Tanzania Legal Aid Journal 2020 Final

VOL.
1 2020 NUMBER 1
INSIDE
Legal Aid in Non-litigation
Dispute Settlement Mechanisms
in Tanzania: An Assessment of the Legal
Framework and Practice
Dr. Clement Julius Mashamba
Provision of Legal Aid Services to

Juvenile Offenders in Tanzania:
An Appraisal of the Legal Framework
Mary Richard and Tike Mwambipile
Judicial Systems in Action:

Approaches, and Practices on Women’s
Legal Empowerment in Tanzania
Francis M. Magare
A Legal Aider Vis-À-Vis Quality Legal Aid

Services: A Peek of Experience
Cecilia Ngaiza
Tanganyika
Law Society
THE TANZANIA
LEGAL AID JOURNAL
VOL1 2020 NUMBER 1
Tanganyika
Law Society
1TLAJ1 2020 The Tanzania Legal Aid Journal i

Published By:
Tanganyika Law Society

Plot. No. 391 | House No. 21 | Chato Street | Regent Estate
P.O.BOX 2148 | Dar es Salaam | Tanzania
Telephone: +255 22 277 5313 | Fax: +255 22 277 5314
Email: info@tls.or.tz
Website: www.tls.or.tz
Copyright:
Tanganyika Law Society, November 2020
ISSN: 1821-5564
ii The Tanzania Legal Aid Journal 2020 1TLAJ1

RESEARCH AND PUBLICATION
COMMITTEE 2020-2021
Editorial Board
Chairperson
Prof. Dr. Alex B. Makulilo
Chief Editor
Dr. John Ubena.
Secretary
Miss. Beatrice Cherdiel
Editorial Board Members

Prof. Cyriacus Binamungu
Ms. Isabela Warioba
Dr. Eugine E. Mniwasa
Mr. Clement Mubanga
Mr. Innocent Kibadu
Mr. Frank J. Mchomvu
Mr. Frank E. Sina
Mr. Hamidu Millulu
Mr. Paren Borhara
Mr. Mackphason Buberwa
Mr. Kaleb Gamaya
This Tanzania Legal Aid Journal should be cited

as 1 TLAJ 1 (2020)
1TLAJ1 2020 The Tanzania Legal Aid Journal iii

TABLE OF CONTENT
Legal Aid in Non-litigation Dispute Settlement

Mechanisms in Tanzania: An Assessment of the Legal
Framework and Practice........................................................................... 1
Provision of Legal Aid Services to Juvenile Offenders

in Tanzania: An Appraisal of the Legal Framework............................. 53
A Legal Aider Vis-À-Vis Quality Legal Aid Services:

A Peek of Experience................................................................................. 78
Judicial Systems in Action: Approaches, and

Practices on Women’s Legal Empowerment in Tanzania ................... 99
iv The Tanzania Legal Aid Journal 2020 1TLAJ1

FOREWORD
Welcome to the Tanzania Legal Aid Journal, 2020. This is the second
issue published by the Tanganyika Law Society. This Journal steps up
the intersection between research and practice within the legal aid sub
sector. NGO’s that provide legal aid services are in serious shortage
of legal aid scholarly work. Leading practitioners in the country lack
the necessary scholarly work to help them plan and programme
legal aid intervention or to measure success/achievements over time.
Development of Legal Aid Journal and dissemination of the same will
address the aforementioned weaknesses.
The journal provides the guidance to the legal aid providers in Tanzania
and every legal aid stake holders in the country, with cutting edge
scholarly articles, it will be a regular annual publication with the widest
distribution to all legal aid providers and all the legal aid stakeholders
in the country.
It is the strong belief at TLS that having publishing the Legal Aid
Journal is one of the means of ensuring continued improvement of legal
aid services to the indigent and respect for human rights. To be the
leading Legal Aid Journal in Tanzania that will bring aboard to address
continuous issues on legal aid matters within and outside the legal
profession.
We have a voluminous edition this time. This volume consists of four

articles. This is a result of the level of interest by people and institutions
wishing to write for the Tanzania Legal Aid Journal. So, as always, I
wish to thank all contributors, our blind peer reviewers, the Chief
Editor, the Editorial Board and the Secretariat for the job well done.
Prof. Alex B. Makulilo
Chairperson
Research and Publication Committee
1TLAJ1 2020 The Tanzania Legal Aid Journal v

EDITOR’S NOTE
Welcome dear readers!
I am pleased to present to you Tanzania Legal Aid Journal, the

publication that contains articles specific for the provision of legal aid
in Tanzania.
The TLS has been among the pioneers of legal aid development in
Tanzania, as old as University of Dar es Salaam Legal Aid Committee.
TLS has been represented thousands of clients through its Constitution
and Legal Affairs Committee. With such a long standing and consistent
background on legal aid provision, TLS has throughout been observed
as leader through which many legal aid providers have gathered
inspiration and established operational framework. In order to improve
Legal Aid services, the Access to Justice Programme of the Tanganyika
Law Society intends to introduce the Tanganyika Law Society Legal Aid
Journal which is funded by the Legal Services Facility. Through this
initiative, TLS steps and addresses the comprehensive scholarly gap
among legal aid providers and other legal aid subsectors.
Enjoy your reading!
Dr. John Ubena

Chief Editor
vi The Tanzania Legal Aid Journal 2020 1TLAJ1

LEGAL AID IN NON-LITIGATION DISPUTE
SETTLEMENT MECHANISMS IN TANZANIA:
AN ASSESSMENT OF THE LEGAL FRAMEWORK
AND PRACTICE
Dr. Clement Julius Mashamba ∗
Abstract
The Tanzania civil procedural law has recognized court-annexed non-
litigation dispute settlement mechanisms, meaning that it is now
mandatory that every civil case should first be referred to any of the
non-litigation dispute resolution mechanisms (arbitration,
conciliation, mediation or negotiation). This “formalization” and
infusion aims at reducing costs and delays in dispute resolution, and
facilitating an early and fair resolution of disputes with a view to
reaching mutually acceptable resolution. At the centre of such non-
litigation dispute settlement processes are the parties’ entitlement to
obtain legal aid services (i.e. legal advice and court representation.
This strives to ensure that the rights and interests of an aided person
are safeguarded and protected throughout any process in which his or
rights are being determined by a body or the person presiding over any
of the non-litigation dispute settlement resolutions. Such legal aid
services should be granted in light of the Legal Aid Act.

∗
LLB (Hons, UDSM), LL.M. (Economic & Social Rights, OUT), Ph.D. (Juvenile
Justice, OUT); member of the African Committee of Experts on the Rights and
Welfare of the Child (ACERWC: 2010-2021); and former Solicitor General of
the United Republic of Tanzania ( HYPERLINK
"mailto:mashamba.jc@gmail.com" mashamba.jc@gmail.com). However, the
views expressed in this article are solely the author’s; and they do not
represent the views of any of these institutions
1

1TLAJ1 2020 The Tanzania Legal Aid Journal 1

Despite these positive developments in the country’s civil justice
system, there are some challenges that may hamper access to legal
services by the indigent in the non-litigation dispute settlement
processes: e.g. lack of a trained and accredited conciliators and
mediators, lack of training on the part of legal aid providers on the
provision of legal aid in non-litigation dispute settlement mechanisms,
and lack of awareness on the existence of such mechanisms amongst
many legal aid providers. However, the article urges the concerned
institutions to establish the pre-requisite institutional infrastructure
and regulatory framework for conciliation, mediation and negotiation
in order to kick start the functioning of the non-litigation dispute
settlement mechanisms in the country’s civil justice system. The
article also urges those concerned with the provision of legal aid to
train legal aid providers in the areas of non-litigation dispute
resolution in order to help in building a cadre of competent lawyers
and paralegals who can provide legal assistance in the non-litigation
dispute resolution mechanisms.
Keywords: non-litigation dispute settlement, legal framework,

legal aid services, challenges
2

2 The Tanzania Legal Aid Journal 2020 1TLAJ1

1.0 Introduction
Dispute settlement or resolution is at the centre of any
justice system. It is a process of settling a conflict, dispute
or claim involving two or more parties who have different
positions and demand varying needs to be fulfilled by
their opponent(s).1 In order to settle disputes, society has
adopted various ways of dealing with disputes in
organized, orderly, certain, transparent and consistent
manners. The most common dispute resolution
mechanisms are arbitration, conciliation, litigation,
mediation, and negotiation. While litigation is
administered formally through conventional courts, the
other mechanisms are undertaken out of the judicial
system. Hence, arbitration, conciliation, mediation and
negotiation are called alternative dispute resolution (ADR)
processes because they are alternatives to traditional
judicial resolution of disputes, which is said to be
complicated in terms of procedures, takes long to be
finalized and involves huge amounts of costs in terms of
running cases in courts. As considered in this article, the
Civil Procedure Code (‘the CPC’)2 has recognized court-
annexed non-litigation dispute settlement mechanisms,
which means that it is now mandatory that every civil case
should first, be referred to any of the non-litigation
dispute resolution mechanisms (arbitration, conciliation,
mediation or negotiation).3

1Faris, J.A., “An Analysis of the Theory and Principles of Alternative Dispute
Resolution,” LL.D. Thesis, University of South Africa, 1995, p. 45.
2 Cap. 33 R.E. 2002.
3 Order VIIIC Rule 24 of the CPC, which provides expressly that:
3


Whereas arbitration is said to be more or less regulated by
rules of procedure and formality akin to civil litigation;
conciliation, mediation and negotiation are non-litigation
dispute settlement mechanisms that are conducted in
simplified ways, depending on the party’s agreement on
any procedural issue.4 In these non-litigation dispute
resolution mechanisms, the parties take the control of the
manner through which the dispute is resolved, they
volunteer to resort to the dispute resolution process as
well as they voluntarily agree whether to settle the matter
amicably or not. The parties also choose the conciliator or
mediator to facilitate the dispute resolution process and
the venue and time at which they can convene and engage
in the amicable settlement process.
Because they strive to assert their interests and protect
their rights in the non-litigation dispute settlement
process, the parties are entitled to representation by
qualified lawyers in such process just like in the
arbitration and litigation processes. For the parties who
are cannot afford to hire counsel of their choice, they are
entitled to obtain legal aid granted under the Legal Aid
Act (2017).5 For that matter, the aim of provision of legal
aid to a party in non-litigation dispute settlement
mechanisms is to protect the interests of such a party
throughout the process.6

‘24. Subject to the provisions of any written law, the court shall refer every
civil action for negotiation, conciliation, mediation or arbitration or similar
alternative procedure, before proceeding for trial.’ [Emphasis supplied].
4 Ibid, Order VIIIC Rules 25(1) and 36(1).
5 Act No. 1 of 2017.
6 Ibid, Section 26(1) (a).
4


This article therefore, considers the provision of legal aid
to an indigent party in any non-litigation dispute
settlement process (i.e. conciliation, mediation and
negotiation) in light of the Legal Aid Act. It begins with a
conceptual analysis of the non-litigation dispute
mechanisms, and then proceeds to consider the legal
framework of non-litigation dispute settlement
mechanisms in Tanzania. The article also discusses the
scope and nature of court-annexed non-litigation dispute
settlement mechanisms, and the principles governing
court-annexed non-litigation dispute settlement processes.
Furthermore, the article examines the rationale for the
provision of legal aid to the indigent and any person in
need of such service in non-litigation dispute settlement
mechanisms. It also considers the provision of legal aid
services in procedural steps of non-litigation dispute
settlement in Tanzania. In addition, the article examines
some challenges facing legal representation and legal aid
in non-litigation dispute settlement (e.g. lack of trained
and accredited conciliators and mediators, lack of training
of legal aid providers on the provision of legal aid in non-
litigation dispute settlement mechanisms, and lack of
awareness on the existence of such mechanisms amongst
many legal aid providers).
Nonetheless, the article concludes by urging the
concerned institutions to establish the pre-requisite
institutional infrastructure and regulatory framework for
conciliation, mediation and negotiation in order to kick
start the functioning of the non-litigation dispute
settlement mechanisms in the country’s civil justice
5


system. The article also urges those concerned with the
provision of legal aid to train legal aid providers in the
areas of non-litigation dispute resolution in order help in
building a cadre of competent lawyers and paralegals who
can provide legal assistance in the non-litigation dispute
resolution mechanisms.
2.0 Conceptual Analysis of Non-Litigation Dispute
Mechanisms and Processes
Dispute settlement is a process of resolving a conflict,
dispute or claim that has reached a non-reconcilable level
pitting two or more parties that assert different positions
and demand varying needs to be fulfilled by their
opponent(s).7 It involves a tussle over competing interests
that each party wants to win against their opponent(s). To
resolve such disputes, society has for a long time devised
several formal and non-formal ways of dealing with
disputes in organized, orderly, certain, transparent and
consistent manners. This means that there are two main
ways to settle a dispute: a dispute may be resolved either
consensually or by coercion.8
Consensually, the parties find a mutually agreed solution
through alternative dispute resolution (ADR)
mechanisms, particularly through bilateral consultations
9

7 Faris, op. cit, p. 45.
8Ibid.
9Shamir, Y., Alternative Dispute Resolution Approaches and the Application (New
York: UNESCO, 2003), p. 2. See also Kimei, M.C., “Alternative Schemes for
Resolving Banking and Financial Disputes,” The Tanzania Lawyer. Vol. 1 No. 2,
2012, pp. 46-71; and Street, L., “The Language of Alternative Dispute
Resolution,” Alternative Law Journal, Vol. 66, 1992.
6


and discussions in negotiation, conciliation, mediation and
arbitration processes. The parties may resort to resolving
their dispute through coercive adjudication/litigation
process10 that includes the subsequent implementation of,
and appeal against, the court’s decision or ruling, which
includes the possibility of counter-measures in the event
of failure by the losing party to implement the decision or
ruling of the adjudication body. In the litigation process, a
dispute is referred to the court of law for its determination
in accordance with the predetermined substantive and
procedural law relating to the subject matter of the
litigation.
There several ADR mechanisms and processes conducted

in handling disputes by different actors in different
settings. But the following are the most common
approaches: (i) negotiation; (ii) conciliation; (iii) mediation;
(iv) arbitration; (v) litigation; and (vi) legislation.
(i) Negotiation: This is a strategic discussion process that

resolves an issue in a way that both parties find
acceptable. Through negotiation, all involved parties try to
avoid arguing but amicably agree to reach some form of
compromise. In principle, the negotiation process involves

10The adjudication process is said to be coercive because once the parties have
referred their dispute to a court of law, they will not have control of the
process in that they do not have the right to choose the law applicable, rules of
procedure, the adjudicator, or forum for the settlement of their dispute.
However, in ADR, the parties have control of the processes in all these
respects.
7


some give and take, which means that the end result will
be a win-win situation for all parties.11
(ii) Conciliation: This is a dispute settlement mechanism

that involves an independent “conciliator” who facilitates
communication or discussions between two disputing
parties with the aim of achieving an amicable settlement or
resolution of a dispute between them.12
(iii) Mediation: This is a form of alternative dispute

resolution, whereby parties attempt to resolve their
differences through a third party (“a mediator”) without
going to court. In principle, the mediator works, as a
facilitator, to find points of agreement between the parties
and make those in conflict agree on a fair result.13
(iv)Arbitration: This is a private process where disputing

parties agree that one or several individuals (“arbitrator”
or “arbitrators”) will determine and make a final, binding,
and enforceable decision about the dispute after receiving
evidence and hearing arguments. Arbitration is different
from other ADR mechanisms in that the neutral arbitrator
has the authority to make a binding decision about the
dispute, which parties must comply with.

11 Faris, op. cit.
12 Ibid.
13 Mashamba, C.J., Alternative Dispute Resolution in Tanzania: Law and Practice
(Dar es Salaam: Mkuki na Nyota Publishers, 2014), p. 3.

8


3.0 The Legal Framework of Non-litigation Dispute
Settlement Mechanisms
While the formal dispute settlement mechanism is
administered through the conventional judiciary and
quasi-judicial tribunals, the non-formal dispute settlement
mechanisms are operated by non-judicial individuals who
possess a certain amount of knowledge, skills and
experience in the field around which the dispute revolves.
Examples of a formal dispute settlement institutions
include the Judiciary (which is established by the
Constitution14 and its functions elaborated in other
relevant laws15), labour institutions,16 fair competition
tribunals,17 tax appeals tribunals,18 etc. On its part, non-

14 Article 107A of the Constitution of the United Republic of Tanzania of 1977
(as amended from time to time) (‘the Constitution of Tanzania’).

15 See particularly the Magistrates’ Courts Act, Cap. 11 R.E. 2002; and the
Appellate Jurisdiction Act, Cap. 141 R.E 2002.

16 The specific labour institution for resolving employment and labour
disputes in Tanzania is the Commission for Mediation and Arbitration (CMA)

established under Section 12 of the Labour Institutions Act (Act No. 7 of 2004),
Cap. 300 R.E. 2002. See also Employment and Labour Relations Act (No. 6 of
2004), Cap. 366 R.E. 2002 (‘the ELRA’).
17 Competition disputes are administered by the Fair Competition
Commission and the Fair Competition Tribunal established respectively

under Sections 62 and 83 of the Fair Competitions Act, No. 8 of 2003. To be
certain, the term “competition” is defined by Section 5(2) of the Fair
Competition Act to mean: ‘competition in a market in Tanzania’ and refers to
‘the process’ whereby two or more persons:
‘(a) supply or attempt to supply the same or substitutable goods market or
services to the persons in the same relevant geographical market; or
(b) acquire or attempt to acquire the same or substitutable goods or
services from the persons in the same relevant geographical market.’
18 Tax disputes are resolved by the the Tax Revenue Appeals Board and the
Tax Revenue Appeals Tribunal established respectively under Sections 4 and

8 of the Tax Revenue Appeals Act, Cap. 408 R.E. 2002. Whereas the Board has
exclusive jurisdiction under Section 7 to determine appeals from decisions of
the Commissioner-General, the Tribunal has sole jurisdiction under Section
9


formal dispute mechanisms are largely ADR mechanisms,
particularly negotiation, conciliation, reconciliation,
mediation and arbitration. They are referred to as
alternative dispute resolution processes in that they are
alternatives to having a court decide the dispute in a trial
or other institution decide the resolution of the dispute. In
some settings, like in labour dispute resolution in
Tanzania, however, mediation19 and arbitration have been
embedded in the formal dispute settlement mechanism.20
Although even in such setting, parties are allowed to
resort to other ADR mechanisms.21
Following developments that have been recently

introduced by the amendments to the Civil Procedure
Code (‘the CPC’) in 2019,22 it is now mandatory for the

11(1) ‘in all appeals arising from decision of the Board on disputes on which
original jurisdiction is conferred on the Board.’
19 Under Section 86 of the ELRA, all labour disputes should first be referred to
the CMA for arbitration. See also Kwila Peter Nkwama v. General Manager,
Marine Services Company Ltd., High Court of Tanzania (Commercial Division)
at Mwanza, Labour Revision No. 229 of 2008 (Unreported).
20 Mandatorily, labour disputes commence with mediation. Where mediation
fails, the matter should be referred to the CMA for arbitration and later to the
Labour Court for adjudication.
21 In A.G. v. Maria Mselemu High Court of Tanzania (Labour Division) at Dar
es Salaam, Labour Revision No. 270 OF 2008 (Unreported) [Consolidated with

A.G. v. Allan Mulla, High Court of Tanzania (Labour Division) at Dar es
Salaam, Labour Revision No. 271 of 2008 (Unreported)], the High Court
(Labour Division) (popularly known by its acronym, ‘Labour Court’) held
that:
‘The Labour Laws establish [a] machinery for dispute resolution but also
recognize and encourage parties’ right to amicably agree on private
dispute resolution procedures. They can also agree to submit disputes to
private arbitration prescribed under section 93 of the [Employment and
Labour Relations] Act.’
22 See the Civil Procedure Code (Amendment of the First Schedule) Rules,
2019 (‘the 2019 Amendments to the CPC”), GN. No. 381 published on
10


court to refer “every civil action” to ADR mechanisms23 (i.e.
negotiation,24 conciliation,25 mediation26 or arbitration27),
or “similar alternative procedure”, before proceeding to
trial. One of the major legal consequences of these
amendments to the CPC is the mandatory requirement that
all civil cases (with the exception of some few types of
cases28) should first be referred to negotiation, conciliation,
mediation, arbitration or “similar alternative procedure”
before full trial is conducted.29 For that matter, these
amendments have introduced new stages concerning ADR
between the completion of pleadings and the beginning of
a full trial in all civil cases.30 These new ADR stages are

10/5/2019 (‘GN No. 381/2019’). This GN amended certain parts of the First
Schedule to the Civil Procedure Code.
23 Order VIIIC Rule 24 of the CPC.
24 Order VIIIC Rules 36-39 of the CPC.
25 Ibid.
26 Order VIIIC Rules 25-34 of the CPC.
27 Order VIIIC Rule 35 of the CPC, and he Second Schedule to the CPC. As a
distinct branch of civil litigation, arbitration is generally governed by the

Arbitration Act, No. 2 of 2020 and the Arbitration Rules made thereunder.
28 Civil cases that are not amenable to, or suitable for, ADR are those, which,
by their very nature, are unsuitable for such processes. They include: (i) cases
in which a constitutional relief is sought; (ii) cases in which a definitive
interpretation of the law is necessary; (iii) cases in which injunctive reliefs or
declaratory judgments are sought; and (iv) in applications for prerogative
orders. However, these types of cases constitute only a small fraction of all
cases filed in the courts. So, the majority of the cases are amenable to ADR
and so have to go through such processes as of a mandatory requirement of
the law.
30 In Tanzania’s civil justice administration, a case is said to be ready for
negotiation, conciliation or mediation when all the pleadings have been duly
filed and there are no pending applications or any other preliminary matter to
be disposed of. In effect, it is when the case would ordinarily be said to be
ready for trial. See generally Chipeta, B.D., Civil Procedure in Tanzania: A
Student’s Manual (Dar es Salaam: Dar es Salaam University Press, 2002).
11


now mandatory and should be undertaken by the court in
“every civil action” before it proceeds to full trial.31
In addition, Section 101 of the Law of Marriage Act
(1971)32, as a general rule, obliges disputants in a marriage
dispute to first refer the matter to the Marriage
Conciliation Board, which should reconcile parties. Where
reconciliation fails, the Board is required to certify such
failure to the court, which shall then proceed to determine
a matrimonial petition in the adjudication process. In
terms of Section 106(2) of this law, every petition for
divorce to be filed in court must be accompanied by a
certificate issued by the Board within six months.
However, when civil disputes are referred to ADR
mechanisms, the parties are at liberty to conduct the
proceedings under the chosen method in accordance with
the principles governing, and procedure, as well as
practice, obtaining in, such ADR mechanism. As shall be
considered below, when the court refers any matter in
dispute before it to any of the ADR mechanisms in terms
of Order VIIIC rule 24 of the CPC, such matter ‘shall be
dealt with in accordance with the applicable law and the
agreement of the parties to the negotiate or conciliate and
arrive at a settlement.’33
In sum, the mandatory requirement that “every civil case”
must first be referred to negotiation, conciliation,

32 Cap. 29 R.E. 2002. This law is discussed at length in Mashamba, C.J.,
Introduction to Family Law in Tanzania (2nd revised edition) (Nairobi: LawAfrica
Publishers, 2017).
33 Ibid.
12


mediation, arbitration or “similar alternative procedure”
before full trial is conducted, presupposes that the parties
to such non-litigation processes are represented by
counsel. Such counsel, indeed, must be well-versed in
ADR mechanisms – procedures and processes – as well as
they should possess the requisite skills required in
administering ADR. For that matter, such legal
representation enables the parties to effectively participate
in the non-litigation dispute process and results in the
positive outcome of such process. Therefore, it is
important that, in all ADR processes (whether court-
annexed or otherwise) parties have the right to legal
representation; and, where they cannot afford to hire
counsel for that matter, legal aid should be provided to
such party in need of free legal assistance.
4.0 The Scope and Nature of Court-Annexed Non-
Litigation Dispute Settlement Mechanisms
The scope and nature of the court-annexed non-litigation
dispute settlement mechanisms in Tanzania is to
determine disputes out of court expeditiously and in a
cost-efficient manner. It should be noted from the outset
that, although many laws now make it mandatory for the
court or tribunals to first refer “every dispute” before them
to non-litigation dispute settlement processes;34 the parties
are at liberty to participate (or not to participate) in such
ADR processes. This means that the parties have the
autonomy to consent, or not to consent, to settling their
dispute through any of such mechanisms.

34 See section 86 of the Employment and Labour Relations Act (2004); and
Order VIIIC Rule 24 of the CPC.

13


4.1 The Scope and Nature of Conciliation
Forming the crux of major forms of ADR, conciliation is a
voluntary, flexible, confidential, and interest-based
process through which the parties seek to reach an
amicable dispute settlement with the assistance of the
conciliator, who acts as a neutral third party. Conciliation
is a voluntary proceeding because parties involved are
free to agree and attempt to resolve their dispute by
conciliation. The process is flexible, allowing parties ‘to
define the time, structure and content of the conciliation
proceedings.’35 In principle, conciliation proceedings are
interest-based in that the conciliator ‘will when proposing
a settlement, not only take into account the parties' legal
positions, but also their; commercial, financial and/or
personal interests.’ 36
Unlike the mediator, who just facilitates the mediation

process, the conciliator has to suggest an effective way of
resolving the dispute between the parties.37 This means
that, after hearing the parties to the dispute, the conciliator
recommends a settlement proposal to the parties.38
Following a settlement, or, if no settlement can be reached,
the conciliator closes the conciliation proceedings and will

35 https://www.dispute-resolution-hamburg.com/conciliation/what-is-
conciliation/ (accessed 7 November 2020).
36 Ibid.
37 Chattopadhyay, A., “Meaning and Scope of Conciliation,”13 September
2019. Available at https://www.legalbites.in/meaning-and-scope-of-

conciliation/ (accessed 2 November 2020).
38 International Capital Market Association, “Conciliation and Arbitration
Proceedings.” Available at https://www.icmagroup.org/News/ (accessed 3

November 2020).
14


have to notify the court that referred the matter to
conciliation and the parties accordingly.39 Notably, the
purpose of conciliation proceedings is to reach an
amicable, swift and cost-efficient settlement of a dispute.40
4.2.1 The Scope and Nature of Mediation
As one of the ADR mechanisms, mediation is a process in
which a neutral third-party assist in resolving a dispute
between two or more other parties. It is a non-adversarial
approach to dispute resolution whereby the role of the
mediator ‘is to facilitate communication between the
parties, assist them in focusing on the real issues of the
dispute, and generate options that meet the interests or
needs of all relevant parties in an effort to resolve the
conflict.’ 41 In essence, mediation is a process close in its
premises to negotiation, as it ‘is an assisted and facilitated
negotiation carried out by a third party.’42
In the mediation process, the mediator(s) may be hired,
appointed, or volunteer to help in facilitating the

39Order VIIIC Rule 39 of the CPC.
40 International Capital Market Association, “Conciliation and Arbitration
Proceedings.” Available at https://www.icmagroup.org/News/ (accessed 7
November 2020).
41 Honeyman, C. and N. Yawanarajah, “Beyond Intractability: A Free
Knowledge Base on More Constructive Approaches to Destructive Conflict.”

Available at http://www.beyondintractability.org/essay/mediation
(accessed 7 November 2020). In particular, Order VIIIC Rule 26(1)(b) of the
CPC provides to the effect that: ‘the mediator shall facilitate communication
between or among the parties to the dispute in order to assist them in
reaching a mutually acceptable resolution.’
42 Goldberg, S. B., et al, Dispute Resolution: Negotiation, Mediation, and other
Processes. Boston/Mass. Little Brown, 1992.
15


mediation process.43 The mediator(s) should have no
direct interest in the dispute and its outcome, and no
power to render a decision. In practice, mediators have
control over the process, but not over its outcome;44
instead, power to make the decision is vested in the
parties, who have control over the outcome: they are the
architects of the solution.45 The parties agree to the
process, the content is presented through the mediation,
and the parties control the resolution of the dispute.
4.3 The Scope and Nature of Negotiation
As an essential form of ADR, negotiation is a process in
which parties to a dispute communicate, dialogue and
discuss possible outcomes directly with each other; and
exchange proposals and demands, make arguments, and
continue the discussion until a solution is reached, or an
impasse declared.46 It involves the parties themselves or
with their advisers in which the parties negotiate and try
to settle their dispute without the involvement of a third
party.47
4.4 The Scope and Nature of Arbitration
Arbitration, as one of the forms of non-litigation dispute
settlement mechanisms, has been practiced by around the

43 Mashamba, op. cit, p. 64.
44 Ibid.
45 Shamir, Y., Alternative Dispute Resolution Approaches and the Application (New
York: UNESCO, 2003), p. 23.

46 Mashamba, op. cit, p. 53.
47 Ibid.
16


world for centuries.48 Under the common law, the object of
arbitration is ‘to obtain the fair resolution of disputes by
an impartial tribunal without unnecessary delay or
expense.’49 In this context, this object entails three
contexts: first, unnecessary delays and expenses in
arbitration should be avoided without compromising the
fair resolution of disputes; second, in arbitral proceedings,
the need for an impartial tribunal is paramount; and, last,
autonomy of the parties to arbitral proceedings is equally
important.50
Unlike other forms of ADR, in arbitration the scope and
requirement for resorting to an arbitration process is
premised in the mandatory prerequisite for an agreement
expressly contained in a contract requiring the parties to
refer a dispute arising in the execution of such contract to
arbitration. Again, the arbitral proceedings are strictly
private and the decision therefrom is final. Notably, the
practice of arbitration borders between informality and
formality; in that, in the arbitration process, rules of
procedure requires adherence to certain forms and
contents of Request for Arbitration51 and Pleadings,52

48 In the earlier common law, arbitration used to be known as arbitrament and
appeared in the Year Books. See, for instance, Anon (1468) Y.B., 8 Edw. IV, fo.
1, p1.
49Sutton, et al., op. cit, p. 4.
50Ibid.
51 See particularly Section 14 of Arbitration Act, No. 2 of 2020; and Rule 4 of

the National Construction Council (NCC) Arbitration Rules, 2007 (‘NCC
Arbitration Rules’).
52 Rule 9.0 of the NCC Arbitration Rules.
17


written statements and submissions,53 discovery and
production of documents, filing of expert reports and
witness statements, holding of Evidentiary Hearing,
making of opening and closing remarks, as well as
delivery of an arbitral award that is more or less in the
shape of a court judgment.
The formalistic and complex nature of arbitration is seen
in the way arbitrators and courts are allowed to grant such
grant interim measures as injunctive orders and the
maintenance or restoration of status quo54 pending
determination of an arbitral dispute. For that matter, the
Arbitration Act provides for the court’s authority to
provide some elements of provisional measures such as
preservation of evidence or assets55 and the grant of
injunction56 or the appointment of a receiver57 pending the
determination of arbitral proceedings. Case law in
Tanzania has also allowed courts to issue interim or
conservatory orders pending the determination of arbitral
proceedings58 on the basis of Order XXXVII Rule 2 of the

53 Ibid.
54 In Overseas Infrastructure Alliance (India) Pvt. Ltd. v. Permanent Secretary,
Ministry of Water and Irrigation & A.G., High Court of Tanzania at Mtwara,
Misc. Civil Application No. 2 of 2019 (Unreported) (at pp. 12-3 of the typed
judgment), Dyansobera, J., defined the term “status quo” to mean ‘the existing
state of affairs; specifically the last, actual and uncontested state of affairs that
preceded a controversy and which is to be preserved by an order of the court.
Maintenance of status quo […] is geared at preventing irreparable damage or
change [to the subject matter] before the legal questions are determined.’
55 Section 46(2)(b) and (3) of the Arbitration Act.
56 Ibid, Section 46(2)(c).
57 Ibid.
58 See, for example, Overseas Infrastructure Alliance (India) Pvt. Ltd. v. Permanent
Secretary, Ministry of Water and Irrigation & A.G., op. cit; Monaban Trading &
Farming Co. Ltd. v. The Cereals and Other Produce Board of Tanzania, High Court
18


CPC and Section 2(3) of Judicature and Application of
Laws Act.59 These kinds of interim measures are not
available in other non-litigation dispute settlement
mechanisms such as conciliation, mediation and
negotiation.
4.5 Principles of Court-Annexed Non-Litigation Dispute
Settlement Processes
Non-litigation dispute settlement mechanisms, processes
and procedures are guided by several underlying
principles,60 chief among them being:
(i) Parties’ voluntary resort to non-litigation dispute
settlement mechanisms;61

of Tanzania at Arusha, Misc. Civil Application No. 61 of 2019 (Unreported);
Regional Manager, TANROADS v. DB Shapriya & Co. Ltd., High Court of
Tanzania (Commercial Division) Misc. Commercial Case No. 6 of 2010
(Unreported); Tanganyika Game Fishing & Photographing Ltd. v. The Director of
Wildlife & A.G., High Court of Tanzania at Dar es Salaam, Misc. Civil Cause
No. 42 of 1998 (Unreported); and Tanzania Sugar Producers Association v.
Minister of Finance, High Court of Tanzania (Commercial Division) Misc. Civil
Cause No. 25 of 2003 (Unreported).
59 Indeed, in Monaban Trading & Farming Co. Ltd. v. The Cereals and Other
Produce Board of Tanzania, ibid, the High Court held that Section 2(3) of
Judicature and Application of Laws Act is the proper provision to move the
court to order interim (injunctive) reliefs after the arbitral proceedings have
been commenced by a Notice of Arbitration. In granting the provisional
measures in Monaban the court also sought fortification in the doctrine of the
application of the common law and equity applicable in England on 22 July
1922 (as canvassed in Section 25(8) the English Judicature Act, 1873);
Tanganyika Game Fishing & Photographing Ltd. v. The Director of Wildlife & A.G.,
High Court of Tanzania at Dar es Salaam, Misc. Civil Cause No. 42 of 1998
(Unreported); and Tanzania Sugar Producers Association v. Minister of Finance,
High Court of Tanzania (Commercial Division) Misc. Civil Cause No. 25 of
2003 (Unreported). See also Mareva Naviera S.A. v. International Bull Carriers
S.A. (1980) 2 All E.R. 213.
60 See generally Faris, op. cit.
19


(ii) Parties’ autonomy in participating and making
informed decisions, including the parties’ choice of
an arbitrator, mediator or conciliator of their choice;62
(iii) Efficiency in terms of time and costs;63
(iv) Confidentiality of proceedings in non-litigation
dispute settlement mechanisms;64
(v) Flexibility in terms of the procedures adopted in the
proceedings and in reaching the outcome; and
(vi) Neutrality and impartiality of third-parties who
facilitate the process.65
5.0 The Rationale for Legal Aid in Non-Litigation
Dispute Settlement Mechanisms
At the centre of any dispute settlement mechanism,
whether litigation or non-litigation, is the parties’
entitlement to representation by legal counsel or a person

61 For example, Order VIIIC Rule 36(1) of the CPC requires the consent of the
parties to refer a matter that before the court to conciliation or negotiation.

62 Ibid, Order VIIIC Rules 25(1) and 36(1).
63 For example, Order VIIIC Rule 26(1)(a) of the CPC obliges the parties, in
conducting any mediation session under the CPC, to ‘strive to reduce costs and
delays in dispute resolution, and facilitate an early and fair resolution of
disputes.’ (Emphasis supplied).
64 Under Order VIIIC Rule 31 of the CPC, all communications, records, and
notes in the mediation proceedings are confidential and cannot be made

public.
65 For example, under Order VIIIC Rule 26(2)(d) of the CPC, the mediator is
obliged is guided by principles of objectivity, fairness and natural justice, and is

obliged to give consideration to, among other things:
‘(i) the rights and obligations of the parties;
(ii) the usages of the trade concerned; and
(iii) the circumstances surrounding the dispute, including any previous

business practices between the parties.’
20


who can speak for them. Together with such
representation, is the parties’ entitlement to free legal
assistance where they cannot afford to hire counsel for any
reason, including indigence. As noted above, in all ADR
processes (whether court-annexed or otherwise) parties
have the right to legal representation in order to
effectively participate in the non-litigation dispute
process, which in turn may result in the positive outcome
of such process.
The right to access to justice, which is realised through,
inter alia, the provision of legal aid to the poor, is one the
fundamental entitlements to which an individual in any
society is entitled to.66 It is premised in the fundamental
principle of equal protection before the law of all persons
in any given State,67 regardless of whether a person is rich
or poor. It requires that State should ensure that all
persons are equal before the law and have the right to
equal protection and benefit of the law, with the assurance
of effective access by all persons to judicial and legal
services, including legal aid.68

66 See generally Danish Institute for Human Rights, Access to Justice and Legal
Aid in East Africa: A Comparison of the Legal Aid Schemes Used in the Region and
the Level of Cooperation and Coordination Between the Various Actors
(Copenhagen: The Danish Institute for Human Rights, 2011); and United
Nations Office On Drugs and Crime, Access to Legal Aid in Criminal Justice
Systems in Africa: A Survey Report (Vienna: United Nations Office On Drugs
and Crime/UN, April 2011).
67 See, for instance, Article 8 of the Protocol to the African Charter on Human
and Peoples’ Rights on the Rights of Women in Africa, 2003 (‘the Maputo
Protocol’).
68 Ibid.
21


As noted above, access to justice to indigent persons69 is
mainly actualised through the provision of free legal aid
and advice by the State or any other institution recognised
by the State.70 The relevant provisions in international
human rights treaties guaranteeing the right to legal aid
are Article 7(1)(c) of the African Charter on Human and
Peoples’ Rights (‘the Charter’ or ‘the ACHPR’); Article 8 of
the Maputo Protocol; and Article 14(3)(d) of the
International Covenant on Civil and Political Rights (‘the
ICCPR’).71
According to Article 13(6) (a) of the Constitution of

Tanzania, a person whose fate is being determined by any
judicial or quasi-judicial body has the right to be
effectively heard. The right to be heard entails one being
adequately represented by counsel of their choice, and
where such person cannot afford to hire a lawyer72 or the

69 Section 3 of the Legal Aid Act (No.1 of 2017) defines an “indigent person” as
a person ‘whose means are insufficient to enable him to engage a private legal
practitioner and includes other categories of persons where the interests of
justice so require.’
70 Section 24(1) and (2) of the Legal Aid Act requires legal aid to be provided
by a legal aid institution duly registered by the Registrar of Legal Aid,

established under Section 6(1). In terms of Section 24(3) of this law, it is an
offence for a person to provide legal aid without being attached to a
registered legal aid providing institution.
71 See also Article 40(2) of the UN Convention on the Rights of the Child
(CRC); Article 17(1) of the African Charter on the Rights and Welfare of the
Child (ACRWC); and Article 11(1) of the Universal Declaration of
Human Rights, adopted by the UN General Assembly
Resolution 217 A (III) dated 10 December
1948.
72 Section 27(b) of the Legal Aid Act.
22


interests of justice so demand,73 free legal assistance
should be granted to such individual.
The right of access to justice encompasses a person’s right

to be represented and/or defended by counsel of their
choice. In the administration of civil justice, the right to
legal aid to the marginalized and indigent members of the
society ensures their equitable access to legal services free
of charge.74 Therefore, civil legal aid entails legal
representation and advice by a lawyer in civil
proceedings in court or before any quasi-judicial
institution, in addition to the preparatory work this
entails.
In the context of the Legal Aid Act (2017), legal aid and
legal advice are available any person needing such
services in respect of all civil matters,75 and without any
discrimination;76 like it is the case with criminal cases.77
According to Section 27 of this law,

73Ibid, Sections 3 and 27(a).
74 See Goal 16 of Global Sustainable Development Goals, which sets out the
global aspiration of promoting the rule of law at the national and
international levels and ‘ensure equal access to justice for all.’
75 Sections 27-32 of the Legal Aid Act.
Ibid, Section 44(1) (providing that: ‘no a legal aid provider, advocate,
76
lawyer or paralegal shall provide legal aid on the basis of discriminating

aided person on his gender, religion, race, tribe or political affiliation.’).
under Section 44(2), discriminating an aided person is a criminal offence
that attracts, on conviction, ‘a fine of not less than five million shillings but
not more than ten million shillings or to imprisonment for a term not less
than six months but not more than twelve months or to both.’
77 Ibid, Sections 33-62.
23


27. Where in any civil proceedings it appears

to the presiding judge or magistrate that-
(a) in the interests of justice, a person should
have legal aid; and
(b) such person has insufficient means to
enable him to obtain the legal services,
the presiding judge, a magistrate,
adjudicatory body or a chairman of the land,
labour or tax tribunal and any other tribunal
as the Minister may, by Order published in
the Gazette determine, shall cause such
person to obtain legal aid. [Emphasis
supplied].
By its very scope, this provision applies to provision of

legal aid to persons in need of such service in both
litigation and non-litigation dispute settlement
mechanisms in Tanzania.
In discharging his or her duties, a legal aid provider is

obliged to provide legal aid services ‘with a view to
protecting the interests of the aided person.’78 In light of
non-litigation dispute settlement mechanisms, the right to
legal aid is very crucial as it strives to ensure that the
respective party’s rights are protected,79 and that such
party is able to ADR mechanisms are adequately
represented by counsel and so effectively participate in

78 Ibid, Section 26(1) (a). Under Section 3 of this law, an “aided person” means
a person who has been gran ted legal aid under this Act.
24


amicable settlement process. This is intended to safeguard
the rights and interests of parties in such mechanisms.
6.0 Provision of Legal Aid in Procedural Steps of Non-

litigation Dispute Settlement in Tanzania
As considered above, the recent amendments to the CPC
have further ‘formalized’ the practice of non-litigation
dispute mechanisms in our civil justice system. Notably, in
terms of Order VIIIC rule 24 of the CPC, now the court is
obliged to refer “every civil action” before it to negotiation,
conciliation, mediation or arbitration, or “similar
alternative procedure”, before proceeding to trial. This
means that these mechanisms form an integral part of
Tanzania’s civil justice and must be pursued first before any
civil proceedings move onto full trial.
In addition, the mandatory requirement that “every civil

action” before the court must first be referred to any of
these mechanisms before full trial is conducted,
presupposes that all parties should be adequately
represented by counsel who is well-versed and skilled in
the conduct of these mechanisms – procedures and
processes. Where a party cannot afford to hire advocate,
they should obtain free legal assistance from registered
legal aid providers in the interests of justice and in
protecting their interests in such proceedings.
As such, legal aid may be provided at a specific

procedural step throughout the entire proceedings of a
specific mechanism, as considered below. However, this
article will only examine legal aid provision in
25


conciliation, mediation and negotiation. Because
arbitration is more or less similar to litigation, as we noted
above, the article will not examine legal aid in such
mechanism.
6.1 Provision of Legal Aid at the Initial Appearance of
the Parties
The law requires that, within fourteen days after the
completion of pleadings, the court will direct the parties to
appear before it for (necessary) orders or directions80 in
relation to: (i) ‘any interim applications’, or (ii) ‘other
preliminary matters which the parties have raised or
intend to raise.’81 The aim of this procedural step is to
ensure ‘just, expeditious, and economical disposal of the suit.’82
At this session, the court may hear the parties on any
interim application or preliminary matter(s) raised; and
within fourteen days after such hearing, the court shall
deliver its ruling on the same, including any such order as
to costs ‘as it considers just.’83 Notably, all preliminary
matters are purely legal issues,84 which will need a party

80 In terms of Order VIIIB Rule 17(3) of the CPC, appearance at this session is
mandatory. Where a party fails to appear at this session, the court may: (i)
dismiss the suit; (ii) strike out the defence or counterclaim, as the case may be;
or (iii) make such other order as it ‘considers just.’ However, such order or
direction may be set aside or varied by the court (on application made within
30 days) on such terms as the court considers just. Order VIIIB Rule 17(4) of
the CPC.
81 Ibid, Order VIIIB Rule 17(1).
82 Ibid.
83 Ibid, Order VIIIB Rule 17(2).
84 Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] E.A.
696, at p. 100 (holding that: ‘A preliminary [matter in civil suits] raises a pure
point of law which is argued on the assumption that all the facts pleaded by
the other side are correct.’).
26


to be ably represented by counsel. At this stage, an
indigent party needs legal aid from a lawyer who will
assist that party to argue the legal issues in his or her
interests.
6.2 Provision of Legal Aid during the First Pre-Trial
Conference
Within a period of twenty-one days after conclusion of the
pleadings, a judge or a magistrate to whom a case has
been assigned is obliged to hold and preside over a first
pre-trial settlement and scheduling conference.85 This
conference is attended by the parties or their recognised
agents or advocates.86 The conference is held for the
purposes of, inter alia, resolving the case ‘through the use
of procedures for alternative dispute resolution such as
negotiation, conciliation, mediation, arbitration or such
other procedures not involving a trial.’87 At this
procedural step an indigent party is required to have legal
counsel because all the issues determined thereat are
technically legal, which needs a legal mind to assist the
indigent party.
6.3 Provision of Legal Aid at the Commencement of
Non-Litigation Dispute Resolution Process
Although conciliation and negotiations are said to be the
simplest processes of all the non-litigation dispute
settlement mechanisms in terms of procedure and
presentation of the parties’ case, they need a legal counsel

85 Order VIIIB Rule 22(1) of the CPC.
86 Ibid.
87 Ibid.
27


to guide a party to present its case in an orderly and
reasoned manner. This is so particular at the
commencement stage, where legal aid to an indigent
person, or where the interests of the matter so demand, is
of great significance.
6.3.1 The Need for Legal Aid at the Commencement of
Court-Annexed Conciliation and Negotiation Processes
As noted above, the procedural steps of conciliation and
negotiation have just been introduced into the civil justice
system of Tanzania through the 2019 Amendments to the
CPC.88 In terms of Order VIIIC Rule 36(1) of the CPC, the
court may refer “any matter in dispute” to conciliation
upon two instances: (i) at the request of any party wishing
to conciliate or negotiate; and (ii) with the consent of the
other party.89
Under Order VIIIC Rule 36(1) of the CPC, when the court
refers any matter in dispute before it to conciliation or
negotiation, such matter ‘shall be dealt with in accordance
with the applicable law and the agreement of the parties
to negotiate or conciliate and arrive at a settlement.’
However, there is currently no specific law setting out the
manner through which the conciliation and negotiation
processes will commence. In the absence of such law, the
conventional universal procedural steps relating to the
commencement of the conciliation and negotiation
processes have to be applied.

88 GN No. 381/2019.
89 Order VIIIC Rule 36(1) of the CPC.
28


Universally, conciliation and negotiation (as voluntary
processes of resolving dispute) are conducted in
accordance with the parties’ agreement to conciliate and
reach an amicable settlement. Reflected in Order VIIIC
Rule 36(1) of the CPC, this principle entails that, in the
absence of any procedural law regulating conciliation
proceedings, parties will agree on the manner through
which the conciliation proceedings will be conducted. This
agreement will include the manner through which
conciliation proceedings should commence and proceed.
It is a universal procedural principle, however, that, where

it is difficult (for some reasons) for all the parties to agree
directly on the manner through which the conciliation or
negotiation proceedings should commence, a party or
some of the parties may file a written request for
conciliation or negotiation, as the case may be, inviting the
other party to commence such proceedings.90 In many
countries that have enacted a procedural law on
conciliation and negotiation, such as India, these
proceedings will effectively commence when the other
party accepts in writing the invitation to conciliate or
negotiate.91 This procedure may also be flexibly applied in

90 See, for example, Section 1(1) of the Japan Shipping Exchange, Inc.’s
Conciliation Rules, available at
http://www.jseinc.org/en/tomac/conciliation/part_1.html (accessed 23
September 2020). See also Section 62(1) of the India Arbitration and
Conciliation Act (1996), which provides that: ‘The party initiating conciliation
shall send to the other party a written invitation to conciliate under this Part,
briefly identifying the subject of the dispute.’
91 See, for instance, Section 62(2) of the India Arbitration and Conciliation Act
(1996).
29


commencement of court-annexed conciliation proceedings
in Tanzania.
It is, therefore, critical that in reaching at an agreement

conciliate or negotiate, parties should be adequately
represented by counsel, and for a person who cannot
afford to hire an advocate, legal aid providers should be
present for that party at this crucial stage of the
conciliation and negotiation processes. In addition, the
presence of a legal counsel will assist the parties in writing
a request for conciliation or negotiation in manner that
addresses all the critical issues for consideration during
the processes of amicable settlement.
6.3.2 Provision of Legal Aid at the Commencement of

Court-Annexed Mediation Process
Before the 2019 Amendments to the CPC, the CPC did not
provide for the procedure at mediation sessions in courts;
rather such procedure was contained in the Manual for
Mediation Training in Tanzania.92 But with these
amendments, now there is an elaborate procedure
regulating court-annexed mediation proceeding, which
should be applied in tandem with universal procedural
steps applicable in mediation processes.93 In respect of the
procedure for commencement of the court-annexed
mediation process, the parties are required to first appoint

92Mashamba, op. cit, p. 114.
93 Ibid (quoting the Manual for Mediation Training in Tanzania, which states
that: ‘Procedures in conducting mediation proceedings vary from one
jurisdiction to another. But those variations would appear to be in details
rather than in substance.’).
30


a mediator or mediators, which is the first step towards
the commencement of such proceedings is the
appointment of a mediator.
In particular, under Order VIIIC Rule 25(1) of the CPC, the
court shall require the parties to appoint and submit the
name of a “qualified”94 mediator of their choice within
fourteen days after pleadings are complete. Where the
parties fail to appoint a mediator, the court ‘shall,
manually or electronically, appoint a mediator and notify
the parties accordingly.’95 Within Seven days subsequent
to the appointment of the mediator, the court shall notify
the parties of the commencement of the mediation
session.96
Notably, with the current amendments to the CPC, it is
expected that there will be a Register of, inter alia,
Mediators. Being professionally qualified persons, the
appointment of mediators will need a great deal of
participation of lawyers to assist the parties to appoint
suitable mediators. For the indigents, this will be a very
crucial assistance in that most of the indigent persons who
have civil suits in courts in this country are not
particularly well-versed in this aspect.

94Under Order VIIIC Rule 25(6)(a)-(f) of the CPC, the following persons shall
qualify to be nominated under Order VIIIC Rule 25 (1) to act as mediators: (i)
a Judge; (ii) a registrar or deputy registrar; (iii) a magistrate in case of a
magistrates’ court; (iv) a person with the relevant qualifications and
experience in mediation appointed by the Chief Justice; (v) a retired judge or
magistrate; or (vi) a person with the relevant qualifications and experience in
mediation and chosen by the parties.’
95 Ibid, Order VIIIC Rule 25(2).
31


After appointing a mediator, the parties are required to
submit to the mediator a Statement of issues together with
Pleadings and any documents of importance which
identify the issues in dispute and the parties’ positions
and interests thereon.97 Such documents, which shall also
be served on the other parties to the suit, must be
provided at least seven days before the mediation sessions
commence.98 The preparation of these documents and the
drawing of the Statement of Issues are more or less legal
aspects of civil practice, needing a lawyer to assist the
parties in the process. At this stage of the mediation
process, it is important that a person in need of legal aid is
provided with legal counsel to enable him fully comply
with this procedural requirement.
6.4 Appearance of Parties in Hearing Sessions
Legal aid to a person in need is very critical at the stage
where the non-litigation dispute resolution processes are
set for hearing. This is so principally because appearance
of parties in such proceedings is necessary in achieving
the very goal of the selected non-litigation dispute
resolution mechanism – i.e. to resolve a dispute out of
court through amicable and mutual discussions, debate,
and dialogue. It is only through being present99 at such
session that a party can manage to communicate its

97Ibid, Order VIIIC Rule 25(4).
98Ibid.
99 With the contemporary advancement in technology, it has become
necessary for many procedural rules in civil litigation, including in ADR

proceedings, to also adopt online appearance of parties.
32


position, present its offer, evaluate the other party’s offer,
and make an informed consent.
Whereas the CPC does not provide any procedure for
party appearance in conciliation and negotiation, it does
provide express procedure governing the appearance of
parties in mediation sessions. Under Order VIIIC Rule
27(1) of the CPC, appearance at mediation session is by
the party or his advocate or both. Prior to entering
appearance, the party and his advocate, where the parties
are represented, must be notified of the date of mediation.
Notably, where a third party may be held liable to satisfy
all or part of a judgment in the suit or to indemnify or
reimburse a party for money paid in satisfaction of all or
part of a judgment in the suit, unless the court orders
otherwise, that third party or his advocate may also attend
the mediation session.100
As it is the case with party appearance, the CPC does not
have any provisions governing non-appearance of parties
in conciliation and negotiation proceedings. Nonetheless,
the CPC has express provisions regulating a party’s failure
to appear in mediation sessions.101 In particular, where it
is not practicable to conduct a scheduled mediation
session because a party fails, without good cause, to
attend within the time appointed for the commencement
of the session, the mediator shall remit the file to the trial
judge or magistrate. Upon receipt of the case file, the trial
judge or magistrate may: (i) dismiss the suit, if the
defaulting party is a plaintiff, or strike out the defence, if

100 Order VIIIC Rule27(2) of the CPC.
101 Ibid, VIIIC Rule 29.
33


the defaulting party is a defendant;102 (ii) order a party to
pay costs;103 or (iii) make any other order he deems just.104
The implication of remitting the file to the trial judge or
magistrate for the orders set out above is that mediation
will be marked failed105 due to non-appearance of a party
or parties at the mediation session.106 Looking at the
consequences of non-appearance at mediation session, one
can only point out that an indigent party should be
adequately represented by a legal aid lawyer, who will
assist that party to avoid suffering unnecessary harm in
the conduct of its case due to non-appearance. This may
include assisting the party whose matter has been
dismissed for want of appearance to restore it.107

102 Ibid, VIIIC Rule 29(a).
103 Ibid, VIIIC Rule 29(b).
104 Ibid, VIIIC Rule 29(c).
105 Tanzania Harbours Authority v. Mathew Mtakula & 8 Others, Court of Appeal
of Tanzania at Dar es Salaam, Civil Appeal No. 46 of 1999 (Unreported).

106 A.G. v. M/S JP International Ltd., High Court of Tanzania at Dar es Salaam,
Civil Case No. 158 of 2002 (Unreported).

107 After a suit is dismissed for non-appearance of a party or parties at
mediation, the court may make an order for the restoration of such suit (Order
VIIIC Rule 30 of the CPC). For that matter, any party aggrieved by an order
made under Order VIIIC Rule 29 of the CPC should file in court an
application for restoration of a suit or a written statement of defence within
seven days from the date of the order (Order VIIIC Rule 30(1)). Upon the applicant
showing good cause (In terms of Order VIIIC Rule 30(2), the court is obliged
to hear and determine such application ‘within fourteen (14) days from the date of
lodging the application), the court ‘shall set aside orders made under rule 29 of
this Order and restore the suit or the defence and remit the case to the
mediator who shall issue a notice for mediation.’ (Order VIIIC Rule 30(3)).
34


6.5 The Role of Legal Aid in Hearing Sessions in Non-
Litigation Dispute Settlement Processes
The role of a legal aid providing counsel in assisting an
aided person during the entire process undertaken in any
non-litigation dispute settlement mechanism cannot be
overstated. In the conciliation and negotiation processes, a
legal aid lawyer can assist a party in the preparation and
planning for the session, definition of ground rules to
applied during the session, clarification and justification of
critical issues that may emerge at the session,108 and in
bargaining109 and problem solving as the session
progresses towards the end. In addition, a legal aid lawyer
can assist a party in drawing a conciliation or negotiation
agreement as well as its implementation.110 A legal aid

108 IEDU Note, “5 Steps of Negotiation Process,” available at
https://www.iedunote.com/negotiation-process-five-steps (accessed 23
September 2020.
109 Shamir, op. cit, p. 8 (noting that the essence of the negotiation process is
‘the actual give and take in trying to hash out an agreement, a proper
bargain.’ It is here where concessions will undoubtedly need to be made by
both parties. It is at this stage where parties exchange their bargain and
alternatives. It should be noted that, in the negotiation process, alternatives
are those actions that one can take outside the negotiations, alone or possibly
with a third partner, but without the party with whom one negotiates. The
alternative that yields the best outcome in the negotiation process is called the
Best Alternative To a Negotiated Agreement (BATNA). Notably, the BATNA
‘is the “best alternative to a negotiated agreement.” If any of your alternatives
without negotiation is better than the deal on the negotiating table, you will
obviously go to the best alternative. If however the deal on the table is better
than any of your alternatives, it will be your BATNA. It is important to make
sure that the alternatives are indeed realistic, and try to improve your
BATNA, because the BATNA influences the way in which you conduct the
negotiations.’).
110 Mashamba, op. cit, p. 58 (observing that: ‘In the negotiation process, an
agreement is required to be specific, realistic, operational, clear, and

understood by all parties. It should be specific as to who will do what, how,
35


lawyer will also assist a party in notifying the court within
the prescribed period for negotiation or conciliation111 to
the effect that the parties have executed a settlement
agreement.112 Indeed, at the conclusion of negotiation or
conciliation where the parties have executed a settlement
agreement under in Order VIIIC Rule 38(a), the parties
have the duty to remit the settlement agreement to the
trial court immediately or within forty-eight hours.113
In addition, a legal aid lawyer will have to assist a party in
a situation where such party or its opponent make(s) a
declaration to the effect that further negotiation or
conciliation is not worthwhile.114 At this stage, the
lawyer’s role will be analysing the advantages and
disadvantages of taking that route and its legal
implications on his or her client’s interests in the case. It
important that the lawyer draws a line between the
positive and negative aspects of such decision and
favourably advise his or her client in her or his best
interests.
In the mediation process, a legal aid lawyer may assist the
aided person through all the mediation steps, including
the parties’ participation in all mediation sessions (i.e. first
joint session, separate sessions or caucuses,115 and final

when, and where. In the agreement the parties should commit to what they
have agreed.’).
111 Ibid, Rule 38(a) of the CPC.
112 Ibid, Order VIIIC Rules 33(a) and 38(a).
113 Ibid, Order VIIIC Rules 39.
114 Ibid, Order VIIIC Rule 38(b).
115 Order VIIIC Rule 26(2)(b) of the CPC allows the mediator hold separate
sessions. This is a meeting between the mediator and one of the parties in the
absence of the other, whereby a mediator may: calm frayed tempers, probe
36


joint sessions); and in the preparation an of a mediation
agreement, if the parties reach an amicable settlement.116
In addition, a legal aid lawyer may assist a party in the
implementation or execution of a settlement agreement
where mediation succeeds.
In addition, where the mediator seeks to makes a
declaration to the effect that further mediation is not
worthwhile, he is required to do consultation with the
parties,117 in which case a lawyer’s advice is very crucial to
a party under legal aid representation. The lawyer’s role in
this regard will be to ensure that his client’s interests are
best served and protected as required by the Legal Aid
Act.118
Although the ultimate goal of referring a matter to any of

the non-litigation dispute settlement mechanisms is to

more into the facts of the case and hidden motives behind a party’s
negotiating strategy more closely, or discover the real needs of the party. It is
in separate sessions that mediators often make headway: timid parties talk
more freely, secrets are more easily revealed, and definite or tentative offers
made. In addition, it is in separate sessions that the mediator tries to persuade
the parties to judiciously brainstorm and share information which will assist
them to, as we say, “expand the pie” so that each party may get as much as
possible of what he would like. Furthermore, it is in separate sessions that the
mediator translates and transmits offers, clears wrong impressions and
suggests options. The mediator also uses this session to again reassure the
parties that a settlement will be reached if they tackle the process in a positive
manner. A mediator can, thus, hold as many separate sessions as he or she
wishes, so long as he or she believes he is making progress towards reaching a
resolution of the dispute. For the same reason, there is no limit to the number
of joint sessions which the mediator may hold.
116 Ibid, Order VIIIC Rule 33(a).
117 Ibid, Rule 33(b) of the CPC.
118 Section 26(1) (a) of the Legal Aid Act obliges a legal aid provider to provide
legal aid ‘with a view to protecting the interests of the aided person.’
37


reach an amicable settlement that is mutually acceptable
by both parties, in some cases an impasse may be
reached.119 This is a situation where the parties fail to
agree on a mutually acceptable amicable settlement of all
issues referred to such mechanism. In such a situation, the
entire matter will be referred back to the court for
determination of the issues in terms of Order VIIID Rule
40 of the CPC.120 At this stage, a party will need the
assistance of a lawyer to help in going back to the court to
proceed with the full trial. A lawyer is critically needed
here in order to assist a party in managing the transition
from a non-litigation setting to litigation.
7.0 Challenges Facing Legal Representation and Legal

Aid in Non-litigation Dispute Settlement
More than a year-and-a-half after the 2019 amendments to
the CPC were made through GN No. 381/2019 published
on 10 May 2019, still the basic institutional infrastructure
and regulatory framework for ensuring court-annexed
conciliation, mediation and negotiation are not yet in
place. These entail the adoption of “rules of procedure” to

119 For instance, under Order VIIIC 26(1)(a) and (b) of the CPC, both the
mediator and parries shall strive to reach “an early resolution of the dispute”
that is “mutually acceptable”. In addition, under: Order VIIIC 36(1) of the
CPC, when a matter is referred to conciliation or negotiation, it shall be dealt
with in accordance with the applicable law and the agreement of the parties to
the negotiate or conciliate and “arrive at a settlement”.
120 In particular, Order VIIID Rule 40(1) of the CPC provides that:
‘(1) Where a suit is not resolved by negotiation, conciliation, mediation or

arbitration or other similar alternative procedure it shall revert to the trial
judge or magistrate for a final pre-trial settlement and scheduling
conference, to enable the court to schedule the future events and steps
which are bound or likely to arise in the conduct of the case, including
framing of issues and the date or dates for trial.’
38


govern conciliation, mediation and negotiation; and the
establishment of a Register of Conciliators, and Mediators.
It also includes the accreditation of Conciliators, and
Mediators, who would be required to preside over court-
annexed conciliation and mediation. In addition, certain
mediators121 are required to be remunerated or
compensated (when they act as such) in a manner to be
determined by the Chief Justice and published in the
Gazette;122 yet, such manner has not been published. This
challenge has resulted in a slow start to the practice of
court-annexed conciliation, mediation and negotiation.
This, by implication, has also affected the participation of
legal aid lawyers in such processes.
A random survey made across legal aid providing
institutions in Tanzania, particularly those operating in
the periphery of the country such as paralegals,123
indicates that many legal aid providers and paralegals
lack awareness on the existence of the opportunity for
them to provide legal aid in non-litigation dispute
settlement processes. Few legal aid providers seem to be
aware of the 2019 amendments to the CPC “formalizing”

121 These are: (i) persons with the relevant qualifications and experience in
mediation appointed by the Chief Justice (Order VIIIC Rule 25(6)(d) of the
CPC) and; and (ii) retired judges or magistrates (Order VIIIC Rule 25(6)(e) of
the CPC).
123 Paralegals are allowed to provide legal aid pursuant to Sections 19 and
20 of the Legal Aid Act. A paralegal is defined in Section 3 of this law as ‘a

person who is accredited and certified to provide legal aid services after
completing necessary training in the relevant field of study approved or
recognized by this Act.’
39


court-annexed conciliation and negation, in addition to
mediation that has been recognized as such since 1994.124
Apart from lack of awareness on the foregoing
amendments to the CPC, few legal aid providers have
undertaken any meaningful training of their lawyers and
paralegals in the principles, procedures, processes and
practices of non-litigation dispute settlement mechanisms.
Nonetheless, there is an ongoing joint-initiative
undertaken by the Law School of Tanzania and the
Tanzania Institute of Arbitrators (TIArb.) in which case
these institutions have started to offer a foundation course
on the conduct and practice of ADR and Arbitration.125
Although this effort is highly commendable, it is very
strange that such an important training is given only two
days.126
It would be more ideal if lawyers and paralegals working
in legal aid providing institutions are specifically trained
to equip them with requisite knowledge and skills that
would enable them to effectively assist their legal aid
clients in the non-litigation dispute resolution processes.
This is especially necessary bearing in mind that few
institutions offering law degrees and relevant academic
education devote their training time to offering students
training in non-litigation dispute resolution mechanisms.

124 Court-annexed mediation was introduced as in 1994 through Government
Notice No. 422, which amended the First Schedule to the CPC. See particularly
Civil Procedure Code (Amendment of Schedules) Rules (1994), which were
published in the Tanzania Government Gazette under G.N. No. 422 of 1994;
and came into operation on 1st November, 1994.
125 Information for this course is found at www.tiarb.or.tz.
126 Ibid. For example, in one of similar courses advertised recently would take
place on 15-26 November 2020.

40


Perhaps a more critical challenge facing the provision of
legal aid in non-litigation dispute settlement mechanisms
is the country’s lawyers themselves. In my 21 years of
practice, research and teaching of the law, I have
encountered many lawyers, some very senior, who harbor
a negative stance against ADR. This negativity has a
corrosive effect to many young lawyers both in training
institutions and practice, who deem resorting to non-
litigation dispute settlement mechanisms would reduce a
lot of their legal fees.
However, it is now universally-recognized that lawyers
have a very pivotal role in the conduct and practice of
non-litigation dispute settlement mechanisms. In such
situation, therefore, lawyers can still charge their clients
for the services rendered during the conduct of matters
referred to conciliation, mediation and negotiation, just as
they do when they represent clients in arbitration and civil
litigation. For lawyers working or affiliated to legal aid
providing institutions,127 they can similarly, still be paid
by the employers for participating in conciliation,
mediation and negotiation proceedings.
8.0 Conclusion Remarks
As noted in this article, the Tanzania civil procedural law
has recognized court-annexed non-litigation dispute
settlement mechanisms. By doing so, it is now mandatory

127 Under Section 24(1) and (2) of the Legal Aid Act, legal aid ‘shall be
provided by an advocate, a lawyer or a paralegal on behalf of the legal aid

provider,’ and, as such, a person ‘shall not provide legal aid services unless
that person is an advocate, a lawyer or paralegal attached to a legal aid
provider.’
41


that every civil case must be referred to any of the non-
litigation dispute resolution mechanisms (arbitration,
conciliation, mediation or negotiation).128 Whereas the
arbitration process is more or less similar to litigation in
terms of complex rules of procedure;129 conciliation,
mediation and negotiation are less complex.130 This has
marked the “formalization” and infusion of these non-
litigation dispute settlement mechanisms into our civil
justice system.
Succinctly, this formalization and infusion strive to reduce
costs and delays in dispute resolution, and facilitate an
early and fair resolution of disputes.’131 As such, all
participants (the parties and their legal representatives,
conciliators, and mediators) and in these non-litigation
dispute settlement processes are obliged to make sure the
process is effectively administered in order to reach a

129 According to Order VIIIC Rule 35 of the CPC, any matter in dispute
referred to arbitration under a court order ‘shall be dealt with as provided for
under the Second Schedule to this Code.’ In principle, the Second Schedule to
the CPC sets out rules of procedure for arbitration to conducted in respect of a
suit that has been filed in court. For the arbitration proceedings initiated
without a civil suit in court, the applicable law is the Arbitration Act and the
Rules mandate thereunder. In practice, many arbitrators conduct arbitral
proceedings in a manner that akin to the civil procedures, although with few
procedural complexities and less adherence to rules of evidence and formality
seen in the latter.
130 Order VIIIC Rule 36(21) of the CPC, when the court refers any matter in
dispute to negotiation or conciliation, and such matter ‘shall be dealt with in

accordance with the applicable law and the agreement of the parties to the
negotiate or conciliate and arrive at a settlement.’
131 Ibid, Order VIIIC Rule 26(1) (a).
42


mutually acceptable resolution: i.e. arriving at a
settlement.132
At the centre of such non-litigation dispute settlement
processes is the parties’ entitlement to obtain legal aid
services, which entail legal advice and court
representation.133 Deriving from both international and
our constitutional law, the right to legal aid strives to
ensure that the rights and interests of an aided person are
safeguarded and protected134 throughout any process in
which his rights are being determined by a court or any
other quasi-judicial body or person acting such capacity,
which include conciliators and mediators. Therefore, it is
now trite law that parties to non-litigation dispute
mechanisms who are unable to afford hiring advocates
should be granted legal aid in the context of the Legal Aid
Act.
Despite these positive developments in the country’s civil
justice system, there are some challenges that may hamper
access to legal services by the indigent in the non-litigation
dispute settlement processes in the near future, if left
unaddressed. Such challenges include lack of a trained
and accredited conciliators and mediators, lack of training
on the part of legal aid providers on the provision of legal
aid in non-litigation dispute settlement mechanisms, and
lack of awareness on the existence of such mechanisms
amongst many legal aid providers.

132 Ibid, Order VIIIC Rule 26(1) (b) and Rule 36(1).
133 Section 3 of the Legal Aid Act describes “legal aid services” to encompass
‘the provision of legal education and information, legal advice, assistance or
legal representation to indigent persons.’
43


Nevertheless, this article calls upon those concerned with
the adoption of the establishment of the institutional
infrastructure and regulatory framework for conciliation,
mediation and negotiation to act promptly in order to kick
start the functioning of the non-litigation dispute
settlement mechanisms in the country’s civil justice
system. In addition, the article urges legal aid providing
institutions, training institutions and those charged with
the function to supervise the provision of legal aid in the
country to embark on programmatic training of legal aid
providers in the areas of non-litigation dispute resolution.
This will help in building a large number of lawyers and
paralegals who can provide legal assistance in the non-
litigation dispute resolution mechanisms.

44

PROVISION OF LEGAL AID SERVICES TO JUVENILE
OFFENDERS IN TANZANIA: AN APPRAISAL OF THE
LEGAL FRAMEWORK
Mary Richard and Tike Mwambipile
∗ ∗
Abstract
The article seeks to highlight the legal framework governing provision
of legal aid service to juvenile offenders in Tanzania which are in line
with the corresponding international and regional instruments. Along
with that, it appraises the prevailing practical initiatives are taken so
far by the country. At the same time, it shades lights on possible areas
of improvement coupled with viable recommendations. In democratic
societies where the rule of law is observed, ensuring access to legal aid
services to indigent persons including special groups as children are
one of the measures to ensure no person is deprived of his or her basic
rights, even when such person conflicts with the law. Several legal
initiatives at international, regional and domestic levels have been
developed placing obligations to Tanzania to ensure that, juvenile
offenders eligible for legal aid are afforded such service not only as an
essential requirement to access justice but also as their fundamental
right. This is because legal aid specifically via legal representation
ensures protection and realization of a right to be heard especially in
criminal proceedings whose sentences arise from court’s decisions may
lead to deprivation of one’s constitutional rights.
Keywords: Guardian Ad litem, Juvenile Court, Legal Aid services,

juvenile justice

* Head of Programs, Tanzania Women Lawyers Association (TAWLA), Advocate
of the High Court of Tanzania, LLB, LLM, E mail: mary.richard@tawla.or.tz
* Executive Director, Tanzania Women Lawyers Association (TAWLA),
Advocate of the High Court of Tanzania, LLB, MBA, Email: tike@yawla.or.tz
1

1.0 Introduction
Engagement of children in criminal activities is not only
an experience in Tanzania, but also in Africa as a continent
and elsewhere globally. Several factors contribute to this
situation including poor school conditions and
educational standards that catalyse school drop outs,
violence at home and in neighbourhood communities,
peer pressure, substance abuse (drugs or alcohol), poor
moral guidance and poverty.1 Offences such as theft and
similar crimes may however be committed by children out
of necessity. As crimes are punishable under the law
through criminal justice system, statutorily minors may
find themselves criminally liable as a result of their
engagement in the aforementioned activities. This has
therefore brought in the concept of juvenile delinquency
or juvenile offending; which is the act of participating in
unlawful behaviour as a minor or individual younger than
the statutory age of majority.2
Prevention of juvenile delinquency is an essential part of a
stable society where children are expected to engage in
lawful, socially useful activities and adopting a humanistic
orientation towards society and outlook on life. At times,
juveniles find themselves in conflict with the law;
however, being a juvenile does not exempt one from being
subjected to the due process law to avoid inter alia,
recidivism. Provision of legal aid services to children

1 Omboto John Onyango et al, “Factors Influencing Youth and Juvenile
Delinquency”, International Journal of Research in Social Sciences, Vol. 1, No. 2,

2013, pp. 18-21 at p.19.
2 Section 4 (1) of the Law of the Child Act, 2009, provides for a statutory age of
majority to be eighteen years and above.

2

subjected to criminal justice allows observance of the
established standards which guide the handling of young
delinquents. Before discussing this further, it is first
important to elucidate the concept of criminal
responsibility to minors.
2.0 General Overview on the Concept of Criminal
Responsibility to Minors
The term criminal responsibility refers to a person’s ability
to understand his or her conduct at the time a crime is
committed. The Penal Code3 (as amended by Sexual
Offences Special Provisions Act, 1998) establishes the age
of criminal responsibility for a child. The Act stipulates
that person under the age of ten years is criminally
immature. However, any person below the age of twelve
years is prone to criminal responsibility if it can be proved
that, at the time of committing a crime such child had the
ability to realise that he or she ought not to have
committed such crime. The same Act declares a boy below
the age of twelve incapable of performing sexual
intercourse for the purposes of sexual offences4. Most legal
systems including Tanzania as mentioned earlier prescribe
specific procedures for dealing with children who are
capable of committing crimes. Since such procedures are
legal, and not all juvenile offenders’ families
(parents/guardians) can afford private legal services, legal
aid becomes crucial.

3Cap 16, R.E 2019.
4 Section 15 of the Penal Code.
3

3.0 Legal Aid Service as an Essential Right
The right of access to justice, which is realized through the
provision of legal aid to the needy, is premised in the
fundamental principle of equal protection before the law
for all persons in any given state. It requires states to
ensure effective access to among other things, legal and
judicial services to everyone. The right of access to justice
encompasses a person’s right to be represented and or
defended by a counsel of their choice. In the
administration of criminal justice arena, access to justice is
a fundamental element of the right to a fair trial which is
an ultimate goal sought to be achieved by legal aid
providers. Access to justice by juvenile offenders
encompasses a wider scope than just a “child friendly
justice.” It encompasses procedures that are simple to
children’s comprehension and separate from adult court
processes.5 Given its significance in enhancing a well-
functioning criminal justice system, the right to fair trial is
well entrenched in all universal, regional and municipal
laws.
4.0 Recognition of a right to Legal Aid Services to
Juvenile Offenders in International, Regional and
Domestic Arena
International and regional fora on children rights
continued to set minimum standards through different
instruments for adoption and guidance of state parties in
the course of enforcing laws related to juvenile offenders.

5See Skelton Ann, “Child Justice in South Africa: Application of International
Instruments in the Constitutional Court, “International Journal of Children’s

Rights, Vol.26, 2018, pp.391-422, at p. 392.
4

In reaction to these initiatives, states parties are under the
obligation to fulfil such parameters by particularly
domesticating and enforcing corresponding legislation.
Below are the key legal instruments and standards set at
the international, regional and domestic levels to ensure
access to legal aid services to juvenile offenders that
Tanzania looks up to and walks along as a model for
implementation of better practice in the administration of
juvenile justice in the country.
4.1 International Level
4.1.1 The United Nation Convention on the Rights of the
Child, 1989 (herein to be referred as CRC)
This is considered the model international instrument
providing for children’s rights and setting standards for
state parties’ adoption and implementation. Tanzania has
signed the Convention 1st of June 1990 and ratified the
same on 10th June 1991. The CRC confirms in several of its
articles, the need for the protection of children in conflict
with the law. First off, the Convention provides for the
importance of protecting the best interest of the Child
when any decision concerning a child is about to be
carried out by legislative bodies, courts of law, public or
private social welfare institutions, administrative
authorities or legislative bodies.6
Secondly, the Convention prohibits torture, or cruel,
inhuman or degrading treatment and punishments to the
child. Neither does the Convention subscribe to the
imposition of capital punishment nor life imprisonment

6 Article 3 (1) of the Convention on the Rights of the Child, 1989.
5

without parole to persons who are under eighteen years.
With regard to arrest, detention or imprisonment, the
Convention prefers such act as very last resort to deal with
a juvenile offender; and when this happens, the arrest
should not be carried out arbitrarily and the young
delinquents ought to be afforded with humane and decent
treatment while in custody for the reasons of their age.
Most importantly, the Convention emphasizes on the
juvenile offenders’ right to prompt legal assistance and
other appropriate rights accruing from his or her
detention state.7
Looking at the Court’s proceedings involving a minor, the
Convention reiterates the importance of treating him or
her with dignity and having a free assistance to
understand the Court’s proceedings and anything he or
she may necessarily have to go through to ensure justice is
met throughout testimonial sessions to impartial decisions
to be imposed, while ensuring the juvenile offenders right
to privacy is observed at all time.8
4.1.2 Convention on the Rights of the Child, General
Comment No. 10 (2007) on Children’s Rights in
Juvenile Justice9
Comment 58 of this general comment to CRC require while
interrogating a child accused of criminal offence, the same

7Article37, Id.
8Article40 of the CRC.
9
The purpose of a General comment is to interpret and clarify substantive
provisions, not only with regard to the reporting duties of State parties but
also when it comes to provisions or thematic issues in question. Their highly
authoritative character based on the provisions of the Convention is
recognized in International law in Article 31 of the 1965 Vienna Convention
on Law of Treaties, 1969.
6

should have access to a legal or other appropriate
representative for guidance and must be able to request
the presence of his or her parent(s) during questioning. It
is important to note that, under this circumstance, a legal
aid officer forms part of the legally recognised appropriate
legal representatives for the child. The comment further
requires independent scrutiny of the methods employed
for interrogation to ensure that the evidence is voluntarily
collected without coercion. Also, when considering the
voluntary nature and reliability of an admission or
confession by a child, Courts must take into account the
age of the child, the length of custody and interrogation,
the presence of legal aid officer or other counsel, parent(s),
or independent representatives of the child.
Comment 92 further requires state parties to establish a
comprehensive juvenile justice system with specialized
units within the police, judiciary, and prosecutor’s offices
to ensure the flow of legal procedures concerning a
juvenile offender is carried out with maximum
consideration of all the standards set to protect children in
conflict with the law.
4.1.3 United Nations Standard Minimum Rules for the
Administration of Juvenile Justice ("The Beijing
Rules"), 1985
Beijing Rules were designed to respond to the needs of
improving administration of juvenile justice. The Rules
address several rights of children in conflict with the law
including; a juvenile’s right to be presumed innocent until
found guilty by competent body or tribunal, right to be
notified of the charges, the right to remain silent in
7

incidents of arrest, the right to counsel10, the right to the
presence of a parent or guardian during interrogation, the
right to confront and cross-examine witnesses and the
right to appeal.11
4.1.4 The UN Rules for the Protection of Juveniles
Deprived of their Liberty, 1990 (Havana Rules)
These Rules are envisioned to prevent the detrimental
effects of deprivation of young delinquents; liberty by
ensuring respect for children’s rights.12Havana Rules
requires juvenile justice system to uphold the rights and
safety as well as promoting physical and mental well-
being of juveniles while in custody. Under these rules
Juveniles under arrest or awaiting trial have the right of
legal counsel and be enabled to apply for free legal aid
and regularly communicate to their legal advisors.13
4.1.5 UN Standard Minimum Rules for the Treatment of
Prisoners, 1955 (Mandela Rules)
The rules encourage member states to promote the
implementation of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty and the
United Nations Rules for the Treatment of Women
Prisoners and Non-Custodial Measures for Women
Offenders (the Bangkok Rules). It requires prisoners to be

10
Legal aid services include legal representation by a Counsel.
11 Rule 7 of the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules), 1985.
12
These Guidelines were developed by an Open-Ended Working Group of
Non-Governmental Organizations established by Defence for Children
International in cooperation with the UNODC (A/CONF.144/IPM.3, paras 3
and 65-67).
13
Rule 18 (a) of the UN Rules for the Protection of Juveniles Deprived of their
Liberty, 1990 (Havana Rules).
8

provided with adequate opportunity, time and facilities to
be visited by and to communicate and consult with a legal
adviser of their own choice or a legal aid provider,
without delay, interception or censorship and in full
confidentiality, in conformity with applicable domestic
law. In cases in which prisoners do not speak the local
language, the prison administration ought to facilitate
access to the services of an independent competent
interpreter. The rules also insist that, prisoners should
have access to effective legal aid.14
4.1.6 UN Rules for the Treatment of Female Prisoners
and Non-Custodial Measures for Women
Offenders, 2010 (Bangkok Rules)
These rules provide for standards and norms to be
adopted by states in treatment of female prisoners and
encourage non-custodial measures for women offenders.
It should be noted that, female prisoners include female
juvenile offenders. The Rules recognize female offenders in
incarceration may fall victims of different forms of abuse
including sexual abuse by prison staff or other prisoners.
Under such circumstances they require the juvenile female
offenders to be fully informed of their right to complain
about any offences committed against them while in
custody and adequate assistance available.
4.2 Regional Level
As a member state to the African Union (AU), Tanzania
has signed the African Charter on Human and Peoples
Rights, 1981 (famously known as the Banjul Charter) on

14
Rule 67 (1), (2), (3) of the UN Standard Minimum Rules for the Treatment of
Prisoners, 1955 (Mandela Rules).
9

31st May 1983 and ratified the same on 18th February 1984
respectively. She is also a party to the African Charter on
the Rights and Welfare of the Child, 1990 whereby she
signed the same on 1st of June 1990 and ratified it on 10th
June 1991. Both Charters covers the aspects related to
children in conflict with the law and their human rights
guarantees.
4.2.1 The African Charter on Human and Peoples Rights
(ACHPR)
Article 18 (3) of the Charter makes it an obligation to the
state parties to ensure the protection of the rights the child
as stipulated in international declarations and conventions
as discussed above also the principle provided for under
Article 14 (1) of the International Convention on Civil and
Political Rights, 1966 which concerns respecting the
privacy of juvenile offenders particularly in criminal cases.
4.2.2 The African Charter on the Rights and Welfare of
the Child (ACRWC)
The African Charter on the Rights and Welfare of the
Child of 1990 agrees with the provision of CRC with
respect to access to legal aid service or assistance to
juvenile offenders. It calls for state parties to such Charter
in the administration of juvenile justice to ensure that
every child accused of infringing the penal law is afforded
legal and other appropriate assistance in the preparation
and presentation of his or her defence.15

15
Article 17 (2)(c)(iii) of the African Charter on the Rights and Welfare of the
Child, 1990.
10

Unlike what it is for the international contentions, for
example the CRC, that, there is a special body established
to oversee the partner states’ implementation of the rights
enshrined in the Convention i.e. the Committee on the
Rights of the Child or the Committee of Experts on the
Rights and Welfare of the Child in Africa; there is no
formal mechanisms for reviewing implementation of the
above discussed UN standards and norms in individual
member states. It therefore takes a country’s individual
initiatives to absorb the standards set at the international
level to the domestic juvenile justice system.
4.3 Domestic Level
It is important to assess the application of international
standards on legal aid and administration of juvenile
offenders at the municipal level in Tanzania. This is due to
the country’s commitment to fulfilling the obligations she
vowed to undertake under the treaties signed and ratified.
The set standards and norms are commonly referred to as
“soft law” instruments, in the sense that they provide
guidance but are not legally binding to Tanzania given the
dualist nature of the country.
In Tanzania before the enactment of the general Law of

the Child Act, 2009, matters related to children in conflict
with the law were regulated by the Children and Young
Persons Act16. The Law of the Child Act has filled several
gaps that existed in several pieces of legislation in relation
to the welfare of children in Tanzania; i.e. the Law of

16Cap 13 R.E 2002 (repealed).
11

Marriage Act17, the Penal Code18, the Education Act19, the
Employment and Labour Relations Act20 and the
Criminal Procedure Act .
21
Going back to the focus of this article on appraisal of the

legal framework governing provision of legal service to
juvenile offenders in Tanzania. The following principal
and subsidiary legislations are visited to establish how of
an importance this particular essential right is in Tanzania
as entrenched in the legal framework.
4.3.1 The Constitution of the United Republic of

Tanzania, 1977(as amended)
The Constitution of the United Republic of Tanzania22 is
the mother law in which basic rights and duties of citizens
are entrenched. The right to legal aid services to juvenile
offenders in Tanzania under the Constitution can be
traced from the provisions of Article 13 (6) (a) on equality
before the law and the subsequent sub-provision on the
right to fair hearing, since fair hearing necessitate legal
representation. For effective and smooth implementation
of this right, several principal and subsidiary legislation
have been enacted by the Parliament and other organs to
make access to this right a reality. The proceeding part of
this article will visit these principal and subsidiary
legislations.

17
Cap No 29 R.E. 2019.
18 Cap No.16 R.E. 2019.
19 Cap No.353 R.E. 2002.
20 Cap No.366 R.E. 2019.
21 Cap No.20 R.E. 2019.
22
1977.
12

4.3.2 Law of Child Act, 2009 and Related Subsequent
Amendments, Rules and Procedures.
As explained earlier in this article, this law provides for
comprehensive rights, duties and procedures in dealing
with children. Before submitting on how right to legal aid
is provided for under this law it is important to note that
Juvenile Courts are established under this particular
legislation with mandate to determine juvenile
proceedings.23 Further the Chief Justice was empowered
to designate any premises used by a primary court to be a
Juvenile Court by a notice in the Gazette. A number of
primary courts were later designated through the Law of
The Child (Designation of Juvenile Courts) Notice, 201624
and its amendment through the Law of The Child
(Designation of Juvenile Courts) (Amendment) Notice,
201725 which was later revoked via The Law of the Child
(Designation of Juvenile Courts) Notice, 201926.But in the
year 2020 vide Section 28 of the Written Laws
(Miscellaneous Amendment) Act, 202027 Section 97 (2) of
the Law of the Child Act was deleted and substituted with
a provision allowing premises of district and resident
magistrate courts to be used as juvenile courts by adding
sub-section 3 to allow these courts to hear and determine
matters triable by juvenile court. This is a commendable
progress as it widens access to juvenile courts and quick
dispensation of justice in issues related to children
including juvenile offenders. It is also important to note

23 Section 97 of the Law of the Child Act, 2009 (R.E 2019).
24 Government Notice No. 314 Published on 9th December 2016.
25 Government Notice No. 367 Published on 22nd September 2017.
26 Government Notice No. 158 Published on 22nd February 2019.
27
Published on 21st February 2020.
13

deletion of former Section 97 (2) terminated the status of
141 designated Juvenile Courts by the Chief Justice in 2019
through Government Notice 158/2019.
As to right to legal aid or representation Section 99 (1) (g)
of the Act28 stipulate that the child shall have a right to
next of kin and representation by an advocate as one of
the conditions to be observed during proceedings in
juvenile court. This provision suggests that, in case a child
could not afford a private advocate, a legal aid through
certified legal aid provider should be an option. This
assertion will be verified by other enactments and rules to
be discussed in the following subsections and sections of
this article.
4.3.3 The Law of the Child (Juvenile Court Procedure)
Rules, 2016 Government Notice No.182 Published
on 20th May 2016
In ensuring that children in a conflict with the law are
treated in a manner that complies with international
norms and standards elaborated earlier in this article and
for smooth implementation of the principal Act, 29the
Chief Justice is mandated promulgated rules to govern
procedures in juvenile court. These rules work together
with subsidiary legislation made under the Principal Act
(which are not directly relevant to this discussion, but
worthy a mention).30 Rule of 14 recognizes a right to legal

28
Law of the Child Act, 2009(R.E 2019).
29Ibid.
30
Law of the Child Act, Ibid. This include The Law of the Child (Retention
Homes) Rules, 2012 Government Notice Number 151 of 2012, Adoption of the
Child Regulations, 2012 Government Notice Number No 197 of 2012, The
Law of the Child (Child employment) Regulations, 2012 Government Notice
Number No 196 of 2012, Children’s Homes Regulations, GN No 155 of 2012,
14

and other appropriate assistance to a child who is a party
to proceedings in a criminal or civil case. The rule has
gone beyond and put a requirement on provision of legal
representation to the child free of charge whenever
practicable in case a child who is party to such
proceedings does not have legal representation.
In recognition of limited access to legal services the Rules
establishes a form of children’s representation through
Guardian Ad litem31 to offer representation to a child
charged with criminal offence who cannot afford to pay
for legal representation, in the event when it is not
practicable to provide free legal representation and a
parent or guardian is not able to provide effective
representation for the child. The presiding magistrate in
such circumstance is required to appoint the said Guardian
Ad litem. In 2016 the Department of Social Welfare
adopted a Guide for Guardian Ad Litem as well as Juvenile
Guideline for Social Welfare Officers. This guide provides

Foster Care Placement Regulations Government Notice Number 153 of 2012,
The Child Protection Regulations, 2015 Government Notice Number 11 of
2015, The Law of the Child (Apprenticeship) Regulations Government Notice
154 of 2012.
31
Rule 3 of the Law of the Child (Juvenile Court Procedure) Rules,2016,
Government Notice No.182 Published on 20th May 2016 define Guardian Ad
litem as a person who takes responsibility or is appointed to represent and
protect the interests of a child in a Juvenile Court proceeding. Similar
definition exists in the United States whereby Guardian Ad litem is defined as
adult person appointed by the court to represent a child's interests in judicial
proceeding. (The phrase means "Guardian at Law"), in some jurisdictions
called the "Next Friend. “
15

for the procedure and eligibility for being appointed as
Guardian Ad litem.32
It should be noted Guardian Ad litem is not a replacement
to professional advocates, but a cadre opted in the event it
has been impracticable to offer free legal representation to
the child and the child cannot afford to hire a private legal
practitioner. This makes it a point for the authors of this
article to call upon and remind practicing advocates of
their moral duty to give back to the community by making
themselves available for service in the existing Pro bono
Schemes33 whereby they will get an opportunity to
provide legal aid to the needy including juvenile
offenders. This call is made from the perspective that, the
number of children found in conflict with the law is
increasing and some are accused of capital offenses whose
proceedings involve technical legal matters requiring
qualified advocate to handle.
4.3.4 Judicature and Application of Laws (Practice and
Procedure in Cases involving Vulnerable Groups),
Rules, 2019 Government Notice No. 110 Published
on 1st February 2019
As a result of the ongoing initiatives in transforming the
Tanzanian Judiciary to become more citizens centric
promulgation of these Rules through mandate conferred
to the Chief Justice to make Rules for swift administration
of justice was made possible. The Rules are made to cater

32
Jones J., An analysis of the Situation of Children in the Juvenile Justice
System in Tanzania, Dar es Salaam: Tanzania Women Lawyers Association,
2019, at p. 54.
33
Tanzania Women Lawyers Association (TAWLA) and Tanganyika Law
Society have existing and operational Pro Bono Schemes.
16

for the needs of vulnerable groups which under Rule 3 are
stated to include children. The Rules require provision of
legal aid in proceedings involving vulnerable groups
whereby under Rule 10, it is stated that:
...in any civil or criminal matter, when it appears
to the presiding judge or magistrate that in the
interest of justice, a person with vulnerability
should have legal aid, that judge or magistrate
shall cause such person to obtain legal aid in
accordance with the Legal Aid Act.
This is yet is one of the commendable progresses made by the

Judiciary of Tanzania.
4.3.5 Legal Aid Act, 2017

Enactment of Legal Aid Act34 and its Regulations35 was a
remarkable milestone in recognition of provision of legal
aid services as a right and coordination of such service in
Tanzania. However, this does not suggest there was no
provision of legal aid services in Tanzania before 2017.
Having a peek down the memory lane, during the pre-
colonial Tanganyika, legal aid to indigent was made
available via Poor Prisoners Defence Ordinance under
specified conditions. After independence Legal Aid
(Criminal Proceedings) Act36 was enacted to repeal and
replace the Poor Prisoners Defence Ordinance. Both

34
Act No.1 of 2017.
35Legal Aid Regulations, 2018 Government Notice No.44 Published on 9th
February, 2018 The Legal Aid (Remuneration of Advocates) Rules, 2019
Government Notice No 109 of 2019.
36Act No. 21 of 1969.
17

legislations were aiding provision of legal services to
indigents in matters of criminal nature.
Since then initiatives to make sure comprehensive legal
aid service coordinated and available to those in need
have been gradually put in place. For instance the
National Legal Aid Forum in Tanzania held in November
2010 resolved and proposed to the government that: (a) a
national legal aid scheme should be established as a
hybrid model that includes both the public and private
sector; (b) an autonomous, independent legal aid
regulatory body should be established; (c) the position
and roles of legal aid providers including paralegals
should be clarified; and (d) the day-to-day running of the
independent legal aid regulatory body should be
independent of the government but the latter should
provide any support required. The government then
resolved to enact a comprehensive law on the Mainland
Tanzania on legal aid service provision within the
country, which also recognizes paralegals in the country.37
This resulted to enactment of the Legal Aid Act and its
Regulations in 2017, 2018 and 2019 respectively. That
being the case enactment of this law in 2017 was not a bolt
out of the blue.
Preceding sections of this article have articulated in details
international and regional norms and standard as well as
principal and subsidiary domestic legislations establishing
provision of legal aid as a necessary right to juvenile
offenders. Before making review on how the Legal Aid

37
Ngaiza C., et al, “Towards Coordinated Legal Aid Service in Tanzania,” The
Tanzania Legal Aid Journal, Vol.1, No.1, pp.85-118, at p. 89.
18

Act safeguard provision of legal aid services to juvenile
offenders, it is also important to take note of provisions of
Section 310 of the Criminal Procedure Act, procedural law
governing criminal proceedings which recognize a right to
defence through an Advocate.
Section 35 of the Legal Aid Act establishes an obligation to
a person charged with a duty to supervise welfare of the
child or in execution of his duties deals with a child who
has come into a conflict with the law to cause such child to
obtain legal aid immediately. Further, the Act under
Section 36 require Police Force or Prisons Services to
designate mechanism to ensure provision of legal aid
services to people accused or convicts in custody. It
however a fact that, the Law of the Child Act38 does not
allow custodial sentences to children but still, there are
children brought under the care of prisons facilities39.
With this understanding, Tanzania Prisons services issued
a child protection policy and procedures for children who
are under the custody of its facilities. The policy precisely
indicates that, every child shall have access to legal advice
and assistance.
5 Observation
Reading the preceding sections of this article one may note
that, in Tanzania an advocate, lawyer or paralegal provide
legal assistance to the needy in line with the laid down
rules and procedures. In making sure legal assistance is
made available to juvenile offenders through use of

38
Section 120 of the Law of the Child Act. (R.E 2019)
39
Ibid Section 119 (1).
19

traditional legal aiders40, another cadre Guardian Ad litem
is also recognized to represent a juvenile offender in
circumstance where a juvenile cannot afford to hire an
advocate or use the service of a legal aid provider. This is
one of the milestones to be celebrated. The department of
social welfare in each district within the country has been
tasked to recruit persons fit to act as Guardians Ad litem
under the Guardian Ad litem scheme. A special guide has
been adopted to regulate these services.
In the course of reviewing domestic principal and
subsidiary legalisations it can be observed that, the
Tanzanian legal framework extensively provides for a
right to legal representation to juvenile offenders and put
in place necessary procedures and coordination. It has also
considered the laid down international and regional
standards and norms on rights to children specifically
juvenile offenders. However, there are still in place some
flaws in the legal framework and deficiencies in
coordination of key stakeholders involved in juvenile
justice which hinder effective realization of access to
justice to juvenile offenders. Thus, there is a room for
improvement.
Standard and norms established in international and
regional instruments on children rights which has inspired
Tanzania domestic legislation on children rights require
children accused of criminal offences to be availed legal or
other appropriate assistance.41 Also, such instruments
emphasise that, whenever appropriate and desirable,

40
Advocates, Lawyer or Paralegal as circumstance allows.
41
Article 40 (2) (iii) of the Convention on the Rights of the Child.
20

measures for dealing with such children without resorting
to judicial proceedings should be promoted42 as an
alternative of diversionary programs. Hitherto, Tanzania
Law of the Child Act is lacking this important aspect
though it prohibits custodial sentences.
6. Conclusion
The foregoing discussions indicate a right to legal aid
services to juvenile offenders in Tanzania has been stirred
by various international and regional standards and
norms. Established by the Constitution and for smooth
implementation of that right, several principal and
subsidiary legislations have been enacted. These are
commendable efforts although an assessment on access to
this service by this group and the quality thereof should
remain a priority.
7. Recommendations.
(a) To the community
Prevention of juvenile delinquency is an essential part of
crime prevention in society. By engaging young persons in
social useful activities and monitoring their behaviour at
home, at school and in the streets, can develop non-
criminogenic attitudes in them. This includes monitoring
their engagement in harmful social media platforms. Thus,
community members should put in place preventive
measures to avoid children involvement in criminal
activities by upholding positive moral guidance.
Successful prevention of juvenile delinquency requires
efforts on the part of the entire society to ensure the

42
Ibid, Article 40 (3)(b).
21

harmonious development of adolescents, with respect for
and promotion of their personality from early childhood.
It is a universal fact that, provision of quality services is
determined by demand. When demand is high there is a
possibility of compromising quality. Legal aid service to
juvenile offenders might not be an exception in this;
therefore, preventing juvenile delinquency at the
community level is more appropriate.
(b) To Judiciary and relevant Government

Ministries and Departments
Progressive response to any legal and structural or
institutional challenges requires availability of vital data,
evaluation of what exists on the ground by embarking on
studies so as to make informed decisions on which
adjustment to be made. Studies on criminal justice system
related to juvenile delinquency are not an exception. There
is lack of enough disaggregated data on the number and
nature of offences committed by children, availability of
appropriate services including legal aid and sanctions
imposed on them in different localities. Such information
is needed to craft useful solutions related to provision of
appropriate services including legal aid to juveniles.
(c)To Judiciary and Social Welfare

Department;
Strengthening coordination of key stakeholders in justice
delivery system involving juvenile is another area to be
worked upon. Legal framework on juvenile justice
recognises social welfare officers as one group of key
stakeholders in the process. However, the current
22

situation indicates the presence of possible limitations and
challenges on the part of social welfare department in
executing its duties as required by the law in the chain of
justice delivery. For instance, in the case of Furaha Johnson
v. Republic 43 the Appellant a minor charged with rape
before the District Court of Moshi had unsatisfactory trial
whereas he was convicted and sentenced to life
imprisonment. Aggrieved with the decision he
unsuccessfully appealed to the High Court, hence, the
appealed to the Court of Appeal. During hearing of the
Appeal, it was indicated that, despite the fact that the
Appellant was a child under the provisions of the Law of
the Child Act, his trial before the trial court was conducted
in the absence of the Social Welfare Officer contrary to the
requirements of provisions of Section 99 (1) (d) of the Act.
The Court nullified the Appellant’s trial, conviction and
sentence, and proceeded to quash and set them aside.
Moreover, the Court ordered the immediate release from
prison of the Appellant, who had been under custody for
almost six (6) years, unless he is otherwise lawfully held. It
was held further presence of a Social Welfare Officer is
one of the conditions precedents for conducting valid
criminal proceedings against an accused child whereas the
requirement is mandatory and if not observed incurable.
Possible causes of limitations resulting to this kind of
miscarriage of justice might require a thorough study to
address the same. However more importantly, adequate
resources allocation might be a quick remedy to the
situation. Measures should be put in place to coordinate

43
Criminal Appeal No. 452 of 2015, the Court of Appeal of Tanzania at
Arusha, (Unreported)
23

key stakeholders relevant to the criminal justice system to
ensure all appropriate assistance including legal aid is
availed to juveniles not only in urban, but also in rural or
remote areas.
(d) To Legal Aid Providers and Related Non-

Governmental Organizations
As a reminder to legal aid providers and related non-
governmental organizations, juvenile justice is one of the
abandoned constituencies. Therefore, they should pose a
constant reminder to the government that, international
and regional instruments which inspire domestic
legislations on children rights, juvenile justice in specific,
put an obligation to state parties’ governments to
guarantee appropriate and sufficient legal services
including legal aid is availed to juvenile offenders.
Therefore, the same should extend survival incentives to
those whom it has offered an opportunity through the
legal framework to offer such services in the country to
enable them to serve as more as possible to this said
abandoned field.
(e) To Government
Further amendment to some laws is still a necessity that
goes along with ensuring their implementation. The Law
of the Child Act needs to be amended to incorporate
diversion programs to children accused of criminal
offences whenever appropriate without resorting to
judicial proceedings. This is not only for proper
rehabilitation of the child and deterrent of criminogenic
attitude on part of young person, but also, it will relieve
24

the judicial system with backlog of cases involving
juvenile offenders with petty offenses. Also, to cover the
gap on availability of social welfare officers, the law
should be amended to recognize the cadre of para-social
welfare officers at least at the stage of crime investigation
involving juveniles. This should go hand in hand with the
guide to identify necessary skills required and procedures
on their recruitment.
25

A LEGAL AIDER VIS-À-VIS QUALITY LEGAL AID
SERVICES: A PEEK OF EXPERIENCE
Cecilia Ngaiza*
Abstract
This article fits the legal aid platform as it targets legal aid providers
in mainland Tanzania and beyond. The provision of legal aid is
perpetual so long as the quest to attain effective access to justice for all
is up and running in the country. The author addresses the rather less
addressed issue of legal aiders’ encounters with an objective to
captivating their exceptional role in the legal aid field. This is an
experience-based article by a former legal aid officer discussing a
representative rudimentary state of legal aiders while highlight issues
with the potentiality to enhance the quality of legal aid provision in
the country. The article thrives to strike a balance between the existing
conducive legal aid policy and legislative environment on one hand
and the practical aspects of legal aid provision on the other hand. It
goes without saying that, one of the vital elements to accessing justice
via legal aid is having efficient individuals providing such services.
The article touches the legal aiders’ wellbeing to redirect the
stakeholders’ focus on this crucial aspect of legal aid provision.
Key words: legal aid services, legal aid provider, legal aid
officer/aider, legal aid client
*Assistant Lecturer, University of Dar es Salaam School of Law, LL.B (2014) &
LLM (2018) (University of Dar es Salaam), Advocate of the High Court of

Tanzania, E mail: ngaizacecilia@yahoo.com
The author is currently a member and a former legal aid officer under a legal
aid provider - the Tanzania Women Lawyers’ Association (TAWLA), a
domestic non-governmental organization with more than thirty years of
experience in legal aid provision in Tanzania. The article is based on the
author’s personal experience as a lawyer and later an advocate providing
legal aid under TAWLA; she therefore, owns any possible fault the reader
may find herein.
1
1.0 Introduction
The Legal Aid Act, 2017 “the Act” refers to an advocate,

lawyer or a paralegal attached to a legal aid institution
(hereinafter referred to as a “legal aid provider”) as
eligible person for the provision of legal services in the
country.1 This article specifically discusses such advocates,
lawyers and paralegals in their personal capacity also as
agents of institutions registered for the provision of legal
aid.2 The term legal aider and legal aid officer shall hereinafter
be used in alternate to refer to the said aforementioned
personnel that offer legal aid. Legal aid clients hereinafter
“clients” denotes indigent persons who have been afforded
legal aid by the legal aid providers.
Advocates provide legal aid services by the order of the court,3

through membership based institution i.e. the Tanganyika
1 Section 3 of the Legal Aid Act, 2017 defines an advocate as referred to by the
Advocates Act, Cap 341 of the Laws of Tanzania, as a person whose name has
been dully entered upon the Roll of advocates, a lawyer as a holder of
bachelor of laws degree or its equivalent, and a paralegal as a person
accredited and certified to provide legal aid after receiving a specialized
training or has qualified to be a paralegal by two years experience or holding
other qualifications provided for under section 19 of the same Act (bachelor
degree in any other discipline than law, diploma or certificate from a
accredited institution or any certificate of secondary education) and
subsequently undergone a qualification training prior to the commencement
of the Act.
2 Section 24 of the Legal Aid Act, id, stresses on the point that advocates,
lawyers or paralegals providing legal aid services ought to be attached to the

legal aid provision institution (legal aid provider).
3 See section 33 of the Act providing for legal aid by advocates through
express Court’s order in criminal matters. Also, in civil proceedings, a Judge

or Magistrate among others may for the interests of justice cause an indigent
person to be afforded with legal aid. See Section 27 of the same Act.
2
Law Society4 or other legal aid clinics. Lawyers may also
provide legal aid under the registered legal aid providers
like the legal aid committee and clinics in higher learning
institutions5 or clinics under the non-governmental
organizations.6 Paralegals are mostly attached with their
registered paralegals’ units, whereby, among other things,
they provide legal aid under the assistance of lawyers or
advocates working closely with such units. Examples of
currently functioning paralegal units are the Morogoro
paralegals’ Unit in Morogoro region, Equity Paralegal
Unit in Manyara region, Azimio and Sauti Zetu Paralegal
Units in Arusha among many others. While the
practicability and necessity of legal aid provision in
Tanzania escalates due to the long term efforts put by the
government and non-governmental organizations to
sensitize the society on the available legal aid avenues;
legal aid providers are persistently overwhelmed by the
duty to deliver quality legal aid services across the
country. Apart from the challenge to legal aid provision
related to lack of sufficient legal expertise facing the legal
aid providers, shortage of funds has been spotted as
another setback to the provision of effective legal aid
4The Tanganyika Law Society (TLS) through its Legal Assistance Committee
gives legal aid briefs to its members.

5For example the University of Dar es Salaam Legal Aid Committee, the
University of Dodoma Legal Aid Clinic (UDOM-LAC), Faculty of Law of the

Open University of Tanzania and Moshi University College of Cooperative
and Business Studies legal aid clinics.
6 For example Tanzania Women Lawyers Association (TAWLA), the Legal
and Human Rights Centre, Women Legal Aid Centre (WLAC), Women in
Law and Development in Africa (WiLDAF);the Disabled Organization for
Legal Affairs and Social Economic Development (DOLASED); Lawyers
Environmental Action Tanzania (LEAT) and Legal and Human Rights Centre
(LHRC).
3
services in the country.7 The foregoing legal expertise
challenge has however to a great extent been addressed by
the Act which has brought into place more coordination in
the legal aid field in Tanzania. Financial challenges are
still tackled via external donor funds and internal
donations by among others, charitable organisations,
though the assistance offered is not sufficient. One of the
crucial setbacks to delivering quality legal aid services
which has often been given less attention, associates with
the legal aid officers’ internal and external prevailing
circumstances affecting their service delivery. Before
embarking into such circumstances, it is important to first
discuss the benefits that an advocate, lawyer or paralegal
gains by offering to be of service to the legal indigent
persons.
2. Legal Aid Provision: A Rewarding Experience
2.1 Giving Back to the Society
For a lawyer, an advocate or a paralegal who has grown-

up experiencing or to experience enormous injustices in
his or society; it becomes quite fulfilling for him or her
being part of the solution to such injustices through
delivery legal aid services. Section 72 (1) (a) of the
Advocates (Professional Conduct and Etiquette)
Regulations, 2018 bestows upon an advocate a
professional duty to charge his or her client a reasonable
fee for the services rendered. However, one’s ability to
waive this etiquette requirement in the name of promoting
access to justice is the most peculiar tenet in giving back to
7Tanzania Network of Legal Aid Providers (TANLAP), Report on the State of

Legal Aid Provision in Tanzania from 2013 to 2015, at pp. 26-29.
4
the society. One’s willingness and drive to freely serve the
needy from his or her professional expertise without
having to expect any benefits in return is the decision to
paying back (however little) what one has received from
the society as he or she was cultivating his or her
carrier. The best part of this experience is the feeling of
fulfilment that can only be attained if one literarily
practices legal aid.
2.2 Raw Professional Exposure
Practising legal aid offers a fresh advocate, lawyer or a

paralegal a wider opportunity to interact with clients, i.e.
one-on-one physical interaction on various fields of law.
This experience nourishes a legal aider’s ability to adapt to
the practical aspects of the legal profession. Here, the legal
aid officers get an opportunity to apply theoretical skills
and accumulated knowledge obtained in the classroom
through physical attendance of clients. In addition, the
same officers undergo a great deal of experience in a short
period of time due to the existing unbalanced scale of
number of clients compared to the available legal aid
providers. There is practically a daily ratio of 1:3 to 1:6
between one legal aid officer and a number of legal aid
clients he or she attends. In some occasions, the ratio may
shoot up to 1:8 a day.8 For example, TAWLA’s Annual
Report, 2018 shows that a total number of 9,502 legal aid
clients were attended from her five offices distributed
across the country i.e. in Dar es Salaam, Arusha, Dodoma,
8 The author’s experience as a legal aid provider with Tanzania Women
Lawyers’ Association (TAWLA): 2014-2016 as a lawyer (Dar es Salaam Legal

Aid Clinic) and 2016-2017 as an advocate (Arusha Legal Aid Clinic).
5
Mwanza and Tanga.9 These offices attend clients
throughout the working days.
Not only do the clients admitted for legal aid in legal aid
clinics have varying legal problems, for example,
matrimonial, probate, civil, land, civil, tort and labour
cases; but also, the same category of cases contains
varying facts. This is undeniably an enormous practical
exposure for legal aiders to a vast area of ground
experience.
2.3 Growing Soft Skills Muscles
Attending legal aid clients improve legal aid officers’

communication (listening, writing, reading, speaking)
negotiations, reconciliation, note-taking, case analysis,
emotional intelligence, organizational and time
management skills. It is generally understood that it takes
a lawyer more than legal theories taught in class to
become “fit and proper” to deliver legal services.10 He or
she requires practical skills to complement such theory.
The uniqueness in this practice starts the moment the
potential client walks in the legal aid provider’s door. It is
upon the legal aider’s examination and communication
9 Tanzania Women Lawyers Association (TAWLA), Annual Report, 2018,
page 15. It is however important to note that, the number of clients attending
these offices is not evenly distributed due to varying circumstances in each
region, for instance, cultural practices, stereo types and infrastructural
conditions.
10 See Van Zyl CH. IV and Visser J., “Legal Ethics, Rules of Conduct and the
Moral Compass: Consideration from a Law Student’s Perspective”, 19

PER/PELJ, 2016, at p.5. Available at
http://dx.doi.org/10.17159/17273781/2016/v19ni0a795

6
skills to determine the client’s eligibility for such aid
without having the client feeling interrogated or
discriminated from the service.11 This requires an
additional skill than directly posing a question as to what
amount the client earns or whether he or she is at all
engaged in any financial activity. Furthermore, it is upon a
legal aid officer’s ability to act with care, for example,
meandering his or her way to determining whether the
potential client is physically disabled or mentally stable,
perhaps by a kind gesture of a brief fictitious story or
statement connecting to the question intended. This is
rather gentle than strictly asking the client “are you
physically disabled?” or “do you have any children?”
without knowing whether such client is or is not with an
ability to bear children at all. Clients’ examination is the
best ground to practice “watch your tongue principle”.
This skill is essential to place both the legal aider and the
client in a sustained and harmonious interaction
throughout the case.
Past the eligibility test, the legal aid officer thrives with
tactics to ensure the client that, the services he or she is
exposed to do not attract any financial or other materials’
obligations and, the same equals in quality with the one he
or she could have received from a private paid legal
practitioner. This is a very important stage of attending a
client. It clears doubts from the indigent person of the
nature of service he or she is about to receive. The step
11 Each legal aid provider has its style of determining the potential aided
person’s eligibility. Section 21 (3) of the Act provides that legal aid by a
potential legal aided person should be assessed according to each legal aid
provider’s procedures. This is often done through a client admission form
which a client fills, sometimes with a legal aid provider’s assistance.
7
invites to the client’s mind readiness to cooperate with the
legal aid officer in the next stages of the case, something
which also makes the legal aid officer’s work easier. As
much as the foregoing stage attracts distinguished skills to
set the client for the case, the expertise to extract and
analyse relevant facts from the client as well as responding
to his or her needs is to be effectively exercised so as to
balance time intervals between one client and another.
Some legal aid clients may have suffered severe injustices
and went through prolonged procedures before landing
on the hands of legal aid providers. This is often due to
ignorance of the law or legal procedures to follow. The
narration of one client’s story may consume quite a long
time to only realize at the end that, the cause of action
narrated has been overtaken by events and is incurable.
This is an invitation to a legal aid officer to demonstrate a
high level of tactics to balance the client’s and legal aid
provider’s interests, i.e. advising an alternative path
versus avoiding misuse of legal aid provider’s services to
prolong legal procedures particularly, litigation.
Negotiation and reconciliation skills apply when the

clients resort to settling their matters amicably. Here, the
legal aid officer is under the obligation to strike a balance
between his or her role as negotiator or conciliator and
protecting the clients’ interests. At times, it is a practical
challenge that, legal aid clients feel insecure when their
opponents to the negotiations or reconciliations are
represented by private legal practitioners or are with
stronger financial muscle. It is both the legal aid officer’s
skill and ability to master and stand by their client’s
interests without damaging the opponent’s chances of
8
coming into terms with the legal aid clients. The legal
aider may also warn him or herself from falling into
financial temptations on the way. This paves a way to
securing legal aid clients’ interests in negotiations or
reconciliations, at the same time, earning the legal aid
officer’s skills in such area of dispute settlement.
Equally important are organizational and time

management skills which are crucial to legal aid officers in
and outside legal aid clinics. This does not only add to
such officers’ personal development, but also, makes life
at legal aid providers’ clinics more manageable. In the
legal aid clinics, good management of time and clients’
cases reduce the risk of legal aid officers’ getting
overwhelmed by the workload. It enables the officer to
attend as more clients as possible and carry out other legal
aid activities such as training of clients for self-
representation in courts or tribunals (due to insufficient
number of advocates to personally appear in court for
each client), community sensitization on legal issues
(which equally improves legal aider’s public speaking and
community interaction), conducting mobile legal aid
which aims to extend legal aid services to the deeper roots
of the community) or development of internal and
external donor-funded projects’ proposals (which
nourishes legal aid officer’s creativity) with an objective to
strengthening non-governmental organization’s financial
sustainability.
Further, legal aid providers work hand in hand with other

administrative bodies apart from the judiciary in
implementation of indoors (attending clients, planning
and organizing outdoor activities) and outreach activities.
9
These bodies include but not limited to; the police gender
desk, social welfare office, banks, brokers, law firms,
fellow legal aid providers (paralegals, NGOs), schools and
universities’ administrations, villages and wards offices,
municipal or town authorities, district authorities, internal
and external donors. Dealing with such offices require
high mastery of correspondences including formal letters,
emails and calls. These interactive processes quite earn the
legal aid officers additional correspondence skills.
2.4 Societal Bond
Providing legal aid returns a prize to the legal aider which

includes the sense of belongingness to the society they
serve. This neutralises the stigma existing in the society in
connection with members of the legal profession; as it is
commonly termed; “lawyers are defenders of sin”.12
Rather, this makes legal aid providers part of solutions to
common societal problems, particularly legal problems.
This works even better for the paralegals who operates at
the grassroots level of the society in which they belong.13
Additionally, the attachment legal aid providers develop
with their clients makes it easier for them to work hand in
hand to smoothly access the justice sought. This stabilizes
the legal aiders’ approach to what they are dealing with;
however gigantic the legal problem may sound.
12 It is an obvious surprise to some members of the society that, offenders are
afforded with defence counsel or write to be heard.

13 Section 20 (2) (a) of the Act, supra, make it legit for paralegals to offer legal
in a national language, but also in any community’s local language taking

aboard the applicable community’s procedures.
10
3.0 Reciprocating the Reward
It is not a fact to ignore that, for a legal aider to continue

benefiting from the above experience, he or she also has to
reciprocate some qualities to the field. Such qualities are as
below discussed but not limited to:
3.1 Compassion
This is an engine driving the legal aid officers’ focus

beyond financial gains. It makes the legal aid practice even
more exceptional for those who volunteer their service.
Having a sense of empathy in the legal aid field is very
crucial and an expected trait to legal aid officers. It
reminds them of their duties to meet the needs of indigent
persons with no expectation of any benefits in return. It is
an obvious fact that legal aided clients regard the legal aid
clinics as their safe havens where they can deposit all of
their upsetting emotions. Also, financial and other social
needs by the clients are an additional obvious fact in such
clinics. It, therefore, becomes unavoidable for legal aid
providers offering clients in some situations, bus fare,
breakfast or lunches to enable smooth transaction of the
service. If one party to the service is hungry or not able to
reach where he or she needs to be on time to further
efforts to secure his or her justice, reasonable financial or
material assistance by the legal aid provider becomes
inevitable. This practice may not be very common to
private legal practitioners hence, making legal aid
provision more typical in the legal field.
11
3.2 Commitment
This trait may sound difficult to implement or maintain,

particularly with an obvious reason that one has nothing
to expect in return from the aided person. Commitment
encourages the legal aider to stick to the objective of
offering legal aid i.e. ensures the justice sought is accessed
and literarily obtained by the client. For instance, if it is
the case filed in court, the legal aider assists the aided
person from the stage of filing the case to the execution or
appellate stages (in case the client is aggrieved by the
court’s decision). Commitment necessitates legal aid
providers to have special days for client’s feedback.14 This
facilitates legal aiders’ ability to track down the
development of the client’s case and enhances his or her
drive to finalise the same. If a legal aider is not committed
and devoted to such call, he or she may apparently
encounter discomforts every time he or she has to embark
on offering such service. Such may weaken client-lawyer
relationship; whereby, the aided person may feel detested
and the legal aider strained, hence a high possibility of
miscarriage of justice in the due course.
3.3 Time
Provision of legal aid may require additional amount of

time to deal with clients. This is due to the nature and
modalities of rendering such service. For instance,
couching clients for self-representation before the courts of
14 For example, when the author was working with TAWLA, Tuesdays and
Thursdays were special slotted days for receiving client’s feedbacks from the
Court, land tribunals, marriage conciliatory boards, banks, social welfare
offices et cetera.
12
law may require additional time to re-train them on what
they have been previously trained as a matter of
refreshing their memories. This is because, having a
layman able to present his or her case in a focused manner
in court requires mastery of his or her anxiety, fear and
discomforts; such mastery calls for repeated actions of
coaching, encouragement and progress review. Moreover,
before filing documents in court, a legal aid officer holds a
duty to translate and explain to the legal aid client the
content of what is presented in such documents before
dispatching them. This exercise is time-consuming;
however, very important to enable the client to follow
closely the procedures of his or her case. Generally,
sufficient time is needed to meet the needs of the
blossoming number of indigent persons seeking to access
justice via legal aid. The said blossom is necessitated by
the number of successful cases handled by legal aid
providers15 and the increased active interaction of
paralegals with the community and other legal aid
providers. Paralegals play a great role in referring cases
that they cannot handle to other legal aid providers for
example cases calling for legal representation or involving
drafting of legal documents.16
3.4 Perseverance
There are circumstances in the provision of legal aid

calling for a persevering strength by legal aid officers. This
15 Legal aided persons have the tendency of bringing or directing to legal aid
providers more indigent persons in need of legal aid specifically when they
matters have successfully been handled by the relevant legal aid providers.
16 Section 20 (5) of the Legal Aid Act prohibits paralegals to engage in
activities reserved for advocates under any written law.

13
becomes relevant in situations when clients become part
of hindering their own justice. For example, when a client
does not bring feedback to the legal aid provider on time
for further assistance or loses important documents to
back up his or her claim, hence, a lost case. A situation like
this may be quite frustrating for the legal aider who has
made a commitment to ensure such client accesses his or
her justice.17 It requires quite a resolve on the side of the
legal aider to cure such setbacks caused by the client and
get the matter back up running with chances of success.
Additionally, clients may sometimes attempt to push their
expectations to the legal aid officers with the ignorance of
the fact that, legal aid service is a professional service
requiring observation of ordinary legal rules abided by
everyone in the field. For instance, a client may approach
the legal aid provider with a matter that is time barred,
hence attracting application for extension of time to file
such matter out of time. Dealing with the client who
attempts to deny his or her contribution to the delay of
court’s procedures or any other delay in his or case, may
appear irritating to legal aid officers. However, the sense
of perseverance by the legal aid officer throughout the
period of assisting the client to cure a client’s case, in this
case, application for extension of time, may serve the
lawyer-client’s relationship a great amount of ease in
transacting the intended service.
17It should be noted that, not all legal aided persons get an opportunity to be
legally represented in judicial bodies due to scarcity of number of advocates
volunteering to offer such service. Hence, most of them are trained to
represent themselves in Courts of law.
14
4.0 Noticing the Red Flags
In reciprocating the above mentioned qualities, the legal

aider may need to warn him or herself of the below
explained reflags that may be detected in course of
providing legal aid to indigent persons.
4.1 Mentally draining
Provision of legal aid may become mentally draining

when a legal aid officer ignores the fact that “one cannot
save the whole world, but can cast a stone across the
waters to create many ripples”.18 In circumstances when a
legal aider principally engages with desperate legal
clients, the legal aider may find him or herself dragged
into such state of desperation. This results into the legal
aider’s physical, psychological and mostly mental
instability. Desperation results into a legal aider’s belief
that he or she alone can solve the entire problem facing the
client even when her ability to do so is limited. The
aforementioned legal aider’s instability out of desperation
moves from worse to worst when things do not go well as
expected with resultant fatal effects.
4.2 Emotional Subverting
Emotions are expected to dwell in human beings. It is

therefore natural to some of the legal aiders to experience
waves of emotions while dealing with clients. This is
primary in situations when the legal aider is
knowledgeable of the client’s experiences or has witnessed
18A quote by a famous late global philanthropist Mother Theresa (20.08. 1910-
05.09.1997)
15
some of the incidents narrated by the client. For example,
a family breakup, loss of property, unfair termination
from employment, child violence or physical assault. The
fact that such experience may be resurfacing in the legal
aid officer’s mind as he or she keeps receiving clients with
a similar story to tell, may lead him or her to emotional
instability. This may result in the legal aider’s failure to
sustain his service with stability or approach client’s cases
with pre-existing inclinations. This jeopardizes the client’s
case as the legal aid officer’s ability to rationally extract
facts from the client, provide immediate guidance or
decide on the step forward becomes clouded with how
things transpired on his or her historical part. If this
continues to be the legal aid officer’s prevailing
circumstances in the provision of legal aid, the officer may
be emotionally wounded culminating to a gradual severe
compromised service
4.3 Prejudicing
This is common to some of the legal aid providers who

target specific categories of people in the society; for
example women, children, the elderly, or people with
disabilities. Such legal aid providers’ policies may
automatically influence legal aid officers who repeatedly
aid the same category of people by forming an opinion
about their clients. For instance, an opinion that their
clients are usually, victims of the situations reported i.e. a
child is always a victim and cannot cause harm to an
adult, or a woman is incapable of causing any crisis in the
family or loss of property. A legal aid officer, who has
formed this kind of opinion about his or her clients, may
miss out very important clues in the facts of the cases, or
16
may fail to objectively examine the aided person. Also,
this may become a problem in the parties’ reconciliations
sessions. The legal aid officer may reconcile his or her
client against the counterpart with a biased mind,
something that may lead to subjective conclusions. It is
however worthy a mention that, prejudiced services by
the legal aid officers may subsequently lead to frustrating
ambushing encounters.
On the other hand, legal aid officers may form a particular

opinion against the aided person. This happens when a
client becomes obstinate by his or her failure to observe
the advice and guidance given by the legal aid officer.
Also, in circumstances when clients are spotted
conducting forum shopping i.e. jumping from one legal
aid provider to the next (despite the assistance he or she
already have), or when others may intentionally spread
unjustifiable rumours about the legal aid providers or
administrative officers whom they think are not doing
their best to handle their cases. Such common rumours
may be the likes of “these lawyers do not receive money
from clients because they consider us poor hence can ruin
our fate at their own choice”. A legal aid officer may be
frustrated coming across such kind of information and
therefore, develops a negative perception of particular
clients. This circumstance automatically results into a
biased legal aid officer diminishing his or her focus on
solving the client’s problem.
4.4 Overwhelming
Legal aid provision may undeniably become so

overwhelming for a legal aid officer. This is due to among
17
others, the aforementioned existing unbalanced ratio
between the available legal aid providers and the demand
for legal aid services in the country. With the ratio of one
legal aid officer attending six to eight clients a day, a
backlog of work may automatically be positioned on a
single person. This is especially when the same person is
to prepare legal documents, represent clients in courts,
train clients for self-representation, reconcile adverse
parties and keeps admitting new clients. The picture
version of this may sound like pumping gas into the
balloon without expecting the same to burst at its elastic
limit. Such overwhelm of work may result in
mismanagement of clients’ attendance routine, delay in
filing of cases in the respective forums or frequent
postponement of appointments with clients. With these
circumstances at hand, skipping of meals and burning of
midnight oil becomes “a new normal” to legal aiders
while darkening the red to the flag of their compromised
ability to offer legal aid
5.0 Mentally Strong: Overtaking the Redflags
Despite the above stated reflags that may arise in the

course of provision of legal aid services, a legal aid officer
may keep up mentally healthy and sustainable in the
service if he or she constantly and necessarily:
5.1 Retreats
One step back from stepping onto “about-to-explode-

bomb” of mental drainage and emotional breakdown may
save the legal aid officer from living a life of steady
discomforts as he or she renders legal aid services to the
18
clients. The officer may opt to give him or herself some
time off; rests, reflects and regroups, when it becomes
evident that he or she is experiencing mental drainage or
emotional instability, having absorbed so much than his or
her ability to bear from the working environment. A legal
aid provider should not feel guilty for embarking on this
damage control mechanism. Such self-help move will
enable him or her to return back to work mentally and
physically strong with vigour to proceed with offering
quality services to legal aid clients. This bold move is
however difficult to some officers especially when they
had formed a particular bond with their clients; whereby,
it sounds difficult to break from meeting them and
chasing the progress of their cases. This is actually a good
practice, but should not cost the legal aid provider’s
wellbeing to take some time off.
5.2 Consult, Report and Delegate
Consultation and reporting on matters that are out of the

legal aid officer’s reach may save him or her a great deal
of mental over tasking. This will absolve such legal aider
from a delusional belief that he or she can be the “sole
Messiah” to clients’ problems and enable him or her to
learn from others. One legal aid provider may consult
another with more expertise or resources to deal with the
client’s matter. For example, paralegals may choose to
consult on complex legal issues from experienced lawyers
or advocates. Reciprocally, lawyers and advocates may
consult the paralegals or traditional leaders within their
localities on the probable applicable procedures to a
particular community that have legal implications. There
are also specialized legal aid providers who specialise on
19
specific areas of law for example, the Legal Assistance to
Victims of Accidents (LAVA)19 who particularly deals
with assisting victims of accidents. Consultation may also
be conducted at the legal aid provider’s level where, the
legal aid officer prefers to discuss with his or her
colleagues legal issues he or she finds complex or difficult
to comprehend. Requesting a colleague to proofread
documents before dispatch may as well save legal aid
officers a great deal of encounters like struck out of
applications for wrong citations or sending ambiguous
communications to the targeted forums.
With regard to reporting, matters like criminal offences

should be reported to the relevant authorities i.e. the
police.20 When the matters out of reach by the legal aid
officer have already been reported in the relevant
authorities, it is candid for such officer not to interfere
with such authority’s mandate to deal with the reported
matter, but rather, making a close follow up together with
the aided person to ensure development towards
accessing the justice sought. Constant interference by a
legal aid officer with the mandates of other authorities
may disrupt the flow of the client’s case in such authority
(ies) and may lose the meaning of reporting the client’s
matter to the responsible authority (ies) at the first place.
This is because; his or her reporting move will be equal to
19 See http://www.tnnc.go.tz/ngodetails.php?applicationid=310 for more

details about LAVA. Accessed on 19.04.2020.
20 Section 7 of the Criminal Procedure Act, 1985 imposes duty to the citizens to
report to the police any offence or intention to commit an offence or

occurrence of any death. If a legal aid officer receives any information in
relation to commission of any criminal offence he or she is ought to advise the
aided person to immediately report such matter to the nearby police station or
assist him or her to do so if such exercise is yet to be done.
20
zero or rather minus zero by an additional responsibility
to surpass other authorities’ responsibilities.
Further, delegation plays a great role in solving client’s

matters on time. It is commendable for an overwhelmed
officer to trust and delegate tasks to his or colleagues
when time is no longer on his or her side or when he or
she feels drained by the number of responsibilities
pending on the desk. This definitely enables the legal aid
officer not to fall to a breakdown and continue to serve the
society in a less tense atmosphere.
5.3 Serve Out of Clients’ Shoes
When a legal aider provides services without positioning

him or herself in the clients’ shoes, he or she stands
chances of rendering such services objectively. Stepping
into the clients’ shoes may subject the legal aid officer in
situations that may either delay or defeat access to justice.
A legal aider who has undertaken the client’s position in
the case will act with the same level of desperation as the
client. For instance, advising the client to bypass or
circumvent some procedures in order to rush accessing
the justice sought. In terms of litigation for example, the
desperate legal aider may reach to the extreme cases of
advising the client to produce fake witnesses or
documents in court when the original ones are out of
reach just to speed up the proceedings, instead of taking
time to procure the original or authentic ones. This may
have serious negative consequences to the case as well as
defeating the lawyer’s duty to the court. If such kind of
maneuvers does not bear any fruits, the legal aider in this
case becomes more and more frustrated and mentally
21
consumed by the fact that his desperation after stepping
into the client’s shoes has actually suffocated the justice
sought. Justice hurried, justice buried.
5.4 Operate Out of “Business as Usual”
It may be a common practice for a legal aider to approach

cases of similar nature with a certain trend of opinion if he
or she has dealt with such particular cases for a longer
period of time or in higher frequency. This may be
harmful in assisting the client to reach a reliable solution.
For example, in matrimonial cases, a legal aider may
categorise or make it obvious to advice the client to file for
divorce even when such case’s circumstances call for a
separation. Eventually, when it becomes a fact that the
legal aider should have treated each case differently, it
may be too late to revisit the path taken, hence loss or
delay of justice to the client with probable distress to both
the aider and the aided person.
5.5 Organise
A legal aid officer is better placed if he or she organises his

or her work schedule to avoid being overwhelmed by
tasks to attend. This includes drafting legal documents
and other correspondences in order of their urgency,
avoiding collision appointments with clients, strict
adherence to break time, meals and time to leave work.
The organization also includes maintaining clients’
records. Emphasis needs to be added here as one of the
challenges to legal aid provision comes with the clients’
tendency to alter their original stories and losing
22
important documents that form a substantial part of their
claims. In other occasions, a legal aid officer may be
overtaken by the desire to assist his or her clients to the
extent of attending them by the corridors, door-steps or
car parking. Attending clients in such manner may invite
loss or distortion of client’s information; for example
contacts, case numbers or pleading’s filing dates being
written on the legal aid officer’s palm, piece of paper or
handkerchief which can be easily misplaced. In this case, a
diary with a client behind the officer’s desk could save a
lot of inconveniences resulting from the aforementioned
disorganized practices.
5.6 Practice Ethics
Lack of legal ethics by legal aid officers may occasion “a

complicated relationship” between the legal aider and the
client. It is quite unhealthy for delivery of effective legal
aid service when the “legal aider-legal aided” relationship
is shattered. Such situation may be caused by unethical
commissions or omissions by the legal officer which may
sound “minor” but occasioning major difficulty in dealing
with clients. These include: extreme unofficial
presentation of legal aid officers to clients, eating, eyes on
the phone, chewing bubble gums or having headphones
with the music on while attending clients, baptizing
clients degrading titles like “the stubborn”, “the
complicated”, “the time waster” or “the have not”,
“maskini jeuri”, “gossiping” about the previous client’s
case while having a packing number of waiting clients on
a row, and the like. These acts will have the client link
such treatment with his or her inability to hire a private
legal practitioner. Consequently, a legal aid officer starts
23
noticing approximate attitudes from the clients or poor
cooperation. This may bother the said officer to uprightly
continue the smooth interaction with the client, hence, a
possible barrier to accessing justice.
As a matter of etiquette, it is also unethical to promise the

client “the impossible”, something which is out of the
legal aid provider’s reach. This will raise the client’s
expectations as to the outcomes of the case, and unluckily,
the promise may eventually turn into ashes; for example,
assuring the client before litigation that his case is going to
be 100% successful. Here, if the results turn out different,
the legal aid provider falls victim of his blown up hopes
instilled to the client and may carry forward the urge to
prove him or herself right to the client at the appellate
stages. This overly consumes his mind and upset his
stability to attend other clients effectively.
When it comes to incentives for the legal aid officers,

material or financial benefits from clients may backfire
with the resultant effect of encroaching the legal aider’s
reputation. Ethically, incentives (if any) to the legal aid
officers may correctly come from the legal aid providers
themselves, depending on their capacity to reasonably
offer the same. Accepting gifts or any other benefits from
the client as a condition to offering effective legal aid
service for example; drafting the legal documents or
embarking on court representation is totally unethical and
highly discouraged. Nevertheless, in some circumstances,
it is the clients who offer such benefits to the legal aid
officers’ believing that, doing so may increase their
chances of success in their cases. Incentives like a packet of
maize, beans or sometimes avocados, eggs and chicken
24
may form part of the incentives’ list offered by clients. If
this is “normalized”, the objective of legal aid provision
faces a great defeat. Clients’ mentality becomes
compromised in a way that, they will always have to think
of playing the rule, offering something, to receiving
something “quid pro quo”. When a legal aid officer has
reached the extreme of accepting benefits from clients to
render the intended services, the same may opt to
communicate his or her financial difficulty to the
responsible figure where he or she is stationed at rather
than attaching such responsibility to the clients.
6.0 General Recommendations
6.1 Legal Practitioners
Members of the legal fraternity may make it an important

point to volunteer their services to aiding indigent persons
as much as it is possible for them. They may consider this
move as part of giving back to the society as well as part
of their duty to the public in which they belong. This will
increase manpower in the legal aid field, hence, increased
access to justice in the country. As stated above, the ratio
of 1:6 to 1:8 between legal aider and the aided persons per
day is quite strenuous for legal aid providers. As it was
pointed earlier, the lesser overwhelmed it is for a legal
aider, the more stable he or she becomes. Therefore, more
advocates, lawyers and paralegals are needed to enhance
the quality of the service rendered by legal aid providers.
This applies to both individuals who are in private
practice and government departments, as long as all the
practising conditions are abided to. The best test for
engaging oneself in this kind of legal commitment should
25
be, “the swapping positions test” between the potential
legal aider and the indigent persons. This teaches the
potential or the incumbent legal aider of how important
and humane it is when one extends a hand in times of
utmost need without having to expect anything in return.
6.2 Legal Aiders
Apart from observing the legal professional ethics and

healthy lifestyle like getting enough rest and taking meals
on time among other things, every legal aider should
thrive to educate him or herself on a daily basis on the
recommended practices of offering legal aid services,
communication skills and organizational skills. Part of this
information is available for free online. Most of all, legal
aiders are not absolved from updating themselves on
what is happening on the ground in the legal practice.
This includes, following up and reading periodically
issued courts’ decisions and ever changing laws,
specifically the ones touching on cases that are recurring
in the legal aid clinics; for example, decisions and laws
touching on matrimonial, land, probate, civil and criminal
cases. Personal development efforts during engagement
with legal aid provision is very crucial to substitute
insufficient induction seminars or trainings by the legal
aid providers due to the accustomed insufficient funds to
accommodate overall financial necessities of running legal
aid clinics.
6.3 Legal Aid Providers (Institutions)
For legal aid providers to continue having mentally strong

personnel who offer quality legal aid services to the aided
26
persons, periodic, well organized and affordable retreats
like office weekends getaways, hiking, physical exercises
may be preferred to freshen up legal aiders’ minds and get
to share challenges and ways forward in the course of
delivering services to the clients. This strategy may also
play a role of reducing “the in between working hours
story tellings” amongst themselves also repairs any
broken good relationships or communication amongst
themselves. Likewise, one on one or group mentorship
sessions may be organized whereby, the experienced legal
aid officers get to mentor the incoming ones at the office
level. This may again act as unofficial orientation seminars
that not all the legal aid providers may afford. For
example, the legal aid providers like the Tanganyika Law
Society or the Tanzania Women Lawyers Association who
are membership based, may volunteer some of their
experienced members to mentor and train the young
volunteers in the field within and outside their clinics.
6.4 Stakeholders
Since provision of legal aid can be defined in a wider

range of access to justice, such field has enormous
stakeholders that may support the legal aiders to remain
mentally strong in deliverance of the legal aid services.
The courts of law may continue supporting the efforts of
legal aid providers and ensuring the rights of legal aided
persons who represent themselves before the judicial
bodies are safeguarded.
Legal aid providers should assist one another as much as

possible to ensure justice for indigent persons is attained
timely with no unnecessary delay. When one legal aid
27
provider is overloaded by clients or inability to solve a
particular problem, the other legal aid provider may
assist. This applies mostly with the paralegals who may
face several cases calling for legal drafting of documents
or court’s representation. When there is a necessity to
transfer clients to the nearest legal aid provider from
where the client lives or can easily access the court, such
transfer should be advised and supported to save the
clients’ costs and time to travel a long distance seeking for
legal aid in an away stationed legal aid provider.
The police, social welfare offices, marriage conciliatory

boards, government offices from the local government
level should highly support the efforts of legal aid
providers in promoting access to justice in the country by
offering them maximum cooperation with no delays. The
mentality that, if an office successfully assists to solve an
aided person’s problem earns credibility in the society
than others should be discouraged. The stakeholders
should collectively work together with the mentality of
meeting their original objectives. It is more practical for a
legal provider to legally assist an indigent person when
there is good cooperation between such provider and
other relevant stakeholders.
Internal and external donors may continuously be

encouraged to fund the legal aid clinics programs to
improve the quality of services provided. The funds may
be directed to improving the essential facilities for the
legal aid officers, maintaining sustainable professional
training, enhancing personal development and evaluation
sessions. These particular activities require experts for
facilitation. In lieu of consultation fee, a legal aid officer
28
gets to grow professionally for not only his or her own
benefit, but also for the entire community’s good. This
goes hand in hand with the legal aid providers’ reciprocal
reports and statistics on how the donations provided have
met the intended purposes; an element which is crucial for
financial accountability.
7.0 Conclusion
Provision of legal aid cannot be said to be exceptional to a

certain category of people in the legal fraternity. So long as
one has the required knowledge, ability, commitment and
is able to make time in his or her life’s schedule, he or she
can assist one or more of many indigent persons in the
society. What is herein may sound repetitive to some of
the former or current legal aid officers. At the same time,
this content may appear alien to some members of the
legal profession. The need for members in the legal
profession to share experiences with the view to
improving services rendered to the public is crucial for
upgrading access to justice in the country. This article
serves the purpose as it highlights how crucial legal aid
provision can be to an advocate, lawyer or a paralegal,
possible setbacks and how the same can be tackled. The
authors’ legal aid experience with Tanzania Women
Lawyers Association has proven how of strong legal
foundation volunteering in legal aid clinics can be in
shaping the legal career of a fresh law graduate.
29
JUDICIAL SYSTEMS IN ACTION: APPROACHES,
AND PRACTICES ON WOMEN’S LEGAL
EMPOWERMENT IN TANZANIA
Dr Francis M. Magare ∗
Abstract
While the law is an essential tool for advancing women's and girls’
rights and equality, a robust and effective “legal system” based on the
rule of law is central in assisting women to become equal partners in
decision-making and development. The notion of judicial systems in
action with regarded approaches, and best practices in this context, is
responding onto to the roles of the judicial machinery in the process.
The role of the judicial system in advancing the rule of law and access
to justice is immensely vast. This paper revisits various approaches to
women empowerment in Tanzania. Taking various cases in Tanzania
with a comparison with some other countries in Africa it is direct that
the judiciary has established a robust precedent with approaches to
legal empowerment generally and specifically women’s legal
empowerment. These manifest in judicial activism and utilization of
various legal empowerment bearings. The vastness of the plight of
women with marginalization born in the legal framework, the absence
of specialized family courts within the judiciary and bearing of law
embracing customary rules are among practical gaps against which
much more engagement is wanting.
Keywords: Judicial System in action, Women’s Legal

Empowerment, Substantive Justice, Judicial activism, Human
rights lenses, and Specialized Family Court

∗
Francis M. Magare, Ph.D. (Candidate at China University of Political Science
and Law, International Law) is a Practicing Advocate of the High Court of
Tanzania and Subordinate Courts thereto .LL.M (University of Dar es Salaam
School of Law). Serving as fulltime consultant in the legal Aid Desk of the
WiLDAF- Tanzania, His email for communication is francis.magare@gmail.com
1

1. Introduction
Amongst the African States and elsewhere in the world,
regardless of several technical and pedagogical make of
the judicial machinery mould with human rights lenses,
and judicial activism in certain extents, I can be assertive;
the Court in Tanzania has fairly established a record of
some approaches and practices, best on women’s legal
empowerment.1 The traditional roles of construction and
application of the laws in settling various questions of law
endorse the argument that judiciaries do “walk the talk”
of states’ adherence with both domestic and international
legal obligations. In the dualist relationship between
international law and municipal law in the legal system of
Tanzania, the High Court has passively incorporated the
rules of international law and has construed the same in
domestic situations.2 The judgments of the courts have
provided a sound precedent and in the circumstance
rationale for the women's and girls' empowerment.
Now, in the given theme, judicial systems in action, this
short piece, describes, albeit in brief, several remarkable
practices on women’s legal empowerment. It forms the

1 See, for example, various cases cited in TWJA, “Divergent Paths: Family
Social, Relations, Gender and Law” in the Gender Bench Book on Management of
Gender-Based Violence and Violence Against Women and Children, (2019) (Draft
Copy in the custody of the Author) pg 105- 114
2 Example in Bernado s/o Ephraim vs. Holaria d/o Pastory [1990] TLR 106;
Transport equipment v. Valambhia Civil Application No.18 of 1993, Court of

Appeal of Tanzania at Dar es salaam (unreported); Mtefu v. Mtefu Civil
Appeal No. 214 of 2000, High Court of Tanzania at Dar Es Salaam, Jan. 20,
2003 (unreported); Chilla v. Chilla Appeal No. 188 of 2000 High Court of
Tanzania at Dar Es Salaam, (Unreported); Juma v. Kifulefule Civil Appeal No.
247 of 2001, High Court of Tanzania at Dar Es Salaam, Jan. 6, 2004
(unreported)
2

major four parts succeeding in this introductory part. The
second part is the branded entry point, which builds on
the plight of women in access to justice, reviewing various
cases on what has happened so far.
This follows the epitome, which relevantly demonstrates
the model approaches and best practices of judicial work
in women’s legal empowerment. Fourth part loads the
gaps in judicial practice and showing the exit strategy,
formed inter alia with the need for CSOs campaigns and
engagements with the conclusion.
2. The Entry: Women’s Plight in Access to Justice
Despite investment in programs to strengthen the rule of
law and access to justice, it is a fact, the rule of law
continues to mean very little for the very vast of women
and girls in our societies. There is a show to date that
women face structural and cultural barriers to access to
justice in multisided ways. Just to discuss a few:-
Firstly, there is insufficient knowledge of rights, remedies;

inadequate resources moreover, time to participate in
justice processes on the part of women.3 These are
attributing to the fact that women do more often than not
in intensive family responsibilities, most of which are
unpaid work.4 Also on cultural beliefs that render women
non-dominant in the patriarchy systems.5

3 See, IDLO, Access to Justice: Models Practices and Best Practices on Women’s
Empowerment, Viale Vaticano:International Development Law Organization

(IDLO), (2013) Pg 17
4 See, World Bank Group (WBG), Women, Business and the Law Report, 2018,
Washington, DC: World Bank. Available at.

3

Secondly, uneven outcomes from the formal justice system
in those areas, where women can access the same are yet
another remarkable plight. The outcomes of the process
often fall short of those envisaged by international human
rights standards, which dictates, “All persons are equal
before the law and are entitled without any discrimination
to equal protection of the law”.6 While the law prohibits
discrimination and guarantees to all persons equal and
effective protection against discrimination, the application
of rules of customary laws, some of which are gender-
biased, to the larger extents have rendered this good rule a
far-fetched.
The intensity of this plight is particularly concerning

property rights, especially the succession of land rights in
intestate demises, divorce, and child custody. Others
manifest in sexual violence and spousal abuse or by way
of Intimate Partner Violence (IPV.)7
The data on the extent of the problem, of course, vary

amongst organizations. For instance, while the World
Bank Group (WBG) Women, Business and Law

https://openknowledge.worldbank.org/handle/10986/29498 License: CC BY
3.0 IGO.
5 See, WILDAF, Inception Report on Wanawake Sasa Project to (in the custody
of the author) 2019 (Upublished Report)

6 See, UN General Assembly, International Covenant on Civil and Political
Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171,
article 26; See also McDougal, Myres S., and Gerhard Bebr. “Human Rights in
the United Nations” American Journal of International Law 58, no. 3 (1964): 603–
41
7 IDLO, supra (n) 3; also WiLDAF Tanzania, Rule of Law and Access to
Justice, infra
4

Report 20198 attest to the progress towards gender equality
over the past decades. The Organization for Economic
Cooperation and Development (OECD) Social Institutions
and Gender Index found out that of the 112 countries
scored in 2012, 86 had discriminatory laws or practices
concerning property and inheritance.9
These corroborate among others, the report undertaken by

the UN Secretary-General in 2006, which though taken a
long time ago, found that an average woman holds only
15 percent of land titles in countries where data is
available.10 In family law, for example, the report found
that women continue to have difficulties in receiving fair
treatment in the areas of marriage, divorce and child
custody.
Thirdly, many justice systems, Tanzania inclusive, do not

treat acts of gender-based violence as a serious criminal
offence. Instead, they consider them a family matter, the
guilty of which imposition of a fine against the offender
suffices the whole purposes of the law.11

8 WBG, Women, Business and Law Report; A decade of Reforms, New York
World Bank Group, (2019) pg 2

9 OECD Development Centre, Social Institutions and Gender Index:
Understanding the Drivers of Gender Inequality (2012) 4,

<http://www.genderindex.org/content/team> Last accesed on 28th August
2019
10 UN General Assembly ‘In-depth Study of all Forms of Violence against
Women: Report of the Secretary-General’ (6 July 2006) UN Doc

A/61/122/Add. 1 (318)
11 See Tanzania Women Lawyers Association (TAWLA), Review of Laws and
Policies Related to Gender-Based Violence of Tanzania Mainland, Dar es Salaam:

TAWLA (2014) pg 6
5

As one aspect of dealing with the plight, the laws need to
criminalise violence against women and codify the rights
of women to live free of violence.12 Laws can play an
important symbolic role, by indicating that such
behaviour is socially unacceptable. It is, of course, difficult
to observe which is more effective, use of criminal law or
just awareness rising though we do have indirect evidence
on both fronts. Legislation can also be responsive to
victims, by providing for protection and access to support
services.
Quite contrary to the expectation, by either choice or

through necessity, many women, especially those living in
the countryside, do not receive appropriate good ends of
justice.13
The combination of formal and informal justice systems

seems not to work well for women and children. Such
informal or ‘customary’ justice systems, which often exist
alongside formal systems of law, are not gender-sensitive,
resolution of the majority of the cases taking informal
justice systems has maintained the status quo on the
patriarchy system.14

12 Klugman, J., Background paper for World Development Report 2017 Gender based
violence and the law, available at

http://pubdocs.worldbank.org/en/232551485539744935/WDR17-BP-
Gender-based-violence-and-the-law.pdf(Last accessed on 21.07.2019)
13 See, the International Commision of Jurists, (ICJ) Sexual and Gender Based
Violence, Fair Trial Rights and the Rights of Victims Challenges in Using Law and
Justice Systems Faced by Women Human Rights Defenders, Geneva: ICJ (2015) pg
33
14 C A Odinkalu, ‘Poor Justice or Justice for the Poor? A Policy Framework for
Reform of Customary and Informal Justice Systems in Africa’ in C Sage and M

6

It is important to recognize that some national legal
systems, often following the attainment of political
independence, have integrated informal justice systems
into their wider legal and regulatory frameworks. 15 For
example, the customary rules and Islamic law, which are
applicable concurrently with statutory laws in several
states, Tanzania inclusive.16
Despite their shortcomings, it is a position in Tanzania

that the rules of customary and Islamic law apply in
matters of status, and civil nature subject to the written
laws and the Constitution of the United Republic of
Tanzania.17 Even so, in several cases within the judicial
system, customary law has stood the best and applicable
law.
For example, in the case of Elizabeth Stephen and Another v.

AG18 while accepting unconstitutionality of the rules of
customary law, forcing widow inheritance by the late
husband’s relatives as a condition to remain in the

Woolcock (eds), The World Bank Legal Review: Law, Equity and Development
Washington, D.C, (2006) pg 141, 156
15 D Isser and T Chopra, ‘Women‘s Access to Justice, Legal Pluralism and
Fragile States’ in Albrecht P et al (eds), Perspectives on Involving Non-State and

Customary Actors in Justice and Security Reform, IDLO and Danish Institute for
International Studies (2012) pg 23, 34
16 WILDAF, (2018) Rule of Law and Access to Justice: Evaluation on Advancing
Gender Equality and Gender-Based Violence Prevention, Treatment, and Response

Programming in Tanzania, A Final Evaluation of the Women in Law and
Development in Africa Access to Justice Program, Submitted: January 22, 2018
(unpublished)
17 See, section 11 Judicature and Application of Laws Act, Cap 358 of Laws of
Tanzania RE 2002, a similar view reflected in various case laws, Maagi Kimito
V. Gibeno Werema, (1996) TLR 145 CAT being a worthy note.
18 HC Miscellaneous Civil Cause No. 82 of 2005 (unreported)
7

matrimonial home according to the rules of the customary
law of one Haya tribe. The High Court of Tanzania
dismissed the case and advised the parties to seek other
administrative alternatives in what it said, “The fear to
open Pandora box”. The Committee on Elimination of
Racial Discrimination against Women, (CEDAW) in 2015
on a communication arising from this case did find
Tanzania in violation of her treaty obligation.19
Nevertheless, regardless of the plight of women in

accessing justice, various approaches persist but a
wholesome discussion would align with the core of the
concept of legal empowerment. The next section expounds
model approaches and best practices on women’s legal
empowerment.
3. The Epitome: Approaches and Best Practices
It is an assertion born in the core of the empowerment
process, which is the assurance of four levels of power to
the targeted groups, namely, power over, power to, power
with and power within.20 I find no hard and fast rule on
models and approaches on legal empowerment. The
common denominator, however, aligns with the use of the
law to enable disadvantaged groups to access justice and
realize the basic rights. Conventional this, I will consider

19 In the Communication No. 48/2013, UN Doc. CEDAW/C/60/D/48/2013
(2015) the Committee on Elimination of Racial Discrimination against Women,

(CEDAW) has found Tanzania in violation of obligation under articles 2(c),
2(f), 5(a), 13(b), 15(1), 15(2), 16(1)(c) and 16(1)(h) of CEDAW, read together
with General Recommendations No. 21, No. 28 and No. 29
20Commission on Women and Development (CWD),The women Empowerment
Approach A Methodological Guide, (2007) pg 15 ([E]reading)

8

women’s legal empowerment to suffice though not
conclusively a success in the contexts of- (a) Specific
empowerment approaches within the court functionality,
referred to as Legal empowerment (b) Judicial activism
with human rights lenses in between statutory technical
limitations.
3.1. Legal Empowerment
Legal empowerment among other things views the
marginalized as partners. It seeks to cultivate the sense of
agency and power of the affected segment of humanity.21
In thee, it suffices not to say “I will solve this problem for
you,” but rather “I will work with you to solve this
problem, and give you tools with which to better face such
problems in the future.”
In this category, there are likes of tools devised to enable

those who cannot otherwise access the law to have access.
It is a multisided process, involving such process like
court-sanctioned accessibility of lawyers for legal aid to
vulnerable people– a typical practice in Tanzania;
following the adoption of the Legal Aid Act.22 It also
involves the simplicity of the court process to enable
vulnerable access to justice timely. A good example can be
the adoption of specific rules or laws in regard or
subsidized fees against the vulnerable people inter alia.

21 See, Pilar Domingo and Tam O’Neil, The Politics of Legal Empowerment: Legal
Mobilisation Strategies and Implications for Development, (2014) available at

https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-
opinion-files/9008.pdf (Last accessed on 20.06.2020)
22 Legal Aid Act, 2017 extends the provision of legal aid in both civil and
criminal cases
9

Tanzania’s Judiciary has responded to the needs of the
vulnerable groups of the society, inclusive of women and
children victims of GBV and all sorts of prejudices by the
Chief Justice promulgating the Judicature and Application
of Laws (Practice and Procedure of Cases Involving
Vulnerable Groups Rules, 2019. 23
These are Rules of the Court in cases involving vulnerable

people, just as the name of the rules suggest. The Rules
defines the vulnerable groups as particular groups of
people who, due to adverse social, economic, cultural and
practices present in society are weak and marginalized or
have traditionally been victims of violations and these
include widows, children, elderly people and persons
with disabilities.24
They are new Rules in legal practice aiming to improve

justice to vulnerable groups and change how these groups
view the courts and the justice system. No wonder at the
time of presentation of this piece, I find no case to have
applied them. Even though, they specifically aim at an
acceleration of the trials25 hence suffices an aspect of
empowerment.
Women being among the vulnerable groups, the Rules

prioritize cases involving them in all its aspects. Some of
the aspects covered in the rules include delineation of time

23 G.N. No. 110 dated 1st February 2019
24 Ibid, Rule 3
25 See, ibid, Rule 2
10

within which the suits need to be finalized i.e. not more
than six months from commencement. Hearing of the
cases is subject to high priority. The rules direct and legal
aid to vulnerable groups is assured.26
Besides, the court utilizing the overriding objective

principle of law as proves to be relevant in the women
empowerment as a constituent of the vulnerable groups.27
The relevancy of this principle aligns with the fact that it
prescribes non-adherence with undue technicalities in the
dispensation of justice. The principle stands to serve a big
number of cases against women, which stand to suffer
from the strict application of the rules of procedure. It is
my assertion.
The overriding objective principle of the law rules that the

court must administer substantial justice.28 For arguments,
this principle tallies with the Constitutional provision
mandating the Court not to dwell on undue technicalities
in the dispensation of justice.29 Both the High Court of
Tanzania and the Court of Appeal though in different
aspects have held to accept this principle.
The High Court of Tanzania has for the first time in the
case of Alliance One Tobacco Tanzania Ltd and
another v. Mwajuma Hamisi and another30 noted that “it is

26 see, Ibid, Rules 4,5, and 10
27 The principle is established vides the Written Law Miscellaneous
Amendments Act Act No. 3 of 2018, section 6
28 ibid
29See, Article 107A(2)(e)
30 MSc. Civil Application No. 803 of 2018 (unreported)
11

currently the law of the land that courts should uphold the
overriding objective of the law, avoid and disregard minor
irregularities and unnecessary technicalities to achieve
substantive justice”.31
The Court of Appeal of Tanzania in the case of Yakobo

Magoiga Gichere v. Peninah Yusuph reiterated a similar
position.32 The Court of Appeal of Tanzania noted that the
advent of the principle of Overriding Objective now
requires the Courts to deal with cases justly and to have
regard to substantive justice. The principle prohibits
reversing decisions on account of errors which do not
occasion a failure of justice. It requires the courts to give
more prominence to cut back on over-reliance on
procedural technicalities.33
This principle though bringing many controversies

amongst the members of the legal fraternity,34 it is not
applicable in contravention of the law. The court of
Appeal has noted in the case of SGS Societe Generale de
Surveillance SA and another v. VIP Engineering & Marketing
Ltd and Another35 while turning down the invitation to
invoke the overriding principle to dismiss one of the

31 Ibid, pg 3; Similar position was reiterated in Gaspar Peter v. Mtwara Urban
Water Supply Authority (MTUWASA) (Civil Appeal No. 35 of 2017) (at

Mtwara) (Unreported)
32 Civil Appeal No. 55 of 2017 (Unreported)
33 ibid
34 See for examples in FBAttornesys, Legal Updates “Inconsistent application
of overriding principles at Court of Appeal” 5th Septermber 2019 available at

https://fbattorneys.co.tz/wp-content/uploads/2019/09/Legal-Update-5-
September-2019.pdf Last accessed on 23rd Aughust 2019
12

objections. It stated that the principle was ‘not meant to
enable parties to circumvent the mandatory rules of the
Court or to turn blind to the mandatory provisions of the
procedural law which go to the foundation of the case.’36
Although these cases are not on women empowerment per

se, they are useful in providing authority of the court to
protect the subsistence of justice. In most cases, women
being vulnerable to various prejudices stand to benefit
from judicial empowerment in this line. It is for the Court
of Appeal to choose the direction it intends to take in
dispensing substantive justice, which will consequently
pave the way for other junior Courts. It is assertive that
the Courts have started quite well.
3.2. Judicial Activism
It is with no doubt; judicial activism is gaining
prominence in the present days and it is about a myriad of
scholarship works.37 Responding to Public Interest
Litigations and Strategic litigations, the judicial
intervention has been steadily expanding.38

36 Ibid at pg 23; similar position was reiterated in in Mondorosi Village
Council and 2 Others v. TBL and 4 Others in Civil Appeal No. 66 of 2017 (at
Arusha) (Unreported) and Martin Kumalija & 117 Others v. Iron and Steel Ltd
(Civil Application No. 70/18 of 2018) (at Dar) (Unreported)
37 Payel R. C, (2011) Judicial Activism and Human Rights in India: a critical
appraisal, The International Journal of Human Rights, 15:7, 1055-1071, DOI:

10.1080/13642987.2010.482912. ; see also Kamboj, N. (1999). “Human Rights
and Judicial Activism”, Journal of the Indian Law Institute, 41(1), 110-115.
Retrieved from http://www.jstor.org/stable/43951701
38 Kamboj, ibid
13

It is true, the judiciary of various states have shed its pro-
status-quo approach and has taken upon itself the duty to
enforce the basic rights of women as vulnerable sections of
society by progressive interpretation and positive action.
Several cases exist to this effect in most states, in the usual
contextual chestnut, Tanzania inclusive.39
Judiciary has responded positively to empowering women

in Tanzania concerning the rights to divisions of
matrimonial properties, inheritance, and protection of girl
child from child marriage among many other aspects. As
for the division of matrimonial properties at the
dissolution of marriage, it is a very unfortunate position.
Under the Tanzanian Law of Marriage Act,40 it is obvious
that in the division of proceeds of the sale of jointly
acquired matrimonial assets, the court is limited to
consider many aspects to grant or to incline towards
equality of division, the very contrary practice in other
jurisdiction. The Kenyan, for instance, has a settled
position on equal distribution of matrimonial properties at
the dissolution of marriage following a very long
jurisprudential battle41 and given their constitutional
dispensation.42

39 See, various cases cited in the note, 1 herein; see also the gender bench book
against the Tanzania Constitutional setup and human rights provisions of the
same.
40 Chapter 29 of the Laws of Tanzania Revised Edition of 2002, see section
114(1) and (2)

41 See for instance case in the Agnes Nanjala William v. Jacob Petrus Nicolas
Vander Goes, (Civil Appeal No. 127 of 2011) Court of Appeal of Kenya (see
the cited authorities therein)
42 See, the Constitution of Kenya, 2010, Article 45(3) This provides that parties
to a marriage are entitled to equal rights at the time of the marriage during the
marriage and at the dissolution of the marriage” and other laws promulgated
14

Very appreciative of jurisprudence, the Court of Appeal of
Tanzania in Bi Hawa Mohamed vs. Ally Sefu43 one of the
landmark decisions, did consider unpaid housework to
constitute a contribution to matrimonial assets in
Tanzania. Despite not providing clear guidelines on the
value of the contribution made by doing domestic work or
efforts in regards. It is in the record, following this
decision; the court has progressed to protect women’s
rights in the division of matrimonial assets, a
demonstration of empowerment in multiple ways, though
not consistently.
For example, in one case Christian John Msigwa v. Neserian

Justine Lukumay44 the High Court of Tanzania noted that at
separation, divorce, or annulment of marriage, parties
have right to an equitable sharing of the property acquired
during the substance of the marriage.
The court reflected a similar view in the case of one Eliester

Philemon Lipangahela v Daudi Makuhuna. 45 Oriyo J. as she
then was, noted that the law recognizes a spouse’s
contributions in terms of money, property, or work. The
Appellant’s contribution towards the acquisition of
matrimonial assets was in terms of work that is including
household chores, bearing and caring of children, making
the home comfortable for the respondent and the issues.

thereunder, Matrimonial Property Act 2013, the equal distribution of
matrimonial properties is now settled in law and case laws
43
[1983] TLR 32
45 Civil Appeal No. 139 of 2002 High Court of Tanzania at Dar es
Salaam(Unreported)
15

In addition to her domestic work, the appellant engaged
herself in the sale of buns and vegetables.46
A proper settlement in a respectful view is in the case

of Mohamed Abdallah v Halima Lisangwe47 Mnzavas (Jaji
Kiongozi, (JK)) as he then was; held hat “the principle
under the division of the property under section 114 of the
Law of Marriage Act as one of compensation. Whether
what is being compensated is a direct monetary
contribution or domestic services, it does not matter.”
While in Yokobeti Simon Sanga Vs Yohana Sanga,48 the court
decided among other things that, “the appellant deserves
50% of all matrimonial properties for the entire period of
the life of their marriage and the distribution is on 50% of
the market value”.49
On issues of inheritance, the application of multiple laws

and customary laws in larger extents has rendered this
area chaotic and controversial in the realization of binding
precedent. The jurisprudence of the High Court of
Tanzania and the Court of appeal has several
inconsistencies in this area. Even so, the High Court has
established a robust of cases by acting with human rights
lenses holding several provisions of the Local Customary
Declaration Order of 1963, to be offensive to human rights
and the Constitution of the land.50

46 ibid
47 (1988) TLR 197 (HC)
48 Matrimonial Appeal No. 1 of 2010, High Court Iringa Registry (unreported)
49 ibid
50 See various cases at TAWJA, supra
16

In all of the favourable decision for empowerment, the
court has been consistent in invoking the human rights
standard of equality and reflection of the same in the
constitutional setup. How that took place aligns with the
very fact that the court in its judicial accord, valve the
superiority of the constitution and contiguous human
rights obligations of the state.
In the celebrated decision in Bernado s/o Ephraim vs. Holaria

d/o Pastory,51 the High Court of Tanzania was assertive
that “human rights are standards below which every
civilized nation will be ashamed to fall”. Judge
Mwalusanya J as he then was, declared that the customary
law that bars female clan members from disposing of land
is discriminatory and inconsistent with Article 13(4) of the
Constitution of the United Republic of Tanzania, which
provides for non-discrimination and that the customary
law was thus invalid. The court ruled that paragraph 20 of
the Local Customary Declaration Order, 1963 provides
that “Women can inherit, except for clan land, which they
may receive in usufruct but may not sell. However, if
there is no male of that clan, women may inherit such land
in full ownership” is unconstitutional.
In support, the High Court has maintained the position on

the ground that as long as the country has agreed
voluntarily to be bound of rules of international
instruments, the courts must interpret and apply

51 See, Bernado s/o Ephraim vs. Holaria d/o Pastory, supra note 1
17

“derogation law extremely strictly”.52 Accepting a similar
line of reasoning, the Court has rejected both the
customary rules and Islamic rules that are gender-biased,
discriminatory and that maintain patriarchy.
For example in the case of Elizabeth Mtawa v. Hassan

Mfaume Risas53, the High Court found that the parties had
achieved the status of a customary marriage, giving them
rights. It also ruled that the deceased’s actions showed
that he did not profess the Islamic faith and that Islamic
law should thus not apply in the administration of the
estate. The Court registered a decision that the appellant,
through her contribution to the welfare of the household
and family, was entitled to a share of the estate. In brief
details, the court was to decide on an issue involving
parties who lived as husband and wife for nine years and
gave birth to two issues. At the demise of the husband, the
late husband’s clan appointed one of their relatives to be
the administrator, who insisted on the administration of
estate and division thereof following Islamic law, the
latter, which would have prevented appellant from
receiving a share of the estate. This decision demonstrates
the deliberate approach of the court on what the
application of Islamic law, would have led to prejudice
woman’s right to inheritance.

52 See, Justice Augustino Ramadhani in the case of Transport Equipment Ltd and
Reginald John Nolan v Devran P. Valambhia, Civil Application No. 19 of 1993

53(Pc) Civil Appeal No. 12 Of 2003, High Court of Tanzania, Dodoma
(Unreported)
18

The court in the case of Naftal Joseph Kalalu v Angela
Mashirima54 did reflect the position in Elizabeth Mtawa.55 The
father of the deceased husband objected to the
appointment of his son’s wife as an administratrix of the
will. It was a contention that since both the deceased and
the respondent were the origin of one tribe called Chagga,
as applicable, the law, which was to the effect that on
succession and inheritance, women are not allowed to
administer wills.56 The High Court sternly, cited Articles
12 and 13 of the Constitution and Article 1 of CEDAW to
emphasize Tanzania’s commitment to ending gender-
based discrimination. It held that the mentioned Chagga
customary law would be discriminatory and that the
deceased’s wife would remain as an administratrix of the
will as a matter of right.57
Lastly, is on the controversial end-child marriage

campaigns. Whereas the position of the law of marriage
Act did sanction the marriage of girl children under the
age of 18 as opposed to boys.58 The Court of Appeal of
Tanzania has recently upheld the decision of the High
Court in the case of Ag v. Rebeca Z. Gyumi59 finding that
the impugned provision was unconstitutional and
discriminatory.

54 P.C. Civil Appeal No. 145 of 2001, High Court of Tanzania at Dar es Salaam
(Unreported)
55 Elizabeth Mtawa, supra note 53
56 Citing Para 20 of the Laws of Inheritance GN 436 of 1963
57 Ibid, at Pg 29
58 See, section 13(1) read together with section 17, of chapter 29 of the Laws of
Tanzania, supra
59
Civil Appeal No.204/2017 CAT at Dar es Salaam
19

The details of the case are that the respondent, one Rebeca
Z. Gyumi challenged the constitutionality of provisions of
the Law of Marriage Act. The said sections of the law
require the consent of parents or court for girls below 18
years before marriage and at the same time, allow a female
person to get married at the age of 15 years and a male
person to get married only upon attaining the age of 18
years. Thus, the respondent argued that the said
provisions offend the provisions of Articles 12, 13 and 18
of the Constitution of the United Republic of Tanzania.60
In its reasoned judgment, the Court considered that

Tanzania is not an isolated island. It is indebted to legal
jurisprudence from other jurisdictions by ratifying and
domesticating international, regional and sub-regional
instruments or enacting laws as a means of
acknowledging the outcry of the international community
and taking action against the violation of human rights,
which includes the right of a girl child. By ratifying and
domesticating these instruments, the Government of
Tanzania has demonstrated commitment to enforce them
and assure the smooth realization of human and peoples'
rights.61
In the spirit, the court finds the impugned provisions not

tenable in the pane of analysis. It cited among others, the
provisions of article 16 of Universal Declaration of Human
Rights, 1948 that “men and women of full age” are entitled

60 See, Para 3; whereas article 12 is relevant for Equality of human beings,
article 13 Equality before the law and article 18 relevant for the freedom of
expression.
61 Ibid, pg 42
20

to marry. Besides, it cited article 1 of the Convention on
the Rights of the Child and Article 2 of the African Charter
on the Rights and Welfare of the Child both of which
define a child to mean every human being below the age
of 18. In Article 6 of Protocol to the African Charter on
Human and Peoples' Rights on the Rights of Women in
Africa, the court stressed the obligation that Tanzania has
to ensure that women and men enjoy equal rights and
regards as equal partners in marriage. They are also
required to enact appropriate national legislation to
guarantee that the minimum age of marriage for women
shall be 18 years.
Hence, the existence of sections 13 and 17 of LMA was not

only a violation of the international law with which
Tanzania is a member, signed, and ratified. Besides, it
offends the salutary principles of the law of contract,
which call for the competency of the parties who enter
into the contract, particularly, in a marriage as a contract.
As stated earlier, these approaches do not count the

finality of the endeavours; there some gaps in practice.
The next section revisits the gaps in practice.
4. Practical Gaps
Several factors do hamper judicial approaches towards
women’s legal empowerment. In this piece, I will consider
technical dilemma found in the judicial hierarchy on the
interpretation of laws and inadequate institutional
capacity, for instance, the absence of specialized family
courts and setbacks in the laws as herein expounded:-
21

4.1. Technical Dilemma born in Judicial Hierarchy
This is with a focus on the principle of binding precedent
manifesting on discriminatory statutory laws, notably the
customary rules do persist, and the case handling process
full of confusions especially in the subordinate
courts.62 More so, the non-predictability of the application
of the overriding objective principle as noted. There are
rampart conflicting decisions over similar rights in the
High Court and Court of appeal. Both of these higher
Courts in the judicial hierarchy in Tanzania have not been
consistent in the declaration of unconstitutionality of some
provisions of the Local Customary Declaration Order on
the questions of inheritance.
While in some instances, the Court of Appeal has

considered the rules of custom best law. In other aspects
again, the High Court has been in dilemma. In the case
of Elizabeth Stephen and Another v. AG,63 the High Court
demonstrated its fear to “open Pandora box” on declaring
the provisions of this “piece of legislation” to be
unconstitutional, despite reckoning the same in this case.
Similarly, in the case of Scholastica Benedict v Martine

Benedict64, the Court of Appeal ruled that Haya customary

62 See, N. Msuya, Harmful Cultural And Traditional Practices: A Roadblock in the
Implementation of the Convention on the Elimination of Discrimination against
Women and the Maputo Protocol on Women’s Rights in Tanzania, Thesis
submitted for award of Degree of Philosophy of Law, Durban: Howard
College of Law and Management University of KwaZulu-Natal, 2017, Pg 156
63 Supra, note 15
64 Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 20 of 1984
(unreported)
22

law, which applied to the parties, makes no provision for a
widow to remain in the matrimonial home after her
husband dies. Rather, that the widow had the choice of
residing with and under the support by her children or a
selected male relative of her husband to "inherit" her and
whom thereby assumes the responsibility for supporting
her. The Court ordered the widow to leave the house and
advised her to live with her daughter.65
The two-position results into crisis on binding precedent,

unless the judge or magistrate is equipped and is full of
human rights lenses, it is difficult to predict what their
decisions would look like in the circumstances.
4.2. Inadequate Institutionalized and Legislative
Approaches
While Legislative protective mechanisms such as
protection orders, barking orders, and safety orders;
discriminatory and inequitable enforcement of existing
laws; absence of enforcement mechanisms in remote
locations; and insensitive investigations and prosecution
of cases involving GBV and VAC also stand to challenge
the empowerment, Court specialization is an important
reform to advance the development of a successful judicial
system.66 Court specialization is useful even to address

65 A similar trend is in the reflection in Rubuka Nteme v Bi. Jalia Hassan &
Another Court of Appeal of Tanzania at Mwanza, Civil Case No. 19 of 1986

(unreported) and in Angelo Bisiki V Antonia Bisiki And Others 1989 TLR 225
(HC)
66 Heike G. and Walsh, B., Developing Specialized Court Services International
Experiences and Lessons Learned, New York: Justice and Development Working
Group, 2013, pg 34
23

broader development constraints, such as the need for
more effective access to justice. Studies from various
jurisdictions, the United States, Australia, and other
countries have shown that specialization can help improve
the processing of court cases that are more complex or
require “special expertise” beyond the law, such as in
cases whose handling is quite different and which reflect
the needs of a particular court user group, such as family
matters.
Studies have further confirmed particularly in developing

or recently developed countries, the current trend is to
create specialized courts and tribunals to deal especially
with family cases, which appears to be improving access
to justice for citizens generally, as well as for non-
governmental organizations (NGOs) and disadvantaged
groups. There is documentation of specialized family
courts and their growing number worldwide.67
To bid a few examples of these courts in Africa, one would

cite South Africa and Namibia among others. Tanzania
has the proposal to have a similar court in place. This
matter is still very grey. It needs further engagements and
dialogues.
5. Exit: Conclusion

67 ISSAT,Developing Specialized Court Services: International Experiences
and Lessons Learned, (2018) available at

https://issat.dcaf.ch/mkd/Learn/Resource-Library/Policy-and-Research-
Papers/Developing-Specialized-Court-Services-International-Experiences-
and-Lessons-Learned(last accessed on 17.09.2019)
24

In several ways, there some laws that have let women
down in accessing Justice in Tanzania just like elsewhere
in the world. The application of customary laws and lack
of political will to change the course results in retardation.
As the way forward, tackling the barriers across the justice
chain, legal, political, social, cultural and economic,
whether in the formal or informal legal systems–wants
women's demands for justice is of the utmost importance.
Heavy investment in the laws and courts by governments,
developing partners and the multilateral would have an
inadequate effect on women's access to justice unless
meaningful engagements take place. I can be assertive of
the fact that "what matters is what works”. At stake is not
the form justice takes. It is that women get justice and
equality. By empowering women to claim their rights,
women are better equipped to bring about change in their
communities. The judiciary of Tanzania has tried its bid
worth of citing regardless of the few setbacks and
challenges. It is high time for continuous engagements
with the CSOs and everyone else to support the positive
work that judiciary had done in the world of legal
empowerment.

25

TANZANIA LEGAL AID JOURNAL
AUTHOR’S GUIDELINES
1)
General
a. All title headings for the articles, case comments and book
reviews should be in capital letters and bolded.
b. Subtitles should be in Arabic numbers e.g. 1. Introduction
if the article does not have subtitles within the titles and if
there are sub titles then it should be e.g.:
3.0 An Overview on Criminal Law
3.1 Tanzania Penal Code
2.2 Criminal Procedure Code
c. Name of the author should be capitalized in each first letter
of the name with a* after the name.
d. There should be an abstract on each paper and should not
exceed 250 words. This does not apply to case notes and
book reviews.
e. The heading of the abstract should be in italic form and
bolded and indented on the left side below the name of the
author.
f. The abstract should be in Book Antiqua with 11 font size.
g. There should be four Key Words for every article manuscript
below the abstract.
h. The manuscript shall be typed in Book Antiqua, (Font
size 12 and for footnotes it should be font size 10), 1.5 line
spacing.
2) Originality
The submission must be an original work of the contributor
and must not have been submitted for publication elsewhere,
unless an approval is obtained from both the author and the
publisher of the original work.

3) Biographical Details
Biographical details of the author shall be starred (*) and shall
precede the footnotes. They shall include the author’s current
employment, academic and professional qualifications (e.g.
LL.B, LL.M or PhD and an Advocate of the High Court), Postal
and E-mail addresses and any other pertinent details in the
light of the submission.
4) Paper Range
i. Comment articles
Manuscripts for comment articles analyzing and commenting
on recent cases, legislation and other topical matters must
range between 1500 and 3000 words. No footnote shall
be allowed in comment articles. References, case citation,
legislation and relevant literature should appear in brackets in
the main text. All comment articles should be accompanied by
a short abstract not exceeding 50 words. The comment must
bear the following headings:-
• Title (descriptive)
• Name/Citation of relevant case/legislation/material
• Legal context
• Facts
• Analysis
• Practical significance
ii. Full-length articles

Manuscripts for full-length articles must range between 5000
and 12,000 words (including footnotes). Each submission must
be accompanied by an abstract of between 150- 250 words
indicating briefly the overall argument of the author. Four key
words must be written immediately below the abstract and
footnotes must be kept to the minimum.

iii. Book Reviews
Book reviews may range between 1500 to 4000 words although
review articles could be much longer. The title of any book
review must take the following format:-
Author/Editor Name, Book Title, Publisher, Year of Publication,
ISBN, Number of Pages, Price.
Book reviews should be clear and objective and in particularly
address these points:-
• The intended audience of the book
• The main argument and objective of the book
• The soundness of the argument and the research methods
used
• The strength and weakness of the book as a scholarly
piece of work
5) Mode of Sending
Manuscripts should preferably be sent by email. If the
manuscript is not sent by e-mail it shall be submitted in both
hard copy and electronic format in a flash-disk, or other similar
storage device and shall be in MS Word.:
Secretary, Research and Publications Committee,
Tanganyika Law Society,
Plot No. 391, Chato Street, Regent Estate,
P.O. Box 2148, DAR ES SALAAM
E-mail: publication@tls.or.tz
6) Font Type and Size

The Manuscript shall be typed in Book Antiqua, font size 12
(footnotes font size 10), 1.5 spacing.
7) Mode of Reference/ Citation of Sources

Reference and Citation to sources shall adopt Oxford Standard
for the Citation of Legal Authorities (OSCOLA).

8) Double Blind Peer Review
All submitted manuscripts shall be subjected to review by
anonymous reviewers appointed from a pool of reputable
experts in the particular area of law maintained for that purpose
by the committee. To ensure a fair and unbiased review, authors
shall avoid information in the text that discloses their identity.
9) Guidelines to the Authors shall appear on the last pages of the

Journal
10) The Chief Editor shall appoint the reviewers for each submitted
manuscript, taking into account the reviewer’s expertise and/
or experience on the area of law or legal practice which the
manuscript addresses.
11) The Chief Editor shall issue detailed guidelines to the reviewer
which encourages as much as possible thoroughness and
criticism on his/her (reviewers) part and also set a timeline
within which the reviewer has to work on a submission.

THIS JOURNAL HAS BEEN
GENEROUSLY FUNDED BY
Tanganyika LEGAL SERVICE FACILITY
Law Society
Tanganyika Law Society

House No. 21|Chato Street | Regent Estate
P.O. Box 2148 | Dar Es Salaam | Tanzania
Telephone: +255 22 277 5313
Fax: +255 22 277 5314
Email: info@tls.or.tz
Website: www.tls.or.tz

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VOL.

Provision of Legal Aid Services to

Judicial Systems in Action:

A Legal Aider Vis-À-Vis Quality Legal Aid

1TLAJ1 2020 The Tanzania Legal Aid Journal i

Tanganyika Law Society

ii The Tanzania Legal Aid Journal 2020 1TLAJ1

Editorial Board Members

This Tanzania Legal Aid Journal should be cited

1TLAJ1 2020 The Tanzania Legal Aid Journal iii

Legal Aid in Non-litigation Dispute Settlement

Provision of Legal Aid Services to Juvenile Offenders

A Legal Aider Vis-À-Vis Quality Legal Aid Services:

Judicial Systems in Action: Approaches, and

iv The Tanzania Legal Aid Journal 2020 1TLAJ1

We have a voluminous edition this time. This volume consists of four

Prof. Alex B. Makulilo

1TLAJ1 2020 The Tanzania Legal Aid Journal v

Welcome dear readers!

I am pleased to present to you Tanzania Legal Aid Journal, the

Enjoy your reading!

Dr. John Ubena

vi The Tanzania Legal Aid Journal 2020 1TLAJ1

Keywords: non-litigation dispute settlement, legal framework,

There several ADR mechanisms and processes conducted

(i) Negotiation: This is a strategic discussion process that

(ii) Conciliation: This is a dispute settlement mechanism

(iii) Mediation: This is a form of alternative dispute

(iv)Arbitration: This is a private process where disputing

(Dar es Salaam: Mkuki na Nyota Publishers, 2014), p. 3.

(as amended from time to time) (‘the Constitution of Tanzania’).

Appellate Jurisdiction Act, Cap. 141 R.E 2002.

disputes in Tanzania is the Commission for Mediation and Arbitration (CMA)

Commission and the Fair Competition Tribunal established respectively

Tax Revenue Appeals Tribunal established respectively under Sections 4 and

Following developments that have been recently

es Salaam, Labour Revision No. 270 OF 2008 (Unreported) [Consolidated with

distinct branch of civil litigation, arbitration is generally governed by the

Order VIIIC Rule 24 of the CPC.

Unlike the mediator, who just facilitates the mediation

2019. Available at https://www.legalbites.in/meaning-and-scope-of-

Proceedings.” Available at https://www.icmagroup.org/News/ (accessed 3

Knowledge Base on More Constructive Approaches to Destructive Conflict.”

Processes. Boston/Mass. Little Brown, 1992.

York: UNESCO, 2003), p. 23.

51 See particularly Section 14 of Arbitration Act, No. 2 of 2020; and Rule 4 of

parties to refer a matter that before the court to conciliation or negotiation.

notes in the mediation proceedings are confidential and cannot be made

obliged is guided by principles of objectivity, fairness and natural justice, and is

‘(i) the rights and obligations of the parties;

(ii) the usages of the trade concerned; and

(iii) the circumstances surrounding the dispute, including any previous

According to Article 13(6) (a) of the Constitution of

by a legal aid institution duly registered by the Registrar of Legal Aid,

The right of access to justice encompasses a person’s right

lawyer or paralegal shall provide legal aid on the basis of discriminating

27. Where in any civil proceedings it appears

By its very scope, this provision applies to provision of

In discharging his or her duties, a legal aid provider is

6.0 Provision of Legal Aid in Procedural Steps of Non-

In addition, the mandatory requirement that “every civil

As such, legal aid may be provided at a specific

It is a universal procedural principle, however, that, where

It is, therefore, critical that in reaching at an agreement