Browsing by Author "Lamwai, Masumbuko Roman M"

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    Tanzania's law of civil procedure in a historical socio-economic context
    (University of Dar es Salaam, 1978) Lamwai, Masumbuko Roman M
    To date any discussion which has been going on the law of Civil Procedure in general and that of Tanzania in particular has been purely positivist, aimed at the technical rules as they appear in the statute books. No attempt has been made to relate these rules to the socio-economic realities we are living in. This dissertation is an attempt at filling in this lacuna, prompted by our conviction that a lawyer will not be able to enforce the rules efficiently if he does not have knowledge of their foundations. Dispute settlement is in essence a creature of private property, and therefore we look at the Civil Procedure Code as an enactment which caters for the regulation of private property relations. This is reflected in the adversarial system of dispute settlement under which the owners of private property are supposed to defend their property interests individually. The colonial experience through which Tanzania passed left all our laws based on the English law. However, a mystification of these laws occurs when we find our laws being adopted from India. What we are saying in this dissertation is that despite the fact that the Civil Procedure Code Act, 1966 of Tanzania was adopted from India, it is in essence an enactment which was brought into Tanzania from England through India. It is enacting a procedure which is geared at the defense of private property but was applied to both India and Tanzania which comprised of heterogeneous societies at different stages of development. To this extent, the Code was irrelevant in both India and Tanzania except for the small communities of merchants and colonial administrators. However, colonialism brings with it new social formations which are mainly engaged in private property relations. Although the Civil Procedure Code as an enactment which is geared at the administration of adversarial justice, was superimposed upon a more primitive dispute settlement procedure both in India and in Tanzania, we assert that it is presently an irrelevant legislation now because we are enmeshed in the international capitalist system and hence our society is organised on the basis of private property. We argue that this would have still been the case even if Tanzania could develop a socialist system because socialism does not totally liquidate private property.