"Fiat Justitia Ruat Caelum"

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


Jaba Shadrack, UDSM – School of Law, Criminology and Penology.
  • 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, 9th 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.

THE CONSTITUTIONAL HISTORY: DEVELOPMENT OF CONSTITUTION IN SOCIO-ECONOMIC PERSPECTIVE


Jaba Shadrack, Department of Public Law, University of Dar es Salaam – School of Law

  • The historical development of the constitution/constitution in historical context.

INTRODUCTION

Etymologically, the term constitution is a Latin word which means an important law (constitutiones principis) promulgated by the Roman emperor, i.e. the edicta, mandata, decrera and rescripta. The constitution is a body or a system or a collection of important rules (above other norms or customs) which govern socio-economic and political organization of a society. In the light of this conception of the constitution, it means that the constitution is as older as human societies. Depending on the literacy level and development of a society, early constitutions were either scribed in writing (legal codes) or largely extracted from or referred to in traditions and customs (norms) of the society. Now, let us look at the earliest known constitution of humankind;

PART ONE:

THE GENTILE CONSTITUTION

The Gentile constitution, also known as a 'the tribal constitution' is a form of constitutional organization of human society which existed in early stages of human development (prehistoric stages of culture). Gentile constitution existed in the world before renaissance or modern civilization. Engels in his book "The Origin of the Family, Private Property and the State" divide gentile societies' development into three stages i.e. Savagery, Baribarism and Civilization. Savagery was a period in which man's appropriation of products in their natural state predominates; the products of human art are chiefly instruments which assist this appropriation. Societies at this stage were hunters (used arrow and bow), cannibals, gatherers, and developed speech or language. Whilst, barbarism was an epoch during which man learns to breed domestic animals and to practice agriculture, and acquires methods of increasing the supply of natural products by human activity. This stage was marked by the introduction of pottery, agriculture, iron smelting, use of bricks and stone for building. Lastly, civilization was a time in which man learnt a more advanced application of work to the products of nature, the period of industry proper and of art. It was characterized by invention of alphabet and use of written records. (p. 93).

It is believed that Gentile Constitution arose during 'Primitive Communalism', at this epoch, human societies were;
  • In transition to 'early Iron Age' from 'late Stone Age',
  • Socio-economic life of the society was still at its primitive rudimentary level
  • Lived in communal and egalitarian societies
  • Communal ownership of means of production
  • Participated in the same totem

    ** A totem is a natural object or animal believed by a particular society to have spiritual significance and adopted by it as an emblem.

  • Had no written codes of law, social rules were characterized by customs and traditions
  • Had no centralised political groupings
**The term, 'Gentile' (not Jewish) relates or indicates a nation or clan (same clan, race, family) especially, gens. 'Gens' means a group of families in ancient Rome who shared a name and claimed a common origin/ a group of people who are related through their male ancestors.

Social determinant of the Gentile Constitution: The Family.

The family

It was the basic social unit around which labour was organised.

**Engels notes further that the word "family" (familia) is from Famulus meaning domestic slave. In other words, a man's family was the total number of slaves he owned; they were his tools of production. The man also had the right of life and death over his family, including his wife and children.

According to Morgan, there were four Stages of family life, i.e. consanguine family, punaluan family (the two emerged in savagery), pairing family (emerged in baribarism) and monogamous family (emerged in civilization). In savage society, social relation was promiscuous i.e. no restriction or prohibitions on sexual intercourse. At the time of promiscuity, human beings produced for subsistence (no surplus). The mother right was predominant due to lack of permanent settlements. The promiscuity practices gave way to consanguine family (marriage groups separated according to generation). Brothers and sisters, male and female cousins of the first, second and more remote degrees are all mutually brothers and sisters, and precisely because of this are all mutually husbands and wives. Improvement of tools of production which led to surplus products and permanent settlement restricted marriage and sex between blood relatives thus, Punaluan family emerged. Thus, parents and children, natural brothers and sisters were excluded from mutual sexual relations.

Later, group marriage/class marriage (polyandry/polygamy) i.e. one woman married to several men, and vice versa emerged, though for a short time. Increase of population and a need for alliance resulted into another form of family, pairing/patriarchal family, whereas marriage arrangements involved parents and close relatives of marriage partners. As the society advanced, monogamous marriage/family (one man, one woman; or in Engel's words, "Monogamous marriage is the subjugation of one sex by the other" (p. 128) emerged, thus the father rights became predominant and marriage within the clan was restricted (i.e. encouraged exogamous rather than endogamous marriages). However, monogamous marriage co-existed with concubinage (i.e. contubernium) tendencies.

**Engel says, "The overthrow of the mother right was the world historical defeat of the female sex.
The man took command in the home also; the woman was degraded and reduced to servitude; she became the slave of his lust and a mere instrument for the production of children
." (pp. 120-121).

The Basic Organs under Gentile Constitution

(Clan Assembly, Phratry Assembly, Tribal assembly)

The Clan Assembly

The Clan
A clan is a body of kinsmen or relatives who claim common descendants. The clan was a basic organizational structure of the gentile constitution which composed a cluster of families tied together by consanguine relationship. They usually share common clan name, totem, taboos, traditions, religious institutions, ancestral rites and burial places.

The Clan Assembly

The clan assembly composed of all adult members of the clan led by a 'clan chief' or 'clan head'. The clan chief was either a clan founder or inherited that position of leadership by birth right and seniority of age (not elected).

Constitutional Features of a Clan Assembly
  • The conduct of clan assembly was participatory by all adult members of the clan except those who were mentally impaired (i.e. direct participation of all adult members).
  • Decisions made by consensus.
  • Every one was equal irrespective of his or her gender, save for elders who had a final say in deciding complex issues.

The Phratry Assembly

The Phratry 

The term 'Phratry' means a descent or kinship group in some tribal societies. It is a union or a cluster of six or more clans formed after several clans detach themselves from the original clan. Normally, the Phratry recognises one clan as the founder of other clan groups.

**The Phratry functions as a social and religious organisation.

The Phratry Assembly

It is an intermediate organ composed of leaders of various clans related by geographical or consanguine ties. The Phratry leader was either the most senior and well-off or militarily powerful clan leader, thus a vassal leader/chief to the king or tribal chief.

Constitutional Functions or Features of the Phratry 

  • To secure and maintain law, order and defence of clans under the Phratry
  • Entertained inter-clan disputes, and acted as an appellate organ in the settlement of disputes arising from clans under the Phratry. Thus, had power to overturn or quash decisions made by the clans assembly.
  • Paid tributes to the tribal chief or king, and supplied him or her with soldiers during military expeditions
  • Had power to annul or amend rules made by the clan assembly

The Tribal Assembly/Council

The Tribe

A tribe may be referred to as a social or political division in traditional society consisting of linked families or communities with a common culture and dialect. A tribe is made up by several phratries or a coalition of clans recognizing each other as having a common ancestry (united to face, e.g. a common threat or enemy). The basic laws of the tribe were customary norms passed from one generation to another. If a tribe remain intact for a considerable duration of time (e.g. a century) becomes a 'Confederacy'.

**Tribe confederacy (not a state) was a union of tribe (organization of society) to assist one another in state of emergence or war. The confederacy was formed by common blood and descendant for perpetual alliance and on an equal footing.

Usually, a tribe is characterised by a common economic activities and territory, its own name, special dialect, right to elect and depose a leader, common religious conceptions (mythology) and ceremonies, and had a tribe council.

The Tribal Assembly/Council

The tribal assembly was the highest organ of power in gentile or tribal constitutional system headed by a King or Head Chief. It was composed of the King or chief, a council of Phratry leaders, and King's curia of elders who always sat with the King in his Court. The King/ head chief governed through the tribal council/assembly. It was the council, not the chief that held power.

**The king or head chief inherited the throne by descent or blood lineage, or normal member of the society who turned out to have special talent or power.

Constitutional Functions or Features of a Tribal Assembly/Council

Unlike the clan and Phratry assemblies, the tribal council was an elitist constitutional body with no direct participation of tribe members (representative body). It was the highest legislative, executive and adjudicative body. It has powers to make and unmake customary laws; hear any matter, and appeals; levy tributes upon phratries; order and receive both man and logical support from the phratries during wars; and power over war and peace. The tribal constitution was characterised by;


  • Participation of all members of the tribe in discussing common matters of the tribe
  • Every member of a tribe could stand for election or participate in deposing a leader
  • Every one participated in implementation of decisions reached by the tribal assembly. This was because there was no special body to enforce such decisions.
  • Egalitarian in nature (believed in equality and freedom).
  • Traditional methods commonly used in solving disputes e.g. mediation, reconciliation, negotiation, and etc.
  • Special dialect peculiar to its tribe

GENTILE CONSTITUTION: CASE STUDIES OF ANCIENT GREEK, ROMAN AND GERMANIC SOCIETIES

THE GENTILE CONSTITUTION IN GREEK SOCIETIES

Culturally, the Greek or Athenian gens were characterized by common religious rites and burial places, mutual rights of inheritance, descent in the male line, prohibited marriage within the gens save for heiress, and the right to elect chieftains and to depose them.

Forms of Tribal Constitution in Greek/Athenian Societies;

(a) Permanent authority was vested in the Council of Chiefs.
  • Made up by elected clans chiefs (i.e. the Phratriarchos).
(b) The Assembly of the people or Popular assembly (i.e. Agora)
  • It was a supreme organ in Athens
  • Every member of the society was allowed to attend and had the right to speak
  • Practiced direct democracy, decisions were made by rising hands or acclamation
  • Elected people to head public offices
(c) The leader of the army or military commander (i.e. Basileus)
  • Elected and or recommended by the people
  • Defended the society (soldiers) and in rare occasions performed religious as well as judicial functions.
  • Later, Basileus became noble (referred to as 'King') and their position was hereditary.

Decline of Athenian Gentile Constitution

Accumulation of private properties and emergence of nobility in Athens replaced Kinship ties and thus, Gentile constitution collapsed. Athens territory was divided and the people became attached politically to districts (demes). Demes were self-governing, electing president and treasurer. However, demes power were in the assembly of 'demotes' or residents of each deme. Increase of social stratification among the Athenians led to emergence of Theseus constitution (by King Theseus) which divide Greek people into three classes i.e. nobility (Eupatridae, included elders, tribe chiefs, priests and other officers); land tillers (geomori/geomoroi), included freemen and producers); and commercial and artisans/craftsmen population (demiurgi). It further separated tribal affairs (matters on which each tribe can decide on its own) from common affairs (matters controlled by the general council).

 
**In 621 BC, a scribe named Draco wrote the laws of the city-state of Athens; and being quite cruel, this code prescribed the death penalty for any offence. In 594 BC, Solon, the ruler of Athens, created the new Solonian Constitution. It eased the burden of the workers, allowed private ownership of properties, and prohibited enslavement of Athenians, but foreigners. However, the Solonian Constitution made the ruling class to be determined by wealth (plutocracy), rather than by birth (aristocracy). Cleisthenes again reformed the Athenian constitution and set it on a democratic footing in 508 BC. Cleisthenes constitution divided Greek Societies into 100 autonomous townships known as demes as per places of domicile; and vested supreme authority in the assembly of the people (demetes).
**Prepared with the help of Wikipedia encyclopaedia.

THE GENTILE CONSTITUTION IN ANCIENT ROME

Just like the Greek or Athenian gens, the Roman gens were characterized by common religious rites and burial places, mutual rights of inheritance among gentile members, descent in the male line, obligation to marry within the gens, common land (land owned by the tribe), mutual assistance among members of the gens, right to bear gentile name, and the right to elect chieftains and to depose them.

Forms of Tribal/gentile Constitution in Ancient Rome


  • There were thirty (30) curiae. Ten (10) curia formed a tribe. The three (3) tribes formed the populus romanus (Roman people).
  • Public affairs were managed by the Senate composed of presidents (called Patres
    i.e. elders of the gens) of three hundred (300) gentes.
  • Each tribe elected a president (patre) who was both military leader and a priest.
  • Patres (presidents) transformed into hereditary nobility (Patricians).
  • The Senate elected higher officials (including the rex/king); declared war; and acted as a supreme court.
  • The rex was not hereditary but elected by the assembly of curia.

Curia denote a division of an ancient Roman tribe (by extension), the Senate of Cities other than Rome.

Decline of Roman Gentile Constitution

Immigrants (and foreigners) and subjugated people were not considered as the populus romans, but plebs (i.e. members of the lower social classes), thus excluded from all public affairs. Since plebs controlled industrial and commercial wealth, conflicts arose frequently between them and the populus romans over power and dominance thus collapse of gentile constitution to servius tullius constitution. The servius tullius constitution was based on the Greek model. It replaced old social order (blood ties) and divide roman men into six (6) classes (above slaves) based on wealth regardless of whether one is a plebs or populus romanus.

**The Romans first codified their constitution in 449 BC as the Twelve tables. They operated under a series of laws that were added from time to time, but Roman law was never reorganized into a single code until the Codex Theodosianus (AD 438); later, in the Eastern Empire the Codex repetitæ prælectionis (534) was highly influential throughout Europe. This was followed in the east by the Ecloga of Leo III, the Isaurian (740) and the Basilica of Basil I (878). **An extract from Wikipedia encyclopaedia.

THE GENTILE CONSTITUTION IN GERMANIC SOCIETIES

The Germanic gentile societies settled in the territory between the Danube, the Rhine, the Vistula and the northern seas. The Alamannian law confirms the fact that the people settled on the conquered land south of the Danube in gentes (genealogiae). They were organised into gentes and kinships (gentibus cognationibusque) until the time of migrations. Gentes were large household communities among which the land was divided, and from which the village communities developed later on. The term fara was used by the Burgundians and Langobards (a Gothic and a Herminonian, or High German tribe) to mean the same thing that in the Alamannian book of laws is called genealogia.

Features of Germanic gentile societies 
  • Common terms for gens
  • Mother right of children were highly respected (they regarded the woman as being holy and something of a prophetess). For example, when hostages are demanded the sister's son is considered a better pledge than the natural son of the man whom they desire to place under bond.
  • There were military leaders who always strove for power
  • Inheritance of the feuds as well as the friendships of one's father and relatives;
  • Accepted wergild (i.e. the fine paid in atonement for murder or injury) in place of blood revenge.
  • Land was tilled in common by the gens and later on by communistic family communities. Later the land was allotted and periodically reallotted to the individual families.
  • The Germans in Tacitus' time divided up the cultivated land from passages
Forms of Germanic Societies Gentile Constitution

According to Tacitus, there were;

  • Councils of gentile chiefs (principes) which decided matters of minor importance and prepared important matters for the decision of the popular assembly. The council chiefs (principes) were distinguished from the war chiefs (duces) and lived in part, on honorary gifts, such as cattle, grain, etc., from their fellow tribesmen.
  • The transition to father right favoured gradual transformation of elective office into hereditary office, thus giving rise to a noble family in each gens.
  • The popular assembly was the real power. The king or tribal chief presided; the people decided: a murmur signified "no", acclamation and clanging of weapons meant "aye". The popular assembly was also the court of justice. Complaints were brought up here and decided; and death sentences were pronounced, the latter only in cases of cowardice, treason or unnatural vices.
  • The military leaders were elected solely on their merits, irrespective of birth. They had little power and had to rely on force of example. As Tacitus explicitly states, actual disciplinary power in the army was held by the priests.
  • The gentes and other subdivisions also judged in a body, presided over by the chief, who, as in all original German courts, could be only director of the proceedings and questioner. Among the Germans, always and everywhere, sentence was pronounced by the entire community.

Decline of German Gentile System

The collapse of Germanic gens was mainly fuelled by; emergence of classes due to permanent settlement, thus rise of new aristocratic class; the tendency of military commanders to aspire for kingly power; and invasion of the gentes by the Roman Empire.

**Many of the Germanic peoples that filled the power vacuum left by the Western Roman Empire in the Early Middle Ages codified their laws. One of the first of these Germanic law codes to be written was the Visigothic Code of Euric (471). This was followed by the Lex Burgundionum, applying separate codes for Germans and for Romans; the Pactus Alamannorum; Codex Laureshamensis and the Salic law of the Franks (Franks Constitution), all written soon after 500. In 506, the Breviarum or "Lex Romana" of Alaric II, king of the Visigoths, adopted and consolidated the Codex Theodosianus together with assorted earlier Roman laws. Systems that appeared somewhat later include the Edictum Rothari of the Lombards (643), the Lex Visigothorum (654), the Lex Alamannorum (730), and the Lex Frisionum (ca 785). These continental codes were all composed in Latin. ***An extract from Wikipedia encyclopaedia.

REFERENCES

Bachofen (1861) Mother Right (Mutterrecht).

Evgeny Pashukanis (1932) 'The Marxist Theory of State and Law'. In Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London and; New York 1980, pp.273-301. (available at home.law.uiuc.edu/~pmaggs/pashukanis.htm).

Frederick Engels (2004) The Origin of the Family, Private Property and the State. Edited, with an Introduction by Pat Brewer. Resistance Books, 23 Abercrombie St, Chippendale NSW 2008, Australia. (First published in 1884).

Letourneau (1888) Evolution of Marriage and Family.

Morgan, Lewis Henry (1871) Systems of Consanguinity and Affinity.


Morgan, Lewis Henry (1877) Ancient Society.


Mvungi, E.S.A (2007) Constitutional Law in Context: A Book on General Principles of Constitutional Law, Vol. I. (unpublished).

Norman Schofield (2002) 'Evolution of the Constitution'. British Journal of Political Science, Vol. 32, No. 1, Cambridge University Press (Jan., 2002), pp. 1-20.

Westermarck (1891) The History of Human Marriage (London ).

…………………………………

QUESTIONS ON THE GENTILE CONSTITUTIONS OF TANZANIAN SOCIETIES

Take home essay.

Answer all Questions.

(a) "Socio-political and constitutional forms of ancient European societies are no different to tribal socio-formation of pre-colonial Tanganyika's societies", Anonymous. Critically discuss the above statement by using Nyamwezi, Maasai, Haya and Hehe tribes as your case study.

NB: Students from Kenya and Uganda may wish to choose three tribes from their respective country as case studies. 

(b) "Modern constitutions have a direct bearing with constitutional forms of traditional societies". Use any East African state's constitution show how the same is rooted in pre-colonial socio-formation.
 ………………………………………

NEW FORMS AND DIMENSIONS OF CRIMES: ORGANISED CRIMES


Jaba Shadrack, Department of Public Law, School of Law of the University of Dar es Salaam

  [Penology and Criminology]
Outline:
Definition
Features/criteria/indicators/attributes of organised crimes Types
Forms of criminal organization
Major patterns of organised crimes
Causes of organised crimes
Impacts of organised crimes
Response (National, Regional, and International)

  DEFINITION


Organised crimes
Section 2 of the Economic and Organised Crime Control Act (1984) 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 that its commission is evidence of the existence of a criminal racket in respect of acts connected with, related to or capable of producing the offence in question.

Other definitions of organised crime
  • Crimes committed for pursuit of profit and power or undue economic benefit.
  • Crimes that involves more than three criminals working within structures as complex as those of a large corporation, subject to laws more tightly enforced than those of legitimate government.

      Organized criminal group
The UN Convention against Transnational Organized Crime (2000) under Article 2(a) refer to organised criminal group as a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.

Other definitions of organised criminal group
  • A group activities of three or more persons with hierarchical links or personal relationships which enable their leaders to earn profits or to control territories or markets, internal or foreign, by means of violence, intimidation or corruption, both in furthering criminal activity and infiltrating the legitimate economy.
  • A conspiratorial enterprise pursuing profit or power through provision of illegal goods and/or services, involving systematic use of force or threat of force. (Winslow and Zhang, 2008: 430).
  • Three or more persons associate for the purpose of committing more than one crime and for indefinite time.
FEATURES/CRITERIA/INDICATORS/ATTRIBUTES OF ORGANISED CRIMES
Indicators of organised crimes may be divided into two major categories; i.e. mandatory and optional.

Mandatory indicators
These are ingredients that must be established by the prosecution to prove that a person or a group of persons actually engage in organised crimes, namely;
  • Collaboration of three or more people
  • For a prolonged or indefinite period of time
  • Committing serious criminal offences
  • With the object of pursuing profit and power


    Optional Indicators
These are factors that may be established in alternative to cement the prosecution's position. Such criminal organization may;
  • Have a specific tasks or role for each member
  • Use some of internal discipline and control
  • Use violence or other means suitable for intimidation
  • Exert influence on politics, the media, law enforcers or economy by corruption or other means
  • Organised in commercial or business-like structures
Other aspects;
  • Involves intricate and continuing criminal conspiracies
  • Operates beyond the lifetime of individual members
  • It is structured to survive changes in leadership
  • Members are subjected to immense or strict scrutiny and required to prove their worth and loyalty
  • Involves high secrecy, willingness to commit any act for the group and intent to protect the group
  • Have code of ethics and conduct (governed by explicit rules and regulations).
REFER:
  • UN Draft Framework Convention against Organised Crimes, 1997
  • The Naples Political Declaration on Organised Transnational Crimes, 1994

    TYPES
National/municipal/intra-national organised crimes
Organised criminal group within national borders

Transnational/international organised crimes
It involves criminal groups that engage in crimes across nations.

FORMS OF ORGANISED CRIMINAL ORGANIZATION
  • Crime syndicate/cartel/Mafia groups
Refers to a gang of criminals engaged in the business of providing some forbidden services to the customers who are in need and are willing to pay handsomely for that services. E.g. Colombia, Mexico, Chile and Jamaican cocaine cartel (which supply narcotic drugs, engage in illegal prostitution and etc).
  • Criminal racket
They are criminal groups which engage in systematic extortion or fraud under some kind of threat usually of personal injury or property, e.g. gambling racket, protection racket (demand money in exchange for protection against crimes).
  • Political graft
Commonly in politics, where politicians form or fund or engage notorious offenders for political gains i.e. threatening voters or buying votes or exerting influence on voters.
  • Criminal ring/Gang
These are criminal groups, local and sometime regional in nature, which engages in violent crimes such as armed robbery, burglary, rape and contract killings.
  • Terrorist group

These are criminal organizations which commit crimes for ideological reasons, e.g. Al
Qaeda, Al Shabaab, and etc.


MAJOR PATTERNS OF ORGANISED CRIMES

Illicit drug trafficking
The UN Office on Drug and Crime (UNODC) define drug trafficking as a global (national or regional) illicit trade involving the cultivation, manufacture, distribution and sale of substances which are subject to drug prohibition laws. (Read: Article 1 and 3 of UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988)
Section 2 the Drugs and Prevention of Illicit Traffic in Drugs Act (Cap, 95) 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 involve; 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 exhaustive list).

      
    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 passport, permit or pass [See: sections 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.
Internationally, Article 3(a) of the Protocol
against the Smuggling of Migrants by Land, Sea and Air (2000) define smuggling of migrants as the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.
Essentially, illegal entry means;
  • 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

      Money laundering
Under 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 avoids the legal consequences of such action.
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 legitimate source. The laundered money or property may be deposited in 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.
However, the definition of money laundering has been expanded or widened (though not universally accepted) to include legally obtained money or property (legal proceeds) to support illicit or illegal dealings such as terrorism or crime. It should be borne in mind that money laundering is a derivative offence defined within predicate offences such as drug trafficking, terrorism, arms trafficking, immigrant smuggling, sexual exploitation, human trafficking, corrupt practices, human organ trafficking, poaching, tax evasion, illegal fishing, environmental crimes and etc.
Predicate offence means any offence as a result of which proceeds have been generated that may become the subject of money laundering.

Financial fraud/white-collar crimes
Financial crimes cover a wide range of criminal offences committed by professionals which have major impact on banking and financial sectors.  According to Prof. E.H. Sutherland, these are crime committed by a person of respectability and high social status in the course of his occupation. This may be exemplified by cheque fraudcredit card fraudmortgage fraudmedical fraud, corporate fraud, securities fraud (insider trading/dealing), bank fraud, payment (point of sale) fraud, health care fraud), scams or confidence trickstax evasion, airport scam, odometer fraud, pyramid, forgery, land fraud, price fixing, bankruptcy fraud, hoarding of money and commodities, speculative business, computer fraud, lottery fraud, copyright infringement, Nigerian letters (West African Investment scams), ponzi, briberyembezzlementidentity theft, racketeering, larceny, currency schemes, kickbacks, blackmail, money laundering, and forgery and counterfeiting
money and consumer goods, and etc.
In short, financial fraud/while-colour crime is a form of frauds committed by business and government professionals. According to FBI, they tend to destroy companies, impoverish families by wiping out their life savings, or cost investors billions of monies.
  • The case of B.L. Madoff, and Enron's case in the US; EPA
    Scandal in Tanzania
  • The First Schedule (Economic offences) to The Economic and Organised Crime Control Act, Cap. 200.
  • The Bank of Tanzania Act, 2006
  • CHAP. XIX and XXXIII of the Penal Code, Cap. 16
  • The Banking and Financial Institutions Act, 2006

      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 production of currencies (banknotes or coins) without being authorized by the central bank of a respective country. Usually, counterfeited money resembles some official form of currency and may be confused for genuine currency.
Ref: The International Convention for the Suppression of Counterfeiting Currency (1929)

Illegal prostitution/sex trafficking/sexual slavery
This is a form or type of human trafficking which involve the recruitment, transportation, transfer, harbor or receipt of persons by coercive or abusive means for the purpose of (commercial) sexual exploitation. This may be achieved by;
  1. 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.
  2. 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, and etc.
NB: see, 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) .

Contract killings/assassination
For career criminal groups (hit man), habitually get engaged by individuals, companies or sometimes state agencies to commit murder out of personal feud or vengeance for a considerable amount of money. This kind of engagement is known as contract killing. In another way, contract killing is a form of murder (out of illegal agreement) in which one party hires another party to kill or assassinate another person or group of people in exchange for money.
E.g. The gang 'Murder Inc. (US) committed hundreds of murders in the 1920s – 1940s on behalf of the National Crime Syndicate. (Source: Wikipedia).


Intellectual property crimes/theft

It is a crime committed by organised groups working secretly or undercover which involve unlocking technologies and thus manufacture goods or offer services in violation of copyrights, patents, trade secrets, trade and service marks. FBI describes intellectual property crime as a form of theft which robs peoples' ideas, inventions, and creative expressions.
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
  • Also: Berne convention, Brussels Convention, Madrid Agreement (and protocol), Nairobi Treaty, Paris Convention, Rome Convention, Lisbon Agreement, Locarno agreement, Nice agreement, Strasbourg Agreement, Maputo agreement and etc. (**Please, visit the WIPO
    website for a comprehensive list).


    Maritime piracy
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.
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 Gulf of Aden).

Trafficking in Persons/Human Trafficking/Modern-day Slavery
The Penal Code (Cap. 16) under section 139A(1)(a) define trafficking of person as an act of buying, selling or bartering of any person for money or for any other consideration. The specific law on human trafficking in Tanzania is
the Anti-Trafficking in Persons Act (2008) which under section 4(1)(a)-(g) list instances or situations in which a person/s commit 'acts of trafficking in persons'. A comprehensive definition is adopted by Article 3(a)-(c) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) which define trafficking in persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. [See also section 139A(1)(a)(b) of Cap. 16).
Article 3 provides further that consent of a trafficked person/s is irrelevant to the intended exploitation where force or fraudulent means have been used to convince the victim. Besides, recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation amount to trafficking in persons even if it does not involve forceful or fraudulent means.

The above definition covers three (3) major elements;

The Act
It involves recruitment, transportation, transfer, harbouring or receipt of a trafficked person/s.

The means
Refers to ways/methods traffickers use to get their victim i.e. threat, use of force, coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, giving or receiving of payments or benefits to achieve the consent of a person having control over another person.

The purpose of Trafficking
The end result of trafficking in persons is to exploit them i.e. exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Human Trafficking v/s Migrant smuggling
  • Migrant smuggling involves consent of illegal immigrant, while victim of human trafficking may have never consented or their consent has been vitiated due to the use of force, abusive action or deceit.
  • Exploitation of smuggled immigrant ends with the migrant's arrival at their destination, whereas human trafficking involves indefinite exploitation of the victim.
  • Migrant smuggling is always transnational, while human trafficking may either be a national or transnational venture.
  • In migrant smuggling, profit is derived from assisting illegal entry or stay of a person in another country, while in human trafficking, profit is derived daily exploitation of a trafficked person/s.

      Trafficking in human organs
At international level, there are several instruments which endeavour to explain trafficking in human organs.
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) under Article 3(a) defines human trafficking which essentially envisages trading in human organs also. The said provision provides, inter alia, that trafficking for organs occurs where a person/s recruits, transport, transfers, harbours or receive a person/s by the use of 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;
  • Traffickers force or deceive the victims into giving up organs.
  • Victims are treated for an ailment, thereupon their organs are removed without the victim's knowledge or consent.
  • Victims give up their organs but traffickers fail to pay them, or pay less than the agreed amount.
In most cases, victims (donors) of organ trafficking are migrant workers, destitute (homeless persons), illiterate persons, children and women. In short, this is an illegal or illicit trade involving stealing and selling of human organs (such as kidney, liver, lung, heart) for transplantation at the black market. It is an offence which involves recruiter, transporter, buyers and staff of the hospital/medical centre/organ banks/medical professionals. Some scholars argue that human organ trafficking is mainly trading in kidneys because removal of virtually all other organs requires the victim to be killed which is very rare. Further, it is a removal of organs rather than human tissues such as blood and corneas. Fundamentally, the offence of trafficking in human organs has two dimensions; first, trafficking in organs, tissues and cell; and secondly trafficking in human beings for the purpose of the removal of organs.

REFER:
  • Article 3(1)(b) of the Optional Protocol on the sale of Children, Child Prostitution, Child Pornography (2000). It bars sale of children for the purpose of transferring their organs for profit.
  • Guiding principle 5 of the W.H.O – The Guiding Principles on Human Organ Transplantation (1991). Provides that commercialization of human organs is violation of human rights and dignity.
  • Article 22 of An Additional Protocol to the European Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human origin (2002).
    It prohibits organ and tissues trafficking deriving financial gain or comparative advantage from the human body and its parts.

    Corruption (and, Embezzlement)
The Prevention and Combating of Corruption Act
(2007, Cap. 329) like many other Statutes does not have a straight definition on corruption. However, section 15-34, and 28(1) of the said Act has enumerated circumstances (or 'offences') which constitute an act of corruption. In contrast, the Black's Law Dictionary (8th Ed., 1999) define corruption as depravity, perversion, or taint, impairment of integrity, virtue or moral principles especially impairment of a public official's duties by bribery, or the act of doing something with intent to give some advantage inconsistent with official duty and rights of others; fiduciary or an official's use of station or office to procure some benefit either personally or for someone else, contrary to the rights of others. From the above approach, one may conclude that corruption is an act or omission intending to obtain unfair advantage and the abrogating of the rightful person's entitlement. (See, Longopa: 2008). Dr. G.E. Hoseah (PCCB) divides corruption in three (3) major classes;
  • Petty Corruption (small scale): form of corruption used in all social delivery services; e.g. bribery, kickbacks, favouritism/Cronyism/Nepotism and etc.
  • Grand Corruption (medium scale): form of corruption found in big government contracts such as construction industry, tendering and procurement.
  • Psychotic/State Capture Corruption (large scale): form of corruption among top officials of the government which tend to suffocate or mortgage the national resources and turn them into personal foreign accounts, e.g. Mobutu, Abacha, Doe and etc.
REFER:
  • UNODC (2005) Compendium of International Legal Instruments on Corruption, 2nd Ed, New York. (Read; the UN Convention against Corruption (UNCAC), 2003; the AU Convention on Preventing and Combating Corruption, 2003; and the SADC Protocol on Corruption, Blantyre – 2001).

    Wildlife and forest crimes/Trafficking in wildlife/Environmental Crimes
Referred to as taking, trading (supplying, selling, trafficking), importing, exporting, processing, possessing, obtaining and consumption of wild flora and fauna in contravention of national or international law; e.g. poaching, illegal pollution, illegal fishing and etc. In other words, this is illegal (or illicit) trading (or dealing) in wildlife (or biodiversity). It is a wider offence which covers even environmental pollution.

REFER
  • 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 of 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 for Europe).
  • Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972.

    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, and etc. Generally, there is no law governing cybercrime, save for the Electronic and Postal Communications Act (2010) which somehow have some aspects on computer communication. The same problem is also experienced at the international level, where only the Council for Europe has managed to lay down the Convention on Cybercrime of 2001.
Forms of cybercrimes
  • Cyber stalking: threat to assault by using e-mails, E-phones, E-video calls, and etc.
  • Cyber contraband: transfer of illegal items through the internet, e.g. defaming documents or photos
  • Cyber terrorism: politically motivated terror or violence against citizens via computer technology.
  • Cyber laundering: electronic transfer of illegally obtained money
  • Cyber theft: using computers to steal (e.g. espionage/spying/stealing secrets, plagiarism, hacking, computer-based fraud, identity theft and etc…..using spywares).

  • Cyber vandalism: destroying or damaging other computer's data rather than stealing them or misusing them. It involves sending viruses, malwares and etc.
  • Cyber trespass: accessing a computer or network resources without permission from the owner.
  • Advertising or soliciting illegal prostitution or child pornography through internet, e.g. the Utamu (blog) scandal.


      Pharmaceutical crime
This is a crime which involves manufacture, trade and, or distribution of counterfeit, stolen and illicit medicines and, or medical devices. It covers also trading in medicines with falsified documents or without a licence. E.g. supply of fake or expired drugs/medicines or medical equipments.

REFER:
  • Sections 28 and 29 of The Pharmaceutical and Poisons Act, Cap. 219.
  • Sections 182 and 183 of the Penal Code, Cap. 16.
  • The Pharmacy Act, Cap. 311 (2002).
  • NB: there is no specific international legal instrument on Pharmaceutical crime.

    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 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, Social revolutionary terrorism, Nationalist terrorism (ANC during Boer regime in South Africa), Religious extremist terrorism (Boko haram, Al Qaeda, Al Shabaab and etc), State-sponsored terrorism (Taliban against the Soviet Union, Janjaweed in Sudan), Criminal terrorism, Right-wing terrorism, Left-wing terrorism and etc.

REFER:
  • Convention against Taking of hostages, 1979
  • Convention for Suppression of Terrorist Bombings, 1997
  • Convention for the Suppression of the Financing of Terrorism, 1999
  • Convention for the Suppression of Acts of Nuclear Terrorism, 2005


      Arms trafficking
This is an illegal smuggling or selling of weapons or ammunition (without a licence or in violation of a licence) at a black market.

REFER:
  • 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.
  • Nairobi Declaration on Proliferation of Illicit Arms (Great Lake Region and Horn of Africa), 2000.


      CAUSES OF ORGANISED CRIMES
Refer to the general cause/s of crimes generally such as;
  • Poverty (strain theory)
  • Seek for Power and Influence
  • Religious
    beliefs
  • Family background
  • Rational choice
  • Social disorganization
  • Labeling theory


      IMPACTS OF ORGANISED CRIMES
Show specific impact/s of crimes such as;
  • Bring drugs into cities
  • Raise of the level of violence
  • Insecurity
  • Death (due to killings, drug abuse, supply and use of fake medicines)
  • Decay of public morals and spread of diseases
  • Illegal immigration
  • Manipulate and monopolize stock exchange
  • Sexual harassment and abuse of women
  • Illegal enrichment (according to FBI, the global organised criminals reap unfair profits of around one (1) Trillion US dollars per year).
  • Extinction of flora and fauna (biodiversity), and etc


      RESPONSE (NATIONAL, REGIONAL, AND INTERNATIONAL)


    At the National level:
    • Use of electronic surveillance (e.g. CCTV) to combat human smuggling and transnational human, drug and arms trafficking
    • Criminalization of organised crimes
    • Asset seizure and confiscation (if illegally enriched)
    • Effective law enforcement and adopt special means of investigation
    • Use of undercover agents or disguised police
    • To have laws on witness protection
    • Controlled delivery of drugs and destruction
    • To run community awareness programmes (through mass media)


      At international/Regional level:


    • Ratification and domestication of international legal instruments and standards
    • International cooperation (pursuit of fugitive offenders and extradition)
    • UN Office on Drug and crimes
    • Interpol
    ………………………………………….

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