Confusion while drafting an affidavit in Tanzania

Introduction:

It is very common to see people being asked to provide affidavits to Courts, Government offices, Academic institutions, and even working areas. Leave alone the issue of Jurat of attestation and official stamps approved by the Tanganyika Law Society to be used in attesting?and?certifying true copies of these documents, but has anyone asked him/herself if these organizations and institutions understand the legal restrictions that need to be considered when creating affidavits? Or do they know the different laws governing affidavits in Tanzania? Do they know the name and classification of the person swearing under oath or affirmation, and the person attesting to the sworn statement?

?This article intends to shed light on this matter by answering the above-raised questions so that people know what it entails in acceptable standards of preparation of affidavits.

?According to my research, I have discovered that many legal practitioners are confused about the below aspects.

1.?Mixing of applicable?laws

2.?Mixing of proper names for the part of swearing or stating on oath

3.?Disregard the power of the advocate over the magistrate.

?This guideline will help many people, especially those practicing law, to draft a correct affidavit without further confusion about the applicable laws or mixing?parties to the affidavit.

1.?Law applicable:

Generally, two laws, which govern affidavits in Tanzania are;-

a)?The Notaries Public and Commissioners for Oaths Act [CAP 12 R.E. 2019] and

b)?The Oaths and Statutory Declarations Act [CAP 34 R.E. 2019]

Thus, there has been confusion?and it has become a common practice for most practitioners to cite Cap 34 in their affidavit drafting rather than Cap 12. Most affidavits that are circulated and available in our organization or institution are sworn or taken on oaths, referring to Cap. 34. This is wrong; in fact, those affidavits are defective in law and?should be rejected.

?As per the long title given to CAP 34, the law was meant to make provision for the administration of oaths and affirmations in judicial proceedings and for statutory declarations. While CAP 12 focuses on an act on Notaries Public and Commissioners for Oaths, this means that if any declaration is made, either written or verbal, and the declaration is used in judicial proceedings or in compliance with statutory declarations, then CAP 34 is the correct law to be applied, and vice versa.

?Thus, all other affidavits that were drafted to be used apart from court processes or judicial proceedings, such as affidavits of names, birth, unemployment, etc. CAP 12 is the correct law to be used. For any other affidavit supporting any submission, evidence, etc., CAP 34 is the correct law to be used.

?See the case Morogoro International School v. Hongo Manyama (Revision 13 of 2020) [2021]. TZHCLD 127 (May 27, 2021)

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2.?Parties' names in Affidavit [affiliated and dependent]

Regarding legal proceedings, the language used can be confusing and overwhelming. Two words that often get mixed up are “affiant “and “deponent.”?While they may seem interchangeable, there are distinct differences between the two. In this article, we will explore the meanings of affiant and deponent and provide clarity on when to use each term.

An affiant is a person who makes or swears to a written statement under oath. This written statement is known as an affidavit. The affiant is required to swear or affirm that the contents of the affidavit are true to the best of their knowledge. Affidavits are commonly used in legal proceedings as evidence. The affiant is required to sign the affidavit in the presence of a notary public or other authorized official who administers the oath.

A deponent, on the other hand, is a person who gives sworn testimony under oath. This testimony is given verbally rather than in writing. Depositions are often used in pre-trial discovery and can be used as evidence in court.?

While both terms involve giving testimony under oath, the key difference lies in the medium of the statement. Affiants provide written statements, while deponents provide verbal testimony.

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3.?Authorized officer to administer oaths in Tanzania

Most people think advocates do not have the power to administer oaths in Tanzania, but the power is vested only in magistrates.?We had this issue from NSSF before, but Thanks to TLS' efforts the issue is now solved.

These are just a few examples I have, but I believe advocates have been facing this problem in many organizations.

?Why this confusion??According to sections 3 and 6 of the Oaths and Statutory Declarations Act [CAP 34 R.E. 2019], the power to administer oaths and affirmations is granted to the Court and its officers, or any person duly authorized by the court. For easy reference, I have quoted Section 3 of Cap 34 below:

"Every court shall have the authority, itself or by an officer duly authorized by it in that behalf, to administer an oath or affirmation to any person whom it may lawfully examine upon oath or affirmation."

?The clear exclusion of the advocate from administering oaths and affirmations for matters of judicial proceedings is available under Section 11 of CAP 34. The section only recognizes the power of advocates in statutory declarations. The section provides the following:

"It shall be lawful for any person entitled under the provisions of the Notaries Public and Commissioners for Oaths Act to exercise the powers of a Notary Public or a Commissioner for Oaths to take a statutory declaration of any person voluntarily making and subscribing to the same before him".

Unlike Sections 3. 10, 11, and 12 of CAP 12, which stated clearly?other officers than Advocates have the power to administer oaths or affirmation to Public Officers, Foreign Officers, and diplomats.

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?Conclusion:

?From this guideline, I strongly believe that law practitioners and other groups can clear up the confusion that previously existed when drafting an affidavit or giving testimony in court?by using the appropriate law as narrated above.

?The practitioner will avoid using DEPONENT in their affidavit and replace it with AFFIANT for correct usage.

?Further, the guideline act as a reminder to organizations, government offices, and educational?and other institutions to accept all affidavits?and recognition of their stamps, and notarized affidavits /documents witnessed by advocates.

?HR practitioners should all time check the authenticity of the affidavit submitted by the employee to see if it is drafted properly and suits the purposes before changing the employee records.