i

University of Dar es Salaam School of Law

Department of Public Law

Criminology and Penology

COURSE MANUAL

Jaba Tumaini Shadrack| CTL 222 | ©2017

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CRIMINOLOGY AND PENOLOGY: COURSE MANUAL

Jaba Tumaini Shadrack

Assistant Lecturer at University of Dar es Salaam School of Law and

Commonwealth Scholar at the University of Warwick School of Law

November 2017
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Copyright Statement

This manual is a copyright material protected under the Berne Convention, the
Copyright and Neighbouring Rights Act, [Cap. 218 RE: 2002] and other
international and national enactments, in that behalf, on intellectual property.
They may not be produced by any means, in full or in part, except for short
extracts in fair dealings, for research or private study, critical scholarly review
or discourse with an acknowledgement, without the written permission of the
author.

© Jaba Tumaini Shadrack, 2017

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Acknowledgements

The preparation of this Course Manual has been possible with the help of many
people, to whom I am thankful for and indebted. I would like to acknowledge the
support and leadership of the Office of the Dean, University of Dar es Salaam
School of Law, Prof. H.I Majamba and Dr. J. Masabo, and CTL Programme
Coordinator, Mr N. PrayGod.

I would also like to extend my gratitude to Prof. L.P. Shaidi, who has been my
inspirational and mentor in teaching Criminology and Penology and developing
instructional materials.

To you all, and many other, I say thank you.

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Foreword
The subject of Criminology and Penology plays an important role in the ways
which the government frame policies and laws that control and punish crimes. As
a field of study, Criminology and Penology is grounded in several disciplines
including; biology, law, sociology, and psychology. This mixture of disciplines has
made the field of Criminology and Penology more complex for beginners,
especially at certificate level, thus the need to develop this course manual as a
study guide.

This course manual has a total of nine modules divided into two major parts. Part
one covers Criminology, while part two is devoted to Penology. This suite of
modules will give students a foundational knowledge of the main theories, causes
and motives underlying criminal behaviours, social conditions and problems
associated with offending and how best to address criminality.

I hope that students will find the course quite enjoyable and rewarding experience,
and something which adds considerably to their career development.

Best wishes for your success on the course.

Jaba Tumaini Shadrack,

University of Dar es Salaam School of Law.

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Dedication

To all my former, current and future students.

To my son, Mfungo Jabha Bhita Jr.

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Table of Contents
Copyright Statement ................................................................................................................ ii
Acknowledgements ................................................................................................................. iii
Foreword .................................................................................................................................. iv
Dedication ................................................................................................................................. v
Prelude to Part I ........................................................................................................................ 2
1. What is Criminology? .................................................................................................... 2
2. Branches of Criminology ............................................................................................... 3
3. Why Study Criminology? ..............................................................................................4
Module 1: Theories on Causation of Crime .............................................................................. 5
1.1 Introduction................................................................................................................... 5
1.2 Criminological Theories ............................................................................................6
1.2.1 Demonology Theory ..............................................................................................6
1.2.2 Classical Theory ..................................................................................................... 7
1.2.3 Positivist Theory (Socio-biology) ........................................................................ 10
1.2.4 Marxist (Conflict or Critical Theory) ................................................................... 13
1.2.5 Sociological Theory (Chicago School) ................................................................ 16
1.2.6 Developmental (Multifactor or Integrated Theory) ........................................... 18
Module 2: Children in Conflict with the Law and Juvenile Justice ........................................21
2.1 Introduction: Definition of Terms and Concepts ....................................................21
2.1.1 Why is it difficult to define the term Juvenile Justice System? .......................... 23
2.1.2 The age that differentiates a ‘child’ from a ‘juvenile’ .......................................... 24
2.2 Juvenile as an Offender and a Victim ..................................................................... 25
2.2.1 Juvenile as an offender ......................................................................................... 25
2.2.2 Juvenile as a Victim or Witness ........................................................................... 26
2.3 Sources of Juvenile Law ........................................................................................... 27
2.3.1 List of important legal instruments and standards ............................................ 28
2.3.2 Key national Institutions ..................................................................................... 29
2.4 Origin, Philosophy, Goals of Juvenile Justice System in the U.K., USA, and
Tanzania .............................................................................................................................. 32
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2.4.1 The U.K................................................................................................................. 32

2.4.2 The USA ............................................................................................................ 34
2.4.3 The United Republic of Tanzania ....................................................................... 39
2.5 Why Separate Institutions and Personnel for Juveniles? ....................................... 42
2.6 Theories of Juvenile Delinquency: Causation ......................................................... 43
2.6.1 Nature of Juvenile delinquents and delinquencies............................................. 43
2.6.2 Characteristics of Juvenile offenders ............................................................... 43
2.6.3 Crimes committed by Juveniles...........................................................................44
2.6.4 Causes of Juvenile Delinquency.......................................................................44
2.7 Legal Protection of a Child in Conflict with the Law in Tanzania ..............................48
Prelude to Part II ..................................................................................................................... 54
1. What is Penology? ....................................................................................................... 54
2. Why study Penology? .................................................................................................. 54
Module 3: Theories of Criminal Punishment ......................................................................... 56
3.1 Introduction to Punishment ................................................................................... 56
3.2 Features of a Criminal Punishment ........................................................................ 57
3.3 Types of Punishment ............................................................................................... 58
3.4 Why Criminal Punishment? .................................................................................... 58
3.5 Theories of Punishment .......................................................................................... 58
3.5.1 Traditional or Classical Theories of Punishment ............................................... 59
3.5.2 Modern Theories for the treatment of offenders ............................................... 62
Module 4: Sentencing in Court ............................................................................................. 66
4.1 Introduction: Definition of Terms ......................................................................... 66
4.2 Basis of sentencing powers, principles and guidance ............................................ 67
4.3 Classification of Sentencing ................................................................................... 68
4.4 Why Sentencing? ..................................................................................................... 70
4.5 Sentencing approaches and principles ....................................................................71
4.5.1 Sentencing approaches .........................................................................................71
4.5.2 Principles of Sentencing ...................................................................................71
4.6 Sentencing Factors................................................................................................... 77
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4.6.1 Aggravating factors .............................................................................................. 77

4.6.2 Mitigating factors ............................................................................................. 79
4.6.3 Juvenile Delinquent: Sentencing Factors and Thresholds ............................. 82
Module 5: Post-Independence Innovations in Sentencing & Treatment of Offenders in East
Africa .......................................................................................................................................88
5.1 Introduction .............................................................................................................88
5.2 Definition of Terms .................................................................................................88
5.3 Post-Colonial Penal Measures or Innovations in Sentencing and Treatment of
Offenders in East Africa ..................................................................................................... 89
5.4 Justification of Post-Colonial Harsh Penal Approaches to Criminality................ 94
5.5 Criticism of Post-Colonial Penal Approaches........................................................ 96
5.6 Relaxation of Penal Measures in East Africa (1980s to Present): Reasons............. 97
Module 6: Police Force & Other Law Enforcement Organs ................................................ 100
6.1 Introduction: Definition of Terms ........................................................................ 100
6.2 History of Police and Policing in Tanzania .......................................................... 100
6.2.1 Pre-colonial period ............................................................................................ 100
6.2.2 Colonial period ................................................................................................102
6.2.3 Postcolonial Period ............................................................................................. 113
6.3 The Tanzania Police Force ..................................................................................... 121
6.3.1 Mission ................................................................................................................ 122
6.3.2 Vision................................................................................................................... 122
6.3.3 Values .................................................................................................................. 122
6.3.4 Tanzania Police Force’s Partners .................................................................... 122
Module 7: Prisons& Imprisonment .......................................................................................128
7.1 Introduction ............................................................................................................128
7.2 Definition of Terms ................................................................................................128
7.3 Types of Prison and Prisoners ............................................................................... 129
7.4 Why Prison and Imprisonment? ............................................................................130
7.5 History of Prisons ................................................................................................... 131
7.5.1 Emergence of Prisons in Europe, Middle East and America ............................. 131
7.5.2 The Emergence of the Modern Prison in the 19thCentury ................................. 137
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7.5.3 Prisons in Africa: Colonial Legacy ......................................................................139

7.5.4 History of Prisons in Tanzania ....................................................................... 141
7.6 Tanzania Prison Service Department: Administrative set-up ............................. 146
7.7 Functions of the Prison Officers and Prison Departments ...................................147
7.8 Relevant Prison Legal Instruments ........................................................................147
7.9 Gender Dimensions in Prisons .............................................................................. 149
7.10 Criminogenic effects of Incarceration .................................................................. 149
Module 8: Non-custodial Measures ......................................................................................156
8.1 Introduction to Punishment and Treatment of Offenders ...................................156
8.2 Local and International Legal Standards on Non-Custodial Measures ................ 157
8.3 Why Non-Custodial Measures? .............................................................................158
8.4 Forms of Non-Custodial Measures and Application .............................................159
8.5 Non-Custodial Measures vis-à-vis Custodial Measures ....................................... 162
8.6 Non-Custodial Measures in Tanzania....................................................................163
8.6.1 Common Forms of Non-Custodial Measures in Tanzania ............................... 166
8.6.2 Approaches in handling and Treatment of Non-Custodial Offenders ......... 171
8.7 International Dimensions (Minimum Standards) on Non-Custodial Measures . 172
8.8 Criticism of Non-Custodial System in Tanzania ................................................... 175
Module 9: New Forms & Dimensions of Crimes: Organised Crimes (Enterprise Crimes) .178
9.1 Introduction: Definition of Terms .........................................................................178
9.2 Features of Organised Crimes ................................................................................ 181
9.3 Types of Organised Crimes ....................................................................................183
9.4 Forms of Organised Criminal Organisation ......................................................... 184
9.5 Major Patterns of Organised Crimes .....................................................................185
9.6 Causes of Organised Crimes.................................................................................. 197
9.7 Impacts of Organised Crimes ................................................................................ 198
9.8 Fighting Organized Crime at National and International level........................... 199
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Part I

CRIMINOLOGY
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Prelude to Part I

1. What is Criminology?

The term criminology was first coined by an Italian sociologist and law professor,
Rafael Garofalo1 as Criminologia in 1885 and adopted by a French anthropologist,
Paul Topinard for the first time 1887 who used the analogous French term
“criminologie”. Criminology as a science started in 1885. Before that date,
criminology was part of criminal law study. The term criminology comprises of a
Latin word i.e., ‘crīmen’ or ‘criminis’, meaning ‘accusation/crime’ and an ancient
Greek word ‘logia’ meaning ‘study of’.
According to Edwin Sutherland (1934);
Criminology is the body of knowledge regarding crime as a social phenomenon. It
includes within its scope the process of making laws, of breaking laws, and of
reacting toward the breaking of laws.
The objective of criminology is the development of a body of general and verified
principles and other types of knowledge regarding this process of law, crime, and
treatment. [Reference: Sutherland, E. & Cressey (1960) Principles of Criminology,
6th ed.; and Wolfgang, M.E. (1963) Criminology and the Criminologist, Journal of
Criminal Law & Criminology, Vol. 54:2, pp. 155-162].

Summary:
Criminology = Law making (i.e. how penal laws are created/changed and why),
Law breaking (i.e. nature/extent of crime) and reaction (i.e. police, courts, and
correction institutions).

Therefore, ‘criminology’ is the scientific study of criminal behaviour on individual,

social and natural levels, and how that behaviour can be managed, controlled and
prevented. Criminology is part and comprises of a range of disciplines such as
criminal law, sociology, psychology, psychiatry and social anthropology.

1
Former student of Cesare Lombroso (another key figure in criminological studies), often regarded
as the father of criminology.
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Reference: Schram, P.J. &Tibbetts, S.G., (2013) Introduction to Criminology: Why Do

They Do It? SAGE Publications

2. Branches of Criminology
According to Dr Ayman Elzeiny (‘in his book titled, Introduction to Criminology’), there
are six main branches of criminology: -

(i) Criminal anthropology

This is a science of criminal man, which responds to questions such as; ‘what are the
peculiar bodily-characteristics of a criminal? Or what is the relationship between race
or gender or tribe or religion and criminality?

(ii) Criminal sociology (Criminal etiology)

It is a study of crime causation which looks at crime as a social, geographical,

climatological, and meteorological phenomenon. Therefore, it attempts to find out to
what extent the society contributes to offending behaviours.

(iii) Criminal psychology

It employs psychological analysis in understanding criminals and other people involved

in criminal proceedings (e.g. judges, witness/victim, lawyers, etc). It is interested in
wills, thoughts, intentions, and reactions of criminals and all that participates in a
criminal behaviour.

(iv) Penology
This is the science of the origin, development, justification and significance of
punishment.

(v) Applied criminology

It is an area of study which looks at current crime problems and discussions. It is
concerned with criminal hygiene, criminal policy and focuses primarily on improving
the service delivery of the criminal justice system.
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(vi) Criminalistics (police or forensic science)

It is an application of scientific principles to provide evidence in criminal cases, i.e.

techniques of crime and its detection by combining psychology, chemistry and physics.

Other categories may include: critical criminology, radical criminology, sociological

criminology, liberal criminology, victimology, conservative criminology, etc.

3. Why Study Criminology?

✓ To predict and control crimes;

✓ To prevent crimes through individual and social reform;
✓ To understand and explain crime and societal reactions to it;
✓ To learn more about crime and what it can tell us about our society;
✓ To develop a better understanding of what causes people to commit crimes;
✓ To understand criminal behaviours and to be better positioned to protect the society
against criminals;
✓ To understand why certain groups may be societally victimised (e.g. children);
and
✓ To equip and train ourselves with relevant skills and knowledge on how to
become effective law enforcers.

Questions for further reading:

What is a relationship between criminology and criminal justice?
What is a relationship between criminology and criminal law?
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Module 1: Theories on Causation of Crime

1.1 Introduction

Criminologists, just like other professionals who study behaviour of things, use
scientific methods to study the nature, extent, cause, and control of crimes. In this
context, the module at hand intends to cover one of the four aspects of
criminological studies, that is, the “causes” of crime. Before we look at theories on
the causes of crime, let us start our discussion by defining key concepts under the
module:

• Theory
A theory is said to be a set of assumptions, propositions, or accepted facts that
attempts to provide a rational explanation of cause and effect (causal)
relationships among a group of observed phenomena. In short, a theory is an idea
or set of ideas that is intended to explain facts or events.

• Criminological Theory
A proposition/assumption that attempts to explain criminal behaviour (crime),
and behaviours of key actors (e.g. police, attorneys/lawyers, prosecutors,
judges/magistrates, social welfare officers, victims/witnesses, accused, etc) in the
criminal justice system. Basically, theories about the causes of crime are based on
religion, philosophy, biology, politics, economy, and social forces.

• Crime
A crime is an act that the law makes it punishable; or the breach of a legal duty
treated as the subject-matter of a criminal proceeding. Generally, a crime is a
violation of societal rules of behaviour as interpreted and expressed by the
criminal law, which reflects public opinion, traditional values, and the viewpoint of
people currently holding social and political power. Individuals who violate these
rules are subject to sanctions by state authority, or social stigma, or loss of status.
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Note: The concepts of Mala in se and Mala prohibitum. Malum prohibitum (plural
mala prohibita, literally meaning: "wrong because it is prohibited". It is a Latin phrase
used in law to refer to conduct that constitutes an unlawful act only by statute, as opposed
to conduct that is evil in and of itself, or malum in se.

1.2 Criminological Theories

1.2.1 Demonology Theory

Origin: Demonology is the most ancient theory of crime and dates to pre-
scientific age. The basis of this theory is Religious beliefs (evil
spirit/demons/satanic actions/theology/superstition/supernatural powers).

Theorists: St. Thomas Aquinas, St. Augustine (Augustine of Hippo), etc.

School of Thought: Demonological/Pre-scientific School

According to this School:

• Criminals are possessed by some evil spirits that force them to commit evil
deeds.
• A Crime is not a product of free will, but rather [it] is determined by forces
beyond the control of an individual i.e. deterministic approach.
• A crime is perceived as a sin, thus a handiwork of the devil/Satan.
• There are Godly and Satanic forces in the World.
• The Godly forces keep a man away from crime and help him to do good;
whereas the devilish forces distract man from the right path i.e. makes him
commit crimes.
• The devil/demon takes possession of the soul of a man and makes him think
and do wrong i.e. he becomes reckless and is unable to foresee the
consequences of his action.
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• In that state, a man can be regarded as a passive agent only; the active agent
(the demon) is a force external to the soul but which somehow enters a man
and take possession of his soul.

Crime control:

• To drive away the evil spirits/demons from the mind and/or body of a
perceived criminal, the following approaches may be adopted: - exorcizing2,
lacerating, macerating, fasting, praying, repenting (confessing), trephining 3,
beating and burning of the possessed individual.

Strength: it was an early effort to explain criminal behaviour as a social problem.

Critique: the theory’s claims cannot be testable/proved scientifically since it is

based on faith. Again, those who persist in claiming innocence were often thought
to be completely under the control of evil spirits, thus unable to tell the truth.
Punishments imposed on criminals are said to be arbitrary, irrational, cruel and
barbaric.

Something to Read- Case: Salem Witch Trials (1692-1693) – in Colonial

Massachusetts, USA.
Legislation: The Witchcraft Act, Cap. 18 (RE: 2002), Tanzania.

1.2.2 Classical Theory

Period: 1764 (16th to 18th Centuries).

Basis of the theory: Rational choice, maximisation of happiness (utilitarianism) and

deterrence.

2
To expel or attempt to expel evil spirit/s from a person or place (believed to be possessed or
haunted) by way of prayers, adjurations, and religious rites.
3
Consisted of drilling holes in the skulls of those perceived as deviants to allow the evil spirits to
escape.
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Theorists: Cesare Beccaria, Jeremy Bentham, Ludwig Feuerbach and John Stuart
Mill.

School of Thought: Classical Criminology

Origin: The Classical Theory is a product of the age of enlightenment. In 1764,

Cesare Beccaria (in his work, An Essay on Crimes and Punishments) set forth the
classical criminological theory.

Branches: Rational Choice Theory, Neoclassical Theory, Utilitarianism Theory,

Routine Activities Theory,4 and Deterrence Theory.

Idea of theory: The theory assumes that people exercise free will, and are thus
completely responsible for their actions. In classical theory, human behaviour,
including criminal behaviour, is motivated by a hedonistic rationality, in which
actors weigh the potential pleasure of an action against the possible pain
associated with it. In other words: -

• Criminals weigh/assess the costs and benefits and make a conscious, rational
choice to commit crime as a way of maximisation of pleasure and minimisation
of pains.
• Human beings have free will to choose legal or illegal behaviour, i.e. Crime is
committed after an individual weigh the pros and cons.
• Crime is attractive/enticing /and tempting.

Crime control and Punishment:

• The basis of the society, as well as the origin of punishments and the right to
punish, is the social contract.5
• Crime may be controlled through the fear of punishment.
• Punishment works best when perceived to be: severe, certain, and swift.
4
This theory states that for crime to be committed, three elements must be present: an available
target, a motivated offender, and a lack of guardians.
5
Social Contract - an imaginary agreement to sacrifice the minimum amount of liberty to prevent
anarchy and chaos.
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• The only legitimate purpose of punishment is deterrence (i.e. specific and

general deterrence).
• An effective policy/law/punishment should provide the greatest happiness
shared by the greatest number i.e. utility.
Critique:

Under the theory, juveniles are treated the same as adults, likewise, first-time
offenders are treated the same as recidivists/repeated offenders (thus, no
proportionality.).6 Besides, the theory focuses on the actus reus and ignored the
mens rea.

Development of the Classical Theory:

Classical theory was difficult to apply in practice. It was modified in the early 1800s
and became known as the neoclassical theory. The neoclassical theory is a
modification of classical theory in which it was conceded that certain factors, such
as insanity, might inhibit the exercise of free will. Neoclassical theorists introduced
the idea of:

• Premeditation as a measure of the degree of free will (therefore look at actus

reus and mens rea).
• Mitigating circumstances should be taken as legitimate grounds for diminished
responsibility.
Note: Classical and Neoclassical theories are the basis of the criminal justice
system in the USA.
See Cases: R. v. Arnold (1724) 16 How St. Tr. 765, and M’Naghten’s Case (1843) 10 C
& F 200.

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Punishment should fit the crime without regard to individual differences.
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1.2.3 Positivist Theory (Socio-biology)

Period: 1810

Theorists: Cesare Lombroso7, Enrico Ferri, Raffaele Garofalo, Sigmund Freud,

Albert Bandura, Jean Piaget, Edward O. Wilson, Lawrence Kohlberg, Franz Joseph
Gall, Johann Spurzheim, J.K. Lavater, Earnest Hooton, Charles Goring, Ernst
Kretschmer, and William Sheldon.

School of Thought: Positivist Criminology

Basis: The theory is based on the positive philosophy, logic, and methodology of
experimental science (i.e. scientific method, logic, empirical verification and value-
free).

Origin: the school is associated with the book of Cesare Lombroso (which is called
Criminal Man), who published his theory of a physical criminal type in 1876.
Lombroso believed that criminals are by birth a distinct type or species which can
be recognized by physical characteristics or stigmata such as; asymmetrical
cranium, long lower jaw, flat nose, scanty beard, high cheekbones and low sensitivity
to pain.

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Criminal Anthropology.
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Picture: Physiognomy of Criminals

Branches: Biological positivism8 i.e., biosocial and psychological theory, born

criminal (atavism/savage type/hereditary), cognitive theory, behavioural theory,
ecological theory, evolutionary theory, trait theory and arousal theory.

Ideas: Early biological theories viewed criminal behaviour as the result of a defect
in an individual. This defect can be biological or genetic in nature and serves to
separate the criminal from the law-abiding citizen. This school of thought was of
the view that: -

• Human behaviour is determined and not a matter of free will. Likewise, the
society is based on consensus, but not on a social contract.
• Criminals are fundamentally different from non-criminals.
• Crime is frequently caused by multiple factors.
• Basically, criminal behaviour is the result of biological or inborn defects.
• For instance, crimes may be caused by an abnormality or low intelligence/IQ
or poor school performance, defective chromosomes (e.g. XYY or XXY -
aggressive/sexual offenders) - Klinefelter Syndrome, psychological traits,
mental illness, personality disorder, shape, and appearance.

8
Biological/genetic factors (mental disorder/psychological problems)
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• Psychoanalytic theorists (e.g. Sigmund Freud) believe that criminal behaviour

is the result of a mental disturbance caused by a conflict between the “id, ego,
and superego”, or it may be the result of an improper fixation during a stage of
emotional development.9
• Personality theorists believe that criminal behaviour is the result of an
improper or defective personality or personality traits.
• Instead of developing a conforming appropriate-social personality, a criminal
develops a personality based upon conflict, impulsiveness, and aggression.
• The criminal does not have the ability to feel empathy, remorse, or guilt for
his or her actions, and fails to develop a sense of right and wrong.
Crime Control:

• Under a biological perspective, deterrence is of little value. This is because

there is an inherent defect or abnormality within the individual, deterrence or
the threat of punishment will not affect behaviour.
• Therefore, criminality can be fixed through medication, treatment, or therapy,
deportation, sterilisation, etc.
Critique:

• The theory ignores the process by which behaviours are made illegal.
• It assumes that most people agree about most things, most of the time.
• Theorists believe that action is determined by causes independent of a person’s
free will.
Note:

• Contemporary biological theories concentrate more on variations in genetic

and other biological factors in interaction with the environment and are less
likely to refer to biological defects or abnormalities.

9
Psychopaths - Persons characterized by no sense of guilt, no subjective conscience, and no sense of
right and wrong. They have difficulty in forming relationships with other people; they cannot
empathize with other people. They are also called sociopaths or antisocial personalities.
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• Today, most criminologists believe that criminal behaviour is the product of a

complex interaction between biology and environmental or social conditions.
• Biology or genetics gives an individual a predisposition to behave in a certain
way.
• Whether a person actually behaves in that way and whether that behaviour is
defined as a crime depends on environmental or social conditions.

See Cases: Agnes Doris Liundi v. R. [1980] TLR 46 (CA), and R. v. Agnes Doris
Liundi [1980] TLR 38 (HC).

1.2.4 Marxist (Conflict or Critical Theory)

Period: 1848

Theorists: Karl Marx, Willem Bonger, Otto Kirchheimer, Richard Quinney, Georg
Rusche, Ralf Dahrendorf, George Vold,William J. Chambliss, Rita Simon, Freda
Adler, and Meda Chesney-Lind.
School of Thought: Critical Criminology

Branches: critical theory10, conflict theory11, radical theory12, radical and critical
feminism theory13, left/British realism14, peace-making theory15, power-control

10
An extension of Marxist theory that goes beyond the examination of the effects of capitalism on
crime.
11
A theory that assumes that society is based primarily on a conflict between competing interest
groups and that criminal law and the criminal justice system are used to control subordinate
groups. Crime is caused by relative powerlessness.
12
A theory of crime causation that is generally based on a Marxist theory of class struggle.
13
This theory attempts to define criminology and criminal justice based upon the experiences,
understanding, and view of the world as perceived by women. It tries to counter most theories of
criminology that have been developed, tested, and applied by men to men, which have only
incorporated women as an afterthought. It covers issues such as patriarchy, masculinities,
paternalism, power-control theory, etc.
14
They focus on crime by and against the working class. Left realists want to give more power to
police to combat crime, but also want to make the police more accountable for their actions.
15
An approach that suggests that the solution to all social problems, including crime, is the
transformation of human beings, mutual dependence, reduction of class structures, the creation of
communities of caring people, and universal social justice. Peace-making criminologists believe
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theory, postmodernism theory16, re-integrative shaming theory, restorative justice,

structural theory/Marxism17, social conflict theory, instrumental
theory/Marxism,18etc.

Ideas: Critical theories assume that human beings are the creators of laws,
institutions, and structures that ultimately dominate and constrain them. Critical
theories assume that the society is characterized primarily by conflict over moral
values and conflicts between social classes. In their view:

• The society is divided into two or more groups with competing ideas and
values.
• Marxists believe that capitalism is the cause of crime and delinquency. This
means that, political and socio-economic unrests, racism, class and gender
discrimination/patriarchy; and exploitation of the working
class/capitalism/marginalisation lead to criminality.
• Crimes are either committed by the ruling class to keep the working class in
place, or by the working class to strike out against the ruling class.
• The group(s) with the most power makes the laws and controls the society i.e.
by creating criminal law and the criminal justice system which are crafted and
used by dominant groups to control subordinate ones e.g. bourgeoisie and
proletariat.

that reducing suffering will reduce crime, thus rejects the idea that criminal violence can be
reduced by state violence.
16
An area of critical thought which, among other things, attempts to understand the creation of
knowledge, and how knowledge and language create hierarchy and domination. Postmodernist
criminologists argue that interpretations of the law are dependent on the particular social context
in which they arise, thus insists on informal social controls.
17
Political state is not under the total control of the ruling elite; that from time to time, laws may be
passed that harm the ruling elite; and that their members, on occasion, may be subject to state
control.
18
The political state (including the law and the criminal justice system) is always and only a tool of
the capitalist class to oppress the working class.
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• Groups lacking the formal power to make the rules still maintain their own
group norms, and continue in their behaviour which may be viewed as crimes
against the larger society.
• Conflict theory proposes that the law and the criminal justice system primarily
embody the interests and norms of the most powerful groups in society, rather
than those of the society.
• On the other hand, the Feminist theory (male phenomenon theory) questions
whether theories of crime developed by men and for men adequately explain
female crime.
• According to feminist theory, women can be treated less severely than men for
committing a crime or more severely than men to keep them subservient to
men.
• Logically, feminists seek to understand why men traditionally commit so much
crimes than women (gender differences in crimes), victimisation of women,
and gendered justice (differing treatment of female and male offenders and
victims by the criminal justice system).
• The principal goal of most feminist theory is to abolish patriarchy19by ensuring
women equal opportunity and equal rights.
• Conversely, the Radical theorists define crime as any act which violates human
rights (e.g. sexism, racism, imperialism; and not prostitution, gambling, strikes,
homosexuality), thus to them, the current definition of crime supports the
ruling class.
Crime Control:

• Karl Marx (Communist Manifesto, 1848), urges the lower class (especially,
workers) to unite against the ruling class because they have nothing to lose but
their chains of oppression. Besides, Marxist scholars advocate for socialism and

19
Patriarchy - Men’s control over women’s labour and sexuality.
 16

communism as a solution to imperialism/oppression and criminality. It is

believed that an egalitarian society is free from criminal activities.

Note: Subordinate groups appear in official criminal statistics more frequently,

because the dominant groups have control over the definition of criminality.
Legislation: The Deportation Act (Cap. 380, R.E: 2002), Economic Sabotage
(Special Provisions) Act, No.9 of 1983, and the Proceeds of Crime Act, 1994 (R.E:
2007).

1.2.5 Sociological Theory (Chicago School)

Period: 1897

Theorists: Emile Durkheim, Robert Ezra Park, Ernest Burgess, Clifford R. Shaw,
Walter Miller, Gabriel Tarde, Frederic Thrasher, Henry D. McKay, John McKenzie,
Edwin Sutherland, Travis Hirschi, Edwin Lemert, Howard Becker, D.R. Taft, Albert
Cohen, Richard Cloward, and Lloyd Ohlin).

School of Thought: Sociological Criminology

Branches: social disorganisation theory,20 strain or anomie theory, cultural

deviance theory, subculture theory,21 differential opportunity theory, social
learning/imitation/modelling theory,22 differential association theory,

20
It associates criminality among juveniles with a breakdown of communal institutions (e.g. family,
schools, church & local governments) and communal relationship that traditionally encouraged
close relationships among people.
21
States that a group of delinquent peers may influence an individual to commit criminal acts to
receive approval from the group, or creating a new culture (subculture) which departs from the
mainstream culture, thus criminality. [Cohen argued that instead, they form a subculture that
"takes its norms from the larger culture but turns them upside down"].
22
Gabriel Tarde (Penal Philosophy in 1890), was one of the first theorists to believe that crime was
something learned by normal people as they adapted to other people and the conditions of their
environment.
 17

neutralisation theory, social control theory,23 labelling theory, social reaction

theory, cartographic/geographical theory,24etc.

Origin: Many sociological theories of crime causation stem from the work of Emile
Durkheim who rejected the idea that the world is simply the product of individual
actions. Durkheim believed that laws and institutions are “social facts” and all that
people can do is to submit to them. The sociological theory was shaped by the
Chicago School in the 1920s.25

Ideas: In a nutshell, sociologists emphasize that human beings live in social

groups, thus it is such groups and the social structure that influence behaviour.
Most sociological theories of crime causation assume that a criminal’s behaviour is
determined by his or her social environment.

• A criminal and criminality are products of the society. Durkheim argued that
crime is a social fact, and the cause of crime is anomie.26
• Individuals do not simply become criminals by rational choice/free will, neither
do they commit crimes just because they were born criminals or out of being
abnormal.
• Criminality occurs because of group interaction and socialisation process.
Crime is a result of an individual’s location within the structure of society

23
Social Control Theory, a view in which people are expected to commit crime and delinquency
unless they are prevented from doing so or there is a mechanism to control them.
24
The School attempt to show the influence upon criminal behaviour of such factors as climate (i.e.
temperature, humidity, barometric, pressure or change in the weather), topography, natural
resources and geographical location. (Read: Taft, Quetelet, Guerry & Montesquieu).
25
Chicago School - A group of sociologists at the University of Chicago who assumed in their
research that delinquent behaviour was a product of social disorganisation. Also, they attempted to
uncover the relationship between a neighbourhood’s crime rate and the characteristics of the
neighbourhood.
26
Anomie/strain theory - A state of normlessness or norm confusion within a society. It also means
that the dissociation of the individual from the collective conscience. For Albert K. Cohen, it is
caused by the inability of juveniles to achieve status among peers by socially acceptable means.
While Robert Merton argues that the contradiction between the cultural goal of achieving wealth
and the social structure’s inability to provide legitimate institutional means for achieving the goal,
thus criminality.
 18

(socio-economic forces) – poverty, peer and family relations and breakdown

(family environment), neighbourhood, socialisation, and group interaction.
• In short, the theory attempts to show the relationship between social factors
and crime.
Crime Control:

• Crime/criminality is a social phenomenon that can be reduced by improving

socio-economic conditions.

Case: R. v. Bukuku [1995–1998] 1 EA 286 (HCT).

1.2.6 Developmental (Multifactor or Integrated Theory)

Period: 1930

Theorists: William Sheldon, Eleanor Glueck, John Laub, Robert Sampson, Richard
Herrnstein, Travis Hirschi, and Michael Gottfredson.

School of Thought: Developmental Criminology/Integrating Criminological

Theories

Branches: life course theory, latent trait theory, social development model,
interactional theory, the general theory of crime and delinquency/general theory
of crime, age-graded theory, integrated cognitive antisocial potential theory,
differential coercion theory, control balance theory.

Ideas: Theoretical integration is the process of combining similar theories. The

goal is to produce a theory that is superior to any theory individually. It also
recognizes the fact that new theories are not created in isolation; and that they are
created with the knowledge gained from earlier theoretical exercises.
 19

• Crime is a function of environmental, socialisation, physical and psychological

factors, i.e. each makes an independent contribution to shaping and directing
behaviour patterns.
• Basically, the theory integrates classical, sociological, psychological/biological,
and economic elements to explain crimes and criminality.

Critique: Theoretical integration has had minimal success.

Table: Summary and Comparisons of the Classical and Positivist Schools on certain Issues.

Classical Positivist
Historical Period 18th-century Enlightenment, early period 19th-century Age of Reason, mid–
of Industrial Revolution Industrial Revolution
Leading Figures Cesare Becarria, Jeremy Bentham Cesare Lombroso, Raffael Garofalo,
Enrico Ferri
Purpose of School To reform and humanize the legal and To apply the scientific method to
penal systems the study of crime and criminality

Image of Human Humans are hedonistic, rational, and Human behaviour is determined by
Nature have free will. Our behaviour is psychological, biological, or social
motivated by maximizing pleasure and forces that constrain our rationality
minimizing pain. and free will.
Image of Criminals Criminals are essentially the same as non- Criminals are different from non-
criminals. They commit crimes after criminals. They commit crimes
calculating costs and benefits. because they are inferior in some
way.
Definition of Crime Strictly legal; crime is whatever the law Based on universal human
says that it is. abhorrence; crime should be limited
to inherently evil (mala in se) acts.
Purpose of To deter. Punishment is to be applied Social defence. Punishment to be
Punishment equally to all offenders committing the applied differently to different
same crime. Judicial discretion to be offenders based on relevant
limited. differences and should be
rehabilitative.
 20

Quiz:

1. With the aid of hypothetical cases, show the similarities and differences
between a crime, deviancy/delinquency, and a sin.
2. Which one of the criminological school of thought do you perceive to be a
school? Why?
3. Discuss the Neoclassical, sociological and Biological theories of crime causation
in the context of M’Naghten’s Case (1843) 10 C & F 200; R. v. Agnes Doris Liundi
[1980] TLR 38 (HC); and Agnes Doris Liundi v. R. [1980] TLR 46 (CA).

References

Bohm, R.M. & Haley, K.N., Introduction to Criminal Justice, 3rd Ed., Chapter 3.

Sharma, R.K. (1998) Criminology and Penology. Atlantic Publishers & Distributors,
New Delhi.

See, Eric (2004) Student Study Guide for Ronald L. Akers and Christine S. Sellers’
Criminological Theories: Introduction, Evaluation, and Applications -4th Ed.
Roxbury Publishing Company, Los Angeles, California.

Siegel, L.J. (2010) Criminology: The Core, 4th Ed. Wadsworth Publishing.

Siegel, L.J. (2011) Criminology, 11th Ed. Cengage Learning.

 21

Module 2: Children in Conflict with the Law and Juvenile

Justice
Picture: Members of ‘panya road’ (gang group) in Dar es Salaam

2.1 Introduction: Definition of Terms and Concepts

Before understanding the concepts, ‘juvenile justice (system)’ and ‘children in
conflict with the law’, it is better to start by clarifying the term, ‘juvenile’. Literally,
the word ‘juvenile’ means ‘a child’, ‘young person’, ‘pre-adult’, teenager’, ‘puerile’,
‘pubescent’, ‘adolescent’, or ‘minor’. However, to criminologists, the term ‘juvenile’
entails;

• A person below the age at which ordinary criminal prosecution is possible.

• A child or young person who, under the respective legal system, may be dealt
with for an offence in a manner which is different from an adult. (Rule 2(2)(a)
of UN Standard Minimum Rules for the Administration of Juvenile Justice
[Beijing rules], 1985).27
Therefore, from the term ‘juvenile’, other concepts emerge such as ‘youthful
offender’, ‘juvenile offender’, ‘juvenile delinquent’, ‘young offender’, ‘child
offender’, ‘incorrigible’,28 ‘delinquent child’, which altogether means;

27
Adopted by the UN General Assembly’s resolution 40/33 of 29 November 1985
28
A juvenile who refuses to be reformed or corrected/ unmanageable person
 22

• A child or young person who is alleged to have committed or who has been
found to have committed an offence. (Rule 2(2)(c) of Beijing rules, 1985). See
also, Section 4(1) of the Law of the Child Act,29 and the Child Development
Policy (2008).
• A minor who intentionally and constantly engages in anti-social behaviour;
A minor who does something that would be a crime if committed by an adult.
(p. 271 of the Black Law Dictionary, 9th Ed., 2009; and p. 70 of the Webster’s
New World Dictionary, 2006).
• A minor below a specified age who tends to commit crimes or otherwise
engages in immoral or disobedient behaviour, and therefore needs treatment
or supervision. [p. 131 of the Essential Law Dictionary, Sphinx Dictionaries), 1st
Ed., 2008].

It is important to use child-sensitive words such as, ‘children in conflict with the
law’, ‘children in actual conflict with the law’, ‘children in perceived conflict with the
law’, and ‘children in need of care and protection’. Also, it is advised to use words
like, ‘child’, ‘street-involved children’, ‘adolescent’, and ‘young person’, instead of
using words like ‘minor’, ‘teenager’, ‘juvenile’, ‘child criminal’, ‘youthful offender’,
‘street children’, ‘children of the street’, ‘children on the street’, ‘street-living
children’, ‘homeless children’, ‘street-working children’, ‘market children’ and
‘juvenile delinquent’, which have stigmatising effect. Again, offences committed by
juveniles may be referred to as ‘deviant behaviour’, ‘delinquency’, ‘anti-social
behaviour’, and not words like ‘offence’, ‘crimes’, ‘delict’, ‘misdemeanour’, ‘felony’.
The reason for being selective in terminologies in dealing with children is to avoid
negative or prejudicial connotations which some words tend to have. Besides,
some words tend to detract from the reality that individuals involved are first and
foremost children and adolescent.

After understanding the term ‘juvenile’, let us now turn to the phrase ‘juvenile
justice (system)’. Juvenile justice (system) may be defined as;
• Procedural and substantive law, judicial and extra-judicial measures,
institutions erected to deal with children in conflict with the law.

29
No. 21/2009.
 23

• A set or a range of institutional and legal protective or correctional measures

and treatments adopted against a child in conflict with the law.
According to Marie Wernham (2004), the term juvenile justice system entails
treatment/handling of children in conflict with the law, the need to address the
root causes of offending behaviour and implement measures to prevent such
behaviour. The juvenile justice has two major strands/elements;
• Prevention (preventive system/mechanism); to ensure that children do not
come into conflict with the law, and they are not subjected to the mainstream
criminal justice system.
• Protection (protective system/mechanism); under this strand, the focus is on
children who are already in conflict with the law. The main target here is to
protect juveniles from human rights violations, to deter them from re-
offending, promote their rehabilitation and reintegration.

2.1.1 Why is it difficult to define the term Juvenile Justice System?

In addressing the above problem, Marie Wernham (2004) argues as follow;
• There is no [a] single ‘system’ but a complex mixture and overlap between
many different systems i.e. police, social welfare, probation department,
prisons, judiciary, lawyers, government departments and agencies,
organisations, and etc. thus, it becomes difficult to single out exact institution
we are referring to.
• Separate ‘system’ for the treatment of juveniles exist in theory, in practice
juveniles are often still processed through the adult criminal justice system.
• The term ‘juvenile’ is criticised by human rights activists for its negative
connotation/stigmatising label.
 24

Summary:
The juvenile justice system is made up of the legislation, processes, institutions,
and personnel involved in the treatment of children accused of committing a
criminal offence. In some literature, the term juvenile justice system is also
referred to as ‘juvenile criminal justice system’, ‘child justice’ or ‘administration of
juvenile justice’ or simply, ‘juvenile justice’.

2.1.2 The age that differentiates a ‘child’ from a ‘juvenile’

The term ‘child’ is defined under section 4(1) of the Law of the Child Act (No. 21 0f
2009) to mean, any person below the age of eighteen (18) years/under the age of
majority (see, also section 2 of the Age of Majority Act, Cap. 43). The same position
is reiterated under Article 2 of the African Charter on the Rights and Welfare of the
Child (1990), and Article 1 of the UN Convention on the Rights of the Child (1989).
Under the ‘common law’, a child is any person who is under fourteen (14) years of
age. In Canada, under section 2(1) of the Children’s Law Act (1997), a ‘child’ is any
person under 18 years, and who has never married30. On the other hand, a juvenile
is any child who can be subjected to a criminal justice system or any person with
the age of criminal responsibility. For example, in Tanzania, section 15(1) of the
Penal Code (Cap. 16) provides for children who cannot be criminally liable (in
different circumstances) as follows;

S. 15 (1) A person under the age of ten years is not criminally responsible for
any act or omission.
(2) A person under the age of twelve years is not criminally responsible for an
act or omission unless it is proved that at the time of doing the act or making
the omission he had the capacity to know that he ought not to do the act or
make the omission.
(3) A male person under the age of twelve years is presumed to be incapable of
having sexual intercourse. **(doli incapax).

Therefore, in Tanzanian context, a juvenile is a child between ten (10) to eighteen

(18) years. In that regard, the term ‘juvenile’ becomes a subset of a term ‘child’. It is

30
Compare with section 2(1) of the Youth Criminal Justice Act, 2002 (RE: 2011), Canada.
 25

true to say that juveniles are subjects of juvenile justice system, but not all children
are as such.

Quiz: What justice system applies when a juvenile is charged together with
someone else above 18 years?

2.2 Juvenile as an Offender and a Victim

At this juncture, it suffices to note that juvenile justice system is designed to deal
with children who are in conflict with the law (juvenile offenders), and those who
have been affected or injured by criminal acts of others (juvenile victim).

2.2.1 Juvenile as an offender

This means a situation where a child is a perpetrator of an offence, therefore may
come into contact with the juvenile/criminal justice system. Offences committed
by juveniles are in most cases directed to members of the peer age groups,
especially those which involve the use of violence in their commission. However,
this assumption should not be taken as a general rule, since in certain
circumstances even adults have also become victims, especially where a juvenile
engages into criminality for survival. Generally, children are likely to commit
offences such as pick-pocketing, assault, simple theft, drug abuse, fighting, and
status offences (e.g. chronic/persistent truancy, running away, being incorrigible,
violating curfew laws, possessing alcohol/tobacco, etc.). Therefore, if a child finds
himself/herself in any of the above circumstances he becomes a law-breaker and
therefore a subject of juvenile justice system.
 26

2.2.2 Juvenile as a Victim or Witness

Let us start by defining the term, ‘victim31’. The UN Convention on Justice and
Support for Victims of Crime and Abuse of Power (Draft Convention, 08/02/2010)
under Article 1(1)(2) define and explain the term ‘victim’ to mean;

(1) ….natural persons who, individually or collectively, have suffered harm

including physical or mental injury, emotional suffering or economic loss or
violations of fundamental rights in relation to victimisations identified
under scope; (2) a person is a victim regardless of whether the crime is
reported to the police, regardless of whether a perpetrator is identified,
apprehended, prosecuted or convicted and regardless of the familial
relationship between the perpetrator and the victim. The term ‘victims’ also
includes, where appropriate, the immediate family or dependants of the
direct victims and persons who have suffered in intervening to assist victims
in distress or to prevent victimisation.

In short, one may say; a victim of a crime is an identifiable person who has been
harmed individually and directly by the perpetrator, rather than by a society.

In relation to a juvenile/child victim, it denotes a child and adolescent under the

age of 18, who is a victim of a crime, or witnesses to crime regardless of his or her
role in the offence or in the prosecution of the alleged offender or groups of
offenders. Generally, offenders in juvenile/child victimisation are likely to be
family members (siblings, parents), neighbours, acquaintances (school mates,
teachers, and friends) law-enforcers (police, private security personnel) and
strangers. In most cases juveniles/children are victims of offences such as rape,
sexual assaults, simple and aggravated physical assault, defilement, commercial
and sexual exploitation (illegal prostitution, child labour and trafficking in
children), abduction (and kidnapping), child pornography, exposure to sexual
materials via internet, unnatural offences, indecency, incest, child stealing, theft,
neglect, cruelty, desertion, burglary, murder, robbery, etc.

31
The study of the victims of crime and the psychological effects on them is called
‘victimology’, while the process is known as victimisation.
 27

See Sections 129A-138, 138A-143, 154, 156, 158, 160, 166, 167, 169-169A, 218, 219, 225,
229, 240-256, chapter xxix, xxx of the Penal Code, Cap. 16; Section 115 of the Law of
the Child Act (LCA); Witness Protection: Section 99(1)(c) of LCA; Section 28 of
SOSPA (1998); the Guidelines on Justice in Matters involving Child Victims and
Witnesses of Crime (ECOSOC Resolution No. 20/2005 (see, Part IV), and the
European Convention on Compensation of victims of violent crimes (Strasbourg,
24/11/1983), European Treaty Series - No. 116

2.2.2.1 Factors relating to juvenile/child victimisation

(a) Individual characteristics: e.g. age, gender, race, lifestyle, friendship

patterns, orphan, homeless (destitute), etc.
(b) Family characteristics: e.g. family structure (extended family, single-parent
families), income, a level of supervision, etc.
(c) Community characteristics: e.g. crime and poverty levels, the age profile of
the community’s population, unemployment level, education level, location,
etc.

Unlike adults, children are more likely to be victims of crime especially those
crimes which are violent in nature. Crimes committed either against children or
witnessed by them have a direct impact on the psychological development of a
child. Thus, an understanding of childhood victimisation and its trends may lead
to a better understanding of juvenile offending.

Quiz:
“In every offence committed by a juvenile, there is a hand of an adult person, either
directly or indirectly”. Critically discuss the above statement.

2.3 Sources of Juvenile Law

The Judicature and Application of Laws Act, Cap. 358 (R.E: 2002)

i) Constitution.
ii) Principal and subsidiary legislation.
iii) Case Laws.
iv) International Treaties.
v) Common law.
 28

vi) The doctrines of equity.

vii) The statutes of general application in force in England on the twenty-
second day of July 1920.
viii) Customary, Islamic law and Indian Acts (in Civil cases).

2.3.1 List of important legal instruments and standards

2.3.1.1 National legal standards

The Constitution of the United Republic of Tanzania, 1977 (RE: 2008); the Law of
the Child Act, No. 21 of 2009; the Law of the Child (Juvenile Court Procedure)
Rules, G.N. No. 182 of 20/05/2016; the Age of majority Act, Cap 431 (RE: 2002); the
Anti-Trafficking in Persons Act, 2008; the Children and Young Persons Act, Cap. 13
(RE: 2002)**repealed; the Children and Young Persons (Extension of Ordinance to
Primary Courts) Order (G.N. No. 640 of 1964); the Community Service Act, Cap.
291 (RE: 2002); the Corporal Punishment Act, (RE: 2002); the Children and Young
Persons Decree, 1952 (Repealed and Replaced in 2011) by the Children's Act, 2011
(Zanzibar); the Criminal Procedure Act, 1985 (RE: 2002); the Evidence Act, (RE:
2009); the Employment and Labour Relation Act, 2004; the Magistrates’ Court Act,
1984 (RE: 2002); the Minimum Sentences Act, 1971 (RE: 2002); the Penal Code, Cap.
16. (RE: 2002); the Probation of Offenders Act, (RE: 2002); the Ward Tribunals Act
No. 7 of 1988 (RE: 2002); the Education Act (CAP. 353, RE: 2002); the Education
(Corporal Punishment) Regulations G.N. No. 294 of 2002 (made under Section 60
of the Education Act); the Police General Orders (PGO), RE: 2006; the
Broadcasting Services (Content) Regulations, G.N. 430 of 23/12/2005; and the
Prison Standing Orders, RE: 2003.

As of June 2014, the following Rules and Regulations were in operation: -

The Law of the Child (Retention Homes) Rules; the Law of the Child Act: Foster Care
Placement Regulations; the Law of the Child (Apprenticeship) Regulations; the Law of the
Child Act (Children’s Homes) Regulations; the Law of the Child (Child Employment)
Regulations; and the Law of the Child Act (Adoption of Children) Regulations.

The following regulations are in the process of being adopted: -

The Law of the Child – (Day Care Centre and Crèche) Regulations; the Law of the Child
(Child Protection) Regulations; the Law of the Child Act (Approved School) Rules; and the
Law of the Child Act (Fit Persons) Regulations.
 29

2.3.2.2 International legal standards

OAU/AU (1990) The African Charter on the Rights and Welfare of the Child; UN
(1985) Standard Minimum Rules for the Administration of Juvenile Justice (Beijing
Rules); UN (1989) Convention on the Rights of the Child; UN (1990) Guidelines for
the Prevention of Juvenile Delinquency (Riyadh Guidelines); UN (1990) Rules for
the Protection of Juveniles Deprived of their Liberty; UN (1990) Standard
Minimum Rules for Non-Custodial Measures (Tokyo Rules); and UN (1997)
Guidelines for Action on Children in the Criminal Justice System.
2.3.2 Key national Institutions

2.3.2.1 The Juvenile Court

• Establishment
The LCA establishes the Juvenile Court as a distinct Court from existing ones
[section 97(1)] presided over by the Resident Magistrate [section 97(3)]. The LCA
again allows the Chief Justice to designate any premises used by the Primary Court
to be a Juvenile Court [section 97(2)]. Currently, there is only one building
designated as Juvenile Court in Tanzania (namely, Kisutu Magistrate Court).
• Territorial jurisdiction
The LCA is silent on this aspect. The problem here is how to deal with juvenile
offenders in regions or districts where there are no designated Juvenile Courts?
Does the Primary Court, District Court, and Resident Magistrate Court enjoy
original or concurrent jurisdiction as the Juvenile Court in dealing with Juvenile
offenders? If not, do juveniles who commit crimes in upcountry areas (outside Dar
es Salaam) can be brought to Kisutu’s Juvenile Court for trial?
The above questions can be well addressed by looking at the practice before the
enactment of the Law of the Child Act, No. 21 of 2009. For instance, the Children
and Young Persons Act (RE: 2002) solved the issue of territorial jurisdiction by
conferring powers to the Chief justice to extend the jurisdiction of Juvenile Courts
to Primary Courts. The specific provision provided as follows;
 30

Section 43:(1) The Chief Justice may, by order published in the Gazette, extend any
provisions of this Act which relate to district courts or to primary courts or to any
primary court or category of primary courts.
(2) Where the Chief Justice extends the provisions referred in subsection (1) to any
primary court, he may, by the rules, modify any of the provisions of this Act relating
to procedure, appeals or revision in order to bring the same into conformity with the
provisions in that behalf contained in the Magistrates' Courts Act.

In the exercise of such powers, the Chief Justice promulgated “the Children and
Young Persons (Extension of Ordinance to Primary Courts) Order (G.N. No. 640 of
1964)” which under Order 2 extended the mandate of Juvenile Courts to all
Primary Courts in Mainland Tanzania, the specific provision read as;
All the provisions of the Children and Young Persons Ordinance which relate
to district courts are hereby extended to all primary courts.

The issue now is whether the G.N. 640/1964 is still in enforce and thus applicable
under the circumstance? The answer to this issue is in affirmative. This is because,
though Section 160(1)(d) of LCA repeals and replace the Children and Young
Persons Act (supra), G.N.640/1964 is retained by Subsection 2(d) of Section 160
which, inter alia, provides that;

All orders, notices, by- laws, directives given, or anything given or made by
a person authorised as such by an officer so authorised to give or make
orders, notices, by-laws, directives given under the repealed Acts shall he
deemed to have been made under this Act and shall remain in force and
have effect until amended or withdrawn under this Act.

Important:
Is G.N.640/1964 revoked by the Law of the Child (Juvenile Court Procedure)
Rules, 2016? What is the position taken by the Law of the Child (Juvenile Court
Procedure) Rules, 2016?
Read also Explanatory Guide to the Juvenile Court Rules

• Jurisdiction as to the Subject matter: Civil & Criminal

 31

Section 97(1) of LCA provides for the objectives of the Juvenile Court, that is, to
hear and determine matters relating to children. Particularly, section 98(1)(2) of
the LCA requires the Juvenile Court to hear and determine criminal charges
against a child; and applications relating to child care, maintenance and
protection. Besides, it shall also have jurisdiction and exercise powers conferred
upon it by any other written law. However, the LCA does not list or state
categorically criminal charges to be brought before the Juvenile Court.

• Procedures in the Juvenile Court

Generally, the LCA under section 99(1) empowers the Chief justice to make rules
to govern proceedings involving a child. Though such rules are yet to be made, the
LCA provide some general guidelines on how to deal with a child in conflict with
the law (see, sections 99-120).

2.3.2.2 Approved Schools

See, sections 121-132, Part X of the LCA
These are institutions run by the state to which children in conflict with the law
are committed by the Court for correction and rehabilitation [section 22(2), 120(1)
of LCA] e.g. Mbeya approved school. They are deemed under the law as a legal
custody [section 126 of LCA]. The approved schools are established by the order of
the Minister responsible for social welfare, who has also power to declare any
school or institution to be an approved school and elect the management of such
institution [sections 121(1)(2) of LCA]. Section 127 requires a child not to be
detained beyond the date on which he attains the age of eighteen years.

2.3.2.3 Institutionalised Care

See, sections 133-151, Part XI of the LCA

They include; children's home; a retention home; an approved school; a crisis

centre; and approved residential homes, orphanage centres, day-care centres,
crèches (nursery school), etc., established and run by the state, or
 32

licenced/registered ‘private’ individuals/institutions. These institutions act as

educational and rehabilitation centres, children homes or legal custody.

2.3.2.4 Other local and International Institutions

Includes; Ministry of education, Ministry responsible for Children welfare,
Ministry of Home Affairs, Social Welfare Department, Social Welfare officers,
prosecutor, defence counsel, juvenile probation officer, court personnel, the police
force (gender and children’s desk), the prison service, CSOs, TCRA, CHRAGG, UN,
UNDOC, ECOSOC, UNICEF, WHO, etc.

2.4 Origin, Philosophy, Goals of Juvenile Justice System in the U.K., USA,
and Tanzania
In ancient times, before the 18th Century, the penal policy and justice system did
not distinguish young offenders from adults. In that regard, young offenders were
arrested, detained, prosecuted, convicted and imprisoned just like adult
offenders32.

2.4.1 The U.K.

(i) Formulation of legal doctrines by Courts of law
• Under the English Common law, children between the ages of seven and
fourteen were presumed incompetent to form the requisite criminal intent, and
children over age fourteen were presumed to have the capacity to form
criminal intent.
• The prosecutor, however, could rebut that presumption by demonstrating that
the child knew the difference between right and wrong.
• The movement towards having a distinct system of juvenile justice began in
177233 whereas a certain degree of leniency was adopted in civil matters such as
will, probate, and gifts pertaining to juveniles.34

32
Kazi, G.(2003)Problems of Managing Juvenile Justice in Zanzibar: Matching the Law and Practice,
p.1
33
Paranjape (2001) Criminology and Penology (11th Ed.), p. 376
34
Paranjape, Ibid.,
 33

• In Eyre v. Shaftesbury35for example, the Court of Chancery Division in England

developed a principle of ‘parens patriae’36 for handling the estates of minors.
• Further, the Court developed the doctrine of ‘capacity to contract’ in which
minors of a certain age could not be said to have consented, consequently not
bound by a contract or engagement.
• In criminal law, the doctrine of ‘doli incapax’37 was also developed.

(ii) Setting up of specialised institutions for Juveniles

• In 1838, the Parkhurst Prison was set up in England for the treatment of
juvenile offenders.38
• Proceedings involving juveniles were conducted in Camera (as opposed to open
Court) and such proceedings were quite informal.
• In the 18th Century, the death penalty for juvenile offenders was abolished.
• In 1847, Miss Marry Carpenter pioneered the establishment of ‘Ragged
Industrial School’ in Bristol and later ‘Day Industrial School’ in Aberdeen for
homeless and destitute.39
(iii) Enactment of Juvenile Laws

Apart from setting up specialised institutions for juveniles, various laws also were
introduced to guarantee the welfare of juveniles in the whole process of
administering criminal justice. These laws include;

• The Probation of offenders Act of 1907 which provided for probation measures
for young offenders. The 1908’s Prevention of Crimes Act, among other things,
introduced ‘Borstals’ (places where juvenile offenders were confined). Again,

35
(1772) 24 E.R. 659
36
The doctrine gave the Court the power to act in place of the parent.
37
i.e., a child of a certain age is deemed incapable of committing sexual offences.
38
Paranjape, Loc. Cit.
39
Paranjape, supra
 34

the Act prohibited imprisonment of juvenile offenders aged between 16-21 years
in ordinary Prisons.
• The Children Act of 1908 (children’s charter) established, officially, separate
juvenile courts and remand homes (approved schools) in England.
• The 1908 Act was repealed and replaced by the Children and Young Persons Act
of 1933 and the Criminal Justice Acts of 1948 and of 1982 respectively.

2.4.2 The USA

The evolution of Juvenile Justice System in the US can be traced in four (4) main
historical phases as follows;

(i) Pre-Juvenile Court Phase (1600-1898)

• Child law-breakers were dealt with by the family (and the community at large),
which was the primary source of child control. This means that the family was
the police, prosecutor, judge, and executioner. The family was not limited to
the immediate family but included neighbours, relatives, social institution,
especially churches and schools.
• The punishment included whippings, beating, shaming, etc.
• However, with time, family and social institutions proved failure due to the
increase of population, and thus disintegration of communal ties.
• With the failure of family (and social institutions) to handle delinquent
children, “the houses of refuge” were established in 1826 to take care of orphans,
street and delinquent children.40
• The goal of the House of Refuge movement was both to prevent delinquents
from becoming criminals and to reform those who had already committed
crimes.

40
Quaker reformers spurred the New York Legislature in 1824 to pass legislation creating a House of
Refuge, which separated poor children and juvenile delinquents from adult criminals.
 35

• The judge had the discretion to determine which juvenile delinquents might
properly benefit from the House of Refuge; child criminals unlikely to reform
were maintained in adult prisons.41
• The Houses of refuge are considered to be the first juvenile institutions in the
US.
• Essentially, Houses of refuge operated on the philosophy that “children could be
saved through hard work, education and religious teaching”.
• In 1835, the law governing the House of Refuge was amended to provide that
girls under age eighteen and boys under age twenty-one could also be
committed to the care and supervision of the House of Refuge for incorrigible
or vicious conduct.
• However, with time, Houses of refuges proved failure were associated with
children abuses, combined with a filthy and dangerous environment.
• In mid-19th Century, “Training/Industrial Schools” were introduced to fill the
void left by Houses of refuge.
• Training/Industrial Schools emphasised on ‘schooling and vocational training’.

(ii) Juvenile Court Phase (1899-1966)

• The first specialised juvenile court in the world was created by the Juvenile
Court Act, passed by the Illinois parliament in Cook County in 1899.
• Juvenile court proceedings were not criminal in nature, children were not
entitled to the full panoply of due process protections accorded adult criminals.
• The philosophy of separate Juvenile Court was highly influenced by “parens
patriae”42 doctrine (the state as parent). This means that the government

41
The House of Refuge was not a prison, but a school, where reformation, and not punishment is
the end, the formalities of the criminal court were not required.
42
In the case of Ex parte Crouse, 4 Whart.9 (Pa. 1839), the court stated that although parents have a
right to parental control, the right is not absolute, and if parents fail to exercise their rights in the
appropriate manner, the rights and responsibilities of caring for the child are transferred to the
state. This case is said to have legitimised the doctrine of parens patriae.
 36

(through Courts of law, especially Juvenile Court) function as the ultimate

parent and guardian of children who cannot care for themselves.
• At this stage of development, the government through Juvenile Courts, acted as
a “super-parent”, exercising guardianship rights for juvenile by identifying,
treat, and minimise conditions contributing for their anti-social behaviours.
• The philosophy or mission (goal) of the Juvenile Court was to provide an
individualised care to all youths who needed it. Thus, in its practice the Court
was flexible, informal and put itself in the place of “a wise parent”.
• However, the Juvenile Court (and law) provided few procedural rights to
juvenile offenders, because it tended to act in their best interest, and in most
cases, it imposed “indeterminate sentences” (unspecified/uncertain sentences)
for a juvenile.
• Several states followed the lead of Illinois, and by 1910, over 32 states in the US
had established separate Juvenile Court. Further, by 1925 all (except two) states
had established a separate Juvenile Court. More interestingly, by 1950, every
state had a separate Juvenile Court in the US.
• It took more than 60 years after the formation of the first Juvenile Court in
1899 to constitutionalize the juvenile justice process in the US.

(iii) Juvenile Rights Phase (1967-1979

• This phase is said to emerge from widespread criticism directed to the
functioning of Juvenile Court, especially sentences for children.
• Around the 1960s, critics spoke of the demise of the juvenile court, and they
raised questions about the lack of due process procedures and protection of
individual rights by Juvenile Courts.
• The main opponents of Juvenile Courts singled out sentence scaled for children
which tended to be unfair, biased and disproportionately long compared to the
nature of offences committed (i.e., indeterminate sentences).
 37

• Suggestion: they called for the development of a set of “procedural rights” that
would protect juveniles from the system.
• The decision of the US Supreme Court in re Gault (1967) marked the beginning
of the Juvenile Rights phase.43
• In re Gault (1967), Gerald Gault (15 years old) and his friend, Ronald Lewis were
placed into police custody (in Gila County, Arizona) following a complaint that
they made “lewd phone calls” (i.e. inappropriate and offensive telephone call) to
a woman, Ora Cook (their neighbour). However, Gault’s parents were not
informed of the arrest; the complainant was not present at either hearing, and
no written records made of the proceedings. Gault was convicted by a Juvenile
Court and committed to 6 years in the state Industrial School in Arizona.

The punishment for an adult person found guilty of the same offence would
have been a fine of 5-50 US Dollars or imprisonment for a maximum of 2
months.

• Gault appealed to the Arizona’s Supreme Court, but in vain. He further

appealed to the US Supreme Court which held in favour by arguing that Gault’s
commitment to the State Industrial School was a violation of the 14th
Amendment since he had been denied the right to an attorney, had not been
formally notified of the charges against him, had not been informed of his right
against self-incrimination, and had no opportunity to confront his accusers.
Justice Potter Stewart was the sole dissenter. He argued that the purpose of

43
However, there is also those who argue that the appeal for reform began the decision of the U.S.
Supreme Court in the case of Kent v. United States (1966). In Kent’s case, the Court held the law on
an informal process of determining whether a juvenile should be tried in juvenile or in adult court
failed to provide sufficient due process protection for children. Further, the Court argued that
before a minor is transferred to adult court the child is entitled to an informal hearing where the
trial court must articulate the reasons for the transfer so that the child can have an adequate record
for appellate review. Additionally, in response to the state's position that juvenile cases were civil,
not criminal, the Court responded, "there is evidence, in fact, that there may be grounds for concern
that the child receives the worst of both worlds; that he gets neither the protections accorded to
adults nor the solicitous care nor regenerative treatment postulated for children.”
 38

juvenile court was correction, not punishment, and the constitutional

procedural safeguards for criminal trials should not apply to juvenile trials.
• The decision of the US Supreme Court in re Gault was a watershed in juvenile
proceedings. The case established that juveniles must be given certain
procedural or due process rights in any proceeding that could result in
confinement in the juvenile institution. Such constitution or procedural
rights/protection include; notice of the charges, legal representation, right to
confront and cross-examine witnesses, right to remain silent, etc.
• Before 1967, juveniles were prosecuted and committed to correction
institutions without regarding above protection, the presumption being that
Juvenile Court acts as “parens patriae”.
• In 1974, the President's Commission on Law Enforcement and Administration
of Justice was established to study the deficiencies in the juvenile delinquency
system.
• The commission urged more non-judicial service agency intervention and
recommended limitations on the confinement of minors.

(iv) Crime Control Phase (the 1980s- Present):

This period is marked by an increase of crimes committed by juveniles, and the

thinking was that the existing juvenile justice system is too soft to address the
problem. Thus, the focus of this phase was on prevention of delinquency.

Suggestions (areas of reforms):

• Imposing harsher and longer penalties for serious and violent juvenile
offenders.
• Reform of Juvenile Justice System into a “miniature version” of the adult
justice system (with the effect of eroding the doctrine of ‘parens patriae’.
• Transfer of violent juveniles (and incorrigibles) into the adult Justice system
 39

• Imposing determinate or mandatory sentences for violent juvenile

offenders, and
• Use of institutionalised care for serious and persistent (incorrigible)
juvenile offenders.

2.4.3 The United Republic of Tanzania

A. Mainland Tanzania (Tanganyika)

Though Mainland Tanzania (Tanganyika) was first colonized by the German

(1884–1919), a well-developed juvenile justice law and institutions were set up by
the British colonizer (1920-1961). Under Germany rule, juvenile offenders received
no special attention from colonial law and institutions.

(a) British Rule

Mainland Tanzania (Tanganyika) being under the British mandate was not
invulnerable to changes and development taking place in England and elsewhere
in the British dominion (Commonwealth).

(i) Early Years of British Administration

• At the beginning of their administration, the British did not pay much
attention to the juvenile criminal justice system.
• Crime figures in 1928 and 1929 revealed an increase in incidences of crimes
committed by juveniles.

(ii) Establishment of Juvenile legal and institutional Frameworks

• In the early 1930s, with a growing number of crimes committed by juveniles,

juvenile offenders came to be regarded with special concern by the British
colonial administration.
 40

• As a response to juvenile delinquencies, the British colonialists formed a team

known as the Committee on Imprisonment, to look into the matter.44
• In 1932, the Committee issued a report which among other things advised the
colonial government to establish a reformatory to rehabilitate convicted
juveniles to prevent them from reoffending.45
• On 23rdApril 1937, the colonial government imported The Children and Young
Persons Act/Ordinance from the UK into Tanganyika to take care of children in
conflict with the law.
• Among other things, the Court introduced the Juvenile Court and Approved
Schools in Tanganyika (now Tanzania)
• At the same time, the government implemented the recommendation of the
Committee on Imprisonment and, thus the first approved school was opened at
Kazima (Tabora) in 1938.
• Again, in 1958 the Malindi School was opened in Dar es Salaam to deal with
young offenders.

(b) After Independence (1961 to date)

• Superstructure inherited from British colonialists, for 73 years, remained the
main legal framework for the administration of juvenile criminal justice in
Tanganyika (now Tanzania).
• In 1998, the Sexual Offences Special Provisions Act (SOSPA) was enacted,
among other things, aimed at protecting children who fall victims of the
crime or indulge into criminality.
• In 2008, the Child Development Policy was introduced, inter alia, calling for
the reform of the administration of juvenile justice system, consolidation, and
harmonisation of child laws.

44
Ibid., pp. 208 and 209
45
Ibid., p. 209
 41

• In 2009, the Children and Young Persons Ordinance/Act was repealed by

Section 160 (1)(d) of the Law of the Child Act (LCA), No. 21/2009 and replaced
by Part IX, X & XI of the LCA.
B. Zanzibar
(a) Before the British colonialism in Zanzibar:
• Since Zanzibar is a former territory of the Oman sultanate, it is very hard to
disregard the influence of Islamic law and other Arabic traditions in dealing
with young offenders.
• Islamic law (Muhammadan law/sharia), Kadhi/Quadis’ Court, and religious
leaders such as Sheha, Kadhi, and imams were common institutions in relation
to juvenile justice system.
• Again, there was no special institutions or personnel for juvenile offenders.
• Even though, the Islamic law (Quran), customs and traditions allowed leniency
in the treatment of juvenile offenders.
(b) During the British colonialism
• At the beginning of British regime in Zanzibar, there were no, strictly speaking,
separate institutions for juveniles.
• Islamic law and related institutions co-existed with English justice systems
especially, Muslim principles regarding the care and custody of minors.
• In 1935, the British adopted the Juvenile Offenders Decree (JOD) which
introduced Juvenile Court constituted like the Juvenile Court in England where
women could sit on the panel.
• In 1952, the JOD was repealed and replaced by the Children and Young Persons
Decree (CYPD).
• Again, the CYPD was a brainchild of the English Act, i.e., Children and Young
Persons Act, 1933.
 42

• The CYPD established provisions for the protection of persons under the age of
sixteen years and for the procedure at a trial of such persons on criminal
charges.
• Further, the CYPD established Juvenile Courts (as a distinct tribunal) at the
level of Regional Magistrate Courts for hearing and conducting all trials against
persons below 18 years of age except in cases where children are jointly charged
with adults.
(c) Changes
• In 2007, Zanzibar started processes to reform laws governing children rights.
• In 2011, the Children and Young Persons Decree, 1952 was repealed and
replaced by the Children’s Act, 2011.

2.5 Why Separate Institutions and Personnel for Juveniles?

Reasonably, children in conflict with the law are not subjected to the mainstream
justice systems for the following reasons;

• The international and regional conventions, treaties, and UN umbrella

principles (human rights legal instruments) obligate member states to erect
or set separate law, standards, and institutions for children;
• The assumption that children can easily be rehabilitated or reformed, thus
not to be mixed up with adult offenders in adjudicative processes or after
being sentenced;
• Children belong to vulnerable group/age factor (i.e. they are immature and
victim of circumstances or society problems e.g. poverty, alcoholism, broken
families, etc.), thus not able to appreciate the consequences of their actions;
• The best interest of the child doctrine requires special treatment of the child;
• Psychological factors: to avoid stigmatisation or traumatising a child;
• The need of specialty (specialisation) and expertise in handling juvenile
offenders;
 43

• To avoid abuse of a child, if mixed with adults;

• Nature of the offences committed by children are not as grievous or serious
as those committed by adults;
• To ensure privacy and a child to participate freely in the proceedings without
fear or feeling shy;
• Not to expose children to habitual offenders (or recidivists): to protect
children from negative influences of adult criminals;
• Children need special protection and care compared to adults; and
• To ensure informality during trials: to avoid legal and procedural
technicalities.

2.6 Theories of Juvenile Delinquency: Causation

2.6.1 Nature of Juvenile delinquents and delinquencies
To understand the nature of juvenile delinquents and their delinquencies, we need
to explore two crucial aspects, which altogether set up the scope of theories of
causation. These are; the characteristics of juvenile offenders, and the nature of
crimes committed by them.

2.6.2 Characteristics of Juvenile offenders

Many authors who have endeavoured to labour on criminality tendencies among
juveniles, especially criminologists, psychologists and social scientists describe
juvenile delinquents as children who have;
• Been neglected by their parents or relatives (i.e. lacks care/maintenance/means
of livelihood);
• Low IQ
• Hate studying;
• Mental problem (in-born trait);
• Been sexually abused by adults or other children;
• Been in constant torture or tormented (at school, home, or by peer groups);
• Been exposed to the use of illicit drugs and alcohol;
 44

• Friends who are criminal;

• Been raised up by criminal parent/s, and
• Been living in areas or neighbourhood with high crimes rate.

2.6.3 Crimes committed by Juveniles

Generally, offending tendencies among juveniles can be categorised into two major
groups, namely, Deviant behaviours and Criminal conducts.

• Deviant behaviour may be referred to as anti-social behaviours or conducts

which fall short of societal mores or they are against accepted moral standards
and necessarily not crimes. Deviant behaviours among juveniles includes;
begging, truancy, vagrancy, obscenity, pilferage, drinking, gambling, stealing of
things of little value, etc. Such kind of misconduct among juveniles are usually
dealt with by members of the family, neighbours, relatives, schools’
administration, religious institution by way of verbal warning, canning or
counselling.
• Conversely, Criminal conducts may simply be defined to mean, felonies and
misdemeanours committed by juveniles, for example; theft, robbery, house
breaking, assaults, unnatural offences, rape, burglary, possession of illicit drugs,
etc. These offences, if committed by a juvenile, the law requires to be arrested,
prosecuted and if found guilty, to be warned or put on probation or committed
to an institution. Nonetheless, the law is clear that a child cannot be sent to
prison, sentenced to death or convicted for any treasonous act. Again, it is
established under the penal law that a child below 10 years is incapable of
committing any crime.

2.6.4 Causes of Juvenile Delinquency

See, Module one

There are several theories developed by criminologists and social scientists behind
juvenile delinquency. However, I must admit that, there is no single theory which
 45

can stand on its own to explain criminal tendencies among juveniles. Some of
these theories are;

(i) Rational choice theory

• Causes of crimes lie within the individual offender, rather than in their external
environment.
• Children who commit crimes are motivated by rational self-interest and free
will rather than external influence.
• One (naturally) opts to be a criminal.

This theory is highly associated with “classical/hedonistic thinkers” such as Cesare

Beccaria46 and Jeremy Bentham (utilitarianism, i.e. need please, avoid pain).

(ii) Social disorganisation theory:

• This school of thinking associates criminality among juveniles with a
breakdown of communal institutions (e.g. family, schools, church, local
governments, etc.,) and communal relationship that traditionally encouraged
close relationships among people.
• Delinquency rates highest in lower-class inner-city neighbourhoods and
decreased toward the more affluent areas.
• Crime tend to be concentrated in particular areas of the city.
• Public tolerance of crimes.
• The decline of social bonds between people.

Anomie theory is closely linked with “positivist scholars” such as Clifford Shaw and
Henry D. McKay, 1942 (Chicago School). The social disorganisation perspective
remained both popular and influential throughout the 1950s and 1960s.

46
Cesare, Marquis of Beccaria-Bonesana.
 46

(iii) Anomie/strain/economic stress theory47

• An unusual emphasis on economic success may influence crimes.
• Social structures within the society may pressurise individuals to commit
crimes.
• Frictions and pains experienced by an individual as he or she looks for ways to
satisfy his or her needs, i.e. if the goals of a society become significant to an
individual, achieving them may become more important than the means
adopted. Merton suggested that they then turn to crime to attain wealth.
• A situation in which societies inadvertently bring to bear pressure or strain
(e.g. American Dream) on individuals that can lead to rule-breaking behaviour.
• Individuals are faced with inequalities and poverty, thus failing to satisfy their
desires or personal desires through legal means.
• Lack of legitimate means to acquire wealth (due to lack of education or
employment).
• Mass Media depiction of good life in big cities may lead to children to run away
from their parents to pursue such dream, thus ending up in criminal groups.

The theory was developed by Robert King Merton (1938) who borrowed Émile
Durkheim’s concept of anomie to explain crime.48 Some link Merton’s approach to
Marxist thinking on crimes in the imperial world.

(iv) Sub-cultural theory

• Albert K. Cohen’s theory was premised on Robert K. Merton's Anomie Model of
Crime, which left three questions unanswered, i.e. why is deviance often a
collective rather than individual act? How can we explain deviance not

47
Literally the term “anomie” means lack of social norms; "normlessness". Again, it describes the
breakdown of social bonds between an individual and their community, if under unruly scenarios
possibly resulting in fragmentation of social identity and rejection of self-regulatory values. The
term “strain” means ‘subjected to tension or stress.’
48
The theory has advanced further by Albert K. Cohen (1955), Richard Cloward and Lloyd Ohlin
(1960), Neil Smelser (1963), Robert Agnew (1992), and Steven Messner and Richard Rosenfeld
(1994).
 47

motivated by "money success"? Why do different people commit different

deviant acts?
• The theory wished to explain why most delinquent acts were not motivated by
money as the anomie model suggests.
• He concluded that delinquency was not a result of concern for "money success"
as Merton claimed but instead a result of the pressures of all dominant values.
• As working class male adolescents in the inner city fail in school, they begin to
feel that they cannot achieve in society by legitimate means and experience a
social "status frustration".
• Cohen argued that instead, they form a subculture that "takes its norms from
the larger culture but turns them upside down".
• Stealing and vandalism are valued within the gangs and so not only provide
delinquents with a method of retaliating against the society that rejected them
but also provides them with an alternative means of gaining status in the eyes
of his peers.
▪ Individuals tend to join criminal gangs to achieve socially valued status or
social approval or protection; e.g. respect for fighting and daring.
▪ Subcultural theories explain the cause of crime in terms of the subculture of a
group.
▪ The basis of the theory is that groups within society develop values and norms
which are different from those held by other, mainstream members of society.
▪ Deviance arises because individuals conform to the values and norms of
particular groups which have a code of behaviour of their own. For example,
some groups might espouse values which encourage and reward criminal
behaviour.
▪ It is not that the members of subcultures are completely different from the rest
of society; but that their subculture is sufficiently different from the culture of a
society in general that it leads them to commit acts which may be criminal.

(v) Differential association/social learning theory

Edwin Sutherland’s theory that persons who become criminal do so because of

contacts with criminal patterns and isolation from anti-criminal patterns.
 48

Sutherland’s theory was modified by several researchers and became generally

known as the learning theory.

(vi) Labelling theory

The theory provides that formal and informal application of stigmatizing and
deviant “labels” or tags applied to an individual by society will not deter, but rather
instigate future deviant or criminal acts. Conversely, the labelling theory mirrors
conflict theory in that the individuals with power create and enforce rules at the
expense of the less powerful.

See, Becker, H.S. (1963) Outsiders: Studies in the sociology of deviance, New York:
Free Press.

2.7 Legal Protection of a Child in Conflict with the Law in Tanzania

A child who is arrested for allegedly committing an offence has:
• The right to remain silent. It includes also the right not to be compelled to
make any confession or admission that could be used in evidence against
him/her, Sections 52(1), 53(c)(i) of CPA, RE: 2008.
• The right to be informed promptly of the charges by the police: communication
of the charge (i.e. the police must, as soon as possible after arrest, explain the
nature of allegations in a language and manner the child can understand),
Sections 23(1)(2) & 53(b) of CPA, RE: 2009. The Juvenile Court is also duty
bound to explain to the child, in simple language, the particulars of the alleged
offence (Section 105 of the LCA, 2009).
• The right to prompt notification of arrest: arrest and notification of parents and
guardians (A parent or guardian should be notified immediately after the child
is apprehended or, if this is impossible, “within the shortest possible time
thereafter”), section 56(1) of CPA). This includes also the right of a child to
communicate with parent, relative, friend, lawyer after being arrested under
sections 53(c)(ii), & 54(1) of CPA.
 49

• Right to be separated from adult offenders: Separation from adults during

transportation (or transportation with supervision), and in police
custody/detention/prisons/facilities (see, Section 102 of the LCA).
• The right to be released on bail (or his recognisance) with or without surety
(Sections 101, 104, 111(2), 116, 125, 131 of LCA).
• The right to be brought before a Court of law as soon as (reasonably) possible,
sections 32(1) & 33, 118 of the CPA. However, section 103(1) of the LCA requires a
child to be brought to Court only after the investigation is complete.
• The Right to legal assistance: to have the assistance of a lawyer/advocate or
next of kin (legal representation): Once arrested or detained, a child is to be
advised immediately his/her right to counsel (Section 99(1)(f) of LCA).
• The right to be heard or to show cause (audi alteram partem): the child shall
have a right to give an account and express an opinion (Article 13(6)(a) of the
URT Constitution, Sections 99(1)(h)(2)(a)(b), 106 & 110 of LCA).
• The right to informal procedures/ proceedings (Sections 99(1)(c), 103(2) of
LCA). See, also section 187 of CPA).
• The Right to Privacy: trials in camera [Section 99(1)(b)(2) of LCA],
trial/proceedings to be conducted/held in a different building or room from
that which the ordinary proceedings of the court are conducted
[Mukamambogo v. R. (1971) HCD 63; Sections 98(3), 100(2)(3) of LCA], law
reports should not have names of minors (this is not the case in Tanzania), no
criminal records or disregard of such records (destruction after trial). Again,
Sections 33(1)(2) & 158(1)(d) of LCA prohibit publication (or cause to be
published) any information (or photograph) which is prejudicial to the best
interest of a child without court’s order. See, also Article 16(1)(2) of the URT
Constitution.
Sections 59(6)-(10) of CPA which establish the Criminal Records Office is silent
as to the exclusion of children criminal records from the police database.
 50

• The right to free assistance of an interpreter (not expressly provided under

Tanzanian laws)
• A right of a parent, guardians or a next of kin to be present during a trial
(parent presence in the Juvenile Court) as per Sections 99(e) & 112 of LCA.
• The right to appeal: the right to appeal shall be explained to the child (Article
13(6)(a) of the URT Constitution, Section 99(1)(g) of LCA).
• The right to be tried in a Juvenile Court, section 100(2) of the LCA which
provides that;
Where in the course of any proceedings in a court it appears to the court that
the person charged or to whom the proceedings relate is a child, the court
shall stay the proceedings and commit the child to the Juvenile Court.

However, where a child is charged jointly with an adult person (either as an

accessory after the fact, or abettor), Section 100(1) of the LCA, by implication,
requires not to be committed to a Juvenile Court. The said provision read as;

The Juvenile Court when hearing a charge against a child shall, if

practicable, unless the child is charged jointly with any other person not
being a child, sit in a different building or room from that which the
ordinary proceedings of the court are held.

In that regard, as Maganga, C.S. (2005:14) says, a child or young person will also
have his or her case tried in an adult court. The trial will not consider the juvenile’s
age, for example, the trial will not be held in camera. The juvenile will go through
the same trial process as the adult co-defendant. However, the judge will consider
the juvenile’s age when passing sentences.
Section 100(1) of LCA violates the principle of privacy as it waives the right of a
child to be tried in a Juvenile Court when charged jointly with an adult offender.

• The right of not to be incarcerated/imprisoned (sections 116, 119(1) & 120(1) of

LCA). Again, the law requires a juvenile offender to be remanded to the care of
the Commissioner for social welfare or fit person or institution, not in prison or
police custody (section 104(1) of the LCA).
 51

• The right to be protected from torture, inhuman and degrading punishment or

treatment: minimum force should be used in dealing with children (Section 13
of LCA, Article 13(6)(e) of URT Constitution, 1977, section 55(1) of CPA).
• The right to give evidence or testify or act as a public witness in Court where a
child is a victim of an alleged offence, subject to the law [Sections, 115(1)-(4) of
LCA, & 127(1)-(8) of the Evidence Act, RE: 2007].
• The right to be presumed innocent until charged and convicted as such by the
Court of law, Article 13(6)(b) & 15(2)(a)(b) of the URT Constitution.
• Protection of child’s rights and dignity in all activities pertaining to criminal
investigations and process, restraint/detention, or in the execution of a
sentence (see, Article 13(6)(d) of the URT Constitution.
Other requirement/s:
• The police officer should confirm the age of the child. Likewise, the court is
also obligated to make an inquiry as to the age of the child (sections 113(1) and
114(2) of LCA).
Read:
The Law of the Child (Juvenile Court Procedure) Rules, 2016; and Explanatory
Guide to the Juvenile Court Rules.

References

Akonaay, F. (2011) The Administration of Juvenile Criminal Justice in Tanzania

Mainland: A Critical Analysis of The Efficacy of The Law of The Child Act (2009),
LL.B Dissertation submitted to the University of Mzumbe.

Badenhorst, C. (2006) Criminal Capacity of Children. Ph.D. Thesis submitted to the

University of South Africa.

Barry Krisberg, et al. (1986), The Watershed of Juvenile Justice Reform. Crime and
Delinquency, Vol.32: 5-38.

Centre for Child law (2008) Justice for child victims and witnesses of crime. Faculty
of law, University of Pretoria, PULP.
 52

Sarri, R. and Hasenfeld, Y. (1976), Brought to Justice? Juveniles, the Courts, and the
Law. Ann Arbor: National Assessment of Juvenile Corrections, University of
Michigan.

Snyder, H.N. & Sickmund, M. (2006) Juvenile Offenders and Victims: 2006 National
Report. Washington, DC: U.S. Department of Justice, Office of Justice Programs,
Office of Juvenile Justice and Delinquency Prevention.

Wernham, M. (2004) An Outside Chance: Street Children and Juvenile Justice – An

International Perspective. Consortium for Street Children, London.
53

Part II

PENOLOGY
 54

Prelude to Part II
1. What is Penology?

The term ‘penology’ encompasses two words, i.e. ‘poena’ (Latin), meaning ‘pain or
suffering or penal or punishment’, and ‘logia’ (Greek), meaning ‘study of.’ It is also
called ‘Penal Science’ or ‘penitentiary science’ i.e. branch of criminology or
philosophy which deals with prevention of crime and inflicting punishment on the
offenders. It also covers policies which are not punitive in nature namely;
probation, medical treatment, education/counselling and rehabilitation. As part of
criminology; penology covers a wide range of disciplines such as; psychology,
geography, history, philosophy, social policy, sociology and criminology. Modern
penology dates back in 1764, the year when an Italian penologist, Cesare Beccaria
published his pamphlet titled, ‘Crimes and Punishments.’

Summary:
Penology is a multidisciplinary subject concerned with the processes devised and
adopted for the punishment, repression, and prevention of crime, and the
treatment of or application of penal sanctions to wrongdoers.

2. Why study Penology?

✓ Help us to understand justifications, characteristics and effectiveness of penal

institutions and sanctions.
✓ Help us to understand the use of penalties within their social, historical,
economic and political contexts.
✓ Help law enforcers to rehabilitate and educate individuals that have been
imprisoned so they can be integrated back into society

Scott, D. (2008) Penology: SAGE Course Companions Series. SAGE Publications

Ltd.
 55

Questions:
What is a relationship between criminology and penology?
Why is it important to study criminology and penology?
 56

Module 3: Theories of Criminal Punishment

Picture: Ukonga prison (Dar es Salaam)

3.1 Introduction to Punishment

Punishment (legal punishment of criminals in criminology as opposed to divine
punishment of sin/evil in theology). Punishment is imposed because some person
has done wrong. Punishment may also be called sanction.

• A sanction - such as a fine, penalty, confinement, or loss of property, right, or

privilege - assessed against a person who has violated the law. (Black’s law
Dictionary, 9th Ed, 2009).
• Sanctions such as fine, confinement, or loss of rights to property administered
to a person convicted of a crime. (Webster’s Law Dictionary, 2006)
• Punishment can also be formal and impressive condemnation by society
against criminal behaviour.

Punishments differ in the degree of severity of their unpleasantness and may

include sanctions such as reprimands, burden, deprivations of privileges or
liberty, fines, incarcerations, ostracism, the infliction of pain, and the death
penalty.
 57

3.2 Features of a Criminal Punishment

(i) Punishment49 must be an evil act that inflict pain, i.e. an unpleasantness to
the victim or something that creates positive suffering and capable of
depriving offenders something they would like to retain.
(ii) Punishment must be for an offence

The general principle regarding punishment is called Nulla poena sine lege and
nulla poena sine crimen (no punishments outside the law, no punishments except
for a crime).

(iii) Punishment must be for an offender, actual or supposed. No one should

suffer on behalf of another person.
(iv) It must be the work of personal agencies; in other words, it must not be the
natural consequence of an action.
(v) Punishment must be proportional to the crime committed (Punishment fits
the crime).
(vi) Punishment must be imposed by some authority/independent body (it
must be imposed by an authority or an institution against whose rules the
offense has been committed), i.e. if it is an action by an aggrieved person it
is revenge or mob justice (imposed after due process of the law).
(vii) The punishment, in the form of sentence, must be determinate or certain.

Summary:
Five (5) Key Elements in understanding punishment (By Flew, Hart and Benn): -
(i) it must involve pain or other consequences normally considered unpleasant; (ii)
it must be for an offence against legal rules; (iii) it must be of an actual or
supposed offender for his offence; (iv) it must be intentionally administered by
human beings other than the offender; and (v) it must be imposed and
administered by an authority constituted by a legal system against which the
offence is committed, e.g. school, court, tribunal and etc.

49
See, Professor Anthony Flew (1954) “the Justification of Punishment.”
 58

3.3 Types of Punishment

Basically, there are three (3) forms of punishment, namely;

i) Physical punishment (e.g. death penalty, mutilation, corporal punishment,

etc.)
ii) Custodial/Confinement (e.g., imprisonment, detain, house arrest, etc.)
iii) Non-custodial (e.g., verbal warning, pecuniary penalty, parole, community
service, etc.)
An individual may be punished for a crime if he/she has committed or perceived to
have committed (direct punishment) or for failure to prevent its occurrence
(vicarious/collective/indirect punishment) or conspiring to commit a crime or
knowingly benefiting from a crime committed by someone else. The imposing
authority may either be a public body (centralised sanction) or a private entity
(decentralised sanction).

3.4 Why Criminal Punishment?

This question might produce the following responses:

• They deserve to be punished.

• Punishment will stop them from committing further crimes.
• Punishment tells the victim that society disapproves of the harm that he or
she has suffered. Punishment discourages others from doing the same thing.
• Punishment protects society from dangerous or dishonest people.
• Punishment allows an offender to make amends for the harm he or she has
caused.
• Punishment ensures that people understand that laws are there to be obeyed.

3.5 Theories of Punishment

Basically, there are four major theories of criminal punishment i.e. retribution,
deterrence, rehabilitation and incapacitations.
 59

3.5.1 Traditional or Classical Theories of Punishment

(i) Deterrence theory
• 'Deter' means to abstain from doing an act.50
• The main objective of this theory is to deter (prevent) crimes (i.e. discourage
someone from doing something by instilling fear of the consequences), e.g.
chopping off hands of a thief.
• It serves a warning to the offender not to repeat the crime in the future, and to
other evil-minded persons in the society.
Jeremy Bentham51 (founder of this theory) says;

…. unpunished crime leaves the path of crime open, not only to the same
delinquent but also to all those who may have the same motives and
opportunities for entering upon it, we perceive that punishment inflicted
on the individual becomes a source of security for all.

Cesare Beccaria and Jeremy Bentham's theories were based on a hedonistic

conception of man (utilitarianism) and that man as such would be deterred from
crime if the punishment was applied swiftly, certainly, and severely. But being
aware that punishment is an evil, he says,

If the evil of punishment exceeds the evil of the offence, the punishment
will be unprofitable; he will have purchased exemption from one evil at
the expense of another.

The basic idea of deterrence is to deter both offenders and others from committing
a similar offence, i.e. punishment for the general good of the society.

The utilitarian theories are forward-looking; they are concerned with the
consequences of punishment rather than the wrong done, which, being in the past,
cannot be altered.52

50
It may be general or specific deterrence.
51
Proportionality theory in punishment and utilitarianism theory i.e. maximisation of happiness and
minimisation of unhappiness for the majority
 60

(ii) Rehabilitation
• A theory of rehabilitation is more usually associated with the treatment of an
offender. A few thinks that all offenders are 'ill' and need to be 'cured' but the
majority of criminologists see punishment as a means of educating the
offender.
• This is a justice system which intends to reform criminal offenders rather than
punish them or segregate them from the greater community.
• Some punishment includes work to reform and rehabilitate the wrongdoer so
that they will not commit the offence again.
• This is distinguished from deterrence, in that the goal here is to change the
offender's attitude to what they have done and make them come to see that
their behaviour was wrong.
• Rehabilitative methods include; Treatment (in the case of drug abusers),
Adoption, Foster Care, Sponsorship, Parole,53 Probation,54 community service,
Separate Juvenile Justice System, use of indeterminate Sentencing and
expungement (obliterate or destroy or remove completely criminal records).55

(iii) Retributive/punitive/retaliation/reprisal theory

• The punishment inflicted in the spirit of moral outrage or personal vengeance

(i.e. revenge, getting even, payback, ‘lex talionis i.e. eye for an eye justice’)56 for
instance, mob/street justice, blood feud and vigilantism.

52
Utilitarian theories of punishment: deterrence and rehabilitation. Utilitarianism arose in the
eighteenth century and was originally addressed to social policy as a basis for penal reform and
legislation.
53
This is the conditional release of a prisoner who has served a part of their sentence back into the
community under supervision and conditions that if violated will result in re-arrest.
54
This is a period where an offender lives under the supervision and under a set of restrictions.
Violations of these restrictions could result in arrest.
55
It occurs when an offense is removed from an offender's criminal record. Minor offenses where
rehabilitative success is met are deemed in some cases to be expugnable for the offender to move
past their mistake and live a completely normal life unrestricted by a past mistake.
56
Denunciation i.e. punishment expresses society’s disapproval.
 61

• The underlying assumption is that a criminal behaviour tends to give unfair

benefit to the offender and a loss to the victim. Therefore, a punishment is
imposed to ensure that the offender also suffers a loss.

The suffering of the wrongdoer is a desired goal, even if it has no restorative

benefits for the victim. Rowell says; “the doctrine of hell was framed in terms of a
retributive theory of punishment, the wicked receiving their just deserts, with no
thought of the possible reformation of the offender. In so far as there was a deterrent
element, it related to the sanction hell provided for ensuring moral conduct during a
man's earthly life.”

• The goal is to try to rebalance any unjust advantage gained by ensuring that the
offender also suffers a loss, e.g. blood feud, capital punishment, mob justice,
etc.
• Sometimes viewed as a way of "getting even" with a wrongdoer — the suffering
of the wrongdoer is a desired goal in itself, even if it has no restorative benefits
for the victim.
• Majority or Jurists, Criminologists, Penologists and Sociologists do not support
this theory as they feel it is brutal and barbaric.

(iv) Preventive/incapacitation theory

• The idea behind this theory is to keep the offender away from the society57.
• It involves removing offender’s ability to commit further offences. For instance,
imprisonment separates offenders from the community, thus removing or
reducing their ability to carry out certain crimes. Notably, the death penalty
does this in a permanent or irrevocable way. With the same justification, in
Islamic law, a thief’s hands may be amputated.58

57
Protect society by separating the criminal either by incarceration or stigmatisation
58
Denying them an opportunity to commit crimes by isolating perpetrators from having contact
with potential victims
 62

• The preventive theory is founded on the idea of preventing reoffending

(recidivism) by disabling the offender through measures such as imprisonment,
forfeiture, death punishment and suspension of licence.

(v) Expiatory/repentance theory

• Jurists who support this theory believe that if the offender expiates or repents,
he must be forgiven (i.e. offenders to feel or express sincere regret or remorse
or penitence about their conduct).
• The aim of punishment is to make an offender to repent/expiate or realise the
impact of his crime or wrongdoing (i.e. suffering, loss or pain).
It should be borne in mind that the above theories are, to a large extent, invoked
in dealing with adult offenders (rather than children). Children are seen as
immature, malleable, and developing individuals who are very different from
adults.

3.5.2 Modern Theories for the treatment of offenders

(i) Restoration/reparation theory59

• This is an approach to justice that focuses on the needs of the victims and the
offenders, as well as the involved community, instead of satisfying abstract
legal principles or punishing the offender.
• It is a process where all stakeholders affected by an injustice have an
opportunity to discuss how they have been affected by the injustice and to
decide what should be done to repair the harm.
• Victims take an active role in the process, while offenders are encouraged to
take responsibility for their actions, "to repair the harm they have done by
apologizing, returning stolen money, or community service".

59
Alternatives to the classic prison system
 63

• Restorative justice involves both victim and offender and focuses on their
personal needs. In addition, it provides help for the offender to avoid future
offences.
• It is based on a theory of justice that considers crime and wrongdoing to be an
offence against an individual or community, rather than the state.
• Restorative justice that fosters dialogue between victim and offender shows the
highest rates of victim satisfaction and offender accountability.
• For minor offenses; punishment may take the form of the offender "righting
the wrong", or restitution, community service or compensation orders are
examples of this sort of penalty.
(ii) Reformation theory

• The objective is to reform the behaviour of the criminal.

• The idea behind this theory is that no one is born as a criminal. The criminal is
a product of the social, economic and environmental conditions.
• It is believed that if the criminals are educated and trained, they can be made
competent to behave well in the society.
• The Reformative theory is proved to be successful in cases of young offenders.

(iii) Reintegration theory

• Reintegrate means to restore to a condition of integration or unity.

• Re-integrative justice is a process that seeks to empower individuals, families,
schools, and communities by adopting problem-solving measures that provide
new opportunities for inclusion in one’s community designed to end the cycle
of crime, poverty and racial injustice with the goal of promoting public safety
and human rights.
• Re-integrative justice promotes a more humane and effective response to
public safety concerns by diminishing reliance on prison, punishment and
exclusion and by encouraging public investment in and use of intervention
 64

strategies that support successful reintegration, equal opportunity, and

responsibility, thereby reducing the likelihood of a return to risky and criminal
behaviour.
• Re-integrative justice encourages the dismantling of the many barriers to
successful reintegration that individuals confront after their involvement in the
criminal justice system, including, but not limited to, barriers to employment,
education, enfranchisement and equality.
• Re-integrative justice also promotes reforming the many aspects of our social
institutions and systems that contribute to involvement in the criminal justice
system in the first place.
(iv) Compromise/integrated/unified theory of punishment

Advocates of this theory try to combine two or more theories above to justify
criminal punishment. Notably, many theories on punishment have been advanced,
that somehow, merge elements of retributivism and utilitarianism.

Principles to be considered in imposing a punishment: - See Article 13(6) of the

URT Constitution.

QUIZ
1. Is punishment a necessary evil? (Why)
2. How do you draw a line between punishment and torture/inhuman treatment?
(Discuss)
3. Do we still need death penalty? (Why)
4. What is the difference between divine punishment and legal punishment?
5. What is the difference (in terms of punishment) between mala in se and mala
prohibita?
6. What is Just Deserts?
7. What advantage would society gain if restorative justice were the only method
of punishment? In your answer consider all the advantages and disadvantages
offered by a restorative justice approach to punishment.
8. Is punishment morally justifiable? Discuss
 65

References

Bittner, E.& Platt, A.M. (1966) the Meaning of Punishment. Issues in Criminology,
Vol. 2, No. 1, Treatment and Punishment (spring), pp. 79-99.

Flew, A. (1954) The Justification of Punishment. Philosophy, Vol. 29, No. 111, pp. 291-
307.

Hart, H.L.A. (1959) The Presidential Address: Prolegomenon to the Principles of

Punishment. Proceedings of the Aristotelian Society, New Series, Vol. 60 (1959 -
1960), pp. 1-26.

Hart, H.L.A., et al, (1968) Punishment and Responsibility. Clarendon Press,

Oxford.

Lessnoff, M. (1971) Two Justifications of Punishment. The Philosophical Quarterly,

Vol. 21, No. 83 (April), pp. 141-148.

Philips, M. (1986) The Justification of Punishment and the Justification of Political

Authority. Law and Philosophy, Vol. 5, No. 3, Symposium in Memory of Chaim
Perelman, pp. 393-416.

Sverdlik, S. (1988) Punishment. Law and Philosophy, Vol. 7, No. 2 (August), pp.
179-201.
 66

Module 4: Sentencing in Court

Picture: Court of Appeal (Dar es Salaam, Tanzania)

4.1 Introduction: Definition of Terms

Etymologically, the word “sentence” or its derivative “sentencing” comes from a

Latin word, “sententia” used in Roman and civil law, which simply means “a
judicial decision”.

Therefore, the term “sentencing” can be defined as a post-conviction stage in a

criminal trial where a judge or a magistrate is required to determine or assess or
evaluate a legal sanction(s), and impose the same on a person found guilty of an
offence. In other words, sentencing can be said to mean a way courts deal with a
person after he has pleaded guilty or has been found guilty in a criminal
trial/proceeding. In Tanzania, a criminal trial may either be summary trials or
trials on indictment. In certain cases (especially Murder), trial on indictment is
preceded by committal proceedings taking place in the Resident or District
Magistrates’ Court.
 67

Summary:
The Black’s Law Dictionary, 2009
Sentencing is the judicial determination of the penalty for a crime.

The Criminal Procedure Act (Cap. 20)60

In Tanzania, after a conviction, the trial magistrate or judge gives a judgment
followed by a sentence. Where an accused person has pleaded guilty, judgment
will usually not be passed, and the judge will move immediately to sentence the
offender.

4.2 Basis of sentencing powers, principles and guidance

• The Constitution of the United Republic of Tanzania (1977)

Articles 4(1)(2) and 107A(1)(2), & 107B vests adjudicative powers (which include
sentencing) in Judicial bodies (courts) and Quasi-Judicial bodies (tribunals). Read
also, Article 13(1)-(6), 15(1)(2), 17(1)(2), 25(3) and 67(7) of the Constitution.

• Legislation

Statutes passed by the parliament establish the framework of Tanzania sentencing

law, e.g. the Penal Code, Cap. 16, the Law of the Child Act (2009)61, the National
Defence Act (RE 2002)62, the Ward Tribunal Act (RE2002), the Criminal Procedure
Act, supra, the Magistrates’ Courts Act (RE 2002), the Appellate Jurisdiction Act
(RE 2002), the Tanzania Court of Appeal Rules (2009), the Minimum Sentences
Act (1972, Cap. 90)63, the Interpretation of Laws Act (2002)64, the Tax Revenue
Appeals Act (RE 2006)65, and etc. Basically, statutes set minimum and maximum
sentences for almost every offence.

60
See, sections 166,170, 311, 314, 320 and 321.
61
Juvenile Court
62
Court-martial and Court-martial Appeal Court
63
Read sections 4, 5, 6, 8, and 11.
64
Sections 68, 71, 73, and 74.
65
Tax Appeal Tribunal
 68

• Decisions of Courts of Records (especially, the High Court of Tanzania

and the Court of Appeal of Tanzania).

Generally, sentencing decisions are made by sentencers (i.e. magistrates, judge,

etc.) guided by the penal law, and decisions of other judges at the same or lower
court levels.

• The Common Law and Doctrines of Equity

E.g., the principle of totality in sentencing (a common law doctrine derived from
English and Welsh law).

See, Judicature and Application of Laws Act, Cap. 358.

• Regional and International Legal Instruments and Guidelines66

Statute of the International Criminal Tribunal for Rwanda (Adopted by Security

Council resolution 955 (1994) of 8 November 1994); Statute of the International
Criminal Tribunal for the Former Yugoslavia, 25 May 1993; and the Rome Statute of
the International Criminal Court (signed on 17 July 1998, and came into force on
1stJuly 2002).

4.3 Classification of Sentencing

The sentencing process can be classified as follows: -

i) According to the length/duration of punishment

• Determinate vis-à-vis indeterminate/indefinite/discretionary sentencing

Determinate sentencing involves a sentence to confinement for a fixed or

minimum period that is specified by statute, while indeterminate/indefinite
sentencing involves a term of imprisonment with no definite/specific period or
release date within a prescribed maximum. Indefinite sentencing is common for

66
See, references
 69

juvenile offenders. It is left up to the court, with few or very flexible guidelines. At
the time of the imposition of the penalty, it may involve sentence or plea bargain.

ii) According to the form of punishment

• Custodial vis-à-vis Non-Custodial Sentencing

Custodial sentencing entails imposing a punishment (and hence the resulting

punishment itself) consisting of mandatory custody of the convict, either in prison
(incarceration) or in some other closed therapeutic and/or educational institution.
On the other hand, non-custodial sentencing means any decision made by a
competent authority to submit a person suspected of, accused of or sentenced for
an offence to certain conditions and obligations that do not include imprisonment;
such decision can be made at any stage of the administration of criminal justice
[Tokyo Rules: Rule 2.1].

iii) According to how the sentence is served

• Concurrent vis-à-vis consecutive/cumulative sentencing67

Concurrent sentencing occurs where a criminal defendant is convicted of two or

more crimes, a judge/magistrate sentences the defendant to a certain period for
each crime, but all sentences will be served at the same time, with the longest
period controlling others. Judges may sentence concurrently out of compassion,
plea bargaining, or the fact that such several crimes are interrelated. Therefore,
when sentences run concurrently, defendants serve all the sentences at the same
time. While, consecutive/cumulative sentencing requires a defendant to finish
serving the sentence for one offense before they start serving the sentence for any
other offense, i.e., one custodial sentence will start after the other one has finished.

67
Elias Joakim v. R. (1992) TLR 220, R. v. Kasongo s/o Luhogwa 2 TLR (R) 47, Musa s/o Bakari v. R.
(1968) HCD No. 239, Elias Joakim v. R. [1992] TLR 220, Chilemba v. R. [1969] E.A 470, R. v. Paul Msilu
(1968) HCD No. 64. Read also, Section 36 of the Penal Code, and Section 168 of the Criminal
Procedure Act.
 70

A consecutive/cumulative sentence will not generally be imposed where matters of

fact arise out of the same incident.

iv) According to the ranges on sentence

• Mandatory/compulsory/minimum vis-à-vis maximum sentencing

Mandatory/Minimum sentencing means a statutorily specified penalty that

automatically follows a conviction for the offense, often with a minimum
mandatory term. It is a type of sentencing in which a judge must give a set
sentence (i.e. the lowest amount of punishment a person must receive), e.g. the
Minimum Sentences Act, supra. While, under maximum sentencing is the highest
amount of punishment a person can receive,68e.g. capital punishment for
murder.69

4.4 Why Sentencing?

Any court or tribunal dealing with an offender in respect of his/her offence must
have regard to the following purposes of sentencing;

a) Punishment of offenders
b) Reduction of crimes, including its reduction by deterrence
c) Reform and rehabilitation of offenders
d) Protection of the public
e) To denounce, condemn, or censure the type of conduct engaged in by the
offender
f) Making of reparation by offenders to persons affected by their offences
Modern sentencing policy reflects a combination of several elements above.

68
Refer, Section 170 of the Criminal Procedure Act.
69
Sections 25 & 26 of the Penal Code
 71

4.5 Sentencing approaches and principles

4.5.1 Sentencing approaches
Sentencing principles have developed through legislation and court decisions
(common law) to form the basis of sentencing decisions. Generally, there are two
basic approaches of sentencing namely;

(i) Traditional/discretionary approach

The traditional approach to sentencing requires the sentencer to exercise his or
her discretion to determine an appropriate sentence. The sentence should be
neither too lenient nor too severe. The guiding principles are judge-made, which
consists of three basic elements in the construction of any sentence, i.e., (1) the
seriousness of the crime; (2) the offender’s personal circumstances; and (3) the
wider interests of society.

(ii) Contemporary/minimum sentences approach

Legislation is made to introduce or prescribing minimum sentences for a wide
range of the more serious crimes, e.g. the Minimum Sentences Act (supra), in
Tanzania. In other jurisdictions, especially the UK and Canada, have special
guidelines or codes on sentencing.

4.5.2 Principles of Sentencing

Whether the sentencer is bound to follow traditional or contemporary approaches,
there are several key principles that he/she must adhere to at sentencing, as
follows: -

i) Principle of proportionality
This principle requires a punishment to fit the crime. It operates to restrain
excessive, arbitrary and capricious punishment by requiring that punishment must
not exceed the gravity of the offence, even where it seems certain that the offender
will immediately offend.
 72

Theories of deterrence and retribution share the idea that punishments should be
proportionate to the gravity of the crime, a principle of practical importance. If all
punishments were the same, there would be no incentive to commit the lesser
rather than the greater offense. The offender might as well use violence against the
victim of a theft if the penalty for armed robbery were no more. Therefore, the
overall punishment must be proportionate to the gravity of the offending
behaviour.70 The proportionality principle can be divided into two major groups: -

(a) Principle of totality

It comes into play where there is a sentence for multiple offences, especially in
consecutive/cumulative sentencing.71 The principle requires the court to craft an
inclusive sentence of all offences that is not excessive. If the total sentence is
excessive the court must adjust the sentence so that the total sentence is proper.
The totality principle was intended to avoid sentences that cumulatively are out of
proportion to the gravity of the offences.

Dr David A. Thomas72 says that;

“When cases of a multiplicity of offences come before the court, the court must not
content itself by doing the arithmetic and passing the sentence which the arithmetic
produces. It must look at the totality of the criminal behaviour and ask itself what is
the appropriate sentence for all the offences.”

(b) Principle of parsimony/restraint in sentencing

The parsimony principle operates to prevent the imposition of a sentence that is
more severe than that necessary to achieve the purpose(s) of the sentence. Adams
J., in DB v. Regina; DNN v. Regina [2007] NSWCCA 27 defined the parsimony
principle to mean an imposition of the minimum sentence that reflects the
objective and subjective features of a case and satisfies the purposes of sentencing

70
Read, Ally and Another v. R. (1972) HCD No.115.
71
The Totality principle requires that where an offender is being sentenced to multiple terms at the
same time, then the sentencer should ensure that the total sentence remains ‘just and
appropriate/proportionate’ for the whole of the offending, reflecting the overall seriousness of the
criminality.
72
(1970) Principles of sentencing: The sentencing policy of the Court of Appeal Criminal Division.
 73

or the adoption of a sentence at the bottom of the range.73Under this principle, a

sentence must be no more severe than is necessary to meet the purposes of
sentencing, e.g., protection of the public. This is a rule against torture.

Napier C.J., in Webb v. O'Sullivan (1952) SASR 65 at 66 says;

“The courts should endeavour to make the punishment fit the crime and the
circumstances of the offender, as nearly as may be. Our first concern is the
protection of the public, but, subject to that, the court should lean towards mercy.
We ought not to award the maximum which the offence will warrant, but rather the
minimum which is consistent with a due regard for the public interest.”

Basically, there are two schools of thought regarding the principle of parsimony.
One maintains that parsimony should be pursued at a general level, by reducing
overall levels of severity (system parsimony). The other maintains that
opportunities for parsimony should be taken as and when they arise, and
irrespective of whether this compromises any other value or principle (opportunist
parsimony). Opportunists would, therefore, support the reduction of sentences for
people in employment and people who pay compensation to their victims and in a
range of other cases which contravene the equality principle.

In brief, the principle of parsimony is based on the principle of liberty, that is to

say, an offender should not be deprived of liberty if a less restrictive way of dealing
with the case is appropriate in the circumstances, e.g. payment of a fine.

ii) Step-up principle

The step-up principle is a sentencing principle closely associated with the principle
of rehabilitation. It rests on a desire not to discourage genuine efforts at
rehabilitation by imposing a sentence that “may be seen by [the offender] to be a
dead weight on his future life.”74 Thus, where there is a prospect of rehabilitation, a

73
Refer also; Napier, C.J., in Webb v. O'Sullivan (1952) SASR 65 at 66; Veen v. The Queen [No.2]
(1988) 164-465 at 473); R. v. Storey (1996) [1998] 1 VR 359 at 366; and R v. PP (2003) 142 A Crim R 369
at 374 (Parsimonious sentences).
74
R. v. Robitaille, (1993) 31 B.C.A.C. 7, [1993] B.C.J. No. 1404 at para. 8.
 74

sentence should not be too large a step-up from a prior sentence.75Nonetheless,

the step-up principle can be invoked where an offender is convicted of a similar or
identical offence to one he has been convicted and sentenced in the past for, it can
be concluded that the prior sentence was not sufficiently deterrent and so the
sentence for the new offence should be increased to focus on specific deterrence.

iii) Principle of equality or non-discrimination

Human rights instruments and constitutional documents commonly enact a

principle of equality or non-discrimination. One of the common passage is:

“Every person is equal before the law and is entitled to the equal protection of the law
without discrimination and has the right to equal and effective protection against
discrimination.”

Equality before the law requires that persons should be uniformly treated unless
there is some valid reason to treat them differently. In its application to
sentencing, the general principle of equality before the law means that no person
should be sentenced differently because of their race, national or ethnic origin,
religion, gender, sexual orientation, mental or physical disability or similar
characteristics.

In sentencing, the equality principle may be invoked under two wider principles: -

(a) Principle of parity/consistency

A sentence should be similar to sentences imposed on similar offenders for similar

offences committed in similar circumstances. Parity/consistency in sentencing is
regarded as fundamental to a fair and equitable criminal justice system and
ensures that two offenders who have committed similar crimes and have similar
personal circumstances are going to receive a similar sentence. A judge has a
responsibility to impose sentences in line with precedent, noting always that for

75
Extracted in the case of R. v. Kukelka, 2010 BCCA 180 (Court of Appeal for British Columbia).
 75

each offence and each offender some elements are unique. Therefore, similar
sentences should be imposed for similar offences committed by offenders in
similar circumstances. However, in a situation of co-accused, the roles of the
parties will be considered as well as their personal circumstances. The principle of
parity does not require equal sentences for participants in the same offence.
Rather, they must only [be] understandable sentences when examined together.
An accomplice who commit a crime at the orders of a principal and agree to testify
against the principal can be afforded lesser sentences than the principal.

(b) Equal impact principle

The principle of equal impact also derives from the general principle of equality
but is separate from the principle of equality in its non-discrimination sense. The
principle of equal impact was recognized by Bentham, who, despite his emphasis
on general deterrence, argued for a rule which considers individual sensibilities in
calculating punishment. The equal impact aspect of the general principle means
that no sentence should be imposed that may be expected to have a more severe
impact on an offender because of the offender’s race, religion, national or ethnic
origin and so on.

iv) Jump principle

This principle of sentencing suggests that sentences for repeat offenders should
increase gradually, rather than by large leaps. In R. v. Robitaille (1993), 31 B.C.A.C.
7, Lambert J.A. indicated that it should be used only in cases where rehabilitation
is a significant sentencing factor. An obvious example is where an offender is a
young person who has committed very few offences. Clayton, R., Sentencing, 6th
ed. (Toronto: Butterworths, 2004), p. 339, opines that,

“Even when there is a marked increase in the seriousness of the crime committed,
there should not be too great a ‘jump’ in the length of the sentence imposed.”
 76

See,R. v. Johnsrud, 2014 ABCA 395.

v) Gap principle

This principle directs courts to take into consideration the gaps of time between
offences. It gives credit to someone who has made an effort to avoid criminal
charges.

See,R. v. Smith, 2006 NSCA 95.

vi) Concept of mercy/clemency/lenity

In the context of punishment, mercy entails a discretionary power of a judge to

reduce or eliminate a just punishment or impose a lenient sanction.

For instance, in R. v. Schumann (2007) a woman who jumped off the Humber
Bridge holding her small child, intending to commit suicide and to kill the child.
She survived, and managed to keep the child a float and alive until rescuers
reached them. Her crime was attempted murder and the guideline indicated a
high sentence, but the judge took account of her mental disturbance and her
efforts to save the child in passing a short custodial sentence, and the Court of
Appeal out of ‘mercy’ substituted a community sentence. This is a case where
compassion for the offender was appropriate, and therefore a mitigated sentence
based on mercy was in order.

vii) Principles of natural justice/ due process of the law

This concerns procedural fairness and ensure a fair decision is reached by an

objective decision maker. The right to be heard, duty to give reasons for the
decision/pronouncing sentence and giving reasons (by the sentencer), and duty to
explain rights of the parties to the proceedings (by the sentencer), e.g. appeal.
Sentencers have always been encouraged wherever possible to give full reasons for
deciding upon a sentence. There are now many statutory provisions requiring the
 77

court to explain why a particular sentence has been passed (or not passed) or why
a particular approach to sentence has been taken.

viii) Rule against double punishment

This principle requires the sentencers not to punish the offender twice for the
same offence (i.e. rule against double vexation).

ix) Principle of jurisdiction

The sentencing court must ensure that it has the power to pass the sentence. For
instance, in Tanzania, it is only the High Court and Court of Appeal which can
impose a death penalty.

4.6 Sentencing Factors

These mean factors that appear to influence sentencing courts, classed as

aggravating or mitigating as follows;

4.6.1 Aggravating factors

This principle76 is premised on the seriousness of the alleged offence. Initial factor
in determining seriousness of the offence involves four (4) levels of culpability, i.e.

• Intention to cause harm: highest culpability where offence planned; the worse
the harm intended the greater the seriousness.
• Recklessness as to whether harm is caused: proceeds giving no thought to
obvious risk of harm.
• Knowledge of specific risks entailed by actions, but does not intend to cause the
harm resulting.

76
Read, Sections 321, 337, 341 and 342 of the Criminal Procedure Act.
 78

• Negligence Culpability increased: if the defendant deliberately causes more

harm than necessary for the commission of the offence, or defendant targets a
victim who is vulnerable (i.e. by youth, old age or due to a job).
Aggravating factors mean factors indicating higher culpability. They include: -
❖ Offence committed whilst on bail for other offences;
❖ Failure to respond to previous sentences offence was racially or religiously
aggravated;
❖ Offence motivated by, or demonstrating, hostility to the victim based on his or
her sexual orientation (or presumed sexual orientation);
❖ Offence motivated by, or demonstrating, hostility based on the victim’s
disability (or presumed disability);
❖ Previous conviction(s), particularly where a pattern of repeat offending is
disclosed;
❖ Planning of an offence;
❖ An intention to commit more serious harm than resulted from the offence;
❖ Offenders operating in groups or gangs;
❖ Career or professional offending (recidivism);
❖ Commission of the offence for financial gain (where this is not inherent in the
offence itself);
❖ High level of profit from the offence;
❖ An attempt to conceal or dispose of evidence;
❖ Failure to respond to warnings or concerns expressed by others about the
offender’s behaviour;
❖ Offence committed whilst on licence;
❖ Offence motivated by hostility towards a minority group, or a member or
members of such a group;
❖ Deliberate targeting of vulnerable victim(s);
❖ Commission of an offence while under the influence of alcohol or drugs;
❖ Use of a weapon to frighten or injure victim;
 79

❖ Deliberate and gratuitous violence or damage to property, over and above what
is needed to carry out the offence;
❖ Abuse of power; abuse of a position of trust;
❖ Multiple victims;
❖ Serious physical or psychological effect on the victim, even if unintended;
❖ A sustained assault or repeated assaults on the same victim;
❖ Victim is particularly vulnerable;
❖ Location of the offence (for example, in an isolated place);
❖ Offence is committed against those working in the public sector or providing a
service to the public;
❖ Presence of others (e.g. relatives, especially children or partner of the victim);
❖ Additional degradation of the victim (e.g. taking photographs of a victim as
part of a sexual offence);
❖ In property offences, high value (including sentimental value) of property to
the victim, or substantial consequential loss (e.g. where the theft of equipment
causes serious disruption to a victim’s life or business).

Aggravating factors increase the seriousness of the offence or the offender's

culpability. In terms of proof, the general rule in the Commonwealth is that
aggravating facts must be proven beyond a reasonable doubt, mirroring the trial
standard.

4.6.2 Mitigating factors

The law allows courts to reduce a sentence if a person pleads guilty. If the court
gives a discount for a plea of guilty, the judge or magistrate must state what the
sentence would have been without the guilty plea. The issue of remorse/contrition
should be considered at this point along with other mitigating features such as
admissions to the police in interview, the degree of provocation, self-defence,
guilty plea, and etc. Basically, mitigating factors reduce the seriousness of the
offence or the offender’s culpability. The Common Law/English sentencing
 80

practice yields at least six (6) possible classes or groups of mitigating factors that
have no bearing on proportionality. These are: -

a) Positive social contributions/meritorious conduct/positive character/clean

criminal record

This group of potential mitigating factors includes cases in which an offender has
saved another person from drowning while awaiting trial, or has done considerable
voluntary service for the community. In the case of Jones [2012] 1 Cr App R (S) 149,
where sentence was slashed on appeal from five years to six months, the personal
mitigation included the fact that the twenty-two-year-old offender had worked in
a youth parliament, had represented young people in her area, had been
instrumental in opening youth clubs in the area, and was described as an
outstanding conscientious student who was about to graduate from university. She
had also dedicated herself to the care of her older sister with Down’s syndrome.
The Court of Appeal said that ‘if ever there was a case of exceptional circumstances,
this is it’.

b) Pursuit of equality policies

Sentencing law and practice incorporate various factors that stem from wider
social policies. For example, the practice of aggravating a sentence where an
offence has been motivated by race, religion, or discrimination on grounds of
disability or sexual orientation. More relevant are the differential effect of
sentences on women and the significance of employment. It is widely accepted
that imprisonment has a greater effect on women generally, partly because
women’s prisons are widely scattered and therefore further from their homes,
partly because female prisoners can less frequently call on others to look after their
family and home, partly because they have a higher rate of self-harming, and so
on.

c) Severe collateral /consequential effects of conviction and sentence on the

offender
 81

This group includes other deprivations resulting from the conviction, such as loss
of pension rights and employment prospects; any adverse physical consequences
of the offence, such as an injury sustained by the offender; effects flowing from a
long delay in prosecution, such as when a person has led a blameless life for many
years. In Sweden, factors of this kind are rationalized as ‘natural punishment’: the
burglar who is injured while committing the offence has inflicted some
‘punishment’ on himself, and therefore requires less state punishment, and the
same might be said of the fraudulent accountant who loses his career and his
pension rights or a thief who has been mobbed and punished extra-judicially.

d) Severe collateral or consequential effects of the sentence on third parties

This group of potential mitigating factors includes the effect on a baby or young
child of its mother being in prison, the effect on a sick relative of the offender
being in prison, and the effect on employees of their employer being in prison.

e) Incentives to facilitate the smooth running of the criminal justice system

A reduction in sentence for pleading guilty (guilty plea) now forms part of many
legal systems. For instance, sentence reductions for assisting the police or
prosecution by giving evidence against other offenders. Admissions to police in
interview, ready cooperation with authorities (assisting the police in indicting
other criminals).

In England, the reduction principle is not ‘an aspect of mitigation’ but an

administrative discount for pleading guilty based on the cost savings in the case,
the benefit of allowing other cases to be tried more expeditiously and the benefit
to victims and witnesses of knowing that they will not need to give evidence.

f) Reparation, genuine remorse and other post-offence matters

The general rule is that events occurring after the crime are not relevant to
sentence. However, some ‘best fit’ reasoning may be found in evidence that
 82

members of the public are more sympathetic towards offenders who apologise or
otherwise show remorse and that we should recognise the value of an offender
publicly denouncing his or her own offending behaviour. Such a public self-
denunciation should be rewarded in the only coinage available, reduction of
sentence.

Summary of Personal Mitigating Factors: youth, pressing personal or family

needs, vulnerable/immature/naive, psychiatric illness/problems, provocation,
good character or limited/irrelevant/gap in previous offending, has led a
productive/worthwhile life, has shown a general improvement in behaviour,
offence uncharacteristic/let yourself down’, difficult/deprived background and, in
relation to the defendant’s present and future, can address/is addressing drug
problems, has family responsibilities, supportive family/partner, currently in
work/training or prospects of work/training (the offender’s educational and
vocational skills), can address/is addressing alcohol problems, lapse of time since
commission of the offence, can or may make amends for offending behaviour, age
(older), cultural demands, ignorance of the law, reasonable man test, offender’s
physique, and physical illness/disability.
NB: the burden of proof in respect of mitigating factors, is on preponderance or
balance of probabilities’ standard.

Summary: Sentencing principles/guidelines

The sentencer must consider the: - need to promote consistency in sentencing;
impact of sentencing decisions on victims of offences; need to promote public
confidence in the criminal justice system; cost of different sentences; relative
effectiveness of different sentences in preventing re-offending; and court must
impose a sentence within the range provided for the offence in the penal laws.

4.6.3 Juvenile Delinquent: Sentencing Factors and Thresholds

For young offenders, rehabilitation is the principal consideration in sentencing.

Notably, considerations that must be considered when sentencing a young
offender includes:

• the need to strengthen and preserve the relationship between the child and the
child’s family
 83

• the desirability of allowing the child to live at home

• the desirability of allowing the education, training, or employment of the child
to continue without interruption or disturbance
• the need to minimise the stigma to the child resulting from a court
determination
• the suitability of the sentence to the child
• if appropriate, ensuring the child is aware of the need to take responsibility for
any action that is against the law
• if appropriate, the need to protect the community, or any person, from the
violent or other wrongful acts of the child.
NB: In the context of Tanzania, both national and international laws prohibit
incarnation/imprisonment of young offenders, and mixing them with an adult
offender/s in detention facilities.

QUIZ
1. What are the stages or processes involved in a criminal trial?
2. Are there justifications in our penal laws and policies for altering the otherwise
appropriate sentence? Discuss using case laws, hypothetical cases and penal
laws in Tanzania.
3. “Courts should not have the discretion to decide whether or not to reduce or
impose a sentence” (Anonymous). Discuss the above quotation by showing the
discretionary effect of mitigating and aggravating factors in sentencing.
4. What are the differences and similarities between criminal defences and
Mitigating factors in sentencing?
5. What is the nexus between aggravating factors and mitigating factors?
6. What do we mean by sentencing factors?
7. What is the standard of proof of aggravating and mitigating facts at
sentencing?
8. Is there any difference between sentencing in adult court and juvenile court in
Tanzania? If “yes”, list and examine the role of the victim’s personal statement,
pre-sentencing records and reports from relevant authorities at sentencing an
adult or a juvenile.
9. What is the effect of a failure by the court to give a reason(s) for the sentence
pronounced?
10. Is there any formal sentencing guidelines or code for Judges and Magistrates in
Tanzania, if yes what is it provided?
 84

11. What are the likely effects of a criminal sentence to an offender and the
society?

Case Laws:
Salum Shabani v. R. [1985] TLR 71; Rashid Ramadhani v. R. (1968) HCD No. 323;
Manyanga v. R. (1970) HCD No. 284; Mbaruku Ndima v. R. (1967) HCD No. 212;
Nguruwe v. R. [1981] TLR 66; Mwizalubi Matisho v. R. (1970) HCD No. 296; R. v.
Albert Mwendenuka (1969) HCD No. 48; Sajile Salemu v. R. [1964] E.A 341;
Lawrence Amuli v. R. (1970) HCD No. 72; Joseph Hawks-worth & Another v. R.
(1970) HCD No. 271; R. v. Oswald Bruno Kanga (1970) HCD No. 153; R. v. Joha
Mdachi (1967) HCD No. 355; Lucas v. R. (1970) HCD No. 298; R. v. Semberit
Magnus Kassembere (1967) HCD No. 95; F. Chilemba v. R. (1968) HCD No. 510;
Lubaga Senga v. R. [1992] TLR 357; Bernadeta Paul v. R. [1992] TLR 97; R. v.
Gaudenzio Kiwhele & another 1 TLR (R) 81; R. v. Selemani Said & another 1977
L.R.T N. 29; Gulam Hussein v. R. 13 E.A.C.A 167; Rashidi s/o Ally v. R. (1967) HCD
No. 215; R. v. Kisiwani Sisal Estate (1970) HCD No. 162; R. v. Alli s/o Said (1967)
HCD No. 364; Lucas John v. R., Criminal Appeal No. 8 of 2002, in the Court of
Appeal of Tanzania at Mwanza (Judgment delivered on the 16th day of July, 2004
by Lubuva, J.A., Mroso, J.A., and Kaji, J.A.); Rweyemamu Thomas @ Kaningili
Muzahura v. R., Criminal Appeal No. 370 of 2008, in the Court of Appeal of
Tanzania at Mwanza (Judgment delivered on the 10th day of November, 2011 by
Munuo, J.A., Nsekela, J.A and Mandia, J.A.); and Kisukari Mmemo v. R., Criminal
Appeal No.192 of 2013, in the Court of Appeal of Tanzania at Dodoma (Judgment
delivered on the 11th day of August, 2014 by Hon. Luanda, J.A., Massati, l.A., and
Mussa, J.A.).

References

• Books/Journal articles
Ashworth, A. (2010) Sentencing and Criminal Justice: Law in Context.Cambridge
University Press, London.
Ashworth, A. &Wasik, M. (1998) Fundamentals of Sentencing Theory: Essays in
Honour of Andrew von Hirsch. Oxford Monographs on Criminal Law and Justice,
Oxford University Press.
Bagaric, M. (2001) Punishment and Sentencing: A Rational Approach. Cavendish
Publishing Limited, London & Sydney.
Champion, D.J. (2008) Sentencing: A Reference Book. ABC-CLIO, Inc., California.
Meyer, L.R. (2010) The Justice of Mercy. The University of Michigan Press.
 85

Roberts, J.V. (2011) Mitigation and Aggravation at Sentencing. Cambridge

University Press, London.
Sarat, A. (2011) Merciful Judgments and Contemporary Society: Legal Problems,
Legal Possibilities. Cambridge University Press.
Wasik, M. (2014) A Practical Approach to Sentencing, 5th Ed. Oxford University
Press, London.
Williams, D. (1974) The Minimum Sentences Act, 1972, of Tanzania. Journal of
African Law, Vol. 18, No. 1, Criminal Law and Criminology (spring), Cambridge
University Press, pp. 79-91.

• Guidelines, Rules and Standards

International:
Basic Principles for Treatment of Prisoners, G.A. Res. 45/111, annex, U.N. Doc.
A/45/49 (Dec. 12, 1990).
Basic Principles on the Independence of the Judiciary, United Nations Secretariat,
Report of Seventh United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Milan, Italy (Aug. 26-Sept. 6, 1985), Ch. I, §D.2, annex.
Basic Principles on the Role of Lawyers, United Nations Secretariat, Report of
Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, Cuba (Aug. 27-Sept. 7, 1990).
Basic Principles on the use of Restorative Justice Programmes in Criminal Matters,
E.S.C. Res. 2002/12, annex (July 24, 2002).
Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment, G.A. Res. 43/173, U.N. Doc. A/RES/43/173 (Dec. 9, 1988).
Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, annex, U.N. Doc.
A/RES/34/169 (Dec. 17, 1979).
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,
G.A. Res. 40/34, U.N. Doc. A/RES/40/34 (Nov. 29, 1985).
Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, 27 August – 7 September 1990, chapter 1, section C, paragraph
2(b).
Guidelines for Action on Children in the Criminal Justice System, E.S.C. Res.
1997/30, annex (July 21, 1997).
 86

Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines),

G.A. Res. 45/112, U.N. Doc. A/RES/45/112 (Dec. 14, 1990).
Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime,
E.S.C. Res. 2005/20 (July 22, 2005).
Guidelines on the Role of Prosecutors, United Nations Secretariat, Report of
Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, Cuba (Aug. 27-Sept. 7, 1990).
Implementation of the Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, E.S.C. Res. 1989/57, annex (May 24, 1989).
Kadoma Declaration on Community Service and Recommendations of Seminar,
“Criminal Justice: The Challenge of Prison Overcrowding”, San José, Costa Rica
(Feb. 3-7, 1997), E.S.C. Res. 1998/23, annexes I and II (1998).
Minimum Rules for Non-Custodial Measures (The Tokyo Rules), G.A. Res. 45/110,
U.N. Doc. A/RES/45/110 (Dec. 14, 1990).
Model Strategies and Practical Measures on the Elimination of Violence against
Women in the Field of Crime Prevention and Criminal Justice, G.A. Res. 52/86,
annex, U.N. Doc. A/RES/52/86 (Dec. 12, 1997).
Plan of Action for the Implementation of the Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power, E.S.C. Res. 1998/21, annex (July
28, 1998).
Procedures for the Effective Implementation of the Standards Minimum Rules for
the Treatment of Prisoners, E.S.C. Res. 1984/47, annex (May 25, 1984).
Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), G.A.
Res. 45/113, UN. Doc. A/RES/45/113 (Dec. 14, 1990).
Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing
Rules), G.A. Res. 40/33, U.N. Doc. A/RES/40/33 (Nov. 29, 1985).
Standard Minimum Rules for the Treatment of Prisoners, United Nations
Secretariat, Report of First United Nations Congress on the Prevention of Crime
and the Treatment of Offenders, Geneva, Switzerland (Aug. 22-Sept. 3, 1955),
annex I.A. Approved by Economic and Social Council, E.S.C. Res. 663C XXIV (July
31, 1957). Amended by the Economic and Social Council, E.S.C. Res. 2076 LXII (May
13, 1997).
Regional: Africa
 87

African Commission on Human and Peoples’ Rights, Guidelines and Measures for
the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading
Treatment or Punishment in Africa (The Robben Island Guidelines) (Oct. 2002).
African Commission on Human and Peoples’ Rights, Principles and Guidelines on
the Right to a Fair Trial and Legal Assistance in Africa, OAU Doc. DOC/OS(XXX)
247, 12 Int'l Hum. Rts. Rep. 1180 (2005).
Conference on Legal Aid in Criminal Justice: The Role of Lawyers, Non-Lawyers
and Other Service Providers in Africa, Lilongwe, Malawi (Nov. 22-24, 2004),
Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in
Africa.
International Conference on Community Service Orders in Africa, Kadoma,
Zimbabwe (Nov. 24- 28, 1997), Kadoma Declaration on Community Service Orders
in Africa.
International Seminar on Prison Conditions in Africa, Kampala, Uganda (Sept. 19-
21, 1996), Kampala Declaration on Prison Conditions in Africa.
Pan-African Conference on Prison and Penal Reform in Africa, Ouagadougou,
Burkina Faso, (Sept. 18-20, 2002), Ouagadougou Declaration on Accelerating
Prison and Penal Reform in Africa.
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Module 5: Post-Independence Innovations in Sentencing

& Treatment of Offenders in East Africa
5.1 Introduction

The post-colonial governments in East Africa i.e. Tanzania (the then Tanganyika
and Zanzibar), Kenya and Uganda soon after their flag independence adopted
different penal approaches to curbing criminality. During colonial time, prison
(and similar facility) was, in most cases, a place for individuals who resisted
(actively or passively) against the colonial government. To African communities,
such individuals were seen or perceived as heroes or nationalist who detested
repressive colonial regime. In the same vein, prisons (or jails) were considered as
colonial tools of oppression. On the eve of independence, people in these newly
independent East African states had harboured the same sentiments over
imprisoned fellows and of course, corrective facilities and penal laws retained by
independent governments. On the part of newly governments, the retention of the
colonial superstructure was a necessary evil towards a national building.
Therefore, the obvious challenges to post-colonial governments in East Africa were
how to change people’s mind set towards penal laws and institutions erected in
furtherance of that end, how to detach criminal punishment from colonial penal
system and orientation, and how to combat deviant behaviours in avoidance of
civil disorder.

5.2 Definition of Terms

Let us now elucidate two major terms which contextualise this module, i.e.
sentencing and treatment (of offenders). The term sentencing comes from the word
‘sentence’ which refers to the judgment that a court formally pronounces after
finding a criminal defendant guilty or the punishment imposed on a criminal
wrongdoer, e.g. a sentence of 20 years in prison. Therefore, sentencing means the
whole process of judicial determination of the penalty suitable for a crime (Black’s
 89

Law Dictionary, 9th Ed.). It is a stage that follows conviction or plea of guilty; it
involves determining an appropriate legal punishment for the offender. Basically, a
sentence is determined by applicable penal law (criminal statute) and case’s
specific factors i.e. convict’s criminal record, nature of a crime committed, the
impact of a crime, convict’s socio-economic status, and remorse or regret
expressed by the convict.

Sentencing may either be determinate/mandatory/fixed (i.e. a statutorily specified

penalty that automatically follows a conviction for the offence, minimum
mandatory term); or indeterminate/discretionary/indefinite (i.e. left up to the court,
with few or very flexible guidelines). A sentence may involve incarceration,
restitution/compensation, probation, community services, suspended sentence,
fines, etc. On the other hand, treatment (of the offender) entails a collection of
reformative measures adopted to deal with a sentenced person, e.g. rehabilitation,
vocational training, counselling, educational programmes (for juveniles), adult
basic education, etc.

5.3 Post-Colonial Penal Measures or Innovations in Sentencing and

Treatment of Offenders in East Africa

The following are some of the penal measures/innovations laid down by post-
colonial governments in East Africa to curbing crimes;

• Introduction of mandatory minimum sentences for certain crime (reform of

penal sanctions)

In Tanzania (Mainland), enactment of the Minimum Sentences Act, 1963; and later
The Minimum Sentences Act, 1972 (see, revised edition of 2002, Cap. 90). These
Acts were enacted to curbing appropriation of funds by the public and co-
operative officials. The Act of 1963 was followed by the Arusha Declaration of 1967
which forbade public leaders to have more than one source of income and for their
wives to hold property.
 90

• Excessive use of corporal punishment

The Minimum Sentences Act (1963) required incarceration order of the scheduled/
itemised offences (embezzlement and theft) to be accompanied with corporal
punishments. See also, the Corporal Punishment Act (Cap. 17, 2002).

• Over criminalisation and introduction of new categories of deviant behaviour

Lawmakers widened the list of offences falling under criminal law and introduced
other offences on economic sabotage, etc. See, Economic and Organised Crime
Control Act (Re: 2002, Cap. 200) which repealed Act Nos. 9 and 10 of 1983
(Economic Sabotage Act). In Zanzibar, one would go to jail for leasing without
government’s consent, impregnating an unmarried woman, practising capitalism,
etc.

• Militarisation of the police and harassment of judicial personnel

The post-colonial police forces in East African states were structured and used as
right arms of the ruling class to terrorise citizens. Police officers and members of
the intelligence units were feared for their ruthless approaches towards civilians.
In some instance, they even interfered functions of the judiciary by re-arresting
individuals declared innocent by the court, detaining magistrates who release
alleged criminals, and disrespecting court orders such us habeas corpus. Refer
cases of R. v. Kassella Bantu and Others [1969] H.C.D. 170; Happy George
Washington Maeda v. Regional Prisons Officer Arusha, High Court of Tanzania at
Arusha, Miscellaneous Criminal Case No.36 of 1979; and Edward Mlaki and Liston
Matemba v. Regional Police Commander Kilimanjaro Region and Secretary Regional
Security Committee Kilimanjaro Region, High Court of Tanzania at Arusha,
Miscellaneous Civil Application No.38 of 1979. Besides, in Dar es Salaam, the police
adopted the policy of rounding up prostitutes in streets and sending them back to
their home villages or upcountry regions.
 91

• Resettlement of offenders

It was devised by the government of Tanzania to deal with the problem of

recidivism (habitual offenders/career criminals). The aim of these centres was to
help habitual offenders to become self-reliant, ultimately to be reintegrated into
the society as good law-abiding citizens. The Resettlement of Offenders Act, Nos. 8
of 1969 and 12 of 1998 (Cap. 71) allow the minister (home affairs) to make an order
to resettle certain offender (especially, habitual offenders). Good examples of
resettlement centres in the 1970s were situated at Wami and Rungwe respectively.

• Detention individuals who disturb public order (by the president)

The Preventive Detention Act, (RE: 2002, Cap. 361) allowed the president to detain
individuals without trial or due process of the law. The justification of this
arbitrary law was to ensure national security, thus incarceration of individuals who
threaten or shake the very existence of the state. However, the Act turned out to
be an instrument of the ruling class to crackdown political opponents, political
trouble makers, and coup plotters.

See, A.G. v. Lesinoi Ndeinai [1980] T.L.R. 214.

• Deportation of individuals who tended to hamper development plan or creates

civil disorder

See, the Deportation Act (Cap. 380, RE: 2002), S. 2(2).

• Introduction of Kangaroo Courts/ Quasi-Judicial Bodies with mandate to impose

penal sanction

For instance, Economic Sabotage Tribunal under the Economic Sabotage (Special
Provisions) Act, No.9 of 1983; Ward Tribunal in the Ward Tribunal Act, No.7 of
1985; and etc.
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• A wide use of forfeiture order (confiscation of properties) as a sanction across a

range of offences

E.g. the Proceeds of Crime Act, 1994 (RE: 2007); Anti-Money Laundering, 2006;
Anti-Trafficking in Persons Act, 2008; Drugs and Prevention of Illicit Traffic in
Drugs Act (1996, RE. 2002) repealed and replaced by the Drug Control and
Enforcement Act, 2015 (Cap. 95); and the Drug Control and Enforcement (General)
Regulations, G.N. 173 of 2016, etc.

• Introduction of people’s courts/reform of the judiciary (in Zanzibar)

It was introduced on 01/01/1970 by The People’s Court Decree of 1969. Among other
things, the Decree established the people's area courts and the people's district
courts which replaced the colonial Magistrate Courts. People’s Courts used the
Swahili language in their proceedings and they were manned by non-lawyers/ lay
persons. Therefore, no advocates could appear, except one’s friend or relative. The
People's Courts had exclusive power to try all offences, save for murder, attempted
murder, and manslaughter which were under the mandate of the High Court.
Further, the Decree allowed the people’s courts to lay down [its] own rules of
evidence and procedure.

The Decree established two-tier court system in Zanzibar, i.e. the people’s court,
and the High Court. However, people’s courts were later abolished in 1985 and
thus reintroduction of the common law system of adjudication.

• Replacing prisons with development or reform institutions/ re-education centres/

state schools/ rehabilitation centres for criminals (in Zanzibar)

Under the Offender’s Education Decree, No. 2 of 1972, and (Amendment) Decree
No. 4 of 1972 abolished prisons, and replaced prison sentences with a minimum
term of 5 years in the ‘Development Institute’. In those institutes, individuals were
taught to become self-reliant, e.g. trained in carpentry, plumbing, handicrafts and
etc.
 93

Upon release from a reform institution, one had to sign an oath agreeing to suffer
death penalty if is convicted again of the same or a similar offence. After five years
in reform institution, one will be given the necessary tools of trades and will be
either posted in centres of production to participate in national reconstruction
with fellow citizens, or allowed to start his own trade. The decree covered all
offenders, except those convicted of murder and armed robbery.

• Widening of offences which warranted death penalty (in Kenya and Uganda)

Uganda: Penal Code (Amendment) Act, No. 12 of 1968; and in Kenya: Penal Code
(Amendment) Act, No. 1 of 1973, they imposed a mandatory death penalty for
armed robbery. Therefore, in Kenya, offences attracting death penalty were
murder, treason and armed robbery, while in Uganda, included murder, mutiny,
treason, armed robbery, and armed smuggling kidnap with intent to murder.

• The emergence of vigilante groups under the sanction of the state (with quasi-
police, quasi-military, and quasi-judicial powers) e.g. Mgambo, Sungusungu or
Wasalama, etc.

These groups employ/employed self-help sanctions and traditional penalties

against criminals, especially cattle rustlers. Initially, such community watch groups
operated without the law; however, in 1973, 1975 and 1989 the government
recognised them by enacting the Peoples Militia (Compensation for Death or
Injuries) Act, No. 27 of 1973; the Peoples Militia (Power of Arrest) Act, No. 25 of 1975;
and the People's Militia Laws (Miscellaneous Amendments) Act, No. 9 of 1989.

• Widening the list of offences that one can be arrested without warrant even by a
private individual or vigilante groups such as Sungusungu,

• Lengthening prison sentences for sexual (related) offences

See, the SOSPA, Act No. 4 of 1998.

• Abolition of custodial sentence for children

See, Law of the Child Act, No. 21 of 2009.

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• Privatisation of security, i.e. allowing private security companies to do policing

works, e.g. KK Security, Ultimate Security, Security Solutions Co. Ltd, and etc.

• Use/creation of special squads or units, police operations and taskforces to fight

certain crimes, e.g. Anti-corruption squad under the Prevention of Corruption
(Amendment) Act, No. 2 of 1974; “the Financial Intelligence Unit (FIU)” in the
Anti-Money Laundering, 2006; “Operation Tokomeza in 2014”, and etc.
• The introduction of the Economic, Corruption and Organised Crime High Court's
Division
See, section 8 of the Written Laws (Miscellaneous Amendment) Act, No. 6 of
2016.

5.4 Justification of Post-Colonial Harsh Penal Approaches to Criminality

The rationale of introducing harsh penal laws across East African states was as
follows;

• Post-colonial states were based on a very unstable foundation (political

instability and power struggle), thus the use of coercive law to undo the legacy
of colonial class-structure, also to maintain law and order, i.e. use of penal law
as a unifying factor. It was believed that some crimes were inimical to nation-
building and economic development.
• Use of penal law to enhance production or pace of development to avoid a
tendency of few individuals to betray collective efforts (penal law as an
instrument of socio-economic policy), e.g., vagrancy and loitering provision.
Use of penal law by the ruling class in transforming the pre-capitalist or
socialist social structure into a new notion of production. E.g. abolition of the
customary criminal law, and chiefdom.
• It was an idealistic determination to cleanse national life i.e. impart a sense of
solidarity). It was argued that the law must reflect a socialist content, thus a
 95

need to punish severely offences against society, common or public property

(i.e. protection of property interest).
• To deter people, so as to think seriously before committing crimes.
• The presence of many expatriates (white judges) or West-educated court
officials in the judiciary, thus adopted mandatory minimum sentence to
control or tame them so as not to frustrate/undermine governments’
development policies and plans.
• In Kenya, the death penalty was imposed on armed robbery due to the increase
of attack on properties owned by the remaining white settlers and of course the
widening economic gap between the rich and the poor. Many people who
fought guerrilla war to demand political independence felt betrayed by the
post-colonial government thus engaged in violent offences.
• Long sentences were justified on the ground of rehabilitation of offenders.
Again, this was to enable prison’s personnel to train prisoners in different
trades to help them to earn a living when they were released; to reform the
character of convicts through education and political seminars. For those
reasons, in mainland Tanzania, prisons were considered as schools for
socialism and self-reliance, whilst in Zanzibar were considered as re-education
centres. E.g. in Tanzania mainland, prisons’ farms were expanded to meet that
end.
• The increase in a number of cases of theft (appropriation of money) from
public funds, political parties, trade unions and co-operative societies.
• Minimum sentence law was intended to create uniformity (consistency or
certainty) and sense of justice in sentencing/punishment. Thus, this was seen
as a way to circumvent leniency in Courts.
• To counter illegal activities of emerging semi-organised criminal groups or
vigilantes, e.g. “the Kondos” in Uganda, “Komando Yoso” and “panya road” in
Tanzania, and “Mungiki” in Kenya.
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5.5 Criticism of Post-Colonial Penal Approaches

Though intention for introducing harsh penal law by post-colonial East African
states was good, the same received a number of criticisms such as;
• Erode a greater degree of flexibility to the judiciary i.e. deprive courts of their
discretion in imposing sentences.
• The legislature has turned the court into a rubber stamp, in a sense that the
court applies arbitrarily sentences imposed by the legislature. In other words, it
undermines the principle of separation of power and independence of the
judiciary.
• The practice has eroded the principle of proportionality, and other general
rules of sentencing/punishment.
• The introduced resettlement centres were operated as punitive institutions,
just like ordinary prisons.
• Corporal punishment was attacked as being un-socialistic, draconian measure,
encourage hostility towards the state, and that [it] has proven a failure in
deterring crimes.
• Foster mechanical application of the law like robots, thus encourage laziness in
the general approach to problems of punishment.
• Post-colonial penal measures have proved severe, indiscriminate, and against
human rights/liberty, e.g. deportation, resettlement and detention of offenders
without due process of the law.
• If law enforcers and citizen regard the punishment is too harsh, then there will
be a tendency to protect some criminals rather than cooperate in bringing
them to justice.
• Resettlement and re-education centres (rehabilitative measures) are criticised
in Sir Alexander Paterson’s words that;
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You cannot train men for freedom in conditions of captivity”. Using Paterson’s
words, Boehringer explains that; “since the individual's eventual adjustment must be
to the family unit, the neighbourhood, the job, and the community, rehabilitation
cannot be achieved in a place of penal isolation. In humanitarian terms, if one can
find more humane methods of accomplishing the same results, then one would wish
to do away with imprisonment and its attendant deprivations of various kinds”.

Thus, to me, such penological approaches to crimes are merely disguised forms of
indeterminate punishments.

5.6 Relaxation of Penal Measures in East Africa (1980s to Present): Reasons

Currently, to a certain extent, most of the East African states have repealed or
refined strict penal laws adopted at the eve of independence. For example, there is
minimal use of corporal punishments, direct or indirect suspension in the use of
death penalty, etc. However, to some extent, the penal law has been intensified in
dealing with sexual offences, and emerging forms of organised crimes. The shift of
this criminological approach may be attributed to by one or more of the following
reasons;

• The introduction of the Bill of Rights which rendered some laws

unconstitutional, e.g. deportation and detention laws
Refer, Judge Nyalali Commission’s findings on the 40+ laws).

• Judicial activism, e.g., Mwalusanya and Lugakingira’s judicial decisions on

draconian laws.
• Ratification of International Human rights instruments (globalisation and
international standards).
• The decline of Marxist-criminology/thinking and acceptance of liberal
democracy (pressure from developed nations to reform).
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Question:
“You cannot train men for freedom in conditions of captivity”, per Sir Alexanders
Paterson. Critically discuss the above statement in light of re-education centres
(Development Institutes) in Zanzibar and rehabilitative measures in post-colonial
prison reforms in Mainland Tanzania.

References

Biko, A. (2003) Counter-colonial Criminology: A Critique of Imperialist Reason.

Pluto Press, London.

Boehringer, G.H. (1971) Aspects of Penal Policy in Africa, with Special Reference to
Tanzania. Cambridge University Press, Journal of African Law (SOAS), Vol. 15, No.
2 (1971), pp. 182-212.

Hatchard, J. & Coldham, S. (1996) Commonwealth Africa, Chap. 7. In Hodgkinson

& Rutherford (eds.) Capital Punishment: Global Issues & Prospects, Waterside
Press, Winchester (Criminal Policy Series, Vol. II), p. 155 (see, p. 177).

Katende, J.W. & G.W. Kanyeihamba (1973) Legalism and Politics in East Africa: The
Dilemma of the Court of Appeal for East Africa. Indiana University Press,
Transition, No. 43 (1973), pp. 43-54.

Mascharka, C. (2001) Mandatory Minimum Sentences: Exemplifying the Law of

Unintended Consequences. Florida State University Law Review, Vol. 28:935.

Maina, C.P. & R.M. Bierwagen (1989) Administration of Justice in Tanzania and
Zanzibar: A Comparison of Two Judicial Systems in One Country. The International
and Comparative Law Quarterly, Cambridge University Press, Vol. 38:2, pp. 395-412
(April).

Maina, C.P. (1997) Incarcerating the Innocent: Preventive Detention in Tanzania.

The Johns Hopkins University Press, Human Rights Quarterly, Vol. 19, No. 1 (Feb.,
1997), pp. 113-135.

Otwin Marenin (1982) Policing African States: Toward a Critique. Comparative

Politics, Vol. 14, No. 4 (Jul., 1982), pp. 379-396.

Read (1965) Minimum Sentences in Tanzania. J.A.L. 20.

Shaidi, L.P. (2004) Traditional, Colonial and Present day administration of Criminal
Justice. In Criminology in Africa, Fountain Publishers, Kampala Uganda, p.1.

Shaidi, L.P. (1982) The Resettlement of Habitual Offenders in Tanzania. EALR, vol.
15, pp. 153-174.
 99

Tanner, R.E.S (1972) Penal Practice in Africa - Some Restrictions on the Possibility of
Reform. The Journal of Modern African Studies, Vol. 10, No. 3 (Oct., 1972), pp. 447-
458.

Williams, D. (1974) The Minimum Sentences Act, 1972, of Tanzania. Journal of

African Law, Cambridge University Press, Vol. 18, No. 1, Criminal Law and
Criminology (spring).

Williams, D. (1980) The Role of Prisons in Tanzania: An Historical Perspective.

Crime and Social Justice, No. 13, Focus on Prisons (Summer 1980), pp. 27-38.
 100

Module 6: Police Force & Other Law Enforcement Organs

Picture: Police, Tanzania

6.1 Introduction: Definition of Terms

A police force is an armed organisation or a government unit mandated to

maintain law and order i.e. keep the peace, guard over, watch over, protect,
defend, patrol, etc. A police officer is a public (or private or deputised) law
enforcement officer (or member of the police force) sworn to protect people and
property. Usually, they patrol the areas they are assigned, respond to calls, make
arrest and search, issue citations, and occasionally testify or prosecute in courts.
While policing mean activities carried out by police officers or law enforcers to
preserve law and order.

6.2 History of Police and Policing in Tanzania

6.2.1 Pre-colonial period

• Prior to contact with the outside world through trade and colonialism, Africans
lived in communal villages, guided by customary laws and institutions.77
• Customary laws and norms were either commonly accepted by members of the
society or enforced by private individuals (victims, relatives or friends) or
community pressure and council of elders.

77
** Large part of this Module is extracted from my Draft PhD Thesis.
 101

• Mechanisms and organisations to maintain peace and order were characterised

by a large degree of plurality and flexibility.
• There were neither single legitimacy and institution nor
dominant class in the political structure and organised force.
• This is because these societies were in the state of continual change and
unstable.
• These societies adopted egalitarian or communal approach to policing, where
every member of a community, who shared common ancestry origin or
maintained close kinship ties, was responsible for security of his homestead
and the village or chiefdom
• Traditional weapons such as arrows, spears, maces, shield, clubs, swords,
lances, animal bones and horns, bows, pikes, axes, machetes and daggers were
communally owned.
• Any member of the village could access and use them in attending to both
personal and communal security needs.
• Main challenges which faced these societies were; epidemics, famine and
witches.
• Some tribal societies, such as Masaai (in Tanzania and Kenya) and Karamojong
(in Uganda) adopted an age-set system, whereby the youths (male aged
between 15-35) were formally assigned the role of protectors and warriors of the
society against wild animals, cattle rustlers and invasion by warring tribes.
• However, this specialisation and division of labour did not bar other members
of the society from owning weapons and guarding their homesteads.
• With demographic change, intertribal conflicts, surplus production,
improvement in technology and trade, once primitive and communal societies
were transformed into feudalism.78

78
It is believed that Slavery as a mode of production did not exist in Africa.
 102

• It was during this period that emerging class of rulers and traders formed
chieftainship, clanship, kingdoms and maintained a small group of armed men
and royal guards to protect private property, enforce the customary law and
judicial decisions.
• However, there is no evidence to suggest that pre-colonial kingdoms
maintained professional full-time and paid law enforcement organisations. In
my view, there was a blurred line between policing (police) and defence
(military) duties.
• Even at the time when organised political units started to emerge, the ruling
class could not claim a monopoly of force or assign police or military powers
and weapons to a specific group of men in exclusion of others.
• Though there were elements of specialisation in terms of having identifiable
royal guards and soldiers; weaponry and warfare techniques continued to be
offered to every abled-member of the society, and everyone was duty bound to
maintain peace and order within the chiefdom.

6.2.2 Colonial period

6.2.2.1 Early foreign invasions

• This phase was marked by the coming of traders, explorers, emigrants and
missionaries from Persia, China, Europe, South Africa and Oman along the East
African coastlines and inland before the Berlin Conference of 1884-5.
• This early period of contact with foreign traders before colonisation was
characterised by; long-distance trades and intertribal warfare. This is
exemplified by the East African long-distance trade with various trade routes
from the coast of the Indian Ocean to inland.
• The importance of long-distance trade in the context of policing and weaponry
is that, traders from Europe and Asia brought new weapons, means of transport
and war techniques in Africa such as guns (firearms), rifles, muskets,
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gunpowder, body armours, breech-loaders, machine guns, scimitars and

artillery, cavalry, camels, donkeys, horses, infantry, ships, chariots and canons.
• African societies were transformed beyond recognition, in a sense that,
societies which could first get hold of new weaponry formed standing armies
which assumed the role of policing and defending the chiefdom.
• However, the new political organisation, standing armies and adopted warfare
tactics, did not erode joint communal efforts in detecting, arresting and
punishing criminals. Neither did the new development allow recruitment of
full-time professional security actors nor separation of policing from military
duties and personnel.
• The notable centralised states (city-states, kingdoms, chiefdoms and
sultanates) headed by African chiefs or military commanders or warlords in
Tanzania (Tanganyika) were; Mkwawa and Munyigumba (Uhehe), Nyungu ya
Mawe (Ukimbu), Sina (Kibosho), Mnywa Sele, Isike and Mirambo (Unyamwezi),
Kimweri ya Nyumbai (Sambaa), Zanzibar, Kilwa and Bagamoyo (under the
Oman sultanate, with own flag and coins).
• For example, Chief Mytela Kasanda, among the Nyamwezi of Tanzania,
organised and maintained an army called “rugaruga” which earned him names
like; “Black Napoleon” and “Mirambo” (corpses) due to his military prowess and
his ability to keep his chiefdom safe.
• Another important development was the migration of Ngoni tribe (1820-1840)
from South Africa to Tanzania. The Ngoni people were fleeing from Shaka
Zulu’s Mfecane war in South Africa.
• The fear against Ngoni’s expansionism tendency and conquest forced stateless
tribes to forge alliances, copy Ngoni’s military techniques and weapons to form
standing armies for protection.
• Generally, creation and use of force, before formal colonisation, was organised
and monopolised along simple political organisation (tribe, clan, chiefdom,
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Sultanate or city-state) and private individual/traders or local leader rather

than institutions.
• In ethnically mixed societies, especially among the East African city-states of
Kilwa, Zanzibar, Bagamoyo, Lindi and Mombasa, coercive institutions like jail
and detention centres, court, religious codes and punishments, garrisons, and
full-time armed guards, fugitive (slave and criminal) catchers, security fencing,
chains and shackles became common symbols of justice and domination.
• All these measures were aimed at protecting the emerging class of rulers,
traders and their properties rather than keeping all people safe.

6.2.2.2 German colonialism

• In 1884 and 1885, new imperialism era was born at the Berlin Conference.
• The Germany, who at that time had no colony, was given a blue light to
colonise the modern-day Mainland Tanzania (Tanganyika).
• Given the plural nature and diversity of African societies at the time,
colonialists had an uphill task of creating nation-states out of highly
divided, scattered and unreceptive traditional communities, and to ward off
competition from the Arabs along the East African coast.
• In March 1884, Carl Peters79 and his friends formed a Society for German
Colonisation, and later the German East African Company (Deutsch-
Ostafrikanische Gesellschaft - DOAG) which was chartered in 1885.
• This private chartered company was given full sovereign powers, that is,
ability to raise, maintain and use force, built forts and garrisons, make
treaties and alliances with local leaders or other colonial powers80, make

79
A German explorer, politician, journalist and philosopher. He was a key figure in the founding of
German East Africa and helped create the European "Scramble for Africa."
80
For example, between 1884 and 1886 the German East African Company despatched eighteen
expeditions to make treaties extending its territory, the most memorable one is between Carl Peters
and Chief Mangungo wa Msovero, Usagara. In November 1886, Anglo-German Treaty fixed the
northern border inland to Lake Victoria. Another treaty to settle border dispute was signed on 1 st
July 1890 known as the Anglo-German (Heligoland-Zanzibar) Treaty.
 105

war, govern overseas territories on behalf the Germany empire and coin
their own money.

Carlos Ortiz (in Jäger & Kümmel, eds., 2007:10) argue that;
Forces maintained by the overseas trading companies constitute the closest
historical antecedent to private military companies (PMCs) and can be regarded
as PMCs in an embryonic form.

• The force maintained was used to crush pirates, privateers and resistances from
the indigenous population, where diplomatic ways had proven a failure and
protect trade monopoly rights, especially long-distance trade which were
previously controlled by native and Arab traders.
• Again, the private force was used to recruit and train native soldiers and to
build a capacity of local collaborators.
• In 1889, the company failed to contain local rebellions and sought assistance
from the German government, which in turn bought the company in 1891 and
sent Governor Julius von Soden who took direct control of the German East
Africa.
• Soden’s arrival had a tremendous impact in terms of administration and status
of Tanganyika, whereby it ceased to be a protectorate (schutzgebiete) and
became a colony.
• The first task of the governor was to establish a colonial force (Schutztruppe81)
in Tanganyika, the task which he accomplished on 22nd March 1891 by
transforming the “Wissmann-Truppe” into “Kaiserliche Schutztruppe” (i.e.,
Imperial Protection Force).
• Initially, the force used African soldiers (askaris) recruited from other
European colonies such as Egypt, Sudan and Belgian Congo and later from the
colony itself, especially Nyamwezi people.

81
It formed a third military branch alongside the army and the navy.
 106

• The colonial soldiers were separated from civilians and lived in special enclaves
known as ‘mabomas’ (the colonial stations where askaris were posted).
• The governor was the supreme commander in the colony.
• In consultation with the respective commanders, the governor had the
authority to deploy the colonial force as he saw fit in defending and
maintaining public order and safety, subjugating local kingdoms and fighting
slave traders in the colony.
• Though the governor(s) took over direct rule of the colony from DOAG, the
new administration struggled for eight years to end African rebellions and
establish law and order.
• For instance, African centralised states under Marealle, Isike, Mkwawa, Abushiri
bin Salim, Bwana Heri, to mention just a few, who had amassed wealth, created
a standing army and acquired firearms proved to be thorns in early Germany
rule and monopoly of force and law in Tanganyika. The notable incident was
the series of defeats that Germany commanders suffered in the hands of Chief
Mkwawa, who even killed Lieutenant Emil von Zelewski in guerrilla warfare.
• Throughout their administration (1884-1919), the Germans did not establish a
formal police force, they used existing networks of local collaborators or
compromises (submissive chiefs and clan heads) and recruits/messengers such
as ‘Jumbes’ and ‘Akidas’ to fulfil local policing needs and to collect taxes.
• The chiefs, clan heads, Jumbes and Akidas were relics of traditional village
system.
• As the Germany grew stronger militarily and in control of the colony,
collaborators either ended up losing their powers or they ‘had to adapt
themselves or to reorganise their societies’ to fit into the new system of
governance.
• Slowly, the Germany started to rely on the military and paramilitary officers
(African soldiers/askaris) to maintain law and order in the colony,
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consequently, the form of governance started to lean towards direct rule and
violence rather than forming alliances with traditional leaders.
• The abandonment of ‘semi-indirect rule’ or use of local collaborators,
militarisation of the state, introduction of repressive colonial policies such as
land alienation, cash crops production, attracting more settlers, forced labour
and taxation, reignited native insurgencies in Tanganyika.
• For example, Kinjekitile Ngwale waged a historic war against the German called
‘Maji Maji’ (1905-1907). He was defeated and hanged for treason in August 1907.
• Generally, Maji Maji uprising was a sign of failure on the part of a colonial
government to police and collect intelligence information in inland
Tanganyika, thus most activities of vigilante groups went unchecked.
• Equally, lack of local knowledge on the part of the colonial government proved
fatal in the maintenance of law and order.
• The military and paramilitary (askaris), which assumed both defence and
policing role, concentrated in administrative areas, white population’s
settlements (enclaves) and local collaborators, guarding colonial
infrastructures and strategic areas.
• This implied that; first, the task of maintaining law and order in areas which
the Germany had no interests were left in the hands of local chiefs or village
leaders or joint communal efforts. Second, armed forces were there to
crackdown crimes, criminal and organised vigilantes which posed a threat to
colonial administration and not keeping the native population safe.
• Regarding crimes relating to public order and peace, members of the armed
forces were given a green light to inflict punishment on a spot, even without
due process of the law.
• During Germany rule, Tanganyika was a military state and unchecked plurality
in policing.
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• By 1914, over 120 Tanganyika tribes were unified under one supreme leader
(governor), assisted by autonomous and powerful 22 district officers82, while
Iringa and Mahenge districts, known for their steady rebellions, were governed
by soldiers.
• Some native societies continued to experience violence and insecurity even
after the Germans have had full control of the colony.
• The outbreak of World War I (1914-1919), changed the political landscape of
Tanganyika and policing system.
• During the war, the Germany conscripted more locals into the colonial
force. The main task of these local soldiers (Askaris) was to work hand in
hand with white soldiers in protecting Germans against allied forces from
British colonies and to contain internal resistance and insecurity
• By 1916, the British allied forces had taken control of half of the Tanganyika
territory.
• The British formed an ad hoc civilian police force, which was made up and
commanded by 31 South African soldiers and Major, and supplemented by
locals.
• This taskforce carried out police duties in settlers and strategic areas until
1919. After the Germans’ defeat, Tanganyika was placed under British
mandate as a protectorate territory (by the League of Nations).
• From 1919 to 1960s, the British controlled the East African territories of
Kenya, Uganda, Zanzibar and Tanganyika.

6.2.2.3 British period

• The British rule began in 1919-1961.

• Owing much to the Germany’s ruthless rule and crushing local rebellions
and given their experience in other colonies, the British did not have to do
much in imposing their rule in Tanganyika.

82
In 22 administrative districts.
 109

• The British imported penal and administrative laws and personnel from
other colonies such as India and Pakistan to Tanganyika.
• Regarding policing, the first major reform was the separation of the civilian
police from the military and paramilitary to form ‘Tanganyika Police Force
and Prisons Service’ under the Police and Prisons Proclamation of 1919.83
• The military came to be known as the King’s African Rifles, which was
raised from native soldiers (Askaris) who previously served under the
German East Africa and had survived in the World War I.
• It suffices to note that, this was the first full-fledged, civilian and
professional police force with criminal investigation department, forensic
laboratory and fingerprinting, and radio communication system in
Tanganyika.
• Just like Germany, the British’s colonial force reform was aimed at strict
maintenance of law and order, upholding the authority of the
administration and proper functioning of the colonial economy.
• It was a rule of awe, violence and fear, characterised by a frequent military
and police parades and show off across African streets, suburbs, slums or
villages, flogging and whipping, and extra-judicial killings.
• The main functions of the police force were; tax collection, enforcement of
law and order, escorting, guarding infrastructures and production sites,
rounding up labour, conscription of natives, border patrol, immigration
control, supervision of collective works and punishments (street cleaning
and urban sanitation), create cordons to contain infectious diseases and
control workers’ strikes.
• The police patrols, operations and posts continued to be urban based, racial
biased and managed by Europeans (senior ranks) and supported by Asians
(Middle ranks) and Africans (at the bottom).

83
Government Notice No.21-2583, Vol.1. (25 August 1919), headquartered in Lushoto District, Tanga
under Major S.T. Davis. Police headquarters were moved to Dar es Salaam in 1930.
 110

• The native civil or public servants, emerging educated elites and local chiefs
enjoyed colonial police patrols and protection. This was possible because
the colonial government created housing enclaves for civil servants.
• The colonial police operations focused on policing African squatters or
slums with high crime rate likely to spill over into European suburbs and
investments.
• Another important feature was that certain mining companies could
maintain private police forces, or the colonial government established
auxiliary police to supply protection in sensitive production and
administrative areas, the good example is Mwadui Williamson Diamonds
Mine in Tanganyika.
• To supplement the public police, the colonial government continued to
retain the service of retired policemen, soldiers, prison officers and cattle
guards to perform policing works.
• In some British colonies in Africa, the government sponsored the
establishment of Local Defence Associations and Rifle Clubs among miners,
sailors and marines to hold out any security threat in their areas before the
government could send reinforcement troops.
• The colonial government also encouraged the creation of boy scouts,
paramilitary, and police and army reserves.
• Military barracks, forts and garrisons were built in regions harboured by
militant tribes and strategic centres.
• In its systematic quest to monopolise force, the colonial government passed
strict laws on importation, sale, ownership and use of firearms and
ammunitions.
• It also required natives to register and license firearms, and imposed taxes
on weapon owners. It was common for Africans to face trials for sedition or
 111

arbitrarily arrested, searched without a warrant, censored, detained and

deported without due process of the law.
• Equally, possession and making of certain categories of war weaponry were
declared illegal. The ban included a making of traditional rifles known as
‘gobole’ and carrying other sorts of traditional weapons in public places.
• In policing natives, other than civil servants and less militant native
communities, in 1924 the British replaced the Germany’s direct rule with an
indirect rule, especially after Sir Donald Cameron assumed office as the
Governor of Tanganyika.84
• Thus, traditional leaders acted as colonial prefects to rule on their behalf by
raising and maintaining local police, courts and enforcing colonial and
customary laws. In Tanganyika, Akidas and Jumbes continued to serve
colonial interests together with a class of Asian servants who acted as
colonial clerks, messengers and policemen.
• In Nigeria, for example, native communities policed themselves through
the agency of native authority police and tribal messengers, while the
colonial government dealt with serious crimes.
• Though indirect policing “did provide a high degree of peace and individual
security in marked violent conditions that prevailed before”, it ended up
creating hostile relations between native population and their chiefs
(widely regarded as ‘white men’s dogs’), leading to more security concerns.
• For example, in the 1950s the neighbourhood groups (vigilantes) arose
among Sukuma people led by basumba batale (great youths) and started to
challenge and ignore the chief’s powers by setting up alternative courts,
whereby they arrested, tried and punished criminals, adulterers and
witches. Even forced chiefs to abdicate, punished those who failed to attend

84
Sir Donald Cameron was a former British governor in Nigeria.
 112

political or village meetings and supported movements for independence

from colonialism.
• Generally, the colonial government recognised African customary law and
institution in regulating social orders, so long as they were not repugnant
to European standards of morality or colonial interests.
• Created semi-autonomous political organisations within a colonial state or
‘governments within a government’ or ‘paramount chiefs above smaller
chiefdoms’, thus political discontents and insecurity in postcolonial Africa.
• The powers of African chiefs did not go unchecked. Above native chiefs,
there were district commissioners (likened to American sheriffs) who were
appointees of the Governor.
• Essentially, district commissioners represented the Governor’s colonial
interests at the district level, thus empowered to consolidate colonial power
by compromising, reorganising or eliminating the authority of chiefs.
• District commissioners assumed the role of court bailiffs, controllers of
detention institutions, principal law and tax enforcers.
• As district commissioners grew stronger and in control of districts and local
knowledge, gradually, the role of African chiefs was reduced to that of a
mere subservient and ceremonial leader.
• The colonial government had a full-functioning intelligence unit and a
good number of local informers, spies and non-uniformed police officers.
• Towards the end of colonial rule in Tanganyika, the colonial government
had a total control of the territory and use of force, in such a way that,
indirect policing through African chiefs occupied a little attention.
• Feeling ignored and abandoned by colonial regime, some African chiefs
joined hands with emerging African educated elites to demand political
independence.
 113

• During and after the World War II (1939-1945), maintaining and sustaining
colonial rule became even harder to most European powers who had been
highly devastated by the war.
• Moreover, decolonisation movements which took the shape of political
militant groups,85 political associations86 and trade unions87 pushed the
British government to introduce new police reforms.
• For example, in 1949, Motorized Company (now, Field Force Unit - F.F.U)
was introduced as a specialised unit, to crush political movements and
unrests in urban areas.
• 1939-1950 the colonial police force was highly militarised, and Tanganyika
was governed as a police state.
• Yet, the colonial government started Africanising the police force, by
recruiting more natives and allowing women police into the force.
• Again, more natives were trained and assumed leadership positions in
armed forces.
• On 9th December 1961, the British relinquished coercive and political
powers to African nationalists under Julius K. Nyerere.

6.2.3 Postcolonial Period

• There was no substantial change in terms of colonial penal and police laws, and
practices, save that the white police officers were replaced by native Africans.
• This, however, created a few problems namely; the inherited police force was
weak, underfunded, disorganised and newly recruited and promoted native
officers were highly inexperienced and ill-trained.

85
E.g. Mau Mau revolts in Kenya, 1952– 1960.
86
Tanganyika African National Union (TANU) formed in 1954.
87
Tanganyika Federation of Labour (TFL) founded in 1955.
 114

• President Julius K. Nyerere, abolished chiefship in 1962 as a political and

judicial office and replaced them by regional and area commissioners, and
elected district councils.
• This move meant that the colonial native guards who revolved around the
chiefs and maintained law and order at a grass-root level were disbanded.
• Moreover, the government codified, and unified customary laws related to
private law and claimed exclusive competence in public law area.
• The reform restricted, modified and controlled existing forms of legal
pluralism, whereas customary and state laws were to be enforced by
magistrates and judges rather local chiefs.
• However, to be able to implement this form of a state-centric model, the
government was highly stretched in terms of funds and human resources, thus
more security concerns.
• To address the security void left by the abolishment of chiefdoms, the
government introduced a series of penal measures which Professor Shivji (1990)
has labelled, “legal but illegitimate coercion” such as minimum sentences,
preventive detention and resettlement of offenders.
• Furthermore, other draconian penal measures such as destitute and gun laws,
treason and public order offences, deportation, collective punishment and
corporal punishment were retained. The word “governor” was simply
substituted by the word “president.”
• The colonial Motorised Unit was transformed into Field Force Unit (F.F.U),
responsible for cracking down and subsiding civil riots and discontents.
• Postcolonial reforms also cemented and retained the position of the police
force, auxiliary police and police reserves as extended arms of the government
and the ruling party.
• Likewise, the national intelligence unit was reformed, empowered and became
more proactive in their secretive and unaccountable operations.
 115

• On 26th April 1964, Tanganyika and Zanzibar united to form the United
Republic of Tanzania, thereby the police force and policing became a union
matter.
• Basically, coercive institutions of the former Tanganyika became Union
institutions. In respective laws, the word ‘Tanganyika’ was substituted with the
word ‘Tanzania.’ Apart from the Union policing networks, the only remaining
unit to date with coercive powers in Zanzibar is the Coastal Guards (Kikosi
Maalum cha Kuzuia Magendo) (KMKM).
• In 1965, the Interim Constitution was enacted, which, inter alia, abolished
multiparty democracy and retained only two dominant political parties, one
party in either side of the Union, i.e., ASP (Zanzibar) and TANU (Mainland
Tanzania).
• Consequently, national police which required new police recruits to be
members of the ruling party were put in place.
• Besides, other police officers were given posts in the ruling party. In 1971, the
TANU Guidelines (Mwongozo) required all national institutions and parastatal
organisations to have party branches.
• The government adopted socialism and self-reliance (i.e., Ujamaa na
Kujitegemea) as a state ideology.88
• Under the Ujamaa ideology, private properties were nationalised, and people
forced to live in development villages (villagisation policy), work together,
share farm produce and village properties.
• Regarding security, the ruling party introduced ten-cell cluster system or ten-
house cell organisation (i.e., Balozi wa Nyumba Kumi kumi). The ten-cell leader
was to be informed or introduced to any new member or visitor within his ten
households’ jurisdiction. He had a roster of names and security details of all

88
See, Arusha Declaration (1967).
 116

members residing within the ten-cell radius, which he shared with defence and
security organs.
• In early years of independence, the system was extremely effective in gathering
and sharing intelligence information and using local knowledge and communal
efforts in curbing crimes. It should be borne in mind that, ten-cell leaders were
operating outside the framework of the law since they were within the
structure of the ruling party and not the government.
• The government decided to abolish the Local Government Authorities in 1972
which had been in existence since the British rule.
• This reform was followed by drafting and adoption of the Constitution of 1977,
which among other things, placed more executive powers under the president,
merged ASP (Zanzibar) and TANU (Mainland Tanzania) to form one state
party (CCM),89declared socialism and self-reliance as state policy, intertwined
the armed forces with the ruling party and introduced a monopoly of force and
violence under Article 147.
• The villagisation programme created more security concerns than expected.
This is because there was a high increase in population and mobility which did
not match well with available social services especially public policing and
patrol and shortage of essential goods. Besides, the policy forced people with
different backgrounds and orientation to live together, and it was a top-down
mechanism rather than grassroots initiative.
• Consequently, between 1978-1985, the country experienced a high level of
property crimes such as; burglary, larceny, theft, armed robbery, banditry,
shoplifting and vandalism, ambush and waylay, cattle rustling, bus hijacking,
black-market (racketeering, profiteering and hoarding of goods).
• Again, it was a time when the government expenditure in social services
declined tremendously, the police budget was highly cut, for example, they

89
Chama Cha Mapinduzi, i.e., Revolutionary Party.
 117

could not afford to construct police stations/posts in expanding the rural

population, buy patrol cars and even servicing available vehicles in terms of
fuels and spare parts. Therefore, the police force became more and more
concentrated in urban areas, bureaucratic, corrupt and colluded with arrested
criminals to tamper with evidence which led to fewer convictions in court.
• The outbreak of Uganda–Tanzania war (1978–1979) became the final straw,
whereby armed forces and people’s militia fought on the frontline, the villagers
felt isolated and abandoned by the government, thus the rebirth of traditional
militia and vigilante groups.
• Just like in colonial period, vigilante groups known as sungusungu or wasalama
started in villages among the Sukuma and Nyamwezi tribes in Kahama and
Nzega Districts by Kishosha Mang’ombe (the cattle’s returner).
• Initially, it began as organised village efforts to curb cattle rustling, after few
years it grew into well-organised security associations with own leadership, a
chain of command, dress code, fund, special songs, traditional weapons,
ceremonies and rituals.
• Their jurisdiction expanded from curbing cattle thefts to combating highway
robbery and plunder (brigandage), hunting out suspected witches, armed
robbery and engaging in night-watch. There was a high decline in violent
deaths, armed robbery and cattle rustling in the two districts.
• However, since sungusungu started among Sukuma people, which is the largest
tribe in Tanzania, and regardless of its initial success in deterring crimes; the
government was hesitant to embrace it. This is because; one, government
officials especially the court and police saw vigilantism as a threat to their
authority and rule of law. Second, members of the executive and ruling party
feared that sungusungu groups might be an attempt to restore chiefdoms.
Lastly, sungusungu operated outside the realm of existing village governments
and setup own leadership structure.
 118

• Nonetheless, one thing was certain that the rebirth of vigilantes in villages
marked the failure of the state and armed forces to maintain law and order.
• In 1983, vigilantes gained more followers and support in both rural and urban
areas, and to some parts of the Kenya Republic. Therefore, the government of
Tanzania had no option but to officiate and accommodate them in the policing
system and structure of the ruling party, and allow them to work hand in hand
with existing armed forces. Even most influential government leaders such as
Julius K. Nyerere, Edward M. Sokoine (prime minister) and Rashidi M. Kawawa
(CCM’s chief secretary) referred to them as revolutionary force and guardian of
peace and property.
• To work the talk, the government pardoned and set free a good number of
sungusungu members who had been convicted of murder and torture.
Moreover, in 1989, the People’s Militia Act was amended to officially recognise
sungusungu as law enforcers.
• The amendment empowered them to conduct search, seizure, arrest and detain
just like a police officer of a rank of constable.
• Generally, the sungusungu just like the people’s militia (mgambo) created four
main challenges; one, sungusungu groups mainly emerged to addressed
insecurities in rural areas, thus, at least, could not address security concerns in
urban areas. Two, sungusungu usurped judicial, parliament and police powers
creating more human rights crisis in their well-intentioned quest of curbing
crimes. Three, though the 1989 amendment to the People’s Militia Act required
sungusungu to operate with the authority of and under the aegis of the
government and receiving military training, they have continued to operate
under the direction and command of the ruling party. Lastly, since Article 147
of Constitution of Tanzania (1977) lays a strict monopoly of force and violence
thesis, existence and activities of sungusungu become unconstitutional.
 119

• The period between 1975 to date, is regarded as a period of economic

divestiture and democratisation in Africa.
• In Tanzania, the period was marked by three key developments in international
and diplomatic relations namely; the collapse of the East African Community in
1977, Uganda-Tanzania war in 1978-1979 and weakening in the influence of the
former U.S.S.R (communist bloc) in the 1980s.
• Consequently, the Tanzania economy was in turmoil, forcing the government
to accept loans from the International Monetary Fund and World Bank under
the Structural Adjustment Programmes (SAPs).
• The SAPs required developing countries like Tanzania who had a socialistic
path of development to cut their social services expenditure and liberalise the
economy (i.e. denationalisation, deregulation and privatisation).
• Regarding policing, these reforms implied a reduction in security budget, thus
creating two serious problems, i.e., the police force was underfunded and
understaffed, thus revival of the vicious circle of corruption and mistrust,
miscarriage of justice; and insecurity due to unavailability of the police force to
the public.
• It is noteworthy to note that the end of socialism also marked the downfall of
villagisation programme, thus people abandoned ‘ujamaa villages’ and moved
to towns, thus adding more demographic and security concerns in urban areas.
• Moreover, many public corporations were sold to local entrepreneurs or
foreign investors and new private businesses opened, thus widening economic
gap between the poor and rich.
• Generally, the emerging rich class; one, created special residential areas (gated
communities/enclaves) in exclusion of the poor who lived in city and town
slums. Two, wealthy individuals and private corporations started to organise
in-house security personnel and night-watchmen, especially retired policemen,
people’s militia, soldiers and fierce tribesmen (e.g. maasai). The private
 120

initiatives in organising security signalled institutional crisis and an inability of

the government to monopolise force and provide security as a public good.
• In response, the government made two important changes; first, reintroduced
the local government authorities in 1982, and placed the people’s militia
(mgambo) under the control of rural and urban authorities. The mandate and
task of people’s militia are like those of the police officer, except that their
jurisdiction is limited in respective local authority i.e., city, municipality or
district council. This means that coercive powers that were at some point
concentrated in the central government devolved to local authorities. Second,
the government made an official statement to allow registration and operation
of Private Security Companies (PSCs) regulated by the police.
• Nonetheless, the government has refused to make a law to regulate activities of
PSCs or revisit Article 147 (monopoly of force), thus making their existence
unconstitutional. In recent years, even the Tanzanian military (TPDF) has
registered a security company known as SUMA JKT Guard Ltd to capitalise on
the booming security business and a poor legal regime, fuelling more
constitutional debates.
• In 1992, the government reintroduced multiparty system through the sixth
constitutional amendment.90This reform signalled three important shifts in the
provision of security; one, marked the end of party supremacy at least in
theory, and separation of armed forces from party control. Two, recognition of
the right to security of person and property as both an individual and collective
right. Three, political parties started to organise own security in a form of ‘party
militia’, to police party rallies and protect party leaders and properties.
• It should be borne in mind that, during this crucial period of political and
economic reforms (1980-1995), Tanzania was marred by the proliferation of

90
In 1984, the Bill of Rights was introduced under the Constitution.
 121

small arms, a rise in violence crimes and refugee crisis due to political unrests
in Congo DRC, Mozambique, Burundi and Rwanda.
• To cope up with new security demands, budget deficit and dwindling role of
vigilantes (sungusungu) and ten-cell leaders in policing, the Police Force has
introduced two programmes; the first is ‘community policing’ policy (2006)
which allows the community to participate in policing by organising
neighbourhood security groups and training them. Besides, the police have also
been deputising volunteers in performing non-coercive duties such as traffic
control. The second policy is aimed at supplementing police force’s income,
whereby they charge fees for security services offered to commercial banks and
mining companies, to name just a few. In my view, the latter practice is
unlawful, since current police law does not allow them to commercialise police
services, while the former falls in the same category of ‘top-down’ security
policies that have proven a failure in the past.

6.3 The Tanzania Police Force

Law enforcement services in Tanzania are provided by the Tanzania Police Force
(TPF),91 which is part of the Ministry of Home Affairs. The Police Force is
established for the “preservation of the peace, the maintenance of law and order, the
prevention and detection of crime, the apprehension and guarding of offenders and
the protection of property, and for the performance of all such duties and shall be
entitled to carry arms.” (See, section 5(1) of the Police Force and Auxiliary Services
Act, Cap. 322).

Summary: Police have duties to

• Maintain law and order;
• Protect life and property;
• Prevent, detect and investigate a crime.

91
Police (and policing) is a union matter.
 122

6.3.1 Mission
The mission of the Tanzania Police Force is to ensure the public security, safety
and protection of both life and property of all inhabitants of our community; to
regulate and control the flow of traffic to facilitate the movement of persons and
goods within our towns and to reduce the impact of crime on the inhabitants of
community through investigation, apprehension, and adjudication of persons
involved in criminal offences.

6.3.2 Vision
To have professional, modernisation and community policing that support
maintenance of peace and tranquillity by reducing incidences of crime and fear of
crime; justice administration, rule of law and good governance and public safety in
the country. The reformed Police Force must earn community confidence and
trust, recognition and acceptance by its professional response to crimes and
incidents in an application of modern technology and equipment.

6.3.3 Values
Its core beliefs are - professionalism; ethics adhered; customer focus;
accountability and responsibility; teamwork; impartiality; community
responsibility; honesty; integrity; loyalty; adherence to laws and regulations;
proactiveness and confidentiality.

6.3.4 Tanzania Police Force’s Partners

(i) INTERPOL Dar es Salaam

The idea to create INTERPOL was born in 1914 during the first International
Criminal Police Congress in Monaco, France. INTERPOL was officially established
in 1923 known as the International Criminal Police Commission. In 1956, it was
renamed as INTERPOL. Currently, INTERPOL has 190 member countries, making
it the world’s largest international police organisation. The main task of
 123

INTERPOL is to enable police forces around the world to work together in

addressing serious crimes.

Tanzania joined Interpol on 19 September 1962. INTERPOL Tanzania is headed by

a Commissioner of Police. The INTERPOL national central bureau for Tanzania is
part of the criminal investigation department. It is staffed by Tanzania Police Force
officers. Other INTERPOL’s local partners include; food and drugs authority;
defence force; revenue authority; fair competition commission; national
environment management commission; national intelligence unit; national park
authority; the ministry of tourism and natural resources; and immigration
department. INTERPOL’s priority crime areas includes; motor vehicle crime; drugs
and organized crimes; intellectual property and works of art; environmental crime;
terrorism and piracy; stolen and lost travel documents; trafficking in human
beings and illegal immigration; crimes against women and children; trafficking in
precious stones and metals; firearms and explosives; counterfeit products
(including pharmaceuticals); and cattle rustling.

For more details, please visit the INTERPOL’s website.

(ii) Private Security companies

(iii) Night-watchmen
(iv) People’s militia or Vigilante groups (e.g. Mgambo, Sungusungu, and community
policing / neighbourhood night-watch groups)
(v) KMKM (Zanzibar’s Coastal Guards).
 124

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Module 7: Prisons& Imprisonment

Picture: Members of the Tanzania Prisons Service

7.1 Introduction

Individuals are sentenced to a period of imprisonment following a process which

involves investigation of an offence and detection, prosecution, trial, conviction
and finally sentence. The essence of imprisonment is a deprivation of one of the
most cherished features of human life, individual liberty. In those countries which
have abolished the death penalty and corporal punishment, imprisonment
becomes the most severe sanction which the court can impose on a convicted
offender.

Notably, depriving people of their liberty is a negative act and for that reason,
imprisonment is often described as a punishment of last resort, one which should
only be imposed by a court of law when there is no other appropriate punishment.

7.2 Definition of Terms

Etymologically, the word prison comes from the Latin word meaning to seize. The
place itself is defined as a building to which people are legally committed to
custody while awaiting trial or punishment.
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Under Tanzanian penal law, the word "prison" is used to mean;

A place of confinement of:

• Those convicted in courts of law, or

• Remanded in custody pending trial, and
• Those detained under the Preventative Detention Act 1962.
As opposed to a prison, “a jail” is a building designated or regularly used for the
confinement of individuals who are sentenced for minor crimes or who are unable
to gain release on bail and are in custody awaiting trial. On the other hand, a Lock-
up is a police custody or detention facility or a jail, especially a temporary one. A
difference has also been made between a police custody (Lock-up) and judicial
custody, in that police custody is an immediate physical custody by the police of a
person who committed a crime, while a judicial custody is ascribed by a judge or
the court itself. The custody is ordered by the judge, depending on the
circumstances of the case. The custody can be awarded because the judge refused
bail, the suspect earned the citation of contempt of court and many other
circumstances.

7.3 Types of Prison and Prisoners

Prisons may be categorised as Public and Private Prisons. Basically, public prisons
are incarceration facilities owned, run and funded by the government, while
private prisons are facilities owned and run by private individuals (privatised
prisons) but under the aegis of the government. Other categories include; Military
prisons and Civilian Prisons; Prison Hospitals (e.g. Mirembe Hospital, and Isanga
Prison Hospital in Dodoma) and rehabilitation centres; Women's prisons and
Men’s Prisons; and Adult Prisons and Youth detention facilities.

On the other hand, the word "prisoners" refers to all persons legally held in prison
custody whether convicted or not. These include:
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(a) Remand Prisoners: unconvicted persons who must be produced before a court
of law within a period of 24 hours of such arrest. No such person shall be detained
in custody beyond the said period without the authority of the court, otherwise a
writ of habeas corpus may be issued against the detaining authority.

(b) Convicts: these include any convicted persons under sentence of the court, a
court martial or a special tribunal and those detained in prison under Section 57 of
the Criminal Procedure Code.

(c) Civil Prisoners: these include a debtor, any person ordered to be detained in
custody under the provisions of the Mental Disease Ordinance or a detainee under
the Preventative Detention Act, 1962.

(d) Prisoners-of-war: these are persons, whether combatants or non-combatants,

held in custody by a belligerent power during or immediately after an armed
conflict.

7.4 Why Prison and Imprisonment?

There are four (4) main reasons for sending convicts to prisons;

• Punishment
The first given purpose of imprisonment is to punish persons for the crime they
have committed. Some crimes are so serious that the only appropriate disposal is
to punish the offender by taking away their liberty.

• Deterrence
If a person who is tempted to commit a crime knows that the result is likely to be a
period of imprisonment, then that will be enough to deter that person from
committing a crime. The greater the punishment, the greater the deterrent.

• Reform/rehabilitation
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The notion that prison can be a place where individuals can be taught to change
their behaviour is attractive on a number of counts. In the first place, it provides a
positive justification for what would be an otherwise negative form of punishment
of the criminal. The notion of prison as a place where personal reform can be
engineered and encouraged is also attractive to those public-spirited men and
women who work in prisons and who wish to do more professionally than merely
deprive prisoners of their liberty.

• Public protection
Another purpose of imprisonment is to protect the public from commit criminals,
particularly recidivists. During the time that offenders are in prison, they are
prevented from committing other crimes. This argument is known as
incapacitation. In some respects, this argument is valid, particularly in respect of
specific neighbourhoods where a significant proportion of crime is being
committed by identifiable individuals.

7.5 History of Prisons

In its present form, the prison is a relatively modern invention, having been in
existence for less than 300 years. Several scholars suggest that the modern prison is
a product of 18th-century enlightenment. It has its roots in the Northeast of the US
and in Western Europe and has subsequently spread around the world, often in
the wake of colonial expansion.

Prisons as places of detention, where people waited to be tried until a fine or debt
was paid or until another court disposal was implemented have existed for many
centuries. But the use of prison as a direct disposal of the court to any significant
extent can be dated to a relatively recent period.

7.5.1 Emergence of Prisons in Europe, Middle East and America

Roth, M.P. (2005) Prisons and Prison Systems: A Global Encyclopaedia, pp.xxv-xxix
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• Early prisons were rarely built expressly for imprisonment.

• Most cultures resorted to makeshift cages or dungeons to confine prisoners in
existing structures.
• Imprisonment played a minor role in the punishment regimes of most
countries before the 19th century.
• Some of the world's most famous buildings, including The Kremlin and the
Tower of London, have been used as prisons over the centuries.
• References to early prisons can be found in many ancient cultures. Several
thousand years ago the Babylonians utilised places of incarceration, or bit kili,
for debtors and petty criminals, as well as for convicts who were either slaves or
foreigners.
• Classical Greece and Rome sporadically used a private prison, or carcer
privatus, to detain debtors and individuals awaiting trial or execution. Ancient
Athens had a prison called the desmoterion, or "the place of chains."
• Rome's Twelve Tables refers to a place of forced detention called the
ergastalum.
• By the sixth century the Latin term carcer was used to refer to penitential
confinement, and in the middle ages carceres were the special rooms
monasteries dedicated for "delinquent clergy."
• The Old Testament reports the use of imprisonment by Egyptians, Philistines,
Assyrians, and Israelites.
• Jerusalem had at least three prisons at the time of Nebuchadnezzar, including
Beth ha-keli, or "house of detention", Beth haasourim, literally "house of chains";
and Bor, which was little more than an underground cistern.
• No word conjures up the worst aspects of imprisonment more than a dungeon.
Derived from the Latin term domgio, referring to a precipice where a castle or
fortress is built,
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• The French adopted the term donjon, from which the more familiar English
version, dungeon, was derived.
• Over time dungeon became synonymous for the inner sanctums and places of
confinement in towers and castles built at high elevations.
• One of the earliest examples of subterranean chambers for prisoners was
mamertine prison built in Rome in 64 B.C.E.
• Early English jails can be found at least as far back as 1166 when King Henry II
required that each sheriff establishes a county jail in his shire.
• Several towns used formidable gatehouse prisons located near the city gates.
Except for nomenclature, there was little distinction between jails, prisons, and
other places of confinement until the eighteenth century.
• The original functions of prisons varied little. Most held individuals awaiting
trial or punishment after adjudication. If the guilty did not die from whatever
sentence awaited them, they were released and their debts to society were
completed. Between the twelfth and fifteenth centuries, pre-existing structures
such as tower keeps, cellars, and dungeons held prisoners in various locations.
• According to one historian, early European hospitals, or lazarettos, provided
the inspiration for modern "purpose-built" prison designs.
• In the sixteenth and seventeenth centuries, England opened several houses of
correction known as Bride wells.
• The Parliament ruled that every county should open one of these institutions
to hold indigents and vagrants while inculcating them with the appropriate
work ethic.
• In these facilities, petty criminals and transient types were introduced to a
number of tasks that could help support the institution, such as baking and
milling.
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• By the late 1500s, Bride wells offered training and apprenticeships to poor
freemen and women and to street children that included 25 different
occupations.
• Amsterdam contributed its version of the house of correction, the rasp house,
in the sixteenth century as well.
• Sheriffs in medieval London utilised gaols (jails) known as compters to
incarcerate misdemeanants such as debtors, drunks, and vagrants.
• Like other holding facilities of the era, these institutions earned an unsavoury
reputation for charging prisoner’s fees for even their most basic needs.
• An important step in the development of the prison was the use of cellular
confinement. Some of the earliest examples of this were in what is now Italy.
• In 1677 the Hospice of San Filippo was operating near Florence. One
criminologist has described this institution as the "first practical attempt" to
use 24-hour segregation "for the avowed purpose of correction and reformation."
• Others have credited the San Michele Hospice in Rome as being the inspiration
for cellular confinement.
• Another major step in prison innovation was the rebuilding of the original
house of correction in Ghent (Holland) in the 1770s, replete with separate cells
for prisoners.
• By adopting the regime made famous at Rome's San Michele Hospice and later
by the Auburn system, prisoners were housed in a congregated setting by day
and slept in separate cells at night.
• When transportation of British convicts to the American colonies was abruptly
interrupted in 1775, Britain's overcrowded prisons forced authorities to look for
alternative detention facilities.
• Penurious administrators turned to derelict warships and merchant’s vessels, or
convict hulks, to confine prisoners.
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• The U.K. was not the only country to experiment with penal colonies. France's
Devil's Island was probably the best known.
• Operating the facility between 1852 and 1946, France adopted penal
transportation just as Britain abandoned it in Australia. Islands have proven to
be popular with prison planners.
• From Van Diemen's Land and Norfolk Island to the world's largest island,
Australia, to America's Alcatraz, France's Devil's Island, and Italy's Lipari
Island, the planet's oceans have an enviable record for providing the ultimate
in correctional security.
• Following the American Civil War, the former Southern states, as well as
several others, turned to convict leasing to make up for the dearth of prison
facilities and lack of financial resources.
• Like so many other experiments in penology chain gangs have gone in and out
of fashion in the United States.
• Societies have used forced labour at least as far back as fifth-century B.C.
Greece when state-owned slaves were leased out to private mining operators.
• Convict labour was used during the Roman Empire and into the middle ages.
But not until the age of the modern penitentiary did the convict-leasing system
find an environment in which it could prosper. Nowhere was this truer than in
the United States.
• Although colonial jails forced prisoners to work, not until the opening of
Philadelphia's Walnut Street Jail in 1790 was prison labour placed at the
disposal of outside contractors. In the post-Civil War American South, the
convict-leasing system was the result of a paucity of funding from the shattered
Confederate states. Convict leasing diminished in popularity in the twentieth
century, particularly in America, as a result of the growing clout of labour
unions, who saw convict leasing as unfair business competition in a world of
free labour.
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• England's John Howard was probably history's best-known prison reformer. In

homage to Howard, prison reform societies have been named after him.
• In the early years of the nineteenth century, the United States took the lead in
creating the modern prison. American prison reformers championed two
prison models. New York established the Auburn system, sometimes referred
to as the congregate model.
• It allowed convicts to work in a congregated setting with other inmates by day
but isolated them in individual cells at night.
• The Pennsylvania system, in contrast, became known as the solitary system for
its forced separation of prisoners "24/7" for their entire prison term.
• It was hoped that the Quaker-inspired Pennsylvania system would allow
prisoners to reflect on their lives and at the same time learn the value of
discipline and proper work habits.
• According to one early reformer, "The Quakers took up the cause of prison
reform and made a religion of it." Most prison systems favoured the Auburn
system because it was cheaper to operate, and its use of congregate labour
made it more financially productive than the competing Pennsylvania system.
• Except for Pennsylvania and New Jersey's Trenton State Prison, all American
prisons built in the nineteenth century adopted the Auburn model.
• However, the legacy of the Pennsylvania system was more pronounced in
Europe and South America, where a number of prisons were built on this
model.
• Worldwide, almost 300 prisons were inspired by Eastern State Penitentiary's
radial design.
• A handful of other noteworthy prison designs emerged during the late
eighteenth and early nineteenth centuries.
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• Never as popular as the Auburn and Pennsylvania systems, the circular or semi-
circular panopticon devised by Jeremy Bentham was copied by several countries
and the US.
• Although it allowed the continual observance of inmates, its unpopularity was
in part a consequence of its waste of space as well as the prisoners' ability to
easily follow the movements of guards.
• Before the twentieth century many prisons employed "make-work" strategies to
keep prisoners busy. Sometimes work was constructive and provided income
for the prison facility; at other times the tasks was unconstructive and purely
punitive.
• The U.K. introduced strategies such as the treadmill, the crank, and oakum
picking.
• These tedious tasks were designed to "grind men good."
• Amsterdam, however, pioneered the use of such practices as early as the
sixteenth century using rasping. In so-called rasp houses, a type of workhouse,
inmates were kept busy rasping or sawing up to 25 pounds of sawdust per day
per inmate to produce powder for colouring merchandise.
• This could take between 10 and 15 hours per day, equivalent to the average
workday in the free world at that time.
• Reformers such as John Howard saw rasping and other mind-numbing tasks
combined with a heavy dose of religion as an effective avenue to reform.
• In the minds of the prison keepers, hard labour helped rehabilitate inmates and
at the same time enabled institutions such as houses of detention to remain
self-sufficient.

7.5.2 The Emergence of the Modern Prison in the 19thCentury

• Emergence of modern prison is an outcome of the growing sentiment against
punishments of the day—brutal floggings, hangings, mutilations, etc.
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• A major step in the creation of modern prison systems was the formation of the
National Prison Congress in 1870.
• International prison congresses on prison reform had been convened in Europe
almost 25 years earlier, but little was achieved until the meeting held in
Cincinnati, Ohio, in 1870.
• More than 130 delegates, including judges, wardens, prison chaplains, and
governors, met and unanimously adopted a Declaration of Principles, which
included increased emphasis on rehabilitation, education, religion, training,
and most important, pushed for the widespread adoption of indeterminate
sentencing and the end of political patronage.
• The development of prisons and prison systems in the modern era has been
fraught with experimentation.
• Many of these experiments have been undertaken by the prison-oriented
American criminal justice system.
• For example, in the early 19th century, Thomas Mott Osborne inaugurated the
mutual welfare league at Auburn Prison, an "anti-institutional" approach that
experimented with offering prisoners the opportunity to achieve a modicum of
self-respect by removing the constraints of the silent system.
• The U.K. embarked on the Q Camp Experiment in the pre-war 1930s, which
like the Mutual Welfare League, hinged on democratic incarceration and
shared responsibility.
• In the 1980s and 1990s shock incarceration centres, better known as boot
camps, were a panacea for the growing juvenile crime rate.
• Demonstrating the cyclical nature of prison reform, the boot camp regimen
had much in common with reformer Zebulon Brockway's attempts to combine
education, athletics, and military discipline as a pathway to reform.
• As with many other "get-tough" initiatives, there is little evidence that boot
camps had much impact on recidivism.
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• Beginning in the early 1900s the U.K. experimented with detention centres for
youthful offenders known as Borstals, named after the village where the first
one was located. Several studies have suggested that the Borstals and boot
camps often resulted in high recidivism rates for their graduates.
• More countries have found better success through diversion of juveniles into
non-custodial adjudication.
• The twentieth century ushered in a new era in prisons and prison systems.
• It saw not only the closing of Devil's Island and the inauguration of the prison
big house movement in America but also the creation of enormous work camps
and the Soviet Gulag.
• By the 1980s the Soviet Union was sentencing 99 percent of its convicted
criminals to labour camps.
• The new century also witnessed the flowering of alternatives to cellular
confinement, once the great panacea.
• Probation and parole became standard alternatives, as did work release and the
suspended sentence. Beginning in the late 1980s super maximum prisons
revived some of the most discredited strategies of earlier prison regimes.
• It was hoped that keeping prisoners in their cells 24/7 and making communal
dining rooms and exercise yards redundant would keep prisoners and staff
safer.

7.5.3 Prisons in Africa: Colonial Legacy

Sarkin, J. (2008) Prisons in Africa: An Evaluation from a Human Rights Perspective,

pp.24 & 25

• Prison is not an institution indigenous to Africa.

• Incarceration as punishment was unknown to Africa when the first Europeans
arrived.
 140

• It is a holdover from colonial times, a European import designed to isolate and

punish political opponents, exercise racial superiority, and notably as a means
by which to subjugate and punish those who resisted colonial authority.
• Imprisonment and capital punishment were viewed as last resorts within the
traditional African justice systems, to be used only when perpetrators such as
repeat offenders and witches posed discreet risks to local communities.
• While imprisonment as a punishment did not take root in Africa until the late
1800s, there were two exceptions to this characterisation. First, prisons were
used in connection with the trans-Atlantic slave trade. Second, Southern
African nations began to rely upon imprisonment much earlier than the rest of
the continent, in some cases as early as the beginning of the 19th century.
• Even when the colonial powers arrived in Europe, they utilised imprisonment,
not as a means by which to punish the commission of common crimes but
rather to control and exploit potentially rebellious local populations.
• Therefore, Africa’s earliest experience with formal prisons was not with an eye
toward the rehabilitation or reintegration of criminals but rather the economic,
political, and social subjugation of indigenous peoples.
• It was in these early prisons that even minor offenders were subjected to brutal
confinement and conscripted as sources of cheap labour.
• White prisoners, unlike their black counterparts, enjoyed higher quality
clothing, food, and shelter, as well as vocational training aimed at preparing
them for release, rehabilitation, and reintegration.
• Additionally, while European prisons phased out torture in the late 1800s,
colonial prisons increasingly relied upon the practice as a means of suppressing
indigenous peoples and reinforcing racist dogma.
• Torture and capital punishment were legitimised among Europeans by the
characterisation of Africans as uncivilised, infantile, and savage.
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With respect to prison reforms in post-colonial Africa, Sarkin, J. (2008) argues

that;
“…despite the connection of prison brutality to the racist and colonial policies of the
late 1800s, penal oppression persists at an alarming rate and appalling depth in post-
colonial Africa. Moreover, attendant issues such as underdevelopment, dependence
on foreign aid, political oppression, and human degradation continue to plague the
continent despite the decades-old withdrawal of colonial powers. Within prisons,
overcrowding, failing infrastructure, corporal and capital punishment, corruption,
extended pre-trial detention, gang culture, and inadequate attention to women and
youth evince a startling lack of reversal notwithstanding the departure of Africa’s
penal architects over 40 years ago….”

7.5.4 History of Prisons in Tanzania

Williams, D. (1980) The Role of Prisons in Tanzania: A Historical Perspective, pp.

27-37.

• The Tanzania Prisons Service was officially established as a fully-fledged

Government Department on 25th August 1931.
• Prior to that date, the Service was administered under the Police Force.
(MOHA Website, 2012).

A. Germany period:

• The Criminal Code of the German Empire provided for various forms of
imprisonment - viz., penal internment, confinement, military detention and
detention.
• The major preoccupation of instructions by the Imperial Chancellor regarding
criminal jurisdiction and disciplinary authority in respect to natives was
concerned with corporal punishment.
• The German colonialists evidently viewed imprisonment to be a severe use of
coercive violence so that their "civilising" rule should prevail.
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B. British period:

• The legal basis for the prison system operating in Tanganyika at the date of
political independence, however, may be traced to the Police and Prisons
Proclamation 1919 and the Prisons Ordinance 1921.
• These were the legal instruments by which the British established their prison
system for the territory which had been "mandated" to them by the Treaty of
Versailles.
• The nature of the Prisons Service may be gathered from a brief analysis of the
more salient provisions of the 1921 Ordinance.
• The racist and hierarchical pattern of the colonial rule may be gleaned from
sections 6-8 whereby prison officers are ranked in order.
• There was the Commissioner, responsible for the administration of prisons
throughout the territory, and Superintendents vested with an administration of
each prison.
• Under them were first class and second class European jailers then came
Asiatic and native subordinate officers, followed by first, second and third-
grade chief warders, and further down to first, second, third, fourth, fifth and
sixth grade warders. Last, and no doubt least were Wardresses.
Prison standards under the British Regime:

• Separation of various categories of prisoners was required, male from female

prisoners, European prisoners from non-Europeans where possible, and so also
with the separation in accommodation of male prisoners under 16 years of age,
unconvicted criminal prisoners and civil prisoners.
• Prisoners could receive a visit from friends only once in every 3 months. A
remission system was established whereby longer-term prisoners "by industry
and good conduct, may, after the completion of six months' imprisonment,
earn a remission of one-seventh of the remaining period of their sentence."
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• Punishments for misconduct while a prisoner included; loss of remission,

solitary confinement, penal diet, hard labour and, in very serious cases in
respect to male convicted prisoners, corporal punishment.
• A massive number of prison offenses are declared, forty-two in all, including
such heinous acts as omitting to march in file when moving about the prison,
refusing to eat the food prescribed by the prison diet scale, committing a
nuisance, spitting on any floor, cursing, swearing or making unnecessary noise,
malingering and so on and so forth.
• In addition to the Prisons Ordinance, there was subsidiary legislation known as
the Prisons Regulations.
• The regulations set out in some detail how prisons were to be administered
throughout the territory.
• In 1933, there was a consolidation and amendment of the Prisons Ordinance
which retained this basic framework, although with some modifications.
• For instance, under section 89, a visit from friends was to be allowed once in
every month, and in section 100, the remission system became more generous,
a remission of ...% of the sentence remaining after the completion of one
month.
• The term "European jailer" was removed. Otherwise, the prison system
remained much as it was established, and it continued to run along the lines
required by the 1933 Ordinance until 1967.

C. Zanzibar

• The administration of prisons in Zanzibar was exactly the same as for

Tanganyika.
• The constitutional position differed considerably so that it was the British
Resident rather than the Governor who established prisons, and His Highness
the Sultan in Executive Council played a role in issuing Decrees and subsidiary
legislation.
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• However, the Prisons Decree 1933, which regulated Zanzibar's prisons until
1972 was, to all intents and purposes, in pari materia with Tanganyika's
Ordinance of the same year.

D. After independence

(i) Tanganyika

• A new policy to govern prison administration was evolved.

• The reformulated policy was set out by the first African Commissioner of
Prisons, O.K. Rugimbana.
• The task of the Prison Administration was therefore to evolve a new policy
consistent with civilised thinking, to make it serve not only a punitive purpose
but essentially a reformative one, capable of assisting the unfortunate
incumbents with the mental aptitude and know-how for future rehabilitation.
• Within such a framework, a policy of deploying prison labour on a nation-
building and revenue-earning footing had to be evolved. The basic feature of
the new policy was to deploy every available convicted prisoner on productive
labour.
• Yet it is quite remarkable that the Prisons Act 1967 bears all the hallmarks of
being a consolidation of the Prisons Ordinance 1933 and its amendments.
• Substantive amendments are few and far between; the only one worth noting
here is section 61 which replaces the section on prison labour in the now-
repealed Ordinance.
• This section reflects the adoption of reformation theory and it reads:

Every prisoner sentenced to imprisonment and detained in prison shall, subject to

the provisions of this Act and subject also to any special order of the court, be
employed, trained and treated, whether he is in or is not within the precincts of any
prison, in such a manner as the Commissioner may determine, and for that purpose
such prisoner shall, at all times, perform such labour, tasks and other duties as may
be assigned to him by the officer-in-charge or any other prison officer in whose
charge he may be.
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• This change, however, did not result in much improvement of prisons

conditions as the emphasis remained on safe custody.
• The incarceration of inmates in maximum security institutions built in major
towns and district centres, hard labour and racial segregation in their
treatment was a significant feature of the prisons reality.
• This prisons policy was reflective of its philosophical basis of retribution and
incapacitation that prevailed though the German colonial era ending 1919 and
the British protectorate era ending with independence in 1961.

(ii) Zanzibar

• There has been a distinctly different line of development, even though

Zanzibar and Tanganyika joined to form the United Republic of Tanzania in
1964.
• The Prisons Decree 1933 was repealed by the Offenders Education Decree 1972
which purported to abolish prisons completely and to establish in their stead a
Development Institute for the Education of Offenders.

(iii) After the Union of Tanganyika and Zanzibar (the early 1970s to date)

MOHA Website, 2012.

A new prisons policy was adopted embracing humane treatment of offenders and
justice as its core value. The objective was the rehabilitation of offenders as a
contribution to community safety. In practice, this philosophical shift was
manifested by:-

• Introduction of a new legislation, the Prisons Act, 1967 which embodies the
spirit of international basic human rights instruments;
• Establishment of several open farm prisons in the rural areas which were
designated to be centres of excellence for imparting agricultural skills to
inmates and to extend such services to surrounding communities;
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• Establishment of Vocational Training Centres in Mbeya and Morogoro regions

for skills-training to inmates. These were linked to the National Vocational
Education and Training Authority so that certification of graduates is
universally recognised;
• Expansion of economic projects inside the inherited closed prisons for skills
training for long-term prisoners;
• Establishment of educational programmes of different levels in prisons
including adult basic education, general academic subjects and primary school
education for school drop-outs at the Young Offenders' Prison;
• Adoption of a new training curriculum for prisons staff in line with the new
approach whereby observance of human rights was emphasised; and
• With these new developments, prisons condition began to pick up a more
humane face and the image of the prison service was very much enhanced both
within and outside the country as of the early 1970s.

7.6 Tanzania Prison Service Department: Administrative set-up

The Commissioner of Prisons is the administrative head of the service and the
head of each prison is appointed by him. Officers in charge of prisons are in turn
assisted by the necessary custodian staff, medical officers and educational staff and
religious representatives of the different faiths.

Currently, the TPS has 122 institutions, 21 regional offices, two staff training
centres, four vocational training facilities and head office. While the head office
effect management and administration of all prisons stations countrywide, the
regional offices provide administrative oversight (MOHA, 2012).
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7.7 Functions of the Prison Officers and Prison Departments

• To guard prisoners in such a way as to prevent them from escaping and to

ensure that they behaved in an orderly fashion throughout the course of their
imprisonment.
• Carrying out security checks and searching procedures supervising prisoners.
• Keeping account of prisoners in your charge and maintaining order.
• Employing authorised physical control and restraint procedures where
appropriate.
• Taking care of prisoners and their property, taking account of their rights and
dignity.
• Providing appropriate care and support for prisoners at risk of self-harm.
• Promoting anti-bullying and suicide prevention policies.
• Taking an active part in rehabilitation programmes for prisoners.
• Assessing and advising prisoners, using your own experiences and integrity.
• Writing fair and perceptive reports on prisoners.
See, Coyle, A. (2005) Understanding Prisons: Key issues in Policy and Practice

7.8 Relevant Prison Legal Instruments

A. National level

The Constitution of United Republic of Tanzania (1977); the Prisons Act, No. 34
(1967); the Prisons (Extra Mural Employment) Regulations (1968); the Prisons
(Prison Offences) Regulations (1968); the Prisons (Prison Management)
Regulations (1968); the Prison (Restraint of Prisoners Regulations (1968); the
Parole Boards Act (1994); the Parole Boards Regulations (1997); the Transfer of
Prisoners Act (2004); The Penal Code (Cap. 16); The National Defence Act (1966);
the Transfer of Prisoners Regulations (2004); the Commission for Human Rights
and Good Governance Act (2001); the Police Force and Prisons Service
Commission Act (1990); the Law of the Child Act (2009); the Children and Young
Persons (Approved School) Annual Holiday) Rules (1945); the Probation of
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Offenders Act (RE 2002); the Refugees Act (1998); the Probation of Offenders
Proclamations (1950 – 1961); the Minimum Sentences Act (1972); the Community
Service Regulations (2002); the Prisons Service Regulations (1997); the Public
Service Act (2002); Prison Standing Orders (4th Edn., 2003);92 the National
Prosecutions Service Act (2008); and Criminal Procedure Act (RE 2009). (MOHA,
2012).

B. International Level

Coyle, A. (2005) Understanding Prisons: Key issues in Policy and Practice, pp. 22 &
23.

UN conventions which are relevant to the treatment of people deprived of their

liberty include the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1984), the Convention on the Elimination of
All Forms of Racial Discrimination (1966) and the Convention on the Elimination
of All Forms of Discrimination against Women (1979). The International Covenant
on Civil and Political Rights was adopted by the General Assembly in 1966 and
came into force in 1976. The Universal Declaration of Human Rights (UDHR),
which was adopted by the General Assembly of the United Nations in December
1948, and the Convention (III) relative to the Treatment of Prisoners of War,
Geneva, 12 August 1949.

The general principles which are contained in the covenants and conventions
mentioned above are covered in more detail in several international instruments
which refer specifically to prisoners. These include the United Nations Standard
Minimum Rules for the Treatment of Prisoners (1957), the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment
(1988), the Basic Principles for the Treatment of Prisoners (1990), and the Standard
Minimum Rules for the Administration of Juvenile Justice (1985). There are also a
few United Nations instruments which refer specifically to staff working with

92
Rules and regulations framed from time to time by the Commissioner of Prisons.
 149

people who have been deprived of their liberty. They include the Code of Conduct
for Law Enforcement Officials (1979) and the Principles of Medical Ethics Relevant
to the Role of Health Personnel, Particularly Physicians, in the Protection of
Prisoners and Detainees against Torture and other Cruel, Inhuman or Degrading
Treatment (1982). These documents are crucial to any understanding of the
principles which should apply to the current practice of imprisonment.

7.9 Gender Dimensions in Prisons

Coyle, A. (2005) Understanding Prisons: Key issues in Policy and Practice, pp. 66 &
67.

Given the ratio of male to female prisoners, it is understandable that the prison
system is organised from a male perspective. It is important to be aware that in the
real world of the prison this has specific consequences, usually disadvantageous,
for the relatively small number of prisoners who are women. A report by the
Fawcett Society (2004) illustrated the extent to which the prison system is
designed to contain male offenders, with the result that the problems of women
are not adequately addressed. This stereotyping aspect is highly attributed to the
fact that;

• Most prisoners and prison staff are men; and

• The regulations about how prisoners are to be treated are drawn up with male
prisoners in mind.

7.10 Criminogenic effects of Incarceration

Pritikin, M.H. (2008) Is Prison Increasing Crime? pp. 1049-1108.

The means by which imprisonment may cause crime are numerous and varied.
Such effect may relate to the experience of incarceration, or as post-incarceration
consequences, or affect people other than the incarcerated offender himself. Some
of these effects are;
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• Loss of liberty: restrictions on political rights, e.g. right to vote, freedom of

movement, etc.
In most cases, convicts or former convicts are at least temporarily or permanently
deprived of various political rights, including the rights to vote, be elected to
public office, and serve as court officials.

• Prison as a “School” for criminals

While in prison, offenders learn from older or more experienced inmates how to
commit crimes and avoid detection more effectively. Besides, inmates not only
learn the technical know-how of criminality but also internalise the norms of the
prison’s antisocial subculture.

• Psychological effects (coping theory):

These includes; delusions, depression, apathy, stress, denial, phobia, nightmares
and inability to sleep, self-destructive behaviour (substance abuse), diminished
sense of self-worth and personal value, anxiety and etc.

• Suicidal tendencies in prisons:

Essentially, prison inmates have higher suicide rates than their community
counterparts due to stressful prison’s life.

• Severance of Family and community ties/ weakening of social bonds with family
and community:
The central issue here is whether the former inmate has a family relationship to
which he can return. Notably, geographical distance, security restrictions, and
other logistical considerations of incarceration disrupt connections between
inmates and their families, they may make it more difficult for offenders to
reintegrate upon release and avoid prior criminal patterns.

• Deprivation of heterosexual relationships/ denial of conjugal rights leading to

homosexuality, and sexual assaults in prisons:
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The deprivation of heterosexual relationships carries with it another threat to the

prisoner's image of himself- more diffuse, perhaps, and more difficult to state
precisely and yet no less disturbing. The inmate is shut off from the world of
women which by its very polarity gives the male world much of its meaning. Like
most men, the inmate must search for his identity not simply within himself but
also in the picture of himself which he finds reflected in the eyes of others

• Brutalising effect of prisons:

Violence against inmates by guards has always been an aspect of prison life to a
greater or lesser degree. Brutalisation of an inmate by a guard may destroy his
sense of personhood or make him resent the state and its systems of authority.
Either psychological mechanism could aggravate the inmate’s sense of belonging
outside of society, and reduce his willingness or ability to conform to its norms.
Violence committed against inmates by other inmates may similarly destroy the
victim’s sense of self-worth and make him resent the system that failed to protect
him. Even the mere threat of violence that pervades prisons can cause inmates to
become hardened as a self-defence mechanism; they may associate with gangs or
other violent groups to protect themselves. And to the extent that inmates
victimise other inmates, the very act of brutalising others may tend to harden
them. Any or these effects may tend to make criminals more hostile, violent, and
socially maladjusted when they are released.

• Overcrowding and lack of individualised treatment, thus leading to recidivism:

Prison overcrowding can lead to less careful classification, monitoring, and
managing of inmates with psychological problems or who otherwise pose a threat
of violence to other inmates. Basically, overcrowded and poorly regulated prisons
tend to have higher rates of rape and sexual violence. The adverse effects of
overcrowding appear to be magnified for younger inmates, perhaps because of
their increased volatility and sensitivity to their surroundings. Overcrowding also
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often means fewer resources available to each inmate, which can increase
uncertainty, frustration, and conflict with other inmates.

• Solitary confinement
The increased stress of this extreme isolation and confinement may impair
inmates’ mental health, which in turn may cause them to commit more violent
acts, either within prison or upon release.

• Reactance
Brehm (1966) declared that people have a need for freedom. The need for freedom
is activated whenever people feel a restriction put upon their actions or opinions.
People usually respond to a restrictive force by fighting back against it, resisting
attempts at influence. Brehm described psychological reactance as a force aroused
by threats to a person's freedom. Psychological reactance is aroused whenever a
person is given a direct order or told that an activity is not possible or not allowed.
When pushed, people tend to push back. When told they cannot have something,
people tend to want it.

Therefore, people may perceive attempts to control their conduct as a threat to

their freedom, which they react against (either consciously or subconsciously) by
trying to re-establish the perceived threatened freedom by participating in the very
behaviour that was prohibited.

• Victimisation (mistaken/wrongful imprisonment):

The clinical findings from the psychiatric assessments have indicated prevalent
and often severe mental health and adjustment problems. After release, most ex-
convicts are described by their families and others as changed in personality, and
showing features of post-traumatic stress disorder and additional depressive
disorders, estrangement, difficulty in restoring intimate and family relationships,
and complex experiences of loss.
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• Labelling/ stigma of imprisonment:

According to the school of thought known as “labelling theory,” when someone is
punished for committing a criminal offense, he is effectively being labelled by the
community as bad or deviant, and, in short, he becomes the thing he is compared
to/with.

• Diminished study and employment opportunities:

Difficulties in obtaining legitimate employment increase the pressure and
temptation for former offenders to earn income through illegitimate means.

• Denial of benefits and other social programs:

Former offenders may be impaired economically not only through exclusion from
employment but also through denial of a variety of governmental benefits.
Convicted drug offenders may be denied access to small-business loans,
educational loans, and other state benefits. Much like barriers to employment,
these denials of benefits may contribute to the economic pressure that former
offenders face. If anything, the combination of the two phenomena likely
magnifies the criminogenic effect of each standing alone. Convicted offenders not
only find it difficult to obtain legitimate employment, they also face barriers to
supporting themselves and their families in the absence of such employment,
thereby increasing pressure to obtain income through illegal channels.

• Economic effects on families of offenders:

Children and spouses of incarcerated parents invariably lose whatever financial
support those parents were providing. Economic deprivations directed at those
previously incarcerated also impact their families.

Questions:
1. “Imprisonment is an extremely important contributor to the problems of
recidivism.” Why is it then that faith in reformation is constantly reaffirmed as
the theoretical justification for imprisoning convicted criminals?
2. “It must, however, be clear from the outset to all concerned that it is the
sentence of imprisonment, and not the treatment accorded in prison, that
 154

constitutes the punishment. Men come to prison as a punishment, not for

punishment.” (Per Alexander Paterson, a famous English prison commissioner
in the early part of the twentieth century). Critically discuss.
3. What are the civil rights ‘expressly or by necessary implication’ taken away by
the act of imprisonment?
4. Why are some offenders sent to prison and others are not? What does the
court mean to achieve when it sends an offender to prison?
5. Write a case note: Raymond v. Honey (1983) 1 AC 1.
6. “Prisons are primarily male institutions.” Discuss

References

____ Prison Service since Independence. Tanzania Notes and Records No. 76,
pp.197-200.

Bernault, F. & Roitman, J., (Eds.) (2003) A History of Prison and Confinement in
Africa. Portsmouth, NH: Heinemann.

Coyle, A. (2005) Understanding Prisons: Key issues in Policy and Practice. Open
University Press, Berkshire, England.

Davis, A.Y. (2003) Are Prisons Obsolete? Seven Stories Press, New York.

Fuhrmann, J. & Baier, S., (Eds). (2013) Prisons and Prison Systems: Practices, Types
and Challenges. Nova Science Publishers Inc.

Grounds, A.T. (2005) Understanding the Effects of Wrongful Imprisonment. Crime

and Justice, Vol. 32, pp. 1-58.

Gupta, A. & Girdhar, N.K. (2012) Risk Factors of Suicide in Prisoners. Delhi
Psychiatry Journal, Vol. 15 No.1, pp.45-49.

Hough, M., et al., (2008) Tackling Prison Overcrowding: Build More Prisons?
Sentence Fewer Offenders? The Policy Press, University of Bristol, UK.

Logan, C.H. (1990) Private Prisons: Cons and Pros. Oxford University Press,
Oxford, UK.

MOHA (2012) Tanzania Prisons Service:Historical Background/About the

Department, http://www.moha.go.tz/index.php/prisons-service/prisons-dept-
background (Accessed on 21/01/2015).

Paulus, P.B. (1988) Prison Crowding: A Psychological Perspective. Springer-Verlag,

London, UK.
 155

Pritikin, M.H. (2008) Is Prison Increasing Crime? Wisconsin Law Review, pp.1049-
1108.

Roth, M.P. (2005) Prisons and Prison Systems: A Global Encyclopaedia. Greenwood
Press, London, UK.

Sarkin, J. (2008) Prisons in Africa: An Evaluation from a Human Rights Perspective.

Sur, International Journal on Human Rights, Vol.5:9, pp. 22-51 (ISSN 1806-6445).

Selman, D. & Leighton, P. (2010) Punishment for Sale: Private Prisons, Big
Business, and the Incarceration Binge. Rowman & Littlefield Publishers Inc.,
Plymouth, UK.

The UN (2005) Human Rights and Prisons: A Pocketbook of International Human

Rights Standards for Prison Officials. UN, New York and Geneva.

Tomar, S. (2013) The Psychological Effects of Incarceration on Inmates: Can we

Promote Positive Emotion in Inmates. Delhi Psychiatry Journal, Vol.16:1, pp.66-72.

Williams, D. (1980) The Role of Prisons in Tanzania: An Historical Perspective.

Crime and Social Justice, No. 13, Focus on Prisons (summer), pp. 27-38.
 156

Module 8: Non-custodial Measures

Picture: Bazil Mramba (former Minister) and Daniel Yona (former Permanent Secretary)
doing community service at Sinza Palestina

Hospital

8.1 Introduction to Punishment and Treatment of Offenders

Traditionally, the theory of retributive justice is based on the idea of retaliation

(punishment), which is valuable in itself, and provides deterrence. Before non-
custodial movement, sentences of execution and/or imprisonment were thought to
be effective ways of removing criminals’ threat to the public safety. However, non-
custodial measures add to these goals, trying to reform the offender
(rehabilitation) and put right what he did (reparation). Again, in the past, victims
of crimes only played a small part in the criminal justice process. Conversely,
under the current set up, the restorative approach to justice often makes it a part
of a sentence for the offender to apologise, compensate the damage they have
caused or repair it with their own labour.

There are two specific types of sentences options available to i.e. custodial or non-
custodial sentences as explained below.

• Custodial sentencing/measures (imprisonment/correctional facility/putting

someone behind bars):
A custodial sentence is a judicial sentence, imposing a punishment (and hence the
resulting punishment itself) consisting of mandatory custody of the convict, either
 157

in prison (incarceration) or in some other closed therapeutic and/or educational

institution.

• Non-custodial sentencing/measures
The phrase “Non-custodial measures” is defined as follows;

Any decision made by a competent authority to submit a person suspected of,

accused of or sentenced for an offence to certain conditions and obligations that
do not include imprisonment; such decision can be made at any stage of the
administration of criminal justice [Tokyo Rules: Rule 2.1].

Non-custodial measures may include: unpaid work (this can be called community
payback or community service); house arrest; curfew; suspended sentence (that
means that breaking the law during a sentence may lead to imprisonment);
wearing an electronic tag; mandatory treatments and programs (drug or alcohol
treatment, psychological help, back to work programs); fine; apology to the victim;
specific court orders and injunctions (not to drink alcohol, not to go to certain
pubs, meet certain people); regular reporting to someone (offender manager,
probation); judicial corporal punishment.

• Other names for non-custodial measures include; diversion measures,

alternative to incarceration, alternatives to custodial sentencing, community
services, disposition measures and alternative sanctions.

Detention and correctional facilities in Tanzania include; Police stations (i.e. police
lockups), Prisons, Retention Homes, and Approved Schools.

8.2 Local and International Legal Standards on Non-Custodial Measures

(a) Relevant local legislations;

✓ The Constitution of the United Republic of Tanzania, 1977 (Article 45 –

Prerogative of Mercy/Presidential Pardon/Amnesty).
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✓ The Presidential Affairs Act, Cap. 9 (RE: 2002), Section 3 (to be read in the light
of Article 45 of the URT Constitution, 1977).
✓ The Probation of Offender’s Act, Cap. 247 (R.E 2002)
✓ The Community Service Act, Cap. 291
✓ The Prisons Act, Cap. 58 (Section 52 & 72)
✓ The Parole Boards Act, Cap. 400
✓ Transfer of Prisoners Act, No. 10 of 2004, Section 12 and 13.
✓ Criminal Procedure Act, (RE: 2002) – nolle prosequi (Section 91), discharge
(Section 152), habeas corpus [section 390(1)], etc.
✓ The Extradition Act, No. 15 of 1965 (RE: 2002) - habeas corpus
✓ Law of the Child Act, No. 21 of 2009, Sections 101, 116 and 119.
✓ The Immigration Act, No. 7 of 1995 (RE: 2002), Section 14 (conviction and
deportation order)
✓ The Deportation Act, Cap. 380 (RE: 2002)
✓ The Penal Code, Cap. 16 (Section 26)
✓ The Resettlement of Offenders Act, No. 8 of 1969 (RE: 2002), Sections 4, 5, 6
and 8.
(b) International standards;

✓ The United Nations Standard Minimum Rules for Non-custodial measures (The
Tokyo Rules), 1990 [Rule 2.1, 5.1, 8.2 and 9.2]
✓ United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (The Beijing Rules), 1985 [Rule 18]; and
✓ The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, 1985 (restorative justice, Rule 8-17).

8.3 Why Non-Custodial Measures?

A shift towards alternative sentencing means that some offenders avoid

imprisonment with its many unwanted consequences. This is beneficial for the
 159

society, as it may prevent them from getting into the so-called the revolving door
syndrome, i.e. recidivism or incorrigibility. Furthermore, there are hopes that this
could alleviate prison overcrowding and reduce the cost of punishment.

Summary of reasons:
✓ To avoid overcrowding in prisons
✓ To save taxpayers money in keeping offenders, employing pore personnel,
expanding facilities and sometimes outsourcing private companies to manage
prisons
✓ To rehabilitate offenders (treatment and psychological help)
✓ To avoid reoffending (recidivism and incorrigibility)
✓ To reintegrate/restore offenders back into the society
✓ To avoid paralysing the economy (i.e. to allow offenders to take part in own
economic activities, pay taxes and taking care of their families)

8.4 Forms of Non-Custodial Measures and Application

Non-custodial measures differ from country to country based on legal provisions
and powers conferred on various authorities. However, the most common ones
include: -

(a) Non-custodial measures at the pre-trial stage

❖ Discharge of offender – with or without conditions – bail – especially, juvenile

offenders
“Where appropriate and compatible with the legal system, the police, the
prosecution service or other agencies dealing with criminal cases should be
empowered to discharge the offender if they consider that it is not necessary to
proceed with the case for the protection of society, crime prevention or the
promotion of respect for the law and the rights of victims. For the purpose of
deciding upon the appropriateness of discharge or determination of proceedings, a
set of established criteria shall be developed within each legal system. For minor
cases the prosecutor may impose suitable non-custodial measures, as appropriate.”
(Rule 5.1).

The use of non-custodial measures at the pre-trial stage should also be seen in the
light of the basic rule reflected in Rule 6.1, according to which “pre-trial detention
shall be used as a means of last resort in criminal proceedings, with due regard for
 160

the investigation of the alleged offence and for the protection of society and the
victim.” Rule 6.2 promotes the earliest possible use of alternatives to pre-trial
detention.

Discharge can either be absolute or conditional. Read; Section of 38(1) & (3), and
38A(1) of the Penal Code, rule 4(1) under the 3rd Schedule to the Magistrate Courts
Act, and sections 98(b), 326, and 230 of the Criminal Procedure Act.

❖ Diversion from prosecution/out of court settlement

Diversion can be defined as the channelling of prima facie cases from the formal
criminal justice system on certain conditions to extra-judicial programs, at the
discretion of the prosecution.

The number of complaints received by the police and prosecutors would overload
the criminal justice system if they were all prosecuted in the courts. The police,
prosecutors, and courts have an array of options available to them to divert
offenders from prosecution. These are to be found in the penal statutes, and may
include: Absolute or conditional discharge, Verbal sanctions, Arbitrated
settlement, Restitution to the victim, or a compensation order, Community service
order, Victim-offender mediation, Family group conference, restorative
process/justice.

Restorative Justice means any process in which the victim and the offender, and,
where appropriate, any other individuals or community members affected by a
crime, participate together actively in the resolution of matters arising from the
crime, generally with the help of a facilitator. Restorative processes may include
mediation, conciliation, conferencing and sentencing circles. The restorative
outcome means an agreement reached as a result of a restorative process.
Restorative outcomes include responses and programs such as reparation,
restitution and community service, aimed at meeting the individual and collective
needs and responsibilities of the parties and achieving the reintegration of the
victim and the offender.
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❖ Plea bargaining

Comes into play once a case has been lodged, and it does not exist in statutory
form. The underlying idea is to dispose of criminal cases without resorting to trials.
Plea bargaining permits the prosecuting authority and an accused or his/her
lawyer to enter into a plea and sentence agreement. The court may not participate
in the negotiations but is required to approve the plea and sentence, before
making it an order of the court.

❖ Other alternative disposition measures include prerogative actions such as;

Withdrawal of cases, nolle prosequi, habeas corpus, etc.

(b) Non-custodial measures at the trial and sentencing stage

As to the sentencing stage, the Tokyo Rules provide for a range of non-custodial
measures which the judicial authorities may use. Although in doing so, they
should take into consideration; the rehabilitative needs of the offender, the
protection of society and the interests of the victim, who should be consulted
whenever appropriate (Rules 8.1 and 8.2).

According to Rule 8.2 (a) to (m), the sentencing authorities may dispose of cases in
the following ways: verbal sanctions (such as admonition, reprimand and
warning); conditional discharge; status penalties; economic sanctions and
monetary penalties (such as fines and day-fines); confiscation/expropriation order;
restitution to the victim (compensation order); suspended or deferred sentence;
probation and judicial supervision; a community service order; referral to an
attendance centre; house arrest; any other mode of non-institutional treatment; or,
some combination of these measures.

(c) Non-custodial measures at the post-sentencing stage

The use of non-custodial measures is also encouraged at the post-sentencing stage,

and in this respect, Rule 9.1 of the Tokyo Rules provides that the competent
 162

authority shall have at its disposal a wide range of post-sentencing alternatives to

avoid institutionalisation and to assist offenders in their early reintegration into
society. This rule is based on the principle that reducing the length of
imprisonment can reduce the risk of offenders becoming institutionalised and thus
unable to cope with society once they have been released. Consequently, it can be
of advantage to grant offenders early release, while subjecting them, if necessary,
to supervision. Rule 9.4 also promotes the idea of releasing offenders from an
institution to a non-custodial programme at the earliest possible stage.

Rule 9.2 enumerates the following post-sentencing dispositions: i.e. furlough and
half-way houses; work or education release; various forms of parole; remission;
pardon/parole/prerogative of mercy/amnesty – President – Tanzania.

Sanctions requiring supervision are(a)community service, which involves the

performance of a certain number of hours of unpaid work for the benefit of the
community, usually during the offender’s leisure time; (b)house arrest (home
detention), where the offender is required to stay at home for a certain period; the
confinement may be limited to night time (curfew) or and leisure time;
(c)electronic monitoring, where a tag is attached to the person under supervision
who cannot leave a designated area; and (d) open, contract or ambulant treatment
for drug or alcohol dependent offenders.

Sanctions that do not require supervision include: (a) reparation (restitution), where
the offender directly compensates his/her victim by means of either monetary
payment or unpaid services rendered; (b)confiscation of property derived from or
used in the commission of an offence; (c)suspension of driving license; and (d)
fines (penalties).

8.5 Non-Custodial Measures vis-à-vis Custodial Measures

Guiding questions:
Does the system effectively contribute to a reduction of the prison population?
Does it enable the offence-related needs of the offender to be met? Is it cost-
effective? Does it contribute to the reduction of crime in the community? Are
there legal safeguards in place protecting the human rights of the offender?
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Though not frequently used as a penal sanction, custodial sentence (incarceration)

remains a common punishment for most of the crimes committed. While
imprisonment is necessary in many cases involving violent offenders, it does not
constitute a panacea with regard either to crime prevention or to the social
reintegration of offenders. Again, in many countries the prison system faces major
challenges such as overcrowding and outdated facilities, as a result, prisoners find
themselves in deplorable conditions that can have adverse effects on their physical
and mental health, thus impede their educational and vocational training, thereby
affecting their chances of future adjustment to an ordinary life in the community.
The impact of long-term imprisonment on a person’s family and work life is also
considerable.

According to the commentary to the Tokyo Rules, non-custodial measures are of

considerable potential value for offenders, as well as for the community, and can
be an appropriate sanction for a whole range of offences and many types of
offenders, especially those who are not likely to repeat offences, those convicted of
minor crimes and those needing medical, psychiatric or social help. In these cases,
imprisonment cannot be considered an appropriate sanction, since it severs
community ties and hinders reintegration into society and thereby also reduces
offenders’ sense of responsibility and their ability to make their own decisions. On
the other hand, non-custodial measures have the unique characteristic of making
it possible to exercise control over an offender’s behaviour while allowing it to
evolve under natural circumstances.

8.6 Non-Custodial Measures in Tanzania

(i) Administration

In Mainland Tanzania, there are different actors in the implementation of non-

custodial measures. However, the lead agency or institution is the probation and
community services department (under the ministry of home affairs). The
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department was established in July 2008 following the changes in the organisation
structure of the ministry of home affairs. The department is responsible for
managing the implementation of non-custodial sentences across Mainland
Tanzania. For easy functioning, the department (at the Headquarter) is divided
into two main sections, namely; the probation services section and aftercare
services section. Below the Headquarter there are regional and district probation
offices responsible to the director and regional offices respectively. The
department is headed by the director who is assisted by two assistant directors.

The basic functions of the department and the two sections are: to monitor and
supervise probationers; to monitor and supervise the implementation of
community services program; to monitor and supervise parolees as part of
aftercare services; to monitor and supervise offenders under the extramural penal
employment scheme; and to build capacity of local government authorities (LGAs)
in the management and implementation of probation and community services.

(ii) Key Stakeholders to the Implementation of non-custodial court orders in

Tanzania - (MOHA Website, 2012).

(a) Local stakeholders

• The Judiciary
The obligation of the Judiciary in the implementation of non-custodial sentences
does not end up with imposing punishment, but also to supervise community
service committees. The fact that a judge of the High Court, resident magistrate
in-charge and district magistrate in-charge in their respective jurisdictions are
chairing the national, regional and district committees respectively is evidence
that the court has a special role in the implementation of non-custodial sentences
in our country.
 165

• The Prisons
Prisons Department has different obligations in implementing non-custodial
sentences. Section 52 of the Prisons Act, No.34 of 1967 (RE: 2002), gives legal
power to the officer in-charge of the prison to recommend inmates who are
serving sentences not exceeding 3 years to serve under community service
program. The Department also provides members to different community service
committees at national, regional and district levels and receives back offenders
who have violated conditions of the court orders.

• The Police
Police force has a significant role in the implementation of non-custodial
sentences in the country; it provides members to the community service
committees at national, regional and district levels; arrests offenders who have
violated the conditions of the community services orders and provides relevant
information of offenders to probation officers when conducting social
investigations.

• Local government authority

The implementations of community service orders depend largely on the
availability of placement institutions that provide works to offenders. The LGAs
had played an important role in providing placements to offenders for executing
their punishments in its respective institutions such as dispensaries, schools, ward
and village offices, hospitals, city, municipal, district councils, etc. The LGAs also
cooperated with probation officers in the supervision and monitoring of offenders
in their respective residential areas and provides relevant information to Probation
Officers when conducting Social Investigations.
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(b) International/regional stakeholders

• The Kenya probation services

The Tanzania probation and community services department is working closely
with the Kenya probation services department. Kenya has advanced in the field of
community corrections as current statistics show that 50% of the convicted
population is serving under non-custodial programmes. Therefore, there are many
issues which can be learnt and shared between the two countries.

• The Penal Reform International

The Penal Reform International (PRI) is an international non-government
organisation based in the U.K. that works in the field of Penal Reform. The PRI is
occasionally working with the department by assisting in professional capacity
building and to enhance the use of non-custodial sentencing.

(iii) Statistics and implementation of non-custodial measures in Tanzania

In Mainland Tanzania, non-custodial programs (community and probation

services) are currently implemented in 17 regions namely; Arusha, Coast, Dar es
Salaam, Dodoma, Geita, Iringa, Kagera, Kilimanjaro, Mara, Morogoro, Mbeya,
Mtwara, Mwanza, Shinyanga, Singida, Ruvuma and Tanga. However, these regions
are not wholly covered as only 89 over 200 districts are benefiting from the
services.

8.6.1 Common Forms of Non-Custodial Measures in Tanzania

(a) Probation

This is a non-custodial court sanction by which an (either juvenile or adult)

defendant, who has been adjudicated or found guilty of an offence, is diverted
from commitment to a (juvenile or adult) correctional institution and released,
subject to certain conditions imposed by the court and under the supervision of a
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probation officer. Probation in criminal law is a period of supervision over an

offender, ordered by a court instead of serving time in prison.

In some jurisdictions, the term probation only applies to community sentences

(alternatives to incarceration), such as suspended sentences. In others, probation
also includes supervision of those conditionally released from prison on parole.

• The probation orders

Under the Probation of Offender’s Act, Offenders may be sentenced to Probation
in which case the Court may impose a Probation Order on the accused. The
sentenced person is not supposed to serve that term in Prison but is ordered to be
of good behaviour for the whole period he is put under Probation Order.

Probation (with bond or Simpliciter). Read: sections 2, 3, & 4 of the Probation of

Offenders Act, and Section 340 of the Criminal Procedure Code.

• Application
Before the person is ordered to serve under Probation, the Court considers the
character of the accused, mental condition of the offender, the nature of the
offence, antecedents, age, home surroundings, health or any extenuating
circumstances in which the offence was committed. With regards to the stated
factors, the Court may then do the following; Convict the offender and make a
Probation Order; or without proceeding to conviction, make a Probation Order.

An offender on probation is ordered to follow certain conditions set forth by the

court, often under the supervision of a probation officer. During this testing
period, an offender faces the threat of being sent back to prison, if found breaking
the rules.

The Probation Order has effect for a period of not less than one year and not more
than three years from the date of the order.
 168

• Advantages of Probation
As a punishment, it offers the opportunity for rehabilitation and reintegration into
the community without the social and family disruption caused by imprisonment.
This is particularly true of juvenile supervision. Probation is an effective and cost-
effective sanction which allows savings by the correctional administration. In all
countries supervising an offender in the community costs far less than
imprisonment. In some civil law systems Probation has been included in the
criminal legislation as a truly alternative sanction, i.e. a defendant is sentenced to a
probation term. In other civil law countries, a suspended prison sentence with a
condition, including supervision, constitutes the legal framework for probation. In
many civil law countries, a prison sentence of between 18 months and 2 years is
automatically suspended with no conditions in the case of a first conviction. In
some countries, the charge may be suspended to divert a first-time offender from
the whole court process.

Definition of terms:

A suspended sentence is a legal term for a judge's delaying of a defendant's serving

of a sentence after they have been found guilty, to allow the defendant to perform
a period of probation. If the defendant does not break the law during that period
and fulfil conditions of the probation, the judge usually throws out the sentence.

A split sentence means that, while the defendant is ordered to spend mandatory
time in jail, he or she isn’t incarcerated for the entire sentence. Rather, the court
ordinarily suspends part of the sentence and places the defendant on probation for
the remaining time. This has the effect of the defendant serving a relatively short
period of time in jail, often (but not always) between 30 and 90 days with the rest
of his or her sentence spent on probation.

(b) Community service

This is an order of the Court whereby the offender is offered the opportunity of
compensating society for the wrong she or he has done by performing work for the
benefit of the community, instead of going to prison.
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• The Community services court orders

Community Service Order is an order of the court committing the offender to
perform unpaid public work in public institutions for the benefit of the community
for a period specified in the order instead of going to prison. The order applies to
persons who have been convicted for offences punishable by imprisonment for a
term not exceeding three years with or without the option of fine or for a term
exceeding three years but for which the court determines a term of imprisonment
for three years or less with or without the option of fine (Section 3 of the
Community Service Act, No.6 of 2002, Cap. 291).

The public institutions that provide placements for offenders include central
government and local government institutions, community based organisations
and non-governmental organisations performing work of public nature.

• Community service committees

In Mainland Tanzania, there are community service committees at national,
regional and district levels. Members of these committees are drawn from different
institutions within the criminal justice system such as the police, prisons, public
prosecution, Tanganyika law society and the judiciary. The general function of
these committees is to advise the government in their respective areas proper
implementation of community service orders in the country.

• Works of public nature performed by community service offenders

Such works of public nature includes, but not limited to: construction or
maintenance of public roads or roads of access; afforestation works; environmental
conservation and enhancement works; projects for water conservation,
management or distribution and supply; maintenance work in public schools,
hospitals and other public social service amenities; work of any nature of a foster
home or orphanage; general cleaning and related activities; rendering specialist or
 170

professional services in the community and for the benefit of the community; and
other manual works as may be approved from time to time.

(c) Parole
In 1994, Mainland Tanzania introduced the parole system as an additional non-
custodial sentence available under the law. The relevant Act became operative in
1998 through GN. No. 783/1997. A year later the national parole board was
inaugurated. The system was deemed necessary to deal with the plight of long-
term prisoners who deserved an urgent attention for the sake of prison security,
correctional administration and community safety.

• Definition
The term Parole is interpreted differently in different countries. It is a period of
time following release from prison, when the offender is given help to reintegrate
into society. During this time the offender may be supervised by a probation or
parole officer. In a nutshell, parole is the provisional release of a prisoner who
agrees to certain conditions prior to the completion of the maximum sentence
period.

• Application
There are often conditions attached to Parole imposed by a governing body,
usually a Parole Board or Parole Judge. Breaches of any of these conditions can
lead to an immediate recall to prison. If an offender re-offends while on Parole he
may be required to serve the remainder of his existing sentence in prison in
addition to any other sanction imposed by the court. In civil law countries, an
early release from prison can be granted in accordance with certain conditions or
with no conditions, usually by a decision of a correctional magistrate. (Read:the
Prisons Act, Cap.58 (Sections 52 & 72; and the Parole Boards Act, Cap.400).

The parole and extramural penal labour programs in Mainland Tanzania are
currently being undertaken by the prisons department until after necessary
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amendments are done to the Prisons and Parole Boards Acts to mandate probation
officers to supervise parolees and extramural prisoners.

Normally, non-custodial measures are subjected to conditions and restrictions, the

violation of which may in serious cases lead to imprisonment.

8.6.2 Approaches in handling and Treatment of Non-Custodial Offenders

Generally, there are four main approaches employed by the relevant authorities in
handling as well as management of offenders in Mainland Tanzania. These are: -

• Rehabilitation

Rehabilitation is the key component in the management of offender’s behavioural

change. Thus, offenders are assessed by Probation Officers to identify the actual
and special needs for rehabilitation. In daily practice, offenders are given socio-
psychological counselling for behaviour modification, taught social and life skills
and entrepreneurship as means of empowering them to live life free of crimes.
Offenders with special needs (drug addicts, HIV/AIDS, T.B) are referred to
appropriate institutions for treatment.

• Restorative justice
Probation Officers also practice restorative justice by bringing together conflicting
parties for reconciliation (the offender, victim of crime and the community).
Reconciliation helps to restore trust and strengthen relationships among the
parties which in turn facilitate smooth implementation of non-custodial court
orders.

• Supervision
Offenders are closely supervised both at their respective work placements and at
their places of residence. The supervision involves regular visits to enforce the
implementation of the court orders. In addition, the supervision process involves
several stakeholders such as offender’s sureties and relatives, victims of the crime,
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neighbours and respective LGAs to facilitate correction and successful re-

integration.

8.7 International Dimensions (Minimum Standards) on Non-Custodial Measures

According to Rule 1.1, the two fundamental purposes of the Tokyo Rules are to
provide:

“A set of basic principles to promote the use of non-custodial measures”; and

“minimum safeguards for persons subject to alternatives to imprisonment”.

(a) Scope of non-custodial measures (safeguards/restrictions) – principles

• Non-discrimination: are applicable to “all persons subject to prosecution, trial

or the execution of a sentence” (Rule 2.1). Rule 2.2, the Tokyo Rules “shall be
applied without any discrimination on the grounds of race, colour, sex, age,
language, religion, political or opinion, national or social origin, property, birth
or status”.
• Flexibility: Rule 2.3 promotes considerable flexibility in the development and
use of non-custodial measures based on the following four criteria: the nature
and gravity of the offence; the personality and background of the offender; the
protection of society (the prevention of crime); and the avoidance of
unnecessary use of imprisonment.
• Legality: Rule 3.1 thus provides that “the introduction, definition and
application of non-custodial measures shall be prescribed by law”. The
requirement that non-custodial measures must be defined and applied only as
“prescribed by law.
• The requirement of consent: it is essential that the suspect or accused person
consents to the non-custodial measure because, where it is imposed instead of
formal proceedings, consent to it can lead to the renunciation of the legal
safeguards that would exist if the case were proceeded with.
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• The right to review: Rule 3.5 stipulates that “decisions on the imposition of non-
custodial measures shall be subject to review by a judicial or other competent
independent authority, upon application by the offender”. This right of appeal
is an additional safeguard against arbitrary decisions.

(b) Minimal intervention principle

✓ Rule 3.8 prohibits non-custodial measures involving “medical or psychological

experimentation on, or undue risk of physical or mental injury to, the
offender”.
✓ In the implementation of non-custodial measures, the offender’s rights shall
not be restricted further than was authorised by the competent authority that
rendered the original decision” (Rule 3.10). This is a rule based on the principle
of legality: any interference with a person’s rights must be based on law, and no
further restrictions can be imposed without a decision taken by a duly
authorised authority acting in accordance with the law.
✓ In the application of non-custodial measures, the offender’s right to privacy
shall be respected, as shall be the right to privacy of the offender’s family” (Rule
3.11). In this respect the Commentary advises against the use of methods of
surveillance that treat offenders solely as objects of control; further,
surveillance techniques should not be used without the offenders’ knowledge,
and persons other than properly accredited volunteers should not be employed
for the surveillance of offenders.
✓ The right to dignity and the right to respect for the offender’s privacy are also
protected by Rule 3.12, according to which “the offender’s personal records shall
be kept strictly confidential and closed to third parties. Access to such records
shall be limited to persons directly concerned with the disposition of the
offender’s case or to other duly authorised persons.”
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(c) The criteria for resorting to non-custodial measures and the need for
discretion
A second important legal safeguard in the application of non-custodial measures is
that, as stipulated in Rule 3.2, the selection of a non-custodial measure shall be
based on an assessment of established criteria in respect of the nature and gravity
of the offence; the personality and background of the offender; the purposes of
sentencing; and the rights of victims.

(d) Implementation of non-custodial measures

In implementing non-custodial measures, the Tokyo rules lays down the following
standards;

• The supervision of non-custodial measures

As emphasised in Rule 10.1, “the purpose of supervision is to reduce reoffending
and to assist the offender’s integration into society in a way which minimises the
likelihood of a return to crime.”

• The duration of non-custodial measures – (not indeterminacy sentence/measure)

As to the duration of the non-custodial measure, it “shall not exceed the period
established by the competent authority in accordance with the law” (Rule 11.1), but
“provision may be made for early termination of the measure if the offender has
responded favourably to it” (Rule 11.2).

• The conditions attached to non-custodial measures

According to Rule 12.1, whenever the competent authority has to determine the
conditions to be observed by the offender, “it should take into account both the
needs of society and the needs and rights of the offender and the victim”.

• The treatment process

Rule 13.1 of the Tokyo Rules provides the following examples of various schemes
which, “in appropriate cases ... should be developed to meet the needs of offenders
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more effectively”: case-work; group therapy; residential programs; and the

specialised treatment of various categories of offenders.

• Discipline and breach of conditions

Even though the imposition of some non-custodial measures is dependent on the
consent of the offender, most such measures are still sanctions that imply some
restriction of liberty, and offenders may, therefore, fail to observe the conditions
imposed on them. Such “a breach of the conditions to be observed by the offender
may result in a modification or revocation of the non-custodial measure” (Rule
14.1). However, according to the commentary, not all breaches need lead to
modification or revocation, and the supervisor or competent authority can deal
with minor transgressions by less formal means.

8.8 Criticism of Non-Custodial System in Tanzania

To understand why non-custodial sentences are not popular among law enforcers,
two things need to be considered: one has to do with a tendency among judicial
officers to move repeat offenders up the sanction hierarchy; the other is a big gap
between the perceived severities of custodial versus non-custodial penalties. In
brief, the use of non-custodial measures in Tanzania face the following challenges;

• The penal laws do not have a comprehensive list of diversion measures towards
offenders. The most common forms of non-custodial measures are probation,
community service and parole, while non-custodial pre-trial measures are
totally ignored.
• The minimum sentences law applies minimum terms of imprisonment carte
branche,thus preclude considerations being given to probation, conditional
discharge, suspended sentences and entering into Recognisance.
• The Parole Boards Act exclude prisoners who are serving short-term
imprisonment, hence limit the scope of its beneficiary.
 176

• Some of the existing non-custodial measures such as corporal punishment, are

said to be inhuman, degrading and barbaric, thus not in line with Article
13(b)(e) of the Constitution.
• Court-prison mentality: law enforcers (police and prison officers), court
officials, prosecutors and lawyers are not well trained in modern penal law
movement, especially restorative justice. Therefore, there is a need to develop
training curricula for law enforcers, judges, magistrates, probation service staff
and others involved in the administration of alternative sanctions and
measures.
• The large section of the public is not aware of the use of non-custodial
measures, thus this limit their participation in the implementation of
alternative sanctions/measures. Again, members of the public are still with the
perception that non-custodial sentence does not do justice to victims of the
criminal acts, they urge that the system releases convicts who ought to pay
dearly for their wrongful acts.
• Although the Law of the Child Act, 2009 provides for non-custodial sentences
for children, in practice they are not available owing to a significant shortage of
probation officers and social welfare officers.
• Corruption among members of the parole boards, law enforcers and within the
judiciary has eroded the essence of using non-custodial measures as in most
cases these measures are available to offenders who can pay to influence the
decision or have a connection with government officials.
Note:
In a punitive context dominated by risk aversion, we often overlook aims of non-
custodial measures such as rehabilitation and reintegration of offenders. This goes
beyond utilitarian aims to reduce prison overpopulation and recidivism or
incorrigibility. Again, retribution has come to override the legal principles of
proportionality and custody as a last resort. There is now ample evidence
demonstrating that they are not being used to divert individuals from prison. To
the contrary, they are being used to manage risk and against individuals who in
the past would not have been brought into the penal web. That is, contrary to
 177

popular belief they are being used to sanction individuals who should be punished
less rather than more.

Case Laws:

DPP v. Eston Selemani [1994] TLR 9; Abdul Alli Issa v. R. [1989] TLR 16; Leo s/o
Pigangoma v. R. (1967) HCD No. 131; Leshaion s/o Ncosha v. R. (1968) HCD No. 62;
Michael R. Kabongo v. R. [1989] TLR 31; Moshua s/o Mduna v. R. (1968) HCD No.
227; Mukusi & Another v. R. (1972) HCD No. 121; Ochora Ongira v. R. [1983] TLR
74; R. v. Kisiwani Sisal Estate (1970) HCD No. 162 ; R. v. Alli s/o Said (1967) HCD
No. 364; R. v. Mabula Masota Charles (1968) HCD No. 238; R. v. Mwukwa (1972)
HCD No. 32; R. v. Patrice Matata (1967) HCD No. 413; R. v. Muhidin Twalib [1989]
TLR 8; R. v. Jafari Musa (1967) HCD No. 299; R. v. Ngulila Mwakanyemba (1968)
HCD No. 314; R. v. Kaserikali Bin Isabosi (1921—1952) 1 TLR (R) 100; and Selemani
Misuri v. R. 1973 L.R.T No. 5.

References

Commentary on the United Nations Standard Minimum Rules for Non-Custodial

Measures (the Tokyo Rules), Geneva.

Frank, S. (2010) The Applicability of Parole System in Tanzania: Challenges and Way
Forward. Advanced paper submitted in partial fulfilment of the requirement for
Masters of laws (LL.M.) Degree of the University of Dar es Salaam.

Hogg, A. (2012) The Privatisation of Non-Custodial Measures: An uneasy Balance

between Legitimacy and immediacy. Oñati Socio-legal Series, Vol. 2(4):144-174.

Marcus, D., Ed. (2004) Alternatives to Custodial Sentencing: A Manual for the
Implementation of Community Service Orders in the O.E.C.S. CDARI, Castries, Saint
Lucia.

OHCHR & IBA (2002) Human Rights in the Administration of Justice: A Manual on
Human Rights for Judges, Prosecutors and Lawyers. Geneva.

Robins, S. (2009) Improving Africa’s Prisons Prison policy in Sierra Leone, Tanzania
and Zambia. ISS Policy Brief Nr 09, September 2009.

Sarkin, J. (ed) (2008) Human Rights in African Prisons. HSRC Press, Cape Town.

UNDOC (2006) Custodial and Non-Custodial Measures: Alternatives to

Incarceration (Criminal Justice Assessment Toolkit), New York.
 178

Module 9: New Forms & Dimensions of Crimes:

Organised Crimes (Enterprise Crimes)
Picture: Hon. Paul Makonda (RC for DSM) handing over names of drug kingpins and
dealers to Mr. Rogers Sianga (Commissioner General Drug Control and Enforcement
Authority)

9.1 Introduction: Definition of Terms

The term ‘organised crime’ is subject to varying interpretations depending on
respective jurisdiction.93 According to O'Brien, M. (2008:115), definitions tend to be
derived either from the legal system and criminal law or from perceptions of the
characteristics of the crime. The latter may be the type of activity (drug trafficking,
internet fraud, or car-jacking rings, for example) and some countries, such as the
Netherlands, Poland and Slovenia, derive their definitions in this way.
Alternatively, the definition may be derived from the crime group and its
structure. Nonetheless, several attempts have been made to define the term
organised crime and organized criminal group as follow: -

(a) Organised crimes

Section 2 of the Economic and Organised Crime Control Act, 1984 (in Tanzania)
defines organised crime as any offence or non-criminal culpable conduct which is
committed in combination or from whose nature, a presumption may be raised

93
This phrase emerged first in the United States in the 1920s.
 179

that its commission is evidence of the existence of a criminal racket in respect of

Figure 16.1 Hierarchical Structure of a Typical Organized Crime Family
acts connected with, related to or capable of producing the offence in question.

Figure: Hierarchical structure of a typical organized crime family

BOSS

Counselor

Underboss

Lieutenant lieutenant lieutenant Lieutenant

Soldiers Soldiers
Soldiers
Soldiers

Associates

Source: US President's Commission on Organized Crime, 1986, p. 469.

Other definitions of organised crime;

• Organized crime refers to the groups of individuals who organize

themselves in a hierarchical structure, usually for the purpose of engaging
in the business of crime. These groups are set up in such a way that even
when police arrest one or two members, the organisation continues to
operate.
• A continuing criminal conspiracy, having an organised structure, fed by fear
and corruption and motivated by greed (FBI Website).
• The ongoing activities of those collectively engaged in production, supply
and financing for illegal markets in goods and services (McLaughlin, E. &
Muncie, J., 2001:198 & 199)
 180

• It refers to groups of people who conspire together, generally, to make a

business out of crime (although the attainment of power and
companionship also plays a role).
• Crimes committed for a pursuit of profit and power or undue economic
benefit.
• Crimes that involves more than three criminals working within structures
as complex as those of a large corporation, subject to laws more tightly
enforced than those of legitimate government.
Watch: The Godfather(film/movie), the Sopranos (TV shows), and “Fat Tony” from
the Simpsons (Cartoon).

(b) Organized criminal group/Criminal Racket

The UN Convention against Transnational Organized Crime (2000) under Article
2(a) explain ‘organised criminal group’ as a structured group of three or more
persons, existing for a period of time and acting in concert with the aim of
committing one or more serious crimes or offences established in accordance with
this Convention, in order to obtain, directly or indirectly, a financial or other
material benefit. Some common organized crime groups include; Motorcycle
gangs, Drug-smuggling operations, Prison gangs, Street gangs, and White-
supremacist organisations.

Organised crime groups are usually hierarchical, in other words, they have leaders
as well as low-level operatives, which means that when you arrest one member of
the organisation, the organisation can replace that person and continue its
“business” of crime. This structure is what makes organised crime so difficult to
defeat.

Other definitions of organised criminal group

• Group activities of three or more persons with hierarchical links or personal

relationships which enable their leaders to earn profits or to control territories
or markets, internal or foreign, by means of violence, intimidation or
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corruption, both in furthering criminal activity and infiltrating the legitimate

economy.

Criminal activities include (white colour and blue colour v/s property crimes and
violent crimes):94

Narcotics trafficking, gambling, cigarette smuggling, extortion, drug traffickers,

fraud rings, illegal gambling, tobacco smuggling, kidnapping, money laundering,
infiltration of legitimate businesses, selling narcotic, marketing counterfeit and
pirated products, and loan sharking (is the act of illegally loaning money at
extremely high-interest rates), murder, rape, assault, theft, embezzlement, fraud,
burglary, racketeering, pornography, prostitution, hijacking and arson.

Added to this variety are ‘enabling activities’, i.e. corruption of officials; money-
laundering; violence and intimidation. Organised criminals are dependent upon
and involved with personnel in the licit economic and political spheres, such as
customs officials, police officers, bankers, politicians, business people and others.

9.2 Features of Organised Crimes

Indicators of organised crimes may be divided into two major categorises; i.e.
mandatory and optional.

(a) Mandatory indicators

These are ingredients that must be established by the prosecution to prove that a
person or a group of persons actually engage in organised crimes, namely;

94
White-collar crime was first coined by Sutherland in 1949 who defined it as the kind of crime
committed by ‘a person of high status in the course of his occupation, e.g. tax fraud, false claims
and accounting (Sandra Walklate, Criminology: The Basics, 119:2005). While Blue-colour crime is
the form of crime committed by someone with low status, whose job involves manual labour. This
kind of definitions, by implication, focuses attention on the status and respectability of the offender
as much as the illegality of the offence. On the other hand, law enforcement agencies categorises
crimes into two groups,i.e.,violent crimes (murder, rape, assault, etc.), and property crimes (theft,
embezzlement, fraud, burglary, arson, etc.).
 182

• The collaboration of three or more people/criminal racket (structured group

like Sicilian Mafia,95Russian Mafia, Japanese Yakuza, Al Qaeda, La Costa Nastra,
Three Angels, etc.).
• For a prolonged or indefinite period of time.
• Committing serious criminal offences.
• With the object of pursuing profit and power.

(b) Optional indicators

These are factors that may be established in the alternative to cement the
prosecution’s position. Such criminal organisation may: -

• Have a specific tasks or role for each member.

• Use some of internal discipline and control.
• Use violence or other means suitable for intimidation.
• Exert influence on politics, the media, law enforcers or economy by corruption
or other means.
• Organised in commercial or business-like structures.

Other aspects;

• Involves intricate and continuing criminal conspiracies.

• Operates beyond the lifetime of individual members.
• It is structured to survive changes in leadership.
• Members are subjected to immense or strict scrutiny and required to prove
their worth and loyalty.

95
Mafia/Sicilian Mob: Historically, Italy was frequently the subject of invasions by outsiders. Secret
societies formed among Italians to defend families and communities against the outsiders. These
societies eventually became known as the Mafia. They turned into major organized crime entities
in the early 20thcentury. Around the same time, a massive number of Italians, including mafiosa,
immigrated to the United States (where it’s known as La Cosa Nostra, i.e. “our thing”) and other
parts of the world.
 183

• Organized crime groups are traditionally set up along ethnic, tribal or racial
lines, in large part, because members of the same ethnic group are more likely
to know and trust one another. For example, infiltrating a Vietnamese gang can
be almost impossible for law enforcement because of language barrier and
because members of the Vietnamese community tend to know everyone in
their neighbourhood.
Others includes, Russian organized crime/Eurasian organized crime (it includes
crime groups from Ukraine, Armenia, and other parts of the former Soviet Union);
Chinese Triad groups; Chinese Tongs; the Mexican Mafia, or La Eme, La Nuestra
Familia (our family); Black Guerrilla Family, Nazi Lowriders; Nigerian Organised
Crime, etc.

• Involves high secrecy, willingness to commit any act for the group and intent to
protect the group, i.e. follow the strict code of silence.
• Have a code of ethics and conduct governed by explicit rules.

UN Draft Framework Convention against Organised Crimes, 1997

The Naples Political Declaration on Organised Transnational Crimes, 1994

9.3 Types of Organised Crimes

(a) National/municipal/intra-national organised crimes

These are organised criminal groups within national borders.

(b) Transnational/international organised crimes

It involves criminal groups that engage in crimes across nations, i.e. operating
cross-border criminal activities.
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9.4 Forms of Organised Criminal Organisation

(a) Crime syndicate/cartel/Mafia groups96

Refers to a gang of criminals engaged in the business of providing some forbidden
services to the customers who are in need and are willing to pay handsomely for
that services. E.g., Colombia, Mexico, Chile and Jamaican cocaine cartel (which
supply narcotic drugs, engage in illegal prostitution, etc.).

(b) Criminal racket

They are criminal groups which engage in systematic extortion or fraud under
threat usually of personal injury or property, e.g. gambling racket, protection
racket (demand money in exchange for protection against crimes).

(c) Political graft

Commonly in politics, where politicians form or fund or engage notorious
offenders for political gains i.e. threatening voters or buying votes or exerting
influence on voters or influencing political appointments, e.g. Tammany Society in
the US (a corrupt political machine consisting mostly of ethnic Irishmen).

(d) Criminal ring/gang

These are criminal groups, local and sometimes regional in nature, which engages
in violent crimes such as armed robbery, burglary, rape and contract killings.

(e) Terrorist group

These are criminal organisations which commit crimes for ideological reasons, e.g.
Al Qaeda, Al Shabaab, etc.

96
Sophisticated organised criminal groups
 185

9.5 Major Patterns of Organised Crimes

Organized crime manifests in many forms such as: -

i) Illicit drug trafficking

The UN Office on Drug and Crime (UNODC) define drug trafficking as a global
(national or regional) illicit trade involving the cultivation, manufacture,
distribution and sale of substances which are subject to drug prohibition laws.

Article 1 and 3 of UN Convention against Illicit Traffic in Narcotic Drugs and

Psychotropic Substances, 1988.

Section 2 the Drugs and Prevention of Illicit Traffic in Drugs Act, 1996, Cap 95
(repealed and replaced in 2015)97 refers to the term “drug” as narcotic drugs and
psychotropic substances. It goes further to explain illicit traffic in narcotic and
psychotropic substance as an illegal act which involves cultivation, production,
manufacture, possession, sale, purchase, transportation, warehousing,
concealment, use or consumption, import or export into/from Tanzania or
transhipment, financing, abetting, letting out premises or harbouring persons
dealing in narcotic drugs or psychotropic substances.

Section 12 and 27 of Cap. 95, and section 148(5)(iii) of the Criminal Procedure Act
(Cap. 20, as amended by Act, No. 2 of 2007) list narcotic drugs or psychotropic
substances as opium poppy, coca plants, coca leaves, cannabis, heroin, cocaine,
mandrax, khat, mirungi, and Indian hemp. (**See the 1st schedule to Cap. 95 for a
comprehensive list).
ii) People/alien/immigrant smuggling
In Tanzania, there is no clear definition of alien smuggling. However, there are
several provisions which prohibit certain categories of people to enter Tanzania,
and it bars alien to enter Tanzania without a passport, permit or pass [See: sections

97
See, section 2 of the Drug Control and Enforcement Act, 2015 (Cap. 95); and the Drug
Control and Enforcement (General) Regulations, GN. 173/2016.
 186

10-15 of the Immigration Act (Cap. 45) mention instances which amount to
smuggling]. Implicitly, one may say section 15 (supra) provides for immigrant
smuggling.

Internationally, Article 3(a) of the Protocol against the Smuggling of Migrants by

Land, Sea and Air (2000) define smuggling of migrants as the procurement, to
obtain, directly or indirectly, a financial or other material benefit, of the illegal
entry of a person into a State Party of which the person is not a national or a
permanent resident.

Illegal entry means: -

• Crossing borders without complying with the necessary requirements for legal
entry into the receiving state.
• Crossing borders by using fraudulent/forged/fake/counterfeit travel or identity
documents (permit, passport, pass).
• Clandestine/secret entry into the receiving state.
iii) Money laundering
Section 71(3)(a)(b) of the Proceeds of Crime Act (1991) provides that the offence of
money laundering is committed where a person receives, possesses, conceals,
disposes of, brings into or removes from the United Republic, any money or other
property which is the proceeds of crime, while he knows or ought to know or to
have known that the money or other property is or was derived or realised, directly
or indirectly, from some form of unlawful activity.

The above position has been refined (though not repealed) by section 3 of Anti-
Money Laundering Act (2006) which define money laundering as an engagement of
a person(s), direct or indirectly in conversion, transfer, concealment, disguising,
use or acquisition of money or property known to be of illicit origin and in which
such engagement intends to avoid legal consequences of such action.
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On the other hand, the INTERPOL conceptualise money laundering as any act or
attempted act to conceal or disguise the identity of illegally obtained proceeds (of
crime) so that they appear to have originated from the legitimate source. The
laundered money or property may be deposited in the offshore bank (especially
Swiss banks), structured thus deposited in several accounts, transferring cash to
shell companies and trust, payment of black salaries and sometimes purchasing
real estate with illegal money.

However, the definition of money laundering has been expanded or widened

(though not universally accepted) to include legally obtained money or property
(legal proceeds) to support illicit or illegal dealings such as terrorism or crime. It
should be borne in mind that money laundering is a derivative offence defined
within predicate offences such as drug trafficking, terrorism, arms trafficking,
immigrant smuggling, sexual exploitation, human trafficking, corrupt practices,
human organ trafficking, poaching, tax evasion, illegal fishing, environmental
crimes, etc.

Predicate offence means any offence as a result of which proceeds have been
generated that may become the subject of money laundering.

iv) Financial fraud/white-collar crimes

Financial crimes cover a wide range of criminal offences committed by
professionals which have a major impact on banking and financial sectors.
According to Edwin Sutherland (1949, White Collar Crime), this is a crime
committed by a respected person and high social status in the course of his
occupation. This may be exemplified by cheque fraud, credit card fraud, mortgage
fraud, medical fraud, corporate fraud, securities fraud (insider trading/dealing),
bank fraud, payment (point of sale) fraud, health care fraud), scams or confidence
tricks, tax evasion, airport scam, odometer fraud, pyramid, forgery, land fraud,
price fixing, bankruptcy fraud, hoarding of money and commodities, speculative
business, computer fraud, lottery fraud, copyright infringement, Nigerian letters
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(West African Investment scams), Ponzi, bribery, embezzlement, identity theft,

racketeering, larceny, currency schemes, kickbacks, blackmail, money laundering,
and forgery and counterfeiting money and consumer goods, etc.

In short, financial fraud/while-colour crime is a form of frauds committed by

business and government professionals. According to FBI, they tend to destroy
companies, impoverish families by wiping out their life savings, or cost investors
billions of monies.

The case of B.L. Madoff, and Enron’s case in the US; EPA & Tegeta ESCROW
Scandals in Tanzania.
The First Schedule (Economic offences) to the Economic and Organised Crime
Control Act, Cap. 200.
The Bank of Tanzania Act, 2006
Chapters XIX and XXXIII of the Penal Code, Cap. 16.
The Banking and Financial Institutions Act, 2006.

v) Counterfeit currency
Chapter XXXVIII of the Penal Code (Cap. 16), especially section 353(see also
sections 348 and 352A) does not define ‘counterfeit currency’ but ‘counterfeit coin’
which entails coin not genuine but resembling or apparently intended to resemble
or pass for genuine coin; and includes genuine coin prepared or altered so as to
pass for coin of a higher denomination. Alternatively, counterfeiting currency is a
form of financial fraud or forgery that involves the production of currencies
(banknotes or coins) without being authorised by the central bank of a respective
country. The counterfeited money resembles official currency and may be
confused for genuine currency.

The International Convention for the Suppression of Counterfeiting Currency

(1929)
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vi) Illegal prostitution/sex trafficking/sexual slavery

This is a form or type of human trafficking which involves the recruitment,
transportation, transfer, harbour or receipt of persons by coercive or abusive
means for sexual exploitation. This may be achieved by;

(a) Use of force: Involves kidnapping young girls and women, thus confining them
in secretly run brothels or forcing them to work in casinos, night clubs, streets
or paramilitary/insurgent camps.
(b) Deceit: women/girls are smuggled into a foreign country or lured to move into
big cities for a promise of good life and better jobs. Afterwards, traffickers
confiscate their travel documents and sell them in brothels or force them into
prostitution/sex workers.
• Illegal prostitution covers a wide range of sexual-related offences, such as
child prostitution, child pornography, child sex tourism, etc.

Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography (2002); Convention for the
Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of
Others (1949/1951); Protocol To Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime (2000); Sections 3 and 4(1)(a)-
(g) of the Anti-Trafficking in Persons Act (2008); and Sections 138B(1)(a)-(f),
139(1)(a)-(f) and 143(1)(2) of the Penal Code (Cap. 16).

vii) Contract killings/assassination

For career criminal groups (hit men/snipers), habitually get engaged by

individuals, companies or sometimes state agencies to commit murder out of
personal feud or vengeance for a considerable amount of money. This kind of
engagement is known as a contract killing. In another way, a contract killing is a
form of murder (out of illegal agreement) in which one party hires another party
to kill or assassinate another person or group of people in exchange for money.

The gang ‘Murder Inc., (US) committed hundreds of murders in the 1920s – 1940s
on behalf of the national crime syndicate.
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viii) Intellectual property crimes/theft

It is a crime committed by organised groups working secretly or undercover which

involve unlocking technologies and thus manufacture goods or offer services in
violation of copyrights, patents, trade secrets, trade and service marks. FBI
describes intellectual property crime as a form of theft which robs peoples’ ideas,
inventions, and creative expressions.

Briefly, this is a crime which involves counterfeiting and pirating of goods such as
digital media (software and games), fashion wears, medicine, electrical items,
automotive parts, writings, movies, music, and etc.
Sections 3-6, and 10 (forged Trade Marks) of the Merchandise Marks Act, Cap. 85.
Sections 367, and 368 of the Penal Code, Cap. 16.
The Copyright and Neighbouring Rights Act, 1999
The Patent Act, 1987
The Trade and Service Marks Act, 1986

The Berne convention, Brussels Convention, Madrid Agreement (and protocol),

Nairobi Treaty, Paris Convention, Rome Convention, Lisbon Agreement, Locarno
agreement, Nice agreement, Strasbourg Agreement, Maputo agreement and etc.
(**Please, visit the WIPO website for a comprehensive list).

ix) Maritime piracy

The term piracy is defined under Article 101(a)(b) of the UN Convention on the
Law of the Sea (1982) as; first, any illegal acts of violence, detention or depredation
committed for private ends by the crew or the passengers of a private ship or a
private aircraft against another ship or aircraft, or against persons or property on
board such ship or aircraft in high seas; or against a ship, aircraft, persons or
property in a place outside the jurisdiction of any State. Second, any act of
voluntary participation in the operation of a ship or of an aircraft with knowledge
of facts making it a pirate ship or aircraft.
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The above position is reiterated under sections 6 and 66 of the Penal Code (Cap.
16) as amended by section 19 of the Written Laws (Miscellaneous Amendments)
Act, No. 2 of 2010. A vivid example of organized pirate group is Al Shabaab which
attack vessels in the Indian Ocean (especially, the Somali Basin and the Gulf of
Aden).

x) Trafficking in Persons/human trafficking/modern-day slavery

The Penal Code (Cap. 16) under section 139A(1)(a) define trafficking of a person as
an act of buying, selling or bartering of any person for money or for any other
consideration. The specific law on human trafficking in Tanzania is the Anti-
Trafficking in Persons Act (2008) which under section 4(1)(a)-(g)list instances or
situations in which a person/s commit ‘acts of trafficking in persons’. A
comprehensive definition is adopted by Article 3(a)-(c) of the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children
(2000)which define trafficking in persons as the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the threat or use of force or
other forms of coercion, of abduction, of fraud, of deception, of the abuse of power
or of a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another person, for
the purpose of exploitation. [See also section 139A(1)(a)(b) of Cap. 16].

Article 3 provides further that consent of a trafficked person/s is irrelevant to the

intended exploitation where force or fraudulent means have been used to convince
the victim. Besides, recruitment, transportation, transfer, harbouring or receipt of
a child for the purpose of exploitation amount to trafficking in persons even if it
does not involve forceful or fraudulent means.

The above definition covers three (3) major elements;

(a) The act

It involves recruitment, transportation, transfer, harbouring or receipt of a
trafficked person/s.
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(b) The means

Refers to ways/methods traffickers use to get their victim i.e. threat, use of force,
coercion, abduction, fraud, deception, abuse of power or of a position of
vulnerability, giving or receiving of payments or benefits to achieve the consent of
a person having control over another person.

(c) The purpose of trafficking

The end result of trafficking in persons is to exploit them i.e. exploitation of the
prostitution of others or other forms of sexual exploitation, forced labour or
services, slavery or practices similar to slavery, servitude or the removal of organs.

Human trafficking v/s migrant smuggling

• Migrant smuggling involves the consent of illegal immigrant, while a victim of

human trafficking may have never consented, or their consent has been
vitiated due to the use of force, abusive action or deceit.
• Exploitation of smuggled immigrant ends with the migrant’s arrival at their
destination, whereas human trafficking involves indefinite exploitation of the
victim.
• Migrant smuggling is always transnational, while human trafficking may either
be a national or transnational venture.
• In migrant smuggling, profit is derived from assisting illegal entry or stay of a
person in another country, while in human trafficking, profit is derived daily
exploitation of a trafficked person(s).

xi) Trafficking in human organs

At an international level, there are several instruments which endeavour to explain
trafficking in human organs.

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially

Women and Children (2000) under Article 3(a) defines human trafficking which
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essentially envisages trading in human organs also. The said provision provides,
inter alia, that trafficking for organs occurs where a person recruits, transport,
transfers, harbours or receive a person using threats, force, coercion, abduction,
fraud, deception, or abuse of authority or a position of vulnerability for the
purpose of removing that person organ(s). The above position is reiterated under
Section 4(1)(g)(i) of the Anti-Trafficking in Persons Act (2008).

Unfortunately, the above definition is not wider enough to cover all circumstances
within which organ trafficking occurs. Technically, the offence of organ trafficking
may be committed in one or in combination of the following ways;

• Traffickers force or deceive the victims into giving up organs.

• Victims are treated for an ailment, thereupon their organs are removed
without the victim’s knowledge or consent.
• Victims give up their organs, but traffickers fail to pay them or pay less than
the agreed amount.
In most cases, victims (donors) of organ trafficking are migrant workers, destitute
(homeless persons), illiterate persons, children and women. In short, this is an
illegal or illicit trade involving stealing and selling of human organs (such as
kidney, liver, lung, heart) for transplantation at the black market. It is an offence
which involves recruiter, transporter, buyers and staff of the hospital/medical
centre/organ banks/medical professionals. Some scholars argue that human organ
trafficking is mainly trading in kidneys because removal of virtually all other
organs requires the victim to be killed which is very rare. Further, it is a removal of
organs rather than human tissues such as blood and corneas. Basically, the offence
of trafficking in human organs has two dimensions; first, trafficking in organs,
tissues and cell; and secondly trafficking in human beings for the purpose of the
removal of organs.
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• Article 3(1)(b) of the Optional Protocol on the sale of Children, Child

Prostitution, Child Pornography (2000) prohibit the sale of children for the
purpose of transferring their organs for profit.
• Guiding principle 5 of the W.H.O – The Guiding Principles on Human Organ
Transplantation (1991) provides that commercialisation of human organs is a
violation of human rights and dignity.
• Article 22 of Additional Protocol to the European Convention on Human
Rights and Biomedicine Concerning Transplantation of Organs and Tissues of
Human origin (2002) prohibits organ and tissues trafficking deriving a financial
gain or comparative advantage from the human body and its parts.

xii) Corruption (and embezzlement)

The Prevention and Combating of Corruption Act (2007, Cap. 329) like many other
statutes do not have a straight definition of corruption. However, section 15-34,
and 28(1) of the said Act has enumerated circumstances (or ‘offences’) which
constitute an act of corruption. In contrast, the Black’s Law Dictionary (8 th Ed.,
1999) define corruption as depravity, perversion, or taint, impairment of integrity,
virtue or moral principles especially impairment of a public official’s duties by
bribery, or the act of doing something with intent to give some advantage
inconsistent with official duty and rights of others; fiduciary or an official’s use of
station or office to procure some benefit either personally or for someone else,
contrary to the rights of others. From the above approach, one may conclude that
corruption is an act or omission intending to obtain unfair advantage and the
abrogating of the rightful person’s entitlement.(See, Dr Longopa: 2008). Dr Hosea
(Ex-PCCB chief) divides corruption into three (3) major classes;

• Petty corruption (small scale): a form of corruption used in all social delivery
services; e.g. bribery, kickbacks, favouritism/Cronyism/Nepotism and etc.
• Grand corruption (medium scale): a form of corruption found in big
government contracts such as construction industry, tendering and
procurement.
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• Psychotic/state capture corruption (large scale): a form of corruption among

top officials of the government which tend to suffocate or mortgage the
national resources and turn them into personal foreign accounts, e.g. Mobutu,
Abacha, Doe, etc.
UNODC (2005) Compendium of International Legal Instruments on Corruption,
2nd Ed, New York. Read; the UN Convention against Corruption (UNCAC), 2003;
the AU Convention on Preventing and Combating Corruption, 2003; and the SADC
Protocol on Corruption, Blantyre, 2001.

xiii) Wildlife and forest crimes/trafficking in wildlife/environmental crimes

Referred to as taking, trading (supplying, selling, trafficking), importing, exporting,
processing, possessing, obtaining and consumption of wild flora and fauna in
contravention of national or international law; e.g. poaching, illegal pollution,
illegal fishing, etc. In other words, this is illegal (or illicit) trading (or dealing) in
wildlife (or biodiversity). It is a wider offence which covers even environmental
pollution.

Section 188 of the Environmental Management Act, 2004; Rule 14 (First Schedule)
of the Economic and Organised Crime Control Act, Cap. 200; the Penal Code (Cap.
16); Wildlife Conservation Act, 2009; Fisheries Act, Cap. 279; Marine Parks and
Reserves Act, Cap. 146; Water Resources Management Act, 2009; Wildlife Policy,
2007; Environmental policy, 1997; Convention on International Trade in
Endangered Species of Flora and Fauna, 1973; Convention on Biological Diversity,
1992; Kyoto and Cartagena Protocol respectively; Convention on the Protection of
the Environment through Criminal Law, 1998 (Council of Europe); and Convention
Concerning the Protection of the World Cultural and Natural Heritage, 1972.

xiv) Cybercrimes
The INTERPOL refer to cybercrime as any criminal activity involving computers
and networks i.e. criminal trespass into remote systems. It includes attacks against
computer data and systems, identity theft, internet auction fraud, deployment of
viruses, botnets, e-mail scams (phishing) internet terrorism, online drug sell,
online gambling, etc. Tanzania enacted the Cybercrimes Act in 2015 (Act No. 14 of
2015).
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Forms of cybercrimes:

• Cyberstalking: a threat to assault by using e-mails, E-phones, E-video calls, etc.

• Cyber contraband: transfer of illegal items through the internet, e.g. defaming
documents or photos
• Cyberterrorism: politically motivated terror or violence against citizens via
computer technology.
• Cyber laundering: electronic transfer of illegally obtained money
• Cyber theft: using computers to steal (e.g. espionage/spying/stealing secrets,
plagiarism, hacking, computer-based fraud, identity theft, etc., using spyware).
• Cyber vandalism: destroying or damaging other computer’s data rather than
stealing them or misusing them. It involves sending viruses, malware, etc.
• Cybertrespass: accessing a computer or network resources without permission
from the owner.
• Advertising or soliciting illegal prostitution or child pornography through the
internet, e.g., the ‘Utamu’ (blog) scandal.

xv) Pharmaceutical crime

This is a crime which involves manufacture, trade and, or distribution of
counterfeit, stolen and illicit medicines and, or medical devices. It covers also
trading in medicines with falsified documents or without a licence, e.g. supply of
fake or expired drugs/medicines or medical equipment.

Sections 28 and 29 of The Pharmaceutical and Poisons Act, Cap. 219; Sections 182
and 183 of the Penal Code, Cap. 16; and the Pharmacy Act, Cap. 311 (2002).
• There is no specific international legal instrument on Pharmaceutical crime.

xvi) Terrorism
Section 4(2)-(4) of the Prevention of Terrorism Act (2002) define terrorism to
include, inter alia, violent acts which tend to damage, intimidate the population,
kidnap individuals, disturb services. Understandably, one may refer to terrorism as
 197

any violent act/s which intends to create fear (terror) perpetuated for ideological
reasons and deliberately target or disregard civilians or non-combatants. E.g.,
Political terrorism (maji maji and mau mau rebels), Social revolutionary terrorism,
Nationalist terrorism (ANC during Boer regime in South Africa or PLO in
Palestine), Religious extremist terrorism (Boko haram, Al Qaeda, Al Shabaab, etc.),
State-sponsored terrorism (Taliban against the Soviet Union, Janjaweed in Sudan),
Criminal terrorism, Right-wing terrorism, Left-wing terrorism and etc.

Convention against Taking of hostages, 1979; Convention for Suppression of

Terrorist Bombings, 1997; Convention for the Suppression of the Financing of
Terrorism, 1999; and Convention for the Suppression of Acts of Nuclear Terrorism,
2005.

xvii) Arms trafficking

This is an illegal smuggling or selling of weapons or ammunition (without a licence
or in violation of a licence) at a black market.

Arms and Ammunition Act, Cap. 223; Armaments Control Act, Cap. 246;
Explosives Act, Cap. 45; O.A.S Convention on Illicit Arms Trafficking, 1997;
Bamako on Illicit Proliferation, Circulation and trafficking of Small Arms and Light
Weapons, 2000; The Protocol against the Illicit manufacturing of and Trafficking
of Firearms, their Parts, Components and Ammunition, UNGA (2001); Protocol on
the Control of Firearms, Ammunition and other Related Materials in the SADC
Region, 2004; and Nairobi Declaration on Proliferation of Illicit Arms (Great Lake
Region and Horn of Africa), 2000.

9.6 Causes of Organised Crimes

The general theories of crimes causation such as classical, biological, conflict,

sociological and integrated theories (see, Module 1).

Organised crime may be a product of;

• Ethnic succession theory: each ethnic group is faced with prejudicial and
discriminatory attitudes that deny them legitimate means to success, therefore
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organized crime affords those who commit it the rewards for relatively little
risk.
• Failing state theory.
• Poverty (strain theory).
• Seek for Power and Influence.
• Religious beliefs.
• Family background.
• Rational choice.
• Social disorganisation.
• Labelling theory.

9.7 Impacts of Organised Crimes

Show specific impact/s of crimes such as;

• Bring drugs into cities.

• Rises the level of violence.
• Exploit human mobility to smuggle migrants.
• Undermine financial systems through money laundering.
• Insecurity.
• Death (due to killings, drug abuse, supply and use of fake medicines): every
year, countless individuals lose their lives at the hand of criminals involved in
organized crime, succumbing to drug-related health problems or injuries
inflicted by firearms, or losing their lives because of the unscrupulous methods
and motives of human traffickers and smugglers of migrants.
• Decay of public morals and spread of diseases.
• Illegal immigration.
• Manipulate and monopolise stock exchange: Transnational organized crime
can permeate government agencies and institutions, fuelling corruption,
infiltrating business and politics, and hindering economic and social
 199

development. And it is undermining governance and democracy by

empowering those who operate outside the law.
• Sexual harassment and abuse of women (e.g. child pornography).
• Illegal enrichment (according to FBI, the global organised criminals reap unfair
profits of around one (1) Trillion US dollars per year).
• The vast sums of money involved can compromise legitimate economies and
directly impact public processes by 'buying' elections through corruption.
• Extinction of flora and fauna (biodiversity), etc., (field of green criminology).

Organised crime represents not a pathological activity in a separate shadow

economy but has widespread connections to legal society. This recognition has led to
fears of destabilisation of economic and financial systems (through money-
laundering), for example, and destabilisation of democracy in countries with ‘weak’
democratic systems (through corruption). These fears, in addition to the social harm
caused by activities such as human trafficking, and, more recently, organised crime
connections to insurgent groups (O'Brien, M., 2008:115-118 &Wright, 2006).

9.8 Fighting Organized Crime at National and International level

(a) At a National level

Ways to fight organised crimes may involve;
• Use of electronic surveillance (e.g. CCTV) to combat human smuggling and
transnational human, drug and arms trafficking.
• Criminalisation of organised crimes.
• To review and improve legislation and control and regulatory policies at
national level.
• Asset seizure and confiscation (if illegally enriched): To trace, freeze, seize and
confiscate the proceeds of crime or criminal assets.98
• Setting up wiretaps.99

98
The government can do so in the following two circumstances: (1) When the assets are proceeds
of criminal conduct, for example, law enforcement can seize cash made from a drug deal or a car
purchased with cash from a drug deal; and (2) When the assets are an instrumentality of a crime,
i.e. the assets are an instrument used during the commission of the crime.
 200

• To create task forces to overcome jurisdictional boundaries.100

• Effective law enforcement and adopt special means of investigation (to
strengthen the investigation of organised crime).
• To strengthen cooperation between law enforcement and judicial authorities
• Use of undercover agents or disguised police or informants.101
• Creation of witness protection unit/programme and law.
• Controlled delivery of drugs and destruction.
• To run community awareness programmes (through mass media).
• To strengthen partnerships between the criminal justice system and civil
society.
• To strengthen the collection and analysis of data on organised crime.
• Creation of fraud control unit.
• Proving conspiracy.102

(b) At an International/Regional level:

• Ratification and domestication of international legal instruments and

standards.
• International cooperation (pursuit of fugitive offenders and extradition).
• Involvement of the UN Office on Drug and crimes.
• Use of INTERPOL and sharing of intelligence.

99
A wiretap is the tapping of a telephone or other device to get information secretly; it is considered
the most intrusive type of search.
100
A task force is a group of police officers from different agencies who join to target a particular
type of crime. Task forces allow participating officer to share intelligence with the other officers
from different agencies. Also, the task force’s members develop specialised investigative skills and
knowledge for the type of crime they’re focusing on.
101
To go undercover, a police officer pretends to be a criminal and seeks to obtain evidence from the
organisation without the organisation knowing it is being investigated.
102
Conspiracy is an agreement between two or more people to commit a crime. In criminal law,
conspiracy to commit a crime is a crime itself.
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Question
Do you subscribe to the views that [the] act of pooling ‘house-girls’ from upcountry
into big cities in Tanzania, somehow, is a disguised form of human trafficking? If
your response is ‘yes’ or ‘No’, what should be the police’s approach to detecting
and combating children trafficking in Tanzania?

Useful Link:

❖ UNODC - United Nations Office on Drugs and Crime:

<http://www.unodc.org/>