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Who will end the tug of war between the law reformers?
2005-07-20 09:22:45
By Lawi Joel
Earlier this month on July 4 we brought to you an article of argument by Francis Stolla a lawyer and private advocate in the city of Dar es Salaam that Tanzania Law Reform Commission is not a law reformer because it reforms no law at all.
Today we present to you his further argument on the matter. In this article Stolla goes on to tell us how TLR fits in the whole process of law reform and what other bodies play that role and how.
The establishment of the Law Reform Commission somehow coincided with the unleashing of the major socio-economic reforms that began in the 1980s to the present.
Any keen observer is likely to find that the Commission has been actively engaged in implementing law reform programmed as prescribed by the Law Commission Act.
’’I had an opportunity, for instance to see the Commission’s Report on the Labour Law, presented to the Minister for Justice and Constitutional Affairs, 2001. I noted that this work of the Commission was at the insistence of the Attorney General’s reference given with specific terms of reference,” he says.
A footnote regarding the Act in that paper that Stolla presented at the Law Reform Conference Room, Dar es Saaam on 12 May this year, says prior to a law reform programme for the LRC, ’’The High Court and on appeal the Court of Appal could declare certain rules of law unconstitutional and therefore null and void and henceforth cease to apply.’’
Stolla doubts whether at all the government did adopt recommendations of the Commission to reform the labour law (ultimately enacting Acts No.6 and No.7.) That remains a matter of research, given the fact that the Association of Tanzania Employers (ATE) and the Investors Forum had previously submitted proposals to reform the labour law, he observes.
Moreover, the government has established special ad hoc commissions to do some specific reviews and propose for law reform. ”One can mentions several of them here, the Nyalali Commission (on political party system), the Nyirabu Commissiion (on financial sector reforms, the Shirvji Commission (on land matters) and the Kisanga Commission to mention just a few.:
Stolla has previous stated that the Law Reformation Commission is vested with powers to take and keep under review all the laws of the United Republic of Tanzania with a view to its systematic development and reform. That power, however, is not exclusive of the powers of the other institutions to propose for law reform.
”This means that the powers vested in the Commission are general while those vested in other institutions are sectoral and specifically based on particular aspects, such as environment, finance, natural resources and so on and may be exercised.
It is common knowledge that the donor community has been proposing, mandating and supervising, sectoral reforms, hence law reform.
”In my research I understand it was one of the mandatory conditionality imposed by the World Bank, IMF and the Paris Club to bring about reform on the foreign exchange regime (led to the enactment of the Foreign Exchange Act, 1992) privatisation of the Public Sector (led to amendments to the Public Corporation Act, 1992), modernising the Bank of Tanzania (led to the re-enactment of the Bank of Tanzania Act, 1995), establishment of Capital markets and Securities Authority etc,” he explains and adds, that further, common to this was the trend that local and foreign legal consultants were hired to draft some of these laws.
The lawyer goes on to disprove the Commission as a law reformer but one so improperly named by saying that pressure groups and civil societies hav also been seen to propose and ’force’ law reform. For instance, TAMWA and TAWLA were very instrumental in influencing the reform of the Penal Code, cap.16 the Tanzania Bankers Association (TBA) influenced the repeal and re-enactment of Part X of the land Act, No.4 of 1999 providing for mortgages, he explains.
A quarrel between parties on law reform has baffled the Dar es Salaam-based advocate. ”I have also noted as a trend that at times there is a tag of war between law reformers, particularly between the Parliament and the Judiciary in Tanzania. The fundamental question here has been who has the final authority to end the tag of war,” he observes in his elaborate presentation.
Observably, the lawyer says, with the entrenchment of the Bill of Rights in the Constitution of the United Republic of 1977 in 1984 and its justifiability in 1988, the Judiciary took an active role to reform the laws that were contravening certain provisions of the Constitution, declaring them unconstitutional therefore null and void.
”I saw in some cases the Government tabling bills to re-enact such laws, as such legislating out the judicial decisions,” he notes.
Later, the Constitution was amended to limit this power of the Judiciary from being the reformer to be the advisor / proposer.
”The most recent spirit behind this institutional ’cold war’ can be associated with what happened on the Ndyanabo’s case and the debate raised by Hon. Pius Msekwa, the Speaker of the National Assembly,” Stolla says.
He further notes, ”My question here, and a very fundamental one is, in situations like this, what ought to be the role for the Law Reform Commission? The Commonwealth position has been that Judiciaries and Parliaments should fulfil their respective but crucial roles in the promotion of the rule of law in a complementary and constructive manner.
I will pose this as both a challenge and a recommendation later in this presentation.” He observes.
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