History of Criminal Law in Tanzania

The history of criminal law in Tanzania is a journey shaped by indigenous customs, colonial impositions, and post-independence reforms. From the regulation of conduct within tribes to the imposition of European legal systems, Tanzania’s criminal law evolved alongside its political and social transformations. Let’s explore this history across key periods:

Criminal Law in Pre-Colonial Tanzania

In pre-colonial Tanzania, societal organization began with the family unit, which expanded into clans, and later into tribes. Each tribe occupied distinct territories, sharing common dialects, religious beliefs, and political structures led by kings or chiefs.

Relationships within and between tribes were governed primarily by customary laws. As states formed, customs were elevated into formal laws, giving rise to customary law. Unlike tribal societies where conflicts were largely inter-clan or inter-tribal, emerging states demanded individual accountability for actions, with the state assuming the authority to punish offenders.

Serious Crimes:

• Treason and Espionage: Punishable by death among tribes such as the Sukuma and Chagga.
• Witchcraft: Also a capital offense.

Some forms of homicide were seen as reconcilable, often settled through blood feuds or reconciliation facilitated by chiefs. Compensation (blood money) could be contributed collectively by clans, such as among the Haya, Nyamwezi, Sukuma, and Hehe. Adultery was another significant offense under customary norms.

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Criminal Law During the German Colonial Period (1885–1918)

(a) Colonization and Control

Germany colonized Tanganyika in 1885, creating German East Africa (including Rwanda and Burundi). The Germans faced significant resistance from local tribes such as the Hehe, Ngoni, and Chagga.

They employed brutal force and “divide and rule” tactics, using Sudanese and Zulu mercenaries. Europeans often enforced control through indiscriminate corporal punishment (e.g., whips made from hippopotamus hide, known as “kiboko”).

(b) Emergence of Institutions of “Law and Order”

The Germans believed the African population was too “primitive” for European law. Thus:

• District Officers and military commanders exercised judicial powers.
• Native Chiefs were used to administer local justice; where none existed, akidas, jumbes, or liwalis were appointed.
• Customary laws and traditional procedures were modified to suit German colonial interests.
• Minor cases were handled by local authorities; serious cases went to District Officers.

(c) Use of Criminal Law for Development

The Germans heavily used criminal law to force economic development:

• Forced Labor: Natives were compelled into unpaid public works.
• Labour Legislation: Breach of employment contracts led to three months’ imprisonment in chains.
• Taxation Laws: Taxes like the House and Poll Tax (1912) criminalized non-payment, allowing authorities to conscript defaulters into labor.
• Municipal By-laws: Laws regulating cotton cultivation, hunting, and mining were enacted in urban centers like Tanga and Dar es Salaam.

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Criminal Law During the British Colonial Period (1918–1961)

(a) Establishment of British Rule

After World War I, Britain took control of Tanganyika under a League of Nations mandate. The Tanganyika Order in Council (TOC) of 1920 gave the British full legislative powers. The British replaced German-appointed akidas with hereditary chiefs, and established a hierarchy of provinces and districts overseen by Provincial and District Commissioners.

(b) The Reception Clause

Section 17 of the TOC introduced the Reception Clause, stating that:

• Criminal and civil jurisdictions would follow Indian laws (e.g., Indian Penal Code, Criminal Procedure Code).
• Where Indian law was silent, the common law, doctrines of equity, and English statutes of general application applied.