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Failure to halt trial postponements swells prison ranks

27th February 2012
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President Kikwete looking at a calendar with Chief Justice Mohammed Chande Othman at the Tanganyika Law Society’s Law Day in Dar es Salaam recently.(File photo)

Greetings for the coming week, and in the last one those with an interest might have noted a newspaper heading stating “Counsel’s absence stalls Liyumba phone case again”.

This familiar scenario, is hardly worth a mention, as for decades court cases here have been delayed because of the ‘lost file’ syndrome……’the missing keys to the desk that contains the file’, ‘the magistrate’s sick mother in the village….. ‘the judge’s urgent medical check-up’, and a myriad other excuses, not remotely excusable.

…. in mid 2009, these became an epidemic! On August l4th, This Day paper reported “EPA case postponed as magistrate fails to turn up”.

On the adjoining page was “Chenge case postponed as DPP still holding original charge sheet”. On the 26th August could be read, “Court shelves Jeetu Patel case, as presiding magistrate has lost a relative”, and just three days later on the 29th The Guardian informed readers, “Inquiry into death of remandee Juma Lissu put off again”.

In the case of Mr. Lissu, allegedly beaten to death by police in Arusha, a lawyer acting for the family said the latest adjournment was due to ‘other duties’ at the high court but prior to that, …..”the coroner was attending a funeral”, then …..” the coroner was on leave, and the acting one had no mandate to act”.

A shocking tally given the short time span over which they occurred and the fact that every deferred case has cost implications and remandees returned to prison.

For some in the legal profession here, failure to turn up (couldn’t they be fined?), or causing people to wait for long periods, seems of little consequence, and while having the right to exercise ‘contempt of court’ when applicable, few are challenged on being contemptuous of the wider public.

An indifference to time is common in many areas of public service, but prisoners on remand for six years takes it to new levels. Some years ago, remandees at Keko prison, went on hunger strike to publicise their plight, gaining Tanzania negative airtime on world news broadcasts…. and they could still be there today!

The government defence was ‘congestion’ in the system, but if the system is unworkable and inefficient, then congestion is the self perpetuating result.

Whilst there’s been educative improvements in recent years, in courts nation wide, corruption can still be compounded by ignorance, and vice versa.

This was particularly true of some primary courts where untutored magistrates could wield enormous powers, often aided by people who were so desultory in their duties, that the ‘missing file syndrome’ was almost a forgone conclusion, intentional or not. When allied to limited resources, the waters get further muddied, making fair play even more unlikely.

Anyway, we know the quote “all men are equal, but some are more equal than others”, and if cases are ever rapidly processed through the courts here, it’s undoubtedly been due to ‘unequal’ connections’ …… lucky chicken thieves might expect a six year wait…. the unlucky ones are beaten to death on the streets!.

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In 2004, former President Mkapa at the 25th Anniversary celebrations of the Court of Appeal of Tanzania, made a speech rightly condemning trials that drag on endlessly for frivolous reasons and excuses.

This was evident in the infamous corruption case brought against former Minister for Works, Nalaila Kiula and four others in 2000. From the very start, when this case, which had already taken over four years of preparation and investigation, first came up for mention on January l2th, it was adjourned as the Kisutu Court magistrate couldn’t proceed because the file was still at the High Court…..all of five minutes away!

The hearing was then postponed till January 25th, and I jokingly urged them in print to send a messenger off immediately with the documents, so he’d have l3 days to cover the distance on time. One year later the prosecution was still floundering, so there wasn’t any hurry after all!

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I’m citing these cases in the hope we’ve made improvements, but fast forward to today, and has there been enough reform in the judicial machinery over the last twelve years to strengthen public confidence in it?

Officiating at Law Day celebrations earlier this month, President Kikwete backed calls for alternative punishments to reduce prison overcrowding. But was he tempted to ask “what took you so long?”…….or should they have asked him, I don’t know which, but it doesn’t appear to have been a serious area of priority.

Law Day marks the start of the Court Calendar Year throughout the country, and the theme this year is “Alternative penalties for criminal cases and its advantage to the public”. An uninspiring slogan, not likely to set the pulses racing and invite interest, but a move in the right direction never the less.

It makes sense if ‘alternative penalties’ means community work etc. instead of custodial punishment. In which case the lower courts must stop dispensing brutal disproportionate sentences for petty crime. ‘Theft of a goat’, five years imprisonment…….’brewing illicit drink’, four years……etc. it’s mostly the poverty ridden who fill the prisons.

…..but steal billions and you drive off into the sunset in your Land Cruiser. An unscientifically based perception…..commonly held…by almost everyone I think!

P.S. this badly written discordant piece today is courtesy of Tanesco’s intermittent power supply de-stabilising my brain cells!.

SOURCE: THE GUARDIAN
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