As a language in Tanzanian law and courts, Swahili proposed
On 5 February 2021, Mr. John W.H. Kijazi, Secretary to the Cabinet, released a notification reminding the general public of the 2021 Written Laws (Miscellaneous Amendments) Bill (the Bill) to be discussed in the National Assembly. The Bill recommends that certain written law sections, including the Interpretation of Laws Act (Chapter 1), which is the focus of this legislative update, be updated and incorporated. In a nutshell, the suggested changes replace the language of English with the language of Swahili as the language of the constitution, the Court of Justice and the archives of the administration of justice in Tanzania.
Regarding the dispensation of justice, since 1985, the legislation (and practice) has required all courts/tribunals in Tanzania to use Swahili and English. In oral and written hearings, Primary Courts and Ward Tribunals are expected to use the Swahili language. District Courts, Resident Magistrates' Court, Supreme Court, Court of Appeal, and Judicial Tribunals use both Swahili and English languages in oral hearings, depending on the presiding staff. Nonetheless, documents and judgments must be written in English by these Courts/Tribunals.
With respect to the constitutional process, the Swahili language has been used in the debates and proceedings of the National Assembly since 1965. Bills and Acts of Parliament, including this Bill, have been written and published in English from the British Colonial Rule to date, except for the Constitution of the United Republic of Tanzania of 1977. Subsidiary law is drawn up in Swahili, English or both languages.
Prelude to Bill:
In addition, 'simplification and translation of laws' has been a central feature of the law reform Commission of Tanzania (LRCT) since 2008. About 15 of the 2500+ laws imaginable have been translated by LRCT. However, such traduced legislation has never been authorized to official use by the Chief Legislative Draftsman. In addition, although both English and Kiswahili have been accepted by Section 84(1) of Chapter 1, Paragraph 3 of Section 84 prioritizes the English version in the event of a dispute or uncertainty about such clauses or provisions of a statute.
In comparison, Section 33 of the Written Laws (No. 3) of the Act 2020, which requires the Attorney General 'to transpose any written legislation from one language of enactment into another' and publishes it in the Government Gazette, para. 2 immediately after subsection 1 of section 84 of Chapter 1.
The Legislation seeks to change the Law Interpretation Act:
Section 84(1) of the proposal specifies that Swahili shall be the language of country law
The Bill adds that Section 84(6) empowers the Minister in charge of legal affairs to govern situations and conditions in which laws can be in a language other than Swahili, to allow for some versatility.
The bill adds section 84a to which Swahili is declared to be the language used for administrative and legal distribution (by Courts, tribunals and other adjudicative bodies)
In the adjudication process English can be used at the discretion of the Chairman, but, unlike English, the resulting reports or documentation must be translated and authenticated to Swahili.
Section 84A of the proposed Section requires the Minister responsible for legal matters to assess the situations and conditions in consultation with the Chief Justice where the exemption of justice can be performed in language other than Swahili.
The consequences for the administration of justice in Tanzania of these proposed reforms are varied. After that reform becomes successful, Swahili is mostly a legal language, trials, tribunal documents and communications in the courtroom. Provided that Swahili is commonly used in government and people's day-to-day lives, the use of Swahili will certainly allow all to gain access to justice.
For technical and sensitive regulations, the Portfolio Minister could still also take advantage of the avenue set out in Section 84(6) to preserve the English version of the applicable rules, for example, regulating tax and investment matters. It is necessary to remember that either the Bill would not recommend or translate into Swahili the drafting of investment-related agreements into Swahili. Moreover, the language of legal education remains English.