Introduction
The Judicature and Application of Laws Act, Cap. 358 (JALA) is indeed a
foundational and guiding piece of legislation in Tanzania, particularly for
Mainland Tanzania, as it establishes the framework for the jurisdiction of
courts and the recognition, application, and hierarchy of various sources of
law. Enacted originally in 1920 and revised multiple times (e.g., R.E. 2002
and R.E. 2019), JALA serves as a bridge between colonial legal heritage and
post-independence Tanzanian law, integrating received laws, customary law,
and applied foreign statutes into the legal system. It does not create new
substantive laws but rather directs courts on which laws to apply in civil and
criminal matters, ensuring conformity with the Constitution and other written
laws. This makes it pivotal in determining the sources of law, which include
the Constitution, statutes, received laws (common law, doctrines of equity,
and statutes of general application), customary and Islamic law, and applied
Acts from the UK and India. Below, I discuss this role, drawing on key
provisions of the Act and relevant judicial authorities.
Jurisdiction and the Primacy of Written Laws
JALA's Part II outlines the jurisdiction of the High Court and subordinate
courts, emphasizing that their exercise of power must align with Tanzania's
sources of law. Section 2(1) grants the High Court full jurisdiction in civil and
criminal matters, subject to written laws. More crucially, section 2(3)
mandates that the High Court's jurisdiction be exercised in conformity with
written laws in force in Tanzania, including those applied by JALA itself.
Where written laws do not apply, courts must fall back on the substance of
English common law, doctrines of equity, and statutes of general application
in force in England on July 22, 1920 (the "reception date"). This provision
effectively "receives" these English laws as sources in Tanzania, subject to
local circumstances and modifications by Tanzanian legislation or the
Constitution.
This reception clause positions JALA as a guide for residual sources of law
when local statutes are silent. For instance, in commercial or tort cases
without specific Tanzanian legislation, courts rely on English common law
principles adapted to Tanzanian contexts. Section 7 extends similar
principles to magistrates' courts, ensuring uniformity in applying sources
across the judiciary.
Application of UK Acts
Part III A of JALA (sections 10-11) applies certain Acts of the UK Parliament,
as listed in the First Schedule, with modifications to fit Tanzanian contexts.
These include laws like the Foreign Tribunals Evidence Act, 1856, and the
Colonial Prisoners Removal Act, 1884, adapted by substituting "Tanzania" for
"British Colony" and "President" for "Governor." This makes these Acts direct
sources of law in areas such as evidence and prisoner transfers. Section 10
limits their application to versions amended before July 22, 1920, reinforcing
the reception date as a cutoff for foreign influences.
Application and Recognition of Customary Law
Part III B (sections 12-14) is particularly significant, as it recognizes
customary law as a key source in civil matters, especially those involving
community status, succession, or rights tied to customary obligations.
Section 12(1) specifies that customary law applies between members of
communities where such rules are established and accepted, or in cases
where it is "fitting and just." It also preserves Islamic law for matters like
marriage, divorce, and inheritance in relevant communities (proviso to
section 12(1)(ii)). However, section 12(3) subordinates customary law to
written laws, prohibiting its application if abolished or incompatible with
statutes. Section 12(4) excludes customary or Islamic law from matters
covered by the Law of Marriage Act, Cap. 29.
Section 13 empowers district councils to declare or modify local customary
law, subject to ministerial approval and publication, ensuring it evolves while
remaining a living source. This framework guides courts in balancing
customary practices with modern legal principles, often in tension with
constitutional rights under Articles 12-24 of the Tanzanian Constitution (e.g.,
equality and non-discrimination).
Judicial authorities have frequently invoked these provisions to affirm or limit
customary law as a source. In *Bernado Ephrahim v. Holaria Pastory* (High
Court of Tanzania at Mwanza, PC Civil Appeal No. 70 of 1989), the court
struck down a Haya customary rule (under the Customary Law Declaration
Order No. 436 of 1963, applied via JALA section 12) that barred women from
selling inherited clan land, declaring it void for violating constitutional
equality (Article 13(4)). The court relied on JALA to recognize customary law's
status but subordinated it to higher sources, advancing women's property
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Similarly, in *Maagwi Kimito v. Gibeno Warema* (Court of Appeal of
Tanzania, Civil Appeal No. 20 of 1984), the appellate court upheld customary
law's equal status to other sources under JALA section 11 (now section 12 in
revised editions), but only if not repugnant to justice or incompatible with
written law. The case involved inheritance disputes, where discriminatory
customary rules against women were affirmed, illustrating JALA's role in
perpetuating customary law unless constitutionally challenged.<grok:render
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In *Elizabeth Stephen & 265 Others v. Attorney General* (High Court of
Tanzania at Dar es Salaam, Miscellaneous Civil Cause No. 82 of 2005),
petitioners challenged discriminatory inheritance provisions in the Local
Customary Law (Declaration) Order No. 436 of 1963, applied through JALA.
The court acknowledged customary law as a source under JALA but
dismissed the petition, noting alternative remedies under the Basic Rights
and Duties Enforcement Act, Cap. 3. This highlights JALA's guidance in
integrating customary law while deferring to constitutional
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Application of Indian Acts
Part III C (sections 15-19) applies select Indian Acts, as listed in the Second
Schedule (e.g., the Indian Succession Act, 1865, and Hindu Wills Act, 1870),
with modifications like substituting "Tanzania" for "British India" and vesting
powers in the President. Section 17 allows courts or the President to adapt
these for local application, and section 18 prevents post-1920 Indian
amendments from applying. These Acts serve as sources in succession and
wills matters, particularly for non-African communities, filling gaps in
Tanzanian law.
Conclusion and Broader Role
JALA's guiding status stems from its comprehensive integration of diverse
legal sources, ensuring a pluralistic system adaptable to Tanzania's
multicultural society. It subordinates all sources to the Constitution and
written laws, promoting legal certainty while allowing evolution (e.g., through
customary declarations under section 13). Scholarly and judicial commentary
reinforces this: for instance, it establishes received laws as a fourth source
after the Constitution, statutes, and customary/Islamic law.<grok:render
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</grok:render> Cases like those above demonstrate its practical application,
often in resolving conflicts between customary law and human rights,
underscoring JALA's enduring influence on Tanzania's legal landscape.
However, critics note that its colonial roots sometimes entrench inequalities,
prompting calls for further reforms to align with contemporary constitutional
values.