Islamic form or in accordance with the rites of any specified religion or in accordance with the customary law rites, it shall be lawful for the kadhi, minister of religion or the registrar, as the case may be, to refuse to perform the ceremony if any requirement of the relevant religion or person other than a person mentioned in subsection (1) has not been complied with:
      Provided that nothing in this subsection shall be construed as empowering the kadhi, minister of religion or registrar to dispense with any requirement of subsection (1).

Facts of the Case

This is the constitutional appeal originated from the judgment of the High Court of Tanzania at Dar es Salaam in Misc. Civil cause No. 5 of 2016. In the High court the appellant herein challenged the provisions of section 13 and 17 of LMA (as cited above). The responded argued that the said provisions contravene Article 12, 13 and 18 of the Constitution of the United Republic of Tanzania 1977, (The Constitution).  For ease of reference, I will reproduce the wording of those Articles as follows;

Article 12. The Right to Equality

(1)   All human beings are born free, and are all equal.
(2)   Every person is entitled to recognition and respect for his dignity.

Article 13. Equality before the Law

(1)   All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law.
(2)   No law enacted by any authority in the United Republic shall make any provision that is discriminatory either of itself or in its effect.
 (3)   The civic rights, duties and interests of every person and community shall be protected and determined by the courts of law or other state agencies established by or under the law.
(4)   No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any state office.
(5)   For the purposes of this Article the expression “discriminate” means to satisfy the needs, rights or other requirements of different persons on the basis of their nationality, tribe, place of origin, political opinion, color, religion, sex or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or conditions whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualifications except that the word “discrimination” shall not be construed in a manner that will prohibit the Government from taking purposeful steps aimed at rectifying disabilities in the society.  
(6)   To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely:
 (a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned; 
(b) no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence; 
(c) no person shall be punished for any act which at the time of its commission was not an offence under the law, and also no penalty shall be imposed which is heavier than the penalty in force at the time the offence was committed; 
(d) for the purposes of preserving the right or equality of human beings, human dignity shall be protected in all activities pertaining to criminal investigations and process, and in any other matters for which a person is restrained, or in the execution of a sentence; 
(e) no person shall be subjected to torture or inhuman or degrading punishment or treatment.  
expression

Article 18. Freedom of Expression 

Every person –
(a) has a freedom of opinion and expression of his ideas;
(b) has out right to seek, receive and, or disseminate information regardless of national boundaries;
 (c) has the freedom to communicate and a freedom with protection from interference from his communication; 
(d) has a right to be informed at all times of various important events of life and activities of the people and also of issues of importance to the society.

The Appellant prayed the court to declare section 13 and 17 of The LMA provision null and void, must be removed from the statute and 18 Years old should remain the minimum age for marriage.  Four issues were set for determination;

  1. Whether sections 13 and 17 of The LMA contravenes Article 12 of the Constitution.
  2. Whether section 13 (1) & (2) of The LMA are discriminatory thus contravene 13 of the Constitution.
  3. Whether section 17 of the LMA contravenes the right to equality and dignity of a person as provided in Article 12 and 13 of the Constitution.  
  4. Whether section 13(2) of LMA is too vague and susceptible to being arbitrarily construed to deny female children their right to education which is the cornerstone of the freedom of expression as stipulated under Article 18 of The Constitution

In response to those issues and Appellant prayers The High Court held that

The government, through the Attorney General, within one year from the date of the decision, to correct the complained anomalies within provisions of Section 13 and 17 of the LMA and put 18 years as the minimum age for marriage for boys and girls.

The Attorney General aggrieved by that decision, He appealed to the Court of Appeal and prays the court to quash the decision of the High Court and declare that Section 13 and 17 of the LMA is constitutional, basing on the following grounds.
  1. That High Court erred in law in holding that section 13 and 17 LMA are discriminatory for giving preferential treatment regarding the eligible ages of marriage between girls and boys.
  2. That High Court erred in law in equating the age of the child with the age of marriage
  3. That High Court erred in law by holding that customary and Islamic law does not apply in matters stated in LMA
  4. That High Court erred in law by holding that with various legislative developments that have taken place, it is unexpected to have valid and competent applications filed in court seeking leave under Section 13(2) and 17(2) of the LMA
  5. That High Court erred in law by holding that Sections 13 and 17 of the LMA have lost their usefulness thus they deserve to be declared null and void.

  Held
The Court of Appeal found that the entire appeal has no merit. The appellant is supposed to abide by the order of the High Court to causing the amendment of the LMA as directed.