Modified original jurisdiction of district and primary courts in matrimonial proceedings in Tanzania: A case for concern

Abstract

The Law of Marriage Act [LMA] is a product of integration of personal laws. From inception, the LMA vested original concurrent  jurisdiction in matrimonial proceedings to the High Court, a court of a resident magistrate, a district court, and a primary court under  section 76. It vested Primary Courts to civil related matters under section 75. This legal position has all along been in force over six  decades now without challenges. Recently, the High Court of Tanzania in the cases of Hamisi Ammri, Burton Nyerema, and Ester Rogatio,  held that district courts have no jurisdiction of handling matrimonial disputes based on customary marriage without first seeking for  leave of the High Court. Primary Courts on the other hand, have been held to have no powers of handling matrimonial disputes based on  civil marriages. This paper has reviewed related literature, case law, updated statute indices, and observed that no amendment has so far been made on the LMA. It is argued that the High Court decisions in the named above cases were made in error. It recommends that  the Court of Appeal, suo motu by way of revision or by exercising supervisory powers, be pleased to rectify the situation in order to  maintain certainty in the administration of justice in matrimonial disputes.