LAW 039

CUSTOMARY AND ISLAMIC LAWS

BY
OMARI ISSA
CUSTOMARY LAW COMPARED WITH OTHER
SOURCES OF LAW
General Overview
Customary law and other sources of law are both integral
elements of legal system of Mainland Tanzania. However,
they are distinct from one another in their historical
development, principles and application.
This section delves into the distinctions between
customary law and other sources of law, as well as the
ways in which other sources of law have influenced the
development of customary law in Mainland Tanzania, to
provide a comprehensive understanding of their
respective roles and features.
Differences Between Customary Laws and Others
Customary law and other sources of laws of Mainland
Tanzania share certain similarities, as they both
evolve from British colonial legal system in
Tanganyika.
However, there are several important distinctions
between the two that set them apart.
The main differences between customary law and
other sources of law of Mainland Tanzania can be
summarised as follows;
1.Historical Development
Customary law is based on immemorial customs, traditions
and societal norms that pre-date the emergence of
customary law communities (tribes) of various parts of
Mainland Tanzania, whereas other sources of law emerged
after the establishment of common law legal system in
Mainland Tanzania. This came following establishment of
British colonial rule and after independent Government to
inherit colonial legal system.
So, historically, customary law is indigenous immemorial
based while other sources of law are colonial legacy.
2. Sources and Codification
Customary law is unwritten and derived from long-standing
societal customs of the customary law communities
(tribes) of Mainland Tanzania whereas other sources of
law are primarily based on legislative enactment, judicial
precedents, promulgations of appropriate authorities and
received sources like common law, doctrines of equity
and statutes of general application.
This makes customary law to be much more based on
societal understanding and practices while other sources
of law to be based on legislative based laws.
3. Reasoning and Interpretation
In customary law, legal norms are based on the
reasonableness and acceptance by the relevant local
community, while in other sources of law, the judiciary
(judges) rely on various legal technicalities and doctrines
in interpretation of law.
It means customary law apply reasonable standards while
other sources of law apply rules that have been
established through judicial decisions in similar cases. This
may lead to differing interpretations of legal principles,
even when confronting identical factual situations.
4. Geographical Scope
Customary law is often specific to a particular geographic
location and to a specific customary law community and
may not be universally applicable whereas other sources of
law provide a uniform legal framework across Mainland
Tanzania, with certain principles recognised national wide.
For example, the doctrine of recent possession, the rule in
distribution of matrimonial properties, doctrines of law of
contract and doctrine of ignorantia juris non execusat are
nationally recognized in Mainland Tanzania.
5. Flexibility and Adaptability
Both customary law and other sources of law of Mainland
Tanzania are flexible and adaptable to societal changes but in
different ways. Customary law is generally more flexible due
to its close relationship with local communities while other
sources of law evolves through a slow process of legislative
amendments and judicial decision-making and incremental
changes reflecting the needs of broader society.
For example, the Penal Code may be amended and judiciary may
give different interpretation of a law. Remember decision of
the Court of Appeal in the case of AG vs. Rebeca Gyumi
(2019) TLR 114 on minimum age for a girl to marry.
 CONFLICT OF LAWS
Meaning of Conflict of Laws
Reading sections 2(3) and section 11(1) of the JALA, there
are six laws which are enforceable in Mainland Tanzania.
These are the Written laws, Common law, Doctrines of
equity, Statutes of general application, Customary laws
and Islamic law. Apart from these six laws, Tanzania also
applies Principal legislation and Subsidiary legislation.
As there are numerous laws which are applicable in
Mainland Tanzania there is always possibility of internal
conflicts of law which Judiciary faces as to which law to
apply in certain circumstance.
Internal conflict of laws means different laws are enforceable in
one subject matter and which may have different legal
position. It means many laws which are enforceable in one
given country but in one particular situation are in opposition
to one another or each other.
Internal conflict of law therefore arises where two or more laws
of the same country are contradictory. The problem of
internal conflict of law arises where two or more laws are
recognized as applicable concurrently within the country.
This is because it is possible that taking into consideration of
particular circumstances, more than one law may be
applicable.
For that there is always a possibility of conflict of laws or conflict
of interest between and among the Parties as to which law to
apply in particular situation to occur.
This possibility is likely to happen in cases where there is more
than one law capable of applying to a material in issue and
which may produce different results.
This state of affair is much more possible in civil disputes in
which those laws are applicable and where Parties control
litigation in the Courts of law.
The legal system has mechanisms which the Courts apply to
resolve the problem of internal conflict of law the moment it
arises.
Position Where Customary Law Contradicts the Constitution
Customary law may contradicts the Constitution of the country.
As the Constitution is the fundamental law, it is therefore a trite
law that no other law should contradict it.
In case there is a conflict between customary law and the
Constitution of Tanzania of 1977, then the Constitution of
Tanzania of 1977 shall prevail and takes precedent above
customary law.
This means that in case there is any customary law which
contradicts with the Constitution of Tanzania of 1977, that
customary law shall not apply and instead the Constitution of
Tanzania of 1977 is the one which shall apply.
This is because the Constitution of Tanzania of 1977 is a
supreme law of Tanzania and all other laws derive their
validity from the Constitution of Tanzania of 1977.
The Constitution of Tanzania of 1977 is supreme law and takes
precedent over all other laws which are enforceable in
Tanzania. This is provided for by Article 64(5) of the
Constitution of Tanzania of 1977. This Article reads as follows;
“…in the event any other law conflicts with the provisions
contained in this constitution, the constitution shall prevail
and that other law, to the extent of the inconsistency with
the constitution, shall be void.”
Case
Ephrahim Ebongo vs. Holaria Pastory and Another, Civil
Appl. No. 70 of 1989, High Court of Tanzania, Mwanza,
(Unreported)
In this case Mwalusanya,J., declared Haya customary law void
for being discriminatory in nature as that customary law
disallowed a Haya to inherit clan land as private property
while the same allows men to inherit. These are few cases
among many which substantiate the fact that in case of
inconsistency between provisions of any other law with the
Constitution, the later takes precedent against the former.
Position of Customary Laws Against Written Laws
The applicability of customary law is governed by section 11 of
the JALA. This section allows the Court to apply any rule or
practice of customary laws in matters of civil nature. However
enforceability of customary laws in civil matters is subject to
Written laws. This is provided by the proviso to section 11 (3) of
the JALA.
This proviso reads that;
“Provided that the court shall not apply any rule or practice of
customary law which is abolished, prohibited, punishable,
declared unlawful or expressly or impliedly disapplied or
superseded by any written law.”
From the wording of this provision it is clear that
applicability of customary laws is subject to Written law.
So if there is any Written law which dissaplies any
customary law then that customary law shall not apply
and instead Written law shall prevail.
It goes without say that whenever customary law
contradicts any Written law, then Written law shall
prevail over the said customary law.
For example the Magistrates Courts’ Act, CAP 11 RE 2002,
dis-applied enforcement of offences under customary
law in Tanganyika.
Case
Simon Kabaka Daniel vs. Mwita Marwa Nyang’anyi & 11
Others (1989) TLR 64
In this case where Kuria customary law was a subject. In this
case the Judge said that customary laws have the same
status as other laws of the country subject to the proviso to
section 9(3) of the JALO of 1961, and thus the Court shall
not apply rule or practice of customary law which is
superseded by any Order or Act (written laws) of Tanzania.
The substance of section 9(3) of the JALO of 1961 is now
found in the proviso to section 11(3) of the JALA.
Position Where Customary Laws Contradict
It is possible that in one circumstances two
different customary laws are applicable. This is
possible where there is more than one customary
law applicable in a particular area or parties to
the dispute have different customary laws.
In case there is such a conflict the Court applies lex
loci principle. This is provided by section 11(3) of
the JALA.
The Lex loci principle provides that in case of conflict
between and among customary law, the Court shall
apply customary law of the locality of the Court.
This means that the Court chooses to apply
customary law of the place where the Court is
located.
It is again possible for the Court to have wide choice
of customary law which is prevalent in the area of
its locality.
In case of such a situation, section 11 (2) of JALA
comes into play.
This section reads;
“if the laws applicable is customary law, and there
is more than one customary law prevailing in the
area, the court shall apply the law applicable in
the area in which the act, transaction or matter
occurred or arose, unless it is satisfied that the
proper law to be applied is some other law.”
This provision then gives guideline to the Courts of law on
what law to apply.
According to this provision, if there is more than one
customary law prevalent in the locality of the Court,
then the Court will have to apply customary law
applicable in the area of the act, transaction or matter
which is a subject of the case.
However in case there are Parties to dispute who have
different customary law and yet customary law of both
of them provides for the same, the Court shall apply lexi
fori principle.
Lex fori principle is the principle which requires the Court
to apply customary law of the Parties and not
customary law of the locality of the Court. The Lex fori is
application of the customary law of the parties to the
dispute. Lex fori is provided for by section 11(1)(b) of
the JALA.
Thus, where there is conflict between one Customary law
and another, the Court of law shall apply the Customary
law of the Parties.
If the Parties belong to different Customary law, the Court
shall apply or the Customary law of the subject matter.
Position of Customary Laws Against Islamic Law
Section 11(1)(ii) of the JALA allows the Courts in Tanzania to
apply Islamic law in civil matters. For that, there is a possibility
of the customary law and Islamic law to contradict in one way
or another.
Likely, matters of civil nature which create conflicts between
customary and Islamic law are marriages, divorce, custodian of
children, status of person, succession, wakf business and
contract.
In case there is such a conflict, customary law shall prevail.
However there are few circumstances which if present Islamic
law prevail over customary law.
Case
Re-Salum Omari Mkeremi (1973) LRT 80
In this case in which Salum Omari, Mhehe by tribe and Muslim by
religion, had married Christian lady-Nelly Mkeremi. When
Salum Omari died he left Nelly, two children and his mother. In
administration of his estate the question, inter alia, was what
law was applicable to the estate? This matter was brought to
the High Court for assistance. The High Court directed that the
law applicable to the deceased estate was customary law. But
where the deceased professed Islam and there is evidence to
prove that the deceased intended his estate to be administered
according to Islamic law, Islamic law shall apply.
There are many indications which the Court may use to portray
that the person prefers application of Islamic law. These
include;
i. If the person makes a declaration, be it oral or written
declaration,
ii. That he intend to be guided by Islamic law,
iii. The manner of life of the person and the act or conduct of the
person.
The declaration of the Party showing his intention to be bound by
Islamic law may be in the form of the will or in any other way,
depending on the circumstance of the matter in question.