TODAY, 1st February, 2024; is recognised as "Law Day' in the United Republic of Tanzania. The practice of marking this day had its humble beginnings in the year 1996, and the idea itself was conceived by the then Chief Justice of Tanzania, the late Hon. Mr Justice Francis Nyalali. May his soul rest in eternal peace.
I was, at that time, the Speaker of the Tanzania National Assembly. On one blessed morning of an ordinary working day in January of that year, I received a telephone call from Chief Justice Francis Nyalali, who invited me to his office for a "little discussion" the next day. I accepted the invitation. And when we met, that is when he explained his plan of introducing "Law Day" in the Judiciary calendar.
He told me that what he had in mind, was to set aside one agreed day in every year, which would be dedicated to making serious reflections on the general performance of the Judiciary in carrying out its constitutional mandate of dispensing justice. But, he said, since Parliament is the sole fountain of all the country's laws, whenever it exercises its crucial, major role of legislation; he had considered it important, and actually necessary, to involve that Institution's participation in this annual function; and that, he said, was the reason for his invitation to me to come to this discussion.
I readily agreed to cooperate, and that is how this "Law Day" was born, as a cooperative venture between the Judiciary, and the Legislature. Initially, it started as a 'single-day' event, to be held on 1st February of every year; and was being observed only at the national level, the venue being one of the court rooms of the Tanzania High Court headquarters building in Da es Salaam.
Those were the 'humble' beginnings of "Law Day", and what was stated by Chief Justice Nyalali was the principal purpose of celebrating 'Law Day'. But these celebrations were subsequently expanded, both in their scope to cover a whole week of activities, carried out in all of the Regions and Districts of Tanzania; as well as in their purpose, which now includes "educating the public" on various matters relating to the dispensation of justice.
And at the National level, this expansion also involved the attendance of the Head of State, the President of the United Republic; which explains why President Samia is gracing them today with her personal presence in Dodoma, the new seat of the Union government.
The theme for this year's celebrations is- "the importance of the concept of justice for the welfare of our nation, and the role of the Judiciary, and stake holders, in improving the integrated criminal justice system". The relevant stake holders are, presumably, aware that the "justice system" involves a number of important steps which are normally taken in the criminal justice process; which include: investigation, arrest, prosecution, court hearings, and imprisonment (in cases where offenders are duly convicted).
At one time in the course of my varied public service responsibilities, I also had the privilege of being appointed Chairman of a commission which was tasked to undertake a 'comprehensive review' of the entire range of the criminal justice system, and make recommendations for their improvement.
This was "The Judicial System Review Commission", which was established in on 14th November,1975; and became known as "The Msekwa Commission". I was then the Vice Chancellor of the University of Dar es Salaam.
It was a 'small-size' commission of only seven members, including the Chairman; assisted by a secretariat of only two officials. its 'Terms of Reference" were to investigate the following matters, and submit appropriate recommendations: - "(i) Whether the present structure, and system of operation of the courts of Tanzania is satisfactory. And if not, what changes should be made, or what steps should be taken, to enable our courts to render better service.
(ii) Whether the present structure and the system of operation of the departments concerned with prosecution are satisfactory; and if not, to recommend changes which should be made, or steps which should be taken, to enable these departments to render better service.
(iii) Whether the structure, and system of operation of the defence advocates is satisfactory; and if not, what changes should be made to ensure that they provide better service. (iv) To consider the various procedural laws which regulate the manner of hearing cases (specifically, the law of evidence, the criminal procedure code, and the civil procedure code); and to recommend changes for their improvement, which will result in the general improvement in the administration of justice, as well as well as the advancement of the war against crime. (v) To consider any other matter, which will improve the administration of justice in our country.
We worked hard and diligently, and produced our final Report and recommendations to the appointing authority, in early 1977. Glad to say, all our recommendations were accepted. They included a recommendation to establish a permanent "Law Reform Commission; "which shall keep the law constantly attuned to the changing needs or requirements of our Society in the economic, social, and political fields".
Our basic argument for that recommendation was stated as follows: - " No law which is constantly nourished with new ideas can be an effective instrument in bringing the desired changes in any society. We feel that in order to ensure constant mobilisation of the law in the heavy tasks of development, there is need to establish an independent organ, which will constantly monitor the administration and general operation of the law; with a view to maintaining its relevance, in the constantly changing times and conditions.
We therefore recommend the establishment of a permanent, statutory 'Law Reform Commission', which shall be charged with responsibility for the constant reform of the law".
The recommended permanent 'Law Reform Commission' was promptly established in 1983, and, to my surprise, with me as one of its part-time commissioners. And, an even greater surprise was that my service 'contract' on that commission was repeatedly renewed, until the time of my final retirement from the public service, in 2012.
The role of stakeholders
As we have already seen above, the theme for this year's 'Law Day' celebrations, includes taking a look at "the role of stakeholders" in improving the justice delivery system. This will be the main focus of today's presentation.
In my own personal experience gained from working on these issues, my settled view is that the primary role of stake holders in the delivery of criminal justice processes (and the fight against crime in our society), is that of serving as prosecution "witnesses" in criminal case hearings, when required to do so. But I have also noticed the unfortunate reluctance, or unwillingness, or even fear, of going to court to undertake this civic duty, which appears to afflict some of our people. it is my humble opinion that this behavioural 'defect' is what has made the fight against corruption in our society exceedingly difficult; despite the stringent laws which have been enacted for that specific purpose.
During the time when I was the Member of Parliament (MP) for Ukerewe, I encountered one particular incident, which readily attests to the existence of this unwillingness; which is the following:-There was one medical doctor at our District Hospital, who was widely accused of taking bribes from his patients; and I had publicly promised to take this doctor to court, if anyone would bring to my attention a reliable evidence of his alleged evil actions. I was working in my constituency office one day, when two excited persons walked in, with the news that the said doctor had demanded a bribe from the husband of a woman who was waiting at that moment, at the hospital to deliver. She could not deliver normally, and needed a medical operation. Because the husband had no cash, he had offered a cow instead, which the doctor accepted, and the cow has already been delivered, and is standing there in the hospital grounds. Then they asked me: Mhe. Mbunge, is this not the kind of reliable evidence you have been looking for?
Indeed it was, if it was true. So, I immediately went off with them to the hospital grounds to verify their story. Yes, the husband was there, who confirmed the story I had been told about his wife, but avoided mentioning the doctor's demand for a bribe.
When I asked him about this, and about the cow which he had brought to the doctor for that purpose; and whether he was ready to be a witness to this fact in the District Magistrate's court in order to help in the fight against corruption?
There was manifest hesitation before he answered. And when the answer came out, it was totally negative. Because he said: " No, it is not true that I brought this cow here to bribe the doctor. I am actually selling this cow, and this being Christmas time, I thought I would find a ready market here at the hospital. Hence, if you are interested, Mhe. Mbunge, just take it". I was totally disappointed. and this was not an isolated case of people here in Ukerewe, being unwilling to go to court as witnesses, for the generally adduced reason that "it entails a lot of inconvenience (usumbufu), because of the court habit of frequent adjournments of cases, thus necessitating the witness's frequent attendance, to the detriment of his other responsibilities".
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This reluctance, or unwillingness, is what mainly encumbers the fight against corruption through court proceedings. However, there are also other factors; including the law itself, in its provision that 'the giver of a bribe, as well as its recipient, are both guilty of the offence of corruption'. This provision tends to scare the bribe givers away from going to court to give evidence, for the obvious fear that they too will be caught in that corruption net.
This reminds me of a (presumably) imaginary story, which is told in an old book titled "Oliver Twist"; in which Mr Brounlow tells Mr. Bumble, that "the law supposes that your wife acts under you direction". To which Mr Bumble replies: "if the law says that, the law is an ass - an idiot".
But, surely, our anti-corruption law is definitely not an ass. It is seriously intended to fight the corruption virus in our society, most effectively. As President Nyerere himself put it in his speech relating thereto: -
"Hatukufanya mzaha, tulipotunga sheria kali ya kupambana na rushwa, ambayo iliweka masharti kwamba ikithibitika Mahakamani kwamba mtu amekula rushwa, basi yule aliyetoa rushwa hiyo, na yule aliyeiokokea, kila mmoja wao atakiona cha mtema kuni. Kwani tuliweka adhabu ake kuwa n kifungo kisichopungua miaka miwili jela; pamoja na kupigwa viboko ishirini na nne, kumi na mbili siku anapoingia jela, na kumi na mbili siku anapoondoka, ili akamuoneshe mke wake".
But, in practice, it does not always work that way, as was demonstrated in the 1963 corruption case against Minister Abdallah Fundikira, in which the giver of the bribe was convicted on his own plea of guilty; but the accused Minister, Chief Fundikira, was acquitted!
However, when it comes to electoral corruption, other factors emerge, which belong to the category of "accomplices".
piomsekwa@gmail.com /0754767576.
