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Factors Hindering Couples from Accessing Marriage Conciliation Boards in Mainland Tanzania
Published online by Cambridge University Press: 17 August 2022
Abstract
To safeguard marriage, the Law of Marriage Act of Mainland Tanzania, established marriage conciliation boards (MCBs) to reconcile disputing spouses. Divorce cases are referred to MCBs before they are filed in court. The divorce rate in Mainland Tanzania is increasing and case law indicates that some parties are by-passing MCBs without good cause. The authors were motivated to study the causes of this trend. Data were collected in Morogoro and Kilimanjaro regions through documentary review and in-depth interviews. They identified six factors limiting parties’ access to MCBs: set-up of the boards; MCBs’ regulatory framework; jurisdiction; costs; choice of forum; and inadequate provisions governing the process followed by MCBs. The study concluded that the government attaches minimal significance to MCBs and recommends that the government should intervene, including by reforming the law governing MCBs.
Keywords
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- Research Article
- Information
- Copyright
- Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of SOAS University of London
Footnotes
*
Assistant lecturer, Mwenge Catholic University; advocate of the High Court of Tanzania. Corresponding author.
**
Professor, Faculty of Law, Mzumbe University; advocate of the High Court of Tanzania.
***
Senior lecturer, Faculty of Law, Mzumbe University; advocate of the High Court of Tanzania.
References
1 According to the Constitution of the United Republic of Tanzania 1977, art 1, Tanzania is a union of Tanzania Zanzibar and Mainland Tanzania. The first schedule to the constitution shows that marriage law is not a union matter. This article therefore only covers Mainland Tanzania.
2 Mashamba, CJ Introduction to Family Law in Tanzania (2nd ed, 2017, LawAfrica) at 4Google Scholar. See also Binamungu, C “A competent matrimonial case in Tanzania Mainland: Lessons from recent High Court decisions” (2018) 1/1 The Tanzania Lawyer 65 at 99Google Scholar; and Rose Athanas Temba v Alex Rowland Shirima (PC) matrimonial appeal no 13 of 2015, High Court of Tanzania at Moshi District Registry (unreported).
3 See, for instance, Hassan Jumanne v Asha Mohamed (PC) civil appeal no 23 of 2014, High Court of Tanzania at Tabora District Registry (unreported) at 7 per Mrango J. In Temba v Shirima, above at note 2, Fikirini J stated that the court greatly appreciates when parties reconcile, especially in matrimonial cases, for so many reasons, in particular protection of the family, and the creation of harmony and tranquillity in society, marriage being at its foundation.
4 See Jumanne v Mohamed, above at note 3. See also Mashamba Introduction to Family Law, above at note 2 at 324.
5 Above at note 2.
6 See also R v R [2004] TLR 121 at 126, where Luanda J stated the importance of avoiding marriages ending in divorce.
7 Cap 29, RE 2019. RE stands for Revised Edition of the Laws of Tanzania. Not all laws are contained in RE 2019 and therefore some are still referred to as RE 2002.
8 “Government's proposal on uniform law of marriage” (government paper no 1 of 1969, Government Printers, United Republic of Tanzania).
9 Ibid.
10 Mashamba Introduction to Family Law, above at note 2 at 315.
11 Othman, MC “Access to justice and justice delivery in Tanzania: Unblocking the barriers” (2011) 1 Zanzibar Yearbook of Law 3 at 4Google Scholar.
12 Sanderfur, RL Access to Justice (2009, Emerald Group Publishing) at 3CrossRefGoogle Scholar.
13 Ibid.
14 Othman “Access to justice”, above at note 11.
15 See the case of Emmanuel John v Martha Bura (PC) civil appeal no 42 of 2005, High Court of Tanzania at Arusha Registry (unreported) per Chocha J.
16 See Martha Mayenze v Emanuel Mongo (PC) matrimonial appeal no 15 of 2019, High Court of Tanzania at Mwanza District Registry (unreported) per Mgeyekwa J.
17 LMA, sec 101(a)–(f). The exceptions are: the respondent resides outside Tanzania; the respondent wilfully refused to appear before the MCB; imprisonment for life or for a term exceeding five years; mental illness; extraordinary circumstances; and the respondent's whereabouts are unknown. See Cyril Fred Kabrole v Zena Sarota and Andrews Mushi civil revision case no 77 of 2001, High Court of Tanzania at Dar es Salaam District Registry (unreported) per Kyando J. The judge explained that an application for dispensation must be applied for first and, when leave has been obtained from the court, a petition can be filed. In Anna Sundi v Aloyce Rutahya matrimonial cause no 1 of 2019, High Court of Tanzania at Mwanza District Registry (unreported) (at 8 per Mgeyekwa J), the High Court observed that, “the words ‘where the court is satisfied …’ presupposes [sic] that the court has to be moved to determine the ‘extraordinary circumstances’.”
18 LMA, sec 12(d). See also Ramla Massawe v Abdulrazack Kingi (PC) matrimonial appeal no 3 of 2012, High Court of Tanzania at Songea District Registry (unreported) at 3.
19 See id, sec 102(1) and (2).
20 See Elizabeth Mduma v John Mbilinyi (PC) matrimonial appeal no 2 of 2014, High Court of Tanzania at Tanga District Registry (unreported) per Rugazia J. In this case, Kabuku Primary Court allowed the parties to proceed with the divorce petition without referring the matter to an MCB, simply because the same person (the husband) had in 2010 had a matter that was dismissed for want of prosecution, so the trial magistrate wrongly treated the subsequent case in 2014 as a continuation of the first case. See LMA, sec 106(2), which provides that an MCB certificate issued more than six months before filing for a divorce cannot be used to accompany a divorce petition. See also Binamungu “A competent matrimonial case”, above at note 2.
21 Christian and monogamous civil marriages were governed by the Marriage Ordinance cap 109, the Matrimonial Causes Ordinance cap 364 and the District Courts (Separation and Maintenance) Ordinance cap 274. Moslems of different sects were governed by the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance cap 112 and the Islamic Law (Restatement) Act No 56 of 1964.
22 Ghai, YP “The new marriage law in Tanzania” (1971) 11 Africa Quarterly 101 at 106Google Scholar.
23 Ibid.
24 BA Rwezaura Sheria ya Ndoa Tanzania [The Law of Marriage of Tanzania] (1981, Taasisi ya Uchunguzi wa Kiswahili, Chuo Kikuu cha Dar es salaam) at 3.
25 LMA, sec 12(d). See also Haruna Makwata v Fatuma Mselemu (1978) LRT No 8 per Samatta Ag J. See also, Abdallah Saidi v Mwanamkuu Yusufu (1978) LRT no 43, in which the High Court judge held (at 43) that, “a marriage can be dissolved only by a court of law, and only if the court is satisfied that the marriage has irreparably broken down”.
26 See LMA, sec 101(a)–(f), above at note 17.
27 See Read, JS “A milestone in the integration of personal laws: The new law of marriage and divorce in Tanzania” (1972) 16 Journal of African Law 19 at 33CrossRefGoogle Scholar. See also Ghai “The new marriage law”, above at note 22, in which the author used the term “radical change”.
28 Ghai, id at 102. See also, BA Rwezaura and U Wanitzek “Family law reform in Tanzania: A socio-legal report” (1988) 2/1 International Journal of Law and the Family 1 at 15.
29 Mashamba Introduction to Family Law, above at note 2 at 316.
30 LMA, secs 101 and 104(5).
31 Report of the Law of Marriage, 1971 (1994, Law Reform Commission of Tanzania) at 3.
32 In John Mayengo v Catherine Malembeka (PC) civil appeal no 32 of 2003, High Court of Tanzania at Dodoma District Registry (unreported), Kaji J held (at 4) that: “It is the parties themselves who are the best judges on what is going on in their joint lives. A crucial ingredient in marriage is love. Once love disappears, then the marriage is in trouble. There is no magic one can do to make the party who hates the other to love her or him.”
33 LMA, sec 106(2) requires that every divorce petition filed in court is accompanied by an MCB certificate. See the case of Moza Hassani Ugali v Seleman Bakari Msuya (PC) civil appeal no 14 of 2014, High Court of Tanzania at Arusha District Registry (unreported) per Mugasha J.
34 George Sayi Nzunzulima v Claudia Paulo Leo misc civil appln no 74 of 2019, High Court of Tanzania at Mwanza District Registry, (unreported) per Manyanda J.
35 See LMA, sec 108.
36 Id, sec 102(1) as amended by the Law Revision (Miscellaneous Amendments) Act No 9 of 1996. Previously, sec 102(1) had conferred powers to the minister to establish an MCB in every ward.
37 Id, sec 102(2) and Appointment of Communal Conciliatory Boards Notice (GN No 245 of 1971).
38 See Fidelis Mboyelwa v Christina Mboyelwa (DC) civil appeal no 2 of 2011, High Court of Tanzania at Bukoba District Registry (unreported) at 10.
39 Act No 9 of 1996.
40 See Appointment of Communal Conciliatory Boards Notice, items 344 and 345. These items vest powers in religious institutions and the National Council of Muslims of Tanzania to establish MCBs for their respective communities, subject to fulfilling certain conditions.
41 The quoted provision is the original version of the LMA 1971. While LMA, sec 102(1) was repealed and replaced with a new provision as noted in the discussion above, the officially relevant edition of the LMA (ie the revised edition of 2019) does not reflect the changes introduced by Act No 9 of 1996. Act No 9 of 1996 effectively provides that the ward tribunal established under the Ward Tribunals Act shall be the MCB for that ward for the purpose of the LMA and any reference therefore to “the board” shall be deemed to be a reference to the ward tribunal, unless the context requires otherwise.
42 This provision must be read in conjunction with GN No 245 of 1971, above at note 37.
43 Matrimonial appeal no 9 of 2019, High Court of Tanzania at Mbeya District Registry (unreported) per Mongella J at 4. In this case, the respondent contended that there was a valid certificate accompanying a petition for divorce. The court records indicated that there was a letter from the legal aid office. The court held that there was no certificate and the letter could not serve the purpose since it was not issued by an MCB.
44 (DC) matrimonial appeal no 2 of 2012, High Court of Tanzania at Mtwara District Registry (unreported).
45 Above at note 15.
46 (PC) civil appeal no 23 of 2014, High Court of Tanzania at Tabora District Registry (unreported).
47 Matrimonial cause appeal no 2 of 2012, High Court of Tanzania at Bukoba District Registry (unreported).
48 Civil appeal no 265 of 2017, High Court of Tanzania at Dar es Salaam District Registry (unreported).
49 (PC) matrimonial appeal no 8 of 2015, High Court of Tanzania at Mbeya District Registry (unreported).
50 (PC) matrimonial appeal no 1 of 2010, High Court of Tanzania at Shinyanga District Registry (unreported).
51 (PC) matrimonial appeal no 1 of 2020, High Court of Tanzania at Shinyanga District Registry (unreported) per CP Mkeha J.
52 The LMA, sec 101(a)–(f) enables a spouse intending to seek divorce or separation, with leave of the court, to file a case without referring the matter to the MCB.
53 Rwezaura and Wanitzek “Family law reform” above at note 28.
54 Ibid. See also Widner, JA Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa (2001, WW Norton & Company) at 220Google Scholar. In an interview with former Chief Justice Nyalali in July 1997, Widner reports the chief justice conceding to the pathetic situation that the judiciary as a whole was experiencing. The chief justice agreed, “it reached the point where cases were sometimes decided by guesswork. There were lots of inconsistencies in decision, especially at the primary court level”.
55 Bierwagen, RM and Peter, CM “Administration of justice in Tanzania and Zanzibar: A comparison of two judicial systems in one country” (1989) 38 International and Comparative Law Quarterly 395 at 400CrossRefGoogle Scholar.
56 See F Twaib The Legal Profession in Tanzania (1997, Dar es Salaam University Press) at 189. The author shows a chart of graduates from 1964 to 1990. Taking the list of graduates from 1981 to 1989, the chart shows: 1981 (41), 1982 (39), 1983 (56), 1984 (56), 1985 (59), 1986 (60), 1987 (57), 1988 (61) and 1989 (62), totalling 491.
57 State of Universities Education in Tanzania 2018 (2018, Tanzania Commission for Universities) at 71.
58 Ibid.
59 Id at 80.
60 Above at note 51.
61 This was in compliance with the right to be heard. See Arcopar (OM) SA v Harbert Marwa and Family and Two Others civil appln no 94 of 2013, Court of Appeal of Tanzania at Dar es Salaam District Registry (unreported).
62 Said v Athuman, above at note 51 at 2.
63 Id at 4.
64 The judgment was delivered on 28 May 2020.
65 Above at note 49. The judgment was delivered on 18 July 2018.
66 Patton, MQ Qualitative Research & Evaluation Methods (3rd ed, 2002, Sage Publications) at 339–45Google Scholar. See Chatterjee, C Methods of Research in Law (1997, Old Bailey Press) at 31Google Scholar.
67 The principal legislation reviewed was the LMA, the Ward Tribunals Act (cap 206, RE 2002), the Land Dispute Courts Act (cap 216, RE 2019), the Local Government (District Authorities) Act (cap 287, RE 2002), the Local Government (Urban Authorities) Act (cap 288, RE 2002), the Arbitration Act No 2 of 2020, and the Civil Procedure Code (cap 33, RE 2019) as amended by Acts No 1 of 2020 and No 2 of 2020. Subsidiary legislation included the Marriage Conciliation Boards (Procedure) Regulations (GN No 240 of 1971), the Appointment of Communal Conciliatory Boards Notice (GN No 245 of 1971), the Primary Courts (Remuneration of Assessors) Regulations (GN No 192 of 1973), the Land Disputes Courts (the District Land and Housing Tribunal) Regulations (GN No 174 of 2003) and the Court Fees Rules (GN No 187 of 2015), Code of Conduct and Practice for Reconciliators, Negotiators, Mediators and Arbitrators Regulations (GN 148 of 2021), and Reconciliation, Negotiation, Mediation and Arbitration (Practitioners Accreditation) Regulations (GN No 147 of 2021).
68 MCB records reviewed included the proceedings, letters and certificates issued on failure to reconcile the parties. Court records reviewed included the matrimonial case files and matrimonial case registers from 2017–20 at the Primary Court of Morogoro (Nunge) Urban, Chamwino and Kingolwira. District Court at Morogoro, the Court of Resident Magistrate at Morogoro, Primary Court of Moshi Urban, Kindi, Marangu and Himo, District Court of Moshi and the Court of Resident Magistrate at Moshi in Kilimanjaro Region.
69 This category comprised two persons who had a certificate in law and one form four leaver, who were trained to offer assistance on legal issues in a non-governmental organization based in Moshi.
70 This category comprised parish priests, pastors, catechists and sheikhs.
71 Chatterjee Methods of Research, above at note 66 at 41.
72 LX Mbunda “Dispute settlement: Pre-colonial to post independence Tanzania” (LLM dissertation, University of Dar es Salaam, 1985) at 12. See JB Ojwang “Rural dispute settlement in Kenya” (1975–77) 7 Zambia Law Journal 63 at 64.
73 Cap 206, RE 2002. The Ward Tribunals Act has been amended. See the Written Laws (Miscellaneous Amendments) Act No 1 of 2013.
74 Marriage Conciliation Boards (Procedure) Regulations (GN No 240 of 1971), reg 9(2).
75 This information was obtained during interviews with WEOs and MCB members in Morogoro Municipality between January and March 2020.
76 An interview with the WEO and review of the quarterly report of September-December 2019 for Uru South Ward indicated that the ward covers 2,604 square hectares with 20 hamlets. There were 5,926 households with 23,133 residents.
77 Interview conducted by the secretary of the ward tribunal at Marangu East Ward in Moshi District shows that Mshiri and Lyamsongoro Villages border Mt Kilimanjaro and there is a journey of 12km to access the MCB services at Lyamrakana Village. The ward covers an area of 2,100 square km. Review of the quarterly report for June-August 2020 for Marangu East Ward shows that the ward comprises eight villages and 28 hamlets. It further shows that, according to the National Census conducted in 2012, the ward had 4,747 households with 23,734 residents.
78 Ward quarterly report for March-June 2020.
79 For example, a letter from Kilakala Ward Tribunal issued by the MCB has a stamp that reads “Baraza la Ardhi na Nyumba Kata ya Kilakala Morogoro” [Ward Tribunal for Land and Housing, Kilakala Ward]. This is the case because land matters are given priority by the local authorities. So, tools of labour were prepared to meet the demands of the people.
80 See Bean, SS “Ethnology and the study of proper names” (1980) 22/7 Anthropological Linguistic 305 at 305Google Scholar.
81 Orji, UJ “Law and practice of conciliation in Nigeria” (2012) 56/1 Journal of African Law 87 at 91CrossRefGoogle Scholar. See also CJ Mashamba Alternative Dispute Resolution in Tanzania: Law and Practice (2014, Mkuki na Nyota) at 115; Mashamba, CJ Arbitration: Law and Practice in Tanzania (2015, Theophilus Enterprises) at 52–53Google Scholar.
82 Ibid.
83 Ward committee is defined under the Ward Tribunals Act, sec 2 as “a ward committee established under the Local Government (District Authorities) Act, 1982, or the Local Government (Urban Authorities) Act 1982 for the ward in which the tribunal is established”.
84 See Ward Tribunals Act, sec 4(1)(a). The members come from the streets forming the ward. The ward development committee, under the secretary of the committee and the councillor of a particular ward, discusses and scrutinizes the names submitted to it in response to the advertisement and then produces the names of those qualified to be members of the tribunal.
85 See Ward Tribunals Act, sched, parts I, II and III.
86 Act No 2 of 2002 (cap 216, RE 2019). For details of this act coming into force, see GN No 223 of 2003 (8 August 2003).
87 Id, sec 11.
88 See LMA, sec 103(1).
89 [1986] TLR 207 (HC).
90 [1985] TLR 13 (HC).
91 [1983] TLR 293 (HC).
92 [1974] LRT No 11 (HC).
93 See also Court of Appeal of Tanzania The History of Administration of Justice in Tanzania (2004, Mathews Bookstore & Stationeries) at 20.
94 EE Stiles “How to manage a marital dispute: Legal pluralism from the ground up in Zanzibar” (2018) 8/2 UC Irvine Law Review 275 at 282.
95 Ibid.
96 A sheha is a government-appointed local community leader in Zanzibar.
97 A kadhi is a person presiding over an Islamic court. Stiles “How to manage a marital dispute”, above at note 94.
98 LMA, sec 102(1).
99 Ibid.
100 Cap 216, RE 2019.
101 This was stated in an interview with religious leaders who suggested that matters related to dispute resolution are addressed by the constitutions establishing the communities.
102 See Marriage Conciliation Boards (Procedure) Regulations, reg 9(2).
103 LMA, sec 103(2)(a).
104 Ibid.
105 Id, sec 103(2)(b).
106 This information was revealed during interviews with WEOs and MCB members from 22 wards.
107 See Gulliver, PH Social Control in African Society (1963, Routledge & Kegan Paul Ltd) at 250Google Scholar. See also Harvey, WB An Introduction to the Legal System in East Africa (1975, East African Literature Bureau) at 371Google Scholar.
108 See Village Land Act 1999 (cap 114, RE 2019), sec 60. This section provides that every village shall establish a village land council to mediate between and assist parties in arriving at a mutually acceptable solution on any matter concerning village land.
109 The Labour Institutions Act 2004, sec 12.
110 In-depth interviews were conducted with councillors for Bigwa, Tungi and Sabasaba Wards in Morogoro Municipality, and Kirima and Uru South Wards in Moshi District Council.
111 In-depth interviews were conducted with WEOs from 22 wards in Morogoro and Kilimanjaro region between January and September 2020.
112 Community development officers for Tungi, Bigwa, Sabasaba, Kilimanjaro, Pasua and Mlali Wards were involved in the study.
113 31 MCB members were interviewed between January and September 2020.
114 This was stated in an interview with the secretary of the ward tribunal at Kilimanjaro Ward on 14 July 2020.
115 A Armstrong et al “Uncovering reality: Excavating women's rights in African family” (1993) 7 International Journal of Law, Policy and the Family 314 at 343–57.
116 See U Wanitzek “Legally unrepresented women petitioners in the lower courts of Tanzania” (1990–91) 30 and 31 Journal of Legal Pluralism and Unofficial Law 255 at 255.
117 Ibid.
118 See HP Tundui and CS Tundui “Marriage and business performance: The case of women-owned micro and small business in Tanzania” (February 2021) Journal of Entrepreneurship in Emerging Economies, available at: <https://www.emerald.com/insight/2053-4604.htm> (last accessed 16 June 2022).
119 In Mlali Ward, an individual's estimated average daily income is TSH 1,500, an amount that cannot cover the tribunal's fees.
120 Ward Tribunals Act, sec 27 shows that the appropriate authority may, only in collaboration with the ward development committee, determine the remuneration of tribunal members.
121 These regulations were repealed on the enactment of the Ward Tribunals Act 1985.
122 Arbitration Tribunals Regulations (GN No 219), reg 18, published on 29 August 1969.
123 GN no 192 of 1973 and its Swahili equivalent (Kanuni kuhusu Posho ya Wazee wa Baraza katika Mahakama za Mwanzo, za Mwaka 1973), both published on 17 August 1973.
124 Id, reg 2.
125 GN No 174, published on 27 June 2003.
126 Id, reg 39(1).
127 Id, reg 39(2)(a)–(d).
128 Id, reg 39(3).
129 The LMA establishes two forms of MCB: MCBs established at ward level (which the current study covered) and communal boards. According to LMA, sec 102(2), the minister responsible for legal affairs may establish a communal board where he is satisfied that any community in Tanzania has established for itself a committee or body of persons to perform the functions of an MCB. The minister must also be satisfied that it is desirable for the established committee or body of persons to be designated as an MCB with jurisdiction over the members of that community. Designated communal boards in Tanzania are mainly religious institutions. The commissioner of the social welfare committee established at the Ministry of Health, Community Development, Gender, Elderly and Children is also a designated communal board for all communities in Mainland Tanzania. See Appointment of Communal Conciliatory Boards Notice (GN no 245 of 1971), item 121.
130 Rwezaura and Wanitzek “Family law reform”, above at note 28 at 20.
131 Above at note 15.
132 WEOs for Bigwa, Kilakala, Sangasanga, Nyandira, Marangu East and Makuyuni Wards.
133 These include Islam, Roman Catholic Church, Evangelical Lutheran Church of Tanzania, Tanzania Assemblies of God and the Anglican Church.
134 GN No 240 of 1971.
135 Id, reg 7(1)–(7).
136 Interview response from street executive officer for Kihonda Magorofani and Godes in Kihonda Magorofani Ward on 21 February 2020.
137 Ibid.
138 Ibid.
139 Above at note 15.
140 Id at 6.
141 Cap 216, RE 2019.
142 Id, sec 3(2)(a).
143 John v Bura, above at note 15.
144 Interview responses from the WEO, Kilakala Ward.