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Chief Justice decries tough bail restrictions

THIS is a three week series exposition after President John Joseph Pombe Magufuli had recently paid a surprise visit at the Butimba Central Prison in Mwanza. It is the second in series after the first one was in my previous column with a catch phrase of “Lesson from Butimba Central Prison.”

I am trying to walk on and add value to the observations raised by President Magufuli on the state of overcrowding in our prisons and the plight of the remand prisoners who face delayed trials necessitating them to spend long times in incarceration.

The recent intervention by the Chief Justice Prof. Ibrahim Hamisi Juma on the overcrowding of Tanzania’s prisons has unleashed a very interesting discourse that perhaps may go a long way in easing congestions in our prisons.

President Magufuli was irked with the overcrowding situation of our prisons and what he saw and heard from the inmates was indeed a litmus paper to our criminal justice system.

The Chief Justice confirmed that Judiciary was very much aware of that situation and had earlier on detailed Ministry of Constitution and Legal Affairs to probe into that insurmountable problem of congestions in our prisons and possibly find out a solution.

Just immediately after the President had visited the prison, the Minister of Constitution and Legal Affairs Dr Augustine Mahiga together with the Director of Public Prosecution Biswalo Mganga revisited the Butimba Central Prison where more than 75 remand prisoners were released on nolle prosequi.

According to Dr Mahiga’s observation during his visit to prisons in the Lake region zone, he found out that the ratio of remand prisoners to convicted ones is 4:1 which is over and above the normal ratio of 1:3!

With this situation, you cannot rule out the possibility of overcrowd- ing in prisons caused by the excessive numbers of remand prisoners waiting for their cases to be adjudicated.

But why are they there in the first place? Is it that our criminal justice system is not effectively working? The Chief Justice is very much convinced that provision of the law regulating the bail on trial or appeal is very restrictive as a result many people who ought to have been out on bail are kept in remand against the well established legal principle.

He My Postscript By Kiangiosekazi wa Nyoka is of the opinion that since bail is the right of the accused, there is no need of advancing restrictions for the bail.

He further suggested that as long as one has an official national identity card, this could be sufficient enough to support the awarding of the bail.

He also noted on the arbitrary arrest of people on irrelevant charges such as those involved in the Contracts!

It is an established legal fact that under no circumstances should bail be withheld for the purpose of punishing the accused.

Ironically remand prisoners have of late been filling these prisons as they have unorthodoxly outnumbered the convicted prisoners.

At one particular day, the prison population in Tanzania was reported to be 17,000 and 18,000 convicted and remand prisoners respectively, totalling to 35,000 prisoners in the whole country with the authorized holding capacity of 22,699 only.

Due to lack of investigating skills by police Officers serious crimes like murder, armed robbery are just pro- nounced to offenders as a leeway to continue with investigations.

Investigation skills normally go with experi- ence and not a question of only having LLB as is the case with our young po- lice officers.

In a study that was carried in Malawi as portrayed in a book by Vivian Stern, “Alternative to Prison in Developing Countries,” poses a big question whether the English system, to which Malawian system and other developing countries are so closely tied, is desirable, feasible or sustainable to these countries?

Unfortunately the independence of Judiciary is pegged on Western values which sometimes are incompatible with our situations. The problem of overcrowding of our Prison is based on historical neglect of this very important component of criminal justice system Prisons.

After independence of this country 1961 there was no problem of congestion as the coverage capacity of our prisons in 1960 to 1965 was 12,499 in mates with average population 11,436.

The problem became serious from 1980 when the average population was 36,233 against, by then 19,432 as authorized accommodation. This did not get well with the increased crime commission in the country.

According to Justice E. Mwipopo’s 1986 Commission on Overcrowding of Prisons, it revealed that in 1965 there were 102,614 reported Police cases, while those convicted were 11,436 but by 1985 there were 231,648 reported cases while the capacity of our prisons remained the same!

As the county’s population grew up from 10, 567,000 in 1961 to over 25,000,000 in 1991, it did not correspond with the prison capacity while more convicted prisoners found their ways into prisons with long sentences.

That was the beginning of coming up with drastic bail laws like the 1985 when some offences were declared not bailable while others had cumbersome processes that had to follow Section 148 of the Criminal Procedure Code, Section 35 of the Economic and Organized Act 1984 also with the introduction of Sexual Offences Special Provision Act 1998 (SOSPA).

Following this new development it has become obvious that provisions regulating bail pending trial in respect of certain offences have become too restrictive.

This departure from pre 1985 po- sition defeats the objective of bail and the principles behind this objective.

The motive of bail is to ensure that the accused person will attend trial without being detained in remand prison.

Prior 1985 almost all offenses were bailable including murder and treason whose bail could be sought in the High Court and that is the position of Anglo- American jurisdictions.

Perhaps we should think anew on those proposals advanced by the Head of Judiciary as well as the Criminal Justice Forum, Chief Justice Ibrahim Juma.

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Author: Kiangiosekazi wa-Nyoka

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