Police Forces and the Administration of Justice in Tanzania. By Praygod Manase.

Tanzania achieved her independence in 1961 from the British after the long struggles of our forefathers against the cruel and inhuman administration which was administered by the colonialists. The colonial administration was characterized segregation, by use of brutal force, of degradation, alienation

programs, really care for its citizens or acts upon its wishes only? Do the police have relevant knowledge of the law and the principles they have to abide by in their work? What is the cause of claims directed towards police forces? All these and many more questions need a critical analysis. ADMINISTRATIVE JUSTICE. The concept of administrative justice is such that, the impact which a governments administrative decision can have on the rights or interests of a person that is a key determinant of the expectation that administrative justice should be observed. In that sense, at its core, administrative justice is a philosophy that in administrative decisionmaking the rights and interests of individuals should be properly safeguarded.ii Further, a broader definition would mean the application in a particular context of the essentials of lawful, fair and rational behavior that citizens and corporations or other corporate entities are entitled to expect of all decision-makers, whether they be judges or public officials. While their trappings, mechanisms and legal effects may differ, the extent to which those core elements are maintained will continue to be a measure of the rule of law in our society. Their maintenance apposes practical challenges for all who administration. Administrative justice can be divided into two fields; the first sets standards for the quality of decisions that are made, and the second sets procedural standards for the way in which such are concerned about public

properties from Africa and other inhuman acts. After gaining independence Tanzanians were eager to have their own system of administration which would cater for their needs and respect them as people and give them the joy and happiness they had always wanted. However it is questionable if after almost 50 years of independence the system of government meets those expectations. This takes us back to the basic proposition that the African state and economy are a continuation of the colonial state and economy and as such can deliver neither political democracy nor social democracy which is a very serious indictment that cannot be made, without proffering at least credible evidence.
i

The police forces who are vested with powers of protecting and safeguarding the citizens interests are one of the organs which have a very critical position in this country in the administration of justice. However it is questionable whether they understand their position. This paper basically analyses the police forces and administrative justice. Does the government in executing its policies and

decisions are executed. Whereby, a breach of any of the aforementioned categories leads to administrative injustice which directly amounts to a breach of the most fundamental rights of human between beings, which define relationships structures
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tremendous powers that can be misused to serve partisan interests.v However police, like any other corporate organization and any ordinary citizen, is above all accountable to the law. Armed with the mighty of the State and empowered to use force against ordinary citizens, the police in its special role of performing a service for the good of citizens with the citizens money is answerable not only for its wrongdoings but also for its performance.
vi

individuals

and

power

especially the State, Human rights.

Human

rights delimit State power and, at the same time, require States to take positive measures ensuring an environment that enables all people to enjoy their human rights.
iv

The

Tanzanian courts have to a great extent dealt with the first part i.e. the manner and quality the government in regard to its statutes and policies and has set a number of legislations as being null and void by reason of being among others unconstitutional, unjust and against human rights . In this regard, the major area of concern will be the execution of the governmental decisions and orders assuming that all the governmental orders, policies and legislations are just and fair as a result of being into permanent judicial scrutiny. This papers major concern will be based on the executers of the orders especially the police forces.

In practical terms, it is the duty of the police within the context of maintaining law and order to prevent the commission of offences, to apprehend those believed to be committing or about to commit or to have committed offences and bring them to justice. The core functions of the Police Force in Tanzania are stated under section 5 of the Police Force and Auxiliary Services Act Cap 322 as follows: The Force shall the be employed Republic in for and the throughout United

preservation of peace, the maintenance of law and order, the prevention and detection of crime, the apprehension and guarding of offenders and the protection of property

THE POLICE FORCES. The police force is one of the most noticeable executer of government policies and orders. It is also one of the government institutions which work so close to the citizens and society as whole. The police in performing their duties to prevent their misuse. Also are vested with immense powers which must be controlled controlling the police itself is a source of GUIDING PRINCIPLES; As noted earlier the police in performing their functions are endowed with much power, which if not controlled effectively it can be abused and occur injustice and breach of human rights. In many African countries, the Police Acts vest the control in the head of the police force, but subject it to the directions given by the President or the Minister, which are binding vii.

2|Page Praygod Manase, Makumira university college llb2 ipmanase@ymail.com.

The Tanzanian police force is guided by among others the constitution of the united republic of Tanzania, the criminal procedure act, the police force and auxiliary services act, the police force services regulation 1995 and the police general orders. Of importance to this paper is the constitution, the Criminal Procedures Act. THE CONSTITUTION. The police forces in Tanzania are not much guided by the constitution. The only explicit provision guiding them is Article 13(6)(b) which holds that no person charged with a criminal offence shall be treated as guilty until it has been proven so. It does not tell us the real position of the police forces, albeit it has explained generally a lot about the armed forces. Further the constitution does not relate the ideals of human rights and administrative justice into the police mandate despite the presence of the bill of human rights incorporated. Nor does the constitution of the united republic of Tanzania require the police to be responsive, representative or accountable.viii The constitution is based on ideas of collective security, i.e. citizens self defense as provided for under article 27(1), which requires all able bodied Tanzanians to prevent crimes and maintain peace and security. Article 9 of the constitution incorporates the United Nations declaration for human rights and requires the government bodies to comply with the declaration. Further article 9(h) calls for all the government bodies to eradicate all forms of injustice discrimination, oppression

and favoritism. These principles provide a good base for the public authorities to work from however article 30 states that any rights and freedoms enshrined in the constitution do not invalidate any existing public order or public safety legislation. Whilst the freedom of assembly and association are guaranteed by Tanzanias constitution and its adherence to international human rights instruments, in practice the police forces often interfere with peaceful gatherings of a religious and political kind. Particularly worrying, from the perspective during of Tanzanias democratic are development, are reports that opposition party rallies election campaigns sometimes interfered with or banned. Religious gatherings are also targeted, with evidence that the government has singled out Muslim groups in particular. The question about the guarantee of the freedom of association in Tanzania is of fundamental importance.ix THE CRIMINAL PROCEDURE ACT. Never the less, under the Criminal procedure Act and the police forces Act, once a person is arrested they must be kept in an authorized place, informed of the reasons for their arrest and their right to a lawyer and to be taken to court as soon as possible. Arrests can be made with or without warrants. Also s. 32(1) of the CPA requires the police officer to produce the arrested before the court in 24 hours. Further, The Criminal Procedure Act in Section 21(1) provides to the effect that in making an arrest of an individual, the police officer shall not use more force than necessary to make the arrest

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or to prevent the escape of a person. However this has not always been the case. Despite the laws, governing the powers of the police force and guaranteeing security and freedom to all individuals, it is common to hear abuse of power by the police, acting as semigods, using unnecessary force against citizens and breaching the fundamental human rights. The constitution of the United Republic of Tanzania stipulates very clearly that every person shall be presumed to be innocent until proved otherwise by the court of law. However this fundamental and international principle is not followed. The USSD 2009 Human Rights Report on Tanzania stated that, The constitution and law prohibit such practices; however, police officers and prison guards abused, threatened, and otherwise mistreated civilians, suspected criminals, and prisoners on several occasions during the year. Beatings were the method most commonly used.
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THE SOURCE OF THE PROBLEM. To know where the problem emanates from, there are a number of questions that need to be addressed, who exercises control over the police and how is the control exercised? What are the checks and balances to which the police powers are subject? To whom do the police account for their performance and conduct? What type of relationship exists between the police and the political executive? Some of the questions have already been answered by the first part, however basically the organs of the state no-matter who controls them are subject to the constitution and other laws of the land. The legislations as have been explained above have their own weaknesses, majorly the absence of the international human rights obligations and good governance policies. xii Further it is clear that the Law gives virtually unfettered discretion to the officers of the Executive without legal accountability. Thus, for example, criminal prosecutions against top officers of the police at the independent initiative of the Director of Public Prosecutions (DPP), or coroner's courts or inquests, to account for deaths at the hands of the police, are virtually unknown in post-independence Tanzania although law to that effect exists on statute books.
xiii

This is evidenced by the case of Nancy c. Msabala, v. regional commissioner officer xi, where a woman was unlawfully arrested, detained, confined and prosecuted without probable or reasonable cause, she was not produced before the court for three days and was only set free after two months. This case reflects the typical way in which the police act upon criminal suspects in Tanzania.

However on the other hand we have the government of which the police act as its instrument, therefore it is important that we also go into detail and analyze whether the executive has a hand in the breach of the law and occurrence of injustice by the police forces. The president is the chief commander

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of all armed forces in the country as per article 33(2) of the constitution of the united republic of Tanzania. The IGP is appointed by the president and works according to the orders of the president. He neither has a fixed term of office nor any criteria for appointment.
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institution which is accorded authority and power by the law. The institutional frame work is better qualified as the main source to the shortcomings in the effective and efficient policing in the country. The weak institutional framework is manifested in the lack of regular internal police inspections, low levels of supervision as well as internal monitoring and evaluation, lack of formalized institutional system and coordination in the fight against corruption; poor police accountability to the public and low levels of discipline and weak administrative structures within the force.xvii The laws are the guiding principles on what is prohibited and what is not, every citizen must know and understand clearly the duties of public officials and the limits of their powers, to prevent any abuse hence the need for well defined and up to date laws. However the Tanzania Police Force is governed by a colonial law, which has seen no comprehensive review since its initial promulgation in 1953.xviii

Further the control of the police forces falls under the minister of home affairs who can give orders to the police without questioned.
xv

being is

This

reveals

that

there

concentration and centralization of power in the executive arm of the state and within the office of the president. The president is both the appointing, and ultimately disciplining, authority.xvi This brings a big doubt as to the functioning of the police forces and according to its framework one may infer that the misconducts and breaches of peace caused by the police officers in various areas is a reflection of the executive arm of the government. The doubt is even much when it comes to the matters of general elections. It has happened several times that during elections the opposing political parties are disturbed in one way or another by the police, and the claims have always been thrown on the leading political party. According to the claims of the opposition parties and other critiques, the ruling party and government in power use the police forces for its own interest and this is difficult to refute because of the presidential control of the police which may allow illegitimate interference with the rights of individuals. Looking at the police as an institution, the role of an individual police is so minimal as compared to what is done by the whole

CONCLUSION In the interest of the public and for the enhancement of administrative justice by the police, it is advisable that the police forces undergo intensive reforms in the institutional frame work and in the laws so that they reflect democratic principles of policing, the practice of internal and external accountability mechanisms, international legal obligations, good governance and the right to information.
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Most important is the strengthening of

accountability mechanisms so that they are

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strong enough to ensure police accountability and to buffer the police against illegitimate political interference. This includes strong internal and external accountability and to ensure the police are accountable to the judiciary, the parliament and community and in particular to a special and independent
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xi

Unreported case accessed at www.humanrightsinitiatve.org xii The police, the people, the politics; police accountability in Tanzania. Commonwealth human rights initiative (2006)
xiii

Issa shivji, A study of police powers and The police, the people, the politics; police

political expression (2001)

xiv

statutory institution preferably one that is dedicated to deal with public complaints.

accountability in Tanzania. Commonwealth human rights initiative (2006)

xv

Preventive and detection of crimes act 1962. Issa Shivji, A study of police powers and IGP Said A. Mwema, Paper to be presented

Endnotes: i Archie Mafeje, Democratic Governance And New Democracy In Africa: Agenda For The Future (2002)
ii

xvi

political expression (2001)

xvii

Justice R S French, Administrative Justice in Robin Creyke & John McMillan, Administrative

at the National Convention on Public Sector Reforms on Achieving Rapid Results in Public Sector Reforms (2008)
xviii xix

Australian Administrative Law, (1999)

iii

Justice; A presented at the 1999 National Administrative Law Forum.

iv

ibid

The police, the people, the politics; police

Manfred Nowak Human Rights: A Handbook For

accountability in Tanzania. Commonwealth human rights initiative (2006)

xx

Parliamentarians (2005)
v

G. P. Joshi, Controlling the Police; An Analysis

Ibid.

of the Police Act of the Commonwealth Countries IPES Working Paper _o 13, October 2007 pg 3.
vi

Swati Mehta, Access to Justice Programme, IGP Said A. Mwema, Paper to be presented

CHRI
vii vii

at the National Convention on Public Sector Reforms on Achieving Rapid Results in Public Sector Reforms (2008)
viii

The police, the people, the politics; police

accountability in Tanzania. Commonwealth human rights initiative (2006)

ix

Amnesty International (2006) Amnesty USSD 2009 Human Rights Report on Tanzania

International Annual Report 2006.

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6|Page Praygod Manase, Makumira university college llb2 ipmanase@ymail.com.