Access to justice in Tanzania: It is high time the legal system was decolonised

 

By Francis Kiwanga

Executive Director Foundation for Civil Society

Summary

·         One of the major challenges facing the judiciary in administration of justice is the delay of cases. The judiciary is overwhelmed by a large number of cases pending in our courts.

A few days ago, lawyers and members of the Tanganyika Law Society, the bar association of mainland Tanzania convened in Arusha for their annual general meeting. The main theme of the annual conference centred on the assessment of the country’s legal institutions in delivery of and access to justice in Tanzania. The theme of the meeting was very timely as administration of justice and citizens’ access to the justice system face so many challenges. The entire legal system needs to be transformed to effectively serve its purpose.

In my view, there are two major challenges facing justice administration in this county. Firstly, the justice system is very costly in terms of money and time needed to settle disputes. It is a common phenomenal for disputes in courts to take years before they are resolved. This defeats the purpose as justice delayed is justice denied. Secondly; court procedures are too technical and often bureaucratic. There are several occasions where disputes referred to the court system are terminated prematurely for non-compliance on some legal technicalities. Procedures which ought to assist parties and courts to arrive at fair and equitable judgements become impediments to accessing justice. The parties in dispute often end up being denied an opportunity to resolve their matters once and for all.

From 1920, Tanzania, then known as Tanganyika, adopted a common law legal system. The common law is an adversarial system in which parties involved in a dispute compete in court to obtain justice. It is based on the premise that the disputing parties must utilise their resources and technicalities to persuade the court to interpret laws in their favour. Ever since it was adopted, the legal system and jurisprudence used to create and enforce the law has been static, with little modifications to respond to social, cultural, economic, political and technological trends in the society. The laws that have been created and their interpretation have failed to incorporate the aspirations and best practices of the communities.

In many ways, the legal framework has not been compatible with best practices relating to disputes settlements. Parties to the disputes are prepared to deploy both clean and dirty tricks to get justice in their favour. In many occasions, laws are enforced in a manner that restricts local communities from interpreting and embracing their own communal methods and approaches to resolving conflicts.

 

Winner takes all versus win a little, lose a little

In the dispute settlement process, our courts follow adversarial principles. Under this system, parties to the case will fight to get the assistance of the courts to win their case. The judges and magistrates act with the assumption that they maintain impartiality and will base their decisions on the interpretation and application of legal principles to the factual circumstances of the cases. In their pursuit of victory, the parties to the case employ a range of legal strategies, including the engagement of lawyers, to secure a favourable ruling in their favour. As a result, the party pronounced as the winner by the court takes all.

I find this very problematic as it not the surest way to bring peace and harmony to the society even in a situation when disputes are thought to be resolved fairly. The losing side will always not agree and settle, and this is why many disputes are not resolved in the first instance. The dissatisfied part will appeal up to the highest court of the land, hence causing a backlog of pending cases in the courts. We are humans. Our disputes arising out of our complex nature are also often too complex for a party to win everything and the other party lose everything.

Take a good example of traditional administration of justice among Maasai people. I had the privilege to work closely with some communities in northern Tanzania. I learnt that before they were interrupted by the current legal systems, the society had its own traditional ways of dispute settlement. It was very effective in terms of the time involved in resolving the dispute as well as the outcome of the settlement.

For example, when a person commits a murder, the person who commits the offence will be penalised by paying compensation mainly in the forms of a number of cows to the family of the victims. However, this was disputed. Under the legal system, a person who has committed the same offence will be arrested by the state and upon being found guilty, they will be sentenced to death. An oft-overlooked consequence of this is that in many murder trials, communities do not cooperate well with prosecutors. They are not interested in the outcome of the process as the legal system does not compensate the victim, and secondly, they fear losing another of their member to the unforgiving hand of the law, which prescribes death.

 

Alternative dispute settlement mechanisms 

With the aim of improving access to justice, alternative dispute resolution mechanisms were introduced to provide a faster, more cost-effective, and less formal means of settling disputes. However, despite being an important avenue, these mechanisms are rarely employed. It appears that both judiciary members and advocates are comfortable with traditional litigation methods and show little inclination to explore alternative dispute resolution options like mediation and arbitration.

One of the major challenges facing the judiciary in administration of justice is the delay of cases. The judiciary is overwhelmed by a large number of cases pending in our courts. While recent efforts to fast-track the hearing of cases are commendable, in my view, the long term solution is full deployment of alternative dispute settlement mechanisms. Let’s consider the arbitration method as an exemplary approach to dispute settlement. What makes this method remarkable is that parties have the freedom to select an arbitrator they trust. Additionally, arbitration is known for being cost-effective, expeditious, and often leads to peaceful resolutions of disputes.

Despite the incorporation of these approaches and procedures into our justice system, there is a lack of interest from both the institution responsible for administering justice and the primary users of the system, including advocates. This necessitates a shift in mindset and reforms within the institution responsible for legal education. Universities and law schools, as institutions responsible for teaching and developing skills, need to allocate time and resources to educate lawyers about the existence and benefits of alternative dispute resolution (ADR) as a legal option for resolving disputes. Considering the current era of a market economy, timely resolution of disputes is essential to enable individuals to concentrate on social and economic development.

 

Plea bargaining needs to be scaled up

Plea bargaining was introduced in Tanzania in 2019. It is an alternative procure for settlement of criminal cases. The accused person would negotiate with the prosecutor to plead guilty in return for a lesser sentence or withdrawal from a pending criminal trial. The reason for introducing this procedure was mainly to expedite hearing of cases and to decongest our prisons.

One of my law school teachers used to argue that laws are made by the ruling class as an oppression tool against ordinary citizens. The implementation of plea bargaining and the beneficiaries of this system leaves a lot to be desired. Since its introduction in Tanzania, plea bargaining has almost exclusively been used in cases of economic crimes and other high-level cases. If this approach was adopted throughout the entire courts system, our criminal justice system would have been a lot more efficient.

Reports indicate a significant backlog of cases in the courts, resulting in a strain on resources and an overwhelming number of prisoners and remandees awaiting case resolutions. To alleviate the burden on the courts and address the issue of prison overcrowding, it is imperative to increase the adoption of plea bargains. By scaling up the use of plea bargains, the necessity for conducting full criminal trials in every filed case can be reduced in the future, providing relief to the courts and helping decongest prisons. Furthermore, it should be noted that a substantial portion of the prison population comprises remandees awaiting criminal trials rather than convicted individuals serving court sentences.

In conclusion, the effective administration of justice holds significant importance in a democratic society. The ongoing efforts of the sixth-phase government in economic diplomacy can bear fruit and contribute to economic prosperity, only if investors and citizens have faith in the judicial system. It is crucial that we step out of our comfort zones and align our actions with our words. Reforms must be implemented across the entire legal system, encompassing the adoption of alternative methods and approaches to settle disputes.