Introduction to the legal system of Tanzania
The United Republic of Tanzania is made up of Tanzania Zanzibar and the Mainland. The estimated population size of Tanzania in 2008 was 38.7 million, with an average 2.9 annual population growth. The official language in Tanzania is Kiswahili. English is also used as a primary language of commerce, scientific research, administration and higher education. The Tanzanian public authority is divided into central and local government authorities (decentralized governance). Local governments are allowed to create binding by-laws to govern various issues in the districts.
The political governance structure of Tanzania is divided into three parts. According to Article 4 of the Constitution of the United Republic of Tanzania of 1977, these parts are the Executive, the Legislature and the Judiciary.
Tanzania's legal system is based on English common law. According to Section 2 of the Judicature and Application of Laws Act, Cap. 358, common law, doctrines of equity and statutes of general application are enforceable in Tanzania [but only so far as the circumstances of Tanzania and its inhabitants permit, and subject to such qualifications as local circumstances may render necessary]. Therefore, the key issues in the code of medical ethics and professionalism such as Consent, Confidentiality, Non-Maleficence, Beneficence, Professional Conduct (fiduciary relationship) and Duty of Care, which are mainly common laws, are enforceable in Tanzania although the national legislation and regulations do not include effective provisions.
The supreme law of the country is the Constitution of the United Republic of Tanzania of 1977 as amended from time to time. The Constitution vests in the state authorities (under Article 9) the responsibility to ensure that, in discharging their duties, human dignity and other human rights are respected and cherished and that human dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights of 1948 (Article 9(f)).
Part three of the Constitution (Articles 12 to 29) provides for the Bill of Rights and Duties. The rights enshrined include; the right to equality (Arts. 12 and 13); right to life (Art. 14); right to personal freedom (Art. 15); right to privacy and personal security (Art. 16); right to freedom of movement (Art. 17); freedom of expression and right to information (Art. 18); freedom of religion (Art. 19); freedom of association (Art. 20) and the right to take part in public affairs (Art. 21). There is no specific provision relating to health research; however, pieces of legislation enacted pursuant to this Constitution make provision for those issues. The redress for violation of human rights in Tanzania is sought in court through the Basic Rights and Duties Enforcement Act, Cap. 3 of 1994. Moreover, other non-human rights procedures such as under the Criminal Procedure Act, Cap. 20 of 1985 and Civil Procedure Act, Cap. 33 can as well be invoked to acquire appropriate legal remedy.
International treaties or code of conducts in any fields are not applicable in Tanzania unless they are ratified pursuant to Article 63 of the Constitution by the legislature. However, English common laws (of any kind) are applicable in Tanzania pursuant to the provisions of the Judicature and Application of Laws Act, Cap. 358 of 1920. Other foreign laws and court decisions have persuasive value in Tanzania. That is, they are used by the courts to interpret or widen the legal principles.
Apart from rules legislated by the parliament, the local governments and some of the statutory bodies such as the National Institute for Medical Research (NIMR) are also allowed to make bylaws, rules, regulations, procedures and orders (called in general subsidiary legislation), which are binding pursuant to the parent legislation. Therefore, professional ethics such as the Guiding Principles on Medical Ethics and Human Rights in Tanzania (of the Medical Association of Tanzania); Guidelines on Ethics for Health Research in Tanzania (of the Tanzania National Health Research Forum) and the Standard Operating Procedures for the National Health Research Ethics Review Committee of Tanzania (of the NIMR), which are made pursuant to certain provisions of the laws, are also binding.
In order to avoid any contradiction between national laws and international legal instruments, Tanzania uses a coherent approach, whereby existing laws which are inadequate or which contradict the provisions of the international instruments are amended in order to make sure that the norms set forth in those instruments are domesticated in the Tanzanian laws. For instance, in November 1997, the provisions of the National Institute for Medical Research Act, Cap. 59 of 1979 were amended to accommodate the principles of CIOMS Ethical Guidelines. Besides, the current trend of judicial decisions indicates that judges have been using ratified international instruments in making their decisions.
Moreover, it is worth pointing out here that there are statutory bodies created under various laws in Tanzania. These bodies are given powers to initiate sub-regulatory committees such as Research Ethics Committees (RECs). The procedures devised, for instance, to approve the protocols are legally binding despite the fact that there would be no specific law or regulation which details the procedures.
At the Ministerial level, health research in Tanzania is governed by the Ministry of Health and Social Welfare and the Ministry of Science and Technology, and at the institutional level, the Commission for Science and Technology (COSTECH) is vested with overall supervisory powers of all scientific research in Tanzania. However, there are a number of institutions which are vested with statutory powers to coordinate specific research areas such as those linked to cancer, orthopedics, HIV/AIDS, food, drugs, chemicals, wildlife and the like.
The Tanzanian legal system is therefore a wide one. Its framework consists of rules and regulations from those enacted by the parliament to those formulated by other statutory and professional bodies. The enforcement of those rules and regulations once breached is also multidimensional. It can be done through a court of law or through the law enforcing institutions and monitoring bodies such as RECs and COSTECH. Besides, the podium through which legal redress can be sought is spacious in the sense that normal procedural laws can be used alongside specific laws on human rights violations or professional misconduct as discussed in this Module.
It should be noted that the laws of Tanzania are referred to as “Acts” or “legislation”. They are arranged in a series of chapter numbers called “Cap.” However, other laws are still arranged in years – those enacted from 1st of August 2002 to the present 2009. A process is underway to put all laws in “Cap.” The subsidiary legislation is printed through government notices (G.Ns). Professional ethical guidelines are found in G.Ns like other normal publications such as booklets.
- Constitution of the United Republic of Tanzania of 1977, article 4; 9; 12-29
- Judicature and Application of Laws Act, Cap. 358 of 1920, section 2
- Basic Rights and Duties Enforcement Act, Cap. 3 of 1994
- Criminal Procedure Act, Cap. 20 of 1985
- Civil Procedure Act, Cap. 33
- Guiding Principles on Medical Ethics and Human Rights in Tanzania
- Guidelines on Ethics for Health Research in Tanzania
- Standard Operating Procedures for the National Health Research Ethics Review Committee of Tanzania
- National Institute for Medical Research Act, Cap. 59 of 1979
- CIOMS Ethical Guidelines
- Universal Declaration of Human Rights of 1948, article 9(f)