LAW SCHOOL

OF
TANZANIA

LEGAL DRAFTING SKILLS AND TECHNIQUES

NOTES
 LS 103 LEGAL DRAFTING SKILLS AND TECHNIQUES
COURSE OUTLINE
1. Legal Writing
- The Art of Writing
- Styles of writing in legal profession and its difference with other styles of
writing
2. The Language of the law
- Legal and non – legal language
- Historical basis
- Special language
- Plain language
3. Correspondence
- Correspondence to client
- Correspondence to advocates
- Correspondence to courts
- Correspondence to others
4. Legal opinions/submissions
- Rules for drafting a legal opinion
- Rules for writing submissions
5. Legislative drafting
- Guide to legislative drafting
- The art of legislative drafting
6. Subsidiary Legislation
7. Domestication

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 LECTURE ONE
LEGAL WRITING AND DRAFTING
What is writing?
It deals with written products counsels, articles, articles, news letters, items,
speeches on legal topics.
Why legal writing?
- Creative
- Create own styles
- Limits
- Flexibility
Principles or norms in writing;
- Writing is communication
- Communicate effectively and efficiently
- Avoid long – winding sentences, paragraphs
- Be brief – use simple words and short sentences
- Eliminate unnecessary words and plain language
What is drafting?
This refers to a process of defining relationship and setting out procedures. Example,
plaint, sale agreement, affidavit, power of attorney, written submissions, bills and
Act of Parliament.
Why drafting?
- Contents and forms matters a lot
- Use of precedence (from heading to the end)
TYPES OF LEGAL WRITING
a) Traditional legal writing
b) Plain legal writing
Why traditional legal language is bad?
- Complexity
- Safety
- Judge and tradition (Read Article by Peter Butt on Legalese Vs. Plain language)
- Disclosing errors

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Benefits of plain language;
- Efficiency
- Reduce errors
- Image of the legal profession
Read Author‟s
- Judge Mark .P. Painter on 30 suggestions to improve readability
- A defense of legal writing by Richard Hyland
- Mellinkoff

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 LECTURE TWO
CORRESPONDENCES
Modes of lawyers communication differs and may be through number of classes;
- Print media
- Electronically (e – mail)
- Using phones (calls, sms)
- Postal address (EMS, Courier, DHL, Register)
NB: The House Style – Uniform font. Examples of correspondences, letters, demand
letters, legal opinions, summons.
Correspondence to clients;
- Going to court
- Giving feedback to client
- Use appropriate language
- Level of language
- Level aid client
- Keep cultural religious sensitivity instructions. Eg; Honorable, Advocate, Judge,
Doctor, Engineers.
Correspondence to advocates;
- Within same firm/opposing firm, management, arrangement. Eg; All
correspondences should be addressed to the Principal. However, Internal Office
rules, Inter – Advocates briefs.
Correspondences to courts;
- Communication to the court to individuals such as Judges, Magistrates, and how
to address the court. Eg; Your Lordship, I beg to submit.
- Be careful with dates, subject matter, case number and names of parties.
- Notify other party – Section 3A of the CPC
- In arbitration writing to arbitrator notify other party
Correspondences to others (public);
- Kiswahili language for the purpose of communication with your audience.

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 LECTURE THREE
LEGAL OPINION/SUBMISSIONS
What is written submission?
Written submission refers to a document which certain agreement to the parties to
the case on a certain matter which is before the court.
Submissions which are filed before the court can be;
- Submissions which are provided by the law
- Submissions as per court order;
 Submission before Court of Appeal which are governed by the Court of
Appeal Rules
 Submission before High Court, Human Rights cases provided under Rule
13 of the BRADEA
 Submission before High Court (Commercial Division) which are governed
by the Commercial Court Rules.
NB: Submission before Court of Appeal and before High Court when exercising
jurisdiction during Human Rights cases is compulsory but before High Court
Commercial Division is not compulsory.
Rule 106(2) of the Court of Appeal Rules states that High Court when dealing with
Human Right cases is provided under Rule 13(3) of the BRADEA Rules. However,
Written submissions must comply with documents to be filed before Commercial
Court;
- Must not exceed 10 pages
- Must be Times New Roman 1.5
There are submissions which are filed in different court without existence of any law
providing for same but it become a common practice as to cause the court to provide
guideline. However, the court guiding presentation of submission before court is done
through case laws.
Case laws are divided into two which are;
- Stylistic (content) – Rule 106(2) of CAT Rules
- Procedural (Procedure for filling written submissions) – i.e Rule 64, 66(1)(2) of
the High Court (Commercial Division) Procedure Rules, 2019.

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Various cases on submissions;
- Parastatal v. Azania Bank Ltd, the court held that, “Written submission
cannot be filed before parties adduce evidence.”
- NBC Ltd v. Somo Contrators Ltd, “Submissions cannot contain matters which
were not pleaded.”
- Mashado Game Fishing Lodge Ltd v. TANAPA, the court held that, “Written
submission must be pleaded but not matters which are not subject to
dispute.”
- Regional Service Ltd v. Secretary Central Tender Board, the court held
that, submission in reply must say anything concerning the submission in chief.
Advantages of submission;
- Saves time
- It needs research skills
- It reduce population in court premises
- Assist dispensation of justice without delay.
Disadvantages of submission;
- Promote laziness of Judges and Magistrate‟s, sometimes can lead to bad
decisions.
- Majority of written submissions submitted to court, are not exhaustive to
resolve disputes.

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 LEGAL OPINION.
Legal opinion can be divided into two;
- Legal opinion prepared by the Attorney General to the Government
- Legal opinion prepared by the Advocate to the Client
Character of legal opinion is advisory and legal opinion of Attorney General are
provided under section 22 and 23 of the Office of Attorney General Discharge of
Duties Act.
Standard content of legal opinion;
- Introduction
- Issues advising client
- Issues subject to legal opinion
- Application of laws in responding issues
- Conclusion
- Opinion
- Disclaimer
- Signature by the person made opinion
STEPS IN LEGAL OPINION.
i) Read and digest your instructions i.e case about, facts, what your client
want to know
ii) Answer primary questions, what the client want to know, focus on issue and
give proper advice
iii) Organize facts and facts management through note making, schedule, time
plan, chart, diagram
iv) Construct a legal framework by applying the law to help organize the facts
and to discover the questions which need to be answered. Eg; Negligence,
contact.
v) Look at the case as a whole by considering the facts as a whole (preparing
skeleton plan)
vi) Answer all the questions in giving your answer, you must be in form of an
opinion regarding on the issue raised. The answers YES/NO are discouraged.

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 vii) Consider your advice, if your client has a problem, he or she does not only
want to be told the solution but he or she wants to be sworn how to get
about the solution.
RULES OF GUIDANCE IN WRITING LEGAL OPINION.
- Focus on the instructions of client
- Conduct research
- Correspond to client should be in simple language
- Focus on the subject matter
- Reference and citation
- Caveat and disclaimer

REVISION QUESTIONS ON LEGAL OPINIONS AND WRITTEN SUBMISSIONS

1. You have been retained as a Senior Associate with FB Attorneys, a corporate
law firm based in Dar es Salaam. The senior partner responsible for staff
training and development is concerned with the low quality and different styles
of writing legal opinions and written submissions by junior lawyers at the law
firm. He has instructed you to prepare detailed guidelines to be followed by all
at FB Attorneys in writing legal opinion and written submissions. Prepare the
Guidelines.
2. Write concise notes (not more than two pages of the Examination Answer Book)
on any TWO of the following:
a. The key elements, including statutory requirements, of written submissions
b. The procedure for rectifying mistakes in enacted legislation in Tanzania
c. The relevancy of tracing the history of writing in understanding legal
drafting
d. The use of delegated legislation

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3. “Unfortunately, there has been a mistaken belief among some lawyers that
there is no legislative enactment, including at the level of the High Court of
Tanzania, regulating written submission. This perception must be corrected by
learned brothers and sisters who should be able to cite the glaring examples
that exist…” Anonymous
(a) Discuss the „glaring examples that exist…‟ and the basis for the „mistaken
belief‟ in the context of the above quotation.
(b) Using examples and giving reasons, discuss what you consider to be the
main advantages of written submissions.
(c) Using at least two (2) cases, discuss the consistencies and differences in the
approaches adopted by Judges of the High Court in addressing written
submissions.

4. “There is no standard format for a legal opinion. However, there is usually

little deviation in terms of the content of a standard legal opinion. In this
regard, formats may differ due to different approaches, depending on a
number of circumstances. This is essentially because there is no law regulating
legal opinions.” Anonymous
(a) Discuss the key ingredients of a standard legal opinion.
(b) Discuss the circumstances that may lead to different approaches in drafting
legal opinions.
(c) Discuss the challenges likely to be encountered in an attempt to enact a law
to regulate the drafting of legal opinions.
(d) Discuss the extent to which you agree with the last sentence in the above
quotation.

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 LECTURE FIVE
LEGISLATIVE DRAFTING
What is legislative drafting?
This refers to the act of writing provisions of an Act. However, legislative drafting is
done to meet demands of audience such as public, courts, law enforcement agency,
and parliament.
The legislative drafting is divided into two categories which are;
- Tanzania Mainland
- Zanzibar.
So, our focus will be based on sections 80 to 93 and sections 56 to 67 for Tanzania and
Zanzibar respectively are provided under the Standing Orders. However, legislation
can be divided into Principal legislation and subsidiary legislation.
Persons who are responsible for drafting legislation are known as “Parliamentary
Draftsman” or in other jurisdiction are known as “Parliamentary Legal Counsel” or
“First Parliamentary Counsel.” However, there are not member of parliament, they
are made by Principal legislation.
Laws governing legislative drafting;
- Interpretation of Laws Act, Cap.1
- The Constitution of United Republic of Tanzania of 1977 as amended
- Laws Revision Act, Cap.4
- The Office of Attorney General Discharge of Duties Act, Cap.268
- Standing Orders of the National Assembly

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 PROCEDURE FOR LEGISLATIVE PROCESS FROM PUBLICATION IN THE GAZETTE TO
PRESIDENTIAL ASSENTS.
LEGISLATIVE PROCESS IN TANZANIA.
1. Initiating bills.
This is done by sponsoring Ministry then, consults Chief Parliamentary Draftsmen
and discuss intention to submit Cabinet Paper.
2. Publication of Bills.
Under Order 80(1)(2) and (3) of the Standing Orders and its rationale is to enable
citizens to be in a position to know what laws are being contemplated and provide
input and comments. Chief Parliamentary Legal Counsel (CPLC) prepares a bill and its
functions are provided under Order 21 which includes scrutinizing and providing
advice on all bills presented to parliament, prepares amendments to bills presented
to parliament and published to the Gazette.
3. First Reading.
Under Order 82(1)(2) and Order 83(1)(2) provides that any bill should be tabled in the
parliament and read for the first time and the clerk of National Assembly would read
the long title and the Speaker would forward the bill to the appropriate Standing
Committee.
4. Second Reading.
Under order 85,86,87 of the Standing Orders of 2013 after the bill has been placed in
the Order Paper, the Minister sponsoring the bill, Attorney General, Chairman of the
Standing Committee would move a motion that the bill should be read for the second
time and the Parliament would give the views of the opposing. However, where it is a
Private Member Bill, the Government would give the views of the Government.
5. Committee of the Whole House.
Under Order 88 in the National Assembly, the Presiding Officer at this stage is
designated as a Chairman, not Speaker.
6. Third Reading.
Under Order 89 and 91, when all the sections of the Bill have been approved, with or
without amendments, the National Assembly resumes. The Minister responsible would
then, move a motion to concur with the deliberations of the Committee of the Whole

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House and approve the Bill by simple majority. A Bill proposing to amend the
Constitution would have to be approved. Where the voting will entail each Minister of
Parliament being called by name, one by one, once a Bill has been read and approved
at the Third reading stage, it is taken to have been passed by the Parliament.
7. Assent.
Under Order 92, in the National Assembly the printed copy of the Bill shall be
submitted by the Clerk to the President for his assent.
LEGISLATIVE PROCESS IN ZANZIBAR.
1. Sponsoring Minister.
The Minister initiate Bill as per Order 78(2) of the Standing Orders of House of
Representative of Zanzibar.
2. Publication of Bill.
Under Order 79(1)(2), publication must be done once and 21 days before the bill to be
presented and there shall be minutes which shall be signed by the Minister. Also, read
Order 80.
NB: Private Member Bills;
- Order paper
- Approval Order 81
- Publication
- Presentation of the Bill in the House
3. First Reading.
Under Order 82 and 83, scrutization of the Committee to forward the Bill as per Order
83(4). Notice of Public hearing to obtain view from the Stakeholders as per Order
83(5) – No amendment in Zanzibar rather than advice from Minister or Private
Member.
4. Second Reading.
Under 84 of the Standing Orders of Zanzibar (Order 86(3) Tz) returned to the
Committee and then, Chairman inform the Speaker on scrutiny of the Bill after that
Speaker prepares Order Paper. Minister or Private Member read the Bill and get
information to the Chairman of the Committee and reply of the Motion.
5. Committee of the Whole House (No requirement) – Order 87, 104 & 105.

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 6. Third Reading – Order 89 (Order 89 to 72) – Bill shall be passed by House of
Representative.
7. Assent by the President – Order 91 (Article 97 of the CURT) but there is a
requirement that the Bill shall be both in English and Kiswahili.
SOURCE OF BILLS.
There are two sources of bills that can be introduced to the Parliament;
- Government Bills
- Private Member Bills
a) Government Bills are introduced by Minister or the Attorney General.
b) Private Member Bills are introduced to the Parliament by the Chairman of the
Standing Committee or any MP (except a Minister or the Attorney General).
NOTE: The earliest process of initiating bills in order to enact legislation commences
at the level of the Executive Branch of Government with sector Ministries being
required to prepare legislative plans for every 5 years based on the Government
Policy.
Institution involved in drafting and enacting Principal legislations;
- Attorney General, Art.59 CURT, Cap.268
- Drafter, Cap.268
- Chief Parliamentary Legal Counsel
- Clerk of National Assembly
- President
- Non – Governmental Organization‟s
- Civil Society Organization
- Community Based Organization
NOTE: Where an Act of Parliament is to be enacted, the responsible Ministry shall
prepare and submit to the Government a Cabinet Paper in relation to the proposed
enactment. However, before preparing a cabinet paper, makes consultation with
Office of the Attorney General on its intention to prepare the Cabinet Paper.
The Chief Parliamentary Draftsman is vested with the powers of defining drafting
instructions and drafting Government Bills. The Chief Parliamentary Draftsman shall

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decide on all matters relating to legislative drafting. Read, Section 12(1), section
8(c)(h) of the OAGA, Cap.268.
There are certain techniques to be used in drafting the law (styles);
a) Simplicity
The draftsmen should be intelligent to be able to convey intended meaning in order
to reach to the people, he or she has to use simple and precise words. However,
words should be direct and plain.
b) Precision
Lord Denning says, “The English language is not an instrument of Mathematical
precision. Our literature would be much poorer if it were. This is where the draftsmen
of Acts of Parliament are unfairly criticized.” Meaning you cannot achieve complete
precision on drafting of laws.
STAGES OF DRAFTING PROCESS
(THORNTON’S FIVE STATGES).
QUESTION: Discuss the various stages where policies ought to be considered in the
legislative drafting process in Tanzania Mainland?
i) Understanding
Since drafting instructions in Tanzania do not provide adequate detail, the drafter
must be in continuous close contact with the instructing officer to get clarification in
order to understand.
ii) Analysis
It must focus and make a critical analysis on the existing law and potential impact on
precedent, existing case law and other legislation.
iii) Design
It entails planning, fundamentally considers whether there is a need for the law, is it
necessary? If new legislative measures are necessary, prepare the structure (table of
contents/outlines).
iv) Composition and development
Usually at the conclusion of the level of design, LDM must sit down with Officials of
sponsoring Ministry for internal deliberations and discussion and attempts to solve
mistakes and focus should be on substance.

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 v) Scrutiny and testing
Draft will be allowed for stakeholder assessment, especially who have been vested
interest. Ministry may send copies, at this stage there are a number of conflicting
interests. Once agreeable, it will be sent to the Chief Parliamentary Draftsmen.
NOTE: The stages in drafting subsidiary legislation will comply with stages developed
by Thornton.
TYPES OF BILLS
- Amending bill
- Appropriate or Supply bill
- Codifying bill
- Consolidation bill
- Declaratory bill
- Enabling bill
- Finance bill
- Indemnity bill
- Validation bill
Therefore, Thornton what importance in Convention is paragraphing by breakdown
section, into sub – section, paragraphs. However, it is important to understanding in
legislative sentence.
REVISION QUESTION ON LEGISLATIVE DRAFTING
Question one
The United Nations Children‟s Fund (UNICEF) has prepared a model legislation aimed
at combating Female Genital Mutilation (FGM) and child marriages. The model law
envisages fast tracking criminal prosecutions and enhanced sentences for the
offenders. The UNICEF‟s country representative has received assurance from the
Ministries responsible for children that the draft law has the support of both the Union
Government and the Revolutionary Government of Zanzibar. But she has been advised
that whether or not the law will be enacted as proposed depends very much on the
processes in the two legislatures. She is worried that if the legislative procedure in
the National Assembly is fundamentally different from that in the Zanzibar House of
Representatives, it is likely that in the end, the processes may result into two pieces

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of legislation which are materially different. She is considering taking it through one
legislature (either National Assembly or the House of Representatives) and assessing
the outcome before taking it to the other. Citing relevant provisions and/or Orders,
advise her on the differences in the legislative processes between the National
Assembly and the Zanzibar House of Representatives

Question Two
“Hon. Speaker, [the Attorney General] is not the legal adviser to the National
Assembly. The proper legal adviser to the National Assembly is the Parliamentary
Legal Counsel”. Hon. Tundu Lissu “The Constitution and other laws entrusts the
drafting process to the Attorney General and NOT the Chief Parliamentary
Draftsman”. Anonymous
i) Describe the role(s) of the Attorney General and the
Parliamentary Legal Counsel in the legislative process from the
time a Bill is being published in the Gazzette until it is enacted.
ii) Compare and contrast the role(s) of the Attorney General and the
Chief Parliamentary Draftsman in the entire process of legislative
drafting.
Question Three
(a) Citing at least FOUR examples from any legislation referred to in the
Instructions to this Examination, discuss the role of cross-referencing in
drafting legislation. [10 Marks]
(b) What would be your reaction to the main arguments advanced by Judge
Mark painter in relation to cross referencing? [10 Marks]

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Question Four
The United Nations‟ Food and Agriculture Organisation (FAO) has, for the past 10
years, been pushing for a new Plant Protection legislation that would be in harmony
with international sanitary and phytosanitary standards (i.e. good practice in
agricultural production that ensures quality and safety of the end products). The FAO
in collaboration with the Ministry of Agriculture appointed consultants to review
legislation and come up with legislative proposals to be enacted by Parliament. It is
now four years since the international consultants prepared a draft „Plant Protection
Act‟ but nothing has been done since then. The Director General of FAO is concerned
that Tanzania is failing to comply with international standards. He has come to you
for advice on the following:
(a) How to get the consultants‟ draft through the process, until it
becomes law. [10 Marks]
(b) How to get it fast-tracked in both the Parliament and House of
Representatives so that it is enacted before the FAO‟s general
meeting scheduled for December, 2016. [10 Marks]
Question Five
“The three are distinct offices with very distinct roles. We would not accept, for
example, the advice given this morning by the Attorney General because he is not a
legal adviser to the Parliament. There is no relationship whatsoever between the
Chief Parliamentary Draftsman, the Attorney General and the Parliamentary Legal
Counsel”. An Anonymous MP. Discuss the extent to which you AGREE or DISAGREE with
the assertion.
Question Six
Susana has approached you for advice on the applicable law on the following topical
issues related to legislative drafting in the context of Tanzania Mainland:-
(a) The similarities and differences between the Attorney General (AG), the
Chief Parliamentary Draftsman (CPD), and the Parliamentary Legal Counsel
(PLC);
(b) The role and place of the PLC in the five main stages of legislative drafting
propounded by Thornton.

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 (c) Who, in your opinion, among the AG, CPD and PLC is most influential in the
legislative drafting process and why?
(d) The role of the President of the United Republic of Tanzania in the
legislative drafting process.
Advise Susana, citing and clearly elaborating the provisions of the relevant and
applicable legal instruments/laws.

Question Seven
Using examples, discuss the main approaches that have been used to domesticate
treaties in the course of drafting legislation in Tanzania mainland.

Question Eight
With examples, discuss the various stages where Policies ought to be considered in
the legislative drafting process in Tanzania Mainland.

Question Nine
Citing provisions of the applicable law in Tanzania Mainland and using at least three
(3) cases from common law, discuss the various approaches in addressing mistakes
that are found in legislation that has become operational.

Question Ten
Write concise notes (not more than two pages of the Examination Answer Book) on
any TWO of the following:
a. The key elements, including statutory requirements, of written submissions
b. The procedure for rectifying mistakes in enacted legislation in Tanzania
c. The relevancy of tracing the history of writing in understanding legal
drafting
d. The use of delegated legislation

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 LECTURE SIX
SUBSIDIARY LEGISLATION
i) Constitution, Cap.2
Analysis of separation of power and its functions of legislation including delegating
power by an Act of Parliament.
ii) Interpretation of Laws Act, Cap.1
If an Act of Parliament authorizes to make subsidiary. However, subsidiary legislation
the biggest are made by Local Government Authority.
iii) Cap. 287, Cap.289
- Local Government Urban Authority
- Local Government District Authority
- Local Government Finance Authority
NB: Subsidiary Legislation must be inconformity with the Parent Act
iv) Standing Orders of the National Assembly
Special Standing Committee on Subsidiary Legislation and Subsidiary Legislation have
to be laid before the National Assembly by putting them on the pigeon holes and
Committee of Subsidiary will go through them.
What is subsidiary legislation?
Subsidiary legislation are proclamation, rules, orders, regulations, rules of court,
notices, decree, by – laws made by Local Government Authority or agency who
conferred power to make it under the Constitution and the Laws of Parliament.
BASIS FOR SUBSIDIARY LEGISLATION
As a general rule, powers to enact laws is vested to the Parliament as per Article 64
of the CURT but the same Constitution allows the parliament to delegate powers to
enact subsidiary legislation through specific provision under the laws of parliament.
COMPULSORY REQUIREMENT OF SUBSIDIARY LEGISLATION
According to section 36 of the Interpretation of Laws Act, Cap.1 provides general
requirement of subsidiary legislation must not contradict principles of natural justice.
CONTROL OF SUBSIDIARY LEGISLATION
- Court control
- Parliamentary control

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 1. COURT CONTROL
This can be made by the High Court through Judicial Review.
What is Judicial Review?
For the purpose of subsidiary legislation, Judicial Review is the power of High Court to
check legality of subsidiary legislation either procedural legality or substantive
legality.
The important element of subsidiary legislation which the court may deal with them
through Judicial Review;
- Procedural impropriety, procedure to enact by law must be followed as
provided under the Principal Act or under the Interpretation of Laws Act.
- General procedure;
 Notice to General Public
 Consultation with the Stakeholders
 To publish a first draft of publication and Invitation of stakeholders to
provide their views
 To obtain views of stakeholders
 Preparing final draft
 Publication in Gazette
 Objection (If no objection by law must be taken to the proper person)
Also, Court when exercising the power on subsidiary legislation the court check on
substantive irregularity such as;
- Violation of Human Rights
- Violation of rules of natural justice
- Utra vires (To exceed power of Principal Act)
2. PARLIAMENTARY CONTROL
- By way of laying down subsidiary, legislation at the National Assembly as per
section 38 of the Interpretation of Laws Act, Cap.1.
- Laying down before the Parliament, laying down means the power of
parliament to as subsidiary legislation and to check procedural impropriety or
substantive impropriety so as to instruct the enacting authority to rectify or
defects which observed by the Parliament.

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NOTE: When subsidiary legislation are laid down before the parliament they will
proceed to be enforce until certain provision of subsidiary legislation will be ordered
to be removed and from there onward, such provision to be removed will cease to
operate and will be removed from the statute book of subsidiary legislation while the
remaining provision will continue to operate.
COMMON MISTAKE WHICH ARE OBSERVED BY THE PARLIAMENT WHEN SUBSIDIARY
LEGISLATION ARE LAID DOWN BEFORE IT.
According to the reports which are made by the parliamentary committee for
subsidiary legislation. The following are common mistakes which are frequently
observed;
i) Some subsidiary legislation are utravires, many legislative authority for by
law exceed their powers in enacting by law by either providing higher
punishment.
ii) Typing error, some of subsidiary legislation so as to lead to distort whole
meaning of by law.
iii) Some of by law contradict mandate, contradiction of mandate by subsidiary
legislation can cause failure of dispensation of justice by the court or any
other organ vested by power to deal with certain organ.
iv) Some subsidiary legislation violate the rules of precedent, some of
subsidiary legislation contradict with decisions made by the Higher Courts.
v) Some of subsidiary legislation are enacted contrary to the required
procedures.
QUESTION
Explain various way that parliament across common wealth employs in exercising the
making of subsidiary legislation?
Advantage of subsidiary legislation; Disadvantage of subsidiary legislation;
- Save state of emergence - It violate principle of separation of
- Save parliament time power
- Save tradition variation - It causes violation of Human Rights
- Save parliament cost
- It covers technical issues

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 LEGISLATIVE PROCESS MADE BY LOCAL GOVERNMENT
Local Government District Authority Act. However, District Council may make by
law concerning the following matters;
- To promote and secure order and good rule
- To maintain safety to the area of jurisdiction
- Any by law will implement the Local Government District Authority Act or
implementation of any other law, if such law comply with Local Government to
make by law. However, section 153 provides for powers to make by laws.
Procedures to make by laws by the District Council
All procedures to make by laws are the same but after the by law have been made the
following are procedures;
i) After preparing a final draft such final draft must be taken to the Regional
Commissioner and the Regional Commissioner shall submit the same to the
Minister responsible for Local Government as per section 155(3).
ii) After the Minister receive the by law, he may consent or refuse to consent
but if will consent he shall fix the date which the by law will come into
operation as per section 155(4).
iii) Publication
According to Local Government District Authorities Act, there are three (3) types of
Local Government;
- District Council
- Township Authority
- Village Council
1. DISTRICT COUNCIL
The procedure for the District Council to make by laws are;
- Notice to the General Public – s.155(1)
- Invitation or Consultation of stake holders who will be affected by the law
- Issuing or publishing first draft
- Notice of publication and invitation of stake holders to lodge objection
- To obtain views, suggestion or objection from stake holders
- To prepare a final draft by considering objections if any, Section 155(2)

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 - The District Council shall take the by law to the Regional Commissioner and the
Regional Commissioner shall forward the same to the Minister responsible for
Local Government as per Section 155(3).
- The Minister may consent or refuse to consent but if he will consent he shall
affix the date on which the by law will come to operation as per section 155(4).
NOTE: If the Minister for Local Government is required or about to sign any by law
which is made under a different law he shall consult the Minister responsible for such
relevant law.
- Publication – Section 37(1)(a) of the Interpretations of Laws Act, Cap.1
2. TOWNSHIP AUTHORITY
The Township Authority must obtain approval to make by law from the District
Council as per Section 160(1).
- Notice to the General Public (To inform of making by law)
- Consultation or invitation of stakeholders who will be affected by the law.
- Publication of 1st draft – Section 161
- Notice of publication or invitation of stake holders to lodge application as per
S.161(1)(2)
- After completion of the by law the Township council shall lodge the by law to
the District Council for approval and the District Council shall comment and
send the by law to the Regional Commissioner as per section 161(3)
- The Regional Commissioner may consent or refuse to consent but if consent
shall fix a date on which the by law will come into operation.
- Publication - Section 37(1)(a) of the Interpretations of Laws Act, Cap.1
3. VILLAGE COUNCIL
- To convene a Village Meeting (Village Assembly) as per section 169 of the Local
District Act, and the function of the meeting is to propose by law and to pass
proposed by law.
Procedure before Village Meeting;
 Notice of Village Meeting
 Publication of Meeting Agenda pass by law
 To prepare minutes of the meeting

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- Either to pass or refuse to pass by law proposed by the Village Council as per
section 169(1)
- If the Assembly will pass the by law it shall submit the by law and the Minutes
of the Village Assembly which considered and pass the by law to the District
Council where the village is situated as per section 169(1).
- After receiving the proposed by law together with the Minute the District
Council shall approve and from the date of approval such by law will be into
operation
- Publication

LEGISLATIVE BY LAW UNDER LOCAL GOVERNMENT

(URBAN AUTHORITY)
- Legislative power by the Town Council
- Legislative power by the Municipal Council
- Legislative power by the City Council

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 LECTURE SEVEN
DOMESTICATION
(TREATY MAKING AND INCORPORATION IN TANZANIA)
Ways of Application of Treaties;
a) Automatic application
This is enacted by Municipal law to be enforced in a country to safeguard interest of
contracting state and avoid conflict with existing legislation. Eg; Netherland power is
vested to King or on behalf to conclude international treaties.
b) Parliamentary approval
This is transformation by Legislative Act to take effect and once approved is applied
in the country. Example; Germany and Italy.
c) Treaties enforced in Municipal law
This is done by enacting separate legislation incorporating the treaty. Eg; Britain.
What is domestication?
This refers to the process of the parliament to enforce international instruments so as
to apply as the laws of United Republic of Tanzania.
Why domestication?
According to Article 63(3)(e) of the Constitution of United Republic of Tanzania of
1977 as amended, Tanzania is a dualism state (International laws are not part of the
Tanzanian laws) unless and until such international law is rectified by the parliament.
TYPES OF DOMESTICATION.
- By Court
- By Parliament
BY COURT
As a general rule, powers to domesticate any International law is vested on the
parliament but there are circumstance which the court may domesticate any
international law incase there is a delay by the Government to take certain
International instrument to the Parliament once there is the rights of any person
which are needed to be determined by using such International Law. Examples of
cases which domesticated International instruments;
- Rev. Christopher Mtikila v. AG

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 - Devarn Valambhia v. Ministry of Defence
NB: Once International instruments domesticated by court it has to be taken to
parliament so as to be Official domesticated.
METHODS/WAYS IN DOMESTICATION OF TREATIES IN TANZANIA
1. FORMULAR METHOD
This is a method of domesticating international instrument either full or partly
attaching the international instrument as a schedule on the laws of parliament.
Example; The Territorial Sea and Exclusive Economic Zone Act, this law attach with
the treaty known as Sea Convention, so such Convention form part and parcel of the
law.
Advantage of Formular Method;
- This method shows that the state complied with a treaty
Disadvantages of formular method;
- The treaty is made to bind many countries so the state will choose a party
which is suitable for her and leave others.
2. SUBORDINATION METHOD
This is a method where by the parliament enact special provision to empower the
Minister to make regulations which domesticate international instruments. Law which
used this method is Environmental Management Act under section 75(e) empower the
Minister to make regulations domesticating United Nation framework on climate
change. Section 78(9) empower the Minister to make regulation for domesticating the
implementation of Officer Dam Convention, the Merchant Shipping Act, section 426
and section 427 of the Act empower Minister the powers to domesticate international
instruments.
Advantage of subordination method;
- It saves time of the parliament by avoiding frequent amendment due to change
of international instruments.
Disadvantages of subordination method;
- There are some issues which are having public interest need to be debated by
the parliament other than giving powers to only one person.

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 3. WORDING METHOD
This is method of domesticating international instrument by making a law which is
copy and paste to international instrument. Examples of laws which used wording
method; Merchant Shipping Act, The Law of the Child Act, Cap.11.
Advantage of wording method;
- It shows that the state complied with the agreement.
Disadvantage of wording method;
- Hardship to implement the law because big part of the law is international
instrument.
4. HYBRID METHOD.
This is the method which used to domesticate international instrument by applying all
the three methods. Examples of the law which use hybrid, The Territorial Sea and
Exclusive Economic Zone Act by way of subordination, section 19 of the law empower
Minister to make regulation to domesticate international instruments.
- Wording method, the schedule of the law is pure international law
- Formular method, the law is having a schedule.
Advantage of hybrid method;
- This is a good method because it cover gaps or lacunae of the law
Disadvantage of hybrid method;
- The parliament can amend only small part of the law

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