THE MAKING OF LAW IN TANZANIA By Kisilwa, Zaharani

Meaning of law Definition of law In the realm of the legal theory, the word law is a complex term which is capable of multiple definitions i.e. there is no single definition. Most common definitions by some known legal writers Law refers to a rule made by authority for the proper regulation of a community or society or for correct conduct in life. (Oxford English Dictionary)

Meaning of law: continued A law is a general rule of external human action enforced by a sovereign political authority (Holland). The law is the body of principles recognized and applied by the state in the administration of justice (Salmond) Law refers to a rule of human conduct, imposed upon and enforced among the members of a given state (Saleemi & Ateenyi)

Meaning of law: continued Generally: the term law presupposes presence of rules and or principles that affect the daily conducts, lives and activities of peoples in the society.

Types of law Statutory law/legislation Customary law Case law Subsidiary legislation Common law Principles of equity Statutes of general application Note: Different types of laws determine various methods of their making

Types of laws: legislation Legislations are created by the parliament and laid down in books of law called statutes. (to be seen herein after) This is the model of English Law which was imposed on Tanganyika during the British rule.

Types of laws: delegated legislation Though the supreme law making body of the country is the parliament, it usually delegates [assigns], its power to make the law through the laws it has made to specific authorities in charge of that law. This authority to which power to make law is delegated by the parliament will make a valid and enforceable law only when it does not exceed the powers granted to it. The laws made by delegated power are known as by-laws, regulations and circulars, or subsidiary legislation.

continued Importance of Delegated legislation (a) It saves parliamentary time (b) Allows for a greater flexibility in application (c) Allows fine details to be added later by minister responsible after the statute has been passed as law. (d) Allows very quick passing of a statute in cases of states of emergency (e) Relieves parliament of excessive work – load

Types of law: case law Case Laws which refer to judge made law. Judges make law by applying a decision reached in a particular case to a similar case that arises later, if the facts of the two cases are materially the same. This is known as the doctrine of judicial precedent Ratio decidendi (R.D)-basis of judicial precedent. R.D is the reason why a particular decision was given in certain circumstances. Usually, in judicial precedent, application of a principle forming the basis of a decision in one case, to another case largely depends on its R.D. if the Reason would be reasonable in any given circumstances then the decision of the case would be applicable.

Types of law: common law, equity and statutes of general application These laws were received vide Tanganyika Order in Council of 1920, from the British Colonial Government; Common Law (customary law of England) Principles of Equity (those which were applied in court to mitigate rigidity of common law) Statutes of General Application (those which applied generally in England)

Why laws are needed Any one of the following may be a reason behind the need for laws; i. Emergency issues such as the threat of terrorism, ii. pressure on the Government to update old laws and case law in the courts, and iii. interpreting, clarifying and re-applying established principles of statute law and iv. Technological advancement All contribute to the need for new laws.

Who makes laws The Parliament: One of Parliament's main roles is debating and enacting laws, article 63 (1) (d) of URT constitution The Government introduces most plans for i. new laws, with many included in the president’s speech at the national assembly or at the opening of each session of Parliament, and ii. changes to existing laws. iii. New laws can originate from an MP individually or with a proposal from the president.

THE LAW MAKING PROCESS Law can be made by the parliament in three situations: - where a new law is needed -where an old law is to be amended/altered - where financial laws are needed/have to be changed Article 97 of the URT constitution requires that the national assembly shall exercise its legislative power i.e. power to make law through two processes; i. debating process ii. passing bills

LAW MAKING PROCESS: New law The process of law making involves the following actions; i. Administration of Consultation papers /green papers Consultation or discussion on the new law is staged with interested parties such as professional bodies, voluntary organisations and pressure groups. Green papers set out government proposals that are still taking shape and seek comments from the public. ii. Administration of White papers Proposals for legislative changes may be contained in government White Papers. There is no requirement for White or Green Papers to be introduced before a Bill is introduced into Parliament iii. Pre legislative scrutiny by way of Draft bill A Draft Bill is a Bill that is published to enable consultation and pre-legislative scrutiny before a Bill is formally introduced into the parliament. A Draft Bill may be considered by a select committee of the parliament in order to allows MPs to have early influence on the Bill. This process is known as pre-legislative scrutiny.

BILLS iv. The Bill; Then a bill for the new law is introduced into the parliament. “ A Bill is a proposal for a new law, or a proposal to change an existing law that is presented for debate before Parliament”. v. Debating the bill; Bills are introduced in the parliament for examination, discussion and amendment. Here a bill must be supported by at least 2/3 of all members of the parliament. See article 98 of the URT. v. Passing the bill; When the parliament approves the content of a Bill it is then presented to the president for approval. Once Assent is given a Bill becomes an Act of Parliament and is law.

When president does not assent to the bill The bill is returned to the national assembly with presidents reasons for not assenting supporting it. 1. the assembly should not present it again to the president until at the expiration of six months after its return. 2. it can be presented in less than six months if it is supported by not less than 2/3 of all members of the parliament. 3. if no. 2 happens i.e. the bill is presented within 6 months after gaining support of not less than 2/3 of all members, the president has to assent to it within 21 days. 4. if president does not assent to it within the specified time, he shall have to dissolve the parliament.

Who introduces bills in parliament Bills can be introduced either by: The government-public bill Individual MPs or-private members bill Private individuals or organisations-private bill

LAW MAKING PROCESS: Amending an old law Alteration of an old law requires the following procedure For constitution or any law: alteration of the constitution or any law is initiated by a bill for an act to alter provisions of constitution or any other law For laws not touching on union matter: The bill must be supported by not less than 2/3 of all the members of the parliament For alteration of laws touching on union matters: the bill must be supported by not less than 2/3 of (a) all members of the parliament from mainland Tanzania (b) all members of parliament from Tanzania Zanzibar.

Law making process: financial laws These require presidential proposal as provided by Article 99 of the URT The financial matters that require presidential proposal to assembly by minister are; - tax levying - to alter taxation by increase

continued -imposition of charge upon consolidated fund or any public fund - to alter the charge by increase - payment, issuing or withdrawing from consolidated fund or any other public fund of moneys not charged there on. All other matters do not require presidential proposal. THE END