DPP: Cases delayed for the sake of fair judgement

Written by FAUSTINE KAPAMA.

QUITE often, the office of the Director of Public Prosecutions (DPP) has come under fire for delaying disposal of cases.

The office has responded positively by working out a mechanism that would make the complaint a thing of the past. Our Staff Writer FAUSTINE KAPAMA interviews the DPP, Mr Eliezer Mbuki Feleshi on what this new initiative is all about. Excerpts:

Question: Your office has been using the so-called 14 days rule in scrutinizing cases. Is that system still in existence and what does it really mean?

Answer: Yes, still it is our guidance. It means that a case file should not be kept in the DPP’s office for more than 14 days. We have more directives and circulars to implement the system. The aim is to make sure we accomplish our work within the time frame that is acceptable in the national prosecution service. We also strive to deliver quality services.

Q: During the Law Day celebrations, many speakers, including President Jakaya Kikwete expressed their concern on the delay of cases, with investigations and prosecution machinery being singled out as the causes. What are your comments?

A: Well, those were the president’s comments and sentiments. The Chief Justice too, expressed similar feelings. What is important perhaps is to know that this is a chain where more than one legal enforcement institution has to play its role to ensure timely delivery of justice.

A timely disposal of a criminal case, for example, would always depend on how fast the investigation is carried out, how the prosecution brings and produces witnesses to adduce evidence and how fast the adjudicating body, the judiciary will try a case and make judgment. You must have heard the Chief Justice saying that there are reforms being carried out to ensure long time pending cases are disposed of and completed within two years.

This scheme must engage other key stakeholders, including the DPP’s office and that of the investigations. You may then understand that there is no way the DPP’s office can be a stumbling block to the justice delivery process, because we have to work in line with the established principles and involve other key stakeholders.

Q: Yet, justice delayed is justice denied. Can you comment on this in view of the current situation in Tanzania, where cases take too long to be determined?

A: This phrase may not always give a true picture. Remember there is another one saying “Justice hurried is justice buried.” It is not true that every case is delayed. Unless you have specific examples of delayed cases. Our stand is to see that cases are expeditiously tried and disposed of. Just take an example of Kisutu Resident Magistrate’s Court. Whenever we have available witnesses, you will always find that the magistrate is present.

The prosecutors work throughout the day to complete cases in time. However, we should not be ignorant of other hard facts. There are cases whose investigations would always depend on special findings, like where you have to send some specimen to the government chief chemist.

A great deal of work, which include evidence and exhibits from witnesses, may have already been done by the police. However, the file could be waiting for the government chemist report which may take up to a year. Sometimes the chief government laboratory agency would be waiting for special reagent from abroad or the procurement process for such facilities just takes a long process. How can investigations be expected to take place within a given time?

How can the prosecution do wonders where it must rely on complete investigations? Sometimes we have very few but very important cases of such nature. Our work sometimes requires special attention. We may make a request from other bodies abroad to help us get some special findings.

Their reports help us get investigations into some pertinent areas disposed of. What we actually do is address every case on its own merit. Let us not forget that the constitution states that a suspect remains innocent until proved guilty beyond reasonable doubt. We are dealing with the bottlenecks that cause the delays but have to guarantee the people maximum professionalism. You must remember that Kisutu Resident Magistrate’s Court used to file sometimes more than 2,000 cases annually. But last year alone, not more than 300 cases were filed. That is a direct result of the reforms taking place.

Q: If the constitution states that an accused person is presumed innocent until proved otherwise, why then do murder cases take too long, sometimes up to ten years to be concluded, is this fair to the accused?

A: No. This is not common practice throughout the country. At the Dar es Salaam High Court Registry for example, I know that they are much more advanced compared to Tabora Registry that provides services to Kigoma, Shinyanga and Tabora regions. We do not have long pending trials in Dar es Salaam compared to other regions.

The reason is simple. We have insufficient number of judges in the regions. These judges also have to take care of appeals. Land cases, commercial and sometimes constitutional cases are heard by High Court judges. The average inmate population per annum is dropping from where we were in 2002.

It is now 34,000 down from 44,000. We are making some progress. Murder cases which are tried in special sessions will be allocated an adequate number of judges, prosecutors and other court officials. Once that is done, cases should not remain pending for too long.

Q: There have been deliberate initiatives by the Judiciary to dispose of more and more cases within a short period by recruiting more magistrates even at the primary court level. Is your office perhaps doing the same thing?

A: Well, we are trying to argue our case. There is a direct link of manpower within the judiciary and our office. Where you have a single judicial officer, you need to have at least two prosecutors around. We have also sent a request to the president’s office, central establishment, so that we may be allowed to recruit many state attorneys and as per our needs because always that will make us match with the plans of the judiciary.

Q: In what circumstances can your office be forced to hire an independent prosecutor?

A: Whereas, for some good reasons, we cannot conduct prosecutions in a certain matter and special circumstances for the sake of impartiality. You do remember Andrew Chenge’s traffic case. We hired advocate Richard Rweyongeza because we thought that honourable Chenge, having been Attorney General for more than 12 years was an influential civil servant. We thought members of the general public should see that there was a fair prosecution.

Secondly, the DPP under the constitution and other law is empowered to appoint and assign any qualified lawyer to assist him. This happens when we may consider there is need for getting a specialist from outside the DPP’s office. Our duty is to serve all members of the general public.

So it is always within our reach to get somebody to team up with us. You remember also that in Abdallah Zombe’s murder case we did appoint a private advocate to work with us. There was also the Chinese illegal fishing vessel case. In this one I appointed a lecturer from the University of Dar es Salaam to work with my senior attorneys.

Q: There is this term Nole Prosequi which you often use to drop some cases pending in court. What does this really mean and in what circumstances can it be applied?

A: It is the notice of withdrawal, a notice of discontinuation of criminal charges against an accused persons. After reading an investigation file and report and satisfy ourselves that there is no way we can get sufficient evidence to mount or warrant prosecution against that person, the only option remaining is to immediately announce his or her innocence, showing that that the accused is no way connected with the charges. l The republic does not have interest in the case because there is no evidence to justify prosecution.

Q: Apart from piling up of cases, what other challenges does your office face?

A: We have a serious problem getting and locating our witnesses. Cases are being adjourned because witnesses are not available or they have changed locations and their addresses are not known. When this happens it is very difficult for us to withdraw a case while there is evidence that the crime was committed.

On the other hand we have a duty to ensure that criminal face justice and the latter is delivered in accordance with the law. We are also dogged by corrupt transactions and misconduct among the practitioners. Sometimes after a case has been filed, the complainant and the victim of the crime reconcile without even sending us a note.

You got to court blindly without such information until you ask yourself where is the witness. You hope that one day he or she will show up. l Again some of the witnesses turn hostile and giving you contradicting information. Moral decay, corruption and misconduct have resulted in the miscarriage of justice to this nation. We also have a problem of inadequate resources in terms of finance, manpower and infrastructure.

The government is however, trying to allocate more resources to the department. Another challenge we are grappling with is to do with private lawyers. Whenever they sense that a case might be ruled in favour of the prosecution, they usually ask for an adjournment, saying they have another case pending at the Court of Appeal or High Court.

So you find yourself facing endless adjournments because the defence lawyers have turned hostile to their clients after learning that they a likely to end up with conviction. Q: What other common crimes today apart from murder and theft? A: There is a spectrum as to what is happening today.

You see crime is a product of society. I know we have a contemporary criminal-violence based offences. There is violence everywhere. People force their way into demonstrations against orders or warnings given by the police. You may find someone instigating their followers to hate another or group in the community.

These are what we call hate crimes. We have done a lot, to prevent albino killings. You must have heard again that it happened last February, we have three cases. That is another hate crime troubling us. There is a drastic increase in financial crimes in cyber form.

You must have heard of ATM thefts in Dar es Salaam and Mwanza, where you have fraudsters, collaborating with foreigners coming to Tanzania to collude with locals to steal from bank account holders. Armed robberies are still rampant and so is sexual violence.

We need to invest a lot to address moral decay in our society. We need to safeguard the banking and financial transactions. My appeal to the general public is that once criminals are identified, they should be dealt with immediately and other than avoid working with the police, judiciary and the prosecution, all should be given maximum cooperation to protect society from criminals.

Source: Daily News (03/03/2013): http://www.dailynews.co.tz/index.php/features/popular-features/15141-dpp-cases-delayed-for-the-sake-of-fair-judgement