 Introduction
 Objectives
 What Is A System Of Dispute Settlement
 Summary
An apt quotation to introduce this module is that of Professor Kapeleto who stated, "A choice of
Procedure to be followed in any particular society is a reflection of that particular society's values. It is a choice of how to settle dispute and it definitely reflects the political - economic choices of that particular society".
This module, will:
(i) Introduce you to the three broad categories of systems of dispute settlement.
(ii) Enable you to examine the link between the system of dispute settlement and the socioeconomic condition of the society.
(iii) Furthermore, you will be able to distinguish between the various types of systems of dispute settlement.
A system of dispute settlement refers to the established modes; procedures or manner a particular society uses to resolve its disputes or conflicts. It relates to the modes of conflict resolution.

Basically, there are three major classifications of systems or modes of dispute settlement, namely, the Popular Assembly, the Inquisitorial and the Adversarial Systems.
The main practitioners of this system are the tribal societies, where the socio economic activities of the members of the community were intertwined. Such systems evolved during the era of inter dependence where the nature of the property holding was communal. Land was valued for its use and in land disputes; the main issue were “who has the legal right to use?” and not who owns the land. As such, what the assembly normally decided upon were a person’s relative rights as opposed to absolute rights over property.
The system is characterised by the absence of undue regard to technicalities in the laws, lack of codification and/ or formal procedure (that is rules of evidence). Usually, what is applied is the principle of judicial knowledge.
Meaning that the assembly in sitting has all the facts of the dispute before the parties in conflict appear before it. This also implies that the participants in the procedure can also be called as witness. An important aspect to note is that the end result was reconciliation, compromise and compensation.
The purpose of this mode of settlement was to attain a compromise. All its decisions were invariably consensus decision aimed at reconciliation of the parties. In essence, members of the said societies or communities were conscious of the need to settle their disputes by way of reconciliation and compromise without rupturing the harmonious community relationship or creation of enmity within the community.
This was because the members of the society were interdependent and as such amicable dispute resolution and social relations were a must and not an option for the survival of the society as a whole.
The Popular Assembly mode is an alternative dispute settlement mode aimed at engendering order, tranquillity, social equilibrium and community solidarity in that given society. Therefore, non-violent methods of dispute settlement and compensation rather than punishment were the basic social fabric in those societies or communities.
However, one should note that even in this mode, there are times where members of the society or community resorted to violent means of dispute settlement as evidenced by ethnic, tribal or civil wars.
It is important to point out that though the popular assembly was prevalent in many local societies, one is able to discern distinct variations of the said system between ethnic groups of centralized and non-centralized society. This is so because of the differences in the stratification of the socio economic structure within the said societies. And the said stratification was based on the economic development reached by each respective group and on the level of social differentiation therein.

An inquisitorial system is a legal system where the court or a part of the court is actively involved in determining the facts of the case. This system of procedure was predominantly found in the feudal societies, and evolved within the era of private property holdings.
Historically, it was during the medieval period of 12th century that the inquisitorial system began to evolve. It was during the beginning of 1198, that Pope Innocent III issued a series of decretals that reformed the ecclesiastical court system. Under the new “processus per inquisitionem”
(inquisitorial procedure), the ecclesiastical magistrate no longer required a formal accusation to summon and try a defendant. Instead, the said court could summon and interrogate witnesses of its own initiative.
In 1215, the fourth council of the Lateran affirmed the use of the inquisitorial system. As a result, in continental Europe, the ecclesiastical courts operating under the inquisitional procedure became the dominant method by which disputes were adjudicated.
The major characteristic of the inquisitorial system is the predominant active role of the tribunal.
The tribunal investigates and prosecutes the dispute before it. The role of the parties to the dispute therefore becomes subordinate to that of the tribunal or court.
This system still has its remnants in what is called today's continental system. The said system is found in some countries in Europe, such as France and Russia. In Russia, for instance there is the post of “Procurator General”, the office bearer plays the role of a government official who investigates the case for both parties and brings the findings to the court or tribunal on behalf of both of the parties.
Another example is the administrative courts “Conseil d’Etat” in France, where during litigation, the proceedings are markedly more inquisitorial and most of the procedure is conducted in writing as opposed to in an open court. However, the inquisitorial system is markedly seen in the criminal justice. For example in France, you have the “Juge d’Instruction” meaning the investigative magistrate.
This judge is specially trained to conduct investigations, hear witnesses and suspects, order searches and deliver warrants. As the Judge role is to seek the truth, he must find and assess both incriminating and exculpating evidence. Both the prosecution and the defence may request actions from the Judge. The decision of this Judge is appellable to the court of appeal.
The adversarial system basically presupposes the existence of private property relations. Private defences exist to protect private property interests. It is a system of law, generally adopted in common law countries. It relies on the skills of different advocates representing their party’s position and the Judge is a neutral person, who ensures fair play of due process or fundamental justice.

The basic attribute of this system is the principle of party investigation and party prosecution.
This means each party investigates and prosecutes its own case before an impartial tribunal/body.
The parties to the disputes meet as adversaries, each trying to establish his case while the court's role becomes passive, that of an umpire. The Court hears the evidence as presented by each party and adjudicates the matters in accordance with the established procedures and by accordingly applying the relevant rules and/or law to the facts.
The countries of East Africa whose civil court system foundation has remnants of the British colonial era practise the adversarial system. In Tanzania, it has been held that the courts’ role is more than that of a mere umpire or a disinterested referee in its pursuit of justice.
The object of civil trial is to do justice to the parties and to determine the dispute between them judiciously and in accordance with the law. The court during the examination of the witness has a right to intervene. In pursuit of the truth, it remains the duty of the trial magistrate to ensure that all the available evidence is brought out in the best possible way.
The Evidence Act, 1967 at section 176(1) gives the court powers to put any questions to the witness and order the production of any document or thing.
The court itself had emphasized the need for active participation by the court in the case of John
Magento v. Govani, where it held that;
“ It cannot be over stressed that it is the duty of a magistrate trying a case, not to sit back as a spectator or, to use the magistrate’s terminology, a referee, and watch the proceedings, but to try the case before him, whether a criminal or civil one. And in order to arrive at a just decision, in civil case, the magistrate is expressly empowered by the Civil Procedure Code Act to summon witnesses of his own motion, and in criminal cases, he is not only empowered to summon witnesses of his own motion, but it is mandatory for him to do so, if it appears essential to the just decision of the case.”
We have learnt that there are basically three broad categories of system of dispute settlement.
Namely, the Popular Assembly, Inquisitorial system and Adversarial System. The systems emerged and evolved in reflection of the changes in the socio-economic relations.
In Tanzania, the role of the court is more than a passive umpire as the object to civil trial is to do justice to the parties by determining the dispute judiciously and in accordance with the law. The court may on its own volition summons witness where it appears essential to the reach a just decision