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
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.
(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
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
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
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
(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
(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
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
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
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
8. Under no circumstances should advocates be permitted to practise before
9. The ultimate aim should be gradually to improve the quality of Hakimus
till they become fully-fledged magistrates.