The Parliament of Tanzania has passed a law (Written Laws Miscellaneous Amendment Act, 2021 no.3/2020) to amend various laws, among others, to declare Kiswahili as the official language of the laws of the country and the language to be used in the administration and dispensation of justice.
Despite the move to adopt Kiswahili as the language of the law and courts, English remains to be used as an exception. To operationalise this, the Chief Justice of Tanzania Hon. Prof. Ibrahim Juma on 1 February 2022, exercising his powers under Section 84A (5) of The Interpretation of laws Act [ Cap.1 R.E 2019] issued the Rules titled ‘The Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions)’ Rules G.N 66/2022 (Rules).
Review of Rules G.N 66/2022
The rules introduce the areas that will impact the conduct of litigation (court proceedings) in Tanzania in several areas as follows:
Pleadings to be filed in Kiswahili
Rule. 4 of G.N 66/2022 clearly provides a mandatory requirement for any person who intends to initiate any proceeding and who, in his or her opinion, falls under the circumstances where the proceedings and decisions are to be conducted in English, to:
- file his or her pleadings in English with a corresponding translation in Kiswahili; and
- state the grounds upon which he or she relies to have the proceedings conducted in English.
The court is given discretionary power, after receiving the filed pleadings, to admit the case and direct that the proceedings and decision be conducted in English; or reject the case and direct a party filing it to file his or her pleadings in Kiswahili.
English language to be used where necessary
Rule 3 and the schedules of G.N 66/2022 introduce the circumstances where English may be used in litigation. These include:
- when either of the parties or their representatives are not Kiswahili speakers;
- when the matter is about an international investment dispute related to foreign trade or business;
- any matter involving finance and monetary affairs, specifically tax and international, regional or sub regional affairs;
- when matters of science and technology are involved;
- when the law governing the subject matter of the litigation and the practice and procedure involved are not available in Kiswahili; and
- for any other reason the interest of justice demands.
Duty to interpret
Rule 5 of the G.N. 66/2022 provides that if the proceedings are conducted in English and any party to the proceedings or his or her representative does not understand English, the proceedings should be translated to him or her in Kiswahili by or under supervision of the presiding officer.
Further, where the proceedings are in English they and the decisions will be translated into Kiswahili and made available to the parties within 21 days from the date of the conclusion of proceedings.
The rules will undoubtably aid members of the community and public at large to easily understand the written laws and follow court proceedings. However, English is the predominant language of legal education and curricula so adopting Kiswahili as the language of the court and law will render it difficult for legal practitioners who learn the law in English and yet are required to practise it in Kiswahili.
Furthermore, although intending to make litigation accessible to all, the rules may, on the contrary, potentially have the opposite effect of increasing the costs in cases where the parties would like the litigation to be conducted in English as the parties would have to follow several steps before the court decides as to what language the litigation should be conducted in.
Similarly, the costs of ligation when the matter is conducted in Kiswahili could rise as advocates, although required to know Kiswahili which is one of the languages of the court, might need to consult translators when translating complex and technical legal words and phrases.
Lastly, the question concerning the application of the Rules is still unclear. It is not stated as to whether, being procedural, the Rules will have a retrospective effect on matters that are currently being heard or if they will only apply to new cases.
The use of Kiswahili has gained traction over the last few years demonstrated by the African Union adopting Kiswahili as an official working language. Therefore, it does not come as a surprise that the courts are also singing the same tune and advocating for the use of Kiswahili.
It is still early stages, but it will be interesting to see the impact of the Rules on litigation in Tanzania.
Read the original publication at Bowmans.