DEPARTED President Dr John Magufuli has contributed immensely in the development of the legal sector in Tanzania during his five-and-a-half years in power.
In this article, Staff Writer FAUSTINE KAPAMA analyses some of his contributions. THE over five years of his administration saw the late President John Magufuli making decisions which brought positive impacts in the legal sector and administration of justice, as well as the protection of the country’s natural resources.
After his nomination on July 21, 2015, as CCM’s presidential candidate for the 2015 general election, one of his priorities he marketed during the election campaigns was the fight against corruption. He promised to establish the Economic, Corruption and Organised Crime Court as division of the High Court of Tanzania.
Early 2016, it becomes apparent that President Magufuli was genuinely waging war on corruption in the country and proved to the contrary of what many though it would be business as usual.
The president endorsed the bill to become law for establishment of the High Court’s Division to help address graft problems in the country and speed up timely dispensation of justice whereas the rules governing the operation of the court were also prepared by the Chief Justice and published.
Such rules indicate how witnesses, to be called to testify during the trial, would be protected and they provide the procedure on how the cases to be determined by the court would be filed. The Corruption Court started operating in September 2016 and has so far received 407 cases, of which 385 have already been heard.
In an effort to address the problem of delaying the case, the president made another bold decision of signing a Certificate to strengthen the Attorney General’s Office and the National Prosecutions’ Office and also to establish the Office of the Solicitor General.
The signing of the certificate has increased productivity and brought about greater efficiencies in the supervision and management of cases in courts as well as in the Arbitration Tribunals both domestically and abroad. On February 13, 2018, the government published the Office of the Attorney General (Re-structure) Order, 2018 for the restructuring of the office of the Attorney General (AG) towards improvements in the legal sector.
Such Order was published in Government Notice (GN) No. 48 of 2018. The President exercised powers conferred upon him under Article 36 (1) of the Constitution, vesting in the President Powers to establish and disestablish such offices in the Services of the Government of the United Republic.
According to the Order in question, the President also established the Office of the Solicitor-General within the AG’s Office organization structure. It is in parallel with the Office of the National Prosecutions Services, commonly known as the Director of Public Prosecutions (DPP).
The Office of the Solicitor-General is charged with supervision of civil litigation and arbitration proceedings and shall be autonomous from the Office of the Attorney-General. Prior to this Order, all civil and criminal litigations were under direct control of the Attorney General.
Such Order further confers independence to the office of the DPP with mandate over all criminal litigations, while law officers in ministries, independent departments, executive agencies and local government authorities to be law officers and state attorneys under the supervision of the AG.
The reorganization was, thus, made to enhance and strengthen capacity to efficiently discharge duties under office of the Attorney General, Director of Public Prosecutions, Solicitor General and Law Officers in ministries, independent government departments, agencies and local government authorities.
Another milestone decision initiated by ex-President Magufuli’s administration is the coming of the Mining (Local Content) Regulations, 2018, which were included in the Written Laws (Miscellaneous Amendments) Act No. 7 of 2017. These Regulations were enacted following the Amendments of the Mining Act, 2010.
These Regulations have to be followed by contractors in order to ensure that local content rules are adhered to all persons or companies involved in the mining industry. A Committee has been established so as to oversee the implementation of these Regulations in the mining industry in Tanzania.
These Regulations clearly state that priority has to be given to qualified Tanzanians in employment and on job training. Further, the Regulations provide that preference has to be given to local service providers and goods which are manufactured locally. Companies which will be given first preference in the grant of mining license are indigenous Tanzanian companies.
According to the Regulations, legal services have to be provided only by local legal practitioners or local law firms, while the insurance and financial services used by these companies should be local ones only.
The Mining (Local Content) Regulations, 2018 also provide that Tanzanian companies which are indigenous must hold an equity participation of at least 20 percent in mandatory joint venture arrangements for supply of goods and services which will be required.
It is stated further that the indigenous Tanzania companies are required to have at least 5 percent equity participation in a mining company. The failure to comply with the Regulations attracts heavy criminal and administrative sanctions, notably fines up to five million US dollars.
Amendment of the Criminal Procedure Act (CPA) is another decision that has brought positive developments in the dispensation of justice in Tanzania. The Written Laws (Miscellaneous Amendments) (No.4) Act of 2019 introduced, among others, a plea-bargaining system.
Such system is applied in several criminal cases and is so helpful in the speedy of judicial proceedings. It is a move that ensures timely delivery of justice, reduce backlog of cases, as well as reducing inmate congestions in prison facilities.
Though it is hard to exercise such system in complicated cases, such as those falling under the Economic and Organized Crime Control Act, President Magufuli with a sign of loving his people under his government, came up with another surprising decision.
This time around the Head of State granted an amnesty to persons facing economic cases, who were willing to cooperate with the government to return the money they are suspected of occasioning as loss to the state, repent and promise not to repeat committing similar crimes.
President Magufuli directed the Director of Public Prosecutions (DPP), Mr Biswalo Mganga, to meet with the accused persons and sign a plea-bargaining agreement in accordance with the law in order to end their trials that are pending in various courts countrywide. This procedure has held many accused person to get out of prison custody.
The DPP is in record presenting to the president a list of 467 economic sabotage suspects who opted to plead guilty to their charges and repay over 107bn/- for release from remand prisons. More than 138 suspects have been set free from various prisons countrywide through this arrangement.
More recently, the Chief Justice, Prof Ibrahim Juma, published new rules, the Criminal Procedure (Plea Bargaining) Rules, 2021 (Rules). Such Rules were published under section 194H of the Criminal Procedure Act (CPA) on February 5, 2021 vide Government Notice (GN) No.180 of 2021, for better carrying out of the provisions of plea bargaining in the Act.
The Rules address, among others, the scope of plea agreement, procedure to be adopted, the time limit within which a plea agreement should be concluded and the prosecutions’ duty to disclose evidence to the accused during bargaining.
They also set out the procedure for initiating a plea agreement; show the involvement of the victims of crime in bargaining the value or form of compensation to be paid; sentencing recommendations to be considered by the court and the form of application to set aside conviction founded on plea agreement.
Furthermore, in recent days, ex-president also caused the amendment of the Interpretation of Laws Act (Chapter 1), through Written Laws (Miscellaneous Amendments) Act of 2021 for substitution of English with Swahili as the language of the law, Court and records in the administration of justice in Tanzania.
Given the fact that Swahili language is vastly used in day-to-day activities of the Government and the people, its use in the legal sector will undoubtedly facilitate the realisation of access to justice by all.
The former president pointed out that using such national language in legal issued needed a wider discussion, but he was quick to react that time has come to put in place strategies that would enable the Kiswahili language to be used in court and legal matters in general at all levels.
He went on explaining that by failure to use the language in such legal issued not only deprives citizens of their rights but also increases the cost for them to look for interpreters.
According to him, Kiswahili was being used everywhere, like in meetings organized by the African Unity (AU), Southern African Development Community (SADC) and East African Community (EAC), thus saw no reason the same language should not be used in court decision making.