TANZANIAN CHIEF JUSTICE MOHAMED CHANDE OTHMAN'S SPEECH ON 20 JULY, 2012

OPENING REMARKS BY HON. MOHAMED CHANDE OTHMAN CHIEF JUSTICE OF TANZANIA ON THE OCCASION OF THE 4TH ROUNDTABLE DISCUSSION OF THE COMMERCIAL DIVISION OF THE HIGH COURT OF TANZANIA 20TH JULY 2012, DAR ES SALAAM Your Lordship Justices of Appeal, Your Lordship Judges of the High Court, Representative of the Royal Danish Embassy, Representative of the World Bank Tanzania, Distinguished Permanent Secretaries of the Ministry of Finance and Ministry of Constitutional Affairs and Justice or their representatives, The Chief Executive officer of the Investment Climate Facility for Africa or his representative, The President of Confederation of Tanzania Industries or his representative, Dean Faculty of Law from Respective Universities Present, The Chief Executive Officer, Better Regulation Unit, Coordinator of the BEST PROGRAMME, Honorable members of the Commercial Court Users' Committee, Hon. Registrars, Members of the Media present, Distinguished Participants, Ladies and Gentlemen I feel greatly honoured to welcome you, the distinguished participants, learned brothers and sisters to the 4th Roundtable of the Commercial Division of The High Court of Tanzania. Last year, when ope'ning a similar occasion I commended Honourable Judge Robert Vincent Makaramba and his team for organizing a roundtable whose theme was "Contract Enforcement through the Judicial System in Tanzania'~ Let me once again take this opportunity to recognize their initiative in selecting a well-chosen theme for this year's Roundtable, that is, "Curbing Delays in Commercial Dispute Resolution; Arbitration as a Mechanism to Speed up Delivery of Justice" Honorable participants, case delay is a sign of an inefficient judicial system. If not properly managed, case delays may lead to unmanageable case backlogs which in turn clog the courts. Excessive case delays may amount to a denial of justice. Learning from the past, it was the inordinate case delays in the 1990's, which necessitated the establishment of the High Court of Tanzania, Commercial Division. Thus the objective of establishing the court was to fast-track the resolution of commercial disputes so as to attract investment and strengthen the business environment. That objective is still real. To attain those objectives, the Division is duty bound to determine commercial cases timely, effectively and efficiently. Tanzania, like many other countries, is confronted with the challenge of case delays, the difference only being its extent, magnitude and reach. The central theme of today's Roundtable discussions, "Curbing Delays in Commercial Dispute Resolution; Arbitration as a Mechanism to Speed up Delivery of Justice" is thus opportune and most welcomed. Honorable participants, according to the Doing Business Report 2012, Tanzania has dropped in its ranking in the area of enforcing contracts from 33 (2011) to 36, out of 183 economies around the world. The fact Tanzania has dropped in the ranking is not good news. However, that new ranking i.e. 36 out of 183 economies is something that we must appreciate and strive to elevate. The report has it that it takes 462 days involving 38 procedural steps to determine commercial cases. The fastest country in the world is Singapore where it takes 150 days involving 21 procedural steps to determine a suit and the slowest is Slovenia where it takes 1290 days to hear and determine a case. I am informed that the Commercial Division's target is to determine a case within 365 days and to gradually reduce the period to 270 days, by 2017. Once that target is achieved not only will the ranking be improved but case delays will also be drastically reduced. That is the preferred direction in the resolution by the court of commercial disputes in Tanzania. Honorable participants, efforts in curbing delays need be holistic and participatory. The court should be proactive in providing leadership, control, direction, management and monitoring of the litigation process. All the court's stakeholders, i.e. state attorneys, advocates, parties and court brokers should offer full cooperation. This ought to be the case in each and every measure taken by the court and aimed at eliminating or reducing delays. What then is the role of the court in curbing delays? In R. v. Chaaban, [2003] EWCACrim 1012, the Court sufficiently, and i~ my view correctly explained: '~..No one should assume that trials can continue to take as long or use up as much time as either or both sides may wish, or think, or assert, they need. The entitlement to a fair trial is not inconsistent with proper judicial control over the use of time. At the risk of stating the obvious, every trial which takes longer than it reasonably should is wasteful of limited resources. It also results in delays to justice in cases still waiting to be tried, adding to the tension and distress of victims, defendants, particularly those in custody awaiting trial, and witnesses.....• In principle, the trial judge should exercise firm control over the timetable, where necessary, making clear in advance and throughout the trial that the timetable will be subject to appropriate constraints. With such necessary evenhandedness and flexibility as the interests of justice require as the case unfolds, the judge is entitled to direct that the trial is expected to conclude bv a specific date and to exercise his powers to see that it does'~( Emphasis is mine) Honorable participants, I expect that during today's discussions you will identify specific causes of delays and suggest appropriate solutions, including recourse to arbitration as an alternative dispute resolution mechanism to litigation. In all, measures to be adopted in addressing delays, timeliness and foresight are crucial. The duration of the litigation process must be constantly monitored. Pending cases that have been in the process or system for an excessive period must be expeditiously and specifically dealt with. The Division's monthly case return as of May 2012 shows that 69% of cases, that is, 159 are aging zero months to 12 months. The Division has to keep a close look at these cases to ensure that they do not lie in court, longer than their agreed and scheduled periods. Appropriate measures must also be taken for the remaining 31% of cases, that is, 74 cases, which have been in court more than a year. The Division and indeed every court should always prioritize and allocate sufficient resources to deal with cases that have exceeded the agreed time frame. Honorable participants, one way to curb case delays is for the Commercial Division to adopt standard operating procedures. These could incorporate agreed time schedules for the disposal of individual cases, an active role for Judges with respect to case management, limitations in the adjournment of court hearings expedited disclosure by the parties and recourse to alternative dispute resolution mechanisms. Last but not least, courts should also evaluate their performance. The purpose of an evaluation should not be to lay blame for the problems encountered. Rather, the goal should be to identify and correct any shortcomings in commercial dispute resolution. Courts around the world are increasingly using benchmarks and performance indicators to measure judicial performance. The Judiciary Administration Act, 2011 implicitly directs us to exactly that. There is no need to re-invent the wheel in this arena. Rather, we must apply the internationally acceptable norms. The time is ripe for the Division, if it has not started, to set benchmarks and performance indicators agreed by all stakeholders. Honorable participants, one of the recommendations that came out of the last Round-table discussion was for the Division to have a set of rules of procedure to empower the court to be proactive in the management of cases; to govern the control of adjournments and denial of those based on flimsy grounds, the non-stop hearing of witnesses in a case and the enlargement of the pecuniary jurisdiction of subordinate courts in terms of the quantum of monetary claims. I am pleased to inform you that I have already signed the High Court (Commercial Division) Procedure Rules, 2012. They are about to be published and should come into operation soon. The objectives of the rules are to enhance the efficiency of the Division by eliminating unnecessary procedural steps, enhancing the application of Information Communication Technologies in the administration of justice and increasing the Court's accountability, transparency and delivery. In designing the rules, account was taken to tailor them to promoting the business environment. My singular request is for all stakeholders to inform themselves on the new rules of procedure and with good faith to apply them so as to meet their intended purposes. Honorable participants, allow me to provide an update on the performance of the sub-registries of the Division. The Commercial Division of the High Court has two sub-registries at Mwanza and Arusha. A total of 44 cases were filed at the Arusha sub-registry as from Jan 2009 - June 2012, out of which 35 cases have been decided. The sub-registry has recorded a clearance rate (that is the rate of dealing with the case load) of 800/0. Whereas at the Mwanza sub-registry, during the same period, i.e from Jan 2009 - June 2012 a total of 37 cases were filed, out of which 29 cases have been decided. This sub-registry recorded a clearance rate of 780/0. This was attained without there being a resident judge of the Division stationed at any of the sub-registries. That performance is, in my view, satisfactory. However, we must strive for excellence. Honorable participants, in commercial transactions, time is a valuable asset. If courts and especially the Commercial Division are to meet the expectations and needs of the business community and meaningfully contribute to private sector growth, it must be able to determine disputes without resorting to byzantine, time consuming, complex or costly procedures. Moreover, the use of alternative dispute resolution mechanisms through mediation and arbitration provides an attractive alternative to litigation. In Tanzania, they are extremely successful in the enforcement of labour disputes. Why not in contract enforcement? As colorfully observed by Joseph Grynbaum: "An ounce of mediation is worth a pound of arbitration and a ton of litigation"! T he Judiciary is exploring new ways of strengthening the application of court annexed mediation. To start with, additional judges and magistrates have undergone a Training of Trainers (TOT) program in mediation. More and more judges, Advocates and other legal professionals will be trained in mediation. We are reviewing the powers of Registrars so that as judicial officers they may also serve mediators. Once this is done, the rate of settlement of cases through mediation by the Division will most likely be raised from where it stood in 2011 - 10.3% of 156 decided cases. This too should result in more settlement through mediation by other courts. Honorable participants, it has been affirmatively tested that arbitration is yet another viable method of commercial dispute resolution that can provide a reliable, flexible, and quick resolution of commercial disputes. Apart from the Commercial Division which has powers to arbitrate, which power it has never exercised, in the arbitration of commercial disputes, courts have at least two-fold roles to play. One, they have a responsibility to support the process before and after arbitration. Two, after the process has been completed, courts have an important function: the enforcement of arbitral awards. This judicial oversight role has to be discharged effectively, fairly and timely. The emerging trend observed in Tanzania, in the growth of protracted litigation surrounding the enforcement of arbitral awards in our Courts is a red alarm! Let me emphasize: Commercial disputes may be resolved by litigation or alternatively by binding arbitration, not by litigation and litigation in arbitration! I am aware that the Division has set for itself as target, a six months time frame from the date of filling of an arbitral award, as the maximum period it should take the Court to enforce it to its finality. This objective is overdue. No doubt, it goes to providing the optimal legal environment and the promotion of a sound investment and business climate. In turn, the Court of Appeal of Tanzania ought to embrace a similar approach to support this initiative by the Commercial Court so that it too can speedy up appeals originating there from. That apart, I also see a dire need to review the process involved in the execution of court decrees, including by court brokers so as to hasten and manage it in a more proficient and just manner. Collecting the fruits of a judgment or an arbitral award has at times been problematic for the successful parties. Collectively, we would have failed if we allow a decree to turn into a worthless paper or for that matter, a paper tiger! The whole chain of contract enforcement must be strengthened and rendered reliable. It is a basic precondition for business and economic growth. Honorable participants, my final word of advice is that, we must keep at heart the purpose of establishing the Commercial Division of the High Court which is, to provide commercial justice by adjudicating commercial disputes efficiently, effectively and timely. We should at all times strive to attain that goal. Having shared those remarks, it is my honor to declare this 4rd Round Table Discussion on the Curbing Delays in Commercial Dispute Resolution; Arbitration as a Mechanism to Speed up Delivery of Justice open. I invite you to participate fully in the discussions and to come up with recommendations which will enable the Commercial Division of the High Court address effectively commercial dispute resolution to our mutual and full satisfaction. I thank you