District Officer in Tanganyika: The Memoirs of Dick Eberlie: Part 2, 1956 to 1960


Report on the Local Courts of Dar es Salaam


By R. F. Eberlie: 24th June 1960

Introduction.

The administration and political organisation of Dar es Salaam has taken great strides forward since the publication of the Molohan Report. The opening of the new Boma at Ilala, the opening of offices in all wards, the appointment of trained Wakilis and the Akida, and the extension of the supervision by District Officers over all wards have led to very large increases in efficiency in the administration of the African areas of the town. But my purpose in making this report is to suggest that the organisation of Justice in these areas has lagged far behind the development of administration. This lag is traditional, but it leads to serious consequences to which I wish here to draw attention: whereafter I wish to suggest remedies for this situation.

The Government Attitude to the Local Courts.

Mr Molohan writes, “Our existing system of Local Courts seems well suited to the needs of the inhabitants of the high density areas and I see no need to recommend any major changes”. He devotes only half of one page (p.34) of his report to a consideration of the judicial organisation of the town, compared with the fifteen pages he devotes to urban administration. Accepting this view the Local Courts Adviser has not yet visited these courts; they have received no guidance and no programme for development: they struggle on their own far behind in the race of urban life. The law governing their organisation is the Local Courts Ordinance of 1951, accompanied by Mr. Moffatts’ Commentary, Local Government Memoranda No.2 of 1952. These are intended to be comprehensive, but I submit they were prepared to cope with completely different conditions and for a totally different type of community to that which the new urban local courts now face.

The General European View.

The most common attitude noticed is one of profound ignorance. I recall an American lady who told me she believed it was a “European judge” who sentenced her ‘boy’ to a fine on 24th December for assault in Kinondoni local court! I recall a High Court Registrar who asked me the difference between a Liwali and a Hakimu. Neither the Resident Magistrate nor the Police have shown the least understanding of the principles of the organisation or of the justice of the local courts. The Resident Magistrate’s court often does not appear to be aware of the existence of the local courts. I have not yet met a police officer who is aware of the Local Court Ordinance. I recall the minute of a Traffic Police Officer on a case file concerning the civil debt of a taxi-driver’s customer; “Prosecute before Native Magistrate”. The impression one receives while working in the local courts in Dar es Salaam is that the European and commercial public is entirely ignorant of them, the magistracy despises them, the Police misunderstand them, and the rest of the Government ignores them. There is but one minor exception in this catalogue - the Probation Officer.

The View of the Politicians.

The recent demand by ward councils that Hakimus should be made elective illustrates a misunderstanding of the principles of the working of local courts among African leaders as deep and dangerous as that of the European public. Nowhere is the principle of the separation of the executive from the judicial more important than in the town where the popular representatives now beginning to wield power are entirely ignorant of all such principles.

The Popular African View.

The man in the street who is subject to the Courts undoubtedly holds for them a deep respect. Nevertheless the unhappy Buguruni incident revealed that the rule of law is only a veneer in Dar es Salaam. Crowd gather with frightening speed in Kariakoo. The hooligans of the town are happily still few and unaware of their own strength, but the present lawless situation in Nairobi and Kampala reveals the danger which threatens Dar es Salaam when it reaches in a year or two the state of sophisticated savagery which those other cities have now achieved.

General recommendation.

In my view it is dangerous to permit the traditional neglect and ignorance to pass into the future. I submit that Mr Molohan is wrong in his assumption that the local courts do not need consideration, and that, on the contrary, much thought is urgently needed to bring the local courts up to date and into a state in which they can cope adequately with the situation in the rapidly expanding and modernising town. The work of the forces on the side of law and order is now to strengthen their hold, positively to enforce the habit of peaceful living and to ensure civil obedience among the urban African population. In this work the local courts are required to play a leading role opposite the Police.

Specific Recommendations

(a) I recommend complete separation of the Hakimus from the Wakilis, each to be organised into its own cadre with its own clerks and its own ‘esprit de corps’. The head of the body of Hakimus to be the Kadhi. He should call frequent meetings, closely supervise all its work and coordinate all activities.

(b) I recommend further an improvement in the terms of service and of the salaries of the Hakimus. I appreciate that it is necessary to have convincing arguments in order to persuade the Treasury of the need for this. Let it be said that the preservation of law and order in the capital is a vital and basic need of the whole country. The town must be prepared to pay and to pay well for the sake of civil peace. It is unfortunate perhaps that the good justice does not have a direct financial effect; nevertheless a higher quality of Hakimu would help to pay for itself in an improved collection of fines (no more of the appalling arrears of revenue which I met in Kariakoo), and in more effective handling of suits for the collection of government revenue e.g unpaid land rents. The Treasury must understand that it is essential to attract to the urban courts the very best type of African, of the best education. The only way ultimately to raise the standard of justice is to improve the calibre of the judge.

(c) I also recommend an increased emphasis on the ceremonial and the dignity of the courts; efforts should be made to publicise their work and by all possible means to increase their prestige and position in the eyes of the public.

(d) I recommend the appointment of a District Officer solely to supervise the work of the Hakimus and the local courts in the town. Here I must draw attention to section 90 of Part II of the Local Court Memorandum which states that no Cadet Officer should deal with local court sentences of imprisonment - to which are generally coupled sentences of corporal punishment. Nevertheless Assistant District Officers, often not even third class magistrates, habitually confirm all sentences in Dar es Salaam local courts. In the past these officers have been very experienced, but with the coming to Dar es Salaam of several inexperienced and unconfirmed Assistant District Officers, it would seem advisable that they should cease to supervise the working of the local courts. It is partly for that reason that I recommend that one more senior officer should take all the courts under his exclusive control. But such an arrangement would have many other benefits; it would permit far greater co-ordination of the courts’ work than hitherto; it would permit far closer supervision by a trained mind of their work; and it would permit consideration of amendments to the Local Courts Ordinance and its adaptation to urban conditions which I suggest is now long overdue. Such an officer might be considered as the Dar es Salaam District Local Courts Adviser, and might well be appointed under Section 3 of Cap. 299.

I do not think that any increase in the existing establishment of District Officers in Dar es Salaam would be necessary. This appointment would of course relieve Assistant District Officers of a large amount of their present work, and it would permit them to devote all their time to direct administration in the wards. Much greater attention could be paid by them to land matters and to tax collection. They would also be in a position to assume more work in the wards in connection with deceased native estates. I do not recommend the Dar es Salaam Local Courts Adviser should take on this work though I agree that here again there are urgent problems of amendment of existing legislation and of resolution of the conflicts in Kizaramo and Muslim, and in Muslim and Christian customs concerning inheritance. The Dar es Salaam Local Courts Adviser should supervise cases brought to local courts over disputes regarding the administration of deceased native estates. He should not therefore be the same officer who advises on the administration of these estates. For a similar reason I do not recommend the Dar es Salaam Local Courts Adviser should hear appeals from local courts, for it is he who advises, and supervises the work of, the Hakimus in the lowest court.

The Local Courts Ordinance

(a) Section 5 of Cap. 239: The composition of the local courts. Normally two elders sit with the Hakimu in court. I do not know if this is correct. I regret there was never a warrant in any local court which I visited during my service in Dar es Salaam. These elders never change despite the changing nature of the cases and litigants before them, The elders do not pretend to any particular knowledge of ‘local customs’ or the particular customs of any one community or condition of the population. In some courts the elders are merely superior court messengers.

I recommend that the Kadhi be empowered to examine for fitness existing court elders and to reject those unsuitable. Further I recommend he should arrange a list of assessors from among known tribal elders and leaders, by tribe, by community and by area, so that the most suitable men are available at any time for calling to any court in the town where the case requires them. Thus if a Jaluo wishes to divorce his wife, two Jaluo may be found without delay; if an Mnyamwezi sues an Mzaramo for bride price, an elder of each community may sit in judgement. Where parties are of different communities or creeds, it may be felt that three assessors should sit, one of each community and one of neither, in order to advise the Hakimu. I recommend that the Dar es Salaam Local Courts Adviser should go into the matter and advise on the means by which to improve and develop the usefulness of the elders in urban local courts.

(b) Section 10 (2) of Cap.299 This Section debars Arabs, Somalis, etc. from local courts without their consent. It is often incorrectly believed to debar completely all Arabs from these courts. In any event it places in an equivocal position the miserable class of Washihiri, and all the results of the miscegenation between Arab and African that has gone on for several generations. It is also clear that with the departure of the Liwali the Arabs have lost their ‘local court’ in Dar es Salaam, and have nowhere to sue except before the alien Resident Magistrate. I recommend consideration be given to removing this limitation in the urban area and that, at the same time, Arab, Somali etc. elders be selected by the Kadhi for the hearing (together with the Hakimu) of Arab suits of any cases where Arabs are involved as parties. I do not know the feelings, if any, of the urban Arab community on this suggestion, and I recommend the Dar es Salaam Local Courts Adviser seek the opinion of all classes of the Arab community on the present system with a view to amendment of this Section of the Ordinance.

(c) Section 15 of Cap. 299 This empowers local courts to enforce ‘the customary law prevailing in the area’ together with parts of certain Ordinances mentioned in the Local Courts (Consolidation of Jurisdiction) Order 1952.

(1) I submit that there is no such thing as ‘customary law’ in Dar es Salaam. In the early days the Resident Magistrate imposed the Indian Penal Code in the town. Subsequently the Liwali applied his (not always accurate) version of Muslim law. Later Saudi Chaurembo and his successors attempted to enforce Kizaramo custom. Muslim and Kizaramo custom conflict wherever they meet in rural Uzaramo and in the urban area; this always has a weakening and corrosive influence on tribal coherence and civil justice, partly because of the fundamental differences in the laws of inheritance of the two communities. A Kizaramo/ Muslim hotch-potch is still the dominant ‘custom’ imposed by Hakimus in Dar es Salaam.

This excludes large sections and communities of the African population. The local courts do not cater for the educated Christian minority, now dominant politically and comprising perhaps 3/4 of the white-collared urban workers. Nearly all pagan up-country tribes and all immigrant groups are outside the law. In practice, members of such groups either go home to settle their civil suits (as I would often advise them) or settle out of court, sometimes with violence. I submit that it is desirable, if not essential, for the health of the town to open the local courts to these large communities at present excluded from their purview.

(2) Secondly, I note there has been strong pressure for the past five years on the part of the Police in criminal cases to introduce English law, the Penal Code and the Criminal Procedure Code into the local courts. This pressure is as irresistible as it is unconscious on the Hakimus, particularly for those already trained in English usages. An example of such pressure is the offence of ‘vagrancy’ or ‘kuwa muhuni’. This does not exist in the customary law of any African tribe of my experience, being entirely alien to the communal village life of most tribes. Nevertheless the Police have frequently attempted to prosecute for this offence before the local courts, until the Hakimus were instructed to reject these charges on two contradictory grounds: (a) that the requirements of the offence in the Penal Code were not fulfilled and (b) that they were not empowered to enforce the Penal Code.

There are many other offences prevalent in urban Dar es Salaam but not in rural tribal life which may be found in the Penal Code, which the Police wish to charge before the local courts in the interests of public peace, but which are not recognised in ‘tribal custom’. Such offences are: begging, possessing housebreaking implements, giving a false name, etc. etc. Distinctions are made and terms habitually used in the laying of charges by Police before local courts which do not exist in ‘tribal custom’; e.g. the distinction between ‘harm’ and ‘grievous bodily harm’; ‘assault’ and ‘assault and battery’: the term ‘lawful custody’; the idea of ‘neglect’; the doctrine of ‘recent possession’, etc. etc. Similarly charges of resisting arrest, escaping, failing to answer a Police bond, obstructing the Police, though frequently brought before local courts, do not obviously exist in customary law.

(3) It has often been urged and occasionally, after much effort, been arranged that the Police should prosecute before local courts. This would clearly simplify and speed up their own work, though requiring a larger staff than the Police have at present. Nevertheless the Police inevitably demand the exacting procedure of the Criminal Procedure Code before the Hakimu, a procedure which (e.g. in the use of oaths and the calling of witnesses) is in marked contrast that of any form of known customary law. The complainant customarily prosecutes his own case; vide CC. 6, 17, 23 etc. of the Court Holders’ Handbook. The Police have no place in customary law, being trained in no other procedure than the Criminal Procedure Code and no other law than the Penal Code.

(4) The position of the Municipality in the local courts is open to doubt. I have felt in the past and I still feel strongly that it is not entitled to sue before local courts. It is a corporation and not ‘an African’ or ‘Africans’ as required by section 10 nor is it included under Section 12(2) of Cap. 299. I consider that, while the Municipality was (to put it bluntly) a European-dominated body, its exclusion from the local courts was desirable, but now that it is no longer so dominated it may be thought of as in the position of the native authority for Dar es Salaam, and hence it is desirable that it should have access to the urban local courts.

(5) A third set of courts operating in Dar es Salaam is that of the Rent Restriction Board. Hakimus have had their attention drawn by the Chairman of the Board to his powers and consequently feel themselves unable to hear cases between Africans concerning rent (though by a curious and unfair anomaly the Hakimus are forced to continue to hear Municipal rent cases). It is presumably assumed that matters of rent are outside the preview of customary law. The Rent Restriction Board is a slow and cumbersome body, it charges much higher fees than local courts and requires advocates, and understands only English. The normal result for an African plaintiff is that he, having been refused by the local court, fails to make himself understood by the Rent Restriction Board Secretary (assuming he is able to find her in Tancot House), cannot afford an advocate and withdraws without obtaining justice anywhere. Moreover here is an instance where a body of urban custom has truly grown up. The business of letting rooms in the large six-roomed Swahili houses of Kariakoo and Ilala is highly organised, and the procedure on the absconding of a tenant, the arrangements for monthly payments etc. is generally recognised, though it is not recognised by the Rent Restriction Board.

(6) It will be objected that customary law is as adaptable as the English common law and that it is government’s policy that it should so adapt itself to meet changing conditions, (ss. 11, 12, and 13 of Part II of the Local Courts memoranda). Nevertheless I submit that the changes demanded by the Police and the Penal Code in an already incoherent and inadequate system are so great and so weakening as to reduce that system to chaos and to prevent any form of justice being done. Indeed in examining the paucity of civil suits brought before local courts, one is forced to conclude that most tribes (many of whom at home delight in litigation e.g. the Buhaya) prefer to settle out of court to avoid the uncertain, and unintelligible arrangements (I hesitate to say judgements) of these courts.

I recommend strongly that the Dar es Salaam Local Courts Adviser consider systems of tribal custom prevailing in similar conditions in Zanzibar, Mombasa, Tanga etc. I recommend he consider recording and regulating such urban custom as exists, e.g. relating to tenancy. I recommend he consider, if necessary, amendment of the Section of the Ordinance relating to the law to be practised in these local courts. I recommend he consider legal arrangements to permit the Police to practise and to practise the law they know in the local courts, to permit the Municipality to share in the work of the local courts and to permit the local courts to have jurisdiction in rent cases.

I appreciate that it is a fundamental principle of the senior judicial authorities in Tanganyika that only fully qualified magistrates should he permitted to hear cases brought under the Penal Code and other Ordinances. Hakimus and local court holders are not magistrates and arc entirely ignorant of the laws of evidence, of procedure and of English case law. They are clearly not qualified to hear such cases. For that reason I recommend strongly that advocates should not he permitted under any circumstances to practise in local courts, (despite the comment on future development at paragraph 44 of Part II of the Local Court Memorandum). Where the court holder is not a Magistrate, where the law is not wholly English, advocates are entirely out of place.

For the same reason, I recommend a start be made on improving the quality of Hakimus in Dar es Salaam with a view finally to their becoming fully-fledged magistrates. I do not consider that the principles of the judicial authorities and of the development of urban local courts outlined above are in conflict in any way. The basic aim of all is one - the strengthening of the rule of law in the capital city.

SUMMARY OF RECOMMENDATIONS

In general, I recommend much thought should be given at this stage to modernising and strengthening the local courts in Dar es Salaam in order that they may keep pace with the rapid development in other spheres of life in Dar es Salaam. Specifically -

1. Complete separation of the body of Hakimus from Wakilis.

2. Improvement in the terms of service and salaries of the Hakimus.

3. An increased emphasis on the ceremonial and dignity of the courts.

4. The appointment of a District Officer to the post of Dar es Salaam Local Courts Adviser, solely concerned with the work of these courts.

5. A review of the composition of the urban local courts and reorganisation of the work of elders and assessors.

6, Removal of the limitation restricting Arabs, Somalia etc. from appearing before local courts, and appointment of Arabs, Somali etc. assessors to the courts.

7. A review of the ‘Customary law’ prevailing in Dar es Salaam; an investigation into existing urban customs; an investigation into the law enforced by courts in similar conditions elsewhere in East Africa: amendment of Cap.299 to permit the Police and the Municipality to operate freely in the urban local courts.

8. Under no circumstances should advocates be permitted to practise before local courts.

9. The ultimate aim should be gradually to improve the quality of Hakimus till they become fully-fledged magistrates.

Colonial Map
Dar es Salaam 1958 Map
Article
District Officer in Tanganyika: The Memoirs of Dick Eberlie: Part 2, 1956 to 1960
Colony Profile
Tanganyika
Books by Dick Eberlie
District Officer in Tanganyika: 1956 - 1960 Part 2: The Memoirs of Dick Eberlie
by Dick Eberlie

The Winds and Wounds of Change: 1961 to 1965 Part 3 (The Memoirs of Dick Eberlie)
by Dick Eberlie

Aden: The Curtain Falls: The Memoirs of Dick Eberlie: Part 4, 1965 to 1967 by Eberlie, Dick


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