MZUMBE UNIVERSITY

FACULTY OF LAW

COURSE: LLB 1

SUBJECT: LEGAL METHODS 1

CODE: LAW 120

LECTURER NAME: MR. INNOCENT MGETA

TASK:GROUP ASSIGNMENT
SUBMISSION DATE: 10 FEB,2021
QUESTION NO: 02, STREAM C.
NO PARTICIPANT’S NAMES REGISTRATION NO;
01 AYUB, D MBEMBELA 1236077/T.20
02 EFESI HAONGA 1236114/T.20
03 ZENO W. NZUMI 1236115/T.20
04 SAIMON SAMMY MAFURU 1236130/T.20
05 NURA SADIK CHALIGHA 1838040/T.20
06 WINFRIDA J. ABEL 1236116/T.20
07 MARY LUCAS MADOLE 1236122/T.20
08 ANETH DESPICIUS 1236125/T.20
QUESTION NO; 11

Critically discuss the assertion that dispute settlement mechanism in any given society, develop
grow and multiply gradually depending and socio-economic and political circumstances
prevailing at that time.

TABLE OF CONTENTS

1.0 INTRODUCTION
 1.1 Scope of the question
1.2 Meaning of terms.
2.0 MAIN DISCUSSION.
2.1 Traditional Methods of Dispute Settlement (Pre-Capitalist Societies)
 Basic Principle involved
 Characteristics of Traditional Societies
 Legal Context of Traditional Societies.
 Methods Used to solve disputes in Traditional Societies.
 Merit and Demerit of Traditional Mechanismof Dispute Settlement.
2.2 Modern Mechanism of Dispute Settlement (Capitalist Society
 Basic Principle Involved.
 Methods Used to solve disputes in Modern Societies.
 Advantages and dis-advantages of Adversarial and inquisitorial (litigation)
dispute settlement.
 Advantages and dis-advantages of Alternative Dispute Resolution (ADR).
3.0 CONCLUSION
REFERNCES

1.0 INTRODUCTION
1.1 Meaning of terms in accordance with the question
Dispute is a conflict or controversy arising in the society or individuals 1. Dispute can also be
defined as the contradictions or misunderstanding arises within the society, dispute is normally
prompted by conflicting interest over a matter, belief, or something of interest 2. That is to say
dispute is the contradiction or misunderstanding arises between two different individuals or
different societies.

It is common for a dispute to arise in any society because dispute is by socio-economic and
political factors. One a dispute arises parties may be affected by it is necessary that it to be
solved so that parties may live peacefully or to ingress the parties whose rights have been
inquiry. Moreover, a dispute may be defined as a special firm of interaction. It is a
misunderstanding between one community and another.

Dispute settlement is a process that aims at resolving misunderstandings affecting mutual

relationship between the opposing sides3. Disputes are normally prompted by conflicting interest
over a matter, belief, or something of interest. They are spontaneous outcome of political,
economic, social, cultural or religious divergence4. The rationale behind disputes settlement is to
attain social harmony as a basic socio-economic.

Human beings in their co-existence in groups called societies have conflicting interests. Due to
those conflicting interests and their resultant disputes, human societies have formed ways to
adjudicate upon disputes that are bound to occur. Disputes and mechanisms of settlement depend
on social economic development of the societies. This means that, the nature of disputes will
depend on the social economic development of that society.

Dispute settlement, this is a method of solving or settling misunderstandings that occurs between
individuals or society. It is concerned with the rules, procedures and institutions involved in
setting disputes. Not only that but also, there different types procedures of dispute settlement.
Also, this can be referring to all procedure which are used to solve a dispute, it involves.

1
Black’s Law Dictionary, 8th Edition, (2004)
2
Carl. F. (1999) Legal Methods: Text and Materials. 3rd Edition, Thomson sweet and Maxwell.
3
Holland J.A. and Webb J.S., (1996), 3rd Edition, Learning Legal Rules, , Blackstone Press Ltd, London.
4
Mcleon I, (2001), Legal Method, 5th Edition, Palgrave Macmillan, London.
Establishing whether a dispute has occurred or not, if a dispute has occurred, what are the
interests, what is the applicable law, and what institutions are there to settle such dispute.

Moreover, the history of dispute settlement, it started where the law began ‘ubi jusiibiosasiena’
means‘where the society must have law. Since we started having the man in this world is where
the law started and dispute also were there. And the relevant narration of history of dispute is
found in the Holy Bible. Means is started from the history of mankind.

2.0 MAIN DISCUSSION.

Dispute settlement procedures acquire diverse forms depending on three things. First, the
different levels of development in political and economic fields. Second, the differing notions of
justice realized through social relations arising out of these socio-economic relations Third, the
process of production of diverse kinds.

Thus, the character of dispute settlement in each society is from time to time closely related to
the complex of political authorities, police, courts, judges and codes of law. In other words, it
will depend on the judicial component of organised governments. These are found in societies
which have developed institutions special for the administration of justice with special
procedures to be followed in settling disputes in most of what came to be known as Tanganyika,
there was no such government and hence no established and specialised judicial system.
Accordingly, the administration of justice was limited to tribal customary practices

2.1 TRADITIONAL METHODS OF DISPUTE SETTLEMENT.

These are mechanism which were used by pre capitalist societies to settle their disputes, these
societies depended much on land that is why many disputes relate to land. In pre capitalist
society there existed different modes of settling disputes. These could either be through
mediation and conciliation or coping with wrong doing by shaming and sorcery and invocation
of supernatural forces against the deviant individual. It could also be by means of ordeals,
contests or retaliation. We will have occasion to examine some of these means of settling
disputes under customary mode later on this Discussion5.

5
Twinning, W. (1963) "The Place of Customary Law in the National Legal System of East Africa." Lectures delivered
at Chicago Law School in April - May 1963, The Law School, University of Chicago pp. 9 - 10
In pre capitalist society we are talking about here is that, one which is less structured and
articulated and social organization is based on kinship. A society in which the running of public
affairs is a matter of concern for the whole community which is characterized by equality. In this
society public power therefore is not institutionalized but rather a function of social organization
as such. Social rules in this society are reflected in long experience in those modes of behavior
necessary for the reproduction of social life and for group survival in their struggle with nature.

Thus, the traditional mode of dispute settlement can only be discovered by an examination of the
more general social roles, relationships and group activities in the process of production. It is
only through the process of production that man inevitably enter into definite social relations
with others. These socio-economic relations in turn dictates the manner in which conflict
resolution is conducted6.

2.1.0 Basic Principals Involved.

Many pre-colonial Africa Societies were predominantly communal. The major means of
production like land communally owned. Due to this the following are some principle that were
developed from this system.

Land is valued for its use, that is, land has value and it is the major means of production and so,
land disputes therefore, mainly involved the question as to who has the right to use that land.
One may claim that he has a better tittle to use that land because either: He has been in
possession of that land or he has inserted it or he has cleared it from the bush.

Questions of ownership absolute does not arise, only the question of possession is considered,
that is to say disputes settlement institutions do not have to decide as to who is the owner of the
land in any absolute sense but only who has the right to possession. Ownership is a right to land
against the whole world (rights in rem). A right to possession was relative. It depended on who
was suing for what trespass.

The social rules in a pre-capitalist society are in the form of customs and are mainly expressed in
religious forms of social consciousness and taboos. Sanctions for their violation in this society
are not implemented by the use of coercive power but reactions of the whole society, for

6
ibid
example, by declaring a deviant individual an outcast. In this society disputes are settled
amicably and the end result is compromise rather than confrontation.

Most African societies still retain some of these features although their traditional structures
were largely affected by the imposition of alien systems of law through colonization. To a large
extent customary rules and institutions co-exist with modern institutions of government. For
instance, in some areas of rural Zimbabwe and even Tanzania, compensation in the form of a
human being to the family of a slain person from the family of the murderer is still beings7.

2.1.1 Characteristics of Traditional Societies.

Communalism, this was the first non-exploitative mode of production that man experienced. It
was characterized with low level of technology, communal ownership, there were no classes, and
also there was no surplus production due to the reason that the number of people was very low
thus resulted even low production. That there was low production of the labor forces. Under this
mode of production when it comes to the issue of problem solving or dispute settlement the
methods used were mediation and reconciliation. This method was applied by the disputants who
insisted much in resolving the disputes in amicable manner that is to say no one lose all and no
one win all8.

Feudal mode of production this was second mode of production. Historically feudalism in Africa
started in 15th century. In this mode of production, the societies were characterized with private
ownership classes with different interests due to the reason that there are people who haves and
those who do not have, the major means of production was based on land, innovation of iron
technology, surplus production, improvement of productive forces and existence of rent9.

Capitalist is the fourth mode of production where by the individuals or private entities owns the
factors or major means of production. Under this mode of production, the economic systems
characterized by private or corporate ownership of capital goods by investment, that are
determined by private decisions and by prices, production, and the distribution of goods that are
determined mainly in a free market. It had got different features among those features are,

7
Mbunda, L.X. (1985).procedures of dispute settlement; pre-colonial to post independence Tanzania; University of
Dar es Salaam.
8
Twinning, W. (1963) "The Place of Customary Law in the National Legal System of East Africa." Lectures delivered
at Chicago Law School in April - May 1963, The Law School, University of Chicago
9
ibid
private ownership, exploitative, classes, based on accumulation of wealth, free market economy.
Also, the capitalist mode of production it had got its method of dispute settlement which is
Ordeal which means an ancient test of guilt or innocence by subjection of the accused to severe
pain, survival of which was taken as divine proof of innocence

2.1.2 Legal Context of the Traditional Society.

They depend on customs established by long experience; the customs were sanctioned by the
whole society example out casting a person. Also, morals had force of law, rules were simple, no
differences between law of property or law of lands or personal law.

2.1.3 Methods Used to Settle Disputes.

Mediation and Conciliation.

Dispose falling under this head were sort of private in nature and mediators lead the parties in
reconciling their differences of the disputants and maintaining Cooperation 10. Also, the aim of
mediation was to settle the matter amicably with the help and assistance of the third person who
is not party to the dispute. Moreover, this method was common to many societies and it was
applicable in different situations. And it was is exist in Communal Mode of production. When
African societies were predominantly communal. The major means of production like land was
communally owned. And land was valued for its use, and main issue in land dispute was ‘who
has the right to use the land’? and the ends result was that the Winner wins little and the loser
loses little11.

Let us now discuss the dispute in KADUME’S CASE: In the case of Kadume’s which potrays
that, the dispute was concerned with land. It was a dispute between Kadume (Makara’s son) and
Soine(Makara’s half-brother). Both Kadume and Soine took advantage of inner lineage of
Mesuji. They therefore aimed at restoring the aquatic cooperation established by Mesuji.
Kadume’s mother separated from Makara ten years before the disputes. She took Kadume to and
went to live with her brother (Kadume’s uncle). Makara’s depended on his half-brother
Soine(and Soine’ wife). Upon the death of Makara Soine took his land. Kadume got married and

10
Gulliver, P.H. (1963) Social Control in African Society, Routledge & Kegan Paul, London.
11
Mbunda, L.X. (1985).procedures of dispute settlement; pre-colonial to post independence Tanzania; University of
Dar es Salaam
was given herds of cattle and three goats from estate pf his late father (Makara). Soine agreed
with Kadume that Kadume’s herds would graze at Makara’s paddock. Kadume was therefore
agreed as one of the members of inner lineage. One year after the grazing agreement, Kadume
claimed possession of all of his father’s land. Soine refused and quarrel ensured between
them.Soine barred Kadume altogether from grazing his herd in Soine paddock. Kadume went
the lineage counsellor to present his case.

ARGUMENTS BY SOINE.

 Kadume had no right over the land since he had not cultivated it.
 When Kadume’s mother had separated from makara, Soine was looking after Kadume.
 Kadume had already acquired land in his uncle’s farm while Soine had only a small plot
of land.

DECISION.

The lineage counsellor in the favour of Soine. Kadume was aggrieved and insisted the lineage
counsellor to convene an internal moot.

At the internal moot Kadume was presented by Kirevi who argued that Kadume was only adult
son of Makara and he was now grown-up man, because Kadume had inherited Makara’ animal
he should also inherit his land. Soine reiterated his arguments made before the lineage counselor
and emphasized the shortage of land. Kadume continued that the principle was that brothers
don’t inherit sons do. That is the custom long ago, then Soine answered “not always” then the
matter was resolved amicably.

Drumming the Scandal:

This was another way of settling Disputes which included the so-called contest between the
Disputants. The disputants contested themselves with the assistance and support from other
members in the community.Feudal mode of production this was second mode of production.
Historically feudalism in Africa started in 15th century. In this mode of production, the societies
were characterized with private ownership classes with different interests due to the reason that
there are people who haves and those who do not have, the major means of production was based
on land, innovation of iron technology, surplus production, improvement of productive forces
and existence of rent12.
This was a method of dispute settlement where by the disputants were exchanging harsh words
in the form of songs and dances13. When the dispute became stiff a leader could call the
disputants and declare who between the two is right and would make an order in that regard, the
governing principal was that if something alleged was possible to be done by a human being then
such allegation should be true otherwise ajir (super natural power) could be called to punish that
person who raised such allegation.
As it shown in the case of TORGINDI V MTSWENthe disputes occurred in 1950 between
Isugindi of Mba yar and Mtswen of Mbagishi. Both belong to Mbadugu lineage. Mtswen who
was the secondary marriage guardian of the wife of Torgindi’s son, was accused of high-handed
tactics that ended the marriage. Mtswen refused to act as an intermediary to get Torgindi’s bride
wealth refunded.Torgindi and Mtswen therefore exchanged harsh words. Torgindi went home
and sung the song in which he said that Mtswen was stunk. During the night, he (Torgindi)
drummed at the song as loud as he could for the whole countryside to hear. Mtswen who lived
only a squatter a mile away did the same the next night and all the members of his Compound
and other Compounds of his lineage joined in the Chorus. Mtswen was not a good song marker.
Thus, he hired the best song maker who stayed in his compound to compose scurrilous song
about Torgindi, his kinsmen and wives.

Torgindi’s inventiveness was also exhausted, so he too hired a song maker. This continued for
about three weeks as every night each side sang insulting songs against the other party at last
Mbatarev (village elder) called change took notice of the contests. He thought If the contest was
allowed to continue it would end up in a fight and he would ultimately be answerable to the
District Officer. He (change) sent a note to both Torgindi and Mtswen and their people to come
to his compound the following afternoon, and both would sing and drum and he (change) as the
Mbatarevleader would decide the case. Both sides fully prepared. Torgindi’s group came with a
large drum. Mtswen and his side brought two small wooden figurines (a black male and large red
painted female). The black one represents

12
Mbunda, L.X. (1985).procedures of dispute settlement; pre-colonial to post independence Tanzania; University of
Dar es Salaam.
13
Robert V. Makaramba, (1996) Legal Method Manual, Part 2, Open university of Tanzania, Dar es Salaam.
Torgindi and the other signified his wife who was tall and light coloured.The two figurine were
being waved as the group danced. After two hours, the Mbatarev(change) called them and
wanted to hear the case from both sides. Torgindi began his story and then the other party.
Mbaterev then announced Mtswen was the winner of the contest because he had better songs.
However, he announced Torgindi as the winner of the case. He then advised both song-makers to
go home immediately and not to return to Mbanguku for a couple of months until the feelings
which had been aroused had died down.

Trial by Ordeal

Trial by ordeal, this was a way to decide if someone was guilty or innocent of a crime, this was
usually done by causing the accused person to do a painful task. If the task was completed
without injury or if the injuries healed fast this was taken as a sign from God 14. Which meant that
the accused was innocent and if the injuries delayed then the accused was liable?

Ordeal may be traced from an old English “ordl” in German it is “urteil” or Dutch “ordeal” it
was one of the universal classical judicial practice by exposing person to dangerous or fear some
circumstances or situation such as hot object. In this practice proof of innocence’s was between
death or injuries and survival15. This mode was also referred to as judgment by verdict.

Capitalist is the fourth mode of production where by the individuals or private entities owns the
factors or major means of production. Under this mode of production, the economic systems
characterized by private or corporate ownership of capital goods by investment, that are
determined by private decisions and by prices, production, and the distribution of goods that are
determined mainly in a free market. It had got different features among those features are,
private ownership, exploitative, classes, based on accumulation of wealth, free market economy.
Also, the capitalist mode of production it had got its method of dispute settlement which is
Ordeal which means an ancient test of guilt or innocence by subjection of the accused to severe
pain, survival of which was taken as divine proof of innocence16.

14
Gulliver, P.H. (1963) Social Control in African Society, Routledge & Kegan Paul, London
15
Carl. F. (1999) Legal Methods: Text and Materials. 3rd Edition, Thomson sweet and Maxwell.
16
Mbunda, L.X. (1985).procedures of dispute settlement; pre-colonial to post independence Tanzania; University of
Dar es Salaam
Example of the case which shows clearly about trial by ordeal is the case of Rex v. Palamba s/o
Fundikira17 in this case was to discover who had by witchcraft caused death of the innocent
children and the appellants takes a traditional medicine used by witches known as “Mwavi. If a
person takes it and he has done something wrong he will die, where as if a person takes it, and he
or she has not done anything wrong, he/she will not die but only vomits. The court held that, the
woman Wamlunda d/o Kulyungumbawas innocent of witchcraft for it does not exist. On this
basis, Mwavi medicine does not work on an innocent person because has not cause death hence
this navigated malice aforethought as per section 200 of the Penal Code for intent to cause death
or the knowledge that the act will probably because death was absent. The appeal was allowed
and conviction and sentences were quashed.

Therefore, the court tends to be reconciling, it strives to affect a compromise accepted to and by
all parties. The equilibrium which was sought to be maintained by reconciliation was through
compensation and restitution of property. Allot writing about the Bunyoro procedure of settling
disputes states18: There is no aim to punish a wrong doer, though a penalty can be imposed,
rather it is the object of proceedings to dispose of quarrels between members of the community
and re-integrate a wrong doer in the community.

2.1.4 Advantages of Traditional Mechanism of Dispute Settlement.

Reconcilepartiesmeaningpeoplebecomefriends (disputes weresolved), You did not havetopayfor

anything (cheapercomparedtomodern methods), Thewrongdoersareknown.
Bringspeaceandsolidarityinthesociety,the disputesweresolvedinashorttime,itmadeall
memberstoparticipate and Principalswereknownto everyone inthesociety19.

2.1.5 Dis-Advantages of Traditional Mechanism of Dispute Settlement.

Some methods were Against justice (trial by ordeal), Time of production was waist, in justice
(loosing properties), No clear rules and procedures would resulttomisunderstanding and
Somemethodscausedchaos

17
14E.A.C.A96
18
Thompson, G. "The Pre-historic Aegean" Lawrence and Wishart Ltd. London. Weber, M. Law in Economy
19
Elias, T.O. (1956) The Nature of African Customary Law; Manchester University Press.
2.2.0 MODERN DISPUTE SETTLEMENT METHODS.

In this we will discuss about the development of capitalism (class society). Advent of capitalism
converted land into a commodity, that is. Something which is bought and sold for money,
thereby leading to the development of a land market, we need not go into details of the reasons
for this, for it is beyond the scope of our present inquiry 20. However, capitalism mode of
production is the highest stage of capitalism characterized with advertainment of science and
technology. Imperialism is the highest mode of production whereas capitalism is followed by it 21.
This mode is based on private ownership, classes among the people, also there was existence of
formal institutions-courts, judge or lawyers know how to apply definite substantive and
procedural rules, different types of dispute settlement. The claim was based on established rule.
Land become commodity bought and sold for money. Purchasing of land with good title,
ownership of land.

When talking of the modern dispute settlement methods, we refer to the methods of dispute
settlement which started to be applicable in the societies during the capitalist mode of
production. Also, the methods of dispute settlement during this time reflected the changes which
occurred in this mode of production, where even the major means of production also changed.

In capitalist societies there are special institutions for settling disputes. They are known as Courts
of Law. However, the end result of dispute resolution in these societies is the winner takes all as
contrasted with African methods of Settlement of dispute which were geared towards reconciling
the parties. Thus, this modern dispute settlement is as to say, ‘old wine in the bottom22’.

2.2.1 Basic Principles Involved.

Land a commodity brought and sold for money in a land market, means has exchange value.
Land acquired can be owned in perpetuity as freehold, also in capitalist societies, the distinction
between law of contract, law of tort and criminal law as well are procedure for vindicating one’s
20
Pollock &. Mattland.(1899) History of English Law, 2nd. Ed. Cambridge University Press.
21
ibid
22
Maureen, C. & Kalmar, K (ods) (1983) Dispute and the Law (AksdemiaiKiado, Budapest).
rights is very clear. Also, there well-established institution for settling dispute manned by
specialists23.

The purchaser of the peace of land must be sure that he has good title to the land- title that is
good against the whole world. Moreover, the law recoginise the right to sell and buy the land.
Land become alienable; the conception of ownership also changes. And the registration of titles
so that a purchaser a little which is free of third-party interests.

The land lord or capitalist is not interested in the possession of land, but to the right to receive
the surplus labor of the tenant (rent) or the worker (profit). Also, the landlord is not interested in
the possession but title which must be good against the whole world, that is, it must be absolute
and not relative24.

2.2.2 Methods used to settle dispute.

The main types of dispute of dispute settlement methods which are applicable in the modern
system of dispute settlement include the succeeding.

The Common Law or the Adversarial system of Dispute settlement.

The common law system of dispute settlement is characteristic of the countries of the countries
which followed the England common law legal traditional, whose major characteristic is reliance
on precedents to decide cases. The common law is based on the concept that he who alleges must
prove. The person alleging that he or she has legally suffered some damage sets the dispute
resolution machinery in motion. However, the person so alleging has the burden to establish the
allegation. The legacy of this system is the due process of law that ‘justice must not only be
done, must be seen to be done.’ This is affected an exact procedure where evidence is adduced
and allowed to be challenged and the umpire can either be a judge or a magistrate depending on
the level of the which is entertaining the dispute25.

The parties are involved in a sort of ‘fight’ or combat and are envisaged as adversaries who
accuse each other in the presence of unbiased or impartial umpire, thus the term ‘adversarial’.
The adversarial system is characterized by party control of the investigations and presentation of
23
Maureen, C. & Kalmar, K (ods) (1983) Dispute and the Law (AksdemiaiKiado, Budapest).
24
Pollock &. Mattland.(1899) History of English Law, 2nd. Ed. Cambridge University Press.
25
Pollock &. Mattland.(1899) History of English Law, 2nd. Ed. Cambridge University Press.
evidence and argument, and by a passive decisionmaker who merely listens to both sides and
renders a decision based on what she has heard.

Each side produces its own witness who are first examined on behalf of the party who has called
them (examination-in-chief), and what they have said is tested by cross- examination on behalf
of the opposing party. The presiding judge or magistrate does not normally initiate lines of
inquiry. He or she assume an umpire role, that is, he or she sees that the questions put to
witnesses are proper and questioning is fair. Upon conclusion of the evidence, the presiding
judge or magistrate sums it up for the assessors, if any, normally in murder trials or cases
involving customary law or law or Islamic law issues26.

The Civil Law or Inquisitorial System of Dispute Resolution.

The inquisitorial system is characteristic of Continental Europe. Under this system there is no
trial in the sense of concentrated event where parties face each other with their respective
witnesses. At the preliminary stage pleadings are submitted and a hearing judge appointed. It
involves written communications (depositions) between the judge and the representative of the
parties at which evidence is produced.

The conducts the questioning of the witnesses thus the term ‘inquisitorial’. In theory the judge
can ask whatever he thinks necessary to discover the truth. In practice the judge restricts himself
to lines of questions which have been submitted to him in writing by parties. Everyone knows in
advance what matters are going to be investigated. There are some rules of evidence involved in
this such as:

In inquisitorial dispute resolution, the judges then prepare a written record of the case and reports
to a panel of judges who consider it study the written briefs and give their judgment. Issues
therefore emerge gradually as the proceedings continue. The dossier is bulky because the judge
does not see or hear the witness but read from written briefs. It is therefore the judges who
controls the trial and not the parties27.

Extra-Judicial Methods of Dispute Resolution.

26
ibid
27
Carl. F. (1999) Legal Methods: Text and Materials. 3rd Edition, Thomson sweet and Maxwell.
The extra judicial we are talking about, is those Tribunals. That means ward Tribunal,
Commission for Mediation and Arbitration (CMA) Tax Tribunal, District Land and Housing
Tribunal. Also, Conciliatory Board. Marriage Conciliatory Boards (MCBs). And the third one is
Alternative Dispute Resolution (ADR)(Mediation, Conciliation and Arbitration). As we are
going to see later in this discussion28.

Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution (ADR) is one of the methods of dispute resolution which is used
in the modern times. Alternative Dispute Resolution (ADR, sometimes also called ‘Appropriate
Dispute Resolution’) is a general term, used to define a set of approaches and techniques aimed
at resolving disputes in a non-confrontational way. It covers a broad spectrum of approaches,
from party-to-party engagement in negotiations as the most direct way to reach a mutually
accepted resolution, to arbitration and adjudication at the other end, where an external party
imposes a solution. Somewhere along the axis of ADR approaches between these two extremes
lies ‘mediation’, a process by which a third party aids the disputants to reach a mutually agreed
solution.

Alternative Dispute Resolution systems may be generally categorized as negotiation,

conciliation/mediation, or arbitration system systems. However, alternative Dispute Resolution
comprises various approaches for resolving disputes in a non-confrontational way, ranging from
negotiation between the two parties, a multiparty negotiation, through mediation, consensus
building, to arbitration and adjudication.

ADR is not a replacement of the adversarial court litigation but it is the supplement to it in the
sense that ADR, works hand in hand with the traditional adversarial
litigation.Thesearemethodsusedtosolvedisputeswithoutinvolvingcourts.

Legal basis for Alternative dispute resolution (ADR) in Tanzania.

The legal basis for ADR in Tanzania. These are some legal authorities for the use of ADR in
Tanzania.

28
Supra note 4.
Constitution of the united republic of Tanzania of 1977. Article 107. (2) (d) 29 requires the court
to be guided by a certain principle inter alia need to encourage mutual settlement. It spells out as
follows the article 107 (2) (a) (b) (c) and (d).30promotes and encourage disputes resolution among
the persons involved in dispute.

Statutes like the Law of Marriage Act under section 102.31 Is about Marriage conciliation
Boards. Means that a person who wishes for a petition for divorce in the court without seeing or
passing to the marriage conciliation board for certificate as per section 101 but where the petition
no important if you have been deserted.

The legal foundation for ADR in Tanzania is governed by civil procedure code the legal found
for ADR is formed by civil procedure code particularly Order VIII C, except for land and labor
matters that have a separate lets law governing them of the lower levels. That is criminal
procedure act, Alternative Dispute Resolution (ADR) in this act is provided under section 163. 32
Where it states about the method of conciliation in certain principles or cases.

also, in labor lawsADR is provided under section 12 of the Labor Institution Act , where there is
establishment of the Commission for Mediation and Arbitration. Thus, commission is
responsible to resolve the conflict or disputes in the labor matters. In the respect the labor court
has consistently enforced the rule that all labor disputes must first be referred to the Commission
forMediation and Arbitration for mandatory mediation.

Also in family matters the laws provides the procedures to be followed by the spouses that, their
right pattern to the court as the result of court if a party will not pass through this board then the
court will not entertain such matter of divorce between the couples as in the case of Shillo Mzee
V Fatuma Ahmed.33In this case, the respondent filled the petition for a divorce in the primary
court without having certificate from the conciliation board. Also, in other case of
NashonMakoka V Marry Makoba.34In the High Court of Tanzania of Mwanza, the thrust was
based on a legal point the petition filled in the primary court without having the leave from

29
Constitution of the United Republic of Tanzania of 1977, as amended.
30
ibid
31
Cap 29 OF 1971 R.E 2019
32
Criminal Procedure Act Cap 20 R: E 2019
33
(1984) TLR 112
34
(1999) HCT 39
Conciliation Board as mandatory hence fall to comply with the provision of some from section
10135 as state by the judge then the petition was null and void.

Also enforced the rule that all labor disputes must first be referred to the Commission for
Mediation and Arbitrationthat it is mandatory to resolve dispute through mediation. in the case of
Hector Sequeira V. Serengeti Breweries Limited, Ltd.High Court of Tanzania Labor Division, the
labor court dismissed has incompetent alabor complaints which was filled directly in the court
without first pursuing mandatory to the Commission for Mediation and Arbitration. Also, the
function of the Commission has been stipulated under section 14 of labor InstitutionAct.Also,
Section 15 of the commission to appoint mediation, director and arbitration also section 16
composes of the commission.

Arbitration act,Is the principle registration regulating arbitration in Tanzania it regulates both
domestics arbitral proceeding and enforcement of foreign arbitral awards, References to
arbitration provided under section 4 of Arbitration Act,read together with the first schedule
unless there is any agreement the court by a submission to the arbitration is deemed to be
irrevocable except by the leave of court section 5 also provide it allows facts to the arbitration
agreement to agree the cause of arbitration under section of 12 also provide the award is
enforceable as the decree in the high court arbitration is also provided is governed by civil
procedure code under rules made also section 64, and orderVIII C also in the second schedule.

2.2.3 Advantages of adversarial and inquisitorial (litigation) dispute settlement.

In Adversarial, it is possible to keep records of the proceedings and use them, later-it produces
greater precession about the issues thus saving time for the court as parties must beverywell
preparedwhenthey cometo court.Thepartiescontrol theircase.
In inquisitorial, Court controls the proceedings hence limits the costs as well as time, Parties may
notneedrepresentation, itavailsthepartiesanopportunitytogoandsearchforlegal aids
andtheyaregiventhequestionsbeforehand.

35
Supra note. 17
2.2.3Dis-advantages of adversarial and inquisitorial (litigation) dispute settlement.
Inquisitorial, the judges do not see the parties hence this makes it difficult for them to see the
parties’ demeanors.
Adversarial, the technicality can cumber some nature of procedural rules – Most people are
ignorant of their rights and how to pursue them in courts – It is expensive especially to indigent
claimants as they cannot afford higher fees charged by advocates.
3.0 CONCLUSION.
Generally, the traditional dispute mechanism and modern dispute mechanism, it is appeared in
different mode of production, but it is interacting each other. Since both is aimed in the end
result which is based in reconciles between parties, or the parties with the community,
compromise, punishment, and compensation, in other words it as to say that; ‘old wine in the
new bottom’. Also, those method was very popular in the whole world. Moreover, both methods
it involves payment of costs, which are being paid by the disputants, and also involves the
representation in a matter, as well as Kadume was represented by kirevi at the internal moot, and
even now still we have advocates who represent the parties before the Court of Law, and costs of
the case must be paid. Thus, both methods of dispute settlement it aimed in solving dispute in the
community, promote peace and security, bring fair justice and to protect human rights.

REFERENCES
The Constitution of The United Republic of Tanzania of 1977 as amended from time-to-time
Cape 2 R.E 2005
STATUTES
Criminal Procedure Act Cap 20 R.E 2019
Civil Procedure Code Cap 32 R.E 2019
Commissioner for Mediation and Arbitration Act (CMA)
The Law of Marriage Act Cap 29 R.E 2019
The Land Dispute Courts Act Cap 216 R.E 2019
Institution and Labor Relation Act
BOOKS.
Carl. F. (1999) Legal Methods: Text and Materials. 3rd Edition, Thomson sweet and Maxwell.
Holland J.A. and Webb J.S., (1996), 3rd Edition, Learning Legal Rules, , Blackstone Press Ltd,
London.
Mcleon I, (2001), Legal Method, 5th Edition, Palgrave Macmillan, London.
Mbunda, L.X. (1985). procedures of dispute settlement; pre-colonial to post independence
Tanzania; University of Dar es Salaam.
Twinning, W. (1963) "The Place of Customary Law in the National Legal System of East
Africa." Lectures delivered at Chicago Law School in April - May 1963, The Law School,
University of Chicago
Mbunda, L.X. (1985). procedures of dispute settlement; pre-colonial to post independence
Tanzania; University of Dar es Salaam.
Robert V. Makaramba, (1996) Legal Method Manual, Part 2, Open university of Tanzania, Dar
es Salaam.
Gulliver, P.H. (1963) Social Control in African Society, Routledge & Kegan Paul, London
Carl. F. (1999) Legal Methods: Text and Materials. 3rd Edition, Thomson sweet and Maxwell.

Mbunda, L.X. (1985). procedures of dispute settlement; pre-colonial to post independence

Tanzania; University of Dar es Salaam

Thompson, G. "The Pre-historic Aegean" Lawrence and Wishart Ltd. London. Weber, M. Law
in Economy

Elias, T.O. (1956) The Nature of African Customary Law; Manchester University Press.

Maureen, C. & Kalmar, K (ods) (1983) Dispute and the Law (AksdemiaiKiado, Budapest).

Pollock &. Mattland. (1899) History of English Law, 2nd. Ed. Cambridge University Press.
DICTIONARY
Black’s Law Dictionary, 8th Edition, (2004).

CASES
Shillo Mzee V Fatuma Ahmed.(1984) TLR 112
NashonMakoka V Marry Makoba (1999) HCT 39
14E.A.C.A96