The Opinion of Assessors in Primary Court and Other Courts in Tanzania

TABLE OF CONTENTS

1.0 INTRODUCTION

2.0 MEANING OF PRIMARY COURTS
2.1 MEANING OF ASSESSORS
2.2 Primary Court Has Original Jurisdiction on Civil and Criminal Matters
2.2.1 under civil matters,
2.2.2 under criminal matters

3.0 ASSESSORS IN THE PRIMARY COURT
3.1 The assessors have equivalent and complementary powers to those of the magistrate,
3.2 Assessors are judges of both fact and law,

4.0 ROLE OF ASSESSORS IN THE COURTS OF TANZANIA
4.1.1 They are intended to assist the magistrate in interpreting the facts of the case before the court
4.1.2 They are representatives of the public
4.1.3 They have acted as the consultants in matters of customary law
4.1.4 Opinion and vote of assessors recorded by magistrate
4.2 THE EXCEPTION TO GENERAL RULE OF BINDING NATURE THE OPINION OF ASSESSORS 8

5.0 THE HIGH COURT
5.1 Trial in the high court takes place before a judge and assessors.
5.2 When a trial is to be determined with the assistance of assessors
5.3 Summing up to Assessors
5.4 Opinion of Assessors
5.5 Conclusion of hearing in high Court

6.0 THE DIFFERENCE BETWEEN ASSESSORS IN PRIMARY COURT AND OTHER COURT
6.1 THESI MILARITIES BETWEEN THE ROLE OF ASSESSORS IN PRIMARY COURT AND OTHER COURTS

7.0 CONCLUSION

REFERENCES

1.0 INTRODUCTION

The Judiciary in Tanzania has four tiers: The Court of Appeal of the United Republic of Tanzania, the High Courts for Mainland Tanzania and Zanzibar, Magistrates Courts, which are at two levels such as, the Resident Magistrate Courts and the District Court, both of which have concurrent jurisdiction. Primary Courts are the lowest in the judicial hierarchy. These courts have different powers to hear and determine different matters on the area of responsibility.

2.0 MEANING OF PRIMARY COURTS

The primary courts are the lowest courts in the hierarchy and are It is established under Section 3 of The Magistrates Courts Act¹ , which states that, Subsection (1), “There are hereby established in every district primary courts which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction within the respective districts in which they are established.” Subsection (2), “The designation of a primary court shall be the primary court of the district in which it is established.”

A primary court is duly constituted when held by a single magistrate in primary court according to sections 6 (1) and 7 (1) of the Magistrate Court Act. In practice, however, two or more magistrates in primary court are usually assigned to a primary court. In this event, each primary court magistrate may hold sittings of the court at the same time as the other or others through under section 6 (3) of the MCA².

They deal with criminal cases and civil cases. Civil cases on property and family law matters which apply customary law and Islamic law must be initiated at the level of the Primary Court, where the Magistrates sits with lay Assessors . The jury system does not apply in Tanzania.

2.1 MEANING OF ASSESSORS

An assessor is an ordinary person residing in the area of the Court, who is called upon to aid Court in a case. Assessors do not have special training or preparation for Court, they are merely informed of their roles by the Judge and given basic information into the offence the accused is indicted for and what the Prosecution must do to prove its case.

It should be noted from Section 7 of the Magistrate Court Act that a primary court is bound to sit with assessors. Under the provisions of section 69 of the Magistrate Court Act³ it is the responsibility of the District Council, before the first day of March in each year to prepare and deliver to the District Court a list of assessors. The persons chosen as assessors must be ordinarily residents in the district, and must have a knowledge of the customary law prevailing in the area⁴.

All persons appearing on the list of assessors are liable to serve as assessors when so required by a court. It is the responsibility of the district magistrate to provide all primary courts with a copy of the list of assessors. It is important to note that if the name of a person is not included in a list of assessors, this omission does not disqualify him from sitting as an assessor. This was discussed in the case of NeliManaseFoya v. Damian Mlinga⁵, heldthat assessors are members of the Primary Court and are empowered or required to participate in the decision making process and finally sign the judgment of the court.

Also the Assessors need to be able to read and write in Kiswahili or English because that is how they advise the Court.

2.2 Primary Court Has Original Jurisdiction on Civil and Criminal Matters

2.2.1 under civil matters,

The primary court has jurisdiction to all civil matters where a law applicable is customary law or Islamic law as provided under Section 18 (1) (a) (i) of the Magistrates' Courts Act⁶ Also in the case of Jacob Mwangoka v. Gurd Amon⁷ , the court among other things stated that, “the Primary Courts have jurisdiction in all proceedings of a civil nature where the law applicable is customary law.” Therefore in this case a customary tort is justifiable to be held in the primary court.

2.2.2 Under Criminal Matters

The court has jurisdiction to hear and determine all disputes as provided in first schedule of the Magistrates' Courts Act. It is provided under Section 18 (1) (C) ofthe Magistrates Courts Act. Lastly is that after the primary court hear and determine the disputes on its limit power and any of the party is aggrieved with such decision, the law provides for him a right to appeal to the District court. This right is explained when a magistrate is completed to pronounce sentence. It is provided under Section 20 of theMagistrates' Courts Act.

3.0 ASSESSORS IN THE PRIMARY COURT

However on proceedings, a primary court magistrate has to seat with not less than two assessors and their absence is fatal and it can invalidate the whole proceedings and decision. So, a primary court magistrate has to adhere to Section 7 of the Magistrates' Courts Act⁸. Also there are many cases decided by the superior courts on the importance of assessors in a primary court. 3.1 The assessors have equivalent and complementary powers to those of the magistrate, This are among the very important reasons for the assessors in the primary and this equivalent and complementary discussed in the caseof Mariam Ally Ponda v Kherry Kissinger Hassan⁹ , in this case among other things, the court held that, “ assessors in the primary court have equivalent and complementary powers to those of the magistrate”.

3.2 Assessors are judges of both fact and law,

Through this reasons they were necessary when customary law was strictly applied the fact that codification of customary law has been effected makes the position of the assessors as expounders of customary law redundant.Magistrate summing up to assessors Judgment signed by magistrate but not by assessors this was discussed in the case of Mohamed S. Amiri v Saidi Ngapwela ¹⁰, Held that, These are mandatory provisions intended to emphasize the role of assessors in Primary Courts as members of the court and not just simple assessors assisting the court.

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¹ [Cap.11 R.E 2002].

² Magistrate Court Act [Cap 11 R.E 2002]

³ [Cap 11 R.E 2002]

⁴ A Hand book for Magistrates in the Primary Courts. (2019).Revised And Updated Version: (pp. 8 to 9)

⁵ [2005] TLR 167

⁶ [Cap 11 R.E 2002]

⁷ [1987] TLR 165

⁸ [Cap.11 R.E 2002]

⁹ [1983] TLR 223.

¹⁰ (1992) TLR 342 (TZHC).