Dispensation of Justice in the United Republic

The Judiciary shall be the authority with final decision in dispensation of justice in the United Republic of Tanzania.

In delivering decisions in matters of civil and criminal nature in accordance with the laws, the court shall observe the following principles, that is to say - (a) impartiality to all without due regard to ones social or economic status; (b) not to delay dispensation of justice without reasonable ground; (c) to award reasonable compensation to victims of wrong doings committed by other persons, and in accordance with the relevant law enacted by the Parliament; (d) to promote and enhance dispute resolution among persons involved in the disputes; and (e) to dispense justice without being tied up with technicalities provisions which may obstruct dispensation of justice.

In exercising the powers of dispensing justice, all courts shall have freedom and shall be required only to observe the provisions of the Constitution and those of the laws of the land.

There shall be a High Court of the United Republic (to be referred to in short as “the High Court”) the jurisdiction of which shall be as specified in this Constitution or in any other law.

Where this Constitution or any other law does not expressly provide that any specified matter shall first be heard by a court specified for that purpose, then the High Court shall have jurisdiction to hear every matter of such type. Similarly, the High Court shall have jurisdiction to deal with any matter which, according to legal traditions obtaining in Tanzania, is ordinarily dealt with by a High Court provided that: the provisions of this subarticle shall apply without prejudice to the jurisdiction of the Court of Appeal of Tanzania as provided for in this Constitution or in any other law.

There shall be a Principal Judge of the High Court (who in the following provisions of this Constitution shall be referred to as the “Principal Judge”) and other Judges of the High Court who shall be not less than thirty who shall be appointed by the President after consultation with the Judicial Service Commission.

Subject to the provisions of this Constitution or any other law concerning the powers of the Chief Justice who is referred to in Article 118, the Principal Judge shall be the special assistant to the Chief Justice in the administration of the High Court and of all the other courts subordinate to it, and in the discharge of the functions of that office, the Principal Judge shall perform such functions and duties as he may, from time to time, be instructed or directed by the Chief Justice and, for the purposes of this Article, the Principal Judge shall also be known as the Head of the High Court.

In addition to his ordinary powers as a Judge of the High Court, the Principal Judge shall also have power to perform all such duties and functions related to the jurisdiction of the High Court which, in accordance with the provisions of this Constitution or any other law, or the legal traditions applicable, are matters which are required to be performed by the head of the High Court: Provided that the provisions of this subarticle shall not apply in relation to the discharge of duties or functions which, in terms of the provisions of this Constitution or of any other law or in accordance with legal traditions applicable in Tanzania are expressly stated or are deemed to be the duties or functions required to be performed only by the Chief Justice.

For the avoidance of doubt in relation to the interpretation or application of the provisions of subarticles (2) and (3), of this Article, it is hereby declared that except where this Constitution or any other law provides otherwise, the Chief Justice may, from time to time, give to the Principal Judge directions or instruction concerning the discharge of his duties and functions as head of the High Court. Likewise, the Chief Justice may delegate to the Principal Judge some of his administrative and supervisory powers in relation to the discharge of functions in the High Court and in all other courts subordinate to it, and whenever necessary the Chief Justice may himself discharge directly any of the functions so delegated to the Principal Judge.

The office of Judge of the High Court shall not be abolished while there is a person holding that office.

Subject to the provisions of subarticle (8) of this Article, a person may only be appointed Judge of the High Court if he has special qualifications as defined in subarticle (7) of this Article, and has held one of those special qualifications for a period of not less than ten years.

For the purposes of construing subarticles (6), (8) and (10) of this Article “special qualifications” means a person who holds a degree in law from a University recognized by the accreditation authority in Tanzania, and (a) has been a magistrate; (b) has held an office in the public service while possessing qualifications of attorney or has been a private advocate; and (c) possess qualifications for enrolment as an advocate and, has possessed those qualifications continuously for a period of not less than ten years.

Where the President is satisfied that a person holding one of the special qualifications has not held that qualification for a period of not less than ten years, but that that person has the ability, knowledge and in every respect is suitable for appointment as Judge of the High Court, and there are reasons which make such person deserve to be so appointed, then the President may dispense with the requirement that such person shall have held the special qualifications for a period of not less than ten years, and may, after consultation with the Judicial Service Commission, appoint that person Judge of the High Court.

In the event that the office of Principal Judge falls vacant or that the Principal Judge is for any reason unable to perform the functions of his office, then, those functions shall be performed by one of the Judges who shall be appointed by the President for that purpose and that Judge so appointed shall perform those functions until a new Principal Judge is appointed and assumes the office of Principal Judge or until the Principal Judge who was unable to perform his functions resumes office.

In the event that the office of any Judge falls vacant or that any Judge is appointed Acting Principal Judge or is for any reason unable to perform the functions of his office, or if the Chief Justice advises the President that the state of business then obtaining in the High Court requires the appointment of an Acting judge, the President may, after consulting the Chief Justice in the usual manner, appoint an Acting Judge from amongst persons holding the special qualifications: Provided that - (a) a person shall not be deemed to be disqualified from appointment in accordance with the provisions of this subarticle for the reason only that he has attained the age specified in subarticle (1) of Article 110 of this Constitution; (b) for the purpose of appointing an Acting Judge in accordance with the provisions of this subarticle, the President may dispense with the requirement of holding the special qualifications for a period of ten years for the same reasons as those set out in subarticle (8) of this Article.

Any person appointed Acting Judge pursuant to the provisions of subarticle (10) of this Article shall continue to hold the office of Acting Judge for any period so specified in his appointment or if no period is specified, until his appointment is revoked by the President, but notwithstanding that his term of office has expired or that his appointment has been revoked, that person may continue to perform functions as Acting Judge until he has completed the preparation and delivery of a decision or until he completes any other business connected with matters which he had started hearing before his term of office expired or before his appointment was revoked.

Every Judge of the High Court shall vacate his office on attaining the age of sixty years, but the provisions of this subarticle shall apply subject to the subsequent provisions of this Article.

Any Judge of the High Court may retire from office in the service of the United Republic at any time on attaining the age of fifty five years, except where the President directs that he should not retire from office, and if the President so directs, then the Judge to whom the directions of the President relate shall not retire from office until the expiry of the period specified by the President for that purpose.

In the event that the President considers it to be in the public interest that a Judge who has attained sixty years of age continue in office, and the Judge agrees in writing to continue in office, then the President may direct that the judge continue in office for any period which may be specified by the President.

Notwithstanding that a Judge has attained the age at which he is required by the provisions of this Article to vacate office, a person who was holding the office of Judge of the High Court may continue to perform the functions of that office after attaining that age until he completes the preparation and delivery of the decision or until he completes any other business in connection with matters which he had started hearing before attaining that age.

The procedure for dealing with discipline of Judges, for reasons other than those specified in subarticle (2) shall be as prescribed under the law to be enacted by the Parliament.

A Judge of the High Court may be removed from office only for inability to perform the functions of his office (either due to illness or to any other reason) or for behaviour inconsistent with the ethics of office of Judge or with the law concerning the ethics of public leaders and he shall not be so removed except in accordance with the provisions of subarticle (4) of this Article.

Where the President considers that the question of the removal of a Judge from office needs to be investigated, then the procedure shall be as follows: (a) the President shall, after consultation with the Chief Justice, suspend that Judge from office; (b) the President shall appoint a Tribunal which shall consist of a Chairman and not less than two other members. The Chairman and with at least half of other members of the Special Tribunal must be persons who are judges of the High Court or Justices of Appeal in any country within the Commonwealth; (c) the Tribunal shall investigate the matter and make a report to the President, advising on the whole matter, and shall advise him whether or not the Judge concerned should be removed from office in accordance with the provisions of this Article on the grounds of inability to perform his functions due to illness or any other reason or on grounds of misbehaviour.

If the Tribunal appointed in accordance with the provisions of subarticle (3) advises the President that the Judge the subject of investigation by the Special Tribunal be removed from office on grounds of inability to perform functions due to illness or any other reason or on grounds of misbehaviour, then the President shall remove the Judge from office and the employment of that Judge shall cease.

If the question of removing a Judge from office has been referred to a Tribunal for investigation pursuant to the provisions of subarticle (3) of this Article, the President may suspend the Judge concerned from duty, and the President may at any time rescind the decision to suspend such Judge, and in any case such decision shall lapse if the Tribunal advises the President that the Judge be not removed from office.

The provisions of this Article shall be without prejudice to the provisions of subarticle (11) of Article 109 of this Constitution.

A Judge of the High Court shall not assume the functions of his office until he has first taken and subscribed the oath of allegiance and also such other oath concerning the discharge of his duties as may be prescribed in accordance with the law enacted by the Parliament.

There shall be an Appointments Advisory Commission for Judges and Magistrates in Mainland Tanzania which in this Constitution shall be known as the “Judicial Service Commission”.

Members of the Commission shall be - (a) the Chief Justice who shall be the Chairman; (b) the Attorney General; (c) a Justice of Appeal of Tanzania who shall be appointed in that behalf by the President after consultation with the Chief Justice; (d) the Principal Judge; and (e) two members who shall be appointed by the President.

A person shall not qualify to be appointed member of the Commission under the provisions of paragraph (e) of subarticle (2) of this Article, if he is a Member of Parliament or the holder of any other office prescribed in that behalf by a law enacted by Parliament.

In discharging its functions, the Commission may delegate its duties to various Committees to be established in accordance with law enacted by Parliament.

The functions of the Commission shall be – (a) to advise the President regarding appointments of the Judges of the High Court; (b) to advise the President on matters relating to discipline of Judges; (c) to advice the President in relation to salaries and remuneration for Judges; (d) to advise the President in respect of appointment and discipline for Registrar of the Court of Appeal and the Registrar of the High Court; (e) to appoint magistrates and control their discipline; and (f) to establish various committees for purposes of implementation of its functions.

The powers of appointment, control of discipline and removal of Judges from office shall vest in the President in accordance with the provisions of this Constitution.

Powers of appointments, confirmation, disciplinary and removal of Registrars of the Court of Appeal and the High Court shall vest in the President.

Powers of appointments, confirmation, disciplinary and removal of magistrates of courts in Mainland Tanzania shall vest in the Commission mentioned in Article 112.

The Parliament may enact a law which shall make provisions relating to implementation of the functions by the Commission.

It is hereby prohibited for a Justice of Appeal, a Judge of the High Court, a Registrar of any grade or a magistrate of any grade to join any political party save only that he shall have the right to vote which is specified in Article 5 of this Constitution.

For the purposes of construing the provisions of this Chapter of this Constitution, it is hereby declared that the provisions contained in this Chapter do not prevent the continuance or establishment, in accordance with the law applicable in Zanzibar, of the High Court of Zanzibar or courts subordinate to it.

Subject to Articles 83 and 116 of this Constitution, the jurisdiction of the High Court of Zanzibar shall be as specified in the laws applicable in Zanzibar.

Subject to the provisions of this Constitution or of any other law enacted by Parliament, where any law enacted by Parliament and which is applicable in Mainland Tanzania and also in Tanzania Zanzibar vests any power in the High Court, then the High Court of Zanzibar may exercise that power concurrently with the High Court of the United Republic.

Subject to the provisions of subarticle (2), the Chief Justice shall have no power over any matter concerning the structure and administration of the day-to-day business of the courts established in accordance with the Constitution of Zanzibar, 1984, or any law of Tanzania Zanzibar.

The Chief Justice shall, from time to time, consult with the Chief Justice of Zanzibar concerning the administration of the business of the Court of Appeal in general, and also concerning the appointment of Justices of Appeal.

There shall be a Court of Appeal of the United Republic (to be referred to in short as “the Court of Appeal”) which shall have the jurisdiction of the Court of Appeal as provided in this Constitution or any other law.

The Court of Appeal shall not have any jurisdiction in arbitration of any matter which is to be dealt with in accordance with the provisions of Article 126 of this Constitution concerning a dispute between the Government of the United Republic and the Revolutionary Government of Zanzibar.

The functions of the Court of Appeal shall be to hear and determine every appeal brought before it arising from the judgment or other decision of the High Court or of a magistrate with extended jurisdiction.

A law enacted in accordance with the provisions of this Constitution by Parliament or by the House of Representatives of Zanzibar may make provisions stipulating procedure for lodging appeals in the Court of Appeal, the time and grounds for lodging the appeals and the manner in which such appeals shall be dealt with.

There shall be a Chief Justice of the Court of Appeal (who in the subsequent Articles of this Constitution shall be referred to in short as “the Chief Justice”) and not less than four other Justices of Appeal; save that a full bench of the Court of Appeal shall consist of not less than five Justices of Appeal.

The Chief Justice shall be appointed by the President from amongst persons who possess qualifications to be appointed as a Justice of Appeal and shall be the Head of the Court of Appeal and of the Judiciary as defined in Article 116 of this Constitution and shall hold the office of a Chief Justice until he attains the retirement age of the Justice of Appeal, except if - (a) he resigns; (b) his office becomes vacant on grounds of illness or death; or (c) he is removed from the post of the Chief Justice by President.

The other Justices of Appeal shall be appointed by the President after consultation with the Chief Justice, from amongst persons who qualify to be appointed Judges of the High Court of the United Republic as provided for in Article 109 of this Constitution, or from amongst persons who qualify to be appointed Judges of the High Court of Zanzibar in accordance with the laws applicable in Zanzibar and have possessed such qualifications for a period of not less than fifteen years.

Whenever - (a) the office of Chief Justice is vacant, (b) the Chief Justice is absent from Tanzania; or (c) the Chief Justice, for any reason, fails to discharge his duties, and if, in the duration of any of these three events the President considers it appropriate to appoint an Acting Chief Justice, then the President may appoint an Acting Chief Justice from among Justices of Appeal.

The Acting Justice of Appeal shall perform the duties of the Chief Justice until another Chief Justice is appointed or until the Chief Justice who was absent from Tanzania or was unable to discharge his duties resumes duty.

In the event that an office of Justice of Appeal is vacant or that any Justice of Appeal is appointed Acting Chief Justice or if the Justice of Appeal is for any reason unable to perform the functions of his office, or if the Chief Justice advises the President that the State of business then obtaining in the Court of Appeal requires the appointment of an Acting Justice of Appeal, then the President may, after consultation with the Chief Justice, appoint an Acting Justice of Appeal from amongst persons holding qualifications for appointment as Justice of Appeal in accordance with the provisions of subarticle (4) of this Article.

Any person appointed Acting Justice of Appeal shall continue to hold the office of Acting Justice of Appeal for any period specified at the time of his appointment, until his appointment is revoked by the President, but not withstanding that the period of appointment has expired or that the appointment has been revoked, such person may continue to work as Acting Justice of Appeal for as long as may be necessary to enable him to prepare and deliver judgment or to do any other thing in relation to appeals or any other proceedings which were commenced before him prior to the expiration of such period or the revocation of his appointment.

For the avoidance of doubt over the construction of the provisions of subarticle (1) of Article 119 of this Constitution, it is hereby declared that a person appointed an Acting Justice of Appeal shall have full power of a Justice of Appeal and shall discharge all duties of Justices of Appeal, and that the quorum of Justice of Appeal mentioned in Article 122 of this Constitution shall not be invalid on ground only that one or more than one Justice of Appeal at any sitting is an Acting Justice of Appeal.

The office of Justice of Appeal shall not be abolished while there is a person holding the office of the Justice of Appeal.

No Justice of Appeal shall have jurisdiction to hear any matter in the High Court or in any magistrates’ court of any grade: Provided that where a Judge of the High Court is appointed Justice of Appeal he may, notwithstanding such appointment, discharge his functions in the High Court until he completes the preparation and delivery of the decision or until he completes any other business in connection with matters which he had started hearing before his appointment as a Justice of Appeal, and for that purpose it shall be lawful for him to deliver judgment or any other decision concerned in the exercise of the jurisdiction he had before he was appointed Justice of Appeal; provided that where ultimately that judgment or decision is challenged by way of appeal to the Court of Appeal, then in such circumstances that Justice of Appeal shall not have jurisdiction to hear that appeal.

Every Justice of Appeal shall vacate his office upon attaining the age of sixty-five, but the provisions of this subarticle shall apply subject to the subsequent provisions of this Article.

Any Justice of Appeal may vacate office in the service of the United Republic at any time on attaining the age of sixty five years except where the President directs that he should not vacate office, and if the President so directs, then the Justice to whom the directions of the President relate shall not vacate office until the expiry of the period specified by the President for that purpose.

In the event that the President considers it to be in the public interest that a Justice of Appeal who has attained sixty-five years of age continue in office, and the Justice of Appeal agrees in writing to continue in office, then the President may direct that the Justice of Appeal continue in office for any period which may be specified by the President.

Notwithstanding that a Justice of Appeal has attained the age at which he is required by the provisions of this Article to vacate his office, a person who was holding the office of Justice of Appeal may continue to perform the functions of that office after attaining that age until he completes the preparation and delivery of decision or until he completes any other business in connection with matters which he had started hearing before attaining that age.

The procedure for dealing with discipline of Justices of Appeal for offences other than those specified under subarticle (2), shall be as prescribed under the law to be enacted by the Parliament.

A Justice of Appeal may be removed from office of a Justice of Appeal for reason of inability to perform the functions of his office (either due to illness or to any other reason) or for misbehaviour and shall not be removed from office except in accordance with procedural provisions similar to those prescribed for removal from office of the Judge of the High Court as stipulated in subarticle (2) and (3) of Article 110A of this Constitution, and for that purpose the provisions of subarticle (4) of Article 110A shall apply to the Justice of Appeal in the same manner as applied to the Judge of the High Court.

The provisions of this Article shall apply without prejudice to the provisions of subarticle (5) of Article 118 of this Constitution.

A Justice of Appeal shall not assume office unless he has taken and subscribed the oath of allegiance and such other oath as may be prescribed by legislation enacted by Parliament.

The quorum at every sitting of the Court of Appeal shall not be less than three Justices of Appeal.

In every appeal a matter which requires the decision by the Court of Appeal shall be decided on the basis of the majority opinion of the Justices of Appeal hearing the appeal.

A single Justice of Appeal may exercise any power vested in the Court of Appeal not involving the determination of an appeals; except that - (a) in criminal matters, where a Justice of Appeal on an application for the exercise of those powers makes a decision which the applicant is dissatisfied with, then the applicant shall be entitled to require to have his application determined by the full Court; and (b) in civil matters, the Court of Appeal may nullify or alter an order, direction or decision of any other kind made by a single Justice of Appeal in accordance with the provisions of this Article.

The criminal and civil process, including warrants of arrest issued by the Courts in Mainland Tanzania and in Tanzania Zanzibar may be served and may be executed in any place in Tanzania subject to the following provisions - (a) where the court issues process to be served or executed in a place w here it has no jurisdiction, such process shall be sent to that place and the service or execution shall be effected in accordance with the procedure obtaining for service or execution of process issued by the court having jurisdiction in that area; and (b) where the law applicable in the place where the process is sent requires that a process issued by a court which has no jurisdiction be authenticated first by the court having local jurisdiction, then every process issued by the court elsewhere has to be authenticated first in accordance with the law before service or execution of such process.

Where a person is arrested anywhere in Tanzania in accordance with an arrest warrant issued by a court having no jurisdiction in the area of arrest, then the person so arrested shall be deemed to be in lawful custody and be brought before the court which issued the arrest warrant, but the provisions contained in this subarticle shall apply without prejudice to the provisions of the law applicable in the place of the arrest.

The provisions contained in this Article shall not prevent the enactment of a law providing for the procedure of sending process outside Tanzania issued by the courts in Mainland Tanzania or Tanzania Zanzibar.

There is hereby established the Special Constitutional Court of the United Republic whose jurisdiction, constitution and procedure shall be as stipulated in the provisions of Articles 126 and 128 of this Constitution.

The sole function of the Special Constitutional Court of the United Republic is to hear and give a conciliatory decision over a matter referred to it concerning the interpretation of this Constitution where such interpretation or its application is in dispute between the Government of the United Republic and the Revolutionary Government of Zanzibar.

In the performance of its functions in accordance with the provisions of this Article, the Special Constitutional Court shall not have power to inquire into or to alter the decision of the High Court or the decision of the Court of Appeal which has been given in accordance with the provisions of Article 83 of this Constitution or the decision of the Court of Appeal which has been given in accordance with Article 117 of this Constitution.

Every conciliatory decision given by the Special Constitutional Court pursuant to this Article shall be final; there shall be no right of appeal to any forum.

The Special Constitutional Court shall consist of members of whom one half shall be appointed by the Government of the United Republic and the other half shall be appointed by the Revolutionary Government of Zanzibar.

A person may be appointed a member of the Special Constitutional Court only if he holds or has previously held the office of Justice of Appeal or of Judge of the High Court of the United Republic of Tanzania or of the High Court of Zanzibar, or he is a person who has the ability and experience which qualify him to be appointed to the office of Judge or Acting Judge under the law for the time being in force, in Mainland Tanzania or in Tanzania Zanzibar, as the case may be.

A person may be appointed a member of the Special Constitutional Court either for purposes of determining one or two or more disputes should they arise. A member shall continue to execute his duties as a member of the Special Constitutional Court until the determination of the dispute in relation to which he is appointed or his appointment is revoked or until he fails to perform his duties as a member due to illness or any other reason.

The Special Constitutional Court shall hold its sittings only when there is a dispute to be heard, and shall sit in any place to be decided upon in accordance with the procedure applicable for the purposes of hearing disputes submitted to the Special Constitutional Court.

The quorum for every sitting of the Special Constitutional Court shall be all its members, and where any member is absent or the seat of any member is vacant, then the Government which had appointed that member who is absent or whose seat is vacant shall appoint another member to replace him. A temporary member appointed in accordance with this subarticle shall continue to hold office in the Special Constitutional Court until the substantive member resumes duty or until a person is appointed to fill the vacancy or until the dispute is determined, whichever of these events occurs earlier.

Every matter requiring a decision of the Special Constitutional Court shall be determined on the basis of the opinion of two-thirds of the members appointed from Mainland Tanzania and two-thirds of the members appointed from Tanzania Zanzibar.

Parliament may enact legislation providing for the election of the Chairman of the Special Constitutional Court, the procedure for the submission of disputes to the Court, the procedure for the hearing of disputes and the procedure for the transmission of the decisions of the Court to the Governments: Provided that where any matter is referred to the Special Constitutional Court before the enactment of the law referred to in this subarticle, the matter will be heard and decided in accordance with the procedures to be decided upon by the Court itself before hearing the matter, or if members of the Court fail to agree on such procedure, then the matter shall be heard and decided in accordance with the procedure to be decided upon by the Government of the United Republic in collaboration with the Revolution Government of Zanzibar.