Reforming our Criminal Justice System

On the 30 March Mr. Salum Shamte, the former chairman of the Tanzania Private Sector Foundation (TPSF) whilst in remand passed away.  Mr. Shamte’s condition deteriorated whilst at Maweni Prison in Tanga and was rushed to Muhimbili Orthorpaedic Institute (MOI) where he spent a week before passing away, may his soul rest in peace.  He was detained on charges of economic sabotage, money laundering and a conspiracy to commit a crime which caused a loss of 1.14 billion to Amcos of the sisal sub-sector.

Prior to this on the 6 February, the climax to the law week, it was announced that as of that date there were just over 31,000 inmates in our prison system.  Of those 17,632 of them being remand detainees undergoing trial in the courts.  I am not sure what the global average is, but it does not seem right that almost 57% of all inmates in the country to be remand detainees.  This statistic tells its own story.  The time spent in remand can be as long as 5 or 6 years with many having spent over 2 years.  The blame was thrown squarely at the police for ‘investigations not being complete’ every time the matter came up in court.  The Judiciary absolved itself of responsibility as far as those cases that are not bailable offenses.

The fundamental principal of innocent until proven guilty is well known.  Perhaps a little less known is the concept that “it is better to allow 10 criminals to walk free than to incarcerate 1 innocent person wrongfuly”.  Civilized societies understand the gravity of miscarriages of justice.  Any criminal justice system ought to give the accused every chance of proving their innocence as well as accord every accused an opportunity to avoid remand pending the outcome of their case.

Bail conditions and non-bailable offenses

In Tanzania and in most commonwealth countries, there are two main conditions for Bail.  The first is that the Court ought to satisfy itself that the accused will not interfere with the investigation and the second is that there is minimal chance of the accused of escaping the jurisdiction of the case.  The sad truth is most accused in our remand systems pose neither threats yet they find themselves behind bars.  We need to inculcate the sense of justice and fair play to all the actors in our criminal justice system, a state of mind that the worst possible mistake is to wrongfully imprison an accused, to wrongfully remand an accused or to wrongfully remand an accused at the police station.  Those vested with the powers of arrest and detention need to use them appropriately and judiciously.  That is the police, judicial officers, Magistrates, Judges, District Commissioners and Regional Commissioners.

There are a few non-bailable offenses that remove the judicial discretion to grant bail to the accused.  The two most popular charges of late are economic sabotage, money laundering.  One suspects the law enforcement agencies prefer these charges so as to place the accused safely behind bars and to commence investigations once that has happened.  This may sound deplorable for those living in other jurisdictions, but it is a common occurrence in Tanzania.  Investigations take an eternity to finalize while the accused languish in jail for years.  Many an accused have had to plea bargain whilst in remand.  Therein lies a huge possibility for abuse.  In this scenario the basis to of plea bargaining from inception is compromised due to the accused being in jail on a non-bailable offense.

Abdullah Mwinyi is an experienced corporate lawyer. He was also a member of the East African Legislative Assembly for ten years.

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