The legal profession in Tanzania can be divided into three sections: the Bench, the Private Bar and the Public Bar. The Bench is composed of at least 5 Court of Appeal judges, at least 15 High Court judges, and several Resident, District and Primary Court magistrates. The Private Bar is composed of the advocates engaged in private practice in law while the Public Bar is made up of State Attorneys who act on behalf of the Government and are employed in the Attorney General’s chambers, and the Corporation Counsel employed by the Tanzania Legal Corporation who act on behalf of public corporations.
(1) The Bench:
(a) The Court of Appeal:
The 1979 amendment to the Constitution of Tanzania establishes a Court of Appeal which is the final Court of Appeal in Tanzania. It is manned by at least 5 Judges of Appeal appointed by the President of the United Republic. The Chief Justice is the head of this Court. The Constitution also provides for the office of the Registrar of the Court of Appeal. The holders of these offices must have the qualifications laid down under the Constitution and have normally been appointed from among the senior members of the Bench.
(b) The High Court:
Section 60 of the Constitution provides for at least 15 Judges of the High Court. These are appointed by the President after consultation with the Chief Justice. The President may also appoint Acting Judges if he is advised by the Chief Justice that the work of the High Court at a given time is such that an additional number of judges is required on a temporary basis. The Acting Judges normally act as such only for the period stipulated in their appointment (which may be extended) although a number of them have been confirmed as Judges of the High Court in the past. In addition, the Magistrates’ Courts Act empowers the Minister responsible for legal affairs, after consultation with the Chief Justice and the Attorney General, to invest any Resident Magistrate with jurisdiction ordinarily vested in the High Court. These magistrates are commonly known as Resident Magistrates with Extended Jurisdiction and while exercising such jurisdiction are deemed to be High Court Judges. The appointment of magistrates with extended jurisdiction is normally made for the remote areas of the country so as to facilitate the hearing of appeals from District Courts and the Supervision of these courts. The Order appointing such magistrates normally specifies their tenure.
Under the Constitution, High Court judges are appointed from among people who are eligible for registration as advocates of the High Court of Tanzania and have held these qualifications for at least 5 years. However, the President is empowered to waive the latter qualification if he is satisfied that a person who otherwise would have qualified is sui table to hold the office of a judge of the High Court.
The judges of the High Court are guaranteed security of tenure. Once appointed, their office cannot be “abolished” until they attain the compulsory retirement age of 55 years. However, judges can, with the consent of the President, take voluntary retirement at the age of 45 years, or can go on working after the age of compulsory retirement until they attain the age of 62 years if the President considers that it is in the public interest for them to continue working. They can be dismissed from office only on disciplinary grounds in which case the judge concerned must be impeached before a Commission of three judges appointed from any British Commonwealth countries.
Although the Chief Justice (an appointee of the President) is the head of the judiciary in Tanzania, the running of the High Court is left in the hands of the Jaji Kiongozi (Principal Judge) who is appointed by the President after consultation with the Chief Justice.
The Constitution also provides for the office of the Registrar and Deputy Registrars of the High Court which are manned by officers appointed by the President and with similar qualifications as those held by judges.
(c) Magistrates:
There are two classes of magistrates: professional magistrates comprising the District Magistrates and Primary Court Magistrates. The District Magistrates are normally promoted Primary Court Magistrates and the Primary Court Magistrates are appointed after a short training mainly in procedure and criminal law at the Institute of Development Management at Mzumbe.
Like the judges of the Court of Appeal and the High Court, the Magistrates are appointed by the President. The Constitution establishes a Judicial Service Commission composed of the Chief Justice as its Chairman, one High Court judge nominated by the President after consultation with the Chief Justice and another member appointed by the President. Members of Parliament and people barred by law cannot be members of the Commission. This Commission is the disciplinary body for magistrates.
(2) The Bar:
(a) The Private Bar:
The Private Bar is composed of private legal practitioners known as advocates. The Advocates Ordinance requires the Registrar of the High Court to keep a Roll of Advocates. Any person who has the qualifications prescribed by the ordinance is entitled to be registered. These qualifications are: either a law degree of the University of Dar es Salaam (formerly the University of East Africa) or such other University or legal training institution as recognised by the Council for Legal Education; or the applicant must be a legal practitioner with a right of audience before any court of unlimited civil and criminal jurisdiction in any Commonwealth country or any other country designated by the Minister for Legal Affairs; or a Solicitor of the Supreme Court of England, Northern Ireland or the Republic of Ireland; a Writer to the Signet; a Solicitor of the Supreme Court of Scotland and holders of other legal offices in the United Kingdom. In addition, the applicant must satisfy the Chief Justice that he has adequate knowledge of the language of the court which is English and must also produce testimonials of character. A person wanting to be registered as an advocate in Tanzania must petition the Chief Justice.
The Private Bar in Tanzania is the one which is engaged in assisting and representing private individuals in both criminal and civil proceedings before the court. Its members perform the function which are performed by both barristers and solicitors in England. The division which exists in England between the two functions does not exist in Tanzania.
However, the number of advocates is far from adequate. The slow development of the Bar before independence, the exodus of many advocates of foreign origin in the 1970’s and the fact that most Tanzanian graduates in law are employed in the public sector have contributed to the small size of the Bar. Also there are fears that private practice in law will be abolished and so some lawyers are hesitant to start private practice.
The few advocates who exist are centred in urban areas – Dar es Salaam and Arusha taking the largest proportion. Most of them are engaged in individual practice. Partnerships in legal practice in Tanzania are exceptions rather than the rule. Criminal practice takes a large portion of the advocates’ time. It was observed by the Tanzania Judicial Systems Review Commission that very few people benefit from the services of the Private Bar, because the advocates are so few and very expensive. Most cases in Tanzania are conducted by the parties themselves. There is no comprehensive legal aid programme, so even in criminal cases there is no right to legal aid unless the case falls within the provisions of the Legal Aid (Criminal Proceedings) Act, normally one involving offences carrying the death penalty.
(b) The Public Bar
This comprises the lawyers who are employed as State Attorneys in the Attorney General’s Chambers. They are mainly engaged in advising the Government and in public prosecutions under the direction of the Director of Public Prosecutions. They appear on behalf of the state in appeals before the High Court and the Court of Appeal.
Another group of lawyers belonging to the Public Bar are the lawyers who are employed as Corporation Counsel by the Tanzania Legal Corporation. This corporation was established in 1971 under the Tanzania Legal Corporation (Establishment) Order with the purpose of providing legal services to public corporations. Although the Order has been amended to enable the Corporation to provide legal services to the public, the Corporation has so far played no significant role in cases in which private persons are involved because of the small number of lawyers employed by the Corporation.
The Tanzania Legal Corporation is headed by the Chief Corporation Counsel, who is appointed by the President, Senior Corporation Counsel, Assistant Corporation Counsel and Corporation Counsel. All these officers are people who are qualified to be registered as advocates, but in practice they are not registered as such. Their right of audience before the Courts accrues from their employment.
Although the Corporation has not played a significant role in private litigation, it has been providing lawyers to represent people who fall within the provisions of the Legal Aid (Criminal Proceedings) Act.
Conclusion
It may have been seen that the President of Tanzania has very wide powers of deciding the composition of the Bench at every level, except in the case of Zanzibar, which is not governed by the Constitution of the United Republic of Tanzania in this respect. In fact, the Constitution preserves the right of the High Court of Zanzibar to exercise jurisdiction concurrently with the High Court of Tanzania. The existence of such wide powers vested in the President has led some commentators to question the independence of the judiciary in actual practice.
M.R.M. Lamwai