User talk:Mgerwa Suleiman

HERBERT SPENCER--Mgerwa Suleiman (talk) 09:17, 8 May 2008 (UTC)

Spencer was born in April 27, 1820 and he died in December 8,1903. He was an English philosopher, prominent classical liberal political theorist and sociological theorist. In his book the Principals of Philosophy (Spencer, Vol. II. 1904:88) he defined sociology as the study of super-organic phenomena which is of relations among organisms. This sociology could study nonhuman societies like insects but the paramount super-organic (societal) phenomena are human society. Sociology according to him is the study of societal evolution and he believed that the ultimate goal of societal evolution is complete harmony and happiness.

In analyzing human society he employed evolutionary model and defined evolution as the master process of the universe and revolves around movement from simple to complex forms of structure. Evolution according to Spencer is based on three principles which are aggregation, differentiation and integration. That evolution revolves around the process of aggregating matters in the society, population and the structures that organize people and the subsequent differentiation and integration of the people.

SPENCER’S SOCIOLOGICAL PHYLOSOPHY OF LAW.

Spencer’s philosophy is based on three aspects or principles as her under provided.

THE ASPECT/ PRINCIPAL/ PRINCIPLE OF ETHICS

In this principal Spencer argued that individuals are the sources of moral law and all social phenomena in a given society and the motives of individuals are keys to understanding society as a whole. He felt that moral law was an extension of laws in the natural world; his research for scientific laws represented an effort to develop a scientific justification for his moral position. He said that once laws are discovered humans should obey them and cease trying to construct through political legislation and social forms that violate the laws.

Spencer deduced four sources of law namely: divine laws with quasi religion sanctions, instructions of past leaders, will of the rulers and collective opinion of the society. To him law was nothing but hardened custom. According to him the purpose of law is to resolve conflicting interests of the individuals in the society. This theory directed attention to the necessity of considering law in relation to other social relations.

SOCIAL STATICS

Through this aspect Spencer was of the view that human happiness can be achieved if individuals can satisfy their needs and desires without infringing on the rights of others to acquire the same rights.To him the nature of government machinery does not measure liberty what measure it are restrictions that machinery imposes upon it. The genuine liberty may seek to repeal those laws which coerce and restrict individuals’ liberty. The only role of the government is to safeguard the interest of individuals such as formulating policies and protecting those rights.

In Lochner v. New York (1905)198 U.S.A.45. The case was a landmark United States Supreme Court case that held the right to free contract that was imposed in the due process clause of the Fourteenth Amendment, it involved a New York law which limited the number of hours a baker could work each week. By a 5-4 margin, the Supreme Court rejected the argument that the law was necessary to protect the health of bakers, calling it an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract. Justice Rufus Peckham wrote for the majority while Justices John Marshall and Oliver Wendell,Jr. filed dissents.Lochner was one of the most controversial decisions in the Supreme Court's history, starting what is now known as the Lochner era. The Supreme Court invalidated scores of federal and state statutes that sought to regulate working conditions during the Progressive Era and the Great Depression. A typical criticism of the decision is that the Court discarded sound constitutional interpretation in favor of personal ideology, favoring property rights over the efforts of democratic majorities to enact economic regulations. This was reflected in Justice Oliver’s dissent, in which he wrote that the Fourteenth Amendment does not enact the Spencer's Social Statics. It was a reference to a book in which Spencer advocated a strict libertarian philosophy.

POLITICS

Spencer’s philosophy was to apply the organic evolutionary idea in relation to other social relations such as biological evolution and social evolution. Through this he was able to develop his principle of "Laissez Faire”. He was of the view that law and state would have to interfere with each other.

SPENCER AND UTILITARIANISM THEORY

Spencer was the first founder of liberal utilitarianism. As a liberal utilitarian he traced heavily in revolutionary theory in order to examine on how the liberal utilitarian sense of justice raised. He said that the liberty of one person is limited by the liberty of others.

He argued that moral rights (natural rights) provide special sources of happiness that is life and liberty. They can not make people happy but merely give them an equal opportunity to make themselves happy as best as they manage. These natural rights do promote general happiness indirectly hence they are regarded as “corollaries” of equal freedom.

Spencer regarded his new brand of utilitarianism as “rational” utilitarianism that he contended to be superior upon Bentham’s inferior “empirical” utilitarianism due to the reasons hereunder stated:

One, an ethical check. Spencer in identifying himself as a “rational” utilitarianism he said that ethics can be revolutionarily described in normal struggle for survival by humans. They employ evolution with an ethical check making it different from nonhuman evolution. It helps to limit individuals’ activities in his interactions with others

He further argued that “empirical” utilitarianism per Bentham is created from the past human experiences while his “rational” utilitarianism is to be examined by the intellect.

In addition to that Spencer’s “rational” utilitarianism opposed to Bentham’s “empirical” utilitarianism on the sense that Bentham was of the view that happiness is the “ultimate” end of the society on the contrary Spencer said that happiness should not be the “ultimate” end but it should be the “proximate” end of the society.

A SUMMARY OF SPENCER’S PHILOSOPHY

i/ Sociology should be legitimized as scientific discipline by studying other disciplines. ii/ Law are nothing but a hardened custom. iii/ Law and state would interfere with each other. iv/ Law should be considered in relation to other social relations. v/ There are four sources of law which are divine law, instructions of past leaders, will of rulers and collective opinion of the society. vi/ Individuals are the source of moral laws and social phenomena. vii/ The purpose of law are to resolve conflicting interests of individuals in the society. viii/ Once laws are discovered humans should obey them and cease trying to construct through political legislations and social forms that violates those laws. ix/ The government machinery does not measure liberty but only imposes restrictions. x/ Those laws that coerce and restrict individuals liberty should be repealed. xi/ The ultimate goal of society is complete harmony and happiness and it is restricted by the liberty of all others. Xii/ in “rational” utilitarianism happiness is the “proximate” end of the society and not “ultimate” end of it as in “empirical” utilitarianism. Xii/ maximization of pleasure and minimization of pain.

CRITICISM

Spencer was contradicting himself when he disagreed with Betham’s utilitarianism because Bentham said that the society must maximize pleasure and minimize pain. And on this point Spencer agreed so there was no need for him to disagree with Bentham due to the fact that the essential feature of utilitarianism is happiness where by pleasure is maximized and pain minimized.

Spencer’s social statics as used in the Lochner mostly is not practicable. There is no general rule without exceptions that is although individuals have their rights to do what they think fit. However those rights are subjected to limitations.

BIBLIOGRAPHY

BOOKS

Lord, L. (1979) Introduction to Jurisprudence. Stevens & Sons Ltd, London.

Mahajan, V.D. (2001) Jurisprudence and Legal Theory. 5th Ed, Eastern Book Company, New Delhi.

Paton, G.W. & Derham, D.P. (2004) A Textbook of Jurisprudence. 4th Ed, Oxford University Press, New Delhi.

Paranjape, N.V. (2004) Studies in Jurisprudence and Legal Theory.

THE TANZANIAN LAW OF MARRIAGE ACT--Mgerwa Suleiman (talk) 09:17, 8 May 2008 (UTC)

The term marriage refers to an agreement by which a man and a woman enter into a relationship with each other and which creates and imposes mutual rights and duties (N.V. Lowe & G. Douglas. Bromley’s Family Law 9th ).

Marriage is the voluntary union for life of one man to one woman to the exclusion of all others (S.M. Cretney, et al Principals of Family Law)

In Hyde v. Hyde (1866 LRIP & D 130, 133), it was stated that marriage is the voluntary union for life of one man and one woman to the exclusion of the others.

In Ahmmed Said Kidevu v. Sharifa Shamte (1989 TLR 148) Maina, J. Observed that marriage is the voluntary union of a man and a woman and it is contracted with the consent of the parties.

The provision of s.9 of the Law of Marriage Act, Act No.5 of 1971(Cap, 29 R.E.2002) defines the term marriage as the voluntary union of a man and a woman intending to last for their joint lives.

Generally marriage can be defined as a contract between a man and a woman that contracted with their free consent with the intention of living together for the whole of their lives.

The Law of Marriage in Tanzania is originated from the colonialists. In Tanzania by then Tanganyika, the British introduced the Tanganyika Order in Council (T.OC.) of 1920 that introduced the application of Customary Laws and the enactment of the Judicature and Application of Laws Act (JALA) (Cap, 358 R.E.2002) by then The Judicature and Application of Laws Ordinance (JALO).This provided for the application of Islamic and customary laws in marriage matters in the country.

Due to plurality in laws during colonialism and after independence there was internal conflict of laws. Tanzania tried to solve some of them; in 1969 the government issued the white paper which was like a palimateria from the report of the Spry Commission in Kenya. The white paper leads to the enactment of the Law of Marriage Act. Hereinafter referred to as the “Act”.

To some extent the Act represents the big effort by the Legislature to integrate and streamline various personal laws without unduly interfering with people’s customs and religious beliefs as hereunder provided in a nutshell:

The Act prohibit blood related relatives to get marry each other, this is provided under the provision of s.14 also in Tanzania there is no any religion or custom that allows such situation.

It prohibits too a married woman to contract another marriage while the former one still exist. Neither the Act, religion nor people’s custom do allow the married woman to contract another marriage. This is governed by s.15 (3).

To avoid the marriage from being declared nullity the Act under the provision of s.16 requires consent to be there as a general rule. Also in Tanzania as a general rule all kinds of religions and customs do require consent of the parties to marriage. This is supported by the case of Ahmad Said Kidevu v. Sharifa Shamte (1989 TLR 148), in this case the parties were married under Islamic law, they quarreled and separated  after the respondent had issued one ‘talaka’. It was stated that marriage is a voluntary union of a man and a woman and it is contracted with the consent of the parties.

Not only consent but also the manner of contracting the marriage. This is supported by the provision of s.25 (1). It is elaborated more in Daniel Masalu v. Musa Shadrack (1987 TLR 35), the appellant clamed damages of five head of cattle for adultery against the respondent. He paid the bride price of 10,000/= he wanted to contract marriage but he traveled from the place where his spouse was living and on return he found the woman married to the respondent. It was held that the payment of 10,000/= as a bride price did not constitute marriage according to the Sukuma customary law rites as stipulated under s.25 (1) (d) of the Act and there were no marriage at all.

Under religious marriage and customary marriage there must be witnesses at least two, one for a man and another for a woman. The Act too under s.27 (1) requires marriage to be conducted under the presence of at least two witnesses. In Ramadhan Ramadhan v. Sungi Andalu (1984 TLR 15), the appellant filed a suit claiming from the respondent four head of cattle as damages for inducing his wife to desert him. The issue was whether and Zainabu the respondent’s daughter were married, there was no marriage certificate which was issued but the appellant alleged that he married Zainabu in 1973 under customary law. It was held that payment of bride wealth even if proved, is not existence of marriage. There must be a clear evidence of marriage ceremony. The appellant failed to prove that there was marriage ceremony under s.27 (1) of the Act.

Most of religious and custom marriages are conducted openly and publicly, also the introduction of the Act incorporated this situation per s.28 that states that marriage should be public. The purpose of this is to enable many people to participate the event and them to give evidence when the issue of whether the parties were married or nor not arises.

In Tanzania the parties are allowed to petition  for a decree of divorce or separation in the court of law regardless as to whether their marriage was a customary marriage or religious marriage. And the Act by virtue of s.99 reads together with s.140 provides the rights for married couples to seek for a decree of divorce or separation. In Mariam Tumbo v. Harold Tumbo (1983 TLR 293), the petitioner filed a suit to the court asking inter alia the dissolution of her Christian marriage and the division of matrimonial assets. Lugakingira, J. as he then was dissolved the marriage but the matrimonial assets were not divided.

In Ahmed Said Kidevu v. Sharifa Shamte (1989 TLR148), the parties were married under Islamic law. They quarreled and separated after the respondent had issued one ‘talaka’. The appellant filed a suit to compel the wife to live with him. It was held that marriage is a voluntary union of a man and a woman and it is contracted with the consent of the parties. It is intended that the marriage will last for their joint lives of the parties. However, when difficulties arise in a marriage and one spouse who has been deserted is to commence or separation proceedings, the court can not compel him or her to live with her or his spouse.

CRITICISM

To some extent the Act under the provisions of s.99 and s.140 interferes the religious beliefs especially Christianity on the issue of divorce and separation, for Christians marriage is considered to be a sacrament between the couples. This is clearly shown in the case of Mariam Tumbo v. Harold Tumbo (supra).

Not only the issue of divorce and separation but also presumption of marriage, s. 160 of the Act states that if the couples have stayed together for two years or more than that they are presumed to be married until proved contrary while under religious beliefs and customs the parties are regarded as adulterers. In Hoka Mbofu v. Pastory Mwikaje (1983 TLR286), the appellant appealed against the decision of the district court that was requiring her to issue a decree of divorce to the respondent due to the fact that they lived in a concubine marriage for sixteen years. The High Court looked upon their life style and held that s.160 should not apply and the order of the district court was quashed.

PRIMARY SOURCES

Tanzania government of, the Judicature and Application of Laws Act (Cap, 358 R.E.2002) Government Printers, Dar-es-salaam.

Tanzania government of, the Law of Marriage Act (Cap, 29 R.E.2002) Government Printers, Dar-es-salaam.

SECONDARY SOURCES

Cretney, S.M et al (2003) Principles of Family Law

Lowe, N.V & G. Douglas (1998) Bromley’s Family Law. 9th Ed, Butterworth, London.

THE CONFUSION OF CONFESSIONS AND ADMISSIONS--Mgerwa Suleiman (talk) 09:17, 8 May 2008 (UTC)

Admissions as defined under the Evidence Act [Section 19 of the Tanzanian Law of Evidence Act, Cap 6 R.E 2002] is a statement oral or documentary, which suggest any inference as to a fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances here in after mentioned. The definition suggest that an admission should be a statement which is oral or documentary and that it must be made by a person who has interest in the suit but it should normally be made against the very person making it.

The term also has been defined as statement, oral, written, or inferred from conduct, made by or on behalf of a party to a suit, and admissible in evidence, if relevant, as against his interest, (P. Kivuyo and Sameja F, Evidence Simplified at page 37).

H. C. Black in his book entitled, Blacks Law Dictionary, of 1991 at page 31, the term admission is confessions, concessions or voluntary acknowledgements made by a party of the existence of certain facts. More accurately regarded they are, statements where a party, or some one identified with him in legal interest, of the existence of the facts which is relevant to the cause of his adversary

The same author proceeded by saying that admission is a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. An admission is not limited to words, but may also include the demeanour, conduct and acts of the person charged with a crime. By this definition it therefore follows that while the Evidence Act confines its meaning on the statements oral or written this definition is in explicit as it does not confine itself on the words.

For Y V Chandrachund and V R Manohar [Ratanlal and Dhirajlal The law of Evidence, 1997:77] the term admission is defined as a statement of facts which waives or dispenses with the production of evidence by conceding that the fact asserted by the opponent is truth. Admissions are admitted because the evidence of the party to a proceeding, in respect to the matter in dispute, whether by acts, speech, or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue

In the case of Thiru John v. Returning Officer [AIR 1977 SC 1724], admission was said to be the best evidence against the party making it and, though not conclusive, shifts the onus to the maker on principle that what a party himself admits to be true may be reasonably presumed to be true so that until the presumption is rebutted the facts admitted must be taken to be true. It follows therefore that while the term is defined by different authors it is evident that their meanings or views are different from the meaning given in the Evidence Act but for the purpose of the understanding admission in Tanzania the meaning as enshrined in the Evidence Act is the appropriate one.

The term confession is also defined by the Evidence Act (supra) under section 3 (1) to mean: words or conduct or combination of both words and conduct, from which, whether taken alone or in conjunction with the other facts proved, an inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed, or a statement which admits in terms either an offence or substantially that the person making the statement has committed an offence, or a statement containing an admission of all the ingredients of the offence with which its maker is charged, or a statement containing affirmative declarations in which incriminating facts are admitted from which, when taken alone or in conjunction with other facts proved, an inference may be reasonably be drawn that the person making the statement has committed an offence.

In the case of R v. Kifungu Nsurupia [[1941]8 EACA 89] it was stated that the term confession connotes an unequivocal admission of having committed an act which in law amounts to a crime. In the case of R v. Bampamiyki [1957 EA 473] the court stated that for the statement to amount to a confession it must contain all the ingredients of the crime with which the accused person is charged so that the accused could be properly convicted on his own plea.

Stephens defines the term confession, as an admission made by a person charged with a crime stating on suggesting the inference that he committed that crime. [M.N. Howard, et al Phipson on Evidence, 14th Edition, 1990: 674]According to Phipson a confession is a type of admission in relation to crime, i.e. an admission from which inference may be drawn that the accused committed the crime charged.

In the Blacks Law Dictionary confession is a voluntary statement made by a person charged with the commission of a crime or misdemeanour, communicated to another person, where he acknowledges himself to be guilty of the offence charged, and he discloses the circumstances of the act or the share and participation which he had in it.

HOW CONFESSIONS ARE ADIMISSIONS

The general rule is that both in civil and criminal cases any relevant statement made by a party is evidence against him. Such statements are under the evidence law are termed as admissions and confessions respectively.

Every confession must be an admission, but every admission in a criminal case need not be a confession. A statement may be irrelevant as a confession but it may be relevant as an admission. A statement is not admissible as a confession, but the same statement may yet for other purposes be admissible as an admission as against the person who made it. Hence it is well known as all confessions are admissions but all admissions are not confessions.

HOW ALL CONFESSIONS ARE ADMISSIONS

The meaning of the word confession as given by Phipson clearly suggest that all confessions are admissions as he define the term confession as an admission made by a person charged with a crime.

In most cases, confession is in itself an admission because the accused person admits the case in whole. Confessions by themselves contain the admissions with which the person charged admits.

A distinction here is that; an admission of a fact from which guilty is directly deducible or which within and of itself impose guilt, which is a confession, and admission of a particular act or acts or circumstances which may or may not involve guilty and which is dependent for such result upon other facts or circumstances to be established, which is not a confession but merely an admission.

In addition, a confession always goes against the person making it while an admission may be used in favour of a person making it. Thus it can be said that generally the rule governing confession is rigid and has no exceptions. When a person makes a statement which qualifies to be a confession under the Evidence Act such will be used against the maker and never in his favour and at this instance it is an admission.

However the general rule in regard to admission is that admissions are to be used against the maker. The rule though has some exception which allows admissions made in the favour of the maker admissible as admission [s. 23 of the Evidence Act]. From this it can be deducted that all confessions are admissions in the sense that they are made against the interest of the maker but not all admissions are confessions due to the fact that there some admissions which are made in favour of the interest of the maker.

Another aspect to be reflected here is that, where a conviction can be based on statement alone, it is a confession. This was reiterated by Sir Clement de Lestang, VP in the case of Anyangu and others v. R [1968 EA 239] “A statement is not a confession unless it is sufficient by it self to justify the conviction of the person making it of the offence with which he is tried.”

Hence a confession if deliberately and voluntarily made may be accepted as conclusive in matters confessed; this was similarly stated in the case of Queen-Express v. Sangappa [Emperor v. Narayen (1907) 9 Bom LR 789, 801]whereas in admission some supplementary evidence is needed to authorise conviction. Thus an admission is not a conclusive proof of the matters admitted, but may operate as estoppels.

Moreover no statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative offence to be confessed. Moreover a confession must either admit in terms the offence, or at any rate substantial all the facts which constitute the offence. An admission of a gravely incriminating fact even a conclusively incriminating fact is not of it self a confession.

A confession is a statement made by an accused person which is sought to be proved against him in a criminal proceeding to establish the commission of an offence by him while an admission usually relate to a civil transaction yet they may be used in criminal proceedings, this indicate that admissions covers both criminal and civil maters but confession is only to be found in criminal matters. Due to the veracity that the confessions are found only in criminal proceedings and admissions are found in both criminal and civil matters it follows as the day follows night that all confessions will fall in the category of admissions found in criminal matters. [G.V. Reddy (2004) Sujatha Law Series; the Indian Evidence Act, 1872: 88]

HOW NOT ALL ADMISSIONS ARE CONFESSIONS

However  confession is not taken as admission due to the fact that though confession is taken against the person making it in other instances the confession of one or two or more accused persons jointly tried for the same offence can be taken into consideration against co-accused as stipulated under section 33 of the Evidence Act. While admission by one of several defendant in a suit is no evidence against another defendant. This shows that not in all instances confessions are admissions basing on the premise that admissions can only be used against the maker which is contrary to the rules governing confessions which allows confession to be applied to the co accused.

Phipson explains that admissions by party have always constituted an exception to the hearsay rule, one kind of admission being confession by an accused person, that is, an admission by him about the facts charged against him.

The case of R.v. Mkareth [1971 HCD 74] illustrates the situation supporting that not all admissions are confession. It was stated: ‘A statement of a confession must be the one which in the absence of explanation or qualification and any particular circumstances, clearly points to the guilty of an accused person’.

When a person admits allegations, he is actually admitting the commission of such crime and such statements by themselves are highly considered. The contrary is in admissions where as it is provided under section 26 of The Evidence Act that admissions are not conclusive proof to a matter in controversy.

THE PROBLEM OF CONFESSIONS AND ADMISSIONS

Sometimes people do get difficult in distinguishing confession and admission.

Kulwa is charged with murder. During the investigations, he makes the following statement to the police officer, “it is true that the knife believed to have been used in killing the deceased is mine and it has all along been in my possessions.” Consider the admissibility or otherwise of that statement during the trial.

The issue to be discussed is whether the statement given by Kulwa is confession or otherwise.

A confession is acknowledgement of fault, wrong doing made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. For a statement to amount into a confession it should have the following qualifications:-

First, it must be freely and voluntarily made by the accused person. From the given scenario we have been told that, Kulwa made a statement to a police officer and there is no further information as to whether Kulwa was compelled in any way in making the statement. This can be taken as a presumption that the confession was voluntarily made. In this requirement it is upon the prosecution to prove affirmatively to the satisfaction of the court that it was voluntarily made and not obtained by any improper means. This was stated in the cases of R v. Thompson [1893] 2 QB 12] that, “It is the duty of the prosecution to prove in case of doubt the prisoner’s statement was free and voluntary and that they did not discharge themselves of the obligation.”

Another requirement is that, for a statement to be a confession it should be made to authorised person. The Evidence Act stipulates persons who can receive confession as; a police officer per section 3 (1) that a police officer is “any members of the police of or above the rank of corporal.” In addition section 27, a Magistrate and Justice of peace as provided under section 28 of the Evidence Act. These are the only persons who can receive confession under the Evidence Act. According to the scenario, Kulwa made confession to the police officer. This fact suffices the respective requirement of confession.

The other requirement is that, the statement must be made by the accused person. From the question Kulwa who is charged of the offence is the one who made the statement.

However it should be noted that, for a confession to be admissible a person must either admit in terms the offence or at any rate substantially all facts which constitute the offence, as it was stated in the case of R v. Bampamiyki [1957 EA 473] that;” A statement should be regarded as a confession only when it contains ingredients of the crime with which the accused person is charged, so that the accused person could be properly convicted on his own plea.”

An admission of a gravely incriminating fact is not itself a confession. In Swami v. King Emperor [1939 AIR 47] the court held that; “No statement that contains self exculpatory matter can amount to a confession; if the exculpatory statement is of some fact, which if true would negative the offence alleged to be confessed. A confession must admit in terms all facts which constitute the offence.

On the same footing in the case of Pavindar Kaur v. State of Punjab [AIR 1953 SC 107] whereby the accused was charged with murder and destruction of evidence for having committing murder of her husband by administering potassium cyanide poison and for causing destruction of her husband dead body. During investigation and trial, she stated;” My husband fond of hunting as well as photography. Some material for washing photos was purchased and kept in an almirah. My husband developed abdominal trouble. He sent for medicine. I placed that medicine in the same almirah. By mistake my husband took the liquid which was meant for washing the photos. If fell down and died. Due to fear I put his body in a trunk and threw it into a well.”

The Supreme Court held that; the statement of the accused did not amount to confession.

Therefore it can be said that if a statement given by an accused person can lead into conviction of the person without adducing other evidence to corroborate it such is a confession. This was clearly stipulated in the case of R v. Mkareh (supra) that “We think that the test is whether statement is such that in the absence of any explanation or qualification and in particular circumstances, it points clearly to the guilty of the maker. thus statement ‘I killed him’ unaccompanied by any exculpatory statements and uttered in relation to a person who has died of a natural cause or to missing funds as the case may be are in our view indicative of guilty and therefore a confession.”

However, this distinction is not taken in some other jurisdictions. In England, all incriminating admissions by an accused person count as confession. Commission of Custom and Excise v. Harz [1967 1AC 670] For example, in England, there is no difference in this respect between “yes, I killed him” and “yes, I was near the scene of the crime”. In England thus, statements by Kulwa amounts to confession.

Distinctly, in India, only that portion of information which relates distinctly to the fact discovered can be proved. Thus a statement “I stabbed X with my knife. I threw my knife in the well of my house” in India it will be taken differently. The first part of the statement that is “I stabbed X with my knife” is inadmissible as a confession, while the second part, that “I threw my knife in the well of my house” is admissible as confession. Therefore the statement of the accused “I threw my knife in the well of my house” is only admissible because it leads to the discovery of the knife. The other part of the statement is then inadmissible.

CONCLUSION

The statement by Kulwa does not amount to a confession and thus not admissible as evidence due to the fact that the statement does not show that the accused is admitting to have committed the offence and thus not admissible. This is backed up by the reasons given above that for the confession to be admissible it should be an unequivocal admission. The same had been repeated by Sir Clement de Lestang, VP in the case of Anyangu and others v. R (supra) “a statement is not a confession unless it is sufficient by it self to justify the conviction of the person making it of the offence with which he is tried.”

This statement drives me to the conclusion that the mere fact that the accused stated to have possessed the knife which ultimately killed the deceased and was in the possession of the said knife is not the sufficient ground to incriminate the accused.

The statementt of the accused can be taken as the evidence for the case of admissibility where it is corroborated, as an admission. The statement that does not amount to a confession is only evidence against the maker of it, thus an admission.

COMMUNICATION IS ALLOWED IN LITIGATION WITHOUT PREJUDICE--Mgerwa Suleiman (talk) 09:17, 8 May 2008 (UTC)

One of the major principles recognized by the law in the conduct of litigations that of disclosure of evidence. Parties therefore should disclose, to each other and for the purposes of the proceedings, any and all evidence, relevant to the issues in those proceedings, which is or has been in their possession, custody and power. Communications with an opponent may be made “Without Prejudice.”(Bila Kuathiri).

The word “Without prejudice” in a letter or document means that an admission made in the letter or document is not binding.

In the book, Phipson on evidence 16th Ed, the phrase “Without prejudice” explained to mean. “Written or Oral Communications which are made for the purpose of a genuine attempt to compromise a dispute between the parties may generally not be admitted in evidence”.

According to Ratanlal & Dhirajlal, [the law of Evidence, 1998: 90. 19the Ed] the expression “without prejudice” means without prejudice to the writer of the letter if the terms he proposes are not accepted. But if the terms proposed in the letter are accepted a completed contract is established and the letter, although written without prejudice operates to alter the old state of things and to established a new one In other words, “Without prejudice” simply means “I make you an offer if you do      not accept it; this letter is not to be against me”.

CONCEPT OF WITHOUT PREJUDICE

The concept without prejudice is the rule, which may be seen in two categories:

POLICY BEHIND THE RULE.

In law, the policy behind the “without prejudice rule” is that, parties should be encouraged as far as possible to settle their dispute without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (this also includes a failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings.

The rule aim at encouraging parties fully and frankly to put their cards on the table.

The public policy justification in truth essentially rests with the desirability of preventing Statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability. According to section 23 of the Indian Evidence Act, which is in parimatelia to section 25 of TEA, in civil cases the admissions are to be made when relevant. If admission of liability is made by a party upon an express condition that evidence of  such admission should not be given, that, it was made for the purpose of buying peace and settling disputes by compromise instead of legal proceedings or if an admission is made under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given, such admission is not relevant and is protected by this section.

In Highton v. H, [15 Bear 278] Mr. Romilly thus explains the reasons for the rule; “for if parties were to be afterwards prejudiced by their efforts to compromise, it would be impossible to attempt an amicable arrangement of difficulties”.

THE JUDICIAL BASIS OF THE RULE

The judicial basis of the rule is part contract and part public policy. In part it depends upon an implied agreement by the parties to the effect that what is said in settlement negotiations will not subsequently be relied upon in court.

The first letter passing between the parties marked “without prejudice” will be protected by without prejudice privilege even though unsolicited and thus there cannot be said to be any implied agreement between the parties.

The court in Instande v. Denny Bros Printings [2000 F.S. R. 869] granted injunctions preventing the use of without prejudice material in subsequent patent proceedings involving the same or related parties on the implied contract formulations. And it was held that, “the without prejudice” communications were governed by an implied agreements that there would not be used in the current or any subsequent litigation between the same or related parties.

In the three party situations where without prejudice letters written, for example, between A and B may be inadmissible in proceedings between A and C because it has nothing to do with contract.

Without prejudice is seen as a form of privilege and usually treated as such. However, it does not have the same attributes as the law of privilege. Unlike other privileges, without prejudice privilege can only normally be waived with the consent of both parties to the correspondence. This was clearly stated in the case of Rush Tompkins. v. GLC. [1989 I.A.C 1280 HL] Furthermore, “Without prejudice” documents are only protected in circumstances where a public policy justification can be provided, namely where the issues is whether admissions were made as it was explained in Muller v. Linsley & Mortimer [1996 I.P.N.L. 74]. Without prejudice privilege is generally a rule of admissibility either based on a contractual or implied contractual rights or on public policy.

THE SCOPE OF APPLICATION AND EFFECT OF S. 25 OF TEA CAP 6 R.           E. 2002

The section gives effect to the Maxim “interest re publicae sit finis litium” that is for the interest of the state that there should be an end of litigation. Rotanlan 8 & Dhirajlal, [the law of Evidence 1998: 9019th Ed].

In other words, it is a basic aim of the law to settle disputes amicably without the necessity of a court case and to further this end the parties during preliminary negotiations, will often make admission and reveal facts which they would not agree to in court. If these confidences were later freely admissible in evidence the result would be that it would soon become impossible to secure amicable pre-trial settlements of civil disputes.

Section 25 is subject to three main issues, which are;

- Are there people in a dispute - Are they negotiating - Are there terms offered

These three issues are there to determine the admissibility under S. 25.

The application of S. 25 of TEA is limited to those cases where there is a dispute or negotiations and in which terms have been offered to settles the disputes. In Madhavrav v Gulabbhai, [1898 23 Bom 177, 180] it was stated that the rule, which excludes documents marked “without prejudice”, has no application, unless same person is in dispute or negotiation with another and terms are offered for the settlement of the dispute or negotiation.

Thus, where letters were written without reference to any disputes they were held to be not privileged though they were marked “without prejudice” as per Dentrey Re, Exp. Holt [1893 2 QB 116, 119 -20] where it was stated that “The fact that the document is headed “without prejudice” does not conclusively or automatically render it privileged for an admission in evidence in any subsequent proceedings, and if a claim for such privilege of the document is challenged the court will look at the document to determine its nature”.

However, all documents which form part of negotiations between the parties are prima-facie privileged from admission in evidence if they are marked “without prejudice” even if the document in question merely initiates the negotiations and even if the documents does not itself contain an offer. Thus there are two circumstances which will give rise to application of the section, namely: - An express condition that evidence of the admission is not to be given - Circumstance from which the court can infer that the parties agreed together that evidence of the admission was not to be given.

Generally, the correspondence will be treated as within the rule where the following are considered, namely; that communication attract “without prejudice” privilege and the court admit such communications. Correspondence will only be protected by without prejudice privilege if it is written for the purpose of a genuine attempt to compromise a dispute between the parties. It is not a pre condition that the correspondence bears the heading without prejudice. If it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will as a general rule not admissible, as it was so held in the case of Rush and Tompkins v Greater London Council [1989 1 W.L.R.1280]

EXCEPTION (SIJAZIELEWA)

The phrase “Without Prejudice” is subject to several exceptions. In Unilever V Procter and Gamble [2001 1 W.L.R 1630 C.A] Robert Warker L.J set out the principal circumstances which “without prejudice” communications could be admitted in evidence, these include; Firstly is when the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible as it was so held in the case of Tomlin v Standard Telephones. [1969 1 W.L.R 1378 C.A]

Another exception has been shown in the case of Wood v. Cox [1912 4 D.L r 66] that an agreement apparently concluded between the parties during the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence.

Meanwhile, in a circumstance where there is no concluded compromise but there is clear statement made by one part to negotiations and on which the other part is intended to act and does in fact act, may be admissible as giving rise to an estopped, a good example is a case of HodgKinson and Corby v. Wards Mobility Services. [1993 2 All E.R 693. 697].

In cases of impropriety, one part may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety.

It can also be applied as exception where there is no public policy justification for exclusionary rule. This was shown in the case of Re D [1889 23 ch. D. 335,338]. Lastly evidence of negotiation may be given, in order to explain delay or apparent acquiescence. The fact of without prejudice negotiation rather than in the normal case their content may be relevant for example on an application to strike out for want of prosecution on an issue of delay in amending a patent or any other claim based on laches as it was in a case of Walker v. Wilsher, [1993 1 WLR 54, C.A].

CRITICISM

The “Without prejudice” phrases has been criticized by Wigmore who criticized the contract theory for say that “the true reason for excluding an offer of compromise is that, it does not ordinarily proceed from and imply that the adversary’s claim is well founded, but rather a belief that the further prosecution of that claim whether well founded or not, would in any event cause such annoyance as is preferably avoided by payment of the sum offered.

Another criticism on the phrase is that, it is in opposition to the general requirement of the law of evidence which requires all that relevant facts should be tendered in court in order to prove the case. In the contrary, the phrase “without prejudice” requires that all facts revealed during negotiations should not be used as evidence in court of law.

THE REFRECTION OF ARTICLE 15 OF THE CONVENTION AGAINST TORTURE IN THE TANZANIAN LAW OF EVIDENCE ACT [CAP, 6 R.E 2002] AND OTHER RULES OF EVIDENCE. --Mgerwa Suleiman (talk) 09:17, 8 May 2008 (UTC)

The word torture originates from Latin word ‘torquere’ meaning ‘to twist’. Also according to concise Oxford Dictionary, torture refers to the action or practice of inflicting severe pain as a punishment or a forcible means of persuasion. [Concise Oxford Dictionary 10th Ed] In law it refers to as infliction of severe bodily pain either to confess to a crime or to give more evidence in judicial proceedings. Examination by torture often called the question has been used as a judicial method to extort evidence from unwilling witnesses

On the other hand, confession as been defined by different authors and in case laws but in law is a statement made by a person who has committed a crime in which he or she acknowledges his or her guilty. If made in Court it is judicial, if made anywhere else it is extra judicial. An entirely voluntary that is trustworthy confession is admissible in evidence but if procured through force, inducements, threats, promises or through hope of escape or favour it is not trustworthy and is not admissible. - For the Confession to be admissible the following elements must be established: - - It must be made by an accused person.It must be true in the sense that it will sustain a conviction. - It must be freely made to a Police Officer of or above the rank of Corporal or any authorized officer.

ANALYSIS OF THE EVIDENCE ACT AND OTHER RULES OF EVIDENCE IN TANZANIA TO DETERMINE HOW THE SAME ARE CONSISTENT WITH ARTICLE 15 OF THE CONVENTION.

For the sake of this question, the writer is exploring from the Evidence Act, the Magistrate Court Rules of evidence and the Zanzibar Evidence Decree so as to determine the extent through which the mentioned legislations has reiterate the wording of Article 15 of the Convention.

The admissibility of an alleged confession is a question for the Court, what weight it is entitled to, is a question for the jury (assessors). But the general rule on admissibility of confession in evidence in Tanzania Mainland context is such that, if prosecution can proves that it was made voluntary the same is to be admitted, [S. 27 of The Evidence Act of 1967]. It does not matter whether the confession was made before the arrest or after, but as long as it was made to an authorized officer. But if procured through torture or any other inhuman treatment, it is inadmissible. The latter phrase here in above has been reiterated in the Evidence Act (herein after to be referred as the “Act” S 27 (1) ready together with sub section (3). The Sections provides that: - “A confession voluntary made to a Police Officer by a person accused of an offence may be proved as against that person”

While sub section 3 provides that, “A confession shall be held to be involuntary if the Court believes that it was induced by any threat, promise or other prejudice… by any other person in authority”

Although as a general rule confession obtained as a result of inducement or threat should not be admissible under s.27 of the Act, any confession made by the accused can be invalidated on the grounds of inducement, threat or promise. Conditions to be satisfied for excluding confession includes the followings: - a.	The confession must appear to the Court to have been caused by any inducement threat or promise. b.	Any such inducement, threat or promise must have reference to the charge against the accused person. c.	Any such inducement, threat or promise must proceed from a person in authority.

a.	Any such inducement, threat or promise must be sufficient in the opinion of the Court to cause a reasonable belief in the mind of the accused that by making it he would gain an advantage or avoid an evil of a temporal nature.

Section 29 of the Act introduces an entirely new principle regarding the admissibility of confessions resulting from an inducement. Under the law operative else where in East Africa and in England such confessions if the inducement is offered by a person in authority are inadmissible. The test applied in determining whether the confession is admissible being that of its voluntaries. However, this section makes no distinction between confession made following an inducement by a person in authority and by a person not in authority and adds a new test of admissibility. In addition to the test of voluntaries, the test of whether or not the inducement has been likely to affect the truth of the confession is introduced.

That section presents certain difficulties since the intention may well have been that the later part of the section should render inadmissible confessions result from inducement likely to cause untrue admission of guilty to be made; it does not specifically say so

Hence vide S 29 of the Act, under specific situation allows confession caused by threat, inducement or other inhuman treatment as the case may be not to be rendered inadmissible unless the Court forms an opinion that the inducement was made in circumstances that resulted in an untrue admission of guilty. The test is whether the accused was placed in such a position or situation that he would rather give an untrue statement than a true statement. Thus, case laws are of profound importance.

In Karuma Kamau v. R [195522 E.A.C.A 364], the Court of Appeal was of the view that, “the mere fact that evidence was illegally obtained should not make it inadmissible in that a Court always had discretion to disallows that evidence”

Whereas in the case of Thadei Mlolo & another v. R [1995 T.L.R 187], the Court was of the view that, “Under S 29 of the Act, an involuntary confession is admissible if the Court believes it to be true. However the section cannot be invoked where due to actual torture applied on the accused, led to untrue confession”

In line with the above case holding is the case of Josephat Somisha Maziku v. R [1992]T.L.R 227], in which the appellant was charged with stealing by public servant. On his arrest he confessed to the ‘sungusungu’ (local guards) when they interrogated him to have stolen the louver glasses. The High Court on appeal observed inter alia that, while it is trite law that the condition precedent for admission of a confession is its voluntaries, a confession is not automatically inadmissible simply because it resulted from threat or promise, it is inadmissible only if the inducement or threat was of such a nature as was likely to cause an untrue admission of guilty. It is principle of evidence that where a confession is by reason of threat, involuntary made and is therefore inadmissible, a subsequent voluntary confession by the same maker is admissible, if the effect of the original torture or threat, has before such subsequent confession been dissipated and no longer the motive force behind such subsequent confession

From the above arguments, it is clear that s. 29 and s. 30 of the Act should be read together. The effect of these sections is to leave on the Court the duty of deciding whether confession sought to be tendered in evidence by the prosecution should or should not be admissible. An accused is therefore free to repudiate or retract a confession sought to be tendered against him and when he does so the burden rests on the prosecution to bring evidence to prove that the confession was freely and voluntarily made by the accused person. In Tuwamoi v. Uganda [1967 E.A] in which it was said that ,it will be dangerous to rely on a confession which has been retracted or repudiated unless the court after considering the facts of the case, arrives to a conclusion that the confession is true. This was insisted in Ezekiel v. R [1972 HCD 192]

Again, under s. 31 of the Act, confession leading to discoveries of necessary things on the facts in issue even though obtained through torture is admissible. The intention of this section is to admit material facts or objects discovered for concealment as a consequence of statements made by the accused. In Yoram Nkanghule and another V. R [1984T.L.R 79] the accused persons upon their arrest, they were beaten and this lead to their confessions. The second appellant after making the confession went further, he lead the way to his house and indicated a spot under his door saying he kept the money there. The soil was removed but no money was found. The accused persons were subsequently charged. The Court held that, “although the appellants confessions were ordinarily inadmissible. The fact that there was unusual state of affairs concerning second appellant was relevant and admissible. It tendered to prove a conduct from which a second appellants’ guilty could be inferred. In such a context it does not matter if illegal means are used in getting at the fact.” Not only the above sections but also Section 33 of the Act allows admissibility of confession by co-accused even if obtained by inhuman treatment in so far it is the truth and has fulfilled the conditions necessary for the said confession to exist, this was stated in the case of Choa & another v. R [1953 22 E.A.C.A 364].

Other Rules of evidence enforce in Tanzania are the Magistrate Court Rules of Evidence [Cap 11 R.E 2002] applicable in Primary Courts and the Zanzibar Evidence Decree, Cap, 5 of 1917], s.13 of these rules provides a statement which is consistent with Article 15 of the Convention. S.13 (1) (b) provide that, “No evidence may be given in a case against a person accused of an offence where confession is caused by a threat, or given in promise.” Where as s.13 (2) provide that: “No evidence may be given in a case against a person accused of an offence of any confession made when he is in custody unless the confession was made directly to a magistrate or to a justice of the peace, who has been assigned to a district court. Even if such confession is made to a magistrate or such justice of the peace no evidence may be given of the confession if it was caused by the threat or promise”

LAW IS A PROFESSION--Mgerwa Suleiman (talk) 09:02, 8 May 2008 (UTC)

The fact that lawyers form a profession seems to be accepted as a truism. It is one of the few occupations which for centuries have enjoyed the status of a profession. Even after the field was narrowed in the past two centuries, the profession of the law has continued to occupy a place among professions, and to enjoy the status of professionalism.

According to Black’s Law Dictionary a profession is a vocation, occupation requiring advanced education or training.A profession is further defined as an especially desirable and dignified occupation. It implies intellectual training and an expertise which is largely mental in character.

The 1980 Report of the British Royal Commission on legal services described “profession” as follows: When a profession is fully developed it may be described as a body of men and women (a) identifiable by reference with some register or record; (b) recognized as having a special skill and learning in some field of activity in which the public needs protection against incompetence, the standards of skill and learning being prescribed by profession itself; (c) holding themselves out as being willing to serve the public; (d) voluntarily submitting themselves to standards of ethical conduct beyond those required of the ordinary citizen by law; (e) undertaking to accept personal responsibility to those whom they serve for their actions and to their professions for maintaining public competence.

A legal profession is, therefore, an occupation calling or vocation of those people who have attained advance specialized education and training in the field of law and are qualified and licensed to practice law. These people are called Legal Practitioners or advocates. The legal profession is governed by various legislations, in order to make them not go outside the ethical and other obligations of legal practitioners. Among the legislations in Tanzania are the Advocates Act and subsidiary legislations made thereunder, the Tanganyika law society Act, and The Rules of professional conduct and Etiquette of the Tanganyika Law Society. The latter is the one in which we can find the characteristics of a legal profession.

This work shall be confined into differences between legal profession and business while discussing in details the main characteristics of the legal profession.

WHY LAW IS A PROFESSION

To determine as to why law is a profession one has to look upon the characteristics of a legal profession that distinguish law from other business as hereunder provide

Advertisement

The first characteristic which distinguishes legal profession from business is the rule against advertisement. The advocates Act and the Rules of Professional Conduct and Etiquette of the Tanganyika Law Society (hereinafter referred to as the Rules of Professional Conduct and Etiquette) prohibit the employment of any kind of advertisement through the media or such other means which are regarded as amounting to advertisement.

The provisions of rule 5 of the Rules of Professional Conduct and Etiquette, provides among other things, the following; No advocate may directly on indirectly apply for or seek instruction for professional business, or do or permit in the carrying on of his practice any act or thing which can reasonably as…advertising or as calculated to attract business unfairly. In its scope, the rule against advertisement is wide under the law; it embraces not only self-promotion in newspapers, magazines and so forth, as is ordinarily understood in business. In respect of an advocate or firm of advocates it covers a considerably wider area. It includes such acts as an over description of oneself on a nameplate, the use of an ostentatious nameplate, or displaying a nameplate elsewhere than at one’s place of business. It also includes the taking of photographs which are intended for publication while wearing his gown.

The rule against Touting

The other difference between the two is the rule against touting. This rule is covered by section 47 of the Advocates Act and rule 5 of the Rule of Profession Conduct and Etiquette. Touting is the use of intermediaries (touts) to bring or attract clients to one-self. Although this is prohibited in law it is a very common, important and legal practice in business transactions.

Touting is not only professional offence but also criminal. In fact, tout are regarded with such aversion among legal circle that the law gives to the Chief Justice Powers to exclude them from the precincts of the Court. In a certain case an aspiring Advocate was removed from the list of applicants for enrolment after allegations of touting were levelled against him. He had to wait for an entire year before being admitted.

Exclusion of non lawyers.

Another difference is that, for a person to act as a lawyer he/she should have obtained some special qualifications, whereas in business, so long as a person has got capital there are no any prior qualifications for him to be a businessman. In our country, before a person can practice as a lawyer he should, first, be enrolled as an advocate as per the provisions of the Advocates Act. Or a person may be entitle to practice as an Advocate if he is solicitor of the supreme Court in England, Northern Ireland or the Republic of Ireland, or if he hold some qualifications as are provided under the Advocates Act or if he is the holder of any similar qualification which is accepted by the council of legal education as a professional qualification.

Section 41 of the Advocates Act provides for the restriction of unqualified persons not to act as Advocates. Sub section (2) of this section makes the contravention of this section an offence and contempt of the Court which may result to penalty or incapacitation of maintaining action for any costs in relation to the suit, forfeiture and fine. In addition to section 41, section 42 of the Advocates Act provides for penalty for pretending to be an Advocate.

However there are some circumstances in which non lawyers are allowed in some restricted sense to represent others before the Court. A party may be represented in civil suit, if he is a minor or, for any sufficient cause, he cannot adequately put his case or defend himself. The court should not allow a representative of a party to act on his behalf merely because he would like the representative to speak for him, or he thinks that the representative is cleverer than he is. But this practice of finding for the sole reason of his competence is very common in business transactions.

The above point was illustrated in the case of N.K.J. Zabron v.Naiman Moiro. In that case, a non lawyer named Rangia was seeking to represent a person who was a party to the case on the basis of a power of attorney in which the party purported to grant him the right to represent him before the Court. In denying audience to him, Nyalali, C.J., said; I am not aware of any provision of law permitting the conduct of case by a person holding a power of attorney where the party concerned is also present in Court. The learned trial judge undoubtedly was wrong to permit the said C.J. Rangia to appear in the case.

Remuneration

The remuneration rules also mark the distinction between the two. In normal business transactions remuneration is subject to contractual agreement between the parties transacting, whereas in legal profession remuneration of Advocates are governed by the orders made by the Remuneration committee. According to section 49(2) of the Act, the Chief Justice or the remuneration committee may make orders prescribing and regulating the remuneration of advocates in regard to both contentious and non contentious business.

Advocates are not allowed to agree or accept remunerations above that which is provided by the remuneration rules. However this rule is somewhat watered down by other rules, for instance, rule 13 and 14 of the Advocates Remuneration and Taxation of costs Rules, under which as between client and advocate, additional remuneration may be allowed where a job requires and receives exceptional dispatch. However, despite the fact the fact that the Advocate may agree with his on the amount he is going to charge him, he cannot charge him below the minimum amount set by the Remuneration rules.

The prohibition of the sharing of profit with non legal personnel. According to Rule 6(f) of the Rule of professional conduct and etiquette of the Tanganyika Law society, an Advocate is not allowed in any way to share his profit with a person who is not a legal professional. This is different from normal business transactions, where a businessman can share his profits with whoever he wishes.

A lawyer should not be used as a tool by his client.

Though a lawyer is an agent or representative of his client, he cannot afford to be tool in hand of the client. No member of the legal profession should accept such work which make him disloyal to the court or place him in a compromising position. In normal business transactions however, the businessman is allowed to undertake any type of business provided that it legal and it is not contrary to any public policy.

Fiduciary duty to the client.

Despite the fact that a lawyer is not a tool in the hands of his client, yet he is in a position of trust, and he must do every thing to protect the interests of his client according to law. Whenever it appears that a lawyer gives out the secret of his or her client that means he break the fiduciary duty that he or she owes to his or her client. Whereas in business transaction the relationship between the businessman and his client is based upon contract, a business man is not a trustee of his client (subject to various exceptions, like banking business)

Competition

No member of legal profession should compete with the other members of the profession. Allowing competition among advocates will amount to defeating the purposes for the enactment of provisions which prohibits advertisement and touting. However competition is the key feature in normal business transactions, since businessmen have to compete with each other in order to establish themselves in their respective businesses.

Conflict between duty and personal interests

Whenever there is conflict between his interests and duty, his duty must prevail, whereas in normal business transactions the businessman’s interests prevail. In an application before the Advocates Committee at Dar es Salaam, the Mr. Benard Mrema complained against Dr. Lamwai for not represented. The reason given for non representation is that the advocate (Dr. Lamwai) was a member of parliament hence too busy to attend the case. The committee ruled for the complainant stating that the complainant had lost the case due to Dr. Lamwai’s negligence. Being a member of parliament was Dr. Lamwai’s personal interest in relation to his duty as an advocate.

DUTIES OF ADVOCATE --Mgerwa Suleiman (talk) 11:39, 8 May 2008 (UTC)

THE CONCEPT OF AN ADVOCATE

An advocate for an ordinary person is known to be a person with LLB qualification. The scope of the minds of people goes as far as representation of the clients to the court of law. Somehow explicit definition states that an advocate is a person involved in advising clients and drafting legal documents as well as appearing in the court of law to defend their clients.

The law defines an advocate as any person whose name is duly entered upon the Roll this is per s. 2 of the Advocates Act (cap 341 R.E 2002). Thus the “Roll” means the list of Advocates kept by the register of the High Court,s.2 of the same Act (supra) certain qualification are of vital importance for a person to be eligible to qualify as an advocate, these qualification bear academic and professional one and the said person has to go through certain oral examinations conducted by the Council of Legal Education  and subsequently be interviewed by the chief justice s.8 of the asme Act (supra).In Tanzania the roles of advocates are wider as they are the only persons who can practice law in all regular courts. This is per s.33 of the Tanzanian Law of Magistrates Act, [Cap,11R.E.2002].

The duties of the advocate are classified as five-folds. As Fauzi Twaib [The Legal Profession in Tanzania: The Law and Practice, at page76] on lord Macmllan classification the Advocate has a duty to his clients, a duty to his opponent ,a duty to the court, a duty to himself and the duty to state. For Mwalusanya, J. (as he then was), these duties are not exhaustive thus in the case of Khassim Hamissi Manywele v. R, [Criminal Application No. 39 of 1990 High Court of Tanzania at Dodoma, (Unreported)] added that the good advocate must be histrionic, crafty, courageous, eloquent, quick minded, charming, and great hearted. However for the discharge of his duties as provided for by Lord Macmillan it needs talents as there are conflicting interest against each duty which is the offspring of the conflict of interest.

DUTIES OF AN ADVOCATE

To start with the duty of an advocate to the client; this starts at the time of taking instructions from the client. In giving instructions, an advocate should be patient as he is not supposed to disturb a client when narrating the story. After the completion of narratives an advocate has to fill the gaps by asking questions. The advocate has to advice his client and if the case is to be taken to court of law, and his client is the plaintiff an advocate has to draft documents mainly the demand letter, plaint and other subsequent documents for civil suit in case the client is the defendant the advocate has the duty to read the documents from the other side namely the plaint later writes the written statement of defence. Thus he has to abide to the rules of pleadings.

Also an advocate owes duty to his client not to divulge confidential communication with the client. The duty not to represent conflicting interests was well stated in the case of R v. Rajani [37 C.I.J 48] as amongst the advocate duties to the client, where the court held that a lawyer appearing for the prosecution and who also prepared a draft of a written statement for the accused was guilty of having committed breach of the rule of professional conduct. Furthermore in this aspect an advocate has to give his opinion to his client in regard to the nature of the case. The advocate has to tell the client the weakness in his case In Williams v. Fanshaw Porter & Hazelhurst (A Firm) [2004 WLR 3185] however; Mance, LJ said that a solicitor owed his client a duty to keep him informed about any error in the handling of the client’s affairs which might give the client cause for complaint against the solicitor. The decision of the House of Lords in Cave v. Robinson Jarvis & Rolf, [(2002) 2 WLR 1107] does not directly address the duty of a lawyer to discover or disclose his mistakes. It was stated; it is only where the defendant is aware of his own deliberate wrongdoing that it is appropriate to penalise him for failing to disclose it. . In addition to that the advocate is duty bound to inform his client the general conduct of the case. This duty was well stated in the case of Williams v. Fanshaw Porter & Hazelhurst (A Firm (supra) Mance LJ at p 29 said that; "there is no doubt that a solicitor owes a duty to keep his client informed about the general conduct of the matter he is handling as well as about any error in the handling of the client's affairs which may give the client cause for complaint against the solicitor". The duty to keep the client informed is a general or "running" duty. On top of this duty an advocate has to appear before the court to defend his client after agreeing the instruction from the client and instituted the case for his client. This duty was reiterated in the cases before the Advocate Committee, [this Committee is established under s.4 of the Advocates Act] for instance IN THE MATTER OF THE ADVOCATES ORDINANCE CAP 341 AND IN THE MATTER OF AN APPLICATION OF BERNARD R. MREMA AND IN THE APPLICATION TO THE REMOVAL FROM THE ROLL DR. MASUMBUKO R.M. LAMWAI, ADVOCATE,  [application No.19 of 2000] where Dr. Lamwai did not appear to represent the complainant as instructed hence the dismissal of the complainant case made the Committee to come up with the decision that failure to render legal services by representing the complainant was equated to misconduct For the case which is to be taken to the court of law the duty of advocate to the client was stated in the case of Pett v. Greyhound Racing Association ltd [(1969) 1 QB 125 132] Lord Denning stated that for justice to be done every one ought to have the help of someone to speak for him adding that the person for such task is an advocate. In this case therefore the advocate has the duty to his client to speak for him.

In addition, an advocate has duties to his opponents. The advocate has to use his best efforts to restrain and prevent his client or himself from resorting into sharp and unfair practise to his opponent in court. Further his duty to his opponent extends to the supply of documents before institution of the case. For instance an advocate has to write demand notice to his opponent before instituting the case otherwise there will be no litis contestatio. Again the plaint has to be served to the opponent and if the advocate is in the defence side has the duty to reply to the plaint.

In the mean time as the statement of the question states an advocate has the duty to serve his client “to the exclusion of others” is not absolute .It is tempered by his duty to the court.Thus the duty of an advocate to the court is an overriding duty which in appropriate cases, must be observed even at the expense of his clients interest .The duty obligates the advocate never to mislead or misguide the court .The advocate duty to the court extends to the fact that the court is made aware of the cases decided on the mater before the court disregarding as to whether they are in favour of the advocates case. This will involve the thorough knowledge of the law and grasp of relevant laws, both substantive and procedural; hence an advocate is duty to equip himself.

This duty brings the idea that before appearing in the court of law an advocate has to make a research. In Tanzania the landmark case of Abually Ali Bhai Aziz v. Bhatia Brothers ltd [Misc civil Appeal No.1 of 1999 Court of Appeal of Tanzania (Unreported)], the Court of Appeal commended the work done by the counsels in both sides and amicus curiae which ultimately drove the court to come up with the brilliant decision on the matter. The court in this case in appreciation of the role played by the advocate observed that; “…We must at this stage express our profound appreciation for the industrious research made by all advocates in general and by Mr Jadeja and Professor Fimbo in particular. As it will presently be apparent, this extensive research has had a direct impact on the quality of our decision.” In this case therefore the duty of advocate to the court as far as research was concerned was commendable. The courts in Tanzania likewise compile the advocates to comply with the duty of advocate to research as was stated in the case of DR. Masumbuko Lamwai v. Venance Nguha & A.G [Civil Appeal No 56 of 1997 CA at Dar es salaam  (Unreported)].Where the court stated that the counsels of both sides could not recover the costs of the case as they did not conduct research .therefore the duty to the court is the inherent one. In this case the court observed that; “…both advocates therefore have more than ten years of legal practice and are expected to know that where a legal issue is raised in the highest court in the land well in advance of the hearing date, appropriate legal research is required by advocates of both sides to assist the court to make the decision which is correct in law. We are compelled to express our disappointments at the conduct of learned advocates both whom we know are capable of doing better than they did.”

Other duties of an advocate to the court are that the advocate has duty as far as his personal relations with the judge; marked attention and unusual hospitality on the part of the lawyer to the judge, which is likely to lead to misconstruction of motives should be avoided. Further an advocate being the officer of the court is not supposed to waste the time of the court by trying to obtain adjournment without proper reasons. If that is done by an advocate it will substantiate the maxim justice delayed justice denied. Thus therefore an advocate is obliged not to cause unnecessary delay of cases in court.

Meanwhile an advocate has a duty to himself. An advocate must be presentable in all occasions and must appear in the court only in the prescribed attire. Further an advocate has to be sportive that is accepts any result of the cases. Apart from these duties adherence to the law especially the Advocate Act and the Regulations established there under will make the advocate in better position. That an advocate is not supposed to contravene sections 46, 47 and 48 of the advocates Act.

The duty of an advocate to the state is that, when in the course of performing his duties an advocate has to make sure that he acts within the laws of the land that he is not supposed to contravene public policy. However the balance of interest between lawyers and the state suffered set backs after independence until 1990’s in Tanzania. The legacy had been that most states have negative attitudes towards lawyers. Napoleon Bonaparte wishes to ‘cut the tongue’ of advocates. Likewise Shakespeare [Shakespeare, William, Henry, VI, part II Act 4 Scene 2] preferred the’ regime without lawyers’ stating that, lawyers have to be killed.

As it has been noted, soon after independence, the relationship between the state and the lawyers was not settled; the rationale was failure to enshrine the Bill of Rights in the Constitution. In the Interim Constitution of 1965 the schedule of TANU Constitution was appended in the Constitution. At the very beginning the 1977 Constitution of the United Republic of Tanzania did not incorporate the Bills of Rights but the Constitutional Fifth Amendment Act 1984(Act No 15 of 1984) incorporated the Bills of Rights which however was suspended for three years by the Constitutional (Consequential Transitional and Temporal Provision Act,1984 (Act No.16 of 1984). It should, however be known that the right to legal representation is provided under the Constitution basically under the articles providing for the basic rights of individuals. Article 13(6) (a) of The Constitution of the United Republic of Tanzania 1977 as amended. Section 310 of Criminal Procedure Act No.9 of 1985 provides for the right of legal representation. Likewise under the Legal Aid (Criminal Proceeding) Act, 1969 Cap 21 provides for representation of indigent persons under sections 3 and 4 of the Act. And without the bill of rights being enshrined in the Constitution we do not have this right. The intrusions of legal technicalities so beloved by lawyers were taken as obstacles towards the policy of developmentalism.

However after the enshrinement of the bill of rights in the Constitution in 1984 the then Deputy Prime Minister and Minister of Home Affairs. Fauzi analyses him as the person fond of instant justice he paid no respect to legal procedure.Several times his  troubles with lawyers was result of  off-handed matters of legal character. Sometimes he even thought to interfere in cases which were sub judice in court had on number of occasions while in power found in confrontation with lawyers. The Minister Mr Augustine Lyatonga Mrema by that time was also the Member of Parliament for Moshi Rural Constituency. In the 1995 General Election he contested for the Presidential Post through the main opposition Party by then NCCR-Mageuzi whereby he got twenty seven percent. In the 2000 and 2005 General Elections he contested for the presidential post as the candidate of Tanzania Labour Party. In the However most of the advocates have decided to have the balancing approach to find as to whether the member of executive in dispute with the members of the Bar is acting on his own capacity or is acting within the four corners of the executive. In the confrontation between the then Deputy Prime Minister and the Minister of Home Affairs and partners of the Law Firm Arusha, Mr Ngalo one of the partner was of the opinion that, the matter presented in Civil Application Number 24 of 1992 H.C.T At Arusha represented not the direct conflict between them and the Government but rather the conflict between them as the member of Legal profession and one man who has gone beyond anybody’s control and who had been allowed to put into operation his own model of Kangaroo courts.

Despite all confrontation by some members of executive to the lawyers, the duty of advocate towards the state in that time was maintained. Constitutionalism and democracy has awakened the state to respect this profession especially during this period of market-oriented economic system which has expanded the private sector and internationalisation of the economy.

Having seen the above, duties of an advocate, it has to be borne in our mind that the function of advocates are not confined towards the court room only. Advocates have many functions as their duties starts even before the matter is taken before the court room. Lawyers apart from rendering advice to the clients to take their maters to the court of law it is evident that litigation is not the primary or basic expression of law and justice. The lawyer has equally important roles to play apart from litigation. The advocate will start by conducting investigation of the case of his client, making research and giving opinions as well as rendering advice to the public these duties are not confined within the court of law. In short the advocate can opt that instead of taking the matters before the court negotiation is taken as preferable.

THE ADVOCATE DUTIES AND THE CONFLICT OF INTEREST.

As it has been stated that an advocate duties are to the court, to his opponent, states the client and to himself. In Tanzania independence of judiciary is an important element in the administration of justice. This principle has further been extended to include the doctrine of independence of the Bar therefore in the performance of his daily activities an advocate can balance the interests of conflicts either the interests of the state or the interests of his client or the interests of the court. As observed when dealing with the duties of the advocate to the court the interests of the clients can be sacrificed to make sure that the interests of the court are put forward. In addition Arden LJ in Geveran Trading Co. Ltd v. Skjevesland [(2003)1 WLR 912] said; Under the Civil Procedure Rules it is the express duty of the parties and hence their legal advisers, including advocates to help the court to further the overriding objective. (The Lord Justice was referring the English Laws which can also be applied in our country by virtual of section 3(2) of the Judicature and Application of Laws Act, [Cap 358 R.E 2002] in case there is a lacuna in our laws.

A conflict of interest can arise between an advocate and a client on matters of assertion of false evidence by client. Thus when false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candour to the court. If perjured testimony or false evidence has been offered, the advocate's proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the court.

Where there are the conflict of interests such that an advocate appears to represent both the prosecution and the accused the position was stated in the case of R v.Rajani (supra) that the advocate is obliged to side with only one side of the case either prosecution side or the side of the accused. Thus if an advocate has previously represented the client and acquired the knowledge of the case he is not supposed to act as the counsel of the opponent in the case where the interest of his former client is involved. Failure to do so therefore an advocate will be held liable for misconduct.

Though an advocate has duty to advice his clients in several matters it is the duty of an advocate not to engage himself to the case which he has interest. He should not act or plead in the matter which he is pecuniarly interested for instance an advocate should not act in the matter of bankruptcy when he is the creditor to the bankrupt or he should not accept the brief from the company in which he is the director. By so doing the conflict of interest towards his client will not exist.

It is also for the avoidance of conflict of interests that an advocate should disclose to the client any interest that he may have in the matter. This will make the advocate to have exercised the duty to himself properly and the duty to the client. It is upon the advocate to make sure that if the conflicting interest on these duties will be prejudicial to either side to advice the client to find for another advocate.

CONCLUSION

To conclude, generally, duties of an advocate are so extended to the extent that in the course of performing his duties due diligence has to be the key factor for the achievement of the intended goals as the professional. Having been equipped with such extended duties the likelihood for the occurrence of the conflict of interests is possible. The general principle has been that the advocate’s duty to the court is the overriding one over the duty to the client thus the interests of the client can be sacrificed. As it discussed above whenever an advocate has either pecuniary interest on the case and that if he takes the instruction to act for the case either his interests or the interests of his client can be prejudiced it is advised that, the said advocate is not supposed to take the brief. All in all for the duties of advocates in Tanzania the law i.e. the Advocates Act and the subsidiary legislation there under had been used to maintain the profession of the lawyers in the country. Likewise the Committees established under such law are working for the purpose of maintaining the standards of lawyers in the country.

RIGHT TO LEGAL REPRESENTATION--Mgerwa Suleiman (talk) 12:56, 8 May 2008 (UTC)

Legal representation is an important legal right which is almost universally recognized. It refers to the right given to any party in a trial to be guided or get assistance of a legal counsel. According Duff, A.G, J; “it is elementary principle of justice that accused person should be given every reasonable facility for defending himself against a criminal charge”. It is true that not every man has ability to defend himself on his own, even the most intelligent members of the society find themselves out of place in the Courts of law and the situation is worse for the illiterate because they are not trained in this discipline.

An accused person can be represented before the court of law by either an Advocate, Para legal (non lawyer). An Advocate is defined under section 2 of the Advocates Act [Cap, 341 R.E. 2002] to mean any person whose name is duly entered as an Advocate upon the roll. However in order for one to be eligible for enrolment, he needs to possess certain qualifications both academic and professional and pass certain interviews conducted pursuant to section 8 (1) and (3) of the Advocates Act.

The right to legal representation does not necessarily mean that the person in Court should be represented by an Advocate or a lawyer. What is important is to have a trusted person- a person in whom one can rely on for the purposes of representing his interests. These are persons who accepted and have long history of working in the Courts helping litigants. Unlike a registered Advocate, the Para legal cannot address the Court, conduct examination in chief nor cross examine witness. He is a Mackenzie friend, according to the case of McKenzie v McKenzie [1971 probate 33], a McKenzie friend or McKenzie man or a McKenzie lawyer is a person who is allowed to assist or prompt a litigant in person. This is because every litigant is entitled to be accompanied to court by a friend to assist him on caseof the litigant, just there to guide him.

For the purpose of this question we are going to have a look on the right to legal representation and specifically on its legal basis, and legal representation in practice. Thereafter we are going to look on the criticisms behind legal representation and finally we will put our work to an end. Legal representation is a Statutory right in some jurisdictions, but in Tanzania it is both a Statutory and Constitutional right. That right is so jealously guided by the law that if an accused is deprived of it through no fault of his own and through no fault of his advocate and he is in the end convicted, that conviction cannot be allowed to stand, on appeal it must be quashed per Samatta, J. In the case of Alimas Kalumbetav.R [1982) TLR 329].

The right to legal representation is closely related to two other rights, that are, the right to be heard and the right to personal freedom and liberty per Bisimba and Maina, [Justice and Rule of Law in Tanzania, 2005: 468]. However, it is not every man who has the ability to defend himself on his own. He may be tongue tied or nervous, confused or wanting in intelligence. Lord Justice Denning Pett v. Grey Hound Racing Association Ltd, [1969] 1 Q.B 125] stated that;

“… if justice is to be done, (everyone) ought to have the help of someone to speak for him. And who better than a lawyer who is trained for the task? I should have thought therefore that when a man’s reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He also has a right to speak by a council or solicitor.”

For a hearing in a Court of law to be said to be fair, the parties thereto must be able to understand what is transpiring. This is not always easy because of the legal technicalities involved. Even the most intelligent members of our societies always find themselves out of place in the Courts of law per C.P. Maina, Human Rights in Tanzania, [1997: 334]. At the same time it is the duty of the accused person to take the opportunity given in the Court seriously and engage a counsel to represent him. Where the accused does not take his defence seriously he should not expect perpetual sympathy from the Courts of law. For instance, in the case of Michael Mpembele v. R [1980 TLR 322], the appellant was out on bail for almost half a year. However he made no effort to look for and engage a counsel to defend him. His application for further adjournment on the hearing date to enable him to look for a counsel was rightly rejected by Maina, J. His Lordship noted with regret that the accused had neglected his duty to look for and engage a lawyer to represent him.

Legal Basis

As stated above, the right to legal representation in Tanzania is constitutionally provided. It is incorporated in the right to a fair hearing provided for in article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977, as amended from time to time (hereinafter referred to as the Constitution) which provides that,

“For the purpose of ensuring equality before the law, the state shall make provisions that every person shall, when his rights and obligations are being determined, be entitled to a fair hearing by the Court of law”.

Without legal representation an accused person cannot be said to have been properly heard. This was discussed in a persuasive authority of the U.S Supreme Court in Powell v. Alabama [1980 TLR 322]. Where Mr. Justice Sutherland said that without assistance of a counsel, the hearing would have little meaning or importance. He further stated;

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise in admissible.

He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of man of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect?”

The right to legal representation is also statutorily provided. In Tanzania section 310 of the criminal procedure Act of 1985, provides that;

“Any person accused before any criminal court, other than a primary court may of  right be defended by an advocate of the High court…”

Moreover section 3 of the Legal Aid (criminal proceedings) Act, 1969 provides for free legal Aid paid for by the state. This section provides that;

“where in any proceeding it appears to the certifying authority that it is desirable, in the interest of justice that an accused should have legal aid in the preparation and conduct of his defence or appeal and that these means are insufficient to enable him to obtain such aid, the certifying authority may certify that an accused ought to have free legal aid. For proceedings in the High Court the certifying authority is the Chief Justice or the Judge of the High Court conducting such proceedings and in the case of proceedings before a District Court or Resident Magistrate Court the certifying authority is the Chief Justice”.

Apart from local legislations, Tanzania has ratified the international covenant on civil and political rights. This covenant provides for the rights to legal representation. Under article 14(3) (d) it requires that every accused person should have the right to legal assistance at the expense of the state. The High Court in the case of Khassim Hamisi Manywele v. R [Criminal Appeal No.39 of 1990,High Court of Tanzania at Dodoma, (Unreported)] ruled that every Tanzanian accused person is entitled to legal representation, which the right extends to non capital offences, and where the accused can not himself afford the lawyer’s costs, the state must pay for him.

Legal Representation in Practice.

In practice those accused persons who are worth enough to hire advocate do hire them at their own expenses, if that is the case they have the right to choose the advocate of their choice. For this reasons the rich people are at a better position to exercise their constitutional and statutory right to legal representation.

On the other hand, the indigent or the poor cannot afford the service of advocates, and for this reason the notion of legal aid comes in. The legal aid presupposes services of lawyer free of charge. In Tanzania we have a number of legal aid schemes which are famous in providing legal assistance for Tanzania indigent. This includes Tanganyika law society, University of Dar es Salaam and State Legal Aid Schemes. Normally these legal aid schemes provide assistance to the indigent in free of charge system. The State legal aid scheme much concentrating in providing services in criminal cases by so doing it implement Article 14(3) (d) of international covenant on civil and political right which require that every accused person should have the right to legal assistance at the expenses of the state.

However, the right to choose the counsel of his choice is not plainly available to every accused person in Tanzania. This is due to the fact that section 3 of the Legal Aid (Criminal Proceedings) Act restricts this right only to poor and under circumstances of the case which require legal representation, as it can be determined by Chief Justice or the High Court. In practice the legal aid is available to the indigent accused of offences attracting capital sentence or long term imprisonment. Examples murder cases and treasons.

The accused person can also exercise his right to legal representation trough the services of a Para legal officer. However the legal representation by Para legal officer is limited. A Para legal cannot address the court by way of making submission or asking the question and cannot cross examine. All he can do is to sit beside the accused friend in court, to take notes, to quietly make suggestion to the litigant and give advice, to propose questions and submission to the litigant or accused person, who may put the same this is discussed in the case of Mihaka v. Police [1991 1 NZLR 54].Therefore it would seem that at High Court level (in Tanzania) a lay person, holding a valid power of attorney, can represent a party to the proceeding while the party himself is present in court.

CRITICISMS ON THE RIGHT TO LEGAL REPRESENTATION

There is no right to legal representation in the Primary courts; in fact the advocates are prohibited to appear there, as provided under section 33(1) of the Magistrate’s Court Act, [Cap, 11 R.E.2002] states that, “No advocate or public prosecutor as such may appear or act for any party in a primary court”, while there are bulk of case in primary court and some are serious offences like robbery with violence, house-breaking, burglary, and theft which are provided under the First Schedule of this Act.

People awareness is one of the criticism in the legal aid because majority of the Tanzanians are not aware of their right to be represented in the courts though such right has been guaranteed in the constitution of the United Republic of Tanzania of 1977 and other statutes (Reference to section 310 of Criminal Procedure Act and section 3 of legal aid (Criminal Proceeding) Act, 1969). Apart from not being aware also majority of Tanzanians do not know the existence of legal aid scheme like Tanganyika Law society, University of Dar es Salaam Legal Aid. Another criticism is that the right to legal representation is absolute given when the accused is charged with capital offence but this creates discrimination to non capital offences. The law requires such rights must be for the indigent ( Ref: Legal Aid (Criminal Proceeding) Act 1969, this implies that the worthy persons are not entitled to legal representation this is contrary to the rights granted to the Constitution, that all person are equal and entitled without any discrimination to protection and equality before the law. In DPP v Arbogast Rugaikamu [1982 TLR 139] it was held that an accused person should not be deprived of his right to legal representation unless very cogent and exceptional reasons exist which warrant the taking of such a drastic measure since the accused person pray for that of representation on the reasonable time as was stated in the case of Joshua Nkonok v.R [1978 LRT No 24].

Another criticism is on the party of economic barriers to an accused person. The practice of hiring a lawyer involves expenses. Advocate expenses have been central in any criticism of the legal representation. It is proposed that this service should be offered to any body irrespective of whom or what he is, so long has is willing and able to pay the appropriate fee. This is the position, despite claim that justice is not for sale. However failure to pay the fee we mean withdrawal of legal services. This has been shown in the case of R v. Lemba Kisiwa and others [Criminal Case No 387 of 1983 at Arusha District Court], in this case the advocate for the accused withdrew from the case because the accused who were facing charges of robbery an offence punishable with imprisonment of between 30 years and life, did not pay his fees. From this position of the case we are of the view that not everybody who needs legal services can afford to pay for them, in Tanzania, majority of people will be eligible for legal representation if there is no strong control of eligibility criterion in terms of income level and assets.

Another criticism is that, Legal Aid scheme seems to be bias. It is provided under section 3 of the Legal Aid (Criminal Proceeding) Act of 1969 that legal aid is provided to indigent accused person for all serious offences. This section is also supported by the case of Khassim HamisiA Manywele v. R (supra) where it was held that “ in my judgment I said the right to counsel extends to all poor accused persons for all offences which might attract a sentence of over five years imprisonment”. Though the statute and case law show that the right to legal representation is provided to indigent accused person for all serious offences but in practice it is limited to murder and treasons while other offences like robbery with violence, theft and forgery are excluded.

Moreover there is no sufficient number of lawyers to facilitate the service of legal representation. Like wise most of the advocates are found in urban area and left the rural or remoteness areas suffer the consequences.

CONCLUSION.

The right to legal representation has been guaranteed, and thus ought to be protected in Tanzania and that provisions of section 310 of the Criminal Procedure Act and Section 3 of the Legal Aid (Criminal Proceeding) Act ought to be Interpreted together and in the light of the right to a fair hearing and right to personal liberty as provided under Article 13(6) (a) of the constitution of the United Republic of Tanzania(as amended from time to time) and Article 15(2) to mean that the right to legal representation has been guaranteed both to those who can afford to hire an advocate and those who cannot to hire an advocate and in the case of the latter their service be paid for by the state. Moreover the lack of legal representation is enough to render the decision of the case a nullity. This was the position in the case of Manyimba v. Uganda [1969 E.A 433].

Though the right to legal representation is statutorily acknowledged as well as to case law but in practice the right to legal representation is not absolute as it is not available to all.