POST-INDEPENDENCE INNOVATIONS IN SENTENCING AND TREATMENT OF OFFENDERS IN EAST AFRICA

Jaba Shadrack, UDSM – School of Law, Criminology and Penology.

jaba@udsm.ac.tz or jabashadrack@gmail.com

• Introduction:
  
• Definition/s
  
• Post-colonial penal measures in sentencing and treatment of offenders in East Africa
  
• Justification of post-colonial harsh penal approach to criminals
  
• Criticism of Post-colonial penal approaches v/s the Judiciary and Criminality
  
• Relaxation of penal measures in East Africa (late 1980s to present): Reasons
  

Introduction:

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 curb criminality. During colonial time, prison (and similar facility) was, in most cases, place for individuals who resisted (actively or passively) against 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. At the eve of independence, people in these newly independent East African entities had harboured the same/similar views or sentiments over imprisoned fellows and of course, corrective facilities and penal laws retained by independent governments. However, on the part of newly governments, the retention of colonial superstructure was a necessary evil towards national building. Therefore, the obvious challenges to post-colonial governments in East Africa was how to change people's mindset 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.

Definition/s:

Let us now elucidate two major terms which contextualise this topic 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 Law Dictionary, 9^th Ed.). It is a stage that follows after 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, impact of a crime, convict's socio-economic status, and remorse or regret expressed by the convict. Sentencing may either be determinate/mandatory/fixed (i.e. a statutorily specified penalty that automatically follows a conviction for the offence, minimum mandatory term); or indeterminate/discretionary/indefinite (i.e. left up to the court, with few or very flexible guidelines). A sentence may involve incarceration, restitution/compensation, probation, community services, suspended sentence, fines and etc.

On the other hand, treatment (of offender) entails a collection of reformative measures adopted to deal with a sentenced person, e.g. rehabilitation, vocational training, counselling, educational programmes (for juveniles), adult basic education, and etc.

Post-colonial penal measures/innovations in sentencing and treatment of offenders in East Africa:

The following are some of the penal measures/innovations laid down by post-colonial governments in East Africa to curb crimes;

• Introduction of mandatory minimum sentences for certain crime (reform of penal sanctions)

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 curb appropriation of funds by public and co-operative officials. The Act of 1963 was followed by the Arusha Declaration (1967) which forbade public leaders to have more than one source of income and for their wives to hold property.

• Excessive use of corporal punishment

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).

• Over criminalization and introduction of new categories of deviant behaviour

Law makers widened the list of offences falling under criminal law, and introduced other offences on economic sabotage and 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 unmarried woman, practicing capitalism and etc.

• Militarization of the police and harassment of judicial personnel

The post-colonial police forces in East African states were structured and used as right-arms of the ruling class to terrorize 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 releases 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.

• Resettlement of offenders

It was an innovation by the government of Tanzania to deal with the problem of recidivism (habitual offenders/career criminals). The aim of these centres was to help habitual offenders to become self-reliant, ultimately to be reintegrated into the society as good law-abiding citizens. The Resettlement of Offenders Act, Nos. 8 of 1969 and 12 of 1998 (Cap. 71) allow the minister (home affairs) to make order to resettle certain offender (especially, habitual offenders). Good examples of resettlement centres in 1970s were situated at Wami and Rungwe respectively.

• Detention individuals who disturb public order (by the president)

The Preventive Detention Act, (RE: 2002, Cap. 361), S. 2. The law 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. Refer, A.G. v. Lesinoi Ndeinai [1980] T.L.R. 214.

• Deportation of individuals who impede development plan or creates civil disorder

See, the Deportation Act (Cap. 380, RE: 2002), S. 2(2).

• Introduction of people's courts/Reform of the Judiciary (in Zanzibar)

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, the people's district courts which replaced the colonial Magistrate Courts. People's Courts used Swahili language in their proceedings and they were manned by non-lawyers/ lay persons. Therefore, no advocates were allowed to appear, except ones 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.

NB: 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.

• Replacing prisons with development or reform institutions/ re-education centres/ state schools/ rehabilitation centres for criminals (in Zanzibar):

Under the Offenders 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.

Note: upon release from a reform institution, one has:

• To sign an oath agreeing to suffer death penalty if is convicted again of the same or a similar offence.
• After five year 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 other citizen, or allowed to start his own trade.

The decree covered all offenders, except those convicted for 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 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.

• Emergence of vigilant groups under the sanction of the state with quasi-police and quasi-judicial powers i.e. Sungusungu.

These groups employ/employed self-help sanctions and traditional penalties against criminals, especially cattle rustlers. Initially, such community watch groups operated without the law; however in 1973 the government recognised them by enacting the Peoples Militia Act (RE: 2002, Cap. 111)

• Lengthening prison sentences for sexual (related) offences (current dimensions)

Refer: the SOSPA, Act No. 4 of 1998.

• Abolition of custodial sentencing of children (current dimensions)

Refer: Law of the Child Act, No. 21 of 2009.

Justification of post-colonial harsh penal approaches to criminality:

The rationale of introducing harsh penal laws across East African states were as follows;

• Post-colonial states were based on a very unstable foundation (political instability and power struggle), thus the use of coercive law to undo legacy of colonial class-structure, also to maintain law and order. (Use of penal law as a unifying factor). It was believed that some crimes were inimical to nation-building and economic development.
• Use of penal law to enhance production or pace of development to avoid a tendency of few individuals to betray collective efforts (penal law as an instrument of socio-economic policy), e.g. vagrancy and loitering provision. Use of penal law by the ruling class in transforming the pre-capitalist or socialist social structure into a new notion of production. E.g. abolition of customary criminal law, and chiefdom.
• It was an idealistic determinations to cleanse national life i.e. impart sense of solidarity). It was argued that the law must reflect a socialist content, thus a need to punish severely offences against society, common or public property (i.e. protection of property interest).
• To deter people so as to think seriously before committing crimes.
• Presence of many expatriates (white judges) or West-educated court officials in the judiciary, thus adopted mandatory minimum sentence to control or tame them so as not to frustrate/undermine governments' development policies and plans.
• In Kenya, death penalty was imposed on armed robbery due to the increase of attack on properties owned by the remaining white settlers and of course the widening economic gap between the rich and the poor. Many people who fought gorilla war to demand political independence felt betrayed by post-colonial government thus engaged in violent offences.
• Long sentences were justified on the ground of rehabilitation of offenders. Again, this was to enable prison's personnel to train prisoners in different trades so as to help them to earn a living when they were released; to reform the character of convicts through education and political seminars. For those reasons, in mainland Tanzania, prisons were considered as schools for socialism and self-reliance, whilst in Zanzibar were considered as re-education centres. E.g. in Tanzania mainland, prisons' farms were expanded to meet that end.
• Increase in number of cases of theft (appropriation of money) from public funds, political parties, trade unions and co-operative societies.
• Minimum sentence law was intended to create uniformity (consistency or certainty) and sense of justice in sentencing/punishment. Thus, this was seen as a way to circumvent leniency in Courts.
  
    Criticism of post-colonial penal approaches v/s the Judiciary and Criminality:

Though intentions for introducing harsh penal law by post-colonial East African states were 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 proved 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 criticized in Sir Alexanders Paterson's words that, "you cannot train men for freedom in conditions of captivity". On these prophetic words by Patersons; 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 mere disguised forms of indeterminate punishments.
  
  Relaxation of penal measures in East Africa (late 1980s to present): Reasons

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 and 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;

• Introduction of the Bill of Rights which rendered some laws unconstitutional, e.g. deportation and detention laws (refer, Nyalali commission's findings on the 40⁺ laws).
• Judicial activism, e.g.
  Mwalusanya and Lugakingira's judicial decisions on draconian laws.
• Ratification of International Human rights instruments (globalization and international standards).
• Decline of Marxist-criminology/thinking and acceptance of liberal democracy (pressure from developed nations to reform).

REFERENCES (AND QUESTIONS)

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.

Hatchard, J. & Coldham, S. (1996) Commonwealth Africa, Chap. 7. In Hodgkinson & Rutherford (eds.) Capital Punishment: Global Issues & Prospects, Waterside Press, Winchester (Criminal Policy Series, Vol. II), p. 155 (see, p. 177).

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.

Mascharka, C. (2001) Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences. Florida State University Law Review, Vol. 28:935.

Maina, C.P. & R.M. Bierwagen (1989) Administration of Justice in Tanzania and Zanzibar: A Comparison of Two Judicial Systems in One Country. Cambridge University Press, The International and Comparative Law Quarterly, Vol. 38:2, pp. 395-412 (April).

Maina, C.P. (1997) Incarcerating the Innocent: Preventive Detention in Tanzania. The Johns Hopkins University Press, Human Rights Quarterly, Vol. 19, No. 1 (Feb., 1997), pp. 113-135.

Otwin Marenin (1982) Policing African States: Toward a Critique. Comparative Politics, Vol. 14, No. 4 (Jul., 1982), pp. 379-396.
Read (1965) Minimum Sentences in Tanzania. J.A.L. 20.

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.

Tanner, R.E.S (1972) Penal Practice in Africa - Some Restrictions on the Possibility of Reform.

Cambridge University Press, The Journal of Modern African Studies, Vol. 10, No. 3 (Oct., 1972), pp. 447-458.

Williams, D. (1974) The Minimum Sentences Act, 1972, of Tanzania. Cambridge University Press, Journal of African Law, Vol. 18, No. 1, Criminal Law and Criminology (Spring, 1974).
Williams, D. (1980) The Role of Prisons in Tanzania: An Historical Perspective. Crime and Social Justice, No. 13, Focus on Prisons (Summer 1980), pp. 27-38.

 

 

TIMED ESSAY - QUESTIONS

 

• What is juvenile justice system? Why juveniles are normally not subjected to the mainstream justice system?

 

• 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 in affirmative, what should be the police approach to detect and eradicate trafficking in children in Tanzania?

 

• "You cannot train men for freedom in conditions of captivity", per Sir Alexanders Paterson. Critically discuss the above statement in the light of re-education centres (Development Institutes) in Zanzibar and rehabilitative measures in post-colonial Mainland Tanzania's prisons.