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Justice delayed is justice denied
2007-03-19 08:21:35
By Emmanuel Kihaule
Imagine that you are an innocent person who is implicated in a murder case. You are arrested and thereafter denied bail on grounds that murder is not a bailable offence.
The case drags on in a court of law for five years or so and on judgment day, the court sets you free on ground that there was no sufficient evidence to convict you.
First of all you are shocked, not believing the order by the judge presiding over the case because the many years that you have spent behind bars have made you regard yourself as a wrongdoer though in real fact you never committed the crime.
This is not an imagination but it is what happened last week to Alex Nkolela, a soldier with the Tanzania People’s Defence Forces (TPDF), who was a co-accused in a murder case that was before the High Court of Tanzania.
Nkolela together with other four people were accused of having murdered a prominent Dar es Salaam advocate, Eliuta Kapinga way back in 2002.
Reading the judgment, High Court Judge Juyston Mlay, convicted the four of murder, but set free Nkolela on grounds that “evidence given by the prosecution has failed to prove beyond reasonable doubt that Nkolela participated in the killing of Kapinga.”
This is just one of many instances in which an accused person spends years in remand waiting for the court to determine his fate.
Actually, Nkolela should regard himself lucky because there are many more such people in Tanzanian remand prisons even for over ten years waiting for justice.
Don’t be shocked that some of these would be set free by the court due to lack of evidence.
A good example is the case of remandees in Dar es Salaam who boycotted going to courts by refusing to disembark from trucks ferrying them from remand prisons on ground that they wanted to meet senior government officials to express their grievances over undue delays in their cases.
The remandees were protesting against the manner in which the case facing the then Tabora Regional Commissioner, Ukiwaona Ditopile Mzuzuri, was handled by both the police and the judiciary whereby he was able to come out on bail after just a few months whereas some of them have been in remand for the past 15 years waiting for the courts of law to determine their innocence or conviction.
Ditopile is facing manslaughter charges before the High Court of Tanzania for allegedly killing a commuter bus driver one, Hassan Mbonde, at Kawe in Dar es Salaam on November 4, last year and has hired competent lawyers to defend him.
Commenting over the matter, the Minister for Justice and Constitutional Affairs, Mary Nagu, said last week that the expediency in Ditopile’s case was because `security officers who investigated the case had received maximum cooperation.`
Though we can’t comment on the minister’s explanation because the matter is before the court by now, it is hard to believe that the reason for undue delays in hundreds of cases countrywide, is due to lack of cooperation alone.
Even the police themselves have admitted that some of the demands by the inmates are valid.
Tanzania is obliged under both International and national law to ensure that the right to a fair hearing is respected and this implies the right to be presumed innocent until proven guilty by a court of law, the right to be tried without undue delay, right to defend oneself or hire a lawyer, among many other rights.
International human rights law and the Tanzanian constitution provide for a right to trial without undue delay such that proceedings must start and final judgment (after all appeals) must be rendered without undue delay.
This right obliges the authorities to ensure that all proceedings, from pre-trial stages to final appeal are completed and judgments issued within a reasonable time.
Thus, the law requires the prisoner to be released if criminal proceedings are not started and completed within a reasonable time and for anyone charged with a criminal offence and held in custody, the obligation on the state to expedite trials is even more pressing.
It is unexplainable why there are a lot of such delayed cases in Tanzania despite the existence of laws stipulating the above.
Lauding the remandees`action, which has now spread to other parts of the country, the Executive Director of the Legal and Human Rights Center, Helen Kijo-Bisimba, says ‘Tanzania lacks proper procedures in dealing with remandees.`
According to her, holding remandees for more than two months without hearing their cases is contrary to the law.
`The procedure must be complete within sixty days, or else the accused should be released and can only be sent to court when investigations concerning the charge(s) are complete,`she says.
She criticized the tendency among police officers of holding remandees for a long time on grounds of carrying out investigations.
`his is unconstitutional and a typical violation of human rights. State organs involved in detaining people should be visiting the inmates to understand their problems,`Kijo-Bisimba who is also a lawyer by profession insists.
Another reason for cases to take years and years in courts of law is the general ignorance of law and rights among the accused persons. Tanzania has adopted the adversarial legal system, which entails that any dispute or criminal trial is to be resolved by courts of law after affording a fair and adequate opportunity to the parties to argue their case.
Under the system, the court (magistrate or judge) is more or less an umpire and ought not to take any sides in the matter before it and the decision would be passed in favour of the party that has successfully presented its side to the case.
The system assumes that both parties to the case are capable of arguing their dispute or where unable to do it themselves, hire a legal counsel to present their arguments (submissions) during the trial.
The good thing about the system is that it allows an impartial and competent court to have a clear picture of the case before it and thus uncover the truth, which in turn, leads to a decision arrived at in a fair manner.
However, with the prevailing conditions in poor countries such as Tanzania, much is still to be desired about the system due to acute shortage of lawyers, ignorance of laws and rights, among the majority of the population.
As a result, there have been reports of some instances in which equal rights and opportunities have equally been operated unequally and harshly, adversely affecting the poor parties who are unable to argue their cases properly or engage competent lawyers for the same.
One of the major principles of a good legal system is the requirement for ensuring that all people are treated equally before the law whenever their rights come into question.
This is irrespective of their social status, political affiliation whatsoever.
In fact, even the law in Tanzania stipulates that all people are equal before the law regardless of any other differences meaning that in case they have a dispute before a court of law, they all deserve to get a decision which is a product of a judiciously conducted trial.
The law in Tanzania recognizes the right to legal representation to parties with a case before the court, but this is subject to payment of fees to lawyers except for certain serious offences such as murder, in which the state provides free legal aid to the accused persons.
Most of the time, the fees are far above the reach of the majority of the population who live on less than a dollar a day.
It is on this background that there are some centres established to provide free legal aid to the needy.
However, the majority are in towns and cities despite a big number of the population being in rural areas.
Besides, there are reports that some of the centres have put in place long and bureaucratic procedures for one to get assisted and in some instances, allegations of demand for bribes in order for one to be assisted, have cropped-up.
As a result, some poor people have in turn been discouraged and forced to give up and let their rights be infringed on without any recourse or die before they get their rights.
For those who are in remand continue `otting`behind bars because of absence of legal representation and inability to argue the case.
Dr. Fauz Twalib, a prominent advocate and university lecturer, in his book The Legal Profession in Tanzania, admits that a party with legal representation is likely to win over the one with none because of technicalities and legal knowledge involved.
Tanzania has an acute shortage of lawyers more so criminal lawyers, just like many other developing nations.
It is worth noting that most criminal offenses attract harsh punishments including life imprisonment, hanging and many more besides denial of bail in case of capital offenses such as murder and treason.
The fact that, majority of parties in criminal cases are poor, some of them even failing to get bus fair to attend court sessions, means that lack of legal representation and the undue delays adversely affect their rights.
It is high time for the government to act or else we would witness more and more people losing trust in the law enforcement system the situation which is a good recipe for lawlessness.
This is because, I beg to quote the words of the former British Prime Minister, the late William Ewart Gladstone, justice delayed is justice denied.
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