"Fiat Justitia Ruat Caelum"

Europe rights court upholds conviction of Croatia war criminal

[JURIST] The European Court of Human Rights (ECHR) upheld the conviction [judgment] of former Croatian army commander Fred Margus on Wednesday. Margus challenged his 2007 conviction for war crimes against civilians during the 1990s Yugoslav wars. Charges initially brought against Margus were terminated in 1997 under the General Amnesty Act, which granted amnesty from criminal prosecution "perpetrators of criminal acts" who committed their crimes during the Yugoslav wars. Margus claimed that his 2007 trial violated his rights to a fair trial and to not be tried twice, protected by the European Convention on Human Rights. The ECHR ruled that there were no ascertainable facts to justify doubts regarding the impartiality of Margus's trial, and that discontinuance of a trial by a prosecutor does not amount to a conviction or acquittal, so he has not been tried twice for the same crime. The ECHR expressed particular concern over the growing trend in international law of granting amnesty in spite of grave breaches of human rights, and applauded Croatian authorities for their indictment and conviction of Margus.

Investigations of war crimes related to the Yugoslav wars are still ongoing and suspects are still being arrested and prosecuted. In March, Croatia, at the International Court of Justice (ICJ), accused Serbia of genocide in the 1990s. In January the appeals chamber for the International Criminal Tribunal for the former Yugoslavia (ICTY) upheld the criminal convictions of four Serbian senior officials stemming from the Bosnian Civil War. Last September the ICTY allowed Momcilo Krajisnik, the former speaker for the Bosnian Serb parliament, to return to Bosnia after being released from prison. The ICTY was created in 1993 by UN Resolution 827 to adjudicate the alleged war crimes perpetrated in the region of the former Yugoslavia since 1991. The ICTY's term of prosecution has been extended until December 2014. Since its inception, the ICTY has convicted numerous war criminals for atrocities committed in the widespread violence of the Balkan region. The tribunal has been working through an immense caseload for the past 20 years and has recently delegated much of the war crime adjudication to the courts of individual Balkan nations.


Dar firm rues advice to Tanesco on IPTL

VIP Engineering and Marketing Limited (VIP) has filed a complaint to the Administrator General (AG) against the advice that Mkono and Company Advocates were giving to the government and Tanzania Electric Supply Company (TANESCO) regarding Independent Power Tanzania Limited (IPTL).

In a letter dated May 26, 2014 to the Permanent Secretary of the Ministry of Energy and Minerals, Mr Eliakim Maswi, VIP has attached a copy of its complaint dated August 27, 2009, enquiring whether the government was still maintaining Mkono and Company’s advice on the matter.

“Our concerns and surprise arose when we saw various correspondences and reports by Mkono and Company Advocates addressed to the government of Tanzania and Tanesco between November 4, 2008 and August 20, 2009,” stated part of the letter.

The VIP letter indicates that such correspondences were in connection with the purported mandate to resolve the IPTL disputes and particularly the accusations by Mkono and Company Advocates that the AG, who had been appointed provisional liquidator (PL) of IPTL, was favouring VIP in the matter.

During his investigations as PL, the AG had determined that it was in the interest of all stakeholders in IPTL, including the public to recommence operations of the power plant and to commence converting the plant into firing natural gas before carrying out detailed investigations as ordered by the court.

Initially, Mkono and Company Advocates had since November 4, 2008 supported the operation and conversion of the IPTL Power Plant against the position taken by Standard Chartered Bank (SCB) that such move was against the interests of Tanesco and government but served the interest of VIP.

“It cannot be clear why Mkono and Company Advocates suddenly after June 3, 2009 changed their sentiments and followed the position of SCB by holding that operation by the IPTL Power Plant and Gas conversion was against the interests of Tanesco and government of Tanzania,” the letter reads in part.

VIP queried, “The paradox is why the government and Tanesco, after fighting very hard at International Centre for Settlement of Investment Disputes and managed to prevent the daylight cheating on capacity charges allowed a bigger cost in the energy charge which is within their contractual right to control.”

As a result, VIP alleges, they remained as a monster tariff to Tanesco through very high pass for Fuel Oil Costs of more than US$ 6.0million per month which were avoidable if the IPTL Power Plant was to be converted to gas firing as provided for under Public Partnership Agreement (PPA).

“VIP has made a lot of noise complaining to the Government that there could not be any justification for the IPTL Power Plant to remain without being converted to gas firing but nothing that VIP did in the gas conversion crusade have made any difference so far,” the letter further states.

According to the letter, VIP had been disputing that SCB is a creditor of IPTL because no proper Board resolution of the country’s giant electricity producer company was passed for SCB to buy and take over the purported IPTL debt from Danaharta in the year 2005.

Consequently, the letter says, VIP submitted that SCB has no legal locus stand in IPTL and the proposal to hive down the IPTL Power Plant to a new Company (NEWCO) to be owed 100 per cent by Tanesco was a day light robbery ploy for SCB to justify receiving payment for illegal debts foisted upon IPTL.

Also VIP stated that it cannot be clear what the real problem was that continued to prevent IPTL to be converted to gas when the President of the United Republic of Tanzania ordered the company’s power plant to be converted to gas firing since almost the last six years.

Daily News: Tanzania.

261 inmates to voluntarily plead guilty

KAMPALA. 

Inmates from various prisons have began voluntarily pleading guilty to their offences under the pilot plea bargaining programme at Nakawa High Court in Kampala.

At least 261 inmates are expected to plead guilty under programme that started on Monday. It is aimed at reducing the case backlog and congestion in prisons.

The programme, which is expected to run for the entire week, is spearheaded by the Judiciary, Uganda prisons, Director of Public Prosecution (DPP) and the Uganda Law Society (ULS).

Targeted districts

DPP Mike Chibita, told the Daily Monitor that the pilot programme will target the districts of Mubende, Mpigi, Kiboga and Wakiso that fall under the Nakawa High Court circuit.

Justice Chibita said out of the 261 inmates who are set to plead guilty on their own, 135 are from Kigo Prison, five from Murchison Bay in Luzira prison, 83 from Mwiyinaina Prison and 17 from upper prison, Luzira.

The programme will be handled by five High Court judges, 20 defence lawyers and 10 state prosecutors.

About the case backlog that stands at 168,141, the DPP said Kigo Prison has 452 inmates waiting to have their cases heard in court, Luzira has 500, while Jinja circuit has 800.

Plea bargaining programme

Plea bargaining is a negotiated agreement between the prosecution and an accused person who is represented by a lawyer. 

The accused person then comes before a judge to plead guilty to the charges against him/her in exchange for a lesser sentence without going through a full trial.

For example, if a suspect is facing murder charges and voluntarily accepts to plead guilty at plea taking, his lawyer and the prosecution can ask the judge to hand him a lesser sentence of say life sentence as opposed to the maximum penalty of death by hanging in case he was convicted at the end of a full trial.

Daily Monitor: Uganda;

Ex-Tanesco CEO, wife in court

FORMER Managing Director of Tanzania Electric Supply Company (TANESCO) William Mhando, his wife Eva and three other employees of the utility firm appeared before the Kisutu Resident Magistrate’s Court in Dar es Salaam charged with abuse of office and forgery.

All the accused denied the charges in respect of an 884m/- contract for supply of office stationery. With the Mhando couple in the dock were France Mchalange and Sophia Misidai, both principal accountants and Naftali Kisinga, a supplies officer.

Senior Resident Magistrate Frank Moshi granted them bail subject to each of the accused persons securing two reliable sureties who may be working in government offices or any other reputable institution.

Each of the surety was required to sign a bond of 8m/-. The magistrate also restrained the accused persons from leaving the jurisdiction of the court without permission. The prosecution informed the court that investigations into the matter were complete.

A prosecutor from the Prevention and Combating of Corruption Bureau (PCCB), Mr Leonard Swai, told the court that between April 1 and December 31, 2011, at Tanesco headquarters in Dar es Salaam, being employed as Managing Director, Mhando abused his position in the course of discharging his duties.

He is alleged to have failed to declare his interest over Santa Clara Supplies Company Limited, a company whose directors are his wife, Eva and his children, an act which caused the said company to be awarded a contract of supplying stationery to Tanesco valued at 884,550,000/-.

The PCCB prosecutor claimed that such act was in violation of the Tanesco Code of Ethics and Conduct and the Public leadership Code of Ethics Act, thereby making the said Clara Company to obtain an undue advantage of 31,747,000/-.

Between January 6 and July 30, 2011, at unknown places in the city, with intent to defraud or deceive, Eva allegedly forged an audit financial report of her company for 2007/8, purporting to show that Finx Capital House audited the balance sheet of the company as at December 2010, while it was untrue.

On August 9, 2011 in the city, with intent to defraud or deceive, Eva allegedly forged a transfer of shares or stock document, purportedly showing she has transferred her 200 ordinary shares of 10,000/- in the undertaking called Santa Clara Supplies Company Limited to Eveta John Shing’oma, while it was untrue.

The prosecution told the court that on August 5, 2011, at Tanesco Headquarters, knowingly and fraudulently, Mhando’s wife uttered to the Secretary of the Tanesco Tender Board, the said audit report of Santa Clara Company.

It is alleged that between April 1 and October 31, 2011 in Dar es Salaam, being the Managing Director of Santa Clara Company, and with intent to defraud, Eva allegedly obtained 31,747,000/- from Tanesco through supply of office stationery after submitting the alleged false documents.

The prosecution alleged that Mhando’s wife had purported to show that her company had met pre-qualifications for a tender to supply office stationery, printing and computer consumables for the year 2011 to Tanesco.

On October 17, 2011, at Tanesco Headquarters in Dar es Salaam, being employees of the company and being members of the evaluation committee for the tender in question for the supply of stationery, Mchalange, Misidai and Kisinga, allegedly abused their positions in discharging their duties.

It is alleged that the trio gave false information to the Tender Board, purporting to show that Santa Clara Company was a qualified bidder of the tender, an act which caused the company to be awarded the contract in violation of the law, thereby making it to obtain the said advantage of 31m/-.

Daily News:

Court sentences two to death for murder

The High Court in Tabora has sentenced two people to death by hanging after convicting them of murder.

Charles Ngwandu and Shaban Mabala were sentenced on Friday by Judge Amir Mruma, both are accused of shooting to death two persons some six years ago.

The deceased victims are Athuman Mohamed and Shaban Masudi who were shot dead on October 27, 2008 in the Isenefu area of Uyui District in an attempt to hijack a bus.

The convicted persons were found in possession of two machine guns, 34 rounds of ammunition and uniforms belonging to the Burundi army and that were linked to the shooting. 

Reading the verdict, Judge Mruma said the prosecution had proved beyond reasonable doubt that the accused committed the offence they were charged with.

According to the charge sheet, the accused hijacked two buses on October 27, 2008 at Isenefu area. They were also alleged to have shot to death Mohamed and Masudi in the incident which occurred at around 8.00am. 

The two buses, with registration numbers T 273 AMT and T 153 AQC, were heading to Tabora from Goweko village when they were hijacked, passengers ordered to strip naked and hand over all their belongings to the robbers, the court was told.

It was alleged that in execution of their mission, the robbers fired five gunshots, killing Mohamed on the spot while Shaban died at Kitete hospital where he was undergoing treatment.

In mitigation, one of the accused, Ngwandu, pleaded with the court to have mercy on him saying he was suffering from HIV/Aids.

However, Judge Mruma ignored the plea and sentenced the two to death by hanging. 

SOURCE: THE GUARDIAN

US judge allows force feeding of Guantanamo prisoner to continue

[JURIST] A judge for the US District Court for the District of Columbia issued an order late Thursday allowing the military to resume force feeding a Syrian prisoner at Guantanamo Bay, stating that "the court is in no position to make the complex medical decisions necessary" to keep the prisoner alive. In the order, US District Judge Gladys Kessler said that she would not reissue a recent temporary order that stopped the military from force feeding prisoner Abu Wa'el Dhiab due to his rapidly deteriorating condition. Dhiab's lawyers argued that the military's practice of forcibly removing him and other prisoners from their cells, restraining them to a chair and feeding them by inserting tubes into the nose is illegal and abusive. Judge Kessler states that she strongly suggested that the government and Dhiab's lawyers come to a compromise about the procedure used to enterally feed Dhiab and the other prisoners, but the Department of Defense (DOD) "refused to make these compromises." As a result, the court was faced with the choice to either reissue a halt of the practices at the risk of Dhiab dying, or allow medical personnel to take action to keep him alive at the "possible cost of great pain and suffering." Dhiab has been detained at Guantanamo Bay since 2002 after being arrested in Pakistan on suspicion to terrorist activity targeting the United States. Currently Dhiab has been on a hunger strike while being detained, prompting guards to practice force feeding measures to ensure good nutrition. Dhiab's lawyers are ultimately seeking an order that would force the DOD to change its practices.

Allegations of human rights violations at Guantanamo Bay have been an issue since the first prisoners were detained there in 2002. Last month Human Rights Watch (HRW) urged the US to release 76 detainees who had been cleared for transfer but had not yet been released from Guantanamo. Weeks earlier a Saudi detainee requested release to the UK to be with his family because of severe physical and mental health issues that his attorneys argued could take a lifetime to treat. In March a Guantanamo detainee launched a lawsuit against the US challenging the practice of force-feeding prisoners who have attempted to participate in hunger strikes. In February a detainee filed a lawsuit alleging that he should be released because he was a prisoner of war from the US mission in Afghanistan, and accordingly should be released since the US is withdrawing from the country. This lawsuit came weeks after US President Barack Obama renewed a push to have the detention center closed this year, stating that it would be appropriate given the ending of the conflict in Afghanistan and would set an example by remaining true to democratic and constitutional values. Obama had originally pledged to close the detention center five years ago.

Egypt court sentences Mubarak to 3 years for embezzlement

[JURIST] An Egyptian criminal court in Cairo convicted former president Hosni Mubarak on Wednesday of embezzling millions of dollars of public money. The court sentenced Mubarak to three years in prison. His sons, Gamal and Alaa, were sentenced to four years in prison for their role in the embezzling scheme. The three men were ordered by the court to pay USD $20 million in repayments and fines. According to prosecutors, over an eight-year period ending in 2011 Mubarak embezzled USD $17 million by billing personal expenses to the state-owned construction company, Arab Contractors, which was headed by Ibrahim Mehleb, the current prime minister. Moatassem Fathi, an investigator at the government's Administrative Oversight Authority, has alleged in court documents that the former chief corruption watchdog, Gen. Mohamed Farid el-Tohamy, and current chief of general intelligence deliberately suppressed inquiry into Mubarak and other top officials.

Mubarak and other members of his administration have been the subject of controversial judicial proceedings since the Egyptian Revolution. In December an Egyptian court acquitted former Egyptian prime minister and presidential candidate Ahmed Shafiq and Alaa and Gamal Mubarak of charges of embezzling public funds. In August Mubarak appeared in court for his retrial on complicity charges in the killing of more than 100 protesters during Egypt's 2011 uprising. The same week, Mubarak was released from prison and placed under house arrest at a military hospital after a court concluded that he served the maximum in time allowed in connection with the long-pending corruption case. In July lawyers for Mubarak entered a not guilty plea in his retrial for alleged complicity in the 2011 killings of protesters.

Kenya high court issues arrest warrant for journalist wanted by ICC

[JURIST] The High Court of Kenya issued an arrest warrant Wednesday for journalist Walter Barasa, who is wanted by the International Criminal Court (ICC) for interfering with witnesses in the trial of Deputy President William Ruto. Barasa is accused of attempting to bribe prosecution witnesses to try and persuade them to withdraw testimony against Ruto. In March the High Court ruled that Barasa could be extradited to the ICC. Barasa has denied the bribery claims and has been continually challenging the arrest warrant issued by the ICC last year. Ruto is charged with crimes against humanity for his alleged involvement in inciting the violence that followed the 2007 Kenyan election, which led to more than 1,100 deaths. Kenya's President Uhuru Kenyatta is set to face similar charges stemming from the same election violence.

The ICC's trial of Kenyatta and Ruto has been rife with controversy and has drawn heavy criticism from Kenya. In April the ICC granted the prosecution's request to subpoena eight Kenyan witnesses in the trial of Ruto. The trial of President Kenyatta was adjourned in April with a new commencement date for the trial set for October 7. In February the Kenyan Attorney General informed the ICC that Kenya would not release Kenyatta's financial records without a court order, as required by Kenyan law. Also in February ICC prosecutors requested an indefinite delay in the trial, claiming that the Kenyan government was interfering with the proceedings. Earlier that month, the African Union called for African countries to "speak with one voice" against the trials of sitting heads of state of Kenya in the ICC. In January the Trial Chamber of the ICC made an oral ruling that Ruto may be conditionally excused from attending his trial on a continuous basis.

Court halts deliberations on EALA speaker's impeachment

THE East African Legislative Assembly (EALA) has been ordered to refrain from deliberating on the issue of removal of the Speaker, pending a ruling on the matter on May 29, this year.

The First Instance Division, in its interim seating, issued the order after hearing applications filed by the EALA Speaker, Dr Margareth Nantongo Zziwa and Mbidde Foundation Limited (Applicants) against the Secretary General of the East African Community (EAC) and Attorney General of the Republic of Uganda (Respondents).

The applicants sought an interim injunction from the court against the respondents directing EALA to refrain from referring the motions for resolution to remove the speaker of EALA to the allegedly improperly constituted Committee on Legal, Rules and Privileges.

The applicants also seek an order against the EALA Committee on Legal, Rules and Privileges to refrain from conducting any investigation in this matter, pending the hearing and determination of the main case.

The court ordered that the applications be consolidated and be heard together because they were related matters.

The applicants represented by Fred Mukasa Mbidde and Jet Mwebaze advocates submitted that the respondents failure to seek an advisory opinion from the court on the impugned rules of EALA related to the procedure of the Speaker's removal and the continuous operation of EALA without proper rules in place, is an infringement of Article 6(d) of the Treaty for the Establishment of the EAC on good governance including adherence to the principles of democracy, rule of law, among others.

Mr Mbidde further submitted that EALA should be stopped from proceeding with the impeachment process using informal rules of procedure and that there are no grounds for the censure of the Speaker.

He argued that although there must be investigations conducted to reach a clear decision, there are no rules to guide the Legal, Rules and Privilege Committee in carrying out the investigations.

The applicants also said that if the interim order is not granted they will suffer irreparable damages which will not be compensated.

They also added that the political career of the Speaker and the smooth running of EALA will be affected and submitted that there is a prima facie case to be determined by the court and asked to be granted the orders sought with costs.

Mr Wilbert Kaahwa, the counsel to the community and Agaba Stephen Principal Legal Officer representing the first respondent submitted that the applicants were submitting on the main case which the court has not reached yet.

He also said that the applicants claims that EALA has no rules to guide the assembly are mere hypothesis because the assembly has been operating on the existing rules.

He added that members of EALA could not be sworn-in without rules and the Speaker could not assume office and be sworn- in without rules of the assembly.

Mr Kaahwa also submitted that the impeachment of the Speaker should only be handed in the parliament and nowhere else, adding that Rule 9 of the EALA Rules of Procedures provides the guidelines on the removal of the Speaker and that Article 36 of the EAC Treaty clearly sets out that it is only the Summit, Council of Ministers and the partner states who may seek an advisory opinion from the court when there is need.

He also said that applicants must satisfy the court that they will suffer irreparable damages for the court to grant them an injunction.

Mr Kaahwa also added that the adjournment of the assembly on 1st April 2014 was not proper because it put the assembly at a standstill and that there was no notice to the commissioner of the assembly as required by the Rules of Procedures.

The applicant, Dr Margareth Zziwa, Speaker of the EALA was present in court. The matter came before Justice Jean Bosco Butasi, Principal Judge, Justice Isaac Lenaola, Deputy Principal Judge and Lady Justice Monica Mugenyi.

Daily News:

Court sentences 27-year-old man to life imprisonment over rape

Misungwi, Mwanza. 

The district resident magistrate’s court here has sentenced Migu Lugalila, 27, to life imprisonment after he was found guilty of raping a primary school pupil. Earlier, the prosecution alleged that in September 2010 at Lubuga Village, the defendant and his co-accused who was not arrested collaborated in raping a Standard Seven pupil at Lubuga Primary School, after threatening to kill her if she shouted.

Presiding over the case, magistrate Godfrey Mwambapa, said the court convicted the defendant after being satisfied with the evidence presented by the prosecution.

Magistrate Mwambapa said the court established beyond doubt that the defendant committed the crime, saying that his punishment should act as a lesson to others with similar behaviour.

In the meantime, Subi Waminzi, 30, a resident of Mbarika Village has been sentenced to one year for invading and cultivating a farm without the owner’s consent. The owner’s name is Philipo Junda.

It was alleged that the defendant was arrested on December 2, 2012 and remanded for two years.

Earlier, while presenting her defense, the accused asked the court to reduce the magnitude of the punishment, arguing that she had been remanded for a long period.

The Citizen:

Quebec appeals court upholds conviction of Rwandan war criminal

[JURIST] The Court of Appeal of Quebec on Wednesday upheld the conviction of Rwandan Hutu Desire Munyaneza for war crimes committed during the 1994 Rwandan genocide. Munyaneza was convicted in May 2009 and sentenced the following October for seven counts of genocide, crimes against humanity and war crimes under Canada's Crimes Against Humanity and War Crimes Act. An appeal was filed almost immediately after his conviction, alleging poorly defined charges, irregularities by the trial judge and non-credible witnesses. The high court dismissed these arguments, finding that they had no merit. Munyaneza will serve life in prison, with eligibility for parole after 25 years.

Munyaneza moved to Toronto in 1997 and was denied refugee status because Canadian officials suspected him of involvement in the Rwandan genocide. He was arrested in 2005 by the Canadian Royal Mounted Police [official website] after a five-year investigation by its war crimes unit and the UN International Criminal Tribunal for Rwanda [official website]. The trial, which was briefly postponed after Munyaneza was beaten by a fellow prison inmate, lasted two years and included evidence from multiple nations. International legal observers expect Munyaneza's trial to set precedent for future war crimes litigation.

Berlusconi begins community service for tax fraud

Former Italian Prime Minister Silvio Berlusconi arrived at a Catholic care home near Milan on Friday to start a year of community service.

He was sentenced to four years in prison for tax fraud last year, commuted to four hours work a week with elderly dementia patients.

The care home says the 77-year-old will be treated like any other assistant.

As he arrived, Berlusconi was heckled by a trade unionist in a clown hat who shouted: "To prison!"

"We Italian workers have one dream in our hearts: Berlusconi in San Vittore!" he yelled, referring to a prison in Milan, before being led away by police.

The billionaire has been embroiled in a string of court cases.

His conviction last year was in connection with the purchase of TV rights by his firm, Mediaset, in the 1990s.

But he was spared prison because the Italian legal system is lenient to the over-70s.

Berlusconi chose community service rather than house arrest to serve out his commuted sentence.

The BBC's David Willey in Rome says this will enable him to continue to lead his centre-right party, Forza Italia, in the European elections, although he was forced to resign his seat in the upper house of parliament.

Berlusconi has also had to surrender his passport and his travel within Italy is severely restricted.

He also has to observe a nightly curfew at his palatial home near Milan.

Berlusconi is said to have been studying Alzheimer's disease in preparation for his community service.

Massimo Restelli, head of care services there, told La Repubblica newspaper that Berlusconi's introduction would be "gradual" so that he and the elderly patients could get used to each other.

"It will be small steps so as not to make any mistakes, and then he could do all sorts of things. He could help with meals, which are tricky because sometimes you have to 'remind' the patient that they are eating," he said.

He said Berlusconi would be accompanied at all times by a medical worker specialised in Alzheimer's.

"We'll see if Berlusconi's presence creates some kind of close bond, if he is a reference for anyone," he added.

Berlusconi has always denied the charges against him, accusing left-wing judges of a witch-hunt.

Last year he was convicted of paying for sex with an underage prostitute and abusing his powers, which brought him a lifetime ban from public office.

He is appealing against the underage sex conviction, in a trial known as the "Ruby" case.

He is also on trial for allegedly bribing a centre-left senator to switch sides.

BBC News:

Moshi court orders arrest of two sureties in smuggling case

THE Moshi Resident Magistrate’s Court has issued an arrest warrant for two sureties of a Pakistani national charged with smuggling live wild animals out of the country, Kamran Ahmed, who has reportedly jumped bail.

Senior Resident Magistrate in-Charge Simon Kobelo ordered the arrest of Peter Temba and Jackson Kimambo for failure to ensure the accused person appears in court at a specified date and failure to make themselves available as well.

Asking for the order, Senior State Attorney Mr Joseph Maugo told the court that the duo have failed to comply with what they agreed in writing at court before the accused was released on bail.

Mr Kobelo concurred with the attorney’s prayer, saying since the sureties have failed to turn up even after they were summoned, it was the court’s duty to issue the order through which a search will be made and have them arrested wherever they might be.

Ahmed is co-charged with three Tanzanians, Hawa Mang’unyuka, Martin Kimathi and Michael Disha, for smuggling over 100 animals through the Kilimanjaro International Airport (KIA) on November 26, 2010.

He has, however, not appeared in court since March this year. Mr Maugo informed the court that after the accused person went missing, they made effort in collaboration with Rau ward executive officer to look for Temba, who is the first surety only to find out he has since moved from his residence at Rau, while his whereabouts were unknown.

As for the second surety, Kimambo, Mr Maugo said the information they got from the police is that he went to an unidentified location as soon as he received the court summons and it is not known where he lives.

The magistrate ruled that the matter will come up for mention on May 30. In the meantime, the police have been ordered to search for Kamran as well as the sureties "within and outside their addresses".

The sureties, who agreed in writing to make sure the accused appears in court at all dates specified in their undertaking, may have to forfeit their properties or amount of money specified in their surety undertaking.

The ‘Daily News’ could not establish the nature of properties or amount of money that the sureties had pledged.

In the case that has attracted local and international attention, the accused persons are alleged to smuggle out of the country more than 100 live animals and birds including four giraffes worth 113,715 US dollars on November 26, 2010.

The animals in question were allegedly exported to Qatar by a military plane without proper loading documents.

In criminal cases, accused persons have to be present during the whole trial even if they are represented by a counsel.

Daily News:

High Court in London says NI women not entitled to free NHS abortions in England

The High Court in London has ruled women from Northern Ireland are not legally entitled to free abortions on the NHS in England.

The case was brought by two claimants who launched a legal challenge against the current position.

Unlike the rest of the UK abortion is only allowed in very restricted circumstances in Northern Ireland.

More than 1,000 women each year travel from NI to have an abortion in other parts of the UK.

Those who do travel must pay for their transport, accommodation and the cost of the procedure.

The laws covering abortion in Northern Ireland are the 1861 Offences against the Person Act, and the Criminal Justice act from 1945. It is a criminal offence, which carries a life sentence.

The only exceptions are to save a woman's life, or if there is a risk of permanent and serious damage to her mental or physical health.

Figures released by the Northern Ireland Department of Health revealed that 51 terminations were performed in local hospitals in 2013.

According to the figures, that was an increase of 16 over the previous year.

In England, Wales and Scotland access to abortion is covered by the 1967 Abortion Act.

That permits terminations up to 24 weeks of pregnancy on grounds that include risk to the physical or mental health of the woman or existing children in the family, and abnormalities that could lead to a child being "seriously handicapped".

It is also allowed over 24 weeks if a woman's life or health is at serious risk, and for serious disabilities.

BBC News:

Traders refusing to use EFDs to go to jail for three years, TRA warns

Businesses and trading enterprises that are by law supposed to use Electronic Fiscal Devices (EFDs) but do not will be charged 5 percent of the total amount of their collections on first warning, on the second warning of defiance, a penalty of 10 percent will be imposed and on the third time, a fine of between 1m/- and 3m/- and/or a jail term of not more than three years imprisonment will follow.

Tanzania Revenue Authority (TRA) says the directives are to be observed in accordance to set country laws as per Cap 104, subsection 2 of the TRA Act (2013) on revenue collection.

Speaking to The Guardian over a telephone interview at the start of the week in Dar es Salaam, TRA’S Director for Taxpayer Services and Education Richard Kayombo warned of severe punitive measures against ‘stubborn traders’.

He also reiterated TRA’s commitment to enforce the use of EFDs with even much more vigour following President Kikwete’s recent firm remark:
“The government is not going to reverse its stand over the mandatory use of EFDs.” 

“This is because we want to do away with unrealistic tax assessments that are based on guess work due to lack of reliable sales records on the side of the business community either due to poor record keeping or even intentional doctoring of records with the aim of evading taxes,” Kayombo went on to say urging the business community to be cooperative and comply. 

The government recently made the use of EFDs compulsory as of 2010 with the first phase involving businesses registered with Value Added Tax (VAT) and those with no VAT registration followed.

There are three types of EFD machines accepted for use, Electronic Tax Register (ETR) Electronic Signature Device (ESD) and Electronic Fiscal Printer (EFP).

SOURCE: THE GUARDIAN

Drugs case raises eyebrows

Arusha. 

The Police Force has said it suspects an attempt by attorneys here to secure bail for two suspected drug dealers.

Attorneys prosecuting the case involving Tanzanians of Asian descent, Dharam Patel, 26, and Nivan Patel, 20, had twice attempted to change charges facing the suspects without consulting the police.

The suspects, who were initially charged with drug peddling, are now charged with being in possession of narcotics, an offence which could see them secure the much-sought-after bail.

On Tuesday, the attempt prompted other remandees to strip naked at the resident magistrate’s court grounds as they were being forced to alight from the Prisons Department vehicles. The duo nabbed with 173 sachets of heroin and 300 rolls of marijuana last month, had spent barely a month in remand, yet they are about to secure bail mysteriously, the remandees were heard complaining.

They quizzed the reason behind the case facing their fellow remandees, which is before resident magistrate Mwakuga Gwanta, to be fast tracked while they have spent years waiting for theirs to be heard.

The head of Tanzania’s anti-drugs unit, Mr Godfrey Nzowa, said his office was informed of the attempts to bail out the duo, but was not officially consulted.

“The case was to be mentioned on April 29, this year, but was extended to Friday,” said Mr Nzowa, as he confirmed the dubious change of charges.

The law, according to Mr Nzowa, clearly stated that a suspect nabbed with Sh10 million worth of narcotics could be granted bail if he or she met some conditions, but when the value of the drugs exceeded the amount, he or she could not be granted the same.

“We’re closely following reports on the change of charges to see what is exactly happening,” he said. But until the time of going to press yesterday, the process of granting Dharam and Patel bail had hit a snag.

Arusha Regional Police Commander Liberatus Sabas distanced himself from the complaints levelled against the office of the Attorney General here, saying the Police Force’s role was to arrest suspects only.

Some of the protesting remandees said they were also facing similar serious charges such as armed robbery and murder, but they had been languishing in prison cells for years now.

“We must be treated fairly,” shouted one of the naked remandees to the astonishment of Arusha residents present at the court.

The prison vans parked in front of Fodey Security had to leave the court grounds at around 11:00 as a result of the remandees refusing to put on their clothes as well as refusing to alight. High Court registrar in Arusha Zone Willbert Mashauri, said he was not involved in the complaints because he was not investigating the case.

The Citizen:

Thai court says PM must step down for constitution breach

(Reuters) - A Thai court found Prime Minister Yingluck Shinawatra guilty on Wednesday of violating the constitution and said she could no longer serve as caretaker premier, a decision likely to increase tensions in the bitterly divided nation.

Judges delivering the verdict said Yingluck had abused her position by transferring the country's National Security Council chief to another post in 2011 so that a relative could benefit from related job moves.

It was unclear whether Yingluck's cabinet, or cabinet members at the time of the transfer in 2011, would have to step down along with her. Judges were still reading the verdict.

Yingluck's removal is likely to bring her supporters into the streets in protest.

(Reporting by Amy Sawitta Lefevre; Editing by Martin Petty)

Uganda becoming a police state, says Bukenya

Uganda, Parliament. 

Former vice president Gilbert Bukenya yesterday told fellow MPs that Uganda is becoming a police state.

Prof Bukenya (Busiro North) was contributing to an issue raised by Bukoto South MP, Mathias Nsubuga. Mr Nsubuga wanted government to explain the use of teargas against Democratic Party supporters who were celebrating the nomination of DP candidate, Brenda Nabukenya in the coming by-election for Luweero Woman seat. 

“It is a sign of hard times ahead,” he said. “If we continue this way, we will be going into a police state.

“When I get nominated, I go around my constituency to mobilise,” Prof Bukenya said.

Ever since being dropped as vice president, Prof Bukenya has been critical of “government excesses”. 
Junior Internal Affairs minister James Baba said he was not aware of the teargas incident but promised to make a statement to Parliament before Thursday.

The Incident

Anti-riot police fired tear gas and dispersed opposition politicians who had gone to witness Ms Nabukenya’s nomination an act the opposition party DP has condemned. Those who were dispersed include former FDC president Dr Kizza Besigye, former DP leaders Ssebana Kizito and Paul Kawanga Ssemogerere. LOP, Wafula Oguttu and FDC president Maj Gen Mugisha Muntu.

Daily Monitor:

Woman injured as blast hits church premises in Mwanza

THE bomb blast on Monday night at the Iman East Lake Victoria Parish of the Evangelical Lutheran Church of Tanzania (ELCT) on Airport Road here seriously injured a maid at its rest house, Ms Bernadette Alfred.

According to ELCT’s Secretary, Mr Rogart Mollel, an explosive device that was wrapped in a plastic bag was abandoned at the rest house’s corridor.

“It is wonderful and God is really great," he told reporters, "For the past three days, Bernadette had wanted to collect the abandoned luggage but was hesitant.

She eventually picked it up on Monday and opened it when the bomb went off, seriously injuring her. Ms Alfred, who was rushed to Bugando Medical Centre, suffered serious injuries on her legs and face.

Mr Mollel told reporters that it was difficult at this point in time to suspect anyone in connection with the criminal act because many people came in and left despite the reinforced security at the church gates.

“This event has puzzled and confused us – making us recall similar bombings that targeted churches in Zanzibar, Dar es Salaam, Arusha and now in Mwanza. ‘’I don’t know what the intention of the blast was,” he wondered.

A security guard at the church, Mr Charles Mathayo, said that he arrived at his sentry post at 18:00 pm. At 2:00 pm, he reported hearing a booming sound from the direction of the rest house and when he rushed there he saw Ms Alfred helplessly lying down and crying in agony.

‘’When I saw Bernadette also bleeding profusely, I shouted for help, which I got after people came rushing to the scene. The police also arrived and immediately started investigations.

An eyewitness, who was one of the occupants in the rest house, Ms Elina Emmanuel, said that she was busy somewhere when she suddenly heard the sound of the blast. She encountered a heavy smoke as other rest house tenants got off their rooms and rushed for cover.

The Mwanza Regional Police Commander (RPC), Mr Valentine Mulowola, later confirmed the incident to reporters, saying the bomb was ‘home made.’

He called on the public to report to the police when they come across suspicious objects in their surroundings.

He said that when a person sees something that is abnormal, he or she should take precaution and keep away from such objects until the police arrive at the scene.

A doctor at Bugando, whose name was not immediately obtained, confirmed receiving a bomb victim at the medical centre, but did not allow reporters to see her, since her condition was still critical and was kept in an emergency ward where she could not even talk.

Daily News:

NON-CUSTODIAL MEASURES: TANZANIAN CONTEXT

NON-CUSTODIAL MEASURES: TANZANIAN CONTEXT

By Jaba Shadrack (Assistant Lecturer), UDSM – School of law (Department of Public law), jabashadrack@gmail.com

1.      Introduction to Punishment and Treatment of Offenders

Traditionally, the theory of retributive justice is based on the idea of retaliation (punishment), which is valuable in itself, and also provides deterrence. Before non-custodial movement, sentences of execution and/or imprisonment were thought to be effective ways of removing criminals’ threat to the public safety. However, non-custodial measures add to these goals, trying to reform the offender (rehabilitation) and put right what he did (reparation). Again, in the past, victims of crimes only played a small part in the criminal justice process. Conversely, under the current set up, the restorative approach to justice often makes it a part of a sentence for the offender to apologize, compensate the damage they have caused or repair it with their own labour.

Generally, there are two specific types of sentences options available to a judge or magistrate i.e. custodial or non-custodial sentences as explained below.

·  Custodial sentencing/measures (imprisonment/correctional facility/putting someone behind bars):

A custodial sentence is a judicial sentence, imposing a punishment (and hence the resulting punishment itself) consisting of mandatory custody of the convict, either in prison (incarceration) or in some other closed therapeutic and/or educational institution.  

·         Non-custodial sentencing/measures  

The phrase “Non-custodial measures” is defined as follows;

Any decision made by a competent authority to submit a person suspected of, accused of or sentenced for an offence to certain conditions and obligations that do not include imprisonment; such decision can be made at any stage of the administration of criminal justice [Tokyo Rules: Rule 2.1].

Non-custodial measures may include: unpaid work (this can be called community payback or community service); house arrest; curfew; suspended sentence (that means that breaking the law during a sentence may lead to imprisonment); wearing an electronic tag; mandatory treatments and programs (drug or alcohol treatment, psychological help, back to work programs); fine; apology to the victim; specific court orders and injunctions (not to drink alcohol, not to go to certain pubs, meet certain people); regular reporting to someone (offender manager, probation); judicial corporal punishment.

·  Other names for non-custodial measures, includes; Diversion measures, Alternative to incarceration, Alternatives to custodial sentencing, community services, Disposition measures and Alternative Sanctions.

Note: Detention and correctional facilities in Tanzania includes; Police stations (i.e. police lockups), Prisons, Retention Homes, and Approved Schools.
  
2.      Local and International laws/Standards on Non-custodial measures

(a) Relevant Local Legislations;

ü  The Constitution of the United Republic of Tanzania, 1977 (Article 45 – Prerogative of Mercy/Presidential Pardon/Amnesty).

ü  The Presidential Affairs Act, Cap. 9 (RE: 2002), Section 3 (to be read in the light of Article 45 of the URT Constitution, 1977).

ü  The Probation of Offender’s Act, Cap.247 (R.E 2002)

ü  The Community Service Act, Cap.291

ü  The Prisons Act, Cap.58 (Section 52 & 72)

ü  The Parole Boards Act, Cap.400

ü  Transfer of Prisoners Act, No. 10 of 2004, Section 12 and 13.

ü  Criminal Procedure Act, (RE: 2002) – nolle prosequi (Section 91), discharge (Section 152), habeas corpus [section 390(1)] and etc.

ü  The Extradition Act, No. 15 of 1965 (RE: 2002) -  habeas corpus

ü  Law of the Child Act, No. 21 of 2009, Sections 101, 116 and 119.

ü  The Immigration Act, No. 7 of 1995 (RE: 2002), Section 14 (conviction and deportation order)

ü  The Deportation Act, Cap. 380 (RE: 2002)

ü  The Penal Code, Cap. 16 (Section 26)

ü   The Resettlement of Offenders Act, No. 8 of 1969 (RE: 2002), Sections 4, 5, 6 and 8.

(b) International Standards;

ü  The United Nations Standard Minimum Rules for Non-custodial measures (The Tokyo Rules), 1990 [Rule 2.1, 5.1, 8.2 and 9.2]

ü  United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985 [Rule 18]; and

ü  The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985. (Restorative justice, Rule 8-17).

3.      Why Non-custodial Measures?

The shift towards alternative sentencing means that some offenders avoid imprisonment with its many unwanted consequences. This is beneficial for the society, as it may prevent them from getting into the so-called the revolving door syndrome i.e. recidivism or incorrigibility. Furthermore, there are hopes that this could alleviate prison overcrowding and reduce the cost of punishment.

 Table I: reasons (summary)

ü  To avoid overcrowding in prisons
ü  To save taxpayers money in keeping offenders, employing pore personnel, expanding facilities and sometimes outsourcing private companies to manage prisons
ü  To rehabilitate offenders (treatment and psychological help)
ü  To avoid reoffending (recidivism and incorrigibility)
ü  To reintegrate/restore offenders back into the society
ü  To avoid paralyzing the economy (i.e. to allow offenders to take part in own economic activities, pay taxes and taking care of their families)

4.      Types/Forms of Non-custodial measures: Scope of Application

Basically, non-custodial measures applied to offenders differ from country to country based on legal provisions and powers conferred on various authorities. However, the most common ones includes; 

(a)   Non-custodial measures at the pre-trial stage

v  Discharge of offender – with or without conditions – bail – especially, juvenile offenders
“Where appropriate and compatible with the legal system, the police, the prosecution service or other agencies dealing with criminal cases should be empowered to discharge the offender if they consider that it is not necessary to proceed with the case for the protection of society, crime prevention or the promotion of respect for the law and the rights of victims. For the purpose of deciding upon the appropriateness of discharge or determination of proceedings, a set of established criteria shall be developed with in each legal system. Form in or cases the prosecutor may impose suitable non-custodial measures, as appropriate.” (Rule 5.1).

The use of non-custodial measures at the pre-trial stage should also be seen in the light of the basic rule reflected in Rule 6.1, according to which “pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim”. Rule 6.2 promotes the earliest possible use of alternatives to pre-trial detention.

v  Diversion from Prosecution/Out of Court Settlement

Diversion can be defined as the channeling of prima facie cases from the formal criminal justice system on certain conditions to extra-judicial programs, at the discretion of the prosecution. 

The number of complaints received by the police and prosecutors would overload the criminal justice system if they were all prosecuted in the courts. The police, prosecutors, and courts have an array of options available to them to divert offenders from prosecution. These are to be found in the penal statutes, and may include: Absolute or conditional discharge, Verbal sanctions,  An arbitrated settlement,  Restitution to the victim, or a compensation order, Community service order,  Victim-offender mediation, Family group conference,  restorative process/justice.

Table II: restorative justice (meaning)

Restorative Justice:   Means any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator. Restorative processes may include mediation, conciliation, conferencing and sentencing circles.  
Restorative outcome means an agreement reached as a result of a restorative process. Restorative outcomes include responses and programs such as reparation, restitution and community service, aimed at meeting the individual and collective needs and responsibilities of the parties and achieving the reintegration of the victim and the offender.  

v  Plea bargaining

Comes into play once a case has been lodged, and it does not exist in statutory form. The underlying idea is to dispose of criminal cases without resorting to trials. Plea bargaining permits the prosecuting authority and an accused or his/her lawyer to enter into a plea and sentence agreement. The court may not participate in the negotiations, but is required to approve the plea and sentence, before making it an order of the court.

v  Other alternative disposition measures includes prerogative actions such as: Withdrawal of cases, nolle prosequi, Habeas Corpus, and etc.

(b)   Non-custodial measures at the trial and sentencing stage

As to the sentencing stage, the Tokyo Rules provide for a range of non-custodial measures which the judicial authorities may use. Although in doing so, they should take into consideration; the rehabilitative needs of the offender, the protection of society and the interests of the victim, who should be consulted whenever appropriate (Rules 8.1 and 8.2).

According to Rule 8.2 (a) to (m), the sentencing authorities may dispose of cases in the following ways: verbal sanctions  (such as admonition, reprimand and warning); conditional discharge; status penalties; economic sanctions and monetary penalties (such as fines and day-fines); confiscation/expropriation order; restitution to the victim (compensation order); suspended or deferred sentence; probation and judicial supervision; a community service order; referral to an attendance centre; house arrest; any other mode of non-institutional treatment; or, some combination of these measures.

(c)    Non-custodial measures at the post-sentencing stage

The use of non-custodial measures is also encouraged at the post-sentencing stage, and in this respect Rule 9.1 of the Tokyo Rules provides that the competent authority shall have at its disposal a wide range of post-sentencing alternatives in order to avoid institutionalization and to assist offenders in their early reintegration into society. This rule is based on the principle that reducing the length of imprisonment can reduce the risk of offenders becoming institutionalized and thus unable to cope with society once they have been released. Consequently, it can be of advantage to grant offenders early release, while subjecting them, if necessary, to supervision. Rule 9.4 also promotes the idea of releasing offenders from an institution to a non-custodial programme at the earliest possible stage.

Rule 9.2 enumerates the following post-sentencing dispositions: i.e. furlough and half-way houses; work or education release; various forms of parole; remission; pardon/parole/prerogative of mercy/amnesty – President – Tanzania.

Table III: sanctions (classification)

Sanctions requiring supervision are: **Community Service, which involves performance of a certain number of hours of unpaid work for the benefit of the community, usually during the offender’s leisure time.  **House Arrest (home detention), where the offender is required to stay at home for a certain period; the confinement may be limited to night time (curfew) or to night- and leisure time.  **Electronic Monitoring, where a tag is attached to the person under supervision who cannot leave a designated area. **Open, Contract or Ambulant Treatment for drug or alcohol dependent offenders.
 
Sanctions that do not require supervision include: **Reparation (Restitution), where the offender directly compensates his/her victim by means of either monetary payment or unpaid services rendered.  **Confiscation of property derived from, or used in the commission of an offence.  **Suspension of driving- or other license. **Fines (penalties). 

5.      Non-custodial measures vis-à-vis Custodial measures

Table IV: Guiding questions

Does the system effectively contribute to a reduction of the prison population? Does it enable the offence-related needs of the offender to be met? Is it cost-effective? Does it contribute to the reduction of crime in the community? Are there legal safeguards in place protecting the human rights of the offender?  

Though not frequently used as penal sanction, custodial sentence (incarceration) remains a common punishment for most of crimes committed. While imprisonment is necessary in many cases involving violent offenders, it does not constitute a panacea with regard either to crime prevention or to the social reintegration of offenders. Again, in many countries the prison system faces major challenges such as overcrowding and outdated facilities, as a result prisoners find themselves in deplorable conditions that can have adverse effects on their physical and mental health, thus impede their educational and vocational training, thereby affecting their chances of future adjustment to an ordinary life in the community. The impact of long-term imprisonment on a person’s family and work life is also considerable.

According to the Commentary to the Tokyo Rules, non-custodial measures are of considerable potential value for offenders, as well as for the community, and can be an appropriate sanction for a whole range of offences and many types of offenders, and in particular for those who are not likely to repeat offences, those convicted of minor crimes and those needing medical, psychiatric or social help. In these cases, imprisonment cannot be considered an appropriate sanction, since it severs community ties and hinders reintegration into society and thereby also reduces offenders’ sense of responsibility and their ability to make their own decisions. On the other hand, non-custodial measures have the unique characteristic of making it possible to exercise control over an offender’s behavior while allowing it to evolve under natural circumstances.

6.      Non-custodial measures in Tanzania

(i)                 Administration

In Mainland Tanzania, there are different actors in the implementation of non-custodial measures. However, the lead agency or institution is the Probation and Community Services Department (under the Ministry of Home Affairs).

Generally, the Department was established in July, 2008 following the changes in the Organization Structure of the Ministry of Home Affairs. The Department is responsible for managing the implementation of Non-Custodial Sentences across Mainland Tanzania. For easy functioning, the Department (at the Headquarter) is divided into two main sections, namely; the Probation Services Section and Aftercare Services Section. Below the Headquarter there are Regional and District Probation Offices responsible to the Director and Regional offices respectively. The Department is headed by the Director who is assisted by two Assistant Directors.

The basic functions of the Department and the two Sections are: to monitor and supervise probationers; to monitor and supervise the implementation of community services program; to monitor and supervise parolees as part of aftercare services; to monitor and supervise offenders under the extra mural penal employment scheme; and to build capacity of Local Government Authorities in the management and implementation of probation and community services.

(ii)     Key Stakeholders to the Implementation of Non-Custodial Court Orders in Tanzania

(a)   Internal Stakeholders

  • The Judiciary
The obligation of the Judiciary in the implementation of Non-Custodial Sentences does not end up with imposing punishment, but also to supervise Community service Committees. The fact that a Judge of the High Court, Resident Magistrate in-charge and District Magistrate in-charge in their respective jurisdictions are chairing the National, Regional and District Committees respectively is evidence that the court has a special role in the implementation of Non-custodial sentences in our Country.

  • The Prisons
Prisons Department has different obligations in implementing Non-Custodial Sentences. Section 52 of the Prisons Act, No.34 of 1967 (RE: 2002), gives legal power to the Officer In-charge of the prison to recommend inmates who are serving sentences not exceeding 3 years to serve under community service program. The Department also provides members to different Community Service Committees at National, Regional and District levels and receives back offenders who have violated conditions of the Court Orders.

  • The Police
Police Force has significant role in the implementation of Non-Custodial Sentences in the Country; it provides members to the Community Service Committees at National, Regional and District levels; arrests offenders who have violated the conditions of the Community services Orders and provides relevant information of offenders to Probation Officers when conducting Social Investigations.

·         Local Government Authority

The implementations of Community Service Orders depend largely on the availability of placement institutions that provide works to offenders. The LGAs had played an important role for providing placements to offenders to execute their punishments in its respective institutions such as Dispensaries, Schools, Ward and Village offices, Hospitals, City, Municipal and District Councils etc. The LGAs also cooperated with Probation Officers in the supervision and monitoring of offenders in their respective residential areas and provides relevant information to Probation Officers when conducting Social Investigations.

(b)   External Stakeholders

  • The Kenya Probation Services
The Tanzania Probation and Community Services Department is working closely with the Kenya Probation Services Department. Kenya has advanced in the field of Community corrections as current statistics show that 50% of the convicted population is serving under non-custodial programmes. Therefore, there are many issues which can be learnt and shared between the two countries.

  • The Penal Reform International
The Penal Reform International (PRI) is an the International Non-Government Organization based in the UK that works in the field of Penal Reform. The PRI is occasionally working with our Department by assisting in professional capacity building and training of to enhance the use of non-custodial sentencing.

(iii)             Statistics and Implementation of Non-custodial Measures in Tanzania

In Mainland Tanzania, Non-Custodial Programs (Community and Probation Services) are currently implemented in 17 Regions namely; Arusha, Coast, Dar es Salaam, Dodoma, Geita, Iringa, Kagera, Kilimanjaro, Mara, Morogoro, Mbeya, Mtwara, Mwanza, Shinyanga, Singida, Ruvuma and Tanga. Nevertheless these regions are not wholly covered as only 89 over 200 districts are benefiting from the services. 

Since in July, 2005 up to April, 2013 the Department has managed to supervise a total number of 5,157 offenders under Non-Custodial Programs i.e. (Community and Probation Services). Among the supervised offenders, a total number of 3,930 offenders have completed their sentences and were successfully re-integrated back into their respective communities while a total number of 1,227 offenders are still serving their sentences.

 (iv)             Common Forms of Non-custodial Measures in Tanzania

(a)   Probation

This is a non-custodial court sanction by which a (either juvenile or adult) defendant, who has been adjudicated or found guilty of an offence, is diverted from commitment to a (juvenile or adult) correctional institution and released, subject to certain conditions imposed by the court and under the supervision of a probation officer. Probation in criminal law is a period of supervision over an offender, ordered by a court instead of serving time in prison.
In some jurisdictions, the term probation only applies to community sentences (alternatives to incarceration), such as suspended sentences. In others, probation also includes supervision of those conditionally released from prison on parole.

·         The Probation Orders

Under the Probation of Offender’s Act, Offenders may be sentenced to Probation in which case the Court may impose a Probation Order on the accused. The sentenced person is not supposed to serve that term in Prison but is ordered to be of good behavior for the whole period he is put under Probation Order.

·         Application

Before the person is ordered to serve under Probation, the Court considers the character of the accused, mental condition of the offender, the nature of the offence, antecedents, age, home surroundings, health or any extenuating circumstances in which the offence was committed. With regards to the stated factors, the Court may then do the following; Convict the offender and make a Probation Order; or without proceeding to conviction, make a Probation Order.
An offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a probation officer. During this testing period, an offender faces the threat of being sent back to prison, if found breaking the rules.
The Probation Order has effect for a period of not less than one year and not more than three years from the date of the order.

·         Advantages of Probation

As a punishment, it offers the opportunity of rehabilitation and reintegration into the community without the social and family disruption caused by imprisonment. This is particularly true of juvenile supervision. Probation is an effective and cost-effective sanction which allows savings by the correctional administration. In all countries, supervising an offender in the community costs far less than imprisonment. In some civil law systems Probation has been included in the criminal legislation as a truly alternative sanction, i.e. a defendant is sentenced to a probation term. In other civil law countries, a suspended prison sentence with condition, including supervision, constitutes the legal framework for probation. In many civil law countries, a prison sentence of between 18 months and 2 years is automatically suspended with no conditions in the case of a first conviction. In some countries, the charge may be suspended to divert a first-time offender from the whole court process.

Table IV: definition of terms

A suspended sentence is a legal term for a judge's delaying of a defendant's serving of a sentence after they have been found guilty, in order to allow the defendant to perform a period of probation. If the defendant does not break the law during that period, and fulfills the particular conditions of the probation, the judge usually throws out the sentence.

Split sentence means that, while the defendant is ordered to spend mandatory time in jail, he or she isn’t incarcerated for the entire sentence. Rather, the court ordinarily suspends part of the sentence and places the defendant on probation for the remaining time. This has the effect of the defendant serving a relatively short period of time in jail, often (but not always) between 30 and 90 days with the rest of his or her sentence spent on probation.

(b)   Community Service

By definition, this is an order of the Court whereby the offender is offered the opportunity of compensating society for the wrong she or he has done by performing work for the benefit of the community, instead of going to prison

·         The Community Services Court Orders

Community Service Order is an order of the court committing the offender to perform unpaid public work in public institutions for the benefit of the community for a period specified in the order instead of going to prison. The order applies to persons who have been convicted for offences punishable by imprisonment for a term not exceeding three years with or without the option of fine or for a term exceeding three years but for which the court determines a term of imprisonment for three years or less with or without the option of fine (Section 3 of the Community Service Act, No.6 of 2002 Cap. 291).

The public institutions that provide placements for offenders include Central Government and Local Government institutions, Community Based Organizations and Non-Governmental Organizations performing work of public nature.

·         Community Service Committees

In Mainland Tanzania, there are Community Service Committees at National, Regional and District levels. Members of these Committees are drawn from different institutions within the Criminal Justice system such as the Police, Prisons, Public Prosecution, Tanganyika Law Society and the Judiciary. The general function of these Committees is to advice the Government in their respective areas proper implementation of Community Service Orders in the country.

·         Works of Public Nature Performed by Community Service Offenders

Such works of public nature includes, but not limited to: Construction or maintenance of public roads or roads of access; Afforestation works; Environmental conservation and enhancement works; Projects for water conservation, management or distribution and supply; Maintenance work in public schools, hospitals and other public social service amenities; Work of any nature of a foster home or orphanage; General cleaning and related activities; Rendering specialist or professional services in the community and for the benefit of the community; and Other manual works as may be approved from time to time.

(c)    Parole

In 1994 Tanzania Mainland introduced the parole system as an additional non-custodial sentence available under the law. The relevant Act became operative in 1998 through Government Notice No. 783 of 1997. A year later the National Parole Board was inaugurated. The system was deemed necessary to deal with the plight of long-term prisoners who deserved an urgent attention for the sake of prison security, correctional administration and community safety.

·         Definition

The term Parole is interpreted differently in different countries. Broadly, it is a period of time following release from prison, when the offender is given help to reintegrate into society. During this time the offender may be supervised by a probation or parole officer. In a nutshell, parole is the provisional release of a prisoner who agrees to certain conditions prior to the completion of the maximum sentence period.

·         Application

There are often conditions attached to Parole imposed by a governing body, usually a Parole Board or Parole Judge. Breaches of any of these conditions can lead to immediate recall to prison. If an offender re-offends while on Parole he may be required to serve the remainder of his existing sentence in prison in addition to any other sanction imposed by the court.  In civil law countries an early release from prison can be granted in accordance with certain conditions or with no conditions, usually by decision of a correctional magistrate. (Read: the Prisons Act, Cap.58 (Section 52 & 72) and the Parole Boards Act, Cap.400).

NB. The Parole and Extra Mural Penal Labor Programs in Mainland Tanzania are currently being undertaken by the Prisons Department until after necessary amendments are done to the Prisons and Parole Boards Acts to mandate Probation Officers to supervise Parolees and Extra Mural Prisoners.

Note: usually, non-custodial measures are subjected to conditions and restrictions, the violation of which may in serious cases lead to imprisonment.

(v)               Approaches in handling and treatment of non-custodial offenders

Generally, there are four main approaches employed by the relevant authorities in handling as well as management of offenders in Mainland Tanzania. These are:-

  • Rehabilitation
Rehabilitation is the key component in the management of offender’s behavioral change. Thus, offenders are assessed by Probation Officers to identify the actual and special needs for rehabilitation. In daily practice, offenders are given socio-psychological counseling for behavior modification, taught social and life skills and entrepreneurship as means of empowering them to live life-free of crimes. Offenders with special needs (Drug addicts, HIV/AIDS, T.B) are referred to appropriate institutions for treatment.

  • Restorative Justice
 Probation Officers also practice restorative justice by bringing together conflicting parties for reconciliation (the Offender, Victim of crime and the Community). Reconciliation helps to restore trust and strengthen relationships among the parties which in turn facilitate smooth implementation of Non-custodial Court Orders.

·         Supervision

Offenders are closely supervised both at their respective work placements and at their places of residence. The supervision involves regular visits to enforce the implementation of the Court Orders. In addition, the supervision process involves several stakeholders such as offender’s sureties and relatives, victims of the crime, neighbors and respective Local Government Authorities to facilitate correction and successful re-integration.

7.      International Dimensions (Minimum standards) on Non-custodial measures

According to Rule 1.1, the two fundamental purposes of the Tokyo Rules are to provide:
a set of basic principles to promote the use of non-custodial measures”; and “minimum safeguards for persons subject to alternatives to imprisonment”.

(a)   Scope of non-custodial measures (Safeguards/restrictions) – principles

·         Non-discrimination: Are applicable to “all persons subject to prosecution, trial or the execution of a sentence” (Rule 2.1). Rule 2.2, the Tokyo Rules “shall be applied without any discrimination on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth or other status”.

·         Flexibility: Rule 2.3 promotes considerable flexibility in the development and use of non-custodial measures based on the following four criteria: the nature and gravity of the offence; the personality and background of the offender; the protection of society (the prevention of crime); and the avoidance of unnecessary use of imprisonment.

·         Legality: Rule 3.1 thus provides that “the introduction, definition and application of non-custodial measures shall be prescribed by law”. The requirement that non-custodial measures must be defined and applied only as “prescribed by law.

·         The requirement of consent: it is essential that the suspect or accused person consents to the non-custodial measure because, where it is imposed instead of formal proceedings, consent to it can lead to the renunciation of the legal safeguards that would exist if the case were proceeded with.

·         Right to review: Rule 3.5 stipulates that “decisions on the imposition of non-custodial measures shall be subject to review by a judicial or other competent independent authority, upon application by the offender”. This right of appeal is an additional safeguard against arbitrary decisions.

(b)   Minimal intervention Principle

ü  Rule 3.8 prohibits non-custodial measures involving “medical or psychological experimentation on, or undue risk of physical or mental injury to, the offender”.

ü  In the implementation of non-custodial measures, the offender’s rights shall not be restricted further than was authorized by the competent authority that rendered the original decision” (Rule 3.10). This is a rule based on the principle of legality: any interference with a person’s rights must be based on law, and no further restrictions can be imposed without a decision taken by a duly authorized authority acting in accordance with the law.

ü  In the application of non-custodial measures, the offender’s right to privacy shall be respected, as shall be the right to privacy of the offender’s family” (Rule 3.11). In this respect the Commentary advises against the use of methods of surveillance that treat offenders solely as objects of control; further, surveillance techniques should not be used without the offenders’ knowledge, and persons other than properly accredited volunteers should not be employed for the surveillance of offenders.

ü  The right to dignity and the right to respect for the offender’s privacy are also protected by Rule 3.12, according to which “the offender’s personal records shall be kept strictly confidential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the offender’s case or to other duly authorized persons.”

(c)    The criteria for resorting to non-custodial measures and the need for discretion

A second important legal safeguard in the application of non-custodial measures is that, as stipulated in Rule 3.2, the selection of a non-custodial measure shall be based on an assessment of established criteria in respect of: the nature and gravity of the offence; the personality and background of the offender; the purposes of sentencing; and the rights of victims.

(d)   Implementation of Non-custodial Measures

In implementing non-custodial measures, the Tokyo rules lays down the following standards;

·         The supervision of non-custodial measures

As emphasized in Rule 10.1, “the purpose of supervision is to reduce reoffending and to assist the offender’s integration into society in a way which minimizes the likelihood of a return to crime.”

·         The duration of non-custodial measures – (not indeterminacy sentence/measure)

As to the duration of the non-custodial measure, it “shall not exceed the period established by the competent authority in accordance with the law” (Rule 11.1), but “provision may be made for early termination of the measure if the offender has responded favorably to it” (Rule 11.2).

·         The conditions attached to non-custodial measures

According to Rule 12.1, whenever the competent authority has to determine the conditions to be observed by the offender, “it should take into account both the needs of society and the needs and rights of the offender and the victim”.

·         The treatment process

Rule 13.1 of the Tokyo Rules provides the following examples of various schemes which, “in appropriate cases ... should be developed to meet the needs of offenders more effectively”: case-work; group therapy; residential programs; and the specialized treatment of various categories of offenders.

·         Discipline and breach of conditions

Even though the imposition of some non-custodial measures is dependent on the consent of the offender, most such measures are still sanctions that imply some restriction of liberty, and offenders may therefore fail to observe the conditions imposed on them. Such “a breach of the conditions to be observed by the offender may result in a modification or revocation of the non-custodial measure” (Rule 14.1). However, according to the Commentary, not all breaches need lead to modification or revocation, and the supervisor or competent authority can deal with minor transgressions by less formal means.

8.      Criticism of Non-custodial system in Tanzania

To understand why non-custodial sentences are not popular among law enforcers, two things need to be considered: one has to do with a tendency among judicial officers to move repeat offenders up the sanction hierarchy; the other is a big gap between the perceived severities of custodial versus non-custodial penalties. In brief, the use of non-custodial measures in Tanzania face the following challenges;
·         The penal laws do not have a comprehensive list of diversion measures towards offenders. The most common forms of non-custodial measures are probation, community service and parole, while non-custodial pre-trial measures are totally ignored.

·         The minimum sentences law applies minimum terms of imprisonment carte branche, thus preclude considerations being given to probation, conditional discharge, suspended sentences and entering into Recognizance.

·         The Parole Boards Act exclude prisoners who are serving short term imprisonment, hence limit the scope of its beneficiary.

·         Some of the existing non-custodial measures such as corporal punishment are said to be inhuman, degrading and barbaric, thus not in line with Article 13(b)(e) of the Constitution.

·         Court-Prison mentality: law enforcers (polices and prison officers), court officials, prosecutors and lawyers are not well trained in modern penal law movement, especially restorative justice. Therefore, there is a need to develop training curricula for law enforcers, judges, magistrates, probation service staff and others involved in the administration of alternative sanctions and measures.

·         The large section of the public is not aware about the use of non-custodial measures, thus this limits their participation in the implementation of alternative sanctions/measures. Again, members of the public are still with the perception that non-custodial sentence does not do justice to victims of the criminal acts, they urge that the system releases convicts who ought to pay dearly for their wrongful acts.  

·         Although the Law of the Child Act, 2009 provides for non-custodial sentences for children, in practice they are not available owing to a significant shortage of probation officers and social welfare officers. 

·         Corruption among members of the parole boards, law enforcers and within the judiciary has eroded the essence of using non-custodial measures as in most cases these measures are available to offenders who can pay to influence the decision or have connection with government officials.

9.      Conclusion
In a punitive context dominated by risk aversion, we often overlook aims of non-custodial measures such as rehabilitation and reintegration of offenders. This go beyond utilitarian aims to reduce prison overpopulation and recidivism or incorrigibility. Again, retribution has come to override the legal principles of proportionality and custody as a last resort. There is now ample evidence demonstrating that they are not being used to divert individuals from prison. To the contrary, they are being used to manage risk and against individuals who in the past would not have been brought into the penal web. That is, contrary to popular belief they are being used to sanction individuals who should be punished less rather than more. 

References:

Commentary on the United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules), Geneva.

Frank, S. (2010) The Applicability of Parole System in Tanzania: Challenges and Way Forward. Advanced paper submitted in partial fulfillment of the requirement for Masters of laws (LL.M.) Degree of the University of Dar es Salaam.

Hogg, A. (2012) The Privatization of Non-custodial Measures: An uneasy Balance between Legitimacy and immediacy. Oñati Socio-legal Series, Vol. 2(4):144-174.

Marcus, D., Ed. (2004) Alternatives to Custodial Sentencing: A Manual for the Implementation of Community Service Orders in the O.E.C.S. CDARI, Castries, Saint Lucia.

OHCHR & IBA (2002) Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers. Geneva.

Robins, S. (2009) Improving Africa’s Prisons Prison policy in Sierra Leone, Tanzania and Zambia. ISS Policy Brief Nr 09, September 2009.

Sarkin, J. (ed) (2008) Human Rights in African Prisons. HSRC Press, Cape Town.

UNDOC (2006) Custodial and Non-Custodial Measures: Alternatives to Incarceration (Criminal Justice Assessment Toolkit), New York.



JURIST - Paper Chase

Blog Archive

Followers