Salwan and Narang (2008) refer the term law as: (a) legislative pronouncements of the rules which should guide
one's actions in society; (b) the body of principles recognised and applied by
the state in the administration of justice; (c) a rule of action to which human
being's conduct must conform.
Labour law (Employment law) is the body of laws, administrative rulings, and
precedents which address the legal rights
of, and restrictions on, working people and their organizations. As such,
it mediates many aspects of the relationship between trade unions,
employers and employees. It
is the body of law that governs the employer-employee relationship,
including individual employment contracts, the application of tort and contract doctrines, and a large group of statutory regulation
on issues such as theright to organize and negotiate
collective bargaining agreements, protection from discrimination, wages and
hours, and health and safety. There are many different sources of law in any
society. Some laws will be written in the country's Constitution; others will
be passed by the legislature (usually a parliament or congress); others will
come from long social tradition. The following are sources of law.
A constitution is a set of fundamental
principles or established precedents according to which astate or other organization is governed. These rules together make up, i.e. constitute, what the entity is. When these principles are written
down into a single document or set of legal documents, those documents may be
said to embody a written constitution; if they are written down in a single comprehensive
document, it is said to embody a codified constitution. In any country with a written
Constitution, the Constitution will take precedence over any other source of
law. For example, if the Constitution says there is freedom of speech for all
citizens, but the social tradition is for women not to speak in public, a court
will protect the right of any woman to speak in public if she chooses to do so;
the Constitution takes priority over tradition.
Acts of Parliament/Local Laws:
These are sets of written law or statutory laws passed by the parliament of
Tanzania since independence in 1961 and sets of laws passed by the colonial
legislative council. All sets laws are subject to the basic law of the land
which is the Constitution of the United Republic of Tanzania of 1977 as amended
severally. Apart from ‘Acts’ there are other written laws passed through
delegated powers and commonly referred to as subsidiary, subordinate or
delegated legislation.
(i) Statutory Law: These are
laws passed by local legislature and are called “Acts’ to refer to laws passed
by the local legislature as from the period of independence in 1961 and those
passed by colonial legislative council are called ‘Ordinances’. However, as of
2002, through an Act of Parliament, The Laws Revisions Act of 1994 Chapter Four
of the laws of Tanzania [R.E. 2002,] all legislations previously known as
Ordinances, (laws enacted before independence i.e. laws enacted by colonial
administration-Orders in Council, commonly referred to as Ordinances) are now
legally recognized as Acts. Presently, all Tanzanian laws, including Ordinances
are referred to as ‘Acts’ and have been codified together in Chapters making it
a common reference of ‘Chapters’ or abbreviated as ‘Cap’. The principal
legislations and subsidiary legislations thereto, are published in the
Government Gazette and printed by the Tanzania Government Printers. Therefore
anyone can order for statutes through the Government Publication Agency.
(ii) Delegated/Subsidiary
Legislation (By law, Rules, Regulations), Orders
and Directives
Pre-existing Laws-Customary
and/or Religious Laws: Customary and/or religious law is another of law that
makes another authority to Tanzanian sources of law. Customary law and Islamic
law is established under section 9 of the Judicature and Application of Laws
Act, Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA).These are sets of
rules developed through customs, practices and/or usages of Tanzanian ethnic
tribes and they are accepted by Tanzanian as binding rules. The customs were
accepted by the colonial regime thus accepted to be applicable in ‘native
courts’ to native parties. At independence these rules continued to be binding
and were made part of the laws of Tanzania in all courts having exclusive
application at the primary courts. The application of customary laws is only
limited to; i) civil cases particularly on issues of marriage, succession,
inheritance, land and family relations. ii) Customary law applies only to
members of the community concerned. iii) Customary law applies only when there
is no written law, does not conflict with statutory law and as of today’s
conception, to circumstances which are not repugnant to principles of human
rights. To date customary laws include: codified customary laws, Islamic laws and
other religious laws.
(i) Codified customary laws or
Statutory Laws
These are sets of rules
codified under the procedure set forth in the Judicature and Application of
Laws Ordinance. They include a few of rules on the laws of person, rules of
inheritance in some tribes, and rules on wills. They are commonly found in the
Local Customary Law (Declaration) Order (Numbers one to eight), 1963.
(ii) Islamic Laws
These are few sets of law which
apply to Moslems inhabiting in Tanzania but they are not applied in its whole
fashion as it is in Islamic legal system countries. It is application falls
under the Judicature and Applications of Laws Act, Chapter 358 of the Laws of
Tanzania [R.E. 2002] (JALA). As such, it empowers courts to apply Islamic law
to matters of succession in communities and parties that generally follow
Islamic law in matters of personal status and inheritance. Driving their
sources from the Qua’ran, the Sunna of the Prophet, Ijma (the consensus of the
orthodox community) and the qiyas (the method of analogy), the decisions of
courts impose lenience application as compared to strict Islamic rules. The
local legislature and a mixture of customs have contributed to its modification
and application. However, before independence a double tier system of courts
allowed its application in Tanganyika where by the liwali courts applied Islamic law and
secular courts applied other civil and customary laws. By 1963 one system was
adopted to merge the two. In Zanzibar however, a double tier system still
exists where by Islamic courts known as Kadhi co-exists with secular courts. In Mainland Tanzania, the common
issues decided under these laws are those under the Law of Marriage Act,
Chapter 29 R.E. 2002; THE Administration (Small Estate) Ordinance, Chapter 30
R.L; the Restatement of Islamic Laws Acts, Act No. 57 of 1964; the Magistrates
Courts’ Act, Chapter 11 R.E. 2002 and the Waqf Commission Ordinance, Chapter 326
R.L
(iii) Personal and Other
Religious Laws
Much as the application of
Islamic law is in place and enjoy application in Tanzania courts through
Section 9(1) of the Judicature and Application of Law Ordinance of 1961. The
courts, particularly the Primary courts and High Court of Tanzania have been
liberal to apply other rules from personal and other religion in dispensing
justice where written laws do not provide for solution.
Received Law: Received law is
applicable in Tanzania only when there is no local written law to address the
matter at issue and when local circumstances permits. Received Law is
established under Section 2.3 of The Judicature and Application Laws Act,
Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA). Judges may make
reference to received law with such necessary modifications to suit local
circumstances. The sets of received law are common law, doctrine of equity and
statutes of general application in force in England on 22nd July, 1920.
(i) Common Law
These are the body of law
developed through judgments of the English courts which made reference to the
customs and usage of the English people and then interpreted in courts. By
preservation of courts, they remain applicable (when there is no local law or
rule) and persuasive laws in Tanzania through the doctrine of precedents.
(ii) Doctrine of Equity
These are the body of law
developed in England through decision of King’s Courts, common referred to as
the Lord Chancellor Courts, which were developed by judges appointed by the
King to sit in King’s court to make decisions on appeals by people aggrieved by
decisions of England courts. Since the King was referred to as ‘the fountain of
justice’ he was not bound by common law rules or decision. Thus, he dispensed
justice according to conscience and fairness. Later, the King appointed judges
who were referred to as Lord Chancellor to adjudicate on his behalf and hence
developed what is called today, as ‘the doctrine of equity’. Just as the
principle of common law, the doctrine of equity remain persuasive and
precedents when local circumstances do not provide for an answer.
(iii) Statutes of General
Application
These are sets of legislation
passed by the parliament of England to apply in England but were of general
nature that they would apply in other territories. However, only part of the
legislations which were in force in England on the 22nd July 1920 (commonly referred to as the reception date) was
received to apply in Tanzania.
Case Law/Court Decisions: Is the set of existing rulings which have made new interpretations
of law and, therefore, can be cited as precedent. It is another important
source of law in Tanzania. These are cases arising from the decision of the
High Court and Court of Appeal. They are either reported cases or unreported.
Therefore they form the basic precedents of Tanzanian laws and bind lower
courts thereto. Reported cases in Tanzania can be found in a number of Law
Reports. Between 1957and 1977 cases reported from the High Court of
Tanzania and the East African Court of Appeal appeared in East Africa Law
Reports. Any case law that is from a court of equal or higher rank to the one
where a case is now being heard, will normally take precedence over common law,
should they differ. Also, a decision by a higher court (for example a court of
appeal or supreme court) is binding upon a lower court. The lower court must
follow what the higher court has said, in another case where the circumstances are
similar. The main sources of Tanzanian court decisions are found in the
following documents.
TheHighCourtDigest(HCD) -The Tanganyika Law Reports
(TLR). This is the collection of cases decided by the High CourtsandCourtofAppeal(SupremeCourt)ofTanzania UnreportedCasesoftheHighCourtandCourtofAppeal -The East African Court of Appeal (EACA) and others)
International laws: These are laws which govern intercourse or relations between
sovereign states, or individuals and sovereign states at international level,
e.g. law of high seas, diplomacy, and international crimes (e.g. genocide,
crimes against humanity, and etc). International law may be
divided into two classes;
(i) Public international law: law governing relations between
states, or a state and private
individuals.
(ii) Private international law: law governing
relations between people across nations,
e.g. marriage and divorce between a Tanzanian man and Canadian woman.
General principle of law or general legal
principle refers to a principle that is
recognized in all kinds of legal relations, regardless of the legal system to
which it belongs. It can also be a principle that is widely recognized by
people whose legal order has attained a certain level of sophistication. In
International law, it refers to a principle that gives rise to international
legal obligations. The adjective ‘general’ indicates that they are principles
which are applied generally in all cases of the same kind which arise in
international law. For example, the principle of nonintervention.Likewise
International tribunals rely on these principles.
Writings of Publishers: These
are sources of law regarding to the intellectual property protection, i.e.
Copyrights. This requires anyone who wants to use the writings/material of an
author to recognize him/her. For example: Misra, S. N (2007), Labour and Industrial Laws, 23rd Edition, Central Law Publications, Allahabad
Conclusively, in any society,
everybody is subject to the law. Everybody must do as the law says, or face the
punishments which can be handed out to law-breakers. Employers are no
different. They, too, must obey the laws of their organisations. Societies have
laws in order to protect people from the actions of other people. It is clearly
impossible for everybody in any society to have absolute freedom as one person
exercised that freedom, it would trample upon somebody else's freedom.Labour law which is the body of law, governs the
employer-employee relationship, including individual employment
contracts and makes sure that rights of employees are abide to.
Black, H.C (1979), Black Law Dictionary, West
Publishing Company, USA Farrar and Dugdale (1990), Introduction to Legal Method. 3rd Edition; Sweet & Maxwell; London
Mihayo, P.B. (1983), Industrial Conflict and Change
in Tanzania; Tanzania Publishing House, Dar es Salaam
Misra, S.N(2007), Labour and Industrial Laws, 23rd Edition, Central Law Publications, Allahabad
Salwan and Narang (2008)
Academic's legal dictionary. 18th Ed., p. 201
Shivji, I.G., et al (2004), Constitutional and Legal System of Tanzania: a Civics Sourcebook, Mkuki na Nyota
Publishers, Dar es Salaam
United Republic of Tanzania
(2005), The Constitution of the United
Republic of Tanzania 1977 (G.N No.250 of 2005)
Webber, G.J. (1967), The Law of Master and Servant;
5th Edition, Sir Isaac Pitman and
Sons Ltd. London
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