Alternative Punishments and their Roles in Improving SocioEconomical and Political Aspects in Tanzania By Asherry Magalla
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[email protected]. This paper and the individual contributions contained in it are protected under copyright by the Publisher (other than as may be noted herein). Copyright © 2018 Asherry Magalla. All rights reserved
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Dedication To My Son, Ryan Asherry Magalla Daddy Loves You
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Acknowledgement I acknowledge G.O.D. because I wouldn‟t have everything and every person surrounds me without HIM.
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Table of Contents Copyright Statement ........................................................................... i Dedication ......................................................................................... ii Acknowledgement.............................................................................. iii Table of Contents ..............................................................................iv Alternative Punishments and their Roles in Improving Socio-Economical and Political Aspects in Tanzania ......................................................... 1 1.0 Introduction ................................................................................. 1 1.1 Alternative Punishments ............................................................... 2 Jay S. Albanese ................................................................................. 3 Elise Czajkowski ................................................................................. 3 Quakers ............................................................................................ 4 W. Friedman...................................................................................... 5 Ross E. J. Kinemo .............................................................................. 5 Penal Reform International ................................................................. 6 Yahaya Abdulkarim ............................................................................ 6 Jay S. Albanese ................................................................................. 7 Lukas Mutingh ................................................................................... 8 Commonwealth East African Workshop ............................................... 8 Jordan Baker, Jennifer Donaldson ....................................................... 8
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Joseph J. Senna ................................................................................. 9 Lynns S. Branham .............................................................................. 9 Joel Samaha .................................................................................... 10 1.2 Community Service .................................................................... 11 B. Lynn ........................................................................................... 11 Ireland Department of Justice and Equality ....................................... 12 Encarta encyclopaedia...................................................................... 13 1.3 Probation ................................................................................... 13 S. Frank .......................................................................................... 13 Encarta Encyclopaedia...................................................................... 14 Prince William County ...................................................................... 15 American Probation and Parole Association ........................................ 16 1.4 Parole........................................................................................ 16 Microsoft Encarta Encyclopaedia Standard ......................................... 16 American Probation and Parole Association ........................................ 17 Prisoners Review Board of Western Australia ..................................... 18 The Parole Boards Regulations of 2007 ............................................. 19 Prisoners Review Board of Western Australia ..................................... 20 1.5 Origin of Alternative Punishment in Tanzania ............................... 23 1.5.1 Pre-Colonial Era ...................................................................... 23 v
1.5.2 Colonial Era ............................................................................ 24 1.5.3 Post Independence Era ............................................................ 25 1.6 Analysis of the Laws Governing Alternative Punishments in Tanzania ...................................................................................................... 27 1.6.1 The Prisons Act [Cap 58 R.E. 2002] .......................................... 27 1.6.2 Probation of Offenders Act [Cap 247 R.E. 2002] ........................ 29 1.6.3 Parole Boards Act [Cap 400 R.E. 2002] ..................................... 30 1.6.4 Community Service Act No. 6 of 2002 ....................................... 31 1.6.5 Penal Code ............................................................................. 32 1.6.6 Criminal Procedure Act ............................................................ 34 1.7 Implementation of Alternative Punishments in Tanzania ............... 35 1.8 Effectiveness of Alternative Punishment....................................... 36 1.9
Challenges
and
Weaknesses
of
Alternative
Punishment
Implementations in Tanzania ............................................................ 37 1.9.1 It Focus much on Reformation of Offenders and Reducing Congestion ...................................................................................... 37 1.9.2 Lack of Criminologists .............................................................. 37 1.9.3 Corruption .............................................................................. 37 1.9.4 Lack of Probation Officers ........................................................ 38 1.10 Socio-Economic Impacts of Imprisonment.................................. 39 1.10.1 It is Expensive ....................................................................... 39 vi
1.10.2 Poor Conditions of Offender‟s Family ...................................... 39 1.10.3 Wastes Human Force and Human Resources ........................... 40 1.10.4 Criminal Labelling .................................................................. 40 1.10.5 Social Isolation ...................................................................... 41 1.10.6 Disruption of Families ............................................................ 41 1.10.7 Lack of Social Values ............................................................. 41 1.10.8 Irrevocable Cost .................................................................... 42 1.10.9 Anti-Social Behaviours ........................................................... 42 1.10.10 Lack of self esteem and Liberty ............................................ 43 1.11 Imprisonment and Poverty ........................................................ 43 1.12 Costs of Imprisonment ............................................................. 44 1.13 Alternative Punishments and its Political Impacts........................ 46 1.14 Conclusion ............................................................................... 50 Bibliography .................................................................................... 52 Text Books ...................................................................................... 52 Articles and Journals ........................................................................ 53 Statutes .......................................................................................... 54 Case Laws ....................................................................................... 54 Internet sources .............................................................................. 55 Paper .............................................................................................. 55 vii
Report............................................................................................. 55
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Alternative Punishments and their Roles in Improving Socio-Economical and Political Aspects in Tanzania By Asherry Magalla 1.0 Introduction “The criminal sanction is the best available device we have for dealing with gross and immediate harm and threats of harm. It becomes less useful as the harms become less gross and immediate. It becomes largely inefficacious when it is used to enforce morality rather than to deal with conduct that is general seen as harmful”.1 It is rebuttable fact that, the use of community services, probation, parole, extra-mural labour, open air camps and other means of punishing criminals allows the government reducing much costs in development programmes as well as allowing those criminals or prisoners contributing directly in maintenance of their dependants, taxpaying liabilities and income productions to rise up the revenue and their personal income. It allows also those criminals to learn good social values of their societies, so as to become good citizens of such societies. To some countries except Tanzania, those criminals they also have the right to vote or participating in any political election. Hence serving punishment other than imprisonment
LL.B (Tumaini University Iringa University College); LL.M-ICT (University of Iringa); Independent Researcher; Author and book writer at Lambert Academic Publishing Company in German and DL2A–Buluu Publishing Company in France; Contact details,
[email protected]. 1 W. Friedman, Law in a Changing Society, Second Edition, Universal Book Traders, New Delhi, 1996, page 233 1
may allow them to active participate in some of political movements, such as voting. In Tanzania a person is not qualified to be voted or vote or appointed in any political position if such person is serving sentence of imprisonment of more than 6 months or death penalty.2 For many years passed criminal laws on punishments were based on deterring, restituting, revenging against them on the basis that “who
commit an offence should suffer the same” from committing offences once again without considering the socio-economic and political impacts of those sanctions. Now it has reached the time where societies started to look upon those impacts resulting from imprisonment and tried to come up with various mechanisms to resolve such problems resulting from imprisonment as the means of punishing offenders whereby alternative punishments had been introduced; this aims at examining the contributions of those alternative punishments in promoting socio-economic and political development. This paper aims at tracing and analyzing the effectiveness of alternative punishments in engineering socio-economical and political development in the society in Tanzania, by looking to a number of legislations which provides for the same.
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Article 67 (2)(c) of the Constitution of the United Republic of Tanzania, 1977 2
1.1 Alternative Punishments Jay S. Albanese Defines alternative punishments that; imprisonment is the most severe and expensive type of criminal sanction, so it should be reserved for offenders who commit the most serious crimes. Imprisonment tends to change offenders for worse; in the long run public protection is best ensured when criminals reform. Community based alternatives to imprisonment are the best way to accomplish this3. Jay S. Albanese did not focus directly on defining alternative sentences rather he focused much on providing his opinion on alternatives to imprisonment by saying that imprisonment is a severe punishment. Therefore this holds less water with regard to socio-economic and political development. Elise Czajkowski Defines alternative sentencing as a form of criminal punishment that differs from a traditional sentence. That instead of being incarcerated or given probation, a convicted criminal will often be assigned community service, along with rehabilitation or therapy, as a punishment. Alternative sentencing is often considered for first-time, non-violent offenders. The author proceeds stating that; advocates for alternative sentencing argue that with prison and jail overcrowding, it is not sensible to incarcerate all criminals. Alternative sentences provide a cheaper way of
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A. S. Jay, Criminal Justice, Second Edition, Allyn and Bacon A Person Education Company, Boston, 2002 3
dealing with the overcrowding of prisons than expanding prison capacity. Imprisoning criminals can be very expensive, and alternative punishments for non-violent criminals is more cost efficient and does not jeopardize the public safety4. It is a well said definition which covers the aspects of cost involved during incarceration of offenders instead of placing them to alternative punishments. With this view it is the most helpful aspect not only on reducing overcrowding of prisoners in jail but in facilitating and promoting much socio-economic development to offenders‟ families and the government as well since it gives an opportunity to offenders engaging direct in productive and economic activities. Quakers Define alternative sentencing also by arguing that these options benefit society and are therefore more beneficial to the community at large than punishment for its own sake. Alternative sentencing can give a convict a change to be productive as a member of a community, providing a lesson in acceptable behavior.
5
In some cases, it saves not only the cost of
incarcerating the criminal, but the cost of paying for a worker.6
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Elise Czajkowski, Susan Barwick, Alternative sentencing, Conjecture Corporation, 12th June 2016 5 Quaker or friends as they used to refer themselves are religious society of friends which undertook religious movements whereby as the development of their movements against inhumanity they started engineering for alternative punishments because they believes that all people are equal and the Almighty God is within each person. 6 The information is retrieved from www.psmag.com/legal-affairs/Alternative-Sentencinggaining acceptance-23551, it was retrieved on 18th June 2017 at 10:00 PM 4
Alternative sentencing is a type of sentencing designed to alleviate the problem of prison overcrowding and to provide a different way of monitoring convicted felons during a period of punishment. Alternative sentencing for women has been instituted as a way of reducing the costs of imprisonment and also because women offenders are seen as less violent and so less of a risk than male offenders7. This definition and the notion therein hold water since it engineers for socio-economic development since the authors considered the aspects of cost incurred by the state in handling offenders, poverty to offenders‟ families that can result from imprisonment of offenders as well as the notion takes into consideration the protection of the society‟s peace. W. Friedman Argued that in modern “positive” state, regulation is a particular powerful means of dealing out rewards and punishments, outside the purview of criminal law, the granting, refusal, or withdraw of occupation or professional license or refusal of security clearance for an individual which make him, unemployable, are in their moral and economic effect, more powerful sanction than most punishments. 8 Ross E. J. Kinemo Stated some concepts inter alia concerning penal policy and the aims of punishments stating that there is no universal theory of punishment which 7
The information is retrieved from www.psmag.com/legal-affairs/Alternative-Sentencinggaining acceptance-23551, it was retrieved on 18th June 2017 at 10:00 PM 8 W. Friedman, Law in Changing Society, Second Edition, New Delhi, Universal Book Traders, 1996 at page 234 5
can be said to be predominant. He does not reflect, facilitate and promote much self socio-economic development among criminals and their families; the focus was put much on rehabilitation and reformation of offenders rather than promoting socio-economic development. 9 Penal Reform International The focus was much on challenges with respect to ensuring the effectiveness of alternatives to imprisonment;10 challenge relates to the way in which alternative sentences are imposed by the courts11. The second main challenge relates to the implementation of the sentences once they are imposed. 12 A lack of resources affects the successful placement and supervision of offenders and as a result, compliance and reoffending rates vary. The third challenge is to build the confidence of the public and the courts in non-custodial punishments. 13 These authors did not consider socio-economic aspects on imprisonment since their focus was only on eradicating congestion in prison services.
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Ross E. J. Kinemo, Contemporary Tanzanian penal Policy: A Critical Analysis, A paper presented at the Crime Conference, organized by the British, Institute in East Africa at Naivasha, Kenya, Page 4 and 6. 10 For various reasons, alternatives are not considered for any offenders for whom the sentence might be appropriate. Retrieved from http://www.penalreform.org/publications on April 2017. 11 He makes emphasis that in order to remedy this, innovative decongestion programmes through which eligible offenders can have short prison sentences commuted to community service after a period in custody have been established. 12 The information was retrieved from http://www.penalreform.org/publications, February 2015. 13 Penal Reform International (PRI) is an institution funded by the UK Department for International Development (DFID) to assist governments and civil society organizations to address these challenges, February 2012. 6
Yahaya Abdulkarim Shows that imprisonment reduces ex-offenders‟ subsequent incomes and employment and often leads to the breakup of families and social relationships and to less parental involvement with their children;14 He continues arguing that Imprisonment has adverse effects on income, employment, and family functioning is unrelated to former prisoners‟ mental and physical health.15 He addressed the impacts of imprisonment on the financial and social stability of Prisoners‟ families while they are in prison and afterwards, the negative effect on ex-prisoners incomes, employment prospects, and family involvement predict increased offending probabilities.16 Jay S. Albanese Considers halfway houses in Texas to be important since they are considerably less expensive than prisons because they lower security requirements. 17 It is true that his ideology facilitated the social economic development. He focuses on having halfway houses for criminals and rarely ex-prisoners who
14
Yahaya Abdulkarim emphasizes that even long-term imprisonment appears to have few lasting mental health effects. 15 Yahaya Abdulkarim, An Analysis of Socio-Economic Impact of imprisonment in Nigeria,Department of General Studies (GNS), Federal Polytechnic, Nasarawa, Nasarawa State, P.M.B 001, Nasarawa State, Nigeria, Vol 2, No.9, 2012 at www.iiste.org 16 Yahaya Abdulkarim, An Analysis of Socio-Economic Impact of imprisonment in Nigeria,Department of General Studies (GNS), Federal Polytechnic, Nasarawa, Nasarawa State, P.M.B 001, Nasarawa State, Nigeria, Vol 2, No.9, 2012 pp 151-152. at www.iiste.org 17 Albeanese J. S, Criminal Justice, Second Edition, Allyn and Bacon a Person and Education Company, Boston, 2002 at page 445. 7
after their release have nowhere to go since their families and relatives reject them. He says that after those criminals being placed in halfway houses some institutions facilitate them in seeking jobs and engagement in productive activities. However his ideologies are more important to be considered though the challenges in our country is based on the implementations. Lukas Mutingh He puts much emphasis also on the implementation and effectiveness of alternative punishments in order to reduce congestion problems in African Prisons18. The author argues the concept of alternative punishments in connection to reduce congestion in prisons but he did not put much focus socio-economic and political impacts of imprisonment to prisoners and to the government as well by considering the costs incurred during the incarceration process. Commonwealth East African Workshop The focus was also on effectiveness of alternative punishments for the purpose of reducing congestions in prison services. Their workshop did not consider the issue of socio-economic impact of imprisonment and the need to have effective implementation of alternative punishments to facilitate and promote socio-economic and political development to raise per capita income and political rights as well. 19 18
Lukas Mutingh, Human Rights in African Prisons; Alternative Sentencing in Africa, some Lessons Learned and Future Prospects. at www.hsrcpress.ac.za. March 2017 19 John Kisembo and Dr. Alhas Maicibi, Commonwealth East African Workshop on Alternative Sentencing and Strategies to Reduce Prison Overcrowding, Kigali Rwanda 9th -11th May 2011. 8
Jordan Baker, Jennifer Donaldson The focus is put in the management, monitoring and control of parolees and probationers when are placed under such alternative punishments.20 They did not consider the aspect of socio-economic and political important and impacts on incarceration of prisoners, meanwhile they did not consider to what extent their families suffer socially and economically from imprisonment of their family members. Joseph J. Senna Argued that intermediate sanctions an also serve money; they are far less costly than incarceration. Intermediate sanctions help to meet the need for developing community sentences that are fair, equitable and proportional.21 In addition, offenders given intermediate sanctions generate income, pay taxes, reimburse victims, perform community services and provide other cost savings that would be non-existent had they been incarcerated. His concerns get much weight focusing on the Tanzania aspects and the level of socio-economic growth in handling incarceration process where the government uses much money in prison services while those offenders incarcerated do not bear tax liabilities. However, the aspect of political development is not issued again.
20
Jordan Baker, Jennifer Donaldson, Elizabeth Flynn and others, A Solution to Prison
Overcrowding and Recidivism: Global Positioning System Location of Parolees and Probationers, Thesis submitted in partial fulfillment of the requirements of the Gemstone Program, University of Maryland, 2002. 21 Senna J. J & Siegel J. L, Introduction to Criminal Justice, Sixth Edition, West Publishing Company, New York, 1993 - page 542. 9
Lynns S. Branham Argues and shows the importance of using alternative punishments instead of incarceration, he shows some advantages such as reduction of cost since those punishments are cheaper than incarceration in either prison or jail, family ties can be preserved, and success of rehabilitative endeavours. Offenders can, if are employed, continue working, the economic burden on taxpayers can be dissipated as those offenders working within the community pay taxes and help their families. 22 This concept gets much support in the same view that once offenders are commuted to alternative punishments, it can facilitate much the growth of socio-economic development by involving offenders in tax burden to raise revenue. However, the aspect of political development is not issued again. Joel Samaha Focused on the loss of income, he states that when offenders go to prison, their families and community loose income producers, it leads them away from opportunities for legal works and at the same time imprisonment weakens links into legal employments.23 Under these circumstances, his analysis is acceptable since incarceration weakens and draws back socio-economic development and growth within the community and to families of the offenders hence at the same time the government lacks much income and revenue instead it keep maintaining 22
B. S. Lynns, Sentencing, Corrections, and Prisoners‟ Rights in Nutshell, Fourth Edition, St. Paul, Minn. West Publishing Co., Sheldon Krantz, Piper & Marbury, Washington D.C, 1994 at page 62-77 23 Samaha J, Criminal Justice, Seventh Edition, Thomson Learning Inc., California, USA, 2006 at page 447-474. 10
the offenders when are in jail serving their punishments. However, the aspect of political development is not issued again. 1.2 Community Service B. Lynn Community service, this is a sanction through which the offenders pay back the community for the harm caused by their criminal behaviours by doing work that benefits the public24. Offenders perform unpaid works within their community as their part of sentences which they have been commuted to.25 B. Lynn when defining community service focused on one side only; that he focused on offenders paying back to the society through such activities assigned or imposed to them as punishments hence offenders are bound to perform those unpaid activities as their punishments, but the definition does not consider the socio-economic importance of commuting offenders to alternative punishments.26
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B. Lynn, Sentencing, Corrections, and Prisoners‟ Rights in a Nutshell, Forth Edition, St. Paul, Minn. West Publishing Co., Washington D.C, 1994, page 77 25 Section 2 of the Community Service Act, No. 6 of 2002 defines community service in the light of law. 26 The definition does not suit the requirements of socio-economic development through alternative punishments since it does not provide as to what time limit offenders are required to perform their sentences through such community service. 11
Ireland Department of Justice and Equality Defines Community Service to mean a sentence imposed by the Court as a direct alternative to custody, and is served by an offender in the community under the direction of the Probation Service.27 A Community Service Order has two important parts outlined by the Judge in Court making the Order: i.
The number of hours of unpaid work to be performed by the offender28.
ii.
The sentence of imprisonment or detention, the offender will serve should they not complete the Community Service Order29.
According to this definition, the department successfully considered the aspect of time/hours which the offender should perform such punishments whereas it enables them to engage direct in productive activities to boost up his or her socio-economic status30. Therefore this definition is most important with regard to Tanzanian situation whereby criminals will be able to perform economic activities for increasing the government revenues from their taxpaying liabilities. 27
Htt/www.probation.ie/pws/websitepublishindec09.nsf.content/what%2Bis%BCommunity%2BSe rvice. Retrieved on 27th June 2017 at 20:16 28 This is relevant provided under the first schedule to the Community Service Act, No. 6 of 2002 and community service form number 3 (work attendance register) provides for monitoring of work attendance by the offender. 29 Upon breach of the conditions and community service order as per Section 5 of the Community Service Act, the offender shall be sent back to the court for being sentenced to imprisonment whereby community service form no. 6 is used under such circumstances. 30 The first schedule to Community Service Act, No. 6 of 2002 provides for grid hours for an offender to attend the place located for him or her to perform community service whereby the remaining hours allow the offender to engage in other socio-economic activities whereby it is possible for them to earn their income for their families and other dependants. 12
Encarta encyclopaedia Defines Community Service to mean unpaid work for the community performed by a convicted person by court order as an alternative to prison. Examples of community service include helping children, the elderly, or the disabled. The term may also refer more generally to any volunteer work done in the service of one‟s community, such as social work, environmental cleanup, or mentoring. The definition provided by Encarta does not provide for the management, supervision and regulation of such punishment or projects; it is silent on social, economic and political consideration to offenders since it speaks on volunteering and performing such unpaid community services for the community and it does not focus on the time limitation as to how many hours the offender is required to perform such activities.31 1.3 Probation S. Frank Probation is a sentence served while under supervision in the community32. Like other sentencing options, probation is a court-ordered sanction. Its goal is allowing for some degree control over criminal offenders while
31
The definition cutters only for options which an offender can decide to opt or volunteer but there is no such mechanisms as to how the offender can be supervised or how many hours can the offender use for his socio-economic activities for his earnings. 32 Section 2 of the Probation of Offenders Act does not provide for a specific definition of probation but it defines probation order and probationer, through that interpretation it shows that probation is an order of the court placing an offender under supervision for a specific provided period of time instead of being sent to prison. 13
employing
available
community
programmes
in
the
service
of
rehabilitation.33 This definition suffice the aspect of performing community programs instead of an offender being sent to jail for imprisonment but it does not directly suffice the aspect of socio-economic purposes since it focused only to one side by considering an instance of preventing an offender from being mixed by other offenders in prison. Therefore with respect to socioeconomic concerns, the definition does not hold much water to engineer social and economic development to offenders but to the society as punishment34. Encarta Encyclopaedia Defines probation as a method of substituting supervision by a courtappointed agent in lieu of imprisonment. As a general rule, probation is used mostly in instances of misdemeanours committed by youthful offenders and first offenders. A probation officer is usually employed to supervise the offender for the probation period, which is fixed by the state, the court, and sometimes by statute. During this period, the offender must not commit criminal offences and must report to the probation officer at regular intervals to give an account of his or her activities, including
S. Frank, Criminal Justice Today, An Introduction text for the 21st Century, Prentice Hall Career & Technology Prentice Hall Inc., New jersey, 1995, page 407 34 This intends to show that once an offender is commuted to probation he/she can engage in community based activities but it does not provide to what extent and how his income can be raised through balancing his sentence and economic productive activities. S. Frank, Criminal Justice Today, An Introduction text for the 21st Century, Prentice Hall Career & Technology Prentice Hall Inc., New jersey, 1995, page 407 33
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employment and leisure time. At the end of the probation period, the probationer is discharged. The definition managed to cover and consider economic aspects by the offenders and their social and economic activities as well as the time for them to rest. This aspect of employment as discussed by Encarta encyclopedia shows that offenders can be used to raise national income through being employed their skills and attitudes which are more productive to the society and to offenders themselves. Prince William County Defines Probation as a court ordered sanction that allows a person to remain in the community under the supervision of a probation officer. The conditions of this community-based supervision can vary. It could include jail time, fines, restitution, community service, or other sanctions. Probation can also require counseling, drug/alcohol restrictions, weapons restrictions and offender reporting to their probation officer. If the person does not follow the rules of their probation, they could go back before a judge and be sent to jail or prison. The mission of probation is to ensure public safety. Every citizen has the right to be free from fear of harm to their person and property35. This definition successful considered the aspect of safety and freedom of people from being harmed by offenders but it did not manage to focus on socio-economic and political aspects and considerations to the offenders, the definition itself did not show either the advantages or need to have 35
http://www.pwcgov.org/government/courts/cjs/Pages/What-is-Probation.aspx, retrieved on 27th June 2017. 15
such alternative to imprisonment but the emphasis is only based on the safety to the public especially when offenders are under supervision by probation officers. American Probation and Parole Association Defines Probation to mean a court-order through which an offender is placed under the control, supervision and care of a probation field staff member in lieu of imprisonment, so long as the probationer meets certain standards of conduct36. The definition by itself does not consider socio-economic and political impacts of imprisonment as well as it did not consider the importance of using alternative punishments for engineering, promoting and facilitating social, economic and political development and growth instead it considered only social safety through supervision of such offenders. 1.4 Parole Microsoft Encarta Encyclopaedia Standard Parole, in criminal law, pledge of good conduct given by a person convicted of crime as a condition of release from imprisonment before the expiration of the term of confinement.37 The word parole is also broadly used to denote such a conditional release or period of liberty. Parole is usually granted to a prisoner in recognition of past good conduct, both in prison
36
https://www.appa-net.org/eweb/DynamicPage.aspx?WebCode=VB_FAQ#6. Retrieved on 27th June 2017 37 Microsoft Encarta encyclopedia standard 2004 16
and earlier.38 A sentenced criminal may be released on parole before the maximum limit of the prison term has been reached, either on the expiration of the minimum term or of some other shorter term fixed by statute on condition of good behaviour.39 During the same parole period the parolee is required to report from time to time to prison authorities or to a parole agent or parole officer to whose custody he or she was assigned when released. Other stipulations of parole include avoiding association with known criminals and remaining within a certain locality. For a violation of parole within the time limit, the parolee is liable to be apprehended and returned to prison to serve out the full or maximum term. American Probation and Parole Association Defines Parole as the term of supervision that occurs once offenders are conditionally released to the community after serving a prison term. Parolees are subject to being returned to jail or prison for rule violations or other offenses.40 This definition does not put much focus and consideration to socioeconomic aspect to offenders as well as to the society and government41 at
38
Microsoft Encarta encyclopedia standard 2004 The release in such case is not an absolute discharge, such as that received as a matter of right on the expiration of the full term, but is conditional on the due performance of the parolee‟s pledge. Section 5 of the Parole Boards Act [Cap 400 R.E. 2002] 40 https://www.appa-net.org/eweb/DynamicPage.aspx?WebCode=VB_FAQ#6. Retrieved on 27th June 2017 41 This aspect does not incorporate the principles of socialism and self reliance which is set under Article 9 of the Constitution of the United Republic of Tanzania 39
17
large rather it considers only the circumstances and conditions which can make an offender being returned to imprisonment upon breach of the conditions placed to him at the time of his release. Therefore the definition did not consider engineering socio-economic and political development through alternative punishments. Prisoners Review Board of Western Australia Defined parole to mean a way of letting approved prisoners serve part of their sentence in the community once the Board decides they are not an unacceptable risk to the safety of the community.42 Prisoners on parole are usually supervised and must comply with certain conditions in order to remain in the community. These conditions are designed to protect the safety of community members and to monitor prisoners‟ circumstances and behaviour. Parole does not free prisoners from their sentence. Prisoners on parole continue to serve their sentence in the community where they can further their own rehabilitation and restore their relationships43. Parole also helps them to adjust so they can become successful and contributing members of the community. Parole is a privilege and is only given to prisoners who comply with prison rules, are
42
http://www.prisonersreviewboard.wa.gov.au/W/what_is_parole.aspx?uid=9444-5950-12900107, retrieved on 27th June 2017 43 http://www.prisonersreviewboard.wa.gov.au/W/what_is_parole.aspx?uid=9444-5950-12900107, retrieved on 27th June 2017 18
truly committed to maintaining a positive lifestyle and becoming a contributing member of the community.44 The definition provided by the Prisoners Review Board of Western Australia is more sufficient since it managed to touch all socio-economic aspect of the offenders and of the community though it did not consider much the costs incurred by the government in maintaining inmates but with this regard of social and economic development, the definition has engulfed the entire aspect since it allows offender to succeed and become productive, successful and contributory to the society since they will be direct tax payers and therefore raising national income as well as per capita income.45 The Parole Boards Regulations of 2007 Defines parole to mean the conditional release of a convicted prisoner from prison before the expiration of his sentence.46 This definition as defined under the regulations pursuant to S. 7 of the Parole Boards Act47 does not incorporate socio-economic aspects and development. The definition does not specific describe the circumstances and advantages of parole; therefore it is defined in a narrow sense since it focused on conditions for
44
http://www.prisonersreviewboard.wa.gov.au/W/what_is_parole.aspx?uid=9444-5950-12900107, retrieved on 27th June 2017 45 The offenders are able under this concept to engage in productive activities and hence become more contributively in tax paying liabilities within the society and to the government. This is per Section 326 (2) (c) of the Criminal Procedure Act [Cap 20 R.E. 2002] which allows offenders to live in industrious life upon their conditional release. 46 Regulation No. 2, G.N. No. 563 of 1997
19
release. Furthermore the definition does not engineer socio-economic development by the society and to offenders as well. Prisoners Review Board of Western Australia Defines Parole to mean a way of letting approved prisoners serve part of their sentence in the community once the Board decides they are not an unacceptable risk to the safety of the community48. The definition by Prisoners Review Board of Western Australia suffice only the aspect of public and community safety but it does not consider the socio-economic importance and advantages to prisoners who are released under parole. Therefore the definition is not merit enough to engineer and promote social, economic and political development through alternative punishments rather it considers only much safety to the society because such offenders have already learn from their crimes or offences. In Tanzania the power to grant parole is vested to the minister of home affairs,49 but in other jurisdiction the parole is granted in the court when passing sentence, the judge must pronounce if the convicts can serve parole, this can be clearly seen in the case of Director of Public Prosecution
v. Mitchel50 (the judge had sentenced Kerslake to imprisonment for (7) seven years with a non-parole period of (4) four years and (6) six months). Prisoners on parole are usually supervised and must comply with certain conditions in order to remain in the community. These conditions are 48
http://www.prisonersreviewboard.wa.gov.au/W/what_is_parole.aspx?uid=9444-5950-12900107. Retrieved on 27th June 2017 49 Section 26 of Parole Board Act No 25 of 1994 50 (2002) VSCA 151 20
designed to protect the safety of community members and to monitor prisoners‟ circumstances and behaviour51. Parole does not free prisoners from their sentence. Prisoners on parole continue to serve their sentence in the community where they can further their own rehabilitation and restore their relationships. Parole also helps them to adjust so they can become successful and contributing members of the community. Parole is a privilege and is only given to prisoners who comply with prison rules, are truly committed to maintaining a positive lifestyle and becoming a contributing member of the community.52 Honourable Ali Hassan Mwinyi introduced alternative punishments when became the president of the United Republic of Tanzania following his accountability when he was a Minister for Home Affairs; during his minister hood a number of prisoners died in Shinyanga Prison Service due to congestion problems in the prison.53 These punishments seem to have great effects and importance in reducing congestions in prison services. The punishments were in practice even before colonialism, but after colonialism the system changed where offenders were being sent to prisons upon committing crimes as the result of overcrowding of prisoners as the result it caused congestion and poverty prolonged to a great extent and the government incurred high expenses id handling those offenders. 51
http://www.prisonersreviewboard.wa.gov.au/W/what_is_parole.aspx?uid=9444-5950-12900107. Retrieved on 27th June 2017 52 http://www.prisonersreviewboard.wa.gov.au/W/what_is_parole.aspx?uid=9444-5950-12900107 retrieved on 28th May 2017 at 10:00 PM 53 After becoming the President he sent experts to Canada and Scandinavian countries to learn about the system where they found it to be of merit. This is according to Commander Kamugisha who is a Regional Prison officer at Iringa Region. 21
Therefore alternative punishments were introduced to resolve such problems of congestion within prisons. Example the offender can be commuted to community services as per the conditions54 under the Community Service Act, sometimes it happens in form of parole when a prisoner who was imprisoned being released from prison under parole55 or a prisoner can opt to perform public works in form of extra-mural labour.56 Example in the case of Republic v. Maluguru Sanga,57 Maluguru Sanga58 who was convicted of house breaking c/s 294 and stealing c/s 265 of the Penal Code59 and being sentenced to fourteen years term of imprisonment consecutively was released under parole in 2007. This shows how alterative punishments are more important and they allow the offender to go back into the society and engage himself in socio-economic productive activities. Alternative punishments are punishments that are imposed to criminals, thus instead of being imprisoned a prisoner is put either under
probation60 as it was held inter alia by Judge Mnzava JK in the case of Republic v. Asia Salum and Others61 that;
54
Section 3(1) of the Community Service Act, No. 6 of 2002 which came into operation on 13th day of January 2004 55 Sections 4, 5 and 6 of the Parole Boards Act [Cap 400 R.E. 2002] and as per Regulations 3, 4, 5, 6 and 7 of the Parole Boards Regulations. 56 Section 73 (1) of the Prisons Act [Cap 58 R.E. 2002] 57 [2004] it is unreported criminal case which was instituted by the Republic against Maluguru. 58 Prisoner Number 87‟2004 59 [Cap 16 RE 2002] 60 Sections 3, 4 and 5 of the Probation of Offenders Act [Cap 247 R.E. 2002] 61 [1986] TLR 12 (HC) at Dar es Salaam 22
i.
ii.
...the emphasis should always be on the reformative aspect of punishment unless the offence is of such a serious nature that an exemplary punishment is required ...; ...offenders should not, as a rule, be sent to prison where there is an opportunity to mix with and learn bad habits from more seasoned criminals.
1.5 Origin of Alternative Punishment in Tanzania The general history of the alternative punishments is traced in three phases; pre-colonial era, colonial era and post-independence era where there were several punishments and mechanisms used in dealing with offenders when it happened that they committed crimes, various methods were used as the means to punish them and similarly as the mechanism for engineering socio-economic and political development within the society. 1.5.1 Pre-Colonial Era During Pre-Colonial Era there were various punishments and methods which were used by the societies in dealing with criminals whereby those punishments left criminals participatory to socio-economic activities. Among the methods used during that period were trial by ordeal, contest and feud only to mention but a few; after a criminal being determined through those ways punishments were imposed to them where some of those punishments were compensation, isolation, serving their punishments by being placed to the chiefs‟ palaces whereby they performed productive
23
activities such as cultivation and participating in wars like soldiers.62 Therefore these forms of punishments were economical in nature whereby they intended to promote socio-economic growth and development hence promoting peace, unity and harmony within the community members. 1.5.2 Colonial Era During Colonial Era, following colonialism in African societies and mostly in Tanzania (By then Tanganyika), the punishment system changed and started to promote colonialists‟ economy. During that time the principle of criminal liability, definition of offence and the type and scale of penalties that they contained neither made concession to the African context nor was any attempt made to amend the codes in line with changes in the substantive law and in criminology thinking63. A wide variety of legislation was introduced to deal with specific issues and it was the strict enforcement of laws whereas the results were Africans64 being affected in
their everyday lives and represented for them the harshest aspect of the colonial rule65. The imposition of fine during colonialism was the most common penalty in British colonial Africa66 where the courts seem the fines as an effective deterrent as well as being an inexpensive sanction to administer justice. However the imposition of fines to poor offenders 62
C. Simon, Criminal Justice Policies in Commonwealth Africa; Trends and Prospects, Journal of African Law, 44: 218-238, (2000) 63 J. S. Read, Criminal Law in the Africa of today and tomorrow, 1963, J. A. L 5 at page 7 64 Retrieved from eprints.soas.ac.uk/2567/1/criminalJusticePolicies.pdf?orign…detail-retrieved on 23rd July 2017 65 Simon Coldham, Criminal Justice Policies in Commonwealth Africa; Trends and Prospects, Journal of African Law, 44: 218-238, (2000) 66 Simon Coldham, Criminal Justice Policies in Commonwealth Africa; Trends and Prospects, Journal of African Law, 44: 221, (2000) 24
caused hardship and when they were unable to pay, the courts used imprisonment as the second option which indeed was sizeable proportion of prison population which consisted of fine defaulters. 1.5.3 Post Independence Era During post independence era the problem started with congestion67 of prisoners in the Prison Services which was traced far back after independence as the result of Tanzania being independent from colonialists where they left prisons with only a total of (9,000) nine thousand prisoners; but only after (37) thirty seven years the number of those prisoners increased68 much where it reached to a total number of (21,000) twenty one thousand prisoners.69 This number caused a lot of congestions of prisoners who were serving their sentences and those who were waiting for their cases to be heard. This situation caused and lead to death of many criminals and prisoners who were in those prison services; but also due to high number of prisoners different families whose labour were taken due to being sentenced to terms of imprisonments started to become weak in social and
67
Retrieved from www.penalreform.org%2Fwpcontent%2Fuploads%2F2012%2F05%2FSummary-Note-Alternatives-to-Imprisonment-FinalFebruary-20121.pdf-retrieved on 29th July 2017 68 Retrieved from www.penalreform.org%2Fwpcontent%2Fuploads%2F2012%2F05%2FSummary-Note-Alternatives-to-Imprisonment-FinalFebruary-20121.pdf-retrieved on 29th July 2017 69 After such a problem some of African countries met to discuss the resolutions to such a problem of congestion and the declaration was passed whereby the Kampala Declaration on Prisons Condition in Africa (United Nations Economic and Social Council 1996) is among of the declarations passed to resolve the problem. 25
economic productions since their dependable persons for work were taken to imprisonment following their commission of several crimes. Therefore many people were imprisoned following their criminal acts they committed; families lacked their social intimacy with those persons in jail, but at the same time those prisoners failed to engage in productive activities which could help to raise their families‟ income and which could provide them with their basic needs such as foods and other family accommodations to children since the unpleasantness of the punishment to the person punished reflected “unpleasantness of the crime to its victims
and to the community”.70 Therefore community service, parole, probation and extra-mural labour were introduced as an alternative punishment to those criminals to solve the problem of congestions in prisons. Though these alternatives were introduced but they failed to facilitate socio-economic and political development since the punishments introduced at that time aimed only at reducing the criminals congestion in prisons simply by committing those criminals to alternative punishments or imprisonment mostly who commit less serious offences. Worse, the laws in regards to elections provide no rights to those criminals to participate in any manner in political election, whether they are serving imprisonment or serving social services.
70
Ross E.J. Kinemo on Contemporary Tanzanian Penal Policy: A Critical Analysis, A paper presented at the Crime Conference, organized by the British Institute in East Africa at Naivasha, Kenya. Page 3, Retrieved from www.tzonline.org%2Fpdf%2Fcontemporarytanzanianpenalpolicy.pdf 26
1.6 Analysis of the Laws Governing Alternative Punishments in Tanzania Since socio-economic and political development is the important aspect in any society an or nation like Tanzania it is beneficial to have laws that engineer for the development and growth of economy and social aspects with regard to the contributions from alternative punishments. There are various laws that are used to govern application and enforcement of alternative punishments in Tanzania pursuant to the principles of socialism and self reliance as per the constitution of the united Republic of Tanzania.71 1.6.1 The Prisons Act [Cap 58 R.E. 2002] This is one of the laws that govern alternative punishments in Tanzania, thus it allows the offender who is liable to imprisonment for non-payment of fine or costs, is committed to imprisonment for a term not exceeding twelve months has the right to opt for performing unpaid public services as part of his sentence in terms of extra-mural labour.72 Further the same Act make it obligatory and mandatory for every prisoner to be employed, trained and being treated whether he is in or not within the precincts of any prison;73 this shows how prisoners or offenders can contribute to socio-economic development once their skills are employed well by the society regardless their convictions and them being prisoners.
71
Article 9 of the Constitution of the United Republic of Tanzania of 1977 as amended time to time 72 Section 73(1) of the Prisons Act [Cap 58 R.E. 2002 73 Section 62 of the Prisons Act [Cap 58 R.E. 2002] 27
Under the Prisons Act, it was found that socio-economic development is promoted by setting procedures that could reduce congestions in prisons upon failure by the alternative sentencing system to be applied during passing sentences by courts of law.74 This Act incorporated provisions relating to alternative punishments only as the means of supplementing the system
to
ensure
that
alternative
punishments
are
implemented.
Community Service is one of alternative punishments provided under section 52 of the Prisons Act and another alternative punishment which is
extra-mural labour75 is incorporated in the Act whereby offenders who wish to perform unpaid public works may make a declaration to the court before the committal or penal forthwith and when an offender is in custody or jail, may make a declaration to the prison officer in charge for such a right76. This shows that magistrates sometimes do not consider the need of informing offender who are liable to imprisonment for a term not exceeding twelve months on their rights to perform unpaid works in terms of extra-mural labour thus why Prisons Act provides for such a case; therefore this leads to huge increase of criminals in prisons who could be released under alternative punishments. Following such weaknesses therefore Prisons Act is there as another alternative of insuring the implementation of alternative punishments for the purpose of promoting and facilitating socio-economic development and hence reducing costs incurred by the government in maintaining criminals in prisons but the
74
Section 52 of the Prisons Act [Cap 58 R.E. 2002] provides for eligibility for an offender to serve for community service when the court failed to make such community service order. 75 Section 73 of the Prisons Act [Cap 58 R.E. 2002] 76 Section 73 (1) of the Prisons Act [Cap 58 R.E. 2002] 28
challenge there comes to the administration system in prisons and lack of personnel who could deal and handle such issues. 1.6.2 Probation of Offenders Act [Cap 247 R.E. 2002] It also deals with alternative punishments; that it governs offenders through placing conditions to the probationers to observe certain conditions which are imposed during their probation. The probation orders issued to offenders are the term that cannot be less than one year but not exceeding three years, upon breach and failure to comply with the conditions placed to that probation leads the sentence being executed or being taken into account against the offender.77 Under the Probation of Offenders Act78, it shows that the consideration is to protect peace and security, promoting and securing good conducts, behaviours and morals of offenders and avoiding repetition of further commission of offences79 as well as rehabilitation of offenders.80 The regard is further put to character of offenders, age, health and mental condition of the offenders, nature of the offences and such other circumstances as to the happening of the offence and the historical background of the series of offences committed before.81 The Act does not regard socio-economic aspects rather it considered for example, home
77 78 79 80 81
Sections 4 and 7 of the Probation of Offenders Act [Cap 247 R.E. 2002 [Cap 247 R.E. 2002] Section 4 (1) of the Probation of Offenders Act [Cap 247 R.E. 2002] Section 4 (2) of the Probation of Offenders Act [Cap 247 R.E. 2002] Section 3 (2) of the Probation of Offenders Act [Cap 247 R.E. 2002] 29
surroundings82 and other factors which do not necessarily means socioeconomic development. Example the principles that governs the courts when passing sentences were established in the case of Republic v. Kidato Abudlla83 whereby the court is required to take into consideration factors such as the gravity of
the offence, the record of the accused, his age and the interests of society and those of the accused. Interests of the accused does not necessarily mean socio-economic. Therefore it is hard to say that the principles set in this case intended to promote socio-economic development but aimed at promoting other interests of the society and of the accused persons. 1.6.3 Parole Boards Act [Cap 400 R.E. 2002] Deals with offenders who have been already committed to imprisonment but their behaviours are good to be released before the expiration of their sentences. Though offenders have remission upon serving their sentences but not inclusive to those who are committed to death or life imprisonment. When the offender behaves well in prison, he can be released to the society through parole84 if he is eligible to be released on parole. Under the Parole Boards Act85 it was shows that parole is the release of prisoners before expiration of their sentence terms, it is an alternative punishment not issued by the court but Parole Boards after the Prison 82 83 84 85
Section 3 (2) of the Probation of Offenders Act [Cap 247 R.E. 2002] [1973] L.R.T. 82 Sections 4, 5 and 6 of the Parole Boards Act [Cap 400 R.E. 2002] Act 25 of 1994, [Cap 400 R.E. 2002] 30
Officers in Charge proposing that certain offenders being released under parole to serve their remaining term of sentence in community; and its objective is reducing congestion in prisons, developing and maintaining safety to the society, increasing offenders accountability and ensuring reformation of offenders.86 It shows that parole promotes socio-economic development but after offenders are imprisoned and after serving part of their sentences in prisons, therefore the executive used this lacuna to other laws that govern alternative
punishments
which
do
not
promote
socio-economic
development by introducing parole as the means of reducing congestion in prisons and costs incurred by the government in incarcerating offenders. 1.6.4 Community Service Act No. 6 of 2002 This is another law applying to alternative punishments; it allows the offender
committed
to
a
term
not
exceeding
three
years
imprisonment, to perform unpaid public works within the community for the benefits of the community for a period fixed but not exceeding the term of imprisonment for which he would have been sentenced.87 Under the Community Service Act88, it shows that Community Services as an alternative punishments promote socio-economic development to the society, offenders‟ families and to the government as well89 since it allow
86
Alaska Department of Correction, Probation and Parole Objectives, Juneau, Alaska. Retrieved from www.correct.state.ak.us/probation-parole/goals-objectives on July 20 2014 at 17:40 87 Section 3 of the Community Service Act, No. 6 of 2002 provides for eligibility for an offender to be committed to community service as his punishment. 88 Act No. 6 of 2002 89 Part II and III of the Community Service Act, specifically under Section 3 to 14. 31
offenders to participate in unpaid public works90 as part of their punishment and letting them participate in other productive activities for earning their lives and raising income following the time prescribed in the order made by the court.91 Therefore the problem which was encountered is that; there is poor implementation and insufficient number of Community Service Officers, thus they do not attend into court sessions for determining whether there are offenders eligible for being commuted to alternative punishments, this problem leads to an increase of many offenders in prisons who could be eligible for community service. When a court determines whether community service order should be made there must be Community Service Officer and the offender appeared before the court, since before making an order, the court directs the community service officer to conduct an inquiry into the circumstances of the case and of the offender and report the findings to the court.92 Therefore this problems lead to increase of criminals in jail and the government incurs huge cost in maintaining those criminals hence delay of socio-economic development because of such costs used for prison services. 1.6.5 Penal Code Under the Penal Code,93 found that alternative punishments are implemented but only with consideration to the rehabilitation and
reformation of offenders, finding security to keep the peace and being of 90 91 92 93
Section 3(2) (a) of the Community Service Act, Act No. 6 of 2002 Section 4 (1) (b) of the Community Service Act, Act No. 6 of 2002 Section 3 (4) of the Community Service Act, Act No. 6 of 2002. [Cap 16 R.E. 2002] 32
good behaviour94 by preventing the offenders from being imprisoned whereby they can be affected by criminogenic95 behaviours which they could learn from other offenders who are serving their punishments in jail. The findings show that the penal policy focused on the reformation, rehabilitation of offenders, ensuring peace and security,96 preventing from happening of further crimes but the Penal Code when it was enacted, the legislature did not consider the socio-economic aspect as an important regard for propagating socio-economic development. Most people are aware that alternative punishments are not effectively implemented; this was due to a simple survey which has been made in prisons, society as well as in courts. The results of the survey conveys the reality since offenders are sentenced to serve their punishments in jail while there are others among those criminals or offender are eligible of being commuted to alternative punishments such as community service, probation and extra-mural labour97 but the consideration which was observed during the survey was only that, because the said offenders are energetic and are still young thus why are commuted to imprisonment to serve their punishments.
94
Section 25 (g) and (h), Sections 29, 31 and 38 of the Penal Code [Cap 16 R.E. 2002]. Criminogenic is defined to mean Producing or tending to produce crime or criminality, such a definition is according to Gerry Breslin, Collins English Dictionary, 11th Edition, HarperCollins Publishers, 2011. Retrieved from http://www.thefreedictionary.com/criminogenic. Retrieved on19th July 2017 96 Sections 25(g), 33 and 38 of the Penal Code [Cap 16 R.E. 2002] 97 Section 73 of the Prisons Act [Cap 58 R.E. 2002] 95
33
1.6.6 Criminal Procedure Act Under the Criminal Procedure Act, it shows that the Act promotes socioeconomic development to a lower extent generally by securing the offenders to lead an honest and industrious life98 but it put much focus on rehabilitation and reformation,99 restitution and promoting peace and security of the society by the offenders through preventing and prohibiting offenders from associating with undesirable persons or from frequenting undesirable places.100The consideration is not to socioeconomic importance but to character of the offenders, antecedents,101 age, health, or mental condition of the person charged or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed.102 Therefore from the observations, it is clear that Criminal Procedure Act promotes socio-economic development only upon the offenders being reformed and rehabilitated but once criminals fail to rehabilitate it becomes impossible for them to live an honest and industrious life. It considers only an aspect of the offenders‟ life but the society‟s development through the contribution of such offenders who have been released conditionally.
98
Section 326 (3) (c) of the Criminal Procedure Act [Cap 20 R.E. 2002] Section 326 (3) (b) of the Criminal Procedure Act [Cap 20 R.E. 2002] 100 Section 326 (3) (a) of the Criminal Procedure Act [Cap 20 R.E. 2002] 101 A thing or in law a behaviour and conducts that existed before. Sara Hawker, Conscious Oxford Dictionary, Twelfth Edition, Oxford University Press, London, 2011 provides for the definition of antecedent. 102 Section 326 (1) of the Criminal Procedure Act [Cap 20 R.E. 2002] 99
34
1.7 Implementation of Alternative Punishments in Tanzania Alternative punishments in Tanzania to some extents are implemented in accordance
with
the
laws
that
govern
application
of
alternative
punishments as the means of reducing congestions in prisons. Punishments such as probation, community services, parole, extra-mural labour and open air camps to mention but few are used in implementing the policy of reducing congestions in prisons. Citing an example from the Criminal Procedure Code103 it provides for probation with bond where an offender is convicted of any offence not punishable with death and no previous conviction is provided against him, he may be released by the court that convict him but he must enter into bond to appear and receive sentence when and if called upon104 and the period fixed for probation cannot in any circumstances be less than 12 months.105 Showing an emphasis on the implementation of alternative punishments in Tanzania, it is notable that, probation order cannot be combined with any form of punitive sentence; this is clear from what was stated in the case of
Republic v. Pratice Matata106 where the learned Judge said: “The purpose of probation is to release the prisoner without punishment where the court regards it expedient to do so taking into account the circumstances of the case and character
103
Section 326(1)(b) of the Criminal Procedure Act [Cap 20 R.E. 2002] The court may fix any time which may not exceed three years, during which such period; the person so released must keep peace and be of good behavior as per Section 326 of the Criminal Procedure Act. [Cap 20 R.E. 2002] 105 Section 4(1) of the Probation of Offender Act,Cap.247 106 (1967) H.C.D. n 413 104
35
of the accused. It is improper to impose a sentence in addition to an order of probation.” Where the accused is a youth it is proper to release him on probation especially where there is a danger of mixing him with other chronic offenders; he may be influenced by chronic criminals. Association with those chronic criminals by a youth can lead to destruction of his morals and behaviours simply by adopting those criminogenic behaviours from those who have been serving their sentences for a long time in jail. The case of
Hashams v. R107 hardly calculated to ensure that the accused comes out of prison a good and honest citizen. 1.8 Effectiveness of Alternative Punishment For many years, the Tanzanian government had no programmes that worked to promote alternative to imprisonment to function, and those currently available mostly operate under the radar. There are many reasons for that and one crucial factor could be a political climate that is hostile to anything that could be caricatured as being soft on crime. The best example can be seen in the community service sanctions, many of prisoners who are eligible to this service are still serving their punishment in the prisons. It is reported that there are some 10,590 inmates serving jail terms of less than three years who are eligible for alternative punishment through the Community Service Act of 2002. As chief justice Mohamed Othman Chande says during the opening of the inaugural meeting of the Africa Alternatives 107
(1971) H.C.D. 38 36
to Imprisonment Network “that not every offender deserves to serve time in prison.108 1.9 Challenges and Weaknesses of Alternative Punishment Implementations in Tanzania In Tanzania still alternative imprisonment and punishments have some weaknesses such as; 1.9.1 It Focus much on Reformation of Offenders and Reducing Congestion The system does not consider much the importance of using offenders in productive activities in generating income and it does not engineer the construction and promotion of raising per capita income (for each person) as
well
raising
government
revenue.
The
policies
of
alternative
punishments focus much only on reformation of offenders and reducing congestion in prisons while leaving out the socio-economic aspects. 1.9.2 Lack of Criminologists Also the system is faced with a lot of challenges such as lack of criminologists to deal with criminals and who could recommend on the aspects of socio-economic development through alternative punishments. 1.9.3 Corruption The only problem with alternatives to imprisonment in Tanzania would be with the deeply rooted corruption in the judiciary; corruption has led to the 108
Kilasa Mtambalike, Tanzania: Non Custodial Sanction Remedy to prison Overcrowding, Tanzania daily News, 13th November 2013, retrieved from AllAfrica.com/stories/201311130278.html?, on 27th May 2014 37
failure by authorities to dispense justice. Some people receive harsh sentences for trivial offences because they fail to buy their way out of trouble and others do escape from liabilities through some technicalities and probably corruption. Example in the case of Republic v. Twalibu Ubwa,109 the respondent was acquitted by the trial magistrate Mtinginjola on the ground that the case had taken a long time in court while from the date the accused was taken to the trial court up to the date he was acquitted it is only two months and twenty four days whereby in criminal cases it is not a sufficient time or ground of acquitting a criminal. Therefore under these circumstances; there is a likelihood suspicion of corruption or bribes being involved in such circumstances. 1.9.4 Lack of Probation Officers There are no Probation officers, who could attend court sessions to determine offenders who can be commuted to probation, community services or any other alternatives which suits to engineer socio-economic development rather it has been left to courts of law to practice the said projects. Some of magistrates do not consider the issue of alternative punishments and socio-economic aspects when imposing punishments to offenders rather they strictly consider statutory provisions which place punishments already and therefore they are bound to observe such provisions following that there are no criminologists to deal with such issues.
109
Criminal Revision No. 13 of 2003 38
1.10 Socio-Economic Impacts of Imprisonment Imprisonment has a lot of socio-economic impacts to the government as well as to the offenders‟ families and the entire community but also to the prisoners themselves since after individuals being imprisoned, their freedom and rights are taken away by the laws on the basis of being prisoners and thus they are under restrictions and supervision of the prison officers. The following are socio-economic impacts of imprisonment in Tanzania. 1.10.1 It is Expensive Due to imprisonment the government loses and incurs lot of money in accommodating the criminals in prisons and sometimes the government loses income and revenue because prisoners are not involved directly in tax paying liabilities like other individuals who are not prisoners or custodians.110 1.10.2 Poor Conditions of Offender’s Family Once the offender was the one depended for economic production, his family remains poor until his completion of sentence but if he is commuted
110
The government uses approximately Tsh. 81,192,300 (eighty one million, one hundred and ninety two thousand and three hundred shillings) only for feeding 35, 301 (thirty five thousand and three hundred and one) prisoners per day and Tsh. 29,716,381,800 (twenty nine billion, seven hundred and sixteen million, three hundred and eighty one thousand and eight hundred shillings) per year while there are other maintenance costs which are to be incurred by the government as well such as prison maintenance and inmates health maintenance. Kilasa Mtambalike, Tanzania: Non Custodial Sanction Remedy to prison Overcrowding, Tanzania daily News, 13th November 2013, retrieved from AllAfrica.com/stories/201311130278.html?, 27th May 2017. 39
to life imprisonment or death penalty then the family remains poor and sometimes it leads to break up the families.111 1.10.3 Wastes Human Force and Human Resources Imprisonment wastes human force and human resources; thus when prisoners spend their best effective time in jail, the society loses human resources especially where the person imprisoned had a profession.112 1.10.4 Criminal Labelling Often ex-prisoners face difficulty in gaining employment, as they bear the stigma of being a convicted criminal.113 This can severely and sometimes permanently damage their employment prospects.
111
Example DiNino when was sentenced to imprisonment; her children remained poor and unfortunately the children‟s mother died leaving those children without any support. District Judge Dean Patton said that; he was “reluctant” to sentence DiNino because she was a poor woman and depended by her children. Retrieved from http://www.salon.com/2014/06/12/ on 12th July 2017 at 12:40 PM. 112 Economic costs of imprisonment are: Human resources loss, susceptible active population, Maintenance and support costs, Prison construction, Family financial poverty, Reduction of per capita income, Job discontinuity, Unemployment Increase. Yahaya Abdulkarim, An Analysis of Socio-Economic Impact of imprisonment in Nigeria, Developing Country Studies, Vol 2, No.9, 2012, Department of General Studies (GNS), Federal Polytechnic, Nasarawa, Nasarawa State, Nigeria, 2012 at pages 150 to 151 113 Sometimes loss of housing while in prison, difficulty in gaining employment post-release and poor health not only impact on the wellbeing of the individual, but of the society as a whole since many ex-prisoners who return to prison claim that lack of suitable housing is one of the main reasons they end up back in prison. Yahaya Abdulkarim, An Analysis of Socio-Economic Impact of imprisonment in Nigeria, Developing Country Studies, Vol 2, No.9, 2012, Department of General Studies (GNS), Federal Polytechnic, Nasarawa, Nasarawa State, Nigeria, 2012 at page 150 40
1.10.5 Social Isolation Imprisonment can cause already marginalised people to feel even more alienated, weakening personal identity and motivation. This exclusion from the community and lack of employment leads to social isolation and poverty, which in turn significantly increases the risk of reoffending.114 1.10.6 Disruption of Families Imprisonment also disrupts relationships and weakens social cohesion, since the maintenance of such cohesion is based on long-term relationships. When family member is imprisoned, the disruption of the family structure affects relationships between spouses, as well as between parents and children, reshaping the family and community across generations.115 1.10.7 Lack of Social Values The prisoners loose sense of responsibility as a result they hardly commits themselves towards the social values, the health care and moral protection are very poor in prisons as the result some of prisoners do die when serving their sentences in jail; sometimes there is a likelihood of prisoner
114
Yahaya Abdulkarim, An Analysis of Socio-Economic Impact of imprisonment in Nigeria, Developing Country Studies, Vol 2, No.9, 2012, Department of General Studies (GNS), Federal Polytechnic, Nasarawa, Nasarawa State, Nigeria, 2012 at page 150. 115 Alternative imprisonment or sentences produces a deep social transformation in families and communities and that community-based correctional strategies encompass a wide range of humanitarian, fiscal and pragmatic motives. Yahaya Abdulkarim, An Analysis of Socio-Economic Impact of imprisonment in Nigeria, Developing Country Studies, Vol 2, No.9, 2012, Department of General Studies (GNS), Federal Polytechnic, Nasarawa, Nasarawa State, Nigeria, 2012 at page 150. 41
involving in drug abuse, there is no room for the drug-addicts to undergo treatment and the prison has even become a safe place for drug dealers.116 1.10.8 Irrevocable Cost The costs of prisons are irrevocable since the maintenance costs of each prisoner is very high; most of it is not regenerated, so the resources are wasted along with the increase in the number of prisons that causes an increase in prison budgets also. Moreover, the families of inmates often become financial burden to the state.117 1.10.9 Anti-Social Behaviours Cultural values within the society and inside prisons create violent, antisocial behaviours among prisoners and destroy their morality.118
116
There is reported news that DiNino died in jail while serving sentence for her kids unpaid school fines; she was preventing her children from learning criminal behaviours in jail as well as she was responsible to make sure that her children obtain such basic needs for their lives and education unfortunately she died in jail leaving her dependent children. District Judge Dean Patton said that; he was “reluctant” to sentence DiNino. The information was retrieved from http://www.salon.com/2014/06/12/ on 12th July 2017 at 12:40 PM. 117 With Tsh. 2,300/= (two thousand and three hundred shillings) per day in feeding one inmate while there are other costs such as health maintenance when an inmate is sick and prison buildings maintenance are very high compared to when such inmate could be placed to alternative punishments or imprisonment instead of being imprisoned where he shall become more contributory to income production when is commuted to alternative punishments. Kilasa Mtambalike, Tanzania: Non Custodial Sanction Remedy to prison Overcrowding, Tanzania daily News, 13th November 2013, retrieved from AllAfrica.com/stories/201311130278.html?, 27th May 2016 118 This happens when a criminal from a society with good morals, norms and customs is mixed with those people coming from society other than his; when he adopts such other morals of that different community therefore it becomes easy for his custom values and morals to be destroyed by such adoption of criminal behaviours. Yahaya Abdulkarim, An Analysis of SocioEconomic Impact of imprisonment in Nigeria, Developing Country Studies, Vol 2, No.9, 2012, 42
1.10.10 Lack of self esteem and Liberty Imprisonment take away from the prisoners a self esteem and liberty following the state of them being criminals or convicts, hence the society oppress them and does not regard them as valuable unless it takes a hard time for them to prove their dignity and respect to the society.119 1.11 Imprisonment and Poverty Imprisonment disproportionately affects individuals and families living in poverty. When an income generating member of the family is imprisoned the rest of the family must adjust to this loss of income. The family experiences financial losses as a result of the imprisonment of one of its members, exacerbated by the new expenses that must be met - such as the cost of a lawyer, food for the imprisoned person, transport to prison for visits.120 Thus, imprisonment contributes directly to the impoverishment of the prisoner, of his family and of society by creating future victims and reducing future potential economic performance.
Department of General Studies (GNS), Federal Polytechnic, Nasarawa, Nasarawa State, Nigeria, 2012 at page 150. 119 The UK government has enacted the Anti-social Behaviour, Crime and Policing Act, 2014 that received royal assent on 13 March 2014. The act introduces simpler, more effective powers to tackle anti-social behaviour that provide better protection for victims and communities. 120 When the prisoners are released, often with no prospects for employment, former prisoners are generally subject to socio-economic exclusion and are thus vulnerable to an endless cycle of poverty, marginalization, criminality and imprisonment. Yahaya Abdulkarim, An Analysis of Socio-Economic Impact of imprisonment in Nigeria, Developing Country Studies, Vol 2, No.9, 2012, Department of General Studies (GNS), Federal Polytechnic, Nasarawa, Nasarawa State, Nigeria, 2012 at page 151 43
Imprisonment causes criminogenic121 behaviours to ex-convicts that leads to them commit crimes after being released. Majority of inmates coming from poverty-neighbor hoods suffering from inadequate education, unemployment, broken families, social isolation and other factors make criminal activity more likely. 1.12 Costs of Imprisonment Building and maintaining prisons needs a huge amount of money, which is a burden on governments. Besides, the convict, disallowed to take part in social and economic activities, will face difficulties in compensating damages inflicted to the victim. This also entails an overall negative impact on the economic development trend of the society. The monetary costs of feeding inmates alone in Tanzania prisons is approximately Tshs. 29,635, 189, 500/= (twenty nine billion, six hundred and thirty five million, one hundred and eighty nine thousand and five hundred shillings) per year. The cost of feeding an average inmate in prison is Tshs. 2,300/= (two thousand and three hundred shillings) per day while to feed one inmate per year is Tshs. 839,500/= (eight hundred and thirty nine thousands and five hundred shillings).122 It is essential to note that, when considering the cost of imprisonment, account needs to be taken not only on the actual funds spent on the up keeping of each prisoner, which is usually 121
Criminogenic is defined to mean Producing or tending to produce crime or criminality, such a definition is according to Gerry Breslin, Collins English Dictionary, 11th Edition HarperCollins Publishers, 2011. Retrieved from http://www.thefreedictionary.com/criminogenic. Retrieved on19th July 2017 122 Kilasa Mtambalike, Tanzania: Non Custodial Sanction Remedy to prison Overcrowding, Tanzania daily News, 13th November 2013, retrieved from AllAfrica.com/stories/201311130278.html?, 27th May 2014 44
significantly higher than what is spent on a person sentenced to noncustodial sanctions, but also of the indirect costs, such as the social, economic and healthcare related costs, which are difficult to measure, but which are immense and long-term. Whereas alternatives to imprisonment and the use of non-custodial sanctions as a matter of penal policy have proved to be more efficient in reforming convicts and definitely reducing overcrowding in correctional facilities. There are also benefits with a human side to the punishment. It gives another opening chance and allows such offenders to play a part in their own correctional and rehabilitation process by offenders to foster their socio-economic development. Alternatives to imprisonment also foster convicted person‟s rehabilitation and re-entry into the community and it allows an offender to continue more easily with his or her family ties.123 Most importantly, however, is the fact that there has been evidence to the effect that as a result of alternatives to imprisonment, reoffending rates amongst the convicted offenders assigned to parole, probation and community services for correctional treatment and rehabilitation within the community dwindle. Thus, it imperative that not only those dispensing justice are made fully aware of the need to promote punishments that are alternatives to imprisonment, but also the public should be made aware of their certain rights. Since the prison system in Tanzania intends much on reformation of offender; it seem to have more weaknesses and problems in terms of 123
Kilasa Mtambalike, Tanzania: Non Custodial Sanction Remedy to prison Overcrowding, Tanzania daily News, 13th November 2013, retrived from AllAfrica.com/stories/201311130278.html?, on 27th May 2014 45
maintenance and management of the prison services and that it does not put much focus on the issues of socio-economic aspects in terms of facilitating offenders to involve direct in economic productions and social development through their involvement in alternative punishments as their alternative to their imprisonment. Therefore alternative punishments except community service have not been viewed and mostly not being considered as the means of cost reduction to the government in incurring much cost during the placement of prisoners in jail while it avoid such costs through implementing effectively the alternative punishments. Taking an example from the report produced by Judge Shabani Lila in December 2013 the government lose more than (9) nine billion in only feeding inmates per year.124 1.13 Alternative Punishments and its Political Impacts It is true that once a criminal who had a profession is imprisoned, s/he loses profession whereby the results affect him and his entire family both in social, economic and political perspectives. However, the political aspect of the criminal deteriorate as in Tanzania constitutionally a person cannot involved in some of crucial political movements or processes if he is a criminal or has the criminal records; hence this affects negatively the political development of such person and his society as whole. It is international recognized that any person with bad records (both civil and criminal records) after sometimes must be forgotten as per new
124
Judge Shabani Lila is the Chairperson of the Tanzania National Community Service Committee. 46
human rights known as, „The Right to be Forgotten.‟ Therefore, criminal should be also be given the right to vote or participate in any political movements such as being elected, when they are proven to be of good character and acceptable by the society as person(s) of good character. This should be also used to those criminals who are serving community services or any other punishment other than imprisonment. It must be understood that, criminals are like any other humans, hence they deserve any other rights including political rights like right to vote and to be voted which is prohibited by our Constitution even after such criminal has already finish serving his/her sentence. The requirement made by the Constitution as stated above is that any person with a criminal record more than six (6) months such person cannot not be appointed, or elected in any political position particularly in parliamentary election. I do believe this provision Article 67 (2) (c) is bias by nature. This is simply because it only gave a chance to criminal with petty or small offence the right to be elected or appointed as politician or holding a certain political position, and leaving other criminals with offences exceeding six (6) months conviction, with no right over their political position(s). We have to understand that a crime is a crime. It does not matter the degree of its commission except death and other convictions which renders life imprisonment, as the fact that it is impossible for those person(s) to involve themselves in any political movements or processes while serving such nature of sentences. But for other offences whether they have exceed six (6) months or not, it is their rights to fully participate in some of their 47
political rights, such as the right to vote while serving the sentence, and the right to be voted or appointed in any political position after serving such sentences. In criminology and penology theories, we believe that some criminals do commit offence due to the surrounding environments, such as areas which are famous for the commission of certain crimes, or the people surrounding him/her, or biological problems (which can be cured or they are seasonal), or commit crime simply by being labelled by others as criminal, or cultural influences, learning from a society, imitation, and conflicts. These all methodologies or ways in which a person commits crimes can be prevented or controlled, and one among the way is through correctional methodology through correctional centres such as rehabitation centres. If the aim of criminal law is to correct the person from wrong things done by him/her, and it is proven beyond any reasonable doubt that such person has now have good characters by his/her society, then such person should not be prevented from being appointed or voted to hold any political position. In this case the limitation of the length of sentence (as indicated within our Constitution) should not be the factor to prevent any person with criminal records to have such political rights. But the requirement of good characters as proven by the society which such person reside, is sufficient enough to grant such person such political rights. Further, criminals are not allowed to vote in Tanzania. When they are in prisons, however age they are, they cannot vote in general election. As I said earlier, they are human like any other citizens. They desire political 48
changes as any other person desire. Despite of the fact that they are in prisons, but they need also to change their country. If they believe that a certain candidate of a certain political party may improve their prison conditions, why can‟t they vote? And if after serving their sentence, and proven to be person(s) of good characters, why can‟t they be appointed or voted to hold certain political position? When you look to some of the legislations which provides for alternative punishments, they provides such punishments for those criminal with the conviction from twelve months to 3 years, depending on the nature of the punishment. One among the requirement for these criminal to be given such alternative punishments, for instance is if the parole board or probation officer is reasonably believe that such person was of good character during serving at least half of his/her sentence or for a certain period of time. While on the other side, the Constitution only provides exception for the person(s) with criminal records to be appointed or voted to hold any political position if the sentence did not exceed six (6) months. So I just don‟t understand, if the Parole Board or the Probation Officer satisfied themselves that such a criminal is of good character (hence if released cannot cause harm to the society) and has already serve his sentence a certain period of time, how is it possible such person is not eligible to be appointed or voted in any political position by the fact that his/her sentence was more than six (6) months?
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The condition placed by our Constitution prohibits some person(s) who were criminals but proven to be of good characters to direct participate in general election on the part of being appointed or voted, hence violating their political right of being elected as a leader either through election or through appointment. Despite of such person to have criminal character, he might be a good leader if proven by his/her society and there is a need of his/her service as a leader in such society. 1.14 Conclusion Alternative punishments are implemented in Tanzania but as solutions to overcome congestions in prisons but they do not focus on socio-economic and political development in relation to alternative punishments, as the result that criminal do not have the right to participate in some of the political activities during serving their sentences and after finishing their sentences despite of their conversion to good character citizens. The government should positively implement alternative punishments to foster socio-economic and political development and facilitate the object under Article 9 of the Constitution125 which emphasis the self reliance as the means of promoting individuals development. Interested Non Government Institutions who fight for human rights and other religious institutions should make necessary efforts by making sure
125
The Constitution of the United Republic of Tanzania of 1977 as amended time to time. 50
that morals, spiritual ethics and conducts126 are observed in promoting self reliance as well offenders or criminals using their labour to earn for their living instead of engaging in criminal conducts; this will ensure protecting peace and security in the society.127 From the teachings by religious leaders it shall become simple in achieving engineering of socio-economic and political development through alternative imprisonment. The right to be forgotten should be practicable so as to allow those criminals to be constitutionally identified their political rights particularly the rights to vote and to be voted and other related rights as the fact that they are human too, hence deserve such rights contrary to the provisions of the Constitution and other related legislations.
126
Through these practices it allows to receive the instruction of wisdom, justice, and judgement, and equity; to give subtlety to simple, to the young man knowledge and discretion. Proverbs 1: 3 – 4. 127 Writings from the Holy Bible, New Testament by Prophet Mathew 22:37 – 40 51
Bibliography Text Books Albeanese J. S, Criminal Justice, Second Edition, Allyn and Bacon A Person and Education Company, Boston, 2002 Senna J. J & Siegel J. L, Introduction to Criminal Justice, Sixth Edition, West Publishing Company, New York, 1993 B. S. Lynns, Sentencing, Corrections, and Prisoners‟ Rights in Nutshell, Fourth Edition, St. Paul, Minn. West Publishing Co., Sheldon Krantz, Piper & Marbury, Washington D.C, 1994 J. S. Read, Criminal Law in the Africa of today and tomorrow, 1963, J. A. L 5 Samaha J, Criminal Justice, Seventh Edition, Thomson Learning Inc., California, USA, 2006 W. Friedman, Law in Changing Society, Second Edition, New Delhi, Universal Book Traders, 1996 Yahaya Abdulkarim, An Analysis of Socio-Economic Impact of imprisonment in Nigeria Department of General Studies (GNS), Federal Polytechnic, Nasarawa, Nasarawa State, P.M.B 001, Nasarawa State, Nigeria, Vol 2, No.9, 2012 Gerry Breslin, Collins English Dictionary, Eleventh Edition, HarperCollins Publishers, London, 2011.
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Sara Hawker, Conscious Oxford Dictionary, Twelfth Edition, Oxford University Press, London, 2011 Articles and Journals C. Simon, Criminal Justice Policies in Commonwealth Africa; Trends and Prospects, Journal of African Law, 44: 218-238, (2000) Jordan Baker, Jennifer Donaldson, Elizabeth Flynn and others, A Solution to Prison Overcrowding and Recidivism: Global Positioning System Location of Parolees and Probationers, Thesis submitted in partial fulfillment of the requirements of the Gemstone Program, University of Maryland, 2002 John Kisembeo and Dr. Alhas Maicibi, Commonwealth East African Workshop on Alternative Sentencing and Strategies to Reduce Prison Overcrowding, Kigali Rwanda, 2011 Kilasa Mtambalike, Tanzania: Non Custodial Sanction Remedy to prison Overcrowding, Tanzania daily News, 13th November 2013. Lukas Mutingh, Human Rights in African Prisons; Alternative Sentencing in Africa, some Lessons Learned and Future Prospects Penal Reform International, Alternatives to Imprisonment in East Africa: Trends and Challenges, February 2012. United Nations Economic and Social Council, Kampala Declaration on Prisons Condition in Africa, 1996
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Statutes The Constitution of the United Republic of Tanzania of 1977 as amended time to time. Community Service Act, No. 6 of 2002, G.N. No. 36 of 6th February 2004. Parole Boards Regulations, 1997 [G.N. No. 563 of 1997] Community Service Regulations, March 2004 Probation of Offenders Act [Cap 247 R.E. 2002] Criminal Procedure Act, [Cap 20 R.E. 2002] Parole Board Act [Cap 400 R.E. 2002] Penal Code, [Cap 16 R.E. 2002] Prison Service Act [Cap 58 R.E. 2002] Case Laws DPP v. Mitchel (2002) VSCA 151 Hashams v. R (1971) H.C.D. 38 Maneka Gandhi v. Union of India [1978] 2 SCR 621 Republic v. Maluguru Sanga (Unreported Criminal Case of 2004 at Iringa) Republic v. Asia Salum and Others [1986] TLR 12 Republic v. Kidato Abudlla [1973] L.R.T 82 Republic v. Pratice Matata (1967) H.C.D. n 413 54
Republic v. Twaibu Ubwa [Criminal Revision No. 13 of 2003] Internet sources http://www.prisonersreviewboard.wa.gov.au/W/what_is_parole.aspx?uid= 9444-5950-1290-0107 www.psmag.com/legal-affairs/Alternative-Sentencing-gaining acceptance23551 AllAfrica.com/stories/201311130278.html? http://www.salon.com/2014/06/12/ www.hsrcpress.ac.za. www.iiste.org Paper Ross E. J. Kinemo, Contemporary Tanzanian penal Policy: A Critical Analysis, A paper presented at the Crime Conference, organized by the British, Institute in East Africa at Naivasha, Kenya, 2013 Report The Tanzanian 1969 Prison Annual Report
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