Moshi Co-operative

University
Emanuel Aloyce. LLB 3

THE HISTORY OF
ALTERNATIVE DISPUTE
RESOLUTION in TZ

Alternative Dispute Resolution is the way of resolving dispute out of the court, it is one of the
mechanisms applied to reduce overlapping of cases in the courts of law and intend to preserve
the relationship between parties.

Globally, the role of traditional dispute resolution mechanisms in the dispute resolution
continuum has been noted over time with scholars stating that courts only deal with a fraction of
all the disputes that take place in society1.

In Tanzania before introduction of Alternative Dispute Resolution the only methods which were
applicable were the traditional methods and court proceedings. However the two methods were
not enough as far as solving the dispute amicably is concerned, the history of Alternative Dispute
resolution has been a little bit different from other ways that Tanzania

Today, Alternative Dispute Resolution (ADR) has gained international recognition and is widely
used to complement the conventional methods of resolving disputes through courts of law. ADR
simply entails all modes of dispute settlement/resolution other than the traditional approaches of
dispute settlement through courts of law. Mainly, these modes are: negotiation, mediation,
[re]conciliation, and arbitration. The modern ADR movement began in the United States as a
result of two main concerns for reforming the American justice system: the need for better-
quality processes and outcomes in the judicial system; and the need for efficiency of justice.
ADR was transplanted into the African legal systems in the 1980s and 1990s as a result of the
liberalization of the African economies, which was accompanied by such conditionalities as
reform of the justice and legal sectors, under the Structural Adjustment Programmes. However,

1
Marc Galanter, “Justice in Many Rooms: Courts, Private Ordering and Indigenous Law”, Journal of Legal Pluralism,
(1981) Vol. 19, p.3
 Moshi Co-operative
University
Emanuel Aloyce. LLB 3

THE HISTORY OF
ALTERNATIVE DISPUTE
RESOLUTION in TZ
most of the methods of ADR that are promoted for inclusion in African justice systems are
similar to pre-colonial African dispute settlement mechanisms that encouraged restoration of
harmony and social bonds in the justice system. 2 The need for African counties to adopt these
methods of resolving dispute arose and many countries in Africa started to incorporate the
Alternative dispute resolution methods in their laws

In Tanzania ADR was introduced in 1994 through Government Notice No. 422, which amended
the First Schedule to the Civil Procedure Code Act (1966), and it is now an inherent component
of the country's legal system. In recognition of its importance in civil litigation in Tanzania,
ADR has been made a compulsory subject in higher learning/training institutions for lawyers.
This handbook provides theories, principles, examples of practice, and materials relating to ADR
in Tanzania and is therefore an essential resource for practicing lawyers as well as law students
with an interest in Tanzania. It also contains additional information on evolving standards in
international commercial arbitration, which are very useful to legal practitioners and law
students.3

There are a myriad of disputes that do not reach the courts and that are resolved through informal
negotiations by the disputants. Traditional dispute resolution is common feature in almost all
Africa societies and it is the oldest method of dispute resolution compared to other dispute
resolution methods. The rationale behind that is that the societies before colonialism had their
own traditional ways of resolving disputes. Regionally most African countries still hold onto
customary laws under which the application of traditional dispute resolution mechanisms is
common. It has been said that throughout Africa the traditions have since time immemorial
emphasized harmony/togetherness.

2
Mashamba C.J(2014)ALTERNATIVE DISPUTE RESOLUTION: Law and Practice.Mkuki na Nyota Publishers. Tanzania
pg 224
3
ibid
 Moshi Co-operative
University
Emanuel Aloyce. LLB 3

THE HISTORY OF
ALTERNATIVE DISPUTE
RESOLUTION in TZ
The two methods although they serve the same purpose of resolving dispute they differ from
each other. The following is the distinction between the two methods;

In Traditional methods, resolution of conflicts prescribes an outcome based on mutual problem-

sharing in which the conflicting parties cooperate in order to redefine their conflict and their
relationship. Resolution is non-power based and non-coercive, it follows then that conflict
resolution entails the mutual satisfaction of needs and does not rely on the power relationships
between the parties4. However in some circumstances the methods involves coercive measures to
reach the conclusion. R v Palamba Fundikira5In this case a trial by ordeal was conducted to
discover who has by witch craft caused the death of 11 children of the first appellant. Four
women were accused as causatives of the death of the children and to prove their innocence they
were subjected to a traditional test o drinking a traditional medicine called MWAVI. By itself
“mwavi” is not a poison but when taken with evil mind it turns to poison. Upon taking two
women died and other two vomited.

Alternative Dispute resolution is a total non coercive method and only intends to preserve the
good relationship that the parties had before the dispute.

Alternative Dispute Resolution settlement does not require the cause of the dispute that arose but
possibility of resolving it without further coercive and undesirable measure. A settlement
process, “seeks to mollify the opposition without discovering or rectifying the underlying causes
of the dispute”.6

In negotiation, parties meet to identify and discuss the issues at hand so as to arrive at a mutually
acceptable solution without the help of a third party. Negotiation is thus voluntary. It allows
party autonomy in the process and over the outcome. It is non-coercive thus allowing parties
4
Kenneth Cloke, “The Culture of Mediation: Settlement vs. Resolution”, The Conflict Resolution Information
Source, Version IV, December 2005
5
[1947] 4 EACA 96
6
Claire Baylis and Robyn Carroll, “Power Issues in Mediation”, ”, ADR Bulletin,Vol.7, No.8 [2005],Art.1, p.135
 Moshi Co-operative
University
Emanuel Aloyce. LLB 3

THE HISTORY OF
ALTERNATIVE DISPUTE
RESOLUTION in TZ
room to come up with creative solutions. It has also been described as a process involving two or
more people of either equal or unequal power meeting to discuss shared and/or opposed interests
in relation to a particular area of mutual concern. This is different from the traditional methods
which were the elders acted as a neutral ground to the dispute and elders acted as judges.

Traditional local leaders including male and female elders played a pivotal role in conflict
management. Due to their the wide powers, knowledge, wisdom and the respect they were
accorded in the society they could resolve family conflicts and conflicts related to natural
resources. There are some conflicts that come to courts that could well have been handled by the
local elders in a community or the Local administration. In the case of Torgindi v Mutsweni
In this case Torgindi accuse Mutseni as a causative of his marriage breakdown and as a result a
dispute arose and the drumming arose. Each part was ordered to compose and sang a song as
loud as he could so that the whole village could hear. Mutsweni was not a good song composer
but he hired a person to compose for him. The drumming started and went on for more than
3weeks every day. The village elders then opine that if the drumming continues it would end up
infighting so the parties were called to prepare and sing their songs before the elders. The elders
here act as judges and at the end they would decide who wins a case basing on the song
composed.