There has been no significant consideration of the civil liability of doctors under Tanzanian law, either in the decisions of the courts of that country or in legal scholarship. The most obvious explanation for this has been the infrequency with which issues of medical malpractice have been litigated. Society and politics in Tanzania have changed greatly over the past ten years, however, and there is some reason to expect that the volume of litigation will increase. This article sets out to explore the significance of such a “legalization” of therapeutic relationships for professionals, patients, the health care system as a whole and wider Tanzanian society. In order to establish the effects of growing legal intervention it is necessary to consider in some detail the applicable rules of liability. As awareness of the possibility of litigation grows, these rules will increasingly form part of the fabric of therapeutic relationships. The following discussion will, therefore, seek to identify these legal principles on the basis of reported Tanzanian cases and precedents from other common law jurisdictions. Three grounds of action will be considered in particular: medical negligence; failure to obtain the patient's consent to treatment; and disclosure of confidential information acquired by the doctor. The latter two types of action have come up for consideration in the context of discrimination against people infected with HIV. They will therefore be discussed here with reference to the special circumstances of the AIDS epidemic.

The 1990s will go down in history as the decade when Africans had the chance to correct and make up for the blunders of the 1960s. Constitutional and multi-party democracy is now back in fashion and many are ready to forgive the errors of the past and make the sacrifices that will make such democracy and the expected concomitant economic progress possible. The daunting task facing African constitutional engineers is how to free themselves, intellectually and practically, from their strings of colonial loyalty, and how to frame constitutional arrangements that are adapted to the prevailing conditions and are genuinely democratic.

In April, 1994, the Law Reform Commission of Tanzania (LRC) recommended, inter alia, that section 160 of the Law of Marriage Act (LMA), be repealed because it constitutes “an unnecessary encroachment [on] the sanctity of marriage and [is] contrary to the spirit of the Law of Marriage Act”. Subsection (1) of the offending section enacts a statutory presumption of marriage in favour of reputed de facto unions that have existed for a minimum of two years. Subsection (2) states that once the presumption is rebutted, the woman cohabitant and the children born of that union become legally entitled to apply to the court for economic support from the male partner. In these proceedings the court has similar jurisdiction as a divorce court, including the making of orders for the division of assets jointly acquired by the couple and the determination of who is to have custody of the children. In 1971 when section 160 was enacted, it was widely recognized that de facto unions had become a social fact which the law could not ignore. Hence, the decision to extend to these unions the same legal consequences that follow a formal dissolution of a legal marriage. However, in so doing the legislature had indirectly raised and yet left open a number of important questions that have continued to engage the minds of judges.

The creditor company obtained a default judgment against the debtor and a writ of execution was issued. The debtor had already divested himself of all his property and accordingly the creditor took out a summons requiring the debtor to show cause why a decree of civil imprisonment should not be made against him. The debtor, though not indigent, failed to answer the summons and an order of civil imprisonment was made by the magistrates’ court. The debtor applied to the Supreme Court challenging the constitutionality of the order.

Sabapathee had been convicted by a magistrates’ court of drugs-related offences based largely on the uncorroborated evidence of an accomplice. The magistrates treated the accomplice's evidence with caution but nevertheless convicted Sabapathee on that evidence. An appeal against conviction was upheld by the Supreme Court on the ground that the magistrates had misdirected themselves in the manner in which they had dealt with the accomplice's evidence. The Director of Public Prosecutions appealed to the Privy Council.

Section 18(4) (d) of the Child Care Act, 1983, dispensed with the father's consent for the adoption of an illegitimate child. In this case the Children's Court had made an order sanctioning the adoption of a child and the applicant (the father of the child) sought a review of the decision on the ground that section 18(4) (d) was unconstitutional.

In December, 1995, the Constitutional Court made an order declaring a provision of the Criminal Procedure Act, 1977, inconsistent with the Constitution, but it suspended the declaration of invalidity and ordered that Parliament remedy the defect by 30 April, 1997, when the declaration would come into force. On 25 April, 1997, the Minister of Justice applied for an extension of the suspension.

The appellant, Mutasa, was a former Speaker of the then House of Assembly. He had addressed a seminar of senior public servants where he had voiced the opinion that the calibre of MPs was so low as to make Parliament meaningless and that they were uninformed, lacked intelligence and demeaned the institution of Parliament. The respondent, the Speaker of Parliament, ruled that the appellant's words constituted a breach of parliamentary privilege and a select committee of members of Parliament was appointed to investigate the matter. The committee took evidence from witnesses in the absence of Mutasa. He was questioned but was not allowed legal representation and the select committee also refused his request to recall, for further examination, witnesses who had testified. As a result of the committee's recommendations, Mutasa was found guilty of contempt of Parliament and severely reprimanded by the Speaker. Mutasa sought a judicial review of the proceedings of the select committee arguing that the finding of contempt should be quashed on the grounds that the committee's procedure had violated his right to a fair hearing (contrary to section 18(2) of the Constitution) and that his utterances outside Parliament were protected by his constitutional right to freedom of expression. The Speaker then issued a certificate under section 6(1) of the Privileges, Immunities and Powers of Parliament Act which the presiding judge deemed to be conclusive of the matter and accordingly stayed the proceedings. Mutasa appealed to the Supreme Court.

There is now a considerable amount of legal and other related materials available on the internet. The following are a few of the web sites that may be of interest to readers. The list will be updated from time to time.

The establishment of the Commonwealth Ministerial Action Group (CMAG) was noted in [1996] J.A.L. 123. CMAG submitted a report covering three countries, i.e. The Gambia, Nigeria and Sierra Leone, to the Commonwealth Heads of Government Meeting held in Edinburgh, Scotland, in October, 1997. Paragraphs 12–17 of the Edinburgh Communiqué set out the reponse of Commonwealth Heads of Government to the Report:

Representatives of Australia, India, Indonesia, Kenya, Madagascar, Malaysia, Mauritius, Mozambique, Oman, Singapore, South Africa, Sri Lanka, Tanzania and Yemen meeting in Mauritius in March, 1997, adopted this Charter whose primary aim is the “sustained growth and balanced development of the region and of the Member States”. The main provisions of the Charter are set out below:

Many African states continue to face problems of money laundering. In South Africa, the Law Commission undertook a major project (Project 104) on the issue and has now published its report entitled Money Laundering and Related Matters. It makes the following recommendations:

Algeria, Angola, Cameroon, Cape Verde, Congo, Congo (Dem Rep), Cote d'lvoire, Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, The Gambia, Ghana, Guinea, Guinea Bissau, Kenya, Liberia, Libyan Arab Jamahiriya, Madagascar, Malawi, Mauritania, Mauritius, Mozambique, Namibia, Nigeria, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, Sudan, Togo, Tunisia and the United Republic of Tanzania.

In June, 1996, the SADC Parliamentary Forum was officially launched with the aim of providing a democratic and representative forum for the various national parliaments in the region. The Constitution of the Forum is as follows