REAL STATE : Word on land law making process in Tanzania

Land law is at the intellectual and institutional centre of efforts to build legal systems in poor countries. Tanzania is a country, whose future depends on the success of its agricultural sector and it is indeed a representative of many developing countries facing pressures to reform their land law.

Constitution

The Constitution of Tanzania (1977) dictates, among other things, how legislatures (parliament, provincial legislatures and municipal councils) should conduct their legislative processes. In addition there are the relevant Rules of Parliament and the conventions of other legislatures that have a bearing on lawmaking.

The parliament has the power to pass new laws, amend existing laws and repeal old laws in the “national sphere” of government. The same power is exercised by municipal councils in the “local sphere”. Legislation is a body of law consisting of acts properly passed by the parliament, that is, the president and the National Assembly.

Application of law

It is important to note that legislation passed by the parliament does not, as a general rule, apply to Zanzibar. There are detailed rules in Articles 98–99 of the Tanzania Constitution, which set out different law-making processes that apply to different types of legislation.

Deciding what the law should be is the parliament’s responsibility. Deciding how a law applies to a particular case is the function of courts. Courts also finally determine what a law means. Thus, as well as applying the law, the courts interpret laws. Administration and enforcement of the law is the responsibility of the government.

Types of Bills

A Bill in its ordinary meaning simply means a new law in the making. It may be introduced in parliament by the government, minister or by a Member of Parliament.

This means that there are two types of Bills, namely Government Bills which are introduced into the National Assembly by a minister (eg Minister for Lands, Housing and Human Settlements Development) or the Attorney-General and Private Member’s Bills, which are introduced into the National Assembly by a Member of Parliament, who is not a minister or the Attorney-General.

After the Bill has been approved by the Cabinet (in the case of Government Bills) is published in the official Gazette with a statement of its objects and reasons, signed by the minister responsible for introducing the Bill to the National Assembly. It must be published in at least two issues of the Gazette at intervals of not less than seven clear days.

First reading

The first reading stage of any Bill is done by the Clerk at the table reading the long title of the Bill before the National Assembly.

At this stage no discussion takes place, instead, the Speaker refers the Bill to the appropriate Standing Committee for consideration. The appropriate Standing Committee has no power to amend the Bill referred to it, but may request the minister responsible for the Bill to introduce amendment to the Bill in the National Assembly.

After the chairman of the appropriate Standing Committee has reported to the Speaker that his committee has concluded its consideration of the Bill, then the Speaker orders the Bill to be entered on the Order Paper ready for the second reading.

The minister normally explains about the Bill and the leader of the opposition is also given a chance to air their views on the Bill. Then, the Bill is debated by the whole parliament.

The National Assembly

On completion of the general debate, the National Assembly immediately resolves itself into a committee of the whole House. The Clerk calls the number of each clause in succession together with any amendments, which may have been made by the minister in charge on the Bill. The presiding officer (who at this stage is designated chairman not Speaker) puts the question “that the clause (or the clause as amended) be approved.

Clauses of the Bill

When the clauses of the Bill have been dealt with, the National Assembly resumes and the Speaker returns to the chair at the conclusion of the proceedings in the committee of the whole House.

The minister in-charge of the Bill then reports to the National Assembly that the committee has considered the Bill, clause by clause and approved the same.

Thereafter, he requests the National Assembly to concur with the findings of the committee. At this stage, the National Assembly votes and if the majority of the MPs give their consent, then the Bill is passed by the House. If the majority of MPs say ‘No’ then the Bill is rejected by the National Assembly.

Assent to the Bill

When a Bill is passed by the National Assembly, a printed copy of the Bill is submitted by the Clerk of the National Assembly to the President for his assent or other order. If the Bill is assented to then it becomes an Act of Parliament and the law.

Everyone who is, or may be, affected by a law may be involved in its interpretation deciding what it means and how it will affect them: everyone is expected to know the law as it applies to them.

However, because there are many laws particularly in relation to land and some are complex and use difficult legal expressions, on occasions advice may need to be sought from lawyers, who are trained to interpret the law.