Criminology - Penology-Manual-Final-2017 PDF
Criminology - Penology-Manual-Final-2017 PDF
Criminology - Penology-Manual-Final-2017 PDF
COURSE MANUAL
November 2017
ii
Copyright Statement
This manual is a copyright material protected under the Berne Convention, the
Copyright and Neighbouring Rights Act, [Cap. 218 RE: 2002] and other
international and national enactments, in that behalf, on intellectual property.
They may not be produced by any means, in full or in part, except for short
extracts in fair dealings, for research or private study, critical scholarly review
or discourse with an acknowledgement, without the written permission of the
author.
iii
Acknowledgements
The preparation of this Course Manual has been possible with the help of many
people, to whom I am thankful for and indebted. I would like to acknowledge the
support and leadership of the Office of the Dean, University of Dar es Salaam
School of Law, Prof. H.I Majamba and Dr. J. Masabo, and CTL Programme
Coordinator, Mr N. PrayGod.
I would also like to extend my gratitude to Prof. L.P. Shaidi, who has been my
inspirational and mentor in teaching Criminology and Penology and developing
instructional materials.
iv
Foreword
The subject of Criminology and Penology plays an important role in the ways
which the government frame policies and laws that control and punish crimes. As
a field of study, Criminology and Penology is grounded in several disciplines
including; biology, law, sociology, and psychology. This mixture of disciplines has
made the field of Criminology and Penology more complex for beginners,
especially at certificate level, thus the need to develop this course manual as a
study guide.
This course manual has a total of nine modules divided into two major parts. Part
one covers Criminology, while part two is devoted to Penology. This suite of
modules will give students a foundational knowledge of the main theories, causes
and motives underlying criminal behaviours, social conditions and problems
associated with offending and how best to address criminality.
I hope that students will find the course quite enjoyable and rewarding experience,
and something which adds considerably to their career development.
Dedication
vi
Table of Contents
Copyright Statement ................................................................................................................ ii
Acknowledgements ................................................................................................................. iii
Foreword .................................................................................................................................. iv
Dedication ................................................................................................................................. v
Prelude to Part I ........................................................................................................................ 2
1. What is Criminology? .................................................................................................... 2
2. Branches of Criminology ............................................................................................... 3
3. Why Study Criminology? ..............................................................................................4
Module 1: Theories on Causation of Crime .............................................................................. 5
1.1 Introduction................................................................................................................... 5
1.2 Criminological Theories ............................................................................................6
1.2.1 Demonology Theory ..............................................................................................6
1.2.2 Classical Theory ..................................................................................................... 7
1.2.3 Positivist Theory (Socio-biology) ........................................................................ 10
1.2.4 Marxist (Conflict or Critical Theory) ................................................................... 13
1.2.5 Sociological Theory (Chicago School) ................................................................ 16
1.2.6 Developmental (Multifactor or Integrated Theory) ........................................... 18
Module 2: Children in Conflict with the Law and Juvenile Justice ........................................21
2.1 Introduction: Definition of Terms and Concepts ....................................................21
2.1.1 Why is it difficult to define the term Juvenile Justice System? .......................... 23
2.1.2 The age that differentiates a ‘child’ from a ‘juvenile’ .......................................... 24
2.2 Juvenile as an Offender and a Victim ..................................................................... 25
2.2.1 Juvenile as an offender ......................................................................................... 25
2.2.2 Juvenile as a Victim or Witness ........................................................................... 26
2.3 Sources of Juvenile Law ........................................................................................... 27
2.3.1 List of important legal instruments and standards ............................................ 28
2.3.2 Key national Institutions ..................................................................................... 29
2.4 Origin, Philosophy, Goals of Juvenile Justice System in the U.K., USA, and
Tanzania .............................................................................................................................. 32
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Part I
CRIMINOLOGY
Prelude to Part I
1. What is Criminology?
The term criminology was first coined by an Italian sociologist and law professor,
Rafael Garofalo1 as Criminologia in 1885 and adopted by a French anthropologist,
Paul Topinard for the first time 1887 who used the analogous French term
“criminologie”. Criminology as a science started in 1885. Before that date,
criminology was part of criminal law study. The term criminology comprises of a
Latin word i.e., ‘crīmen’ or ‘criminis’, meaning ‘accusation/crime’ and an ancient
Greek word ‘logia’ meaning ‘study of’.
According to Edwin Sutherland (1934);
Criminology is the body of knowledge regarding crime as a social phenomenon. It
includes within its scope the process of making laws, of breaking laws, and of
reacting toward the breaking of laws.
The objective of criminology is the development of a body of general and verified
principles and other types of knowledge regarding this process of law, crime, and
treatment. [Reference: Sutherland, E. & Cressey (1960) Principles of Criminology,
6th ed.; and Wolfgang, M.E. (1963) Criminology and the Criminologist, Journal of
Criminal Law & Criminology, Vol. 54:2, pp. 155-162].
Summary:
Criminology = Law making (i.e. how penal laws are created/changed and why),
Law breaking (i.e. nature/extent of crime) and reaction (i.e. police, courts, and
correction institutions).
1
Former student of Cesare Lombroso (another key figure in criminological studies), often regarded
as the father of criminology.
2. Branches of Criminology
According to Dr Ayman Elzeiny (‘in his book titled, Introduction to Criminology’), there
are six main branches of criminology: -
This is a science of criminal man, which responds to questions such as; ‘what are the
peculiar bodily-characteristics of a criminal? Or what is the relationship between race
or gender or tribe or religion and criminality?
(iv) Penology
This is the science of the origin, development, justification and significance of
punishment.
1.1 Introduction
Criminologists, just like other professionals who study behaviour of things, use
scientific methods to study the nature, extent, cause, and control of crimes. In this
context, the module at hand intends to cover one of the four aspects of
criminological studies, that is, the “causes” of crime. Before we look at theories on
the causes of crime, let us start our discussion by defining key concepts under the
module:
• Theory
A theory is said to be a set of assumptions, propositions, or accepted facts that
attempts to provide a rational explanation of cause and effect (causal)
relationships among a group of observed phenomena. In short, a theory is an idea
or set of ideas that is intended to explain facts or events.
• Criminological Theory
A proposition/assumption that attempts to explain criminal behaviour (crime),
and behaviours of key actors (e.g. police, attorneys/lawyers, prosecutors,
judges/magistrates, social welfare officers, victims/witnesses, accused, etc) in the
criminal justice system. Basically, theories about the causes of crime are based on
religion, philosophy, biology, politics, economy, and social forces.
• Crime
A crime is an act that the law makes it punishable; or the breach of a legal duty
treated as the subject-matter of a criminal proceeding. Generally, a crime is a
violation of societal rules of behaviour as interpreted and expressed by the
criminal law, which reflects public opinion, traditional values, and the viewpoint of
people currently holding social and political power. Individuals who violate these
rules are subject to sanctions by state authority, or social stigma, or loss of status.
Note: The concepts of Mala in se and Mala prohibitum. Malum prohibitum (plural
mala prohibita, literally meaning: "wrong because it is prohibited". It is a Latin phrase
used in law to refer to conduct that constitutes an unlawful act only by statute, as opposed
to conduct that is evil in and of itself, or malum in se.
Origin: Demonology is the most ancient theory of crime and dates to pre-
scientific age. The basis of this theory is Religious beliefs (evil
spirit/demons/satanic actions/theology/superstition/supernatural powers).
• Criminals are possessed by some evil spirits that force them to commit evil
deeds.
• A Crime is not a product of free will, but rather [it] is determined by forces
beyond the control of an individual i.e. deterministic approach.
• A crime is perceived as a sin, thus a handiwork of the devil/Satan.
• There are Godly and Satanic forces in the World.
• The Godly forces keep a man away from crime and help him to do good;
whereas the devilish forces distract man from the right path i.e. makes him
commit crimes.
• The devil/demon takes possession of the soul of a man and makes him think
and do wrong i.e. he becomes reckless and is unable to foresee the
consequences of his action.
• In that state, a man can be regarded as a passive agent only; the active agent
(the demon) is a force external to the soul but which somehow enters a man
and take possession of his soul.
Crime control:
• To drive away the evil spirits/demons from the mind and/or body of a
perceived criminal, the following approaches may be adopted: - exorcizing2,
lacerating, macerating, fasting, praying, repenting (confessing), trephining 3,
beating and burning of the possessed individual.
2
To expel or attempt to expel evil spirit/s from a person or place (believed to be possessed or
haunted) by way of prayers, adjurations, and religious rites.
3
Consisted of drilling holes in the skulls of those perceived as deviants to allow the evil spirits to
escape.
Theorists: Cesare Beccaria, Jeremy Bentham, Ludwig Feuerbach and John Stuart
Mill.
Idea of theory: The theory assumes that people exercise free will, and are thus
completely responsible for their actions. In classical theory, human behaviour,
including criminal behaviour, is motivated by a hedonistic rationality, in which
actors weigh the potential pleasure of an action against the possible pain
associated with it. In other words: -
• Criminals weigh/assess the costs and benefits and make a conscious, rational
choice to commit crime as a way of maximisation of pleasure and minimisation
of pains.
• Human beings have free will to choose legal or illegal behaviour, i.e. Crime is
committed after an individual weigh the pros and cons.
• Crime is attractive/enticing /and tempting.
• The basis of the society, as well as the origin of punishments and the right to
punish, is the social contract.5
• Crime may be controlled through the fear of punishment.
• Punishment works best when perceived to be: severe, certain, and swift.
4
This theory states that for crime to be committed, three elements must be present: an available
target, a motivated offender, and a lack of guardians.
5
Social Contract - an imaginary agreement to sacrifice the minimum amount of liberty to prevent
anarchy and chaos.
Under the theory, juveniles are treated the same as adults, likewise, first-time
offenders are treated the same as recidivists/repeated offenders (thus, no
proportionality.).6 Besides, the theory focuses on the actus reus and ignored the
mens rea.
Classical theory was difficult to apply in practice. It was modified in the early 1800s
and became known as the neoclassical theory. The neoclassical theory is a
modification of classical theory in which it was conceded that certain factors, such
as insanity, might inhibit the exercise of free will. Neoclassical theorists introduced
the idea of:
6
Punishment should fit the crime without regard to individual differences.
10
Period: 1810
Basis: The theory is based on the positive philosophy, logic, and methodology of
experimental science (i.e. scientific method, logic, empirical verification and value-
free).
Origin: the school is associated with the book of Cesare Lombroso (which is called
Criminal Man), who published his theory of a physical criminal type in 1876.
Lombroso believed that criminals are by birth a distinct type or species which can
be recognized by physical characteristics or stigmata such as; asymmetrical
cranium, long lower jaw, flat nose, scanty beard, high cheekbones and low sensitivity
to pain.
7
Criminal Anthropology.
11
Ideas: Early biological theories viewed criminal behaviour as the result of a defect
in an individual. This defect can be biological or genetic in nature and serves to
separate the criminal from the law-abiding citizen. This school of thought was of
the view that: -
• Human behaviour is determined and not a matter of free will. Likewise, the
society is based on consensus, but not on a social contract.
• Criminals are fundamentally different from non-criminals.
• Crime is frequently caused by multiple factors.
• Basically, criminal behaviour is the result of biological or inborn defects.
• For instance, crimes may be caused by an abnormality or low intelligence/IQ
or poor school performance, defective chromosomes (e.g. XYY or XXY -
aggressive/sexual offenders) - Klinefelter Syndrome, psychological traits,
mental illness, personality disorder, shape, and appearance.
8
Biological/genetic factors (mental disorder/psychological problems)
12
• The theory ignores the process by which behaviours are made illegal.
• It assumes that most people agree about most things, most of the time.
• Theorists believe that action is determined by causes independent of a person’s
free will.
Note:
9
Psychopaths - Persons characterized by no sense of guilt, no subjective conscience, and no sense of
right and wrong. They have difficulty in forming relationships with other people; they cannot
empathize with other people. They are also called sociopaths or antisocial personalities.
13
See Cases: Agnes Doris Liundi v. R. [1980] TLR 46 (CA), and R. v. Agnes Doris
Liundi [1980] TLR 38 (HC).
Period: 1848
Theorists: Karl Marx, Willem Bonger, Otto Kirchheimer, Richard Quinney, Georg
Rusche, Ralf Dahrendorf, George Vold,William J. Chambliss, Rita Simon, Freda
Adler, and Meda Chesney-Lind.
School of Thought: Critical Criminology
Branches: critical theory10, conflict theory11, radical theory12, radical and critical
feminism theory13, left/British realism14, peace-making theory15, power-control
10
An extension of Marxist theory that goes beyond the examination of the effects of capitalism on
crime.
11
A theory that assumes that society is based primarily on a conflict between competing interest
groups and that criminal law and the criminal justice system are used to control subordinate
groups. Crime is caused by relative powerlessness.
12
A theory of crime causation that is generally based on a Marxist theory of class struggle.
13
This theory attempts to define criminology and criminal justice based upon the experiences,
understanding, and view of the world as perceived by women. It tries to counter most theories of
criminology that have been developed, tested, and applied by men to men, which have only
incorporated women as an afterthought. It covers issues such as patriarchy, masculinities,
paternalism, power-control theory, etc.
14
They focus on crime by and against the working class. Left realists want to give more power to
police to combat crime, but also want to make the police more accountable for their actions.
15
An approach that suggests that the solution to all social problems, including crime, is the
transformation of human beings, mutual dependence, reduction of class structures, the creation of
communities of caring people, and universal social justice. Peace-making criminologists believe
14
Ideas: Critical theories assume that human beings are the creators of laws,
institutions, and structures that ultimately dominate and constrain them. Critical
theories assume that the society is characterized primarily by conflict over moral
values and conflicts between social classes. In their view:
• The society is divided into two or more groups with competing ideas and
values.
• Marxists believe that capitalism is the cause of crime and delinquency. This
means that, political and socio-economic unrests, racism, class and gender
discrimination/patriarchy; and exploitation of the working
class/capitalism/marginalisation lead to criminality.
• Crimes are either committed by the ruling class to keep the working class in
place, or by the working class to strike out against the ruling class.
• The group(s) with the most power makes the laws and controls the society i.e.
by creating criminal law and the criminal justice system which are crafted and
used by dominant groups to control subordinate ones e.g. bourgeoisie and
proletariat.
that reducing suffering will reduce crime, thus rejects the idea that criminal violence can be
reduced by state violence.
16
An area of critical thought which, among other things, attempts to understand the creation of
knowledge, and how knowledge and language create hierarchy and domination. Postmodernist
criminologists argue that interpretations of the law are dependent on the particular social context
in which they arise, thus insists on informal social controls.
17
Political state is not under the total control of the ruling elite; that from time to time, laws may be
passed that harm the ruling elite; and that their members, on occasion, may be subject to state
control.
18
The political state (including the law and the criminal justice system) is always and only a tool of
the capitalist class to oppress the working class.
15
• Groups lacking the formal power to make the rules still maintain their own
group norms, and continue in their behaviour which may be viewed as crimes
against the larger society.
• Conflict theory proposes that the law and the criminal justice system primarily
embody the interests and norms of the most powerful groups in society, rather
than those of the society.
• On the other hand, the Feminist theory (male phenomenon theory) questions
whether theories of crime developed by men and for men adequately explain
female crime.
• According to feminist theory, women can be treated less severely than men for
committing a crime or more severely than men to keep them subservient to
men.
• Logically, feminists seek to understand why men traditionally commit so much
crimes than women (gender differences in crimes), victimisation of women,
and gendered justice (differing treatment of female and male offenders and
victims by the criminal justice system).
• The principal goal of most feminist theory is to abolish patriarchy19by ensuring
women equal opportunity and equal rights.
• Conversely, the Radical theorists define crime as any act which violates human
rights (e.g. sexism, racism, imperialism; and not prostitution, gambling, strikes,
homosexuality), thus to them, the current definition of crime supports the
ruling class.
Crime Control:
• Karl Marx (Communist Manifesto, 1848), urges the lower class (especially,
workers) to unite against the ruling class because they have nothing to lose but
their chains of oppression. Besides, Marxist scholars advocate for socialism and
19
Patriarchy - Men’s control over women’s labour and sexuality.
16
Period: 1897
Theorists: Emile Durkheim, Robert Ezra Park, Ernest Burgess, Clifford R. Shaw,
Walter Miller, Gabriel Tarde, Frederic Thrasher, Henry D. McKay, John McKenzie,
Edwin Sutherland, Travis Hirschi, Edwin Lemert, Howard Becker, D.R. Taft, Albert
Cohen, Richard Cloward, and Lloyd Ohlin).
20
It associates criminality among juveniles with a breakdown of communal institutions (e.g. family,
schools, church & local governments) and communal relationship that traditionally encouraged
close relationships among people.
21
States that a group of delinquent peers may influence an individual to commit criminal acts to
receive approval from the group, or creating a new culture (subculture) which departs from the
mainstream culture, thus criminality. [Cohen argued that instead, they form a subculture that
"takes its norms from the larger culture but turns them upside down"].
22
Gabriel Tarde (Penal Philosophy in 1890), was one of the first theorists to believe that crime was
something learned by normal people as they adapted to other people and the conditions of their
environment.
17
Origin: Many sociological theories of crime causation stem from the work of Emile
Durkheim who rejected the idea that the world is simply the product of individual
actions. Durkheim believed that laws and institutions are “social facts” and all that
people can do is to submit to them. The sociological theory was shaped by the
Chicago School in the 1920s.25
• A criminal and criminality are products of the society. Durkheim argued that
crime is a social fact, and the cause of crime is anomie.26
• Individuals do not simply become criminals by rational choice/free will, neither
do they commit crimes just because they were born criminals or out of being
abnormal.
• Criminality occurs because of group interaction and socialisation process.
Crime is a result of an individual’s location within the structure of society
23
Social Control Theory, a view in which people are expected to commit crime and delinquency
unless they are prevented from doing so or there is a mechanism to control them.
24
The School attempt to show the influence upon criminal behaviour of such factors as climate (i.e.
temperature, humidity, barometric, pressure or change in the weather), topography, natural
resources and geographical location. (Read: Taft, Quetelet, Guerry & Montesquieu).
25
Chicago School - A group of sociologists at the University of Chicago who assumed in their
research that delinquent behaviour was a product of social disorganisation. Also, they attempted to
uncover the relationship between a neighbourhood’s crime rate and the characteristics of the
neighbourhood.
26
Anomie/strain theory - A state of normlessness or norm confusion within a society. It also means
that the dissociation of the individual from the collective conscience. For Albert K. Cohen, it is
caused by the inability of juveniles to achieve status among peers by socially acceptable means.
While Robert Merton argues that the contradiction between the cultural goal of achieving wealth
and the social structure’s inability to provide legitimate institutional means for achieving the goal,
thus criminality.
18
Period: 1930
Theorists: William Sheldon, Eleanor Glueck, John Laub, Robert Sampson, Richard
Herrnstein, Travis Hirschi, and Michael Gottfredson.
Branches: life course theory, latent trait theory, social development model,
interactional theory, the general theory of crime and delinquency/general theory
of crime, age-graded theory, integrated cognitive antisocial potential theory,
differential coercion theory, control balance theory.
19
Table: Summary and Comparisons of the Classical and Positivist Schools on certain Issues.
Classical Positivist
Historical Period 18th-century Enlightenment, early period 19th-century Age of Reason, mid–
of Industrial Revolution Industrial Revolution
Leading Figures Cesare Becarria, Jeremy Bentham Cesare Lombroso, Raffael Garofalo,
Enrico Ferri
Purpose of School To reform and humanize the legal and To apply the scientific method to
penal systems the study of crime and criminality
Image of Human Humans are hedonistic, rational, and Human behaviour is determined by
Nature have free will. Our behaviour is psychological, biological, or social
motivated by maximizing pleasure and forces that constrain our rationality
minimizing pain. and free will.
Image of Criminals Criminals are essentially the same as non- Criminals are different from non-
criminals. They commit crimes after criminals. They commit crimes
calculating costs and benefits. because they are inferior in some
way.
Definition of Crime Strictly legal; crime is whatever the law Based on universal human
says that it is. abhorrence; crime should be limited
to inherently evil (mala in se) acts.
Purpose of To deter. Punishment is to be applied Social defence. Punishment to be
Punishment equally to all offenders committing the applied differently to different
same crime. Judicial discretion to be offenders based on relevant
limited. differences and should be
rehabilitative.
20
Quiz:
1. With the aid of hypothetical cases, show the similarities and differences
between a crime, deviancy/delinquency, and a sin.
2. Which one of the criminological school of thought do you perceive to be a
school? Why?
3. Discuss the Neoclassical, sociological and Biological theories of crime causation
in the context of M’Naghten’s Case (1843) 10 C & F 200; R. v. Agnes Doris Liundi
[1980] TLR 38 (HC); and Agnes Doris Liundi v. R. [1980] TLR 46 (CA).
References
Bohm, R.M. & Haley, K.N., Introduction to Criminal Justice, 3rd Ed., Chapter 3.
Sharma, R.K. (1998) Criminology and Penology. Atlantic Publishers & Distributors,
New Delhi.
See, Eric (2004) Student Study Guide for Ronald L. Akers and Christine S. Sellers’
Criminological Theories: Introduction, Evaluation, and Applications -4th Ed.
Roxbury Publishing Company, Los Angeles, California.
Siegel, L.J. (2010) Criminology: The Core, 4th Ed. Wadsworth Publishing.
21
27
Adopted by the UN General Assembly’s resolution 40/33 of 29 November 1985
28
A juvenile who refuses to be reformed or corrected/ unmanageable person
22
• A child or young person who is alleged to have committed or who has been
found to have committed an offence. (Rule 2(2)(c) of Beijing rules, 1985). See
also, Section 4(1) of the Law of the Child Act,29 and the Child Development
Policy (2008).
• A minor who intentionally and constantly engages in anti-social behaviour;
A minor who does something that would be a crime if committed by an adult.
(p. 271 of the Black Law Dictionary, 9th Ed., 2009; and p. 70 of the Webster’s
New World Dictionary, 2006).
• A minor below a specified age who tends to commit crimes or otherwise
engages in immoral or disobedient behaviour, and therefore needs treatment
or supervision. [p. 131 of the Essential Law Dictionary, Sphinx Dictionaries), 1st
Ed., 2008].
It is important to use child-sensitive words such as, ‘children in conflict with the
law’, ‘children in actual conflict with the law’, ‘children in perceived conflict with the
law’, and ‘children in need of care and protection’. Also, it is advised to use words
like, ‘child’, ‘street-involved children’, ‘adolescent’, and ‘young person’, instead of
using words like ‘minor’, ‘teenager’, ‘juvenile’, ‘child criminal’, ‘youthful offender’,
‘street children’, ‘children of the street’, ‘children on the street’, ‘street-living
children’, ‘homeless children’, ‘street-working children’, ‘market children’ and
‘juvenile delinquent’, which have stigmatising effect. Again, offences committed by
juveniles may be referred to as ‘deviant behaviour’, ‘delinquency’, ‘anti-social
behaviour’, and not words like ‘offence’, ‘crimes’, ‘delict’, ‘misdemeanour’, ‘felony’.
The reason for being selective in terminologies in dealing with children is to avoid
negative or prejudicial connotations which some words tend to have. Besides,
some words tend to detract from the reality that individuals involved are first and
foremost children and adolescent.
After understanding the term ‘juvenile’, let us now turn to the phrase ‘juvenile
justice (system)’. Juvenile justice (system) may be defined as;
• Procedural and substantive law, judicial and extra-judicial measures,
institutions erected to deal with children in conflict with the law.
29
No. 21/2009.
23
24
Summary:
The juvenile justice system is made up of the legislation, processes, institutions,
and personnel involved in the treatment of children accused of committing a
criminal offence. In some literature, the term juvenile justice system is also
referred to as ‘juvenile criminal justice system’, ‘child justice’ or ‘administration of
juvenile justice’ or simply, ‘juvenile justice’.
S. 15 (1) A person under the age of ten years is not criminally responsible for
any act or omission.
(2) A person under the age of twelve years is not criminally responsible for an
act or omission unless it is proved that at the time of doing the act or making
the omission he had the capacity to know that he ought not to do the act or
make the omission.
(3) A male person under the age of twelve years is presumed to be incapable of
having sexual intercourse. **(doli incapax).
30
Compare with section 2(1) of the Youth Criminal Justice Act, 2002 (RE: 2011), Canada.
25
true to say that juveniles are subjects of juvenile justice system, but not all children
are as such.
Quiz: What justice system applies when a juvenile is charged together with
someone else above 18 years?
26
In short, one may say; a victim of a crime is an identifiable person who has been
harmed individually and directly by the perpetrator, rather than by a society.
31
The study of the victims of crime and the psychological effects on them is called
‘victimology’, while the process is known as victimisation.
27
See Sections 129A-138, 138A-143, 154, 156, 158, 160, 166, 167, 169-169A, 218, 219, 225,
229, 240-256, chapter xxix, xxx of the Penal Code, Cap. 16; Section 115 of the Law of
the Child Act (LCA); Witness Protection: Section 99(1)(c) of LCA; Section 28 of
SOSPA (1998); the Guidelines on Justice in Matters involving Child Victims and
Witnesses of Crime (ECOSOC Resolution No. 20/2005 (see, Part IV), and the
European Convention on Compensation of victims of violent crimes (Strasbourg,
24/11/1983), European Treaty Series - No. 116
Unlike adults, children are more likely to be victims of crime especially those
crimes which are violent in nature. Crimes committed either against children or
witnessed by them have a direct impact on the psychological development of a
child. Thus, an understanding of childhood victimisation and its trends may lead
to a better understanding of juvenile offending.
Quiz:
“In every offence committed by a juvenile, there is a hand of an adult person, either
directly or indirectly”. Critically discuss the above statement.
i) Constitution.
ii) Principal and subsidiary legislation.
iii) Case Laws.
iv) International Treaties.
v) Common law.
28
The Constitution of the United Republic of Tanzania, 1977 (RE: 2008); the Law of
the Child Act, No. 21 of 2009; the Law of the Child (Juvenile Court Procedure)
Rules, G.N. No. 182 of 20/05/2016; the Age of majority Act, Cap 431 (RE: 2002); the
Anti-Trafficking in Persons Act, 2008; the Children and Young Persons Act, Cap. 13
(RE: 2002)**repealed; the Children and Young Persons (Extension of Ordinance to
Primary Courts) Order (G.N. No. 640 of 1964); the Community Service Act, Cap.
291 (RE: 2002); the Corporal Punishment Act, (RE: 2002); the Children and Young
Persons Decree, 1952 (Repealed and Replaced in 2011) by the Children's Act, 2011
(Zanzibar); the Criminal Procedure Act, 1985 (RE: 2002); the Evidence Act, (RE:
2009); the Employment and Labour Relation Act, 2004; the Magistrates’ Court Act,
1984 (RE: 2002); the Minimum Sentences Act, 1971 (RE: 2002); the Penal Code, Cap.
16. (RE: 2002); the Probation of Offenders Act, (RE: 2002); the Ward Tribunals Act
No. 7 of 1988 (RE: 2002); the Education Act (CAP. 353, RE: 2002); the Education
(Corporal Punishment) Regulations G.N. No. 294 of 2002 (made under Section 60
of the Education Act); the Police General Orders (PGO), RE: 2006; the
Broadcasting Services (Content) Regulations, G.N. 430 of 23/12/2005; and the
Prison Standing Orders, RE: 2003.
29
OAU/AU (1990) The African Charter on the Rights and Welfare of the Child; UN
(1985) Standard Minimum Rules for the Administration of Juvenile Justice (Beijing
Rules); UN (1989) Convention on the Rights of the Child; UN (1990) Guidelines for
the Prevention of Juvenile Delinquency (Riyadh Guidelines); UN (1990) Rules for
the Protection of Juveniles Deprived of their Liberty; UN (1990) Standard
Minimum Rules for Non-Custodial Measures (Tokyo Rules); and UN (1997)
Guidelines for Action on Children in the Criminal Justice System.
2.3.2 Key national Institutions
• Establishment
The LCA establishes the Juvenile Court as a distinct Court from existing ones
[section 97(1)] presided over by the Resident Magistrate [section 97(3)]. The LCA
again allows the Chief Justice to designate any premises used by the Primary Court
to be a Juvenile Court [section 97(2)]. Currently, there is only one building
designated as Juvenile Court in Tanzania (namely, Kisutu Magistrate Court).
• Territorial jurisdiction
The LCA is silent on this aspect. The problem here is how to deal with juvenile
offenders in regions or districts where there are no designated Juvenile Courts?
Does the Primary Court, District Court, and Resident Magistrate Court enjoy
original or concurrent jurisdiction as the Juvenile Court in dealing with Juvenile
offenders? If not, do juveniles who commit crimes in upcountry areas (outside Dar
es Salaam) can be brought to Kisutu’s Juvenile Court for trial?
The above questions can be well addressed by looking at the practice before the
enactment of the Law of the Child Act, No. 21 of 2009. For instance, the Children
and Young Persons Act (RE: 2002) solved the issue of territorial jurisdiction by
conferring powers to the Chief justice to extend the jurisdiction of Juvenile Courts
to Primary Courts. The specific provision provided as follows;
30
Section 43:(1) The Chief Justice may, by order published in the Gazette, extend any
provisions of this Act which relate to district courts or to primary courts or to any
primary court or category of primary courts.
(2) Where the Chief Justice extends the provisions referred in subsection (1) to any
primary court, he may, by the rules, modify any of the provisions of this Act relating
to procedure, appeals or revision in order to bring the same into conformity with the
provisions in that behalf contained in the Magistrates' Courts Act.
In the exercise of such powers, the Chief Justice promulgated “the Children and
Young Persons (Extension of Ordinance to Primary Courts) Order (G.N. No. 640 of
1964)” which under Order 2 extended the mandate of Juvenile Courts to all
Primary Courts in Mainland Tanzania, the specific provision read as;
All the provisions of the Children and Young Persons Ordinance which relate
to district courts are hereby extended to all primary courts.
The issue now is whether the G.N. 640/1964 is still in enforce and thus applicable
under the circumstance? The answer to this issue is in affirmative. This is because,
though Section 160(1)(d) of LCA repeals and replace the Children and Young
Persons Act (supra), G.N.640/1964 is retained by Subsection 2(d) of Section 160
which, inter alia, provides that;
All orders, notices, by- laws, directives given, or anything given or made by
a person authorised as such by an officer so authorised to give or make
orders, notices, by-laws, directives given under the repealed Acts shall he
deemed to have been made under this Act and shall remain in force and
have effect until amended or withdrawn under this Act.
Important:
Is G.N.640/1964 revoked by the Law of the Child (Juvenile Court Procedure)
Rules, 2016? What is the position taken by the Law of the Child (Juvenile Court
Procedure) Rules, 2016?
Read also Explanatory Guide to the Juvenile Court Rules
31
Section 97(1) of LCA provides for the objectives of the Juvenile Court, that is, to
hear and determine matters relating to children. Particularly, section 98(1)(2) of
the LCA requires the Juvenile Court to hear and determine criminal charges
against a child; and applications relating to child care, maintenance and
protection. Besides, it shall also have jurisdiction and exercise powers conferred
upon it by any other written law. However, the LCA does not list or state
categorically criminal charges to be brought before the Juvenile Court.
32
2.4 Origin, Philosophy, Goals of Juvenile Justice System in the U.K., USA,
and Tanzania
In ancient times, before the 18th Century, the penal policy and justice system did
not distinguish young offenders from adults. In that regard, young offenders were
arrested, detained, prosecuted, convicted and imprisoned just like adult
offenders32.
32
Kazi, G.(2003)Problems of Managing Juvenile Justice in Zanzibar: Matching the Law and Practice,
p.1
33
Paranjape (2001) Criminology and Penology (11th Ed.), p. 376
34
Paranjape, Ibid.,
33
Apart from setting up specialised institutions for juveniles, various laws also were
introduced to guarantee the welfare of juveniles in the whole process of
administering criminal justice. These laws include;
• The Probation of offenders Act of 1907 which provided for probation measures
for young offenders. The 1908’s Prevention of Crimes Act, among other things,
introduced ‘Borstals’ (places where juvenile offenders were confined). Again,
35
(1772) 24 E.R. 659
36
The doctrine gave the Court the power to act in place of the parent.
37
i.e., a child of a certain age is deemed incapable of committing sexual offences.
38
Paranjape, Loc. Cit.
39
Paranjape, supra
34
the Act prohibited imprisonment of juvenile offenders aged between 16-21 years
in ordinary Prisons.
• The Children Act of 1908 (children’s charter) established, officially, separate
juvenile courts and remand homes (approved schools) in England.
• The 1908 Act was repealed and replaced by the Children and Young Persons Act
of 1933 and the Criminal Justice Acts of 1948 and of 1982 respectively.
40
Quaker reformers spurred the New York Legislature in 1824 to pass legislation creating a House of
Refuge, which separated poor children and juvenile delinquents from adult criminals.
35
• The judge had the discretion to determine which juvenile delinquents might
properly benefit from the House of Refuge; child criminals unlikely to reform
were maintained in adult prisons.41
• The Houses of refuge are considered to be the first juvenile institutions in the
US.
• Essentially, Houses of refuge operated on the philosophy that “children could be
saved through hard work, education and religious teaching”.
• In 1835, the law governing the House of Refuge was amended to provide that
girls under age eighteen and boys under age twenty-one could also be
committed to the care and supervision of the House of Refuge for incorrigible
or vicious conduct.
• However, with time, Houses of refuges proved failure were associated with
children abuses, combined with a filthy and dangerous environment.
• In mid-19th Century, “Training/Industrial Schools” were introduced to fill the
void left by Houses of refuge.
• Training/Industrial Schools emphasised on ‘schooling and vocational training’.
41
The House of Refuge was not a prison, but a school, where reformation, and not punishment is
the end, the formalities of the criminal court were not required.
42
In the case of Ex parte Crouse, 4 Whart.9 (Pa. 1839), the court stated that although parents have a
right to parental control, the right is not absolute, and if parents fail to exercise their rights in the
appropriate manner, the rights and responsibilities of caring for the child are transferred to the
state. This case is said to have legitimised the doctrine of parens patriae.
36
37
• Suggestion: they called for the development of a set of “procedural rights” that
would protect juveniles from the system.
• The decision of the US Supreme Court in re Gault (1967) marked the beginning
of the Juvenile Rights phase.43
• In re Gault (1967), Gerald Gault (15 years old) and his friend, Ronald Lewis were
placed into police custody (in Gila County, Arizona) following a complaint that
they made “lewd phone calls” (i.e. inappropriate and offensive telephone call) to
a woman, Ora Cook (their neighbour). However, Gault’s parents were not
informed of the arrest; the complainant was not present at either hearing, and
no written records made of the proceedings. Gault was convicted by a Juvenile
Court and committed to 6 years in the state Industrial School in Arizona.
The punishment for an adult person found guilty of the same offence would
have been a fine of 5-50 US Dollars or imprisonment for a maximum of 2
months.
43
However, there is also those who argue that the appeal for reform began the decision of the U.S.
Supreme Court in the case of Kent v. United States (1966). In Kent’s case, the Court held the law on
an informal process of determining whether a juvenile should be tried in juvenile or in adult court
failed to provide sufficient due process protection for children. Further, the Court argued that
before a minor is transferred to adult court the child is entitled to an informal hearing where the
trial court must articulate the reasons for the transfer so that the child can have an adequate record
for appellate review. Additionally, in response to the state's position that juvenile cases were civil,
not criminal, the Court responded, "there is evidence, in fact, that there may be grounds for concern
that the child receives the worst of both worlds; that he gets neither the protections accorded to
adults nor the solicitous care nor regenerative treatment postulated for children.”
38
• Imposing harsher and longer penalties for serious and violent juvenile
offenders.
• Reform of Juvenile Justice System into a “miniature version” of the adult
justice system (with the effect of eroding the doctrine of ‘parens patriae’.
• Transfer of violent juveniles (and incorrigibles) into the adult Justice system
39
Mainland Tanzania (Tanganyika) being under the British mandate was not
invulnerable to changes and development taking place in England and elsewhere
in the British dominion (Commonwealth).
40
44
Ibid., pp. 208 and 209
45
Ibid., p. 209
41
42
• The CYPD established provisions for the protection of persons under the age of
sixteen years and for the procedure at a trial of such persons on criminal
charges.
• Further, the CYPD established Juvenile Courts (as a distinct tribunal) at the
level of Regional Magistrate Courts for hearing and conducting all trials against
persons below 18 years of age except in cases where children are jointly charged
with adults.
(c) Changes
• In 2007, Zanzibar started processes to reform laws governing children rights.
• In 2011, the Children and Young Persons Decree, 1952 was repealed and
replaced by the Children’s Act, 2011.
43
44
There are several theories developed by criminologists and social scientists behind
juvenile delinquency. However, I must admit that, there is no single theory which
45
can stand on its own to explain criminal tendencies among juveniles. Some of
these theories are;
Anomie theory is closely linked with “positivist scholars” such as Clifford Shaw and
Henry D. McKay, 1942 (Chicago School). The social disorganisation perspective
remained both popular and influential throughout the 1950s and 1960s.
46
Cesare, Marquis of Beccaria-Bonesana.
46
The theory was developed by Robert King Merton (1938) who borrowed Émile
Durkheim’s concept of anomie to explain crime.48 Some link Merton’s approach to
Marxist thinking on crimes in the imperial world.
47
Literally the term “anomie” means lack of social norms; "normlessness". Again, it describes the
breakdown of social bonds between an individual and their community, if under unruly scenarios
possibly resulting in fragmentation of social identity and rejection of self-regulatory values. The
term “strain” means ‘subjected to tension or stress.’
48
The theory has advanced further by Albert K. Cohen (1955), Richard Cloward and Lloyd Ohlin
(1960), Neil Smelser (1963), Robert Agnew (1992), and Steven Messner and Richard Rosenfeld
(1994).
47
48
(vi)Labelling theory
The theory provides that formal and informal application of stigmatizing and
deviant “labels” or tags applied to an individual by society will not deter, but rather
instigate future deviant or criminal acts. Conversely, the labelling theory mirrors
conflict theory in that the individuals with power create and enforce rules at the
expense of the less powerful.
See, Becker, H.S. (1963) Outsiders: Studies in the sociology of deviance, New York:
Free Press.
49
50
In that regard, as Maganga, C.S. (2005:14) says, a child or young person will also
have his or her case tried in an adult court. The trial will not consider the juvenile’s
age, for example, the trial will not be held in camera. The juvenile will go through
the same trial process as the adult co-defendant. However, the judge will consider
the juvenile’s age when passing sentences.
Section 100(1) of LCA violates the principle of privacy as it waives the right of a
child to be tried in a Juvenile Court when charged jointly with an adult offender.
51
References
Barry Krisberg, et al. (1986), The Watershed of Juvenile Justice Reform. Crime and
Delinquency, Vol.32: 5-38.
Centre for Child law (2008) Justice for child victims and witnesses of crime. Faculty
of law, University of Pretoria, PULP.
52
Sarri, R. and Hasenfeld, Y. (1976), Brought to Justice? Juveniles, the Courts, and the
Law. Ann Arbor: National Assessment of Juvenile Corrections, University of
Michigan.
Snyder, H.N. & Sickmund, M. (2006) Juvenile Offenders and Victims: 2006 National
Report. Washington, DC: U.S. Department of Justice, Office of Justice Programs,
Office of Juvenile Justice and Delinquency Prevention.
53
Part II
PENOLOGY
54
Prelude to Part II
1. What is Penology?
The term ‘penology’ encompasses two words, i.e. ‘poena’ (Latin), meaning ‘pain or
suffering or penal or punishment’, and ‘logia’ (Greek), meaning ‘study of.’ It is also
called ‘Penal Science’ or ‘penitentiary science’ i.e. branch of criminology or
philosophy which deals with prevention of crime and inflicting punishment on the
offenders. It also covers policies which are not punitive in nature namely;
probation, medical treatment, education/counselling and rehabilitation. As part of
criminology; penology covers a wide range of disciplines such as; psychology,
geography, history, philosophy, social policy, sociology and criminology. Modern
penology dates back in 1764, the year when an Italian penologist, Cesare Beccaria
published his pamphlet titled, ‘Crimes and Punishments.’
Summary:
Penology is a multidisciplinary subject concerned with the processes devised and
adopted for the punishment, repression, and prevention of crime, and the
treatment of or application of penal sanctions to wrongdoers.
55
Questions:
What is a relationship between criminology and penology?
Why is it important to study criminology and penology?
56
57
The general principle regarding punishment is called Nulla poena sine lege and
nulla poena sine crimen (no punishments outside the law, no punishments except
for a crime).
Summary:
Five (5) Key Elements in understanding punishment (By Flew, Hart and Benn): -
(i) it must involve pain or other consequences normally considered unpleasant; (ii)
it must be for an offence against legal rules; (iii) it must be of an actual or
supposed offender for his offence; (iv) it must be intentionally administered by
human beings other than the offender; and (v) it must be imposed and
administered by an authority constituted by a legal system against which the
offence is committed, e.g. school, court, tribunal and etc.
49
See, Professor Anthony Flew (1954) “the Justification of Punishment.”
58
59
…. unpunished crime leaves the path of crime open, not only to the same
delinquent but also to all those who may have the same motives and
opportunities for entering upon it, we perceive that punishment inflicted
on the individual becomes a source of security for all.
If the evil of punishment exceeds the evil of the offence, the punishment
will be unprofitable; he will have purchased exemption from one evil at
the expense of another.
The basic idea of deterrence is to deter both offenders and others from committing
a similar offence, i.e. punishment for the general good of the society.
The utilitarian theories are forward-looking; they are concerned with the
consequences of punishment rather than the wrong done, which, being in the past,
cannot be altered.52
50
It may be general or specific deterrence.
Proportionality theory in punishment and utilitarianism theory i.e. maximisation of happiness and
51
60
(ii) Rehabilitation
• A theory of rehabilitation is more usually associated with the treatment of an
offender. A few thinks that all offenders are 'ill' and need to be 'cured' but the
majority of criminologists see punishment as a means of educating the
offender.
• This is a justice system which intends to reform criminal offenders rather than
punish them or segregate them from the greater community.
• Some punishment includes work to reform and rehabilitate the wrongdoer so
that they will not commit the offence again.
• This is distinguished from deterrence, in that the goal here is to change the
offender's attitude to what they have done and make them come to see that
their behaviour was wrong.
• Rehabilitative methods include; Treatment (in the case of drug abusers),
Adoption, Foster Care, Sponsorship, Parole,53 Probation,54 community service,
Separate Juvenile Justice System, use of indeterminate Sentencing and
expungement (obliterate or destroy or remove completely criminal records).55
52
Utilitarian theories of punishment: deterrence and rehabilitation. Utilitarianism arose in the
eighteenth century and was originally addressed to social policy as a basis for penal reform and
legislation.
53
This is the conditional release of a prisoner who has served a part of their sentence back into the
community under supervision and conditions that if violated will result in re-arrest.
54
This is a period where an offender lives under the supervision and under a set of restrictions.
Violations of these restrictions could result in arrest.
55
It occurs when an offense is removed from an offender's criminal record. Minor offenses where
rehabilitative success is met are deemed in some cases to be expugnable for the offender to move
past their mistake and live a completely normal life unrestricted by a past mistake.
56
Denunciation i.e. punishment expresses society’s disapproval.
61
• The goal is to try to rebalance any unjust advantage gained by ensuring that the
offender also suffers a loss, e.g. blood feud, capital punishment, mob justice,
etc.
• Sometimes viewed as a way of "getting even" with a wrongdoer — the suffering
of the wrongdoer is a desired goal in itself, even if it has no restorative benefits
for the victim.
• Majority or Jurists, Criminologists, Penologists and Sociologists do not support
this theory as they feel it is brutal and barbaric.
• The idea behind this theory is to keep the offender away from the society57.
• It involves removing offender’s ability to commit further offences. For instance,
imprisonment separates offenders from the community, thus removing or
reducing their ability to carry out certain crimes. Notably, the death penalty
does this in a permanent or irrevocable way. With the same justification, in
Islamic law, a thief’s hands may be amputated.58
57
Protect society by separating the criminal either by incarceration or stigmatisation
58
Denying them an opportunity to commit crimes by isolating perpetrators from having contact
with potential victims
62
• Jurists who support this theory believe that if the offender expiates or repents,
he must be forgiven (i.e. offenders to feel or express sincere regret or remorse
or penitence about their conduct).
• The aim of punishment is to make an offender to repent/expiate or realise the
impact of his crime or wrongdoing (i.e. suffering, loss or pain).
It should be borne in mind that the above theories are, to a large extent, invoked
in dealing with adult offenders (rather than children). Children are seen as
immature, malleable, and developing individuals who are very different from
adults.
• This is an approach to justice that focuses on the needs of the victims and the
offenders, as well as the involved community, instead of satisfying abstract
legal principles or punishing the offender.
• It is a process where all stakeholders affected by an injustice have an
opportunity to discuss how they have been affected by the injustice and to
decide what should be done to repair the harm.
• Victims take an active role in the process, while offenders are encouraged to
take responsibility for their actions, "to repair the harm they have done by
apologizing, returning stolen money, or community service".
59
Alternatives to the classic prison system
63
• Restorative justice involves both victim and offender and focuses on their
personal needs. In addition, it provides help for the offender to avoid future
offences.
• It is based on a theory of justice that considers crime and wrongdoing to be an
offence against an individual or community, rather than the state.
• Restorative justice that fosters dialogue between victim and offender shows the
highest rates of victim satisfaction and offender accountability.
• For minor offenses; punishment may take the form of the offender "righting
the wrong", or restitution, community service or compensation orders are
examples of this sort of penalty.
(ii) Reformation theory
64
Advocates of this theory try to combine two or more theories above to justify
criminal punishment. Notably, many theories on punishment have been advanced,
that somehow, merge elements of retributivism and utilitarianism.
QUIZ
1. Is punishment a necessary evil? (Why)
2. How do you draw a line between punishment and torture/inhuman treatment?
(Discuss)
3. Do we still need death penalty? (Why)
4. What is the difference between divine punishment and legal punishment?
5. What is the difference (in terms of punishment) between mala in se and mala
prohibita?
6. What is Just Deserts?
7. What advantage would society gain if restorative justice were the only method
of punishment? In your answer consider all the advantages and disadvantages
offered by a restorative justice approach to punishment.
8. Is punishment morally justifiable? Discuss
65
References
Bittner, E.& Platt, A.M. (1966) the Meaning of Punishment. Issues in Criminology,
Vol. 2, No. 1, Treatment and Punishment (spring), pp. 79-99.
Flew, A. (1954) The Justification of Punishment. Philosophy, Vol. 29, No. 111, pp. 291-
307.
Sverdlik, S. (1988) Punishment. Law and Philosophy, Vol. 7, No. 2 (August), pp.
179-201.
66
67
Summary:
The Black’s Law Dictionary, 2009
Sentencing is the judicial determination of the penalty for a crime.
Articles 4(1)(2) and 107A(1)(2), & 107B vests adjudicative powers (which include
sentencing) in Judicial bodies (courts) and Quasi-Judicial bodies (tribunals). Read
also, Article 13(1)-(6), 15(1)(2), 17(1)(2), 25(3) and 67(7) of the Constitution.
• Legislation
60
See, sections 166,170, 311, 314, 320 and 321.
61
Juvenile Court
62
Court-martial and Court-martial Appeal Court
63
Read sections 4, 5, 6, 8, and 11.
64
Sections 68, 71, 73, and 74.
65
Tax Appeal Tribunal
68
E.g., the principle of totality in sentencing (a common law doctrine derived from
English and Welsh law).
66
See, references
69
juvenile offenders. It is left up to the court, with few or very flexible guidelines. At
the time of the imposition of the penalty, it may involve sentence or plea bargain.
67
Elias Joakim v. R. (1992) TLR 220, R. v. Kasongo s/o Luhogwa 2 TLR (R) 47, Musa s/o Bakari v. R.
(1968) HCD No. 239, Elias Joakim v. R. [1992] TLR 220, Chilemba v. R. [1969] E.A 470, R. v. Paul Msilu
(1968) HCD No. 64. Read also, Section 36 of the Penal Code, and Section 168 of the Criminal
Procedure Act.
70
Any court or tribunal dealing with an offender in respect of his/her offence must
have regard to the following purposes of sentencing;
a) Punishment of offenders
b) Reduction of crimes, including its reduction by deterrence
c) Reform and rehabilitation of offenders
d) Protection of the public
e) To denounce, condemn, or censure the type of conduct engaged in by the
offender
f) Making of reparation by offenders to persons affected by their offences
Modern sentencing policy reflects a combination of several elements above.
68
Refer, Section 170 of the Criminal Procedure Act.
69
Sections 25 & 26 of the Penal Code
71
i) Principle of proportionality
This principle requires a punishment to fit the crime. It operates to restrain
excessive, arbitrary and capricious punishment by requiring that punishment must
not exceed the gravity of the offence, even where it seems certain that the offender
will immediately offend.
72
Theories of deterrence and retribution share the idea that punishments should be
proportionate to the gravity of the crime, a principle of practical importance. If all
punishments were the same, there would be no incentive to commit the lesser
rather than the greater offense. The offender might as well use violence against the
victim of a theft if the penalty for armed robbery were no more. Therefore, the
overall punishment must be proportionate to the gravity of the offending
behaviour.70 The proportionality principle can be divided into two major groups: -
70
Read, Ally and Another v. R. (1972) HCD No.115.
71
The Totality principle requires that where an offender is being sentenced to multiple terms at the
same time, then the sentencer should ensure that the total sentence remains ‘just and
appropriate/proportionate’ for the whole of the offending, reflecting the overall seriousness of the
criminality.
72
(1970) Principles of sentencing: The sentencing policy of the Court of Appeal Criminal Division.
73
Basically, there are two schools of thought regarding the principle of parsimony.
One maintains that parsimony should be pursued at a general level, by reducing
overall levels of severity (system parsimony). The other maintains that
opportunities for parsimony should be taken as and when they arise, and
irrespective of whether this compromises any other value or principle (opportunist
parsimony). Opportunists would, therefore, support the reduction of sentences for
people in employment and people who pay compensation to their victims and in a
range of other cases which contravene the equality principle.
The step-up principle is a sentencing principle closely associated with the principle
of rehabilitation. It rests on a desire not to discourage genuine efforts at
rehabilitation by imposing a sentence that “may be seen by [the offender] to be a
dead weight on his future life.”74 Thus, where there is a prospect of rehabilitation, a
73
Refer also; Napier, C.J., in Webb v. O'Sullivan (1952) SASR 65 at 66; Veen v. The Queen [No.2]
(1988) 164-465 at 473); R. v. Storey (1996) [1998] 1 VR 359 at 366; and R v. PP (2003) 142 A Crim R 369
at 374 (Parsimonious sentences).
74
R. v. Robitaille, (1993) 31 B.C.A.C. 7, [1993] B.C.J. No. 1404 at para. 8.
74
“Every person is equal before the law and is entitled to the equal protection of the law
without discrimination and has the right to equal and effective protection against
discrimination.”
Equality before the law requires that persons should be uniformly treated unless
there is some valid reason to treat them differently. In its application to
sentencing, the general principle of equality before the law means that no person
should be sentenced differently because of their race, national or ethnic origin,
religion, gender, sexual orientation, mental or physical disability or similar
characteristics.
In sentencing, the equality principle may be invoked under two wider principles: -
75
Extracted in the case of R. v. Kukelka, 2010 BCCA 180 (Court of Appeal for British Columbia).
75
each offence and each offender some elements are unique. Therefore, similar
sentences should be imposed for similar offences committed by offenders in
similar circumstances. However, in a situation of co-accused, the roles of the
parties will be considered as well as their personal circumstances. The principle of
parity does not require equal sentences for participants in the same offence.
Rather, they must only [be] understandable sentences when examined together.
An accomplice who commit a crime at the orders of a principal and agree to testify
against the principal can be afforded lesser sentences than the principal.
The principle of equal impact also derives from the general principle of equality
but is separate from the principle of equality in its non-discrimination sense. The
principle of equal impact was recognized by Bentham, who, despite his emphasis
on general deterrence, argued for a rule which considers individual sensibilities in
calculating punishment. The equal impact aspect of the general principle means
that no sentence should be imposed that may be expected to have a more severe
impact on an offender because of the offender’s race, religion, national or ethnic
origin and so on.
This principle of sentencing suggests that sentences for repeat offenders should
increase gradually, rather than by large leaps. In R. v. Robitaille (1993), 31 B.C.A.C.
7, Lambert J.A. indicated that it should be used only in cases where rehabilitation
is a significant sentencing factor. An obvious example is where an offender is a
young person who has committed very few offences. Clayton, R., Sentencing, 6th
ed. (Toronto: Butterworths, 2004), p. 339, opines that,
“Even when there is a marked increase in the seriousness of the crime committed,
there should not be too great a ‘jump’ in the length of the sentence imposed.”
76
v) Gap principle
This principle directs courts to take into consideration the gaps of time between
offences. It gives credit to someone who has made an effort to avoid criminal
charges.
For instance, in R. v. Schumann (2007) a woman who jumped off the Humber
Bridge holding her small child, intending to commit suicide and to kill the child.
She survived, and managed to keep the child a float and alive until rescuers
reached them. Her crime was attempted murder and the guideline indicated a
high sentence, but the judge took account of her mental disturbance and her
efforts to save the child in passing a short custodial sentence, and the Court of
Appeal out of ‘mercy’ substituted a community sentence. This is a case where
compassion for the offender was appropriate, and therefore a mitigated sentence
based on mercy was in order.
77
court to explain why a particular sentence has been passed (or not passed) or why
a particular approach to sentence has been taken.
This principle requires the sentencers not to punish the offender twice for the
same offence (i.e. rule against double vexation).
The sentencing court must ensure that it has the power to pass the sentence. For
instance, in Tanzania, it is only the High Court and Court of Appeal which can
impose a death penalty.
This principle76 is premised on the seriousness of the alleged offence. Initial factor
in determining seriousness of the offence involves four (4) levels of culpability, i.e.
• Intention to cause harm: highest culpability where offence planned; the worse
the harm intended the greater the seriousness.
• Recklessness as to whether harm is caused: proceeds giving no thought to
obvious risk of harm.
• Knowledge of specific risks entailed by actions, but does not intend to cause the
harm resulting.
76
Read, Sections 321, 337, 341 and 342 of the Criminal Procedure Act.
78
79
❖ Deliberate and gratuitous violence or damage to property, over and above what
is needed to carry out the offence;
❖ Abuse of power; abuse of a position of trust;
❖ Multiple victims;
❖ Serious physical or psychological effect on the victim, even if unintended;
❖ A sustained assault or repeated assaults on the same victim;
❖ Victim is particularly vulnerable;
❖ Location of the offence (for example, in an isolated place);
❖ Offence is committed against those working in the public sector or providing a
service to the public;
❖ Presence of others (e.g. relatives, especially children or partner of the victim);
❖ Additional degradation of the victim (e.g. taking photographs of a victim as
part of a sexual offence);
❖ In property offences, high value (including sentimental value) of property to
the victim, or substantial consequential loss (e.g. where the theft of equipment
causes serious disruption to a victim’s life or business).
The law allows courts to reduce a sentence if a person pleads guilty. If the court
gives a discount for a plea of guilty, the judge or magistrate must state what the
sentence would have been without the guilty plea. The issue of remorse/contrition
should be considered at this point along with other mitigating features such as
admissions to the police in interview, the degree of provocation, self-defence,
guilty plea, and etc. Basically, mitigating factors reduce the seriousness of the
offence or the offender’s culpability. The Common Law/English sentencing
80
practice yields at least six (6) possible classes or groups of mitigating factors that
have no bearing on proportionality. These are: -
This group of potential mitigating factors includes cases in which an offender has
saved another person from drowning while awaiting trial, or has done considerable
voluntary service for the community. In the case of Jones [2012] 1 Cr App R (S) 149,
where sentence was slashed on appeal from five years to six months, the personal
mitigation included the fact that the twenty-two-year-old offender had worked in
a youth parliament, had represented young people in her area, had been
instrumental in opening youth clubs in the area, and was described as an
outstanding conscientious student who was about to graduate from university. She
had also dedicated herself to the care of her older sister with Down’s syndrome.
The Court of Appeal said that ‘if ever there was a case of exceptional circumstances,
this is it’.
Sentencing law and practice incorporate various factors that stem from wider
social policies. For example, the practice of aggravating a sentence where an
offence has been motivated by race, religion, or discrimination on grounds of
disability or sexual orientation. More relevant are the differential effect of
sentences on women and the significance of employment. It is widely accepted
that imprisonment has a greater effect on women generally, partly because
women’s prisons are widely scattered and therefore further from their homes,
partly because female prisoners can less frequently call on others to look after their
family and home, partly because they have a higher rate of self-harming, and so
on.
81
This group includes other deprivations resulting from the conviction, such as loss
of pension rights and employment prospects; any adverse physical consequences
of the offence, such as an injury sustained by the offender; effects flowing from a
long delay in prosecution, such as when a person has led a blameless life for many
years. In Sweden, factors of this kind are rationalized as ‘natural punishment’: the
burglar who is injured while committing the offence has inflicted some
‘punishment’ on himself, and therefore requires less state punishment, and the
same might be said of the fraudulent accountant who loses his career and his
pension rights or a thief who has been mobbed and punished extra-judicially.
This group of potential mitigating factors includes the effect on a baby or young
child of its mother being in prison, the effect on a sick relative of the offender
being in prison, and the effect on employees of their employer being in prison.
A reduction in sentence for pleading guilty (guilty plea) now forms part of many
legal systems. For instance, sentence reductions for assisting the police or
prosecution by giving evidence against other offenders. Admissions to police in
interview, ready cooperation with authorities (assisting the police in indicting
other criminals).
The general rule is that events occurring after the crime are not relevant to
sentence. However, some ‘best fit’ reasoning may be found in evidence that
82
members of the public are more sympathetic towards offenders who apologise or
otherwise show remorse and that we should recognise the value of an offender
publicly denouncing his or her own offending behaviour. Such a public self-
denunciation should be rewarded in the only coinage available, reduction of
sentence.
• the need to strengthen and preserve the relationship between the child and the
child’s family
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QUIZ
1. What are the stages or processes involved in a criminal trial?
2. Are there justifications in our penal laws and policies for altering the otherwise
appropriate sentence? Discuss using case laws, hypothetical cases and penal
laws in Tanzania.
3. “Courts should not have the discretion to decide whether or not to reduce or
impose a sentence” (Anonymous). Discuss the above quotation by showing the
discretionary effect of mitigating and aggravating factors in sentencing.
4. What are the differences and similarities between criminal defences and
Mitigating factors in sentencing?
5. What is the nexus between aggravating factors and mitigating factors?
6. What do we mean by sentencing factors?
7. What is the standard of proof of aggravating and mitigating facts at
sentencing?
8. Is there any difference between sentencing in adult court and juvenile court in
Tanzania? If “yes”, list and examine the role of the victim’s personal statement,
pre-sentencing records and reports from relevant authorities at sentencing an
adult or a juvenile.
9. What is the effect of a failure by the court to give a reason(s) for the sentence
pronounced?
10. Is there any formal sentencing guidelines or code for Judges and Magistrates in
Tanzania, if yes what is it provided?
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11. What are the likely effects of a criminal sentence to an offender and the
society?
Case Laws:
Salum Shabani v. R. [1985] TLR 71; Rashid Ramadhani v. R. (1968) HCD No. 323;
Manyanga v. R. (1970) HCD No. 284; Mbaruku Ndima v. R. (1967) HCD No. 212;
Nguruwe v. R. [1981] TLR 66; Mwizalubi Matisho v. R. (1970) HCD No. 296; R. v.
Albert Mwendenuka (1969) HCD No. 48; Sajile Salemu v. R. [1964] E.A 341;
Lawrence Amuli v. R. (1970) HCD No. 72; Joseph Hawks-worth & Another v. R.
(1970) HCD No. 271; R. v. Oswald Bruno Kanga (1970) HCD No. 153; R. v. Joha
Mdachi (1967) HCD No. 355; Lucas v. R. (1970) HCD No. 298; R. v. Semberit
Magnus Kassembere (1967) HCD No. 95; F. Chilemba v. R. (1968) HCD No. 510;
Lubaga Senga v. R. [1992] TLR 357; Bernadeta Paul v. R. [1992] TLR 97; R. v.
Gaudenzio Kiwhele & another 1 TLR (R) 81; R. v. Selemani Said & another 1977
L.R.T N. 29; Gulam Hussein v. R. 13 E.A.C.A 167; Rashidi s/o Ally v. R. (1967) HCD
No. 215; R. v. Kisiwani Sisal Estate (1970) HCD No. 162; R. v. Alli s/o Said (1967)
HCD No. 364; Lucas John v. R., Criminal Appeal No. 8 of 2002, in the Court of
Appeal of Tanzania at Mwanza (Judgment delivered on the 16th day of July, 2004
by Lubuva, J.A., Mroso, J.A., and Kaji, J.A.); Rweyemamu Thomas @ Kaningili
Muzahura v. R., Criminal Appeal No. 370 of 2008, in the Court of Appeal of
Tanzania at Mwanza (Judgment delivered on the 10th day of November, 2011 by
Munuo, J.A., Nsekela, J.A and Mandia, J.A.); and Kisukari Mmemo v. R., Criminal
Appeal No.192 of 2013, in the Court of Appeal of Tanzania at Dodoma (Judgment
delivered on the 11th day of August, 2014 by Hon. Luanda, J.A., Massati, l.A., and
Mussa, J.A.).
References
• Books/Journal articles
Ashworth, A. (2010) Sentencing and Criminal Justice: Law in Context.Cambridge
University Press, London.
Ashworth, A. &Wasik, M. (1998) Fundamentals of Sentencing Theory: Essays in
Honour of Andrew von Hirsch. Oxford Monographs on Criminal Law and Justice,
Oxford University Press.
Bagaric, M. (2001) Punishment and Sentencing: A Rational Approach. Cavendish
Publishing Limited, London & Sydney.
Champion, D.J. (2008) Sentencing: A Reference Book. ABC-CLIO, Inc., California.
Meyer, L.R. (2010) The Justice of Mercy. The University of Michigan Press.
85
86
87
African Commission on Human and Peoples’ Rights, Guidelines and Measures for
the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading
Treatment or Punishment in Africa (The Robben Island Guidelines) (Oct. 2002).
African Commission on Human and Peoples’ Rights, Principles and Guidelines on
the Right to a Fair Trial and Legal Assistance in Africa, OAU Doc. DOC/OS(XXX)
247, 12 Int'l Hum. Rts. Rep. 1180 (2005).
Conference on Legal Aid in Criminal Justice: The Role of Lawyers, Non-Lawyers
and Other Service Providers in Africa, Lilongwe, Malawi (Nov. 22-24, 2004),
Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in
Africa.
International Conference on Community Service Orders in Africa, Kadoma,
Zimbabwe (Nov. 24- 28, 1997), Kadoma Declaration on Community Service Orders
in Africa.
International Seminar on Prison Conditions in Africa, Kampala, Uganda (Sept. 19-
21, 1996), Kampala Declaration on Prison Conditions in Africa.
Pan-African Conference on Prison and Penal Reform in Africa, Ouagadougou,
Burkina Faso, (Sept. 18-20, 2002), Ouagadougou Declaration on Accelerating
Prison and Penal Reform in Africa.
88
The post-colonial governments in East Africa i.e. Tanzania (the then Tanganyika
and Zanzibar), Kenya and Uganda soon after their flag independence adopted
different penal approaches to curbing criminality. During colonial time, prison
(and similar facility) was, in most cases, a place for individuals who resisted
(actively or passively) against the colonial government. To African communities,
such individuals were seen or perceived as heroes or nationalist who detested
repressive colonial regime. In the same vein, prisons (or jails) were considered as
colonial tools of oppression. On the eve of independence, people in these newly
independent East African states had harboured the same sentiments over
imprisoned fellows and of course, corrective facilities and penal laws retained by
independent governments. On the part of newly governments, the retention of the
colonial superstructure was a necessary evil towards a national building.
Therefore, the obvious challenges to post-colonial governments in East Africa were
how to change people’s mind set towards penal laws and institutions erected in
furtherance of that end, how to detach criminal punishment from colonial penal
system and orientation, and how to combat deviant behaviours in avoidance of
civil disorder.
Let us now elucidate two major terms which contextualise this module, i.e.
sentencing and treatment (of offenders). The term sentencing comes from the word
‘sentence’ which refers to the judgment that a court formally pronounces after
finding a criminal defendant guilty or the punishment imposed on a criminal
wrongdoer, e.g. a sentence of 20 years in prison. Therefore, sentencing means the
whole process of judicial determination of the penalty suitable for a crime (Black’s
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Law Dictionary, 9th Ed.). It is a stage that follows conviction or plea of guilty; it
involves determining an appropriate legal punishment for the offender. Basically, a
sentence is determined by applicable penal law (criminal statute) and case’s
specific factors i.e. convict’s criminal record, nature of a crime committed, the
impact of a crime, convict’s socio-economic status, and remorse or regret
expressed by the convict.
The following are some of the penal measures/innovations laid down by post-
colonial governments in East Africa to curbing crimes;
In Tanzania (Mainland), enactment of the Minimum Sentences Act, 1963; and later
The Minimum Sentences Act, 1972 (see, revised edition of 2002, Cap. 90). These
Acts were enacted to curbing appropriation of funds by the public and co-
operative officials. The Act of 1963 was followed by the Arusha Declaration of 1967
which forbade public leaders to have more than one source of income and for their
wives to hold property.
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The Minimum Sentences Act (1963) required incarceration order of the scheduled/
itemised offences (embezzlement and theft) to be accompanied with corporal
punishments. See also, the Corporal Punishment Act (Cap. 17, 2002).
Lawmakers widened the list of offences falling under criminal law and introduced
other offences on economic sabotage, etc. See, Economic and Organised Crime
Control Act (Re: 2002, Cap. 200) which repealed Act Nos. 9 and 10 of 1983
(Economic Sabotage Act). In Zanzibar, one would go to jail for leasing without
government’s consent, impregnating an unmarried woman, practising capitalism,
etc.
The post-colonial police forces in East African states were structured and used as
right arms of the ruling class to terrorise citizens. Police officers and members of
the intelligence units were feared for their ruthless approaches towards civilians.
In some instance, they even interfered functions of the judiciary by re-arresting
individuals declared innocent by the court, detaining magistrates who release
alleged criminals, and disrespecting court orders such us habeas corpus. Refer
cases of R. v. Kassella Bantu and Others [1969] H.C.D. 170; Happy George
Washington Maeda v. Regional Prisons Officer Arusha, High Court of Tanzania at
Arusha, Miscellaneous Criminal Case No.36 of 1979; and Edward Mlaki and Liston
Matemba v. Regional Police Commander Kilimanjaro Region and Secretary Regional
Security Committee Kilimanjaro Region, High Court of Tanzania at Arusha,
Miscellaneous Civil Application No.38 of 1979. Besides, in Dar es Salaam, the police
adopted the policy of rounding up prostitutes in streets and sending them back to
their home villages or upcountry regions.
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• Resettlement of offenders
The Preventive Detention Act, (RE: 2002, Cap. 361) allowed the president to detain
individuals without trial or due process of the law. The justification of this
arbitrary law was to ensure national security, thus incarceration of individuals who
threaten or shake the very existence of the state. However, the Act turned out to
be an instrument of the ruling class to crackdown political opponents, political
trouble makers, and coup plotters.
For instance, Economic Sabotage Tribunal under the Economic Sabotage (Special
Provisions) Act, No.9 of 1983; Ward Tribunal in the Ward Tribunal Act, No.7 of
1985; and etc.
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E.g. the Proceeds of Crime Act, 1994 (RE: 2007); Anti-Money Laundering, 2006;
Anti-Trafficking in Persons Act, 2008; Drugs and Prevention of Illicit Traffic in
Drugs Act (1996, RE. 2002) repealed and replaced by the Drug Control and
Enforcement Act, 2015 (Cap. 95); and the Drug Control and Enforcement (General)
Regulations, G.N. 173 of 2016, etc.
It was introduced on 01/01/1970 by The People’s Court Decree of 1969. Among other
things, the Decree established the people's area courts and the people's district
courts which replaced the colonial Magistrate Courts. People’s Courts used the
Swahili language in their proceedings and they were manned by non-lawyers/ lay
persons. Therefore, no advocates could appear, except one’s friend or relative. The
People's Courts had exclusive power to try all offences, save for murder, attempted
murder, and manslaughter which were under the mandate of the High Court.
Further, the Decree allowed the people’s courts to lay down [its] own rules of
evidence and procedure.
The Decree established two-tier court system in Zanzibar, i.e. the people’s court,
and the High Court. However, people’s courts were later abolished in 1985 and
thus reintroduction of the common law system of adjudication.
Under the Offender’s Education Decree, No. 2 of 1972, and (Amendment) Decree
No. 4 of 1972 abolished prisons, and replaced prison sentences with a minimum
term of 5 years in the ‘Development Institute’. In those institutes, individuals were
taught to become self-reliant, e.g. trained in carpentry, plumbing, handicrafts and
etc.
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Upon release from a reform institution, one had to sign an oath agreeing to suffer
death penalty if is convicted again of the same or a similar offence. After five years
in reform institution, one will be given the necessary tools of trades and will be
either posted in centres of production to participate in national reconstruction
with fellow citizens, or allowed to start his own trade. The decree covered all
offenders, except those convicted of murder and armed robbery.
• Widening of offences which warranted death penalty (in Kenya and Uganda)
Uganda: Penal Code (Amendment) Act, No. 12 of 1968; and in Kenya: Penal Code
(Amendment) Act, No. 1 of 1973, they imposed a mandatory death penalty for
armed robbery. Therefore, in Kenya, offences attracting death penalty were
murder, treason and armed robbery, while in Uganda, included murder, mutiny,
treason, armed robbery, and armed smuggling kidnap with intent to murder.
• The emergence of vigilante groups under the sanction of the state (with quasi-
police, quasi-military, and quasi-judicial powers) e.g. Mgambo, Sungusungu or
Wasalama, etc.
• Widening the list of offences that one can be arrested without warrant even by a
private individual or vigilante groups such as Sungusungu,
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The rationale of introducing harsh penal laws across East African states was as
follows;
95
96
Though intention for introducing harsh penal law by post-colonial East African
states was good, the same received a number of criticisms such as;
• Erode a greater degree of flexibility to the judiciary i.e. deprive courts of their
discretion in imposing sentences.
• The legislature has turned the court into a rubber stamp, in a sense that the
court applies arbitrarily sentences imposed by the legislature. In other words, it
undermines the principle of separation of power and independence of the
judiciary.
• The practice has eroded the principle of proportionality, and other general
rules of sentencing/punishment.
• The introduced resettlement centres were operated as punitive institutions,
just like ordinary prisons.
• Corporal punishment was attacked as being un-socialistic, draconian measure,
encourage hostility towards the state, and that [it] has proven a failure in
deterring crimes.
• Foster mechanical application of the law like robots, thus encourage laziness in
the general approach to problems of punishment.
• Post-colonial penal measures have proved severe, indiscriminate, and against
human rights/liberty, e.g. deportation, resettlement and detention of offenders
without due process of the law.
• If law enforcers and citizen regard the punishment is too harsh, then there will
be a tendency to protect some criminals rather than cooperate in bringing
them to justice.
• Resettlement and re-education centres (rehabilitative measures) are criticised
in Sir Alexander Paterson’s words that;
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You cannot train men for freedom in conditions of captivity”. Using Paterson’s
words, Boehringer explains that; “since the individual's eventual adjustment must be
to the family unit, the neighbourhood, the job, and the community, rehabilitation
cannot be achieved in a place of penal isolation. In humanitarian terms, if one can
find more humane methods of accomplishing the same results, then one would wish
to do away with imprisonment and its attendant deprivations of various kinds”.
Thus, to me, such penological approaches to crimes are merely disguised forms of
indeterminate punishments.
Currently, to a certain extent, most of the East African states have repealed or
refined strict penal laws adopted at the eve of independence. For example, there is
minimal use of corporal punishments, direct or indirect suspension in the use of
death penalty, etc. However, to some extent, the penal law has been intensified in
dealing with sexual offences, and emerging forms of organised crimes. The shift of
this criminological approach may be attributed to by one or more of the following
reasons;
98
Question:
“You cannot train men for freedom in conditions of captivity”, per Sir Alexanders
Paterson. Critically discuss the above statement in light of re-education centres
(Development Institutes) in Zanzibar and rehabilitative measures in post-colonial
prison reforms in Mainland Tanzania.
References
Boehringer, G.H. (1971) Aspects of Penal Policy in Africa, with Special Reference to
Tanzania. Cambridge University Press, Journal of African Law (SOAS), Vol. 15, No.
2 (1971), pp. 182-212.
Katende, J.W. & G.W. Kanyeihamba (1973) Legalism and Politics in East Africa: The
Dilemma of the Court of Appeal for East Africa. Indiana University Press,
Transition, No. 43 (1973), pp. 43-54.
Maina, C.P. & R.M. Bierwagen (1989) Administration of Justice in Tanzania and
Zanzibar: A Comparison of Two Judicial Systems in One Country. The International
and Comparative Law Quarterly, Cambridge University Press, Vol. 38:2, pp. 395-412
(April).
Shaidi, L.P. (2004) Traditional, Colonial and Present day administration of Criminal
Justice. In Criminology in Africa, Fountain Publishers, Kampala Uganda, p.1.
Shaidi, L.P. (1982) The Resettlement of Habitual Offenders in Tanzania. EALR, vol.
15, pp. 153-174.
99
Tanner, R.E.S (1972) Penal Practice in Africa - Some Restrictions on the Possibility of
Reform. The Journal of Modern African Studies, Vol. 10, No. 3 (Oct., 1972), pp. 447-
458.
100
• Prior to contact with the outside world through trade and colonialism, Africans
lived in communal villages, guided by customary laws and institutions.77
• Customary laws and norms were either commonly accepted by members of the
society or enforced by private individuals (victims, relatives or friends) or
community pressure and council of elders.
77
** Large part of this Module is extracted from my Draft PhD Thesis.
101
78
It is believed that Slavery as a mode of production did not exist in Africa.
102
• It was during this period that emerging class of rulers and traders formed
chieftainship, clanship, kingdoms and maintained a small group of armed men
and royal guards to protect private property, enforce the customary law and
judicial decisions.
• However, there is no evidence to suggest that pre-colonial kingdoms
maintained professional full-time and paid law enforcement organisations. In
my view, there was a blurred line between policing (police) and defence
(military) duties.
• Even at the time when organised political units started to emerge, the ruling
class could not claim a monopoly of force or assign police or military powers
and weapons to a specific group of men in exclusion of others.
• Though there were elements of specialisation in terms of having identifiable
royal guards and soldiers; weaponry and warfare techniques continued to be
offered to every abled-member of the society, and everyone was duty bound to
maintain peace and order within the chiefdom.
• This phase was marked by the coming of traders, explorers, emigrants and
missionaries from Persia, China, Europe, South Africa and Oman along the East
African coastlines and inland before the Berlin Conference of 1884-5.
• This early period of contact with foreign traders before colonisation was
characterised by; long-distance trades and intertribal warfare. This is
exemplified by the East African long-distance trade with various trade routes
from the coast of the Indian Ocean to inland.
• The importance of long-distance trade in the context of policing and weaponry
is that, traders from Europe and Asia brought new weapons, means of transport
and war techniques in Africa such as guns (firearms), rifles, muskets,
103
104
• In 1884 and 1885, new imperialism era was born at the Berlin Conference.
• The Germany, who at that time had no colony, was given a blue light to
colonise the modern-day Mainland Tanzania (Tanganyika).
• Given the plural nature and diversity of African societies at the time,
colonialists had an uphill task of creating nation-states out of highly
divided, scattered and unreceptive traditional communities, and to ward off
competition from the Arabs along the East African coast.
• In March 1884, Carl Peters79 and his friends formed a Society for German
Colonisation, and later the German East African Company (Deutsch-
Ostafrikanische Gesellschaft - DOAG) which was chartered in 1885.
• This private chartered company was given full sovereign powers, that is,
ability to raise, maintain and use force, built forts and garrisons, make
treaties and alliances with local leaders or other colonial powers80, make
79
A German explorer, politician, journalist and philosopher. He was a key figure in the founding of
German East Africa and helped create the European "Scramble for Africa."
80
For example, between 1884 and 1886 the German East African Company despatched eighteen
expeditions to make treaties extending its territory, the most memorable one is between Carl Peters
and Chief Mangungo wa Msovero, Usagara. In November 1886, Anglo-German Treaty fixed the
northern border inland to Lake Victoria. Another treaty to settle border dispute was signed on 1 st
July 1890 known as the Anglo-German (Heligoland-Zanzibar) Treaty.
105
war, govern overseas territories on behalf the Germany empire and coin
their own money.
Carlos Ortiz (in Jäger & Kümmel, eds., 2007:10) argue that;
Forces maintained by the overseas trading companies constitute the closest
historical antecedent to private military companies (PMCs) and can be regarded
as PMCs in an embryonic form.
• The force maintained was used to crush pirates, privateers and resistances from
the indigenous population, where diplomatic ways had proven a failure and
protect trade monopoly rights, especially long-distance trade which were
previously controlled by native and Arab traders.
• Again, the private force was used to recruit and train native soldiers and to
build a capacity of local collaborators.
• In 1889, the company failed to contain local rebellions and sought assistance
from the German government, which in turn bought the company in 1891 and
sent Governor Julius von Soden who took direct control of the German East
Africa.
• Soden’s arrival had a tremendous impact in terms of administration and status
of Tanganyika, whereby it ceased to be a protectorate (schutzgebiete) and
became a colony.
• The first task of the governor was to establish a colonial force (Schutztruppe81)
in Tanganyika, the task which he accomplished on 22nd March 1891 by
transforming the “Wissmann-Truppe” into “Kaiserliche Schutztruppe” (i.e.,
Imperial Protection Force).
• Initially, the force used African soldiers (askaris) recruited from other
European colonies such as Egypt, Sudan and Belgian Congo and later from the
colony itself, especially Nyamwezi people.
81
It formed a third military branch alongside the army and the navy.
106
• The colonial soldiers were separated from civilians and lived in special enclaves
known as ‘mabomas’ (the colonial stations where askaris were posted).
• The governor was the supreme commander in the colony.
• In consultation with the respective commanders, the governor had the
authority to deploy the colonial force as he saw fit in defending and
maintaining public order and safety, subjugating local kingdoms and fighting
slave traders in the colony.
• Though the governor(s) took over direct rule of the colony from DOAG, the
new administration struggled for eight years to end African rebellions and
establish law and order.
• For instance, African centralised states under Marealle, Isike, Mkwawa, Abushiri
bin Salim, Bwana Heri, to mention just a few, who had amassed wealth, created
a standing army and acquired firearms proved to be thorns in early Germany
rule and monopoly of force and law in Tanganyika. The notable incident was
the series of defeats that Germany commanders suffered in the hands of Chief
Mkwawa, who even killed Lieutenant Emil von Zelewski in guerrilla warfare.
• Throughout their administration (1884-1919), the Germans did not establish a
formal police force, they used existing networks of local collaborators or
compromises (submissive chiefs and clan heads) and recruits/messengers such
as ‘Jumbes’ and ‘Akidas’ to fulfil local policing needs and to collect taxes.
• The chiefs, clan heads, Jumbes and Akidas were relics of traditional village
system.
• As the Germany grew stronger militarily and in control of the colony,
collaborators either ended up losing their powers or they ‘had to adapt
themselves or to reorganise their societies’ to fit into the new system of
governance.
• Slowly, the Germany started to rely on the military and paramilitary officers
(African soldiers/askaris) to maintain law and order in the colony,
107
consequently, the form of governance started to lean towards direct rule and
violence rather than forming alliances with traditional leaders.
• The abandonment of ‘semi-indirect rule’ or use of local collaborators,
militarisation of the state, introduction of repressive colonial policies such as
land alienation, cash crops production, attracting more settlers, forced labour
and taxation, reignited native insurgencies in Tanganyika.
• For example, Kinjekitile Ngwale waged a historic war against the German called
‘Maji Maji’ (1905-1907). He was defeated and hanged for treason in August 1907.
• Generally, Maji Maji uprising was a sign of failure on the part of a colonial
government to police and collect intelligence information in inland
Tanganyika, thus most activities of vigilante groups went unchecked.
• Equally, lack of local knowledge on the part of the colonial government proved
fatal in the maintenance of law and order.
• The military and paramilitary (askaris), which assumed both defence and
policing role, concentrated in administrative areas, white population’s
settlements (enclaves) and local collaborators, guarding colonial
infrastructures and strategic areas.
• This implied that; first, the task of maintaining law and order in areas which
the Germany had no interests were left in the hands of local chiefs or village
leaders or joint communal efforts. Second, armed forces were there to
crackdown crimes, criminal and organised vigilantes which posed a threat to
colonial administration and not keeping the native population safe.
• Regarding crimes relating to public order and peace, members of the armed
forces were given a green light to inflict punishment on a spot, even without
due process of the law.
• During Germany rule, Tanganyika was a military state and unchecked plurality
in policing.
108
• By 1914, over 120 Tanganyika tribes were unified under one supreme leader
(governor), assisted by autonomous and powerful 22 district officers82, while
Iringa and Mahenge districts, known for their steady rebellions, were governed
by soldiers.
• Some native societies continued to experience violence and insecurity even
after the Germans have had full control of the colony.
• The outbreak of World War I (1914-1919), changed the political landscape of
Tanganyika and policing system.
• During the war, the Germany conscripted more locals into the colonial
force. The main task of these local soldiers (Askaris) was to work hand in
hand with white soldiers in protecting Germans against allied forces from
British colonies and to contain internal resistance and insecurity
• By 1916, the British allied forces had taken control of half of the Tanganyika
territory.
• The British formed an ad hoc civilian police force, which was made up and
commanded by 31 South African soldiers and Major, and supplemented by
locals.
• This taskforce carried out police duties in settlers and strategic areas until
1919. After the Germans’ defeat, Tanganyika was placed under British
mandate as a protectorate territory (by the League of Nations).
• From 1919 to 1960s, the British controlled the East African territories of
Kenya, Uganda, Zanzibar and Tanganyika.
82
In 22 administrative districts.
109
• The British imported penal and administrative laws and personnel from
other colonies such as India and Pakistan to Tanganyika.
• Regarding policing, the first major reform was the separation of the civilian
police from the military and paramilitary to form ‘Tanganyika Police Force
and Prisons Service’ under the Police and Prisons Proclamation of 1919.83
• The military came to be known as the King’s African Rifles, which was
raised from native soldiers (Askaris) who previously served under the
German East Africa and had survived in the World War I.
• It suffices to note that, this was the first full-fledged, civilian and
professional police force with criminal investigation department, forensic
laboratory and fingerprinting, and radio communication system in
Tanganyika.
• Just like Germany, the British’s colonial force reform was aimed at strict
maintenance of law and order, upholding the authority of the
administration and proper functioning of the colonial economy.
• It was a rule of awe, violence and fear, characterised by a frequent military
and police parades and show off across African streets, suburbs, slums or
villages, flogging and whipping, and extra-judicial killings.
• The main functions of the police force were; tax collection, enforcement of
law and order, escorting, guarding infrastructures and production sites,
rounding up labour, conscription of natives, border patrol, immigration
control, supervision of collective works and punishments (street cleaning
and urban sanitation), create cordons to contain infectious diseases and
control workers’ strikes.
• The police patrols, operations and posts continued to be urban based, racial
biased and managed by Europeans (senior ranks) and supported by Asians
(Middle ranks) and Africans (at the bottom).
83
Government Notice No.21-2583, Vol.1. (25 August 1919), headquartered in Lushoto District, Tanga
under Major S.T. Davis. Police headquarters were moved to Dar es Salaam in 1930.
110
• The native civil or public servants, emerging educated elites and local chiefs
enjoyed colonial police patrols and protection. This was possible because
the colonial government created housing enclaves for civil servants.
• The colonial police operations focused on policing African squatters or
slums with high crime rate likely to spill over into European suburbs and
investments.
• Another important feature was that certain mining companies could
maintain private police forces, or the colonial government established
auxiliary police to supply protection in sensitive production and
administrative areas, the good example is Mwadui Williamson Diamonds
Mine in Tanganyika.
• To supplement the public police, the colonial government continued to
retain the service of retired policemen, soldiers, prison officers and cattle
guards to perform policing works.
• In some British colonies in Africa, the government sponsored the
establishment of Local Defence Associations and Rifle Clubs among miners,
sailors and marines to hold out any security threat in their areas before the
government could send reinforcement troops.
• The colonial government also encouraged the creation of boy scouts,
paramilitary, and police and army reserves.
• Military barracks, forts and garrisons were built in regions harboured by
militant tribes and strategic centres.
• In its systematic quest to monopolise force, the colonial government passed
strict laws on importation, sale, ownership and use of firearms and
ammunitions.
• It also required natives to register and license firearms, and imposed taxes
on weapon owners. It was common for Africans to face trials for sedition or
111
84
Sir Donald Cameron was a former British governor in Nigeria.
112
113
• During and after the World War II (1939-1945), maintaining and sustaining
colonial rule became even harder to most European powers who had been
highly devastated by the war.
• Moreover, decolonisation movements which took the shape of political
militant groups,85 political associations86 and trade unions87 pushed the
British government to introduce new police reforms.
• For example, in 1949, Motorized Company (now, Field Force Unit - F.F.U)
was introduced as a specialised unit, to crush political movements and
unrests in urban areas.
• 1939-1950 the colonial police force was highly militarised, and Tanganyika
was governed as a police state.
• Yet, the colonial government started Africanising the police force, by
recruiting more natives and allowing women police into the force.
• Again, more natives were trained and assumed leadership positions in
armed forces.
• On 9th December 1961, the British relinquished coercive and political
powers to African nationalists under Julius K. Nyerere.
• There was no substantial change in terms of colonial penal and police laws, and
practices, save that the white police officers were replaced by native Africans.
• This, however, created a few problems namely; the inherited police force was
weak, underfunded, disorganised and newly recruited and promoted native
officers were highly inexperienced and ill-trained.
85
E.g. Mau Mau revolts in Kenya, 1952– 1960.
86
Tanganyika African National Union (TANU) formed in 1954.
87
Tanganyika Federation of Labour (TFL) founded in 1955.
114
115
• On 26th April 1964, Tanganyika and Zanzibar united to form the United
Republic of Tanzania, thereby the police force and policing became a union
matter.
• Basically, coercive institutions of the former Tanganyika became Union
institutions. In respective laws, the word ‘Tanganyika’ was substituted with the
word ‘Tanzania.’ Apart from the Union policing networks, the only remaining
unit to date with coercive powers in Zanzibar is the Coastal Guards (Kikosi
Maalum cha Kuzuia Magendo) (KMKM).
• In 1965, the Interim Constitution was enacted, which, inter alia, abolished
multiparty democracy and retained only two dominant political parties, one
party in either side of the Union, i.e., ASP (Zanzibar) and TANU (Mainland
Tanzania).
• Consequently, national police which required new police recruits to be
members of the ruling party were put in place.
• Besides, other police officers were given posts in the ruling party. In 1971, the
TANU Guidelines (Mwongozo) required all national institutions and parastatal
organisations to have party branches.
• The government adopted socialism and self-reliance (i.e., Ujamaa na
Kujitegemea) as a state ideology.88
• Under the Ujamaa ideology, private properties were nationalised, and people
forced to live in development villages (villagisation policy), work together,
share farm produce and village properties.
• Regarding security, the ruling party introduced ten-cell cluster system or ten-
house cell organisation (i.e., Balozi wa Nyumba Kumi kumi). The ten-cell leader
was to be informed or introduced to any new member or visitor within his ten
households’ jurisdiction. He had a roster of names and security details of all
88
See, Arusha Declaration (1967).
116
members residing within the ten-cell radius, which he shared with defence and
security organs.
• In early years of independence, the system was extremely effective in gathering
and sharing intelligence information and using local knowledge and communal
efforts in curbing crimes. It should be borne in mind that, ten-cell leaders were
operating outside the framework of the law since they were within the
structure of the ruling party and not the government.
• The government decided to abolish the Local Government Authorities in 1972
which had been in existence since the British rule.
• This reform was followed by drafting and adoption of the Constitution of 1977,
which among other things, placed more executive powers under the president,
merged ASP (Zanzibar) and TANU (Mainland Tanzania) to form one state
party (CCM),89declared socialism and self-reliance as state policy, intertwined
the armed forces with the ruling party and introduced a monopoly of force and
violence under Article 147.
• The villagisation programme created more security concerns than expected.
This is because there was a high increase in population and mobility which did
not match well with available social services especially public policing and
patrol and shortage of essential goods. Besides, the policy forced people with
different backgrounds and orientation to live together, and it was a top-down
mechanism rather than grassroots initiative.
• Consequently, between 1978-1985, the country experienced a high level of
property crimes such as; burglary, larceny, theft, armed robbery, banditry,
shoplifting and vandalism, ambush and waylay, cattle rustling, bus hijacking,
black-market (racketeering, profiteering and hoarding of goods).
• Again, it was a time when the government expenditure in social services
declined tremendously, the police budget was highly cut, for example, they
89
Chama Cha Mapinduzi, i.e., Revolutionary Party.
117
118
• Nonetheless, one thing was certain that the rebirth of vigilantes in villages
marked the failure of the state and armed forces to maintain law and order.
• In 1983, vigilantes gained more followers and support in both rural and urban
areas, and to some parts of the Kenya Republic. Therefore, the government of
Tanzania had no option but to officiate and accommodate them in the policing
system and structure of the ruling party, and allow them to work hand in hand
with existing armed forces. Even most influential government leaders such as
Julius K. Nyerere, Edward M. Sokoine (prime minister) and Rashidi M. Kawawa
(CCM’s chief secretary) referred to them as revolutionary force and guardian of
peace and property.
• To work the talk, the government pardoned and set free a good number of
sungusungu members who had been convicted of murder and torture.
Moreover, in 1989, the People’s Militia Act was amended to officially recognise
sungusungu as law enforcers.
• The amendment empowered them to conduct search, seizure, arrest and detain
just like a police officer of a rank of constable.
• Generally, the sungusungu just like the people’s militia (mgambo) created four
main challenges; one, sungusungu groups mainly emerged to addressed
insecurities in rural areas, thus, at least, could not address security concerns in
urban areas. Two, sungusungu usurped judicial, parliament and police powers
creating more human rights crisis in their well-intentioned quest of curbing
crimes. Three, though the 1989 amendment to the People’s Militia Act required
sungusungu to operate with the authority of and under the aegis of the
government and receiving military training, they have continued to operate
under the direction and command of the ruling party. Lastly, since Article 147
of Constitution of Tanzania (1977) lays a strict monopoly of force and violence
thesis, existence and activities of sungusungu become unconstitutional.
119
120
90
In 1984, the Bill of Rights was introduced under the Constitution.
121
small arms, a rise in violence crimes and refugee crisis due to political unrests
in Congo DRC, Mozambique, Burundi and Rwanda.
• To cope up with new security demands, budget deficit and dwindling role of
vigilantes (sungusungu) and ten-cell leaders in policing, the Police Force has
introduced two programmes; the first is ‘community policing’ policy (2006)
which allows the community to participate in policing by organising
neighbourhood security groups and training them. Besides, the police have also
been deputising volunteers in performing non-coercive duties such as traffic
control. The second policy is aimed at supplementing police force’s income,
whereby they charge fees for security services offered to commercial banks and
mining companies, to name just a few. In my view, the latter practice is
unlawful, since current police law does not allow them to commercialise police
services, while the former falls in the same category of ‘top-down’ security
policies that have proven a failure in the past.
91
Police (and policing) is a union matter.
122
6.3.1 Mission
The mission of the Tanzania Police Force is to ensure the public security, safety
and protection of both life and property of all inhabitants of our community; to
regulate and control the flow of traffic to facilitate the movement of persons and
goods within our towns and to reduce the impact of crime on the inhabitants of
community through investigation, apprehension, and adjudication of persons
involved in criminal offences.
6.3.2 Vision
To have professional, modernisation and community policing that support
maintenance of peace and tranquillity by reducing incidences of crime and fear of
crime; justice administration, rule of law and good governance and public safety in
the country. The reformed Police Force must earn community confidence and
trust, recognition and acceptance by its professional response to crimes and
incidents in an application of modern technology and equipment.
6.3.3 Values
Its core beliefs are - professionalism; ethics adhered; customer focus;
accountability and responsibility; teamwork; impartiality; community
responsibility; honesty; integrity; loyalty; adherence to laws and regulations;
proactiveness and confidentiality.
The idea to create INTERPOL was born in 1914 during the first International
Criminal Police Congress in Monaco, France. INTERPOL was officially established
in 1923 known as the International Criminal Police Commission. In 1956, it was
renamed as INTERPOL. Currently, INTERPOL has 190 member countries, making
it the world’s largest international police organisation. The main task of
123
124
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area of Tanzania. Africa, 59 (3): 356-370.
CHRI (2006) The Police, the People, the Politics: Police Accountability in Tanzania.
Available at:
http://www.humanrightsinitiative.org/publications/police/tanzania_country_repo
rt_2006.pdf (Accessed on 10/02/2017).
Clayton, A. & Killingray, D. (1987) Khaki and Blue: Military and Police in British
Colonial Africa (Monographs in International Studies) (Research in International
Studies - Africa Series) (Ohio RIS Africa Series). Ohio University Press.
Craven, M. (2015) Between Law and History: The Berlin Conference of 1884-1885
and the Logic of Free Trade. London Review of International Law, 3 (1): 31-59.
Diamond, J. (1997) Guns, Germs and Steel: A Short History of Everybody for the last
13,000 years. Vintage.
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Fenske, J. (2012) Ecology, trade and states in Pre-colonial Africa. CSAE Working
Paper Available from: https://ideas.repec.org/p/pra/mprapa/27203.html (Accessed
on 17/02/2017).
Goody, J. (1963) Feudalism in Africa? The Journal of African History, 4 (1): 1-18.
Kijo-Bisimba, H. & Maina, C. P. (2005) Justice and Rule of Law in Tanzania: Selected
Judgements and Writings of Justice James L. Mwalusanya and Commentaries /. Dar
es Salaam, Tanzania: Legal and Human Rights Centre.
Killingray, D. (1986) The Maintenance of Law and Order in British Colonial Africa.
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Mogire, E. (2011) Victims as Security Threats: Refugee Impact on Host State Security
in Africa. Routledge.
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Publishers.
Owen, O. (2016) Policing after Colonialism. In: Ben Bradford, B. J., Ian Loader &
Jonny Steinberg, eds. The SAGE Handbook of Global Policing. SAGE Publications
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Pizzo, D. (2007). “To Devour the Land of Mkwawa”: Colonial Violence and the
German-Hehe War in East Africa c. 1884-1914. Chapel Hill: University of North
Carolina.
TPF (2017) Historia Ya Jeshi La Polisi (trans., "History of the Tanzania Police
Force"). [Online] Available from:
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(Accessed on 07/02/2017).
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Asian and African studies, 12 (1): 20-47.
128
7.1 Introduction
Notably, depriving people of their liberty is a negative act and for that reason,
imprisonment is often described as a punishment of last resort, one which should
only be imposed by a court of law when there is no other appropriate punishment.
Etymologically, the word prison comes from the Latin word meaning to seize. The
place itself is defined as a building to which people are legally committed to
custody while awaiting trial or punishment.
129
Prisons may be categorised as Public and Private Prisons. Basically, public prisons
are incarceration facilities owned, run and funded by the government, while
private prisons are facilities owned and run by private individuals (privatised
prisons) but under the aegis of the government. Other categories include; Military
prisons and Civilian Prisons; Prison Hospitals (e.g. Mirembe Hospital, and Isanga
Prison Hospital in Dodoma) and rehabilitation centres; Women's prisons and
Men’s Prisons; and Adult Prisons and Youth detention facilities.
On the other hand, the word "prisoners" refers to all persons legally held in prison
custody whether convicted or not. These include:
130
(a) Remand Prisoners: unconvicted persons who must be produced before a court
of law within a period of 24 hours of such arrest. No such person shall be detained
in custody beyond the said period without the authority of the court, otherwise a
writ of habeas corpus may be issued against the detaining authority.
(b) Convicts: these include any convicted persons under sentence of the court, a
court martial or a special tribunal and those detained in prison under Section 57 of
the Criminal Procedure Code.
(c) Civil Prisoners: these include a debtor, any person ordered to be detained in
custody under the provisions of the Mental Disease Ordinance or a detainee under
the Preventative Detention Act, 1962.
There are four (4) main reasons for sending convicts to prisons;
• Punishment
The first given purpose of imprisonment is to punish persons for the crime they
have committed. Some crimes are so serious that the only appropriate disposal is
to punish the offender by taking away their liberty.
• Deterrence
If a person who is tempted to commit a crime knows that the result is likely to be a
period of imprisonment, then that will be enough to deter that person from
committing a crime. The greater the punishment, the greater the deterrent.
• Reform/rehabilitation
131
The notion that prison can be a place where individuals can be taught to change
their behaviour is attractive on a number of counts. In the first place, it provides a
positive justification for what would be an otherwise negative form of punishment
of the criminal. The notion of prison as a place where personal reform can be
engineered and encouraged is also attractive to those public-spirited men and
women who work in prisons and who wish to do more professionally than merely
deprive prisoners of their liberty.
• Public protection
Another purpose of imprisonment is to protect the public from commit criminals,
particularly recidivists. During the time that offenders are in prison, they are
prevented from committing other crimes. This argument is known as
incapacitation. In some respects, this argument is valid, particularly in respect of
specific neighbourhoods where a significant proportion of crime is being
committed by identifiable individuals.
Prisons as places of detention, where people waited to be tried until a fine or debt
was paid or until another court disposal was implemented have existed for many
centuries. But the use of prison as a direct disposal of the court to any significant
extent can be dated to a relatively recent period.
Roth, M.P. (2005) Prisons and Prison Systems: A Global Encyclopaedia, pp.xxv-xxix
132
133
• The French adopted the term donjon, from which the more familiar English
version, dungeon, was derived.
• Over time dungeon became synonymous for the inner sanctums and places of
confinement in towers and castles built at high elevations.
• One of the earliest examples of subterranean chambers for prisoners was
mamertine prison built in Rome in 64 B.C.E.
• Early English jails can be found at least as far back as 1166 when King Henry II
required that each sheriff establishes a county jail in his shire.
• Several towns used formidable gatehouse prisons located near the city gates.
Except for nomenclature, there was little distinction between jails, prisons, and
other places of confinement until the eighteenth century.
• The original functions of prisons varied little. Most held individuals awaiting
trial or punishment after adjudication. If the guilty did not die from whatever
sentence awaited them, they were released and their debts to society were
completed. Between the twelfth and fifteenth centuries, pre-existing structures
such as tower keeps, cellars, and dungeons held prisoners in various locations.
• According to one historian, early European hospitals, or lazarettos, provided
the inspiration for modern "purpose-built" prison designs.
• In the sixteenth and seventeenth centuries, England opened several houses of
correction known as Bride wells.
• The Parliament ruled that every county should open one of these institutions
to hold indigents and vagrants while inculcating them with the appropriate
work ethic.
• In these facilities, petty criminals and transient types were introduced to a
number of tasks that could help support the institution, such as baking and
milling.
134
• By the late 1500s, Bride wells offered training and apprenticeships to poor
freemen and women and to street children that included 25 different
occupations.
• Amsterdam contributed its version of the house of correction, the rasp house,
in the sixteenth century as well.
• Sheriffs in medieval London utilised gaols (jails) known as compters to
incarcerate misdemeanants such as debtors, drunks, and vagrants.
• Like other holding facilities of the era, these institutions earned an unsavoury
reputation for charging prisoner’s fees for even their most basic needs.
• An important step in the development of the prison was the use of cellular
confinement. Some of the earliest examples of this were in what is now Italy.
• In 1677 the Hospice of San Filippo was operating near Florence. One
criminologist has described this institution as the "first practical attempt" to
use 24-hour segregation "for the avowed purpose of correction and reformation."
• Others have credited the San Michele Hospice in Rome as being the inspiration
for cellular confinement.
• Another major step in prison innovation was the rebuilding of the original
house of correction in Ghent (Holland) in the 1770s, replete with separate cells
for prisoners.
• By adopting the regime made famous at Rome's San Michele Hospice and later
by the Auburn system, prisoners were housed in a congregated setting by day
and slept in separate cells at night.
• When transportation of British convicts to the American colonies was abruptly
interrupted in 1775, Britain's overcrowded prisons forced authorities to look for
alternative detention facilities.
• Penurious administrators turned to derelict warships and merchant’s vessels, or
convict hulks, to confine prisoners.
135
• The U.K. was not the only country to experiment with penal colonies. France's
Devil's Island was probably the best known.
• Operating the facility between 1852 and 1946, France adopted penal
transportation just as Britain abandoned it in Australia. Islands have proven to
be popular with prison planners.
• From Van Diemen's Land and Norfolk Island to the world's largest island,
Australia, to America's Alcatraz, France's Devil's Island, and Italy's Lipari
Island, the planet's oceans have an enviable record for providing the ultimate
in correctional security.
• Following the American Civil War, the former Southern states, as well as
several others, turned to convict leasing to make up for the dearth of prison
facilities and lack of financial resources.
• Like so many other experiments in penology chain gangs have gone in and out
of fashion in the United States.
• Societies have used forced labour at least as far back as fifth-century B.C.
Greece when state-owned slaves were leased out to private mining operators.
• Convict labour was used during the Roman Empire and into the middle ages.
But not until the age of the modern penitentiary did the convict-leasing system
find an environment in which it could prosper. Nowhere was this truer than in
the United States.
• Although colonial jails forced prisoners to work, not until the opening of
Philadelphia's Walnut Street Jail in 1790 was prison labour placed at the
disposal of outside contractors. In the post-Civil War American South, the
convict-leasing system was the result of a paucity of funding from the shattered
Confederate states. Convict leasing diminished in popularity in the twentieth
century, particularly in America, as a result of the growing clout of labour
unions, who saw convict leasing as unfair business competition in a world of
free labour.
136
137
• Never as popular as the Auburn and Pennsylvania systems, the circular or semi-
circular panopticon devised by Jeremy Bentham was copied by several countries
and the US.
• Although it allowed the continual observance of inmates, its unpopularity was
in part a consequence of its waste of space as well as the prisoners' ability to
easily follow the movements of guards.
• Before the twentieth century many prisons employed "make-work" strategies to
keep prisoners busy. Sometimes work was constructive and provided income
for the prison facility; at other times the tasks was unconstructive and purely
punitive.
• The U.K. introduced strategies such as the treadmill, the crank, and oakum
picking.
• These tedious tasks were designed to "grind men good."
• Amsterdam, however, pioneered the use of such practices as early as the
sixteenth century using rasping. In so-called rasp houses, a type of workhouse,
inmates were kept busy rasping or sawing up to 25 pounds of sawdust per day
per inmate to produce powder for colouring merchandise.
• This could take between 10 and 15 hours per day, equivalent to the average
workday in the free world at that time.
• Reformers such as John Howard saw rasping and other mind-numbing tasks
combined with a heavy dose of religion as an effective avenue to reform.
• In the minds of the prison keepers, hard labour helped rehabilitate inmates and
at the same time enabled institutions such as houses of detention to remain
self-sufficient.
138
• A major step in the creation of modern prison systems was the formation of the
National Prison Congress in 1870.
• International prison congresses on prison reform had been convened in Europe
almost 25 years earlier, but little was achieved until the meeting held in
Cincinnati, Ohio, in 1870.
• More than 130 delegates, including judges, wardens, prison chaplains, and
governors, met and unanimously adopted a Declaration of Principles, which
included increased emphasis on rehabilitation, education, religion, training,
and most important, pushed for the widespread adoption of indeterminate
sentencing and the end of political patronage.
• The development of prisons and prison systems in the modern era has been
fraught with experimentation.
• Many of these experiments have been undertaken by the prison-oriented
American criminal justice system.
• For example, in the early 19th century, Thomas Mott Osborne inaugurated the
mutual welfare league at Auburn Prison, an "anti-institutional" approach that
experimented with offering prisoners the opportunity to achieve a modicum of
self-respect by removing the constraints of the silent system.
• The U.K. embarked on the Q Camp Experiment in the pre-war 1930s, which
like the Mutual Welfare League, hinged on democratic incarceration and
shared responsibility.
• In the 1980s and 1990s shock incarceration centres, better known as boot
camps, were a panacea for the growing juvenile crime rate.
• Demonstrating the cyclical nature of prison reform, the boot camp regimen
had much in common with reformer Zebulon Brockway's attempts to combine
education, athletics, and military discipline as a pathway to reform.
• As with many other "get-tough" initiatives, there is little evidence that boot
camps had much impact on recidivism.
139
• Beginning in the early 1900s the U.K. experimented with detention centres for
youthful offenders known as Borstals, named after the village where the first
one was located. Several studies have suggested that the Borstals and boot
camps often resulted in high recidivism rates for their graduates.
• More countries have found better success through diversion of juveniles into
non-custodial adjudication.
• The twentieth century ushered in a new era in prisons and prison systems.
• It saw not only the closing of Devil's Island and the inauguration of the prison
big house movement in America but also the creation of enormous work camps
and the Soviet Gulag.
• By the 1980s the Soviet Union was sentencing 99 percent of its convicted
criminals to labour camps.
• The new century also witnessed the flowering of alternatives to cellular
confinement, once the great panacea.
• Probation and parole became standard alternatives, as did work release and the
suspended sentence. Beginning in the late 1980s super maximum prisons
revived some of the most discredited strategies of earlier prison regimes.
• It was hoped that keeping prisoners in their cells 24/7 and making communal
dining rooms and exercise yards redundant would keep prisoners and staff
safer.
7.5.3 Prisons in Africa: Colonial Legacy
140
141
A. Germany period:
• The Criminal Code of the German Empire provided for various forms of
imprisonment - viz., penal internment, confinement, military detention and
detention.
• The major preoccupation of instructions by the Imperial Chancellor regarding
criminal jurisdiction and disciplinary authority in respect to natives was
concerned with corporal punishment.
• The German colonialists evidently viewed imprisonment to be a severe use of
coercive violence so that their "civilising" rule should prevail.
142
B. British period:
• The legal basis for the prison system operating in Tanganyika at the date of
political independence, however, may be traced to the Police and Prisons
Proclamation 1919 and the Prisons Ordinance 1921.
• These were the legal instruments by which the British established their prison
system for the territory which had been "mandated" to them by the Treaty of
Versailles.
• The nature of the Prisons Service may be gathered from a brief analysis of the
more salient provisions of the 1921 Ordinance.
• The racist and hierarchical pattern of the colonial rule may be gleaned from
sections 6-8 whereby prison officers are ranked in order.
• There was the Commissioner, responsible for the administration of prisons
throughout the territory, and Superintendents vested with an administration of
each prison.
• Under them were first class and second class European jailers then came
Asiatic and native subordinate officers, followed by first, second and third-
grade chief warders, and further down to first, second, third, fourth, fifth and
sixth grade warders. Last, and no doubt least were Wardresses.
Prison standards under the British Regime:
143
C. Zanzibar
144
• However, the Prisons Decree 1933, which regulated Zanzibar's prisons until
1972 was, to all intents and purposes, in pari materia with Tanganyika's
Ordinance of the same year.
D. After independence
(i) Tanganyika
145
(ii) Zanzibar
(iii) After the Union of Tanganyika and Zanzibar (the early 1970s to date)
A new prisons policy was adopted embracing humane treatment of offenders and
justice as its core value. The objective was the rehabilitation of offenders as a
contribution to community safety. In practice, this philosophical shift was
manifested by:-
• Introduction of a new legislation, the Prisons Act, 1967 which embodies the
spirit of international basic human rights instruments;
• Establishment of several open farm prisons in the rural areas which were
designated to be centres of excellence for imparting agricultural skills to
inmates and to extend such services to surrounding communities;
146
The Commissioner of Prisons is the administrative head of the service and the
head of each prison is appointed by him. Officers in charge of prisons are in turn
assisted by the necessary custodian staff, medical officers and educational staff and
religious representatives of the different faiths.
Currently, the TPS has 122 institutions, 21 regional offices, two staff training
centres, four vocational training facilities and head office. While the head office
effect management and administration of all prisons stations countrywide, the
regional offices provide administrative oversight (MOHA, 2012).
147
The Constitution of United Republic of Tanzania (1977); the Prisons Act, No. 34
(1967); the Prisons (Extra Mural Employment) Regulations (1968); the Prisons
(Prison Offences) Regulations (1968); the Prisons (Prison Management)
Regulations (1968); the Prison (Restraint of Prisoners Regulations (1968); the
Parole Boards Act (1994); the Parole Boards Regulations (1997); the Transfer of
Prisoners Act (2004); The Penal Code (Cap. 16); The National Defence Act (1966);
the Transfer of Prisoners Regulations (2004); the Commission for Human Rights
and Good Governance Act (2001); the Police Force and Prisons Service
Commission Act (1990); the Law of the Child Act (2009); the Children and Young
Persons (Approved School) Annual Holiday) Rules (1945); the Probation of
148
Offenders Act (RE 2002); the Refugees Act (1998); the Probation of Offenders
Proclamations (1950 – 1961); the Minimum Sentences Act (1972); the Community
Service Regulations (2002); the Prisons Service Regulations (1997); the Public
Service Act (2002); Prison Standing Orders (4th Edn., 2003);92 the National
Prosecutions Service Act (2008); and Criminal Procedure Act (RE 2009). (MOHA,
2012).
B. International Level
Coyle, A. (2005) Understanding Prisons: Key issues in Policy and Practice, pp. 22 &
23.
The general principles which are contained in the covenants and conventions
mentioned above are covered in more detail in several international instruments
which refer specifically to prisoners. These include the United Nations Standard
Minimum Rules for the Treatment of Prisoners (1957), the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment
(1988), the Basic Principles for the Treatment of Prisoners (1990), and the Standard
Minimum Rules for the Administration of Juvenile Justice (1985). There are also a
few United Nations instruments which refer specifically to staff working with
92
Rules and regulations framed from time to time by the Commissioner of Prisons.
149
people who have been deprived of their liberty. They include the Code of Conduct
for Law Enforcement Officials (1979) and the Principles of Medical Ethics Relevant
to the Role of Health Personnel, Particularly Physicians, in the Protection of
Prisoners and Detainees against Torture and other Cruel, Inhuman or Degrading
Treatment (1982). These documents are crucial to any understanding of the
principles which should apply to the current practice of imprisonment.
Coyle, A. (2005) Understanding Prisons: Key issues in Policy and Practice, pp. 66 &
67.
Given the ratio of male to female prisoners, it is understandable that the prison
system is organised from a male perspective. It is important to be aware that in the
real world of the prison this has specific consequences, usually disadvantageous,
for the relatively small number of prisoners who are women. A report by the
Fawcett Society (2004) illustrated the extent to which the prison system is
designed to contain male offenders, with the result that the problems of women
are not adequately addressed. This stereotyping aspect is highly attributed to the
fact that;
The means by which imprisonment may cause crime are numerous and varied.
Such effect may relate to the experience of incarceration, or as post-incarceration
consequences, or affect people other than the incarcerated offender himself. Some
of these effects are;
150
• Severance of Family and community ties/ weakening of social bonds with family
and community:
The central issue here is whether the former inmate has a family relationship to
which he can return. Notably, geographical distance, security restrictions, and
other logistical considerations of incarceration disrupt connections between
inmates and their families, they may make it more difficult for offenders to
reintegrate upon release and avoid prior criminal patterns.
151
152
often means fewer resources available to each inmate, which can increase
uncertainty, frustration, and conflict with other inmates.
• Solitary confinement
The increased stress of this extreme isolation and confinement may impair
inmates’ mental health, which in turn may cause them to commit more violent
acts, either within prison or upon release.
• Reactance
Brehm (1966) declared that people have a need for freedom. The need for freedom
is activated whenever people feel a restriction put upon their actions or opinions.
People usually respond to a restrictive force by fighting back against it, resisting
attempts at influence. Brehm described psychological reactance as a force aroused
by threats to a person's freedom. Psychological reactance is aroused whenever a
person is given a direct order or told that an activity is not possible or not allowed.
When pushed, people tend to push back. When told they cannot have something,
people tend to want it.
153
Questions:
1. “Imprisonment is an extremely important contributor to the problems of
recidivism.” Why is it then that faith in reformation is constantly reaffirmed as
the theoretical justification for imprisoning convicted criminals?
2. “It must, however, be clear from the outset to all concerned that it is the
sentence of imprisonment, and not the treatment accorded in prison, that
154
References
____ Prison Service since Independence. Tanzania Notes and Records No. 76,
pp.197-200.
Bernault, F. & Roitman, J., (Eds.) (2003) A History of Prison and Confinement in
Africa. Portsmouth, NH: Heinemann.
Coyle, A. (2005) Understanding Prisons: Key issues in Policy and Practice. Open
University Press, Berkshire, England.
Davis, A.Y. (2003) Are Prisons Obsolete? Seven Stories Press, New York.
Fuhrmann, J. & Baier, S., (Eds). (2013) Prisons and Prison Systems: Practices, Types
and Challenges. Nova Science Publishers Inc.
Gupta, A. & Girdhar, N.K. (2012) Risk Factors of Suicide in Prisoners. Delhi
Psychiatry Journal, Vol. 15 No.1, pp.45-49.
Hough, M., et al., (2008) Tackling Prison Overcrowding: Build More Prisons?
Sentence Fewer Offenders? The Policy Press, University of Bristol, UK.
Logan, C.H. (1990) Private Prisons: Cons and Pros. Oxford University Press,
Oxford, UK.
155
Pritikin, M.H. (2008) Is Prison Increasing Crime? Wisconsin Law Review, pp.1049-
1108.
Roth, M.P. (2005) Prisons and Prison Systems: A Global Encyclopaedia. Greenwood
Press, London, UK.
Selman, D. & Leighton, P. (2010) Punishment for Sale: Private Prisons, Big
Business, and the Incarceration Binge. Rowman & Littlefield Publishers Inc.,
Plymouth, UK.
156
Hospital
There are two specific types of sentences options available to i.e. custodial or non-
custodial sentences as explained below.
157
• Non-custodial sentencing/measures
The phrase “Non-custodial measures” is defined as follows;
Non-custodial measures may include: unpaid work (this can be called community
payback or community service); house arrest; curfew; suspended sentence (that
means that breaking the law during a sentence may lead to imprisonment);
wearing an electronic tag; mandatory treatments and programs (drug or alcohol
treatment, psychological help, back to work programs); fine; apology to the victim;
specific court orders and injunctions (not to drink alcohol, not to go to certain
pubs, meet certain people); regular reporting to someone (offender manager,
probation); judicial corporal punishment.
Detention and correctional facilities in Tanzania include; Police stations (i.e. police
lockups), Prisons, Retention Homes, and Approved Schools.
158
✓ The Presidential Affairs Act, Cap. 9 (RE: 2002), Section 3 (to be read in the light
of Article 45 of the URT Constitution, 1977).
✓ The Probation of Offender’s Act, Cap. 247 (R.E 2002)
✓ The Community Service Act, Cap. 291
✓ The Prisons Act, Cap. 58 (Section 52 & 72)
✓ The Parole Boards Act, Cap. 400
✓ Transfer of Prisoners Act, No. 10 of 2004, Section 12 and 13.
✓ Criminal Procedure Act, (RE: 2002) – nolle prosequi (Section 91), discharge
(Section 152), habeas corpus [section 390(1)], etc.
✓ The Extradition Act, No. 15 of 1965 (RE: 2002) - habeas corpus
✓ Law of the Child Act, No. 21 of 2009, Sections 101, 116 and 119.
✓ The Immigration Act, No. 7 of 1995 (RE: 2002), Section 14 (conviction and
deportation order)
✓ The Deportation Act, Cap. 380 (RE: 2002)
✓ The Penal Code, Cap. 16 (Section 26)
✓ The Resettlement of Offenders Act, No. 8 of 1969 (RE: 2002), Sections 4, 5, 6
and 8.
(b) International standards;
✓ The United Nations Standard Minimum Rules for Non-custodial measures (The
Tokyo Rules), 1990 [Rule 2.1, 5.1, 8.2 and 9.2]
✓ United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (The Beijing Rules), 1985 [Rule 18]; and
✓ The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, 1985 (restorative justice, Rule 8-17).
159
society, as it may prevent them from getting into the so-called the revolving door
syndrome, i.e. recidivism or incorrigibility. Furthermore, there are hopes that this
could alleviate prison overcrowding and reduce the cost of punishment.
Summary of reasons:
✓ To avoid overcrowding in prisons
✓ To save taxpayers money in keeping offenders, employing pore personnel,
expanding facilities and sometimes outsourcing private companies to manage
prisons
✓ To rehabilitate offenders (treatment and psychological help)
✓ To avoid reoffending (recidivism and incorrigibility)
✓ To reintegrate/restore offenders back into the society
✓ To avoid paralysing the economy (i.e. to allow offenders to take part in own
economic activities, pay taxes and taking care of their families)
The use of non-custodial measures at the pre-trial stage should also be seen in the
light of the basic rule reflected in Rule 6.1, according to which “pre-trial detention
shall be used as a means of last resort in criminal proceedings, with due regard for
160
the investigation of the alleged offence and for the protection of society and the
victim.” Rule 6.2 promotes the earliest possible use of alternatives to pre-trial
detention.
Discharge can either be absolute or conditional. Read; Section of 38(1) & (3), and
38A(1) of the Penal Code, rule 4(1) under the 3rd Schedule to the Magistrate Courts
Act, and sections 98(b), 326, and 230 of the Criminal Procedure Act.
Diversion can be defined as the channelling of prima facie cases from the formal
criminal justice system on certain conditions to extra-judicial programs, at the
discretion of the prosecution.
The number of complaints received by the police and prosecutors would overload
the criminal justice system if they were all prosecuted in the courts. The police,
prosecutors, and courts have an array of options available to them to divert
offenders from prosecution. These are to be found in the penal statutes, and may
include: Absolute or conditional discharge, Verbal sanctions, Arbitrated
settlement, Restitution to the victim, or a compensation order, Community service
order, Victim-offender mediation, Family group conference, restorative
process/justice.
Restorative Justice means any process in which the victim and the offender, and,
where appropriate, any other individuals or community members affected by a
crime, participate together actively in the resolution of matters arising from the
crime, generally with the help of a facilitator. Restorative processes may include
mediation, conciliation, conferencing and sentencing circles. The restorative
outcome means an agreement reached as a result of a restorative process.
Restorative outcomes include responses and programs such as reparation,
restitution and community service, aimed at meeting the individual and collective
needs and responsibilities of the parties and achieving the reintegration of the
victim and the offender.
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❖ Plea bargaining
Comes into play once a case has been lodged, and it does not exist in statutory
form. The underlying idea is to dispose of criminal cases without resorting to trials.
Plea bargaining permits the prosecuting authority and an accused or his/her
lawyer to enter into a plea and sentence agreement. The court may not participate
in the negotiations but is required to approve the plea and sentence, before
making it an order of the court.
As to the sentencing stage, the Tokyo Rules provide for a range of non-custodial
measures which the judicial authorities may use. Although in doing so, they
should take into consideration; the rehabilitative needs of the offender, the
protection of society and the interests of the victim, who should be consulted
whenever appropriate (Rules 8.1 and 8.2).
According to Rule 8.2 (a) to (m), the sentencing authorities may dispose of cases in
the following ways: verbal sanctions (such as admonition, reprimand and
warning); conditional discharge; status penalties; economic sanctions and
monetary penalties (such as fines and day-fines); confiscation/expropriation order;
restitution to the victim (compensation order); suspended or deferred sentence;
probation and judicial supervision; a community service order; referral to an
attendance centre; house arrest; any other mode of non-institutional treatment; or,
some combination of these measures.
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Rule 9.2 enumerates the following post-sentencing dispositions: i.e. furlough and
half-way houses; work or education release; various forms of parole; remission;
pardon/parole/prerogative of mercy/amnesty – President – Tanzania.
Sanctions that do not require supervision include: (a) reparation (restitution), where
the offender directly compensates his/her victim by means of either monetary
payment or unpaid services rendered; (b)confiscation of property derived from or
used in the commission of an offence; (c)suspension of driving license; and (d)
fines (penalties).
Guiding questions:
Does the system effectively contribute to a reduction of the prison population?
Does it enable the offence-related needs of the offender to be met? Is it cost-
effective? Does it contribute to the reduction of crime in the community? Are
there legal safeguards in place protecting the human rights of the offender?
163
(i) Administration
164
department was established in July 2008 following the changes in the organisation
structure of the ministry of home affairs. The department is responsible for
managing the implementation of non-custodial sentences across Mainland
Tanzania. For easy functioning, the department (at the Headquarter) is divided
into two main sections, namely; the probation services section and aftercare
services section. Below the Headquarter there are regional and district probation
offices responsible to the director and regional offices respectively. The
department is headed by the director who is assisted by two assistant directors.
The basic functions of the department and the two sections are: to monitor and
supervise probationers; to monitor and supervise the implementation of
community services program; to monitor and supervise parolees as part of
aftercare services; to monitor and supervise offenders under the extramural penal
employment scheme; and to build capacity of local government authorities (LGAs)
in the management and implementation of probation and community services.
• The Judiciary
The obligation of the Judiciary in the implementation of non-custodial sentences
does not end up with imposing punishment, but also to supervise community
service committees. The fact that a judge of the High Court, resident magistrate
in-charge and district magistrate in-charge in their respective jurisdictions are
chairing the national, regional and district committees respectively is evidence
that the court has a special role in the implementation of non-custodial sentences
in our country.
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• The Prisons
Prisons Department has different obligations in implementing non-custodial
sentences. Section 52 of the Prisons Act, No.34 of 1967 (RE: 2002), gives legal
power to the officer in-charge of the prison to recommend inmates who are
serving sentences not exceeding 3 years to serve under community service
program. The Department also provides members to different community service
committees at national, regional and district levels and receives back offenders
who have violated conditions of the court orders.
• The Police
Police force has a significant role in the implementation of non-custodial
sentences in the country; it provides members to the community service
committees at national, regional and district levels; arrests offenders who have
violated the conditions of the community services orders and provides relevant
information of offenders to probation officers when conducting social
investigations.
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(a) Probation
167
• Application
Before the person is ordered to serve under Probation, the Court considers the
character of the accused, mental condition of the offender, the nature of the
offence, antecedents, age, home surroundings, health or any extenuating
circumstances in which the offence was committed. With regards to the stated
factors, the Court may then do the following; Convict the offender and make a
Probation Order; or without proceeding to conviction, make a Probation Order.
The Probation Order has effect for a period of not less than one year and not more
than three years from the date of the order.
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• Advantages of Probation
As a punishment, it offers the opportunity for rehabilitation and reintegration into
the community without the social and family disruption caused by imprisonment.
This is particularly true of juvenile supervision. Probation is an effective and cost-
effective sanction which allows savings by the correctional administration. In all
countries supervising an offender in the community costs far less than
imprisonment. In some civil law systems Probation has been included in the
criminal legislation as a truly alternative sanction, i.e. a defendant is sentenced to a
probation term. In other civil law countries, a suspended prison sentence with a
condition, including supervision, constitutes the legal framework for probation. In
many civil law countries, a prison sentence of between 18 months and 2 years is
automatically suspended with no conditions in the case of a first conviction. In
some countries, the charge may be suspended to divert a first-time offender from
the whole court process.
Definition of terms:
A split sentence means that, while the defendant is ordered to spend mandatory
time in jail, he or she isn’t incarcerated for the entire sentence. Rather, the court
ordinarily suspends part of the sentence and places the defendant on probation for
the remaining time. This has the effect of the defendant serving a relatively short
period of time in jail, often (but not always) between 30 and 90 days with the rest
of his or her sentence spent on probation.
169
The public institutions that provide placements for offenders include central
government and local government institutions, community based organisations
and non-governmental organisations performing work of public nature.
170
professional services in the community and for the benefit of the community; and
other manual works as may be approved from time to time.
(c) Parole
In 1994, Mainland Tanzania introduced the parole system as an additional non-
custodial sentence available under the law. The relevant Act became operative in
1998 through GN. No. 783/1997. A year later the national parole board was
inaugurated. The system was deemed necessary to deal with the plight of long-
term prisoners who deserved an urgent attention for the sake of prison security,
correctional administration and community safety.
• Definition
The term Parole is interpreted differently in different countries. It is a period of
time following release from prison, when the offender is given help to reintegrate
into society. During this time the offender may be supervised by a probation or
parole officer. In a nutshell, parole is the provisional release of a prisoner who
agrees to certain conditions prior to the completion of the maximum sentence
period.
• Application
There are often conditions attached to Parole imposed by a governing body,
usually a Parole Board or Parole Judge. Breaches of any of these conditions can
lead to an immediate recall to prison. If an offender re-offends while on Parole he
may be required to serve the remainder of his existing sentence in prison in
addition to any other sanction imposed by the court. In civil law countries, an
early release from prison can be granted in accordance with certain conditions or
with no conditions, usually by a decision of a correctional magistrate. (Read:the
Prisons Act, Cap.58 (Sections 52 & 72; and the Parole Boards Act, Cap.400).
The parole and extramural penal labour programs in Mainland Tanzania are
currently being undertaken by the prisons department until after necessary
171
amendments are done to the Prisons and Parole Boards Acts to mandate probation
officers to supervise parolees and extramural prisoners.
• Rehabilitation
• Restorative justice
Probation Officers also practice restorative justice by bringing together conflicting
parties for reconciliation (the offender, victim of crime and the community).
Reconciliation helps to restore trust and strengthen relationships among the
parties which in turn facilitate smooth implementation of non-custodial court
orders.
• Supervision
Offenders are closely supervised both at their respective work placements and at
their places of residence. The supervision involves regular visits to enforce the
implementation of the court orders. In addition, the supervision process involves
several stakeholders such as offender’s sureties and relatives, victims of the crime,
172
According to Rule 1.1, the two fundamental purposes of the Tokyo Rules are to
provide:
173
• The right to review: Rule 3.5 stipulates that “decisions on the imposition of non-
custodial measures shall be subject to review by a judicial or other competent
independent authority, upon application by the offender”. This right of appeal
is an additional safeguard against arbitrary decisions.
174
(c) The criteria for resorting to non-custodial measures and the need for
discretion
A second important legal safeguard in the application of non-custodial measures is
that, as stipulated in Rule 3.2, the selection of a non-custodial measure shall be
based on an assessment of established criteria in respect of the nature and gravity
of the offence; the personality and background of the offender; the purposes of
sentencing; and the rights of victims.
175
• The penal laws do not have a comprehensive list of diversion measures towards
offenders. The most common forms of non-custodial measures are probation,
community service and parole, while non-custodial pre-trial measures are
totally ignored.
• The minimum sentences law applies minimum terms of imprisonment carte
branche,thus preclude considerations being given to probation, conditional
discharge, suspended sentences and entering into Recognisance.
• The Parole Boards Act exclude prisoners who are serving short-term
imprisonment, hence limit the scope of its beneficiary.
176
177
popular belief they are being used to sanction individuals who should be punished
less rather than more.
Case Laws:
DPP v. Eston Selemani [1994] TLR 9; Abdul Alli Issa v. R. [1989] TLR 16; Leo s/o
Pigangoma v. R. (1967) HCD No. 131; Leshaion s/o Ncosha v. R. (1968) HCD No. 62;
Michael R. Kabongo v. R. [1989] TLR 31; Moshua s/o Mduna v. R. (1968) HCD No.
227; Mukusi & Another v. R. (1972) HCD No. 121; Ochora Ongira v. R. [1983] TLR
74; R. v. Kisiwani Sisal Estate (1970) HCD No. 162 ; R. v. Alli s/o Said (1967) HCD
No. 364; R. v. Mabula Masota Charles (1968) HCD No. 238; R. v. Mwukwa (1972)
HCD No. 32; R. v. Patrice Matata (1967) HCD No. 413; R. v. Muhidin Twalib [1989]
TLR 8; R. v. Jafari Musa (1967) HCD No. 299; R. v. Ngulila Mwakanyemba (1968)
HCD No. 314; R. v. Kaserikali Bin Isabosi (1921—1952) 1 TLR (R) 100; and Selemani
Misuri v. R. 1973 L.R.T No. 5.
References
Frank, S. (2010) The Applicability of Parole System in Tanzania: Challenges and Way
Forward. Advanced paper submitted in partial fulfilment of the requirement for
Masters of laws (LL.M.) Degree of the University of Dar es Salaam.
Marcus, D., Ed. (2004) Alternatives to Custodial Sentencing: A Manual for the
Implementation of Community Service Orders in the O.E.C.S. CDARI, Castries, Saint
Lucia.
OHCHR & IBA (2002) Human Rights in the Administration of Justice: A Manual on
Human Rights for Judges, Prosecutors and Lawyers. Geneva.
Robins, S. (2009) Improving Africa’s Prisons Prison policy in Sierra Leone, Tanzania
and Zambia. ISS Policy Brief Nr 09, September 2009.
Sarkin, J. (ed) (2008) Human Rights in African Prisons. HSRC Press, Cape Town.
178
Section 2 of the Economic and Organised Crime Control Act, 1984 (in Tanzania)
defines organised crime as any offence or non-criminal culpable conduct which is
committed in combination or from whose nature, a presumption may be raised
93
This phrase emerged first in the United States in the 1920s.
179
BOSS
Counselor
Underboss
Soldiers Soldiers
Soldiers
Soldiers
Associates
180
Organised crime groups are usually hierarchical, in other words, they have leaders
as well as low-level operatives, which means that when you arrest one member of
the organisation, the organisation can replace that person and continue its
“business” of crime. This structure is what makes organised crime so difficult to
defeat.
181
Criminal activities include (white colour and blue colour v/s property crimes and
violent crimes):94
Added to this variety are ‘enabling activities’, i.e. corruption of officials; money-
laundering; violence and intimidation. Organised criminals are dependent upon
and involved with personnel in the licit economic and political spheres, such as
customs officials, police officers, bankers, politicians, business people and others.
94
White-collar crime was first coined by Sutherland in 1949 who defined it as the kind of crime
committed by ‘a person of high status in the course of his occupation, e.g. tax fraud, false claims
and accounting (Sandra Walklate, Criminology: The Basics, 119:2005). While Blue-colour crime is
the form of crime committed by someone with low status, whose job involves manual labour. This
kind of definitions, by implication, focuses attention on the status and respectability of the offender
as much as the illegality of the offence. On the other hand, law enforcement agencies categorises
crimes into two groups,i.e.,violent crimes (murder, rape, assault, etc.), and property crimes (theft,
embezzlement, fraud, burglary, arson, etc.).
182
Other aspects;
95
Mafia/Sicilian Mob: Historically, Italy was frequently the subject of invasions by outsiders. Secret
societies formed among Italians to defend families and communities against the outsiders. These
societies eventually became known as the Mafia. They turned into major organized crime entities
in the early 20thcentury. Around the same time, a massive number of Italians, including mafiosa,
immigrated to the United States (where it’s known as La Cosa Nostra, i.e. “our thing”) and other
parts of the world.
183
• Organized crime groups are traditionally set up along ethnic, tribal or racial
lines, in large part, because members of the same ethnic group are more likely
to know and trust one another. For example, infiltrating a Vietnamese gang can
be almost impossible for law enforcement because of language barrier and
because members of the Vietnamese community tend to know everyone in
their neighbourhood.
Others includes, Russian organized crime/Eurasian organized crime (it includes
crime groups from Ukraine, Armenia, and other parts of the former Soviet Union);
Chinese Triad groups; Chinese Tongs; the Mexican Mafia, or La Eme, La Nuestra
Familia (our family); Black Guerrilla Family, Nazi Lowriders; Nigerian Organised
Crime, etc.
• Involves high secrecy, willingness to commit any act for the group and intent to
protect the group, i.e. follow the strict code of silence.
• Have a code of ethics and conduct governed by explicit rules.
184
96
Sophisticated organised criminal groups
185
Section 2 the Drugs and Prevention of Illicit Traffic in Drugs Act, 1996, Cap 95
(repealed and replaced in 2015)97 refers to the term “drug” as narcotic drugs and
psychotropic substances. It goes further to explain illicit traffic in narcotic and
psychotropic substance as an illegal act which involves cultivation, production,
manufacture, possession, sale, purchase, transportation, warehousing,
concealment, use or consumption, import or export into/from Tanzania or
transhipment, financing, abetting, letting out premises or harbouring persons
dealing in narcotic drugs or psychotropic substances.
Section 12 and 27 of Cap. 95, and section 148(5)(iii) of the Criminal Procedure Act
(Cap. 20, as amended by Act, No. 2 of 2007) list narcotic drugs or psychotropic
substances as opium poppy, coca plants, coca leaves, cannabis, heroin, cocaine,
mandrax, khat, mirungi, and Indian hemp. (**See the 1st schedule to Cap. 95 for a
comprehensive list).
ii) People/alien/immigrant smuggling
In Tanzania, there is no clear definition of alien smuggling. However, there are
several provisions which prohibit certain categories of people to enter Tanzania,
and it bars alien to enter Tanzania without a passport, permit or pass [See: sections
97
See, section 2 of the Drug Control and Enforcement Act, 2015 (Cap. 95); and the Drug
Control and Enforcement (General) Regulations, GN. 173/2016.
186
10-15 of the Immigration Act (Cap. 45) mention instances which amount to
smuggling]. Implicitly, one may say section 15 (supra) provides for immigrant
smuggling.
• Crossing borders without complying with the necessary requirements for legal
entry into the receiving state.
• Crossing borders by using fraudulent/forged/fake/counterfeit travel or identity
documents (permit, passport, pass).
• Clandestine/secret entry into the receiving state.
iii) Money laundering
Section 71(3)(a)(b) of the Proceeds of Crime Act (1991) provides that the offence of
money laundering is committed where a person receives, possesses, conceals,
disposes of, brings into or removes from the United Republic, any money or other
property which is the proceeds of crime, while he knows or ought to know or to
have known that the money or other property is or was derived or realised, directly
or indirectly, from some form of unlawful activity.
The above position has been refined (though not repealed) by section 3 of Anti-
Money Laundering Act (2006) which define money laundering as an engagement of
a person(s), direct or indirectly in conversion, transfer, concealment, disguising,
use or acquisition of money or property known to be of illicit origin and in which
such engagement intends to avoid legal consequences of such action.
187
On the other hand, the INTERPOL conceptualise money laundering as any act or
attempted act to conceal or disguise the identity of illegally obtained proceeds (of
crime) so that they appear to have originated from the legitimate source. The
laundered money or property may be deposited in the offshore bank (especially
Swiss banks), structured thus deposited in several accounts, transferring cash to
shell companies and trust, payment of black salaries and sometimes purchasing
real estate with illegal money.
Predicate offence means any offence as a result of which proceeds have been
generated that may become the subject of money laundering.
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The case of B.L. Madoff, and Enron’s case in the US; EPA & Tegeta ESCROW
Scandals in Tanzania.
The First Schedule (Economic offences) to the Economic and Organised Crime
Control Act, Cap. 200.
The Bank of Tanzania Act, 2006
Chapters XIX and XXXIII of the Penal Code, Cap. 16.
The Banking and Financial Institutions Act, 2006.
v) Counterfeit currency
Chapter XXXVIII of the Penal Code (Cap. 16), especially section 353(see also
sections 348 and 352A) does not define ‘counterfeit currency’ but ‘counterfeit coin’
which entails coin not genuine but resembling or apparently intended to resemble
or pass for genuine coin; and includes genuine coin prepared or altered so as to
pass for coin of a higher denomination. Alternatively, counterfeiting currency is a
form of financial fraud or forgery that involves the production of currencies
(banknotes or coins) without being authorised by the central bank of a respective
country. The counterfeited money resembles official currency and may be
confused for genuine currency.
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(a) Use of force: Involves kidnapping young girls and women, thus confining them
in secretly run brothels or forcing them to work in casinos, night clubs, streets
or paramilitary/insurgent camps.
(b) Deceit: women/girls are smuggled into a foreign country or lured to move into
big cities for a promise of good life and better jobs. Afterwards, traffickers
confiscate their travel documents and sell them in brothels or force them into
prostitution/sex workers.
• Illegal prostitution covers a wide range of sexual-related offences, such as
child prostitution, child pornography, child sex tourism, etc.
Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography (2002); Convention for the
Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of
Others (1949/1951); Protocol To Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime (2000); Sections 3 and 4(1)(a)-
(g) of the Anti-Trafficking in Persons Act (2008); and Sections 138B(1)(a)-(f),
139(1)(a)-(f) and 143(1)(2) of the Penal Code (Cap. 16).
The gang ‘Murder Inc., (US) committed hundreds of murders in the 1920s – 1940s
on behalf of the national crime syndicate.
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Briefly, this is a crime which involves counterfeiting and pirating of goods such as
digital media (software and games), fashion wears, medicine, electrical items,
automotive parts, writings, movies, music, and etc.
Sections 3-6, and 10 (forged Trade Marks) of the Merchandise Marks Act, Cap. 85.
Sections 367, and 368 of the Penal Code, Cap. 16.
The Copyright and Neighbouring Rights Act, 1999
The Patent Act, 1987
The Trade and Service Marks Act, 1986
The term piracy is defined under Article 101(a)(b) of the UN Convention on the
Law of the Sea (1982) as; first, any illegal acts of violence, detention or depredation
committed for private ends by the crew or the passengers of a private ship or a
private aircraft against another ship or aircraft, or against persons or property on
board such ship or aircraft in high seas; or against a ship, aircraft, persons or
property in a place outside the jurisdiction of any State. Second, any act of
voluntary participation in the operation of a ship or of an aircraft with knowledge
of facts making it a pirate ship or aircraft.
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The above position is reiterated under sections 6 and 66 of the Penal Code (Cap.
16) as amended by section 19 of the Written Laws (Miscellaneous Amendments)
Act, No. 2 of 2010. A vivid example of organized pirate group is Al Shabaab which
attack vessels in the Indian Ocean (especially, the Somali Basin and the Gulf of
Aden).
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essentially envisages trading in human organs also. The said provision provides,
inter alia, that trafficking for organs occurs where a person recruits, transport,
transfers, harbours or receive a person using threats, force, coercion, abduction,
fraud, deception, or abuse of authority or a position of vulnerability for the
purpose of removing that person organ(s). The above position is reiterated under
Section 4(1)(g)(i) of the Anti-Trafficking in Persons Act (2008).
Unfortunately, the above definition is not wider enough to cover all circumstances
within which organ trafficking occurs. Technically, the offence of organ trafficking
may be committed in one or in combination of the following ways;
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• Petty corruption (small scale): a form of corruption used in all social delivery
services; e.g. bribery, kickbacks, favouritism/Cronyism/Nepotism and etc.
• Grand corruption (medium scale): a form of corruption found in big
government contracts such as construction industry, tendering and
procurement.
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Section 188 of the Environmental Management Act, 2004; Rule 14 (First Schedule)
of the Economic and Organised Crime Control Act, Cap. 200; the Penal Code (Cap.
16); Wildlife Conservation Act, 2009; Fisheries Act, Cap. 279; Marine Parks and
Reserves Act, Cap. 146; Water Resources Management Act, 2009; Wildlife Policy,
2007; Environmental policy, 1997; Convention on International Trade in
Endangered Species of Flora and Fauna, 1973; Convention on Biological Diversity,
1992; Kyoto and Cartagena Protocol respectively; Convention on the Protection of
the Environment through Criminal Law, 1998 (Council of Europe); and Convention
Concerning the Protection of the World Cultural and Natural Heritage, 1972.
xiv) Cybercrimes
The INTERPOL refer to cybercrime as any criminal activity involving computers
and networks i.e. criminal trespass into remote systems. It includes attacks against
computer data and systems, identity theft, internet auction fraud, deployment of
viruses, botnets, e-mail scams (phishing) internet terrorism, online drug sell,
online gambling, etc. Tanzania enacted the Cybercrimes Act in 2015 (Act No. 14 of
2015).
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Forms of cybercrimes:
Sections 28 and 29 of The Pharmaceutical and Poisons Act, Cap. 219; Sections 182
and 183 of the Penal Code, Cap. 16; and the Pharmacy Act, Cap. 311 (2002).
• There is no specific international legal instrument on Pharmaceutical crime.
xvi) Terrorism
Section 4(2)-(4) of the Prevention of Terrorism Act (2002) define terrorism to
include, inter alia, violent acts which tend to damage, intimidate the population,
kidnap individuals, disturb services. Understandably, one may refer to terrorism as
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any violent act/s which intends to create fear (terror) perpetuated for ideological
reasons and deliberately target or disregard civilians or non-combatants. E.g.,
Political terrorism (maji maji and mau mau rebels), Social revolutionary terrorism,
Nationalist terrorism (ANC during Boer regime in South Africa or PLO in
Palestine), Religious extremist terrorism (Boko haram, Al Qaeda, Al Shabaab, etc.),
State-sponsored terrorism (Taliban against the Soviet Union, Janjaweed in Sudan),
Criminal terrorism, Right-wing terrorism, Left-wing terrorism and etc.
Arms and Ammunition Act, Cap. 223; Armaments Control Act, Cap. 246;
Explosives Act, Cap. 45; O.A.S Convention on Illicit Arms Trafficking, 1997;
Bamako on Illicit Proliferation, Circulation and trafficking of Small Arms and Light
Weapons, 2000; The Protocol against the Illicit manufacturing of and Trafficking
of Firearms, their Parts, Components and Ammunition, UNGA (2001); Protocol on
the Control of Firearms, Ammunition and other Related Materials in the SADC
Region, 2004; and Nairobi Declaration on Proliferation of Illicit Arms (Great Lake
Region and Horn of Africa), 2000.
• Ethnic succession theory: each ethnic group is faced with prejudicial and
discriminatory attitudes that deny them legitimate means to success, therefore
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organized crime affords those who commit it the rewards for relatively little
risk.
• Failing state theory.
• Poverty (strain theory).
• Seek for Power and Influence.
• Religious beliefs.
• Family background.
• Rational choice.
• Social disorganisation.
• Labelling theory.
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The government can do so in the following two circumstances: (1) When the assets are proceeds
of criminal conduct, for example, law enforcement can seize cash made from a drug deal or a car
purchased with cash from a drug deal; and (2) When the assets are an instrumentality of a crime,
i.e. the assets are an instrument used during the commission of the crime.
200
99
A wiretap is the tapping of a telephone or other device to get information secretly; it is considered
the most intrusive type of search.
100
A task force is a group of police officers from different agencies who join to target a particular
type of crime. Task forces allow participating officer to share intelligence with the other officers
from different agencies. Also, the task force’s members develop specialised investigative skills and
knowledge for the type of crime they’re focusing on.
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To go undercover, a police officer pretends to be a criminal and seeks to obtain evidence from the
organisation without the organisation knowing it is being investigated.
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Conspiracy is an agreement between two or more people to commit a crime. In criminal law,
conspiracy to commit a crime is a crime itself.
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Question
Do you subscribe to the views that [the] act of pooling ‘house-girls’ from upcountry
into big cities in Tanzania, somehow, is a disguised form of human trafficking? If
your response is ‘yes’ or ‘No’, what should be the police’s approach to detecting
and combating children trafficking in Tanzania?
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