The law and prospective restorative measures in Tanzania

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Introduction

‘[C]onflicts have been taken away from the parties directly involved and thereby have either disappeared or become other people’s property.’ The article ‘Conflicts as Property’ by Niels Christie is one of the most frequently cited journal articles in restorative justice discourse. He argued that conflict, which is the ‘property’ of a community, has been taken away from the affected parties. This valuable ‘property’ has been ‘stolen’ by professionals who are not an actual part of the conflict. As result, the victim’s right to participate in the conflict is limited to the role of a witness.

The adversarial criminal justice system

The adversarial criminal justice system applies in many common law jurisdictions, including Tanzania. This system of justice presents a myriad of challenges to clients and the public. It fails to meet the needs of the victim, offender and community, and role-players in the justice process and the public feel that vacuum. The contemporary criminal justice normally decouples the conflict from the most affected parties. It tends to side-line major stakeholders (victim, offender and the community) in the criminal justice process. According to Roche, the adversarial criminal justice system is modelled on and controlled by ‘law’ and ‘professionals’.

Movements away from adversarial criminal justice

The law has never been static. Social, economic and political pressures influence daily human interactions. The law too must embrace change. In this regard, there are campaigns such as the comprehensive law movement and victim rights’ movement that call for criminal justice transformation.

Restorative justice

Many authors, pieces of legislation and international instruments have sought to encapsulate restorative values and principles in definitions. The most popular definition of restorative justice in the field of criminal justice is that of Tony Marshall. According to him, ‘restorative justice is a process whereby all parties with a stake in a specific offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future’.

Declaration
Chapter 1: Introduction
1.1 Introduction
1.2 Context of the study
1.2.1 The adversarial criminal justice system
1.2.2 The victim in the criminal justice system
1.2.3 The offender under the criminal justice system
1.3 Movements away from adversarial criminal justice
1.4 Conceptual framework
1.4.1 Restorative justice
1.4.2 Therapeutic jurisprudence
1.4.3 African traditional justice
1.5 Research question
1.6 The law and prospective restorative measures in Tanzania
1.6.1 Constitutional provisions
1.6.2 Other Tanzanian legislation
1.7 Scope of the research
1.8 Research methodology
1.9 Conclusion
Chapter 2: Modern Restorative Justice Theory and Contemporary Debates
2.1 Introduction
2.2 Defining restorative justice
2.3 Background to modern restorative justice
2.4 Rationale for the application of modern restorative justice
2.4.1 Therapeutic approach to crimes
2.4.2 The victim in the adversarial criminal justice system
2.4.2.1 Recognition of victims in the criminal justice process
2.5 Elements of modern restorative justice
2.6 Advantages of restorative justice
2.7 Contemporary debates on modern restorative justice
2.7.1 Involving the community in restorative justice
2.7.2 Using restorative justice to resolve sexual offences
2.7.3 Restorative justice for violent offences
2.7.4 Punishment in restorative justice
2.7.5 Using a victim as a ploy for offender’s reformation
2.7.6 Different outcomes for each crime
2.7.7 Restorative justice: A dependant model of justice
2.8 Conclusion
Chapter 3: Modern Restorative Justice Practices
3.1 Introduction
3.2 The process of justice under restorative justice
3.3 Restorative justice processes
3.3.1 Victim-offender mediation
3.3.2 Victim-offender encounter
3.3.3 Family group-conferencing
3.3.4 Conferencing circles
3.3.5 Sentencing circles
3.5 Restorative justice, diversion and sentencing processes
3.5.1 Restorative justice and diversion
3.5.1 Restorative justice, sentencing processes and informal mediation
3.6 Restorative justice practices in prisons
3.7 The South African Zwelethemba justice model
3.8 Conclusion
Chapter 4: Indigenous Restorative Justice Practices
4.1 Introduction
4.2 Background
4.3 Indigenous justice under international law
4.4 Maori traditional justice in New Zealand
4.5 The influence of Maori indigenous justice
4.6 The Navajo and the peace-making philosophy
4.7 The Navajo justice philosophy and nation courts
4.8 Human interconnection and the spirit of indigenous justice
4.9 Indigenous justice and restorative justice compared
4.9.1 Similarities
4.9.2 Differences
4.10 Conclusion
Chapter 5: African Jurisprudence of Restorative Justice
5.1 Introduction
5.2 Restorative justice under gacaca courts in Rwanda
5.2.1 Background
5.2.2 Gacaca courts and their jurisdiction
5.2.3 Advantages of traditional gacaca courts
5.2.4 Challenges to gacaca courts
5.3 Acholi traditional justice in Uganda
5.4 Restorative justice and fambul toks in Sierra Leone
5.5 Reconciliation under magamba spirits in Mozambique
5.7 Conclusion
Chapter 6: Ubuntu and Restorative Justice under Transitional Justice in Africa
6.1 Introduction
6.2 Ubuntu as the African philosophy of justice
6.2.1 Criticisms of ubuntu
6.2.2 Justification of ubuntu from an African perspective
6.3 Ubuntu and the Truth and Reconciliation Commission of South Africa
6.3.1 The challenges faced by the Commission
6.3.2 The Commission as a model of transitional justice
6.4 Ubuntu and judicial decisions in South Africa
6.5 Ubuntu and restorative justice in judicial decisions in South Africa
6.6 Judicial decisions and the spirit of reconciliation
6.7 The influence of Ubuntu on other African commissions
6.8 Ujamaa and the ‘Africanisation’ philosophy
6.9 Conclusion
Chapter 7: The Contemporary Criminal Justice System in Tanzania
7.1 Introduction
7.2 The Court system in Tanzania
7.2.1 The Court of Appeal
7.2.2 The High Court
7.2.3 The Resident Magistrates’ Court
7.2.4 District Court
7.2.5 Primary Court
7.3 The adversarial criminal justice processes
7.4 Victims in the criminal justice process
7.4.1 The victim and the pre-trial process
7.4.2 Victim’s needs in the criminal justice process
7.4.3 Treatment of victims under the criminal justice system
7.4.4 Victims’ voice in the criminal justice process
7.4.5 Victims’ right to compensation
7.5 Offenders in the adversarial criminal justice system
7.5.1 Offenders’ needs and accountability
7.5.2 Sentencing the offender
7.5.3 Prison rehabilitation of offenders
7.5.3.1 The prisons
7.5.3.2 Prisoners’ release
7.6 Community needs under the criminal justice process
7.7 The technicalities of the adversarial justice process
7.8 The language dilemma and the courts in Tanzania
7.9 Conclusion
Chapter 8: The Spirit of Restorative Justice and the Law of Tanzania
8.1 Introduction
8.2 Background to the justice system in Tanzania
8.3 Mediation processes within the community
8.3.1 The Village Land Council and the reconciliation process
8.3.2 Ward tribunals and restorative justice practices
8.4 Courts and the restorative justice approach in Tanzania
8.4.1 The Constitution and the spirit of reconciliation
8.4.2 Constitutional provisions of other East African Countries
8.4.3 Reconciliation under the Tanzania Criminal Procedure Act
8.4.4 Reconciliation under Primary Courts
8.4.5 Court assessors in the criminal justice administration
8.4.6 Reconciliation under the Law of Marriage Act of 1971
8.4.7 Restorative justice under the juvenile courts in Tanzania
8.5 Conclusion
Chapter 9: Conclusion: Proposals for the Introduction of a Restorative Justice Approach in Tanzania
9.1 Introduction
9.2 A proposed restorative justice regime
9.2.1 The proposed police diversionary measure and restorative justice
9.2.1.1 Police diversion to welfare services, the Ward Tribunal and Village Council
9.2.1.2 Police cautioning
9.2.2 Engaging village councils for realising restorative justice aims
9.2.2.1 Resolution of disputes without resorting to courts
9.2.2.2 Referrals from the criminal justice system
9.2.3 Ward tribunals and restorative processes
9.2.4 The use of restorative justice in criminal courts
9.2.5 Prison restorative justice programme for offenders’ reintegration
9.3 The workforce for the system
9.4 Restorative justice as a programme under the government
9.5 Proposal to improve the contemporary criminal justice system in Tanzania
9.5.1 Transforming Primary Courts into reconciliation courts
9.5.2 Reconsidering the role of assessors
9.5.3 Establishment of a victims’ compensation scheme
9.6 Conclusion
Bibliography