CONTEMPORARY TANZANIAN PENAL POLICY
Introduction
The term punishment in criminal law has been defined as "any pain, penalty, suffering or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court; for some crime or offence committed by him, or his omission of a duty enjoined by the law". The Grotius Black Dictionary defines punishment as "the infliction of an ill suffered for an ill done". Thus, we can gather from the above definitions that Firstly some punishment is something unpleasant to the recipient; and it is a sequel to some previous act disapproved by the authority. Merely inflicting pain without provocation is not punishment.
Secondly, the unpleasantness of the punishment to the person punished reflects the "unpleasantness of the crime to its victims and to the community". Thirdly, the punishment is inflicted. It is imposed by another person's voluntary act; and fourthly, punishment is inflicted upon criminal or anybody answerable for him, if an angry man vents his anger on anybody within reach, that is not punishment.
There have been numerous theories regarding punishment and justification for it. The first theory propounds that the guilt justifies the punishment, and the punishment should serve the purpose of nullifying the guilt. However the second theory propounds that punishment presupposes a system of publicly supported rights which some individuals may deliberately violate. In canceling this wrongful act the punishment negates the bad will of the criminal. The third theory propounds that the state has a right to punish because it has a right to injure in the public interest; and because in enacting the criminal law it had promised protection to the Citizens.
Such theories first make a presumption that the criminal is a rational being who always knows what is good for the Society and what is bad, and he chooses of his own volition, to commit a wrongful act. Although the criminal law deals with criminal deeds per se, regardless of the characters and dispositions from where they originate, those enforcing this criminal law deal with criminals as responsible persons inhabiting the same world of morals as the "non-criminals".
Aims of Punishment
There is no universal theory of punishment which can be said to be predominant. Available information suggest that deterrence, reformation (education towards rehabilitation) and retribution forms the major approaches to punishment.
Retribution
This is the notion that criminals deserve to suffer for their crimes, a responsible criminal should be punished with a penalty proportionate to his offence. This theory also holds up that punishment shows the community's disapproval of the crime; that if the community condones the crime. This theory is illustrated by the case of Alan Milner, Nigerian Penal System (1972) 1950 of Rex V Mulumbix in which sixty people were sentenced to death for having killed a woman they believed to be a witch. In sentencing them; the judge said "the government does want not to legalize the killing of witches" so the court must be very strict. But if we may ask; what is the relationship between a Scale of the Seriousness of the offence and that of the severity of punishment?. It is not practically possible to administer in such a way that the amount of pain and suffering experienced by an individual offender can be measured by any standard1 . The Vagrant may welcome the security of the prison while the businessmen will resent its restrictions. Socially this theory works backwards to the offence and the offender's guilt. In that case it is indiscriminating as to the future consequences of the punishment itself.
Deterrence
In the case of Mussa Mnapax, Mwakasendo J., confirming a sentence on a person who had stolen property of an Ujamaa village said, "in order to instil in the minds of the people some respect for property owned communally the court must impose salutary sentence2 . They must act firmly and severally. If people know that courts will not tolerate this type of conduct, there is every reason to suppose that fewer and fewer people would wish to engage in this type of senseless and want on destruction of Ujamaa property". However, the deterrence theory has not succeeded in relieving us of the problem of crime. The government, in effort to find an answer to this problem introduced the minimum sentences Act in 1963. This was an attempt to find an answer to this very serious problem. The Act failed to function effectively and the new Act of 1972 is also seem to face the same fate. The first weakness of the deterrent theory is publicity. Many people commit offences without being aware that they are breaking the law.
The Second weakness is that even if one knew of the existence of the prohibition it is not similar to knowing the punishment attached to it. But even that were known, there is no doubt as to whether it really affects the decision of the individual3 .
Prevention or Restraint:
This is a third aim of punishment. It is based on the belief that there are some Criminals who are beyond redemption. The community can be better protected if they removed from a position in which he can commit any crime. In Rex V. Abebesin,4 the two defendants were sentenced to concurrent sentences of ten years hard labour and eight (8) years of burglary, stealing and robbery. On appeal from severity of sentence the Judge enhanced the sentence, "The accused were members of an armed gang committing burglary and robbery; Moreover, the first accused had been seriously been convicted on grounding and attempted shooting. For protection of the public, they should be sent to prison for even longer term".
Sentence of the first accused increased to 15 years, of the second accused to 12 years. This was in 1940. More than 30 years later Nigeria now shoots criminals of the same offences. This theory is of last resort turned to if the community cannot achieve its objectives by more constructive means.
Rehabilitation
This is a popular theory now. Underlying it is the assumption that the criminal is a "sick" citizen who should be treated. The time for confinement is used to teach him a skill and to make him a "better" citizen. It manifests class differences in a society. Assuming that all criminals are unskilled and unemployed. It shows that only the sick are prone to being netted into the cobwels of "justices" and brushes aside the fact that even managers can be prisoners.
THE TANZANIA'S PENAL POLICY
In the foreword of the Prisons annual Report we are told inter alia: "Tanzania consider the Prisons as only 21 years old because of the reincarnation that, came with Independence in 1961. The distinction is drawn from the philosophy, nature 7 and objectives of the Institution before and after Independence. On one hand, the colonialists enforced their oppressive rule by incarcerating anti-colonial elements among the people. Their sentences were accompanied with hard labour torture and degradation, both as deference to them and as a threat to the rest. ... on the other, the Institution became a penitentiary, basically aimed at rehabilitating inmates by reformatory treatment. It was thus assigned to ensure the scientific deployment of inmates, human resources as strive to become a model for mobilisation and implementation of national and cultural affairs." The fact that in this report we are told of some change of attitude by the government towards criminals, such an attitude was not knew. Lord Hailey in his work mentioned that the colonial government had instituted reform oriented measures. The aim was to rehabilitate offenders. It has been found that if offenders were trained in various skills they could be usefully employed after serving their sentences in prisons. This was on the assumption that criminals are always drawn from non-trained people.
The asserted change of attitude did not necessarily mean that the other purposes of punishment were abandoned. Three years after Independence, the government introduced the Minimum Sentences Act 1963 whose aim was to provide a minimum penalty for scheduled offences.
Although Judges and magistrates view punishment as serving the rehabilitation of the criminal, their discretion in sentencing is limited by the Minimum Sentences Acts. As a result many prisoners have been subjected to inhuman and degrading punishments such as death, excessive years of imprisonment or Corporal punishment which retards the Cardinal point of rehabilitation of prisoners.
In fact, when it comes to calculating the severity of punishment, the main grounds upon which sentences are assessed in Courts today are the gravity of the crime and the moral responsibility of the criminal for his crime rather than rehabilitation.
Thirty Years Imprisonment
The Minimum Sentences Act in applying minimum terms of imprisonment Cartebranche preclude considerations being given to probation, conditional discharge, suspended sentences and entering into recogniscences.
That, much has rendered the impugned legislation arbitrary, disproportionately punitive and non rehabilitative.
It is considered that the minimum sentence of thirty (30) years imprisonment is disproportionate and does not rehabilitate an offender because it is excessive or unconscionable even for the offence of armed robbery. The punishment is `excessive´ because it makes no measurable contribution to acceptable reformation goals and hence it is nothing more than the purposeless and needless imposition of pain and suffering. Slattery states that punishment for criminal offence is generally viewed as serving one or more of three main purposes:
(i) deterrence both of the Criminal himself (special deterrence) and also of society at large (general deterrence),
(ii) the rehabilitation of the criminal; and
(iii) restraint - the isolation of the hardened or dangerous criminal from society. These objectives are seen as constituting the ultimate justification for sentence imposed by a court in place of the more traditional view which simply holds that evil man serve to be punished, which notion, is sometimes called `retribution' or `the notion of justice'".
The government takes rehabilitation as a top priority as reflected in S.61 of the Prisons Act wherein emphasis is laid on training of prisoners so that when the prisoner is released he becomes a good citizen, usefully self-employed. Now the thirty (30) years imprisonment is self defeating because that period is almost the life-expectancy of a Tanzanian. and so the rehabilitation policy is not in place. It appears the government on enacting such a severe sentence had in mind only retribution and restraint of the offenders. It should be remembered that restraint of offenders is reserved for recidivists only (hardened and dangerous criminals). And retribution as a sentencing policy is old fashioned and uncivilised as it espouses sadism. It will be seen therefore that the sentence of thirty (30) years minimum, goes beyond legitimate penal objectives and does not bear a rational relationship to the accomplishment of penalogical goals which are of sufficient importance to justify its severity.
Therefore to suggest that parliament had seriously addressed itself to the whole issue of rehabilitation is a premise which is obviously a suspect. This is because it is both simplistic and unrealistic to suggest that an increase in the severity of punishment by itself will have any significant impact on existing patterns of crime. Where moral values are central to a problem such as crime, the legal system should struggle to achieve at least incidental significance. The working of the criminal justice system can have little, if any, impact on complex, sociological
phenomena. Any discussion of crime and punishment inevitably overlooks, the heart of the dilemma. Really, what we have is a major problem involving education and policing. A sociological phenomenon cannot be effectively influenced by judicial band-aiding. Imposing harsh sentences indiscriminately is nothing other than Kangaroo justice.
It just does not work and stands little chance of effectively influencing current rehabilitation process. So we cannot look to the Courts alone, otherwise that would be a fundamental misunderstanding of the role of the courts. All that the justice system can reasonably do at the present time is to maintain a predictable and reasonable response to the increasing crime rate, in terms of what most Tanzanians really and truly might be the consequences of detection and conviction (moderate prison sentences). Any major change can only be effected at the political level, the legislators are encouraged to get serious about rehabilitation of offenders.
Corporal punishment
Tanzania has a legislation which sanctions Corporal punishment by installments. The Minimum Sentences Act as amended Introduced Corporal punishment by installments. The Corporal punishment ordinance is amended in S.12 whereof Corporal punishment shall be inflicted in the installments each consisting of six strokes. The first instalment at the commencement of the term of imprisonment and the other immediately before the person in question is finally released. That is a horrible situation and does not rehabilitate the prisoner.
Death Penalty:
The death penalty imposed on a number of prisoners does not rehabilitate them. It has been said that the question of capital punishment falls between two schools: If it proves deterrent, it risks executing the innocent if it protects the innocent perfectly, it is so seldom that it fails to deter17. The question again is not merely whether capital punishment deters but whether it does so more effectively than other penalties or methods. Studies have concluded that the death penalty is inconsequential as a deterrent.
CONCLUSION and POLICY IMPLICATIONS
Although the Government of United Republic of Tanzania has taken reformation or rehabilitation as a top priority, Judges and Magistrates have been denied their sentencing discretion by the minimum sentences Acts.
The term punishment in criminal law has been defined as "any pain, penalty, suffering or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court; for some crime or offence committed by him, or his omission of a duty enjoined by the law". The Grotius Black Dictionary defines punishment as "the infliction of an ill suffered for an ill done". Thus, we can gather from the above definitions that Firstly some punishment is something unpleasant to the recipient; and it is a sequel to some previous act disapproved by the authority. Merely inflicting pain without provocation is not punishment.
Secondly, the unpleasantness of the punishment to the person punished reflects the "unpleasantness of the crime to its victims and to the community". Thirdly, the punishment is inflicted. It is imposed by another person's voluntary act; and fourthly, punishment is inflicted upon criminal or anybody answerable for him, if an angry man vents his anger on anybody within reach, that is not punishment.
There have been numerous theories regarding punishment and justification for it. The first theory propounds that the guilt justifies the punishment, and the punishment should serve the purpose of nullifying the guilt. However the second theory propounds that punishment presupposes a system of publicly supported rights which some individuals may deliberately violate. In canceling this wrongful act the punishment negates the bad will of the criminal. The third theory propounds that the state has a right to punish because it has a right to injure in the public interest; and because in enacting the criminal law it had promised protection to the Citizens.
Such theories first make a presumption that the criminal is a rational being who always knows what is good for the Society and what is bad, and he chooses of his own volition, to commit a wrongful act. Although the criminal law deals with criminal deeds per se, regardless of the characters and dispositions from where they originate, those enforcing this criminal law deal with criminals as responsible persons inhabiting the same world of morals as the "non-criminals".
Aims of Punishment
There is no universal theory of punishment which can be said to be predominant. Available information suggest that deterrence, reformation (education towards rehabilitation) and retribution forms the major approaches to punishment.
Retribution
This is the notion that criminals deserve to suffer for their crimes, a responsible criminal should be punished with a penalty proportionate to his offence. This theory also holds up that punishment shows the community's disapproval of the crime; that if the community condones the crime. This theory is illustrated by the case of Alan Milner, Nigerian Penal System (1972) 1950 of Rex V Mulumbix in which sixty people were sentenced to death for having killed a woman they believed to be a witch. In sentencing them; the judge said "the government does want not to legalize the killing of witches" so the court must be very strict. But if we may ask; what is the relationship between a Scale of the Seriousness of the offence and that of the severity of punishment?. It is not practically possible to administer in such a way that the amount of pain and suffering experienced by an individual offender can be measured by any standard1 . The Vagrant may welcome the security of the prison while the businessmen will resent its restrictions. Socially this theory works backwards to the offence and the offender's guilt. In that case it is indiscriminating as to the future consequences of the punishment itself.
Deterrence
In the case of Mussa Mnapax, Mwakasendo J., confirming a sentence on a person who had stolen property of an Ujamaa village said, "in order to instil in the minds of the people some respect for property owned communally the court must impose salutary sentence2 . They must act firmly and severally. If people know that courts will not tolerate this type of conduct, there is every reason to suppose that fewer and fewer people would wish to engage in this type of senseless and want on destruction of Ujamaa property". However, the deterrence theory has not succeeded in relieving us of the problem of crime. The government, in effort to find an answer to this problem introduced the minimum sentences Act in 1963. This was an attempt to find an answer to this very serious problem. The Act failed to function effectively and the new Act of 1972 is also seem to face the same fate. The first weakness of the deterrent theory is publicity. Many people commit offences without being aware that they are breaking the law.
The Second weakness is that even if one knew of the existence of the prohibition it is not similar to knowing the punishment attached to it. But even that were known, there is no doubt as to whether it really affects the decision of the individual3 .
Prevention or Restraint:
This is a third aim of punishment. It is based on the belief that there are some Criminals who are beyond redemption. The community can be better protected if they removed from a position in which he can commit any crime. In Rex V. Abebesin,4 the two defendants were sentenced to concurrent sentences of ten years hard labour and eight (8) years of burglary, stealing and robbery. On appeal from severity of sentence the Judge enhanced the sentence, "The accused were members of an armed gang committing burglary and robbery; Moreover, the first accused had been seriously been convicted on grounding and attempted shooting. For protection of the public, they should be sent to prison for even longer term".
Sentence of the first accused increased to 15 years, of the second accused to 12 years. This was in 1940. More than 30 years later Nigeria now shoots criminals of the same offences. This theory is of last resort turned to if the community cannot achieve its objectives by more constructive means.
Rehabilitation
This is a popular theory now. Underlying it is the assumption that the criminal is a "sick" citizen who should be treated. The time for confinement is used to teach him a skill and to make him a "better" citizen. It manifests class differences in a society. Assuming that all criminals are unskilled and unemployed. It shows that only the sick are prone to being netted into the cobwels of "justices" and brushes aside the fact that even managers can be prisoners.
THE TANZANIA'S PENAL POLICY
In the foreword of the Prisons annual Report we are told inter alia: "Tanzania consider the Prisons as only 21 years old because of the reincarnation that, came with Independence in 1961. The distinction is drawn from the philosophy, nature 7 and objectives of the Institution before and after Independence. On one hand, the colonialists enforced their oppressive rule by incarcerating anti-colonial elements among the people. Their sentences were accompanied with hard labour torture and degradation, both as deference to them and as a threat to the rest. ... on the other, the Institution became a penitentiary, basically aimed at rehabilitating inmates by reformatory treatment. It was thus assigned to ensure the scientific deployment of inmates, human resources as strive to become a model for mobilisation and implementation of national and cultural affairs." The fact that in this report we are told of some change of attitude by the government towards criminals, such an attitude was not knew. Lord Hailey in his work mentioned that the colonial government had instituted reform oriented measures. The aim was to rehabilitate offenders. It has been found that if offenders were trained in various skills they could be usefully employed after serving their sentences in prisons. This was on the assumption that criminals are always drawn from non-trained people.
The asserted change of attitude did not necessarily mean that the other purposes of punishment were abandoned. Three years after Independence, the government introduced the Minimum Sentences Act 1963 whose aim was to provide a minimum penalty for scheduled offences.
Although Judges and magistrates view punishment as serving the rehabilitation of the criminal, their discretion in sentencing is limited by the Minimum Sentences Acts. As a result many prisoners have been subjected to inhuman and degrading punishments such as death, excessive years of imprisonment or Corporal punishment which retards the Cardinal point of rehabilitation of prisoners.
In fact, when it comes to calculating the severity of punishment, the main grounds upon which sentences are assessed in Courts today are the gravity of the crime and the moral responsibility of the criminal for his crime rather than rehabilitation.
Thirty Years Imprisonment
The Minimum Sentences Act in applying minimum terms of imprisonment Cartebranche preclude considerations being given to probation, conditional discharge, suspended sentences and entering into recogniscences.
That, much has rendered the impugned legislation arbitrary, disproportionately punitive and non rehabilitative.
It is considered that the minimum sentence of thirty (30) years imprisonment is disproportionate and does not rehabilitate an offender because it is excessive or unconscionable even for the offence of armed robbery. The punishment is `excessive´ because it makes no measurable contribution to acceptable reformation goals and hence it is nothing more than the purposeless and needless imposition of pain and suffering. Slattery states that punishment for criminal offence is generally viewed as serving one or more of three main purposes:
(i) deterrence both of the Criminal himself (special deterrence) and also of society at large (general deterrence),
(ii) the rehabilitation of the criminal; and
(iii) restraint - the isolation of the hardened or dangerous criminal from society. These objectives are seen as constituting the ultimate justification for sentence imposed by a court in place of the more traditional view which simply holds that evil man serve to be punished, which notion, is sometimes called `retribution' or `the notion of justice'".
The government takes rehabilitation as a top priority as reflected in S.61 of the Prisons Act wherein emphasis is laid on training of prisoners so that when the prisoner is released he becomes a good citizen, usefully self-employed. Now the thirty (30) years imprisonment is self defeating because that period is almost the life-expectancy of a Tanzanian. and so the rehabilitation policy is not in place. It appears the government on enacting such a severe sentence had in mind only retribution and restraint of the offenders. It should be remembered that restraint of offenders is reserved for recidivists only (hardened and dangerous criminals). And retribution as a sentencing policy is old fashioned and uncivilised as it espouses sadism. It will be seen therefore that the sentence of thirty (30) years minimum, goes beyond legitimate penal objectives and does not bear a rational relationship to the accomplishment of penalogical goals which are of sufficient importance to justify its severity.
Therefore to suggest that parliament had seriously addressed itself to the whole issue of rehabilitation is a premise which is obviously a suspect. This is because it is both simplistic and unrealistic to suggest that an increase in the severity of punishment by itself will have any significant impact on existing patterns of crime. Where moral values are central to a problem such as crime, the legal system should struggle to achieve at least incidental significance. The working of the criminal justice system can have little, if any, impact on complex, sociological
phenomena. Any discussion of crime and punishment inevitably overlooks, the heart of the dilemma. Really, what we have is a major problem involving education and policing. A sociological phenomenon cannot be effectively influenced by judicial band-aiding. Imposing harsh sentences indiscriminately is nothing other than Kangaroo justice.
It just does not work and stands little chance of effectively influencing current rehabilitation process. So we cannot look to the Courts alone, otherwise that would be a fundamental misunderstanding of the role of the courts. All that the justice system can reasonably do at the present time is to maintain a predictable and reasonable response to the increasing crime rate, in terms of what most Tanzanians really and truly might be the consequences of detection and conviction (moderate prison sentences). Any major change can only be effected at the political level, the legislators are encouraged to get serious about rehabilitation of offenders.
Corporal punishment
Tanzania has a legislation which sanctions Corporal punishment by installments. The Minimum Sentences Act as amended Introduced Corporal punishment by installments. The Corporal punishment ordinance is amended in S.12 whereof Corporal punishment shall be inflicted in the installments each consisting of six strokes. The first instalment at the commencement of the term of imprisonment and the other immediately before the person in question is finally released. That is a horrible situation and does not rehabilitate the prisoner.
Death Penalty:
The death penalty imposed on a number of prisoners does not rehabilitate them. It has been said that the question of capital punishment falls between two schools: If it proves deterrent, it risks executing the innocent if it protects the innocent perfectly, it is so seldom that it fails to deter17. The question again is not merely whether capital punishment deters but whether it does so more effectively than other penalties or methods. Studies have concluded that the death penalty is inconsequential as a deterrent.
CONCLUSION and POLICY IMPLICATIONS
Although the Government of United Republic of Tanzania has taken reformation or rehabilitation as a top priority, Judges and Magistrates have been denied their sentencing discretion by the minimum sentences Acts.
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