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Sentencing Reform in Tanzania: Moving from Uhuru to Ubuntu?
Published online by Cambridge University Press: 29 September 2022
Abstract
The scholarly literature on sentencing reform has largely overlooked the African continent. The paucity of legal scholarship is particularly striking with respect to Tanzania, one of Africa's largest and most populous countries. This article explores the first significant sentencing reform in Tanzania's history. In 2020, the Tanzanian judiciary issued a comprehensive set of sentencing guidelines for courts to follow. Until this point, sentencing was a highly discretionary stage of the criminal process, and the Tanzanian penal code offered very little guidance with respect to the exercise of that discretion. After providing a brief summary of the new sentencing regime, we explore the innovative guidance contained in the reforms. In the conclusion we discuss the extent to which the Tanzanian reforms reflect core African values of Ubuntu, or more specifically in the case of Tanzania, Ujamaa, the philosophy popularized by Tanzania's first president, Julius Nyerere.
- Type
- Research Article
- Information
- Copyright
- Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of SOAS University of London
Footnotes
*
Professor of Criminology, Faculty of Law, University of Oxford and Executive Director of the Sentencing Academy.
**
Associate Professor, University of Iringa, Tanzania, President of the Tanganyika Law Society – Tanzania Bar (2021–22).
References
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5 The guidelines are contained in Judiciary of Tanzania Tanzania Sentencing Manual for Judicial Officers (2020, The Judiciary of Tanzania) (TSM), which states the law as in effect on 31 December 2019.
6 Id at 1.
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38 Ibid.
39 Sentencing Council of England and Wales Offences Taken into Consideration and Totality Definitive Guideline (2017, Sentencing Council of England and Wales) at 5, available at: <https://www.sentencingcouncil.org.uk/overarching-guides/crown-court/item/totality/> (accessed 4 August 2022).
40 Tanzania Penal Code, sec 225.
41 The assault guideline issued in 2011 adopts a different approach which combines harm and culpability into three levels of seriousness. However, this format has been criticized by practitioners. In guidelines issued since then, the Council has moved to the two-dimensional model with three levels of harm and three levels of culpability, as discussed here. The Council has announced its intention to revise the original assault guideline and is likely to replace it with the two independent dimensions found in other guidelines; see for example the guideline for robbery. All English guidelines are available at: <https://www.sentencingcouncil.org.uk/> (last accessed 8 January 2022).
42 The Scottish Sentencing Council has issued a guideline which follows this simpler structure; see <https://www.scottishsentencingcouncil.org.uk/news-and-media/news/sentencing-process-guideline-approved/> (last accessed 23 September 2021).
43 TSM, above at note 5 at 19. The language is based on section 63 of the Sentencing Act 2020 in England and Wales, which states that “[w]here a court is considering the seriousness of any offence, it must consider (a) the offender's culpability in committing the offence, and (b) any harm which the offence (i) caused, (ii) was intended to cause, or (iii) might foreseeably have caused”.
44 Eg “High seriousness – these are offences at the highest end of the scale of seriousness for the offence. They must attract the highest level of sentence.” TSM, above at note 5 at 19.
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48 Id at 21.
49 Id at 1.
50 Id at 22.
51 Available at: <https://www.sentencingcouncil.org.uk/overarching-guides/crown-court/item/reduction-in-sentence-for-a-guilty-plea-first-hearing-on-or-after-1-june-2017/> (last accessed 12 January 2022).
52 Ashworth and Wasik assert that the current guideline “says nothing about the proper role of the totality principle and gives no clues as to how the court should assess totality in any particular case”; A Ashworth and M Wasik “Sentencing the multiple offender” in J Ryberg, J Roberts and J de Keijser (eds) Sentencing Multiple Crimes (2017, Oxford University Press) 211 at 220.
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58 Writing about the Kenyan sentencing guidelines; see Mbori, H “Discreet discretion and moderate moderation in judicial sentencing: A commentary on Kenya's sentencing guidelines” (2017) 3 Strathmore Law Journal 89CrossRefGoogle Scholar at 107.
59 There are 58 prisoners per 100,000 population. The rates in Uganda, Zambia and Zimbabwe are all significantly higher, with over 100 per 100,000; see Institute for Criminal Policy Research World Prison Brief (12th ed, 2020, ICPR) at Table 1.
60 In 2015, the official capacity of the prison system of 29,552 prisoners represented 116% of official capacity; see <https://prisonstudies.org/country/tanzania> (last accessed 8 June 2021). The 2020 Tanzanian Human Rights Report notes that “[p]risons and prison conditions remained harsh and life threatening due to food shortages, gross overcrowding, physical abuse, and inadequate sanitary conditions” (2020, Legal and Human Rights Centre) at 4.
61 Application no 010/2015, [2018] AFCHPR 9 (11 May 2018).
62 J Roberts “Reducing the use of incarceration: A review of recent international experiences” (2006) 5 Judicial Studies Institute Journal 41.
63 B Mgumiro Community Attitudes Towards Community Service Programmes for Offenders in Tanzania: A Case Study of Kinondoni Municipality (2015, Open University of Tanzania). For a discussion of alternative sanctions in the early years of the Tanzanian Republic, see G Boehringer “Aspects of penal policy in Africa, with special reference to Tanzania” (1971) 15 Journal of African Law 182.
64 Mgumiro, ibid at vii. The author also highlights the need for the Tanzanian Community Service Department to allocate more funds to promoting community awareness, at 40.
65 See J Roberts and M Hough Understanding Public Attitudes to Criminal Justice (2005, Open University Press) at 80.
66 TSM, above at note 5 at 37.
67 For discussion of alternative sanctions see A Magalla Alternative Punishments and their Role in Improving Socio-Economic and Political Outcomes in Tanzania (2017, Repository of the Open University of Tanzania).
68 TSM, above at note 5 at 22.
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70 L Harris and S Walker Sentencing Principles, Procedure and Practice (2021, Thomson Reuters) at 198; and J Roberts “Crime victims, sentencing and release from prison” in K Reitz and J Petersilia (eds) The Oxford Handbook of Sentencing and Corrections (2012, Oxford University Press) 104.
71 Sentencing Council of England and Wales Sentence Reductions for a Guilty Plea: Definitive Guideline (2017, Sentencing Council of England and Wales).
72 D Cole and J Roberts “What's the point of pleading guilty?” Criminal Reports 44.
73 For example, as per Article 6 of the European Convention of Human Rights.
74 Scholars have warned of the possibility of wrongful convictions arising from vulnerable defendants; see Helm, R “Conviction by consent? Vulnerability, autonomy and conviction by guilty plea” (2019) 83 The Journal of Criminal Law 161CrossRefGoogle Scholar.
75 See <https://www.sentencingcouncil.org.uk/overarching-guides/crown-court/item/reduction-in-sentence-for-a-guilty-plea-first-hearing-on-or-after-1-june-2017/> (last accessed 12 January 2022).
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79 For further information about Nyerere's philosophy see J Nyerere Ujamaa: The Basis of African Socialism (1962, Government Printer of Tanzania); Otunnu, O “Mwalimu Julius Kambarage Nyerere's philosophy, contribution, and legacies” (2015) 13 African Identities 18CrossRefGoogle Scholar; and Nyerere, J “African socialism: Ujamaa in practice” (1971) 2 The Black Scholar 2Google Scholar.
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81 Quoted in O Taiwo “Post-independence African political philosophy” in Q Wiredu (ed) A Companion to African Philosophy (2003, Blackwell) 243 at 252.
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