Reforming the Law of Evidence of Tanzania (Part Two): Conceptual Overview and Practical Steps

Abstract

The nation of Tanzania currently employs a code of evidence that is long, complicated, and outdated. The Tanzania Evidence Act (TEA) has 188 separate sections, with innumerable subsections, that cover approximately fifty-three pages of single-spaced, relatively small print. It almost certainly acts as a barrier to the bringing of legal actions; only those with skilled counsel could effectively use rather than be intimidated by its numerous provisions. The vast majority of its text was drafted not by the Tanzanians themselves, but by the English in the form of the Indian Evidence Act of 1872, which was later grafted onto Tanzanian law through British colonial rule. Whatever the advantages of the Indian Evidence Act over what preceded it, it is not well suited to the modern-day realities of Tanzania.To that end, the Tanzanian government recently began a project to overhaul its evidentiary code, inviting various stakeholders from the nation’s legal community to review and reform how evidence is currently used in the country. The authors of this paper are part of a research team from Northwestern University School of Law, led by Professor Ronald J. Allen, who are assisting a Working Group appointed by Tanzanian’s government to draft a new code of evidence. The authors traveled to Dar es Salaam in 2012 to meet with the Working Group as well as numerous other stakeholders in the Tanzanian legal community to assess how the TEA is actually being used — and not used — in various parts and by various constituencies within the nation’s legal system. An initial article, published in the Boston University International Law Journal, examines both the British colonial origin and inconsistent modern application of Tanzania’s evidence rules and then identifies functional realities of the nation’s judicial system that must be considered in adopting any potential reform, many gleaned from the authors’ interviews and observations in Tanzania. In the Spring of 2013, we returned to Dar es Salaam for a conference with the Tanzanian government’s committee of stakeholders to discuss specific reforms to the TEA — indeed, a complete overhaul — as well as present a set of guiding principles for the reform of evidence law that we have developed in conjunction with this project. This Article serves as a blueprint for those discussions. First, it provides a conceptual overview of both evidence and the law of evidence, two distinct concepts the understanding of which is critical to undertake any project of this nature and magnitude. This discussion culminates in an articulation of the critical principles that must underpin any analysis of evidence law. Secondly, it applies those principles directly to the TEA itself, providing a comprehensive critique of its various inconsistencies and anachronisms that must be addressed in order for Tanzania — as well as the other nations that have adopted the Indian Evidence Act on a near-wholesale basis — to reorient its law of evidence to accord with modern legal thought. Third, the article articulates a set of principles to guide the reform of evidence law, whether of Tanzania or any other jurisdiction. It concludes with a skeletal outline of a proposed replacement for the TEA.