Justice into the Ground

Obadia Kajungu · 2024-08-24T12:38:13+00:00

Justice into the Ground! Is the Legal System and Lawyers Failing Tanzanians? By Obadia Kajungu, Esq. We, as lawyers, are the main obstacle to justice in Tanzania. We have failed to uphold the law by not interpreting it in line with legal philosophies and theories. Our failure in this responsibility has caused great harm to our nation socially, politically, and culturally. This has created opportunities for enemies of the country to destabilize the nation. The truth is that our justice system lacks what I can call institutional equilibrium within the branches of government, leading to a perceived lack of cooperation between the government and the people. The stagnation in our legal system, including the absence of a public policy-oriented approach to interpretation, has caused significant damage. Innocent Tanzanians are suffering in prisons worse than in hell because their cases are not being heard. Marriages are being broken, leading to street children or single-parent families, which in turn causes the government to contribute to children who may develop tendencies like homosexuality, drug abuse, theft, and prostitution. These families were broken when their parents were imprisoned without trial while the government continued to hold them, knowing it could not prosecute these cases effectively. Read Related: Tanzania’s Criminal Justice System: Analysis of President Samia’s Commission Key Findings & Recommendations On the one hand, the government cannot manage the cases, while on the other hand, the courts fail to make decisions when justice demands them. All of this results in social costs for the government. Moreover, the country loses income and experiences a lack of money circulation because those wrongfully imprisoned are the ones who would have been buying, selling, and paying taxes. Businesses, banks, and other commercial institutions are going bankrupt, leading to unemployment, loss of government revenue, and social instability because the owners of these businesses, who are the lifeblood of these enterprises, are languishing in jail for long periods without knowing if they are guilty. The lack of a firm stance on matters of justice and the failure to interpret the law in accordance with national policies are part of what is hindering Tanzania’s industrialization policy on the one hand and disintegrating our society on the other. Given the state of justice in our country, we, as lawyers who studied and swore to defend justice, should have been the first to die so that the things happening before our eyes do not continue. God sees what we are doing to His people. “For whoever wants to save their life will lose it, but whoever loses their life for my sake will find it.” Matthew 16:25. I believe every lawyer should be guided by this verse from the Gospel of Saint Matthew to be a sacrifice for the rights of God’s people. Laws are like cars. You can have a brand-new car, but if you don’t know how to drive it, you won’t be able to take a sick person to the hospital, and they may die because you can’t drive your car, even though you bought it with your own money. So, the problem isn’t the car; it’s the driver. Laws are tools that must be understood and properly used, like machines, to solve problems or complete tasks. Laws are the guiding light for any government or nation. If a nation falters in its legal system, it will inevitably face instability, whether socially, politically, or economically, and in extreme cases, the nation could collapse entirely. The work of the law is very challenging and is one of the fields that require deep thought to fulfil the purpose of the law. A Latin legal maxim says, “cessante ratione legis, cessat lex ipsa“, meaning, “When the reason for a law ceases, the law itself ceases.” This principle highlights the importance of understanding the purpose behind creating a law when interpreting it. Judges, magistrates, and lawyers do not simply read and interpret laws as written on paper; they use different judicial decision-making processes. These include grand style, unorthodox, or realism, as opposed to formal style, orthodox, formalism, or literalism. Realism is a method of legal interpretation where judges focus less on the literal words of the law as written in statutes and more on the social effects of their decisions. On the other hand, formalism involves interpreting and applying the law exactly as it is written, even if the outcome might be unreasonable or harmful to society. Courts also rely on various canons of statutory interpretation to achieve grand and formal style objectives in judicial decisions. Some of these include the literal rule, which interprets the law as it is written; the golden rule, which aims to avoid absurdity; the mischief rule, which seeks to understand the legislature’s intent; and purposive interpretation, where judges interpret laws based on the purpose intended by the lawmakers. In addition to these canons, there are also aids to interpretation, which can be either intrinsic—found within the legal text, like definitions, titles, or notes—or extrinsic, such as preparatory works, textbooks, legislative debates, and official reports. Moreover, there are logical aids to interpretation, such as noscitur a sociis (interpreting a word in context with related terms), ejusdem generis (interpreting general terms in line with more specific terms that precede them), and expressio unius est exclusio alterius (the mention of one thing implies the exclusion of another). These tools help judges and courts determine the true intent of a law passed by the legislature. If you don’t go through all these processes, you might continue to see laws as an accountant or engineer does, which is not how they are meant to be understood. Therefore, laws in the courtroom are not always based on logic, which means that legal decisions can sometimes be unexpected or different from what most people might anticipate. In summary, when judges or lawyers use these judicial decision-making styles and canons of statutory interpretation, including legal presumptions, in legal English, these are referred to as “legal reasoning.” Non-Bailable Offenses and the Right to Bail Moving beyond the introduction, I want to explain why I argue that even non-bailable offences, particularly money laundering, which has become a significant threat to society, should allow for bail. This issue has led to a justice crisis in our country, Tanzania. The government designs criminal laws and does not intend to make individuals disappear before the court. Instead, the court has the unchallenged authority to create a contract between itself and the accused to ensure their presence throughout the trial. The court can grant or deny the accused bail, even if the offence is legally bailable. Bail is a conditional right, essentially an interim order allowing an individual to remain out of custody while awaiting the hearing and determination of the main case. These interim orders, known as “equitable remedies,” are rights that the court can grant to the accused, the plaintiff, or the defendant, following its unchallenged discretion to deliver justice and mitigate the law’s harshness that could hinder justice. The court’s power to grant equitable remedies stems from its inherent authority, which goes beyond what is explicitly provided in the Constitution. No legislation can take away this inherent power. In the case of Anisminic Ltd versus Foreign Compensation Commission [1969] 2 AC 147, the law granted the Compensation Commission full authority to make decisions regarding compensation for companies whose assets had been seized. The law also emphasized that “…no court shall have the authority to interfere with or question the decisions of the Commission in any way…” However, recognizing its inherent powers to dispense justice, the court, in this case, chose to bypass that restrictive clause and continued to question the Commission’s decisions, regardless of the legal prohibitions (known as ouster clauses). The court justified this by considering various factors, such as whether the Commission acted in bad faith, misinterpreted the law, abused its power, or considered irrelevant factors. The court held that failing to review the Commission’s decisions would amount to dereliction of its duty to deliver justice. Therefore, when legal professionals define bail in criminal cases as a contract between the court and the accused, where the accused is required to appear at specified dates, times, and locations as determined by the court, along with other conditions such as non-interference with investigations or not committing similar offences, no legislation can strip the court of its constitutional freedom to contract to facilitate justice. Bail is not a verdict but an interim decision, similar to “Temporary Injunctions” in civil cases, which are also granted under the court’s inherent powers—powers that exceed those granted by the Constitution. The well-known Black’s Law Dictionary defines “inherent powers of courts” as “powers over and beyond those explicitly granted in the Constitution or reasonably to be implied from express grants.” Hence, when a court grants or denies bail in criminal cases, it exercises discretion in delivering justice. The court is not obliged to grant bail even in bailable offences. Similarly, why should the court be denied the freedom to grant bail in non-bailable offences? To understand the legislative intent behind making certain economic sabotage offences non-bailable or subject to stringent conditions, one must use the “mischief rule” of interpretation, which involves tracing the history leading to the new law. This means examining the prior law and the problem it sought to solve and then determining the solution the new law intended to provide. Historically, the inclusion of non-bailable offences, such as money laundering, in the legal framework stems from the government’s experience that economic saboteurs often flee the court, interfere with investigations, or obstruct prosecution, thereby denying the government justice. In sociology, this concept is called “institutional functionalism,” which relates to the functioning of institutional systems, such as government branches. This theory emphasizes that institutions or government branches must work interdependently, ensuring their ultimate goal is achieving a common objective while operating through different methods and environments. The absence of institutional or systemic equilibrium leads to social chaos. In fulfilling their duties, all government branches must cooperate (systems complementarity) to achieve national goals; otherwise, problems such as the failure of judicial independence and other issues will arise. Government as a Family: The Need for Institutional Cooperation A government is much like a family; the children suffer when parents are not in harmony. For example, if the mother misbehaves, the father may end up being harsh to the children even if the “equilibrium” of the household is disturbed. This equilibrium concept is essential for the smooth functioning of any institution, including government. Article 9 of the Constitution of the United Republic of Tanzania also reflects the need for institutional cooperation (institutional complementarity) to maintain a balance within the branches of government. This article outlines the Constitution’s goals, which include building the Union and Revolutionary Government of Zanzibar or any of its organs and fostering brotherhood and peace through the pursuit of socialism and self-reliance. The Constitution mandates that all state authorities and organs direct their policies and activities toward achieving national goals, such as respecting human dignity, protecting and enforcing the law, promoting economic development, and ensuring that the nation’s wealth is used for the benefit of all citizens. In my research, I discovered that this constitutional article is the source of conflict between the judiciary and the executive. The judiciary often struggles to align with national policies. When the government sets a policy on industrialization and middle-income economies, the judiciary must interpret the law to protect and support the country’s economy. If the government shifts to a socialist approach, the laws must also be interpreted through that lens. Montesquieu’s (1689-1755) concept of the separation of powers did not mean that the branches of government should operate in isolation without any coordination. Instead, they should work together, each within its scope, to achieve the common goal of the nation. A legal scholar from Pakistan, Mahmud K, once stated that institutional justice, based on the core parameters of Rawlsian equality and equity, is preferred to achieve egalitarianism. In this context, legislative, executive, and judiciary collaboration is required to fulfil the Constitution’s preamble and objectives. The lack of cooperation between the judiciary and other branches of government is evident in various decisions, especially in cases of economic sabotage where accused individuals have been granted bail under conditions that do not adequately protect the government’s interests. As a result, the government has lost many cases. This experience led the government to enact strict and harsh laws regarding the right to bail. Consequently, the judiciary finds itself constrained, unable to exercise full independence. A Swahili proverb says, “If you want to chase away flies, first remove the carcass.” Judicial independence cannot be achieved if the judiciary has not established independence in other areas, leading the government to intervene. It should be understood that when the government reaches the point of enacting strict and harsh bail laws, it is not intended to punish its citizens but rather to compel the judiciary to ensure that its clients do not escape and that the government’s rights are not compromised. The Wahaya have a proverb that says, “The death you wish upon your stepmother will befall your mother.” This means that the harsh bail laws, intended to restrain the judiciary, have harmed the people the government aims to protect rather than restricting the judiciary. Legal experts call this the “adverse social effect of the law.” Marriages are breaking up; the government is creating street children or children of single parents, despite knowing the challenges children face in today’s world, such as exposure to rape, which can lead to homosexuality. The country is losing economic activity because businesspeople are ending up in jail. At the same time, the courts are unsure how to build the nation by assisting accused individuals whose cases lack sufficient evidence, and the government seems unable to manage these cases. Conduct a SWOT analysis of the judiciary’s failure to interpret these laws. You will find that the government incurs more losses than the crimes themselves, including the cost of maintaining remand prisoners whom the government knows it will not convict. What Should the Judiciary Do About Non-Bailable Offenses? In essence, completing investigations, a process dating back to Roman law is not the judiciary’s responsibility. The government should not be bound by a statute of limitations under the Latin legal maxim “nullum tempus occurrit regi,” which means “no time runs against the King.” However, this principle does not allow the government to imprison people indefinitely without trial. When you examine Section 225 of the Criminal Procedure Act, Cap. 20, you will find that cases that remain in court for more than 60 days are at the court’s discretion or due to the court’s failure to make decisions. The section states: 225.—(1) Subject to subsections (3) and (6), before or during the hearing of any case, it shall be lawful for the court, in its discretion, to adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present, and in the meantime the court may suffer the accused person to go at large, or may commit him to prison, or may release him upon his entering into a recognizance with or without sureties at the discretion of the court, conditioned for his appearance at the time and place to which such hearing or further hearing shall be adjourned. (4) Except for cases involving offences under sections 39, 40, 41, 43, 45, 48(a), and 59 of the Penal Code or offences involving fraud, conspiracy to defraud, or forgery, it shall not be lawful for a court to adjourn a case in respect of offenses specified in the First Schedule to this Act under the provisions of subsection (1) of this section for an aggregate exceeding sixty days except under the following circumstances— (a) wherever a certificate by a Regional Crimes Officer is filed in court stating the need and grounds for adjourning the case, the court may adjourn the case for a further period not exceeding an aggregate of sixty days in respect of offenses stated in the First Schedule to this Act; (b) wherever a certificate is filed in court by the State Attorney stating the need and grounds for seeking a further adjournment beyond adjournment made under paragraph (a), the court shall adjourn the case for a further period not exceeding, in the aggregate, sixty days; (c) wherever a certificate is filed in court by the Director of Public Prosecutions or a person authorized by him in that behalf stating the need for and grounds for a further adjournment beyond the adjournment made under paragraph (b), the court shall not adjourn such a case for a period exceeding an aggregate of twenty-four months since the date of the first adjournment given under paragraph (a). (5) Where no certificate is filed under the provisions of subsection (4), the court shall proceed to hear the case or, where the prosecution is unable to proceed with the hearing, discharge the accused in the court save that any discharge under this section shall not operate as a bar to a subsequent charge being brought against the accused for the same offense. (6) Nothing in this section shall be construed as providing for applying this section to any proceedings in a subordinate court in relation to any offense triable only by the High Court under the Economic and Organized Crime Control Act. Understanding the Challenges of Prolonged Detention and Judicial Interpretation When you look at Section 225(5) of the Criminal Procedure Act, you’ll see that if an investigation isn’t completed within 60 days. The prosecution continues to request adjournments—even up to 24 months as permitted by the DPP—the court loses the authority to keep a suspect in custody for more than two years, even in murder cases. So, why are some people languishing in remand prison for more than two years without trial? The problem isn’t the law itself but how it’s interpreted. Our courts have continued to use an outdated method of legal interpretation known as literalism, inherited from English law and rooted in Roman law. Literalism doesn’t require much effort because it relies on reading the law as it is written without considering the underlying intent of the legislature, the potential social impact, or the broader context. This approach doesn’t require legal reasoning or applying legal skills; it’s just about reading and applying the text. In India, where non-bailable offenses also exist and many of their laws resemble ours, the courts can either dismiss cases or grant bail if they see that the government might lose its case, even if the investigation has exceeded 60 days. This was demonstrated in the case of Anil Sharma v. State of Himachal Pradesh (1997), where the court exercised its discretion to grant bail because the investigation was not completed within the stipulated time. Is It Unconstitutional to Deny Bail for Certain Offenses? When the law states that a certain offense is non-bailable, is that against the Constitution? The answer is no. Any law enacted to fulfil the goals of the Constitution is not unconstitutional, even if it appears to contradict the Constitution’s text. For example, suppose the Constitution’s goal is to build a strong economy, and the experience shows that economic saboteurs are escaping justice. In that case, it’s legitimate for Parliament to pass stringent bail laws under the utilitarianism principle, as Jeremy Bentham (1748-1832) proposed. This means that it is acceptable for a few individuals to suffer under these laws if they benefit the greater good by protecting the nation’s economy. What Should the Courts Do When Prosecution Abuses the Judicial Process? In short, the law states that the court must use its inherent powers when the law has gaps (lacunae), is ambiguous, or when one of the parties in a case abuses the process. When the court exercises its inherent powers, it no longer looks strictly at the law but considers the rights of the individuals involved and makes decisions it deems just. Ronald Dworkin, a modern American philosopher, argues that laws should be interpreted with an economic perspective to align with the current government’s economic policies while also considering the parties’ rights. For instance, if a court finds that Parliament’s intent in restricting bail was not to punish people but to prevent suspects from fleeing, interfering with investigations, or obstructing justice, the court must assess the penalty the suspect would face if convicted. For example, if the offense involves evading taxes amounting to 10 million shillings and the suspect, if convicted, would be fined Tshs 20 million, the court must consider the government’s interest in recouping that money. It wouldn’t be against the law for the court to require the suspect to deposit Tshs 20 million in a court account as bail security or provide a bond of equal value. This way, the government secures its interest if the suspect violates the bail conditions. Moreover, if the suspect deposits Tshs 20 million as bail security, the government benefits from an interest-free loan, which the court holds until the case concludes. This also ensures that the suspect’s innocent children and dependents are protected, as the suspect can continue providing for them while on bail. Modern Legal Interpretation: Postmodernism Today, law interpretation falls under the philosophy known as “postmodern jurisprudence” or “postmodern interpretation of law.” This approach requires courts to consider the law itself, the individuals’ rights, and the potential social, economic, cultural, and political impacts of their rulings. In a complex society, courts must account for diverse factors such as race, class, gender, ethnicity, and dependents who may be affected by any decision. For instance, in today’s society, where extended family support systems are diminishing, denying bail to a person with young children could have severe consequences. Under the principle of “the best interest of the child,” international law requires courts to consider the impact of their decisions on children. Denying bail could leave children vulnerable to hunger, abuse, lack of education, or even death, especially if there are no other family members to care for them. The effects of such decisions extend beyond the immediate situation, potentially leading to long-term social issues like crime, substance abuse, or delinquency among children who grow up without proper care. Here in our country, the situation is dire, with courts even denying bail to pregnant women. In another case from India, Ilaben Dipakkumar Dhanraj Shah v. State Of Gujarat (1993), the court granted bail to a woman accused of murder, considering her circumstances—she had three children, aged 13 to 6, and no relatives to care for them. The court recognized the need to protect the children’s welfare, which outweighed the strict application of the law. Finally, in the case of Anil Kumar Sharma v. Enforcement Directorate (2020), the court granted bail to a defendant accused of significant financial fraud because he was the director of a real estate company. The court noted that keeping him in custody would lead to the collapse of his company, resulting in job losses and economic hardship. As I Conclude; It’s time for Tanzanians to understand that we live in a complicated society that questions the legitimacy of government actions. People are more educated, and even those with basic education know to question what experts should or should not do. For example, if a doctor tells someone who completed Form IV and studied basic biology that HIV is airborne, they would likely challenge that assertion, even though they are not a doctor themselves. My point is that professionals in all fields must do justice to their professions by understanding and applying their disciplines’ law, ethics, and principles to produce positive social outcomes. Whether you are an engineer, lawyer, doctor, or journalist, you must uphold the standards of your profession with integrity. In my opinion, the failure to do so is a significant reason why our African societies continue to struggle politically, socially, economically, culturally, and ideologically. God bless Tanzania.

Thread starter Obadia Kajungu
Start date Aug 24, 2024

Obadia Kajungu

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Aug 24, 2024

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Justice into the Ground

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