MOSHI CO-OPERATIVE UNIVERSITY (MoCU)

FACULTY; FBIS

PROGRAMME; BARCHELOR OF LAW

COURSE ANTE; LAW 102

COURSE NAME; LEGAL METHOD 1

COURSE INSTRUCTOR; DR. RUTABANZIBWA. A

TASK; GROUP ASSIGNMENT

SUBMISSION DATE 2ND JANUARY 2023

S/N NAMES REG. NO SIGNATURE

01 MARTHA GAMBA MoCU/LL. B/1787/22 M.gamba
02 EDWARD LAUDEN MoCU/LL. B/1700/22 E. lauden
03 JACKLINE TSILA MoCU/LL. B/1749/22 J.tsila
04 STELLA PRUDENCE MoCU/LL. B/1834/22 S.prudence
05 DEROHE STANLEY MoCU/LL. B/1692/22 D. stanley
06 BRIGHT LUGONGO MoCU/LL. B/1677/22 B.lugongo

QUESTION

The African indigenous justice system is community-based human centered and employs
restorative and transformative principles in conflict resolution. Restorative justice is negotiative
and democratic, hence it the community to mediate into conflicts. Ideal the Africans indigenous
justice system provide opportunity for dialogue amongst the victims, The offenders, their
families and friends, and the community. “(Elechi, O., (2004) as quoted in Mashamba, 2014,
Alternative Dispute Resolution at p.32)

Required; In light of above statement and while citing vivid example from chagga and Sukuma
Pre capitalist societies, Explain the basic principles and the main features of the Pre capitalist
society customary dispute settlement mechanism.
Dispute is a disagreement or argument about something important. Dispute settlement is a
process that aims at a resolving misunderstanding between the opposing sides. Disputes are
normally prompted by conflicting interest over a matter, belief, or something of interest.

Alternative Disputes settlement is an acronym that entails an alternative course of disputes

settlement which as being adopted in recent years to remedy the weakness of litigation which
was expensive with result frequently unpredictable and normally occasioning undue delays.

The following are the basic principles and the main features of the Pre capitalist societies that
were used during Disputes Settlement, by tracing with two tribes that are Chagga and Sukuma as
follows:

Trial by Ordeal Was amongst the principle of settling disputes among parties during Pre
capitalist era. In Chagga and Sukuma society when the conflict arises Trial by Ordeal applied as
the Practice by which the guilty or innocent of the Accused was determined by subjecting them
to a painful or at least unpleasant, usually dangerous experience here the approval of innocent
was between death or injured and survival the innocent one survival the trial and long die and
remains that survival is an innocent part. From Sukuma as tribe Bantu speaking community with
almagam of different council of different sizes and origins which ranged between fifty and
hundred groups as royal dynastic groups known as Babinza, Bagola, Basamba and Bwega as the
same from emanated the Ntemi, The practice this principles as to same society assemblies with
parties to distribute then traditional Elders make medicine in food or drinks to which the parties
use and the wrong doers will die within the specific days which assured by traditional Elders, It
was of supernatural connectivity. Also, in Chagga society the Practice of this principle by the
way of taking animal like a goat then slaughter it Infront of the Elders and a long part who either
is suspected to be a theft in that society or a killer, then cooked and they ate it if he is the one he
will die in the two days.

It characterized with supernatural and spiritual believes. Also, it is in human as a person is not
given a chance to change into good, the inhuman acts and torture featured the principle of
disputes resolution during The Pre-Capitalist period.

Trial by Drumming the Scandal, In Sukuma society this method was practiced in the
popular pastoralist region such as Shinyanga and Simiyu. Therefore, this Disputes like land
Disputes can be settled in Sukuma by Elders who are the head of the Clan or village in such a
way that Elders starts to ask for blessing from the Spirits for the purpose of assisting them to
know the one who is wrong and right. After doing so they start to beat the drum and call both
side to dance the one who will dance well he or she became a winner and the owner of that
particular land, But the defeated one owner nothing. The kind of drum involved in Sukuma
society is Bagika and Bagaru in Sukuma language.

While in Chagga society Disputes Settlement settled by using traditional dances together with
songs which they sung to convey the message to the wrong doers to make them change from the
mistake. The kind of traditional dance they used is called “Mbasa” and they sung in venrnacular
language This is according to Costantine Ngowi, From Kishumundu ward.

Mediation. Is a constructive conversation between people in a conflict facilitated by a

neutral third personal, Mediator provides participant an opportunity to collaboratively design
creative solution to work place conflict and repair professional relationship. A mediator are
sought from within a communities of societies of the parties concerned. Elders are respected as
the trust worthy mediators in all community because of their accumulated experience and
wisdom. For example, the Chagga Case of Kadume V. Soine the mediator who an old person
comes between the disputants and help them to solve their disputes amicably, At the end of the
disputes the parties in disputes became friends hence the disputes were solved by an old man
acted as the mediator as he did not lie on any side of disputants.

In chagga society
 Trial by Jury. This was a principle and alternative that were applied by Pre-African
Societies, implemented by selection of a certain number of men and women according to law and
sworn to try a question of fact or indict a person for public offense. During the Pre-Capitalist
Societies, Disputes settlement in Chagga society was also used Trial by Jury in situation like
Appointment and Clear Selective of Elders among the society by consideration of Age, Wisdom
and Experience of Particular society. The basic task of that is to create an attentive decision for
community affairs, Chagga Tradition and Customs also appreciated the useful of Alcohol
(Mbege) during the Council as the part of refreshment for Council leaders.

In Chagga society famous disputes were like Land disputes and Family member conflict.

Therefore, Mbilizi Elias Sengerema notifies about Sukuma tribe in Disputes Settlement
especially Trial by Jury, In Sukuma society there were a Senior Leader of the Tribe known as
Ntemi but in various disputes that exist in the society there were alternative way of special
committee or Council that were under the leader of Council for disputes resolution like Family
disputes and Land disputes in pastures searching for their cattle’s foodstuff.

During the Council meeting of Disputes settlement were used refreshment like Alcohol (Walwa)
especially Konko in Sukuma language to refer Admired Alcohol.

Trial by Battle; this was the principle used to resolving dispute among the people in the
community. This principle has been there for long since the communal perivisceral people lived
a society and of life, it is the customary based principle of dispute resolution during pre-capitalist
system and has been even acting the capitalist system, trial by batter it is a method to the last
disputing parties get involved to actual right where the loser will be beater and the winner will
beat. It operates under the assumption that God stand only for innocent person where during pre-
capitalist period, the party to dispute could even hire another not a party of disputes stand him or
her for reason of sickness under the same assumption.

This has been practiced by Sukuma Tribe for long and it is said that it has been there to date to
same areas of the Sukuma tribe, For example it has been always practiced by young person,
Where you find two persons are at conflict to each other, To order, To resolve the problem your
find that their friends advice the disputing party to fight each other in order to get the winner to
the conflict. The procedure is laid down where they may draw a line is between who will
intercept the fight will began, Or they find even a piece of paper or piece of tree and put to the
head of disputing person are required to remove so as to commence the fights. In doing so the
actual fight is observed and the one who will beat the other will be the winner and the conflict
will come to an end to in a such way. Not only to young people but also even to person who is
mature in age you find themselves in actual fighter between one person of the other because they
had quared to each other, Now one prefer to solve his conflict by finding that other whom they
have quarrel to fish him or her.

The same applied to Chagga society, however it is not means of resolving disputes rather having
a battle to each as the result of conflict, may not only solve the disputes but also increase the
dispute between. For example, for a young person in a Chagga society Trial by Battle were and
are still applied as resolution to the disputing parties for instance to how young boys or young
girls from School or to school they quared to each other hence leading to huge conflict, hence
may lead to one party fails to control himself or herself and up by attacking the other by fighting
him or her as the means of resolving the problem to mature person. If it has happened that
someone has attacked the other and the fight each other because they had a conflict may be a
solution to each other but if it happens that one has beaten the other to the extent of giving blood,
Then the one who die so will have been made a crime but this is not dominant and is not
encouraged as the the means of resolving disputes between parties and therefore this principle
differ by practice between the two societies to the grow up and mature person to the society. It is
featured by actual fight as the solution to the problem between the disputing parties. Also, the
fights is not to proper arrangement since parties may fight each other in anywhere they meet.

Trial by Oath This method of disputes settlement that required a party to take a
guarantee of the truth of the testimony, was justified by a belief that having taken an oath one
had to tell no lies for fear of supernatural punishment. After swearing the council believed the
stories narrated by a party to be nothing but the truth. During the Pre-Capitalist societies in
Tanzania especially in the society of Sukuma tribe, according to descriptive that elaborated by an
Elder Denis Masolwa relatable to the Dispute settlement by Oath, implemented by finding all
suspected person in the society if there were any circumstance that were suspected and also
resolution of any disputes by Oath always is for disputes like sudden death, Women abortion and
Thievery of cattle.
Also in the society of Chagga tribe, Dispute settlement by Oath implemented by the suspect ion
of person in a particular social evil like. Family conflicts among family member competition in
asset distribution (Land and Housing). Trial by Oath implanted under the Super visor of family
council where by family who were in distribution of assets where sweared if there were no any
Contradiction among the family members.

Generally: Disputes resolution is the process of resolving dispute among the parties. In above is
the methods used to resolving dispute during pre-capitalist period, such as trial by oath, trial by
batter, trial by swimming the scandal and trial by ordeal. Same methods it became peace among
the parties to the dispute but same method was against justice (trial by ordeal) because its cause
death or injured by accused person.

Also, not only that but also the principles used a have got some of advantages like at the end of
the settled disputes the wrong doer is known, also it made all members to participate in settling
the disputes which occurred in their community or society, Through the aforementioned
principle the disputants are not required to pay anything, this method of dispute settlement it is
Cheaper compared to the modern mechanism of dispute settlement.
REFFERENCE

Book’s

 Elechi, O (2014) Alternative Dispute Resolution 3Ed

Peter T. Leeson (1866),Trial by Battle