History I Access to Justice in Tanzania.

Access to justice is not just getting the right or the justice or solution to one’s legal problems, it is allowing the opportunity for everyone in the society to bring a legal problem to a person who can decide the issues and if necessary provide an appropriate remedy.^[1] It encompasses a number of different aspects, for example the fairness with which litigants are treated, the justness of result delivered, the speed with which case are processed and the responsiveness of the system to those who use it.[2]  More also, access to justice refers to the equity with which those from differing backgrounds are able to gain from justice delivery system.^[3] Access to justice has its foundations in the international human rights law that addresses the right to equality of people before the law, equal protection under the law, and the right to be treated fairly by a tribunal or court. ^[4]

The concept of access to justice has evolved significantly over time, reflecting broader societal changes. In ancient civilizations, justice was often administered by local leaders or monarchs, with limited access for the general populace. The Magna Carta of 1215 marked a pivotal moment, establishing the principle that everyone, including the king, was subject to the law.[5] This laid the groundwork for more inclusive legal systems, although true access to justice remained limited to the elite for centuries. The 20^th century saw significant advancements in access to justice, particularly after World War II. The establishment of the United Nations and the adoption of the Universal Declaration of Human Rights in 1948 emphasized the importance of legal equality and the right to a fair trial. Many countries introduced legal aid systems to help those who could not afford legal representation, reflecting a growing recognition that access to justice is a fundamental human right. [6]

In recent decades, the focus has shifted towards ensuring that access to justice is not only available but also effective.[7] This includes addressing barriers such as economic inequality, discrimination, and lack of awareness on legal rights. Modern initiatives often emphasize the need for legal empowerment, community-based justice systems, and the use of technology to make legal processes more accessible.[8] These efforts aim to create a more equitable legal landscape where everyone can seek and obtain justice regardless of their socio-economic status.[9]

The history of access to justice in Tanzania is deeply rooted in its colonial past. During the German colonial period, the land covering mainland Tanzania was called the German East Africa. It was subjected to the German colonial rule from 1886 up to the end of the First World War 1918.^[10] There were two system in the administration of justice which was racial based. One for the natives and another for non-natives. [11] For natives’ German adversarial system in administration of justice was employed whereas in non-native where German rule was not sufficiently consolidated, the traditional authorities continued to settle disputes according to traditional procedures.^[12]

After German had lost in the First World War vide article 22 of the Covenant of the League of Nations, Tanganyika now Tanzania was renamed Tanganyika Territory following the Tanganyika Order in Council of 1920 and became under British rule.[13] During the British colonial period, Tanzania, then known as Tanganyika, adopted the common law legal system in 1920.[14] This system was adversarial, requiring parties to compete in court to obtain their rights, often favouring those with more resources and legal knowledge.[15] The legal framework was largely static, failing to incorporate local customs and practices which limited access to justice for many Tanzanians.

The British regime established two separate structures of judicial hierarchy. The first limb being the high court and the second one was the subordinate courts.[16] The two limbs operated according to English law on one hand and when both disputants were natives’ application of customary law was resorted. The high court had appellate, revision, review (supervisory) jurisdiction over subordinate courts. The decisions of the high court were appealable to East Africa Court of Appeal. During this period, different laws were codified and used in administration of justice, namely Tanganyika Order in Council, The Subordinates Courts Ordinance, 1930, Criminal Procedure Code, and Civil Procedure Code to name but few. All these laws gave the procedures to be followed in access to justice.

After independence, the colonial laws were maintained and the process of integration of native courts into the general court system was made vide the enactment of the Magistrates Court Act 1963 which became effective on 1^st July 1963.^[17] A new hierarchy court system was established. That is to say, the Primary Court, District Court, Resident Magistrate Court and the High Court.[18] The adversarial system of dispute settlement is the one in place where for the action to commence the plaintiff is to set the procedure in motion from the beginning up to the end. The courts play a minimal role of regulating the procedures in accordance with the law.

Post-independence, Tanzania made efforts to reform its legal system to better serve its citizens. The introduction of legal aid services and the establishment of the Tanganyika Law Society were significant steps towards improving access to justice.[19] However, challenges such as the high cost of legal proceedings, bureaucratic court procedures, and delays in case resolution continued to impede justice for many, particularly the poor and marginalized.[20] These issues highlighted the need for further reforms to make the legal system more accessible and efficient. In recent years, Tanzania has focused on legal empowerment and community-based justice systems to enhance access to justice.[21] Initiatives aimed to decentralize legal services, simplifying court procedures, and increasing public awareness about their legal rights have been implemented.[22] Additionally, the use of technology to streamline legal processes and provide legal information has been promoted. These efforts aim to create a more inclusive legal system where all Tanzanians can seek and obtain justice, regardless of their socio-economic status.

In Tanzania, the right of access to justice is a constitutionally guaranteed fundamental human right.^[23] This right is fundamental in the administration of justice. The right requires courts to be accessible to all persons without unnecessary and unjustified restrictions.^[24] The administration of justice is an exclusive constitution mandate of the Judiciary of Tanzania vide articles 4, 107B of the Constitution of the United Republic of Tanzania of 1977. To accomplish the objectives of the judiciary in administration of justice and to ease access to justice, on 6^th November 2023 the judiciary established the Electronic Case Management System (e-CMS) to increase efficiency in judiciary businesses. ^[25]

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[1] Boshe P. and Mbezi P, ‘The value of pro bono service in accessing justice in Tanzania’ <https://deliverypdf.ssrn.com/delivery.php> Accessed 12 January 2024.

[2] Kennedy G, ‘Access to Justice and Inevitable Reforms to the Civil Justice System: Reflections on Case Management and Legal Aid in Tanzania’ LST Law Review (Vol. 1, Issue 1, 2016) 19.

[3] Richard B, ‘Access to justice in Africa: Comparisons between Sierra Leone, Tanzania and Zambia’ <https://www.files.ethz.ch/isn/112459/NO130CT09.pdf> Accessed 12 January 2024

^[4] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 8

[5] Couto K, ‘Access to Justice –History and Evolution’ <https://shorturl.at/n9gzE> accessed 08 September 2024.

[6] Eventius C, ‘Basic Principles of the Legal Aid Legislation and their Incorporation in the Tanzania Legal Aid Act, 2017’ Legal Aid Journal (Vol. 1, No. 1, 2019) 2.

[7] Kennedy (n 2).                                               

[8] Fuchs I, ‘Access to Justice Requires Changes from the Legal System’ <https://shorturl.at/ePx9U> accessed 12 September 2024.

[9] ibid.

[10] Victor T, History of the Court System during Colonial Era <https://shorturl.at/siXdH> accessed 12 January 2024.

[11] ibid

[12] Mbunda LX, ‘Procedures of Disputes Settlement; Pre-colonial to post Independence Tanzania’ (LLM Dissertation, University of Dar es salaam 1985) 49-54.

[13] Britanicca, ‘Tanganyika historical state, Tanzania’ <https://www.britannica.com/place/Tanganyika> accessed 29 October 2024

[14] The citizen, ‘Access to Justice in Tanzania: It is high time the legal system was decolonized’ <https://www.thecitizen.co.tz/tanzania/oped/access-to-justice-in-tanzania-it-is-high-time-the-legal-system-was-decolonised-4250022> accessed 8 September 2024.

[15] ibid.

[16] Victor (n 10).

[17] ibid

[18] Victor (n 10).

[19] Twaib F, ‘Legal Empowerment of the Poor: Access to Justice and Rule of Law’ <https://shorturl.at/bkVJg> accessed 8 September 2024.

[20] ibid

[21] World Justice Program, ‘Access to Justice’ <https://shorturl.at/eXR1X> accessed 12 January 2024.

[22] ibid.

^[23] Constitution of the United Republic of Tanzania, Cap. 2 [R.E 2002], art 13(6) (a).

^[24] Mirindo F, Administration of Justice in Mainland Tanzania (Law Africa 2011), 58.

[25] Mnguruta HA and Ndelwa MB, ‘Salient Features of Case Management System Online Training hosted by Institute of Judicial Administration (IJA)’ 18^th August, 2022.