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The phrase ADR, refers to all those decision-making processes other than litigation including but

not limited to negotiation, enquiry, mediation, conciliation, expert determination, arbitration and
others1. Article 33 of UN Charter 2outlines these conflict management mechanisms clear terms
and is the legal basis for the application of ADR mechanisms in disputes settlement between
parties be States or individuals. It outlines the various conflict management mechanisms like
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement and it encourage
individuals and State to such mechanisms.

Alternative Dispute Resolution is increasingly becoming common practice in many judicial


processes around the world. This is because of its many benefits as compared to other judicial
mechanisms of dispute resolution. Some of the benefits of Alternative Dispute Resolution
include its capability to reduce litigation, costs as well as less time involved in the determination
of disputes3.

Effective implementation of ADR mainly depends on the legal framework of a particular country
where it is subjected. Apart from having the laws to govern procedures of allowing the parties to
access justice machineries to assert their rights, the institutional framework such as court, also
pray a great role in considering what the system can deliver to its stakeholders. In most
developing countries like Tanzania, ADR techniques are not very familiar in use for resolving
disputes. However some laws have incorporated some forms of ADR.

The Constitution of the United Republic of Tanzania recognizes the importance of solving
dispute through Alternative Dispute Resolution. Article 107A (2) (d)4, requires courts and
tribunals to promote and facilitate amicable dispute resolution among person involved in dispute.
The same principle has been embodied in the Civil Procedure Code5 and the Arbitration Act6.
However Alternative Dispute Resolution has not been as successful as expected in fostering
amicable dispute settlement.

1
Alternative Dispute Resolution and Article 159 of Kenya Constitution, page 2
2
1945, Charter of United Nations, (Chapter VI on Pacific Settlement of Disputes)
3
Alternative Dispute Resolution in Tanzania page 19
4
Cap 2 of 1977 RE 2002
5
Chapter 33 RE 2002 (Order VIII A- VIIIC)
6
Cap 15, RE 2002
ADR was introduced in Tanzania by Government Notice no. 422 of 1994, amending the first
schedule to the Civil Procedure Code introducing Order VIIIA; Order VIIIB; and Order VIIIC 7.
The implications of the 1994 amendment to the CPC to be that all civil cases filed in courts must
be referred to ADR in the form of Mediation.

The above legal position was applied in the case of, Fahari Bottlers Ltd & Another vs.
Registrar of Companies & another,8 where the Court of Appeal of Tanzania held that “the
requirement for a suit to be referred to mediation first before full trial begins is a mandatory one
under the CPC”.

The aim of adopting ADR in Tanzania was to reduce backlog cases. It was also meant to avoid
resort to unnecessary procedural technicalities prevalent in traditional courts as well as reducing
expenses involved in pursuing litigation in courts of law. In this regard, the court-annexed ADR
system in Tanzania was designed in an informed way to allow parties to participate easily in this
process and ensure that the relationship between the parties is preserved after they had gone the
ADR process.

The court annexture ADR system is also enforced in commercial dispute in the high court. It is
provided under part V of the High Court (Commercial Division) Procedure Rules 9, particularly
rule 33, 34 and 3. The rules give power to the Judges of the high court to direct parties to the
dispute to sit for mediation in case prior settlements arrangement as per rule 29 & 28 fails. This
shows that it is interest of the court and law to make sure that disputes are resolved amicably in
order to avoid unnecessary litigation.

Apart from commercial and civil disputes, ADR mechanism is mandatory in labour dispute in
the high court in Tanzania. All Labour disputes must be referred to CMA for mediation. The
Commission for Mediation is established under section 1210. The High Court (labour division)
dismisses the cases which filed direct to the court without resort for meditation.

7
Opt. cit, Cap 33 RE 2002
8
Civil Revision No. 1 of 1999, Court of Appeal of Tanzania at Dar es Salaam (unreported)
9
Government Notice no. 250/2012
10
Labour Institution Act, 20o4
In the case of Cable Television Network (CTV) vs Athumani Kuwinga & 3 others11, this
application was dismissed because the judge observed that the matter was not set for mediation,
and he continue to say that mediation is a mandatory requirement put by law. The above case
proves the ego of the court in encouraging dispute settlement by ADR mechanism.

The Law of Marriage Act encourages ADR mechanism in solving matrimonial disputes. Section
12
101 require the parties seeking for divorce to refer the matter first to marriage conciliation
board to reconcile the parties amicably, further section 106(2) of the Act requires, every petition
filed to the court to be accompanied by certificate by the board within six months. This is another
situation where ADR is resorted rather than litigations

The establishment of NCC (National Construction Council) in 1979 was aimed at encourage
ADR mechanism. This is a statutory body which was established through National Construction
Act13. Apart from its main statutory mandates in the Act of establishment the Council is also
engaged in facilitating construction dispute settlements through adjudication and arbitration
under the National Construction Council arbitration rules. This still prove the desire to encourage
ADR mechanism.

The current Rules applicable in the Arbitration are the, Arbitration Rules 2001 Edition, which
replaced the old Rules of 1984. The Rules are in the form of guiding procedures for regulating
arbitration between parties who seek to resolve their construction dispute through NCC 14. NCC
is the only semi-government institution facilitating arbitration of construction disputes in
Tanzania.

Tanzania Institute of Arbitrators (TIA) as another registered private NGO in Tanzania whose
main objective is to deal with arbitration. The institute has been collaborating with NCC in
training of construction professionals and lawyers to become arbitrators. However, there is no
record to show that the activeness of the Institute in facilitating arbitration as it is for the
neighboring countries such as Kenya and Uganda where private arbitration institutions are well
organized and active. TIA can be empowered to work effectively as a trusted institution for the

11
Labour Revision no. 94 of 2009 at Dar es Salaam
12
Law of Marriage Act
13
Cap 162 of 1979 RE 2002
14
Resolving Land Dispute Through Alternative Dispute Resolution: An Overview of Tanzania’s Legal Framework
promotion and determination of disputes through arbitration and other forms of ADR in
Tanzania. Therefore this shows that ADR mechanism is not a second hand.

In other jurisdiction like Kenya, the constitution promotes and provides guidelines for Dispute
Resolution. Article 159 of the Kenya constitution entrenches ADR as part of Kenya’s Dispute
resolution mechanisms. However there is no mandatory requirement for the parties to
commercial dispute to submit to ADR proceeding, however under the Civil Procedure Act 15, the
court may either on the application of the parties or suo moto (on its own motion), refer a
commercial dispute to ADR mechanism.

The failure of Alternative Dispute Resolution is caused by the following reasons, there are only
few judicial officers who have ADR training, most advocates’ dislike ADR for reasons of
purported low economic returns and hence do not actively and purposively encourage their
clients to pursue ADR, Mediation has also run into problems because sometimes judicial officers
conduct themselves as authoritative Judges and Magistrates other than mediators, judicial
officers regard ADR as another burden16.

The following are the effectiveness of ADR mechanism in resolving commercial and civil
disputes in Tanzania.

Reduce heavy caseloads and backlogs case in Tanzania. The establishment ADR mechanism in
both commercial and civil courts has reduced the number of pending cases, most of the case has
been decide by the aid of ADR mechanism. Last year the Chief Justice of Tanzania Ibrahim
Juma requested all courts to make sure that, all backlog cases are disposed before the end of
2016.

The Minister for Constitutional and Legal Affairs Prof. Palamagamba Kabudi while in
parliament said the number of backlog case have decreased to large extend, since most of them
has been decided and disposed of. This means some of these cases have been disposed by ADR
mechanism, though he did not mention exactly number of cases which has been disposed
through ADR mechanism. This information proves the effectiveness of ADR mechanism in both
commercial and civil courts.

15
Order 46, Cap 21 RE 2012
16
Law Reform Commission: The Civil Justice Review System , 4
Early disposition of the case, ADR mechanism has lead to early disposition of the case since it a
way of dispute settlement which do not involve a lot of procedures in solving. Though there is no
any statistics, but the fact that many cases has been solved within a short time prove that
mediation has become effective in commercial and civil courts.

Enforcement of Arbitral award is another effectiveness of ADR. Award as a result of ADR


mechanism has been enforced in different ways some through the courts. Example the law
allows enforcement of foreign arbitral awards in the High Court of Tanzania, example in
Dowans vs Tanesco, it was filed in Tanzania to enforce arbitral award. The enforcement of
foreign award is regulated by the Tanzania Arbitration Act, of 1931.
BIBLIOGRAPHY

Mashamba, J, C. Alternative Dispute Resolution in Tanzania, Mkuki na Nyota Publisher, 2014

Kishenyi, B. Thesis, Resolving land disputes through alternative dispute resolution (ADR). An
overview of Tanzania's legal framework, University of Dar es Salaam, 2017

STATUTES

Law of Marriage, Cap 29, of 1971 Revised Edition 2002

Civil Procedure Code, Cap 33 Revised Edition 2002

The Constitution of United Republic of Tanzania Cap 2 of 1977 Revised Edition 2002

National Construction Council Act, Cap. 162 R.E. 2002

Kenya Civil Procedure Act, Cap 21 Revised Edition 2012.

ABBRIVIATIONS

ADR- Alternative Dispute Resolution

NCC – National Construction Council

CMA- Commission for Mediation and Arbitration