Special Issue: Reflections on sentencing in Tanzania

• Date: 06 July 2020
• Published date: 06 July 2020
• Pages: 89-105
• Author: Hoseah, E.
• Citation: (2020) 33 SACJ 89

Reections on sentencing in

Tanzania

EDWARD HOSEAH∗

ABSTRACT

This commentary explores the sentencing regime in Tanzania, beginning

with pre-colonial arrangements that focused on practices now described

as ‘restorative’ forms of justice. A leading case is discussed to show how

disputes were resolved in pre-colonial Tanzania. The article then turns to

examine the contemporary sentencing regime. The Court of Appeal is the

highest judicial body in Tanzania. Their decisions are followed and binding

on all courts below it. More recently, statutory authority over judicial

discretion has undermined the ability of the judiciary to individualise

sentencing. Current judicial pronouncements on sentencing are scattered

and there is an absence of guidelines to assist judges and users of the court

system. After discussing the objectives of sentencing in Tanzania, and the

principal sanctions, the author offers some commentary on the direction

of necessary reforms in this jurisdiction. The commentary further notes

the absence of comprehensive and coherent guidelines to assist the courts

in making an informed choice at sentencing. Sentencing guidelines set the

initial benchmark and help courts to achieve uniformity and consistency

in sentencing. As other contributions to this special issue of the journal

demonstrate, several A frican jurisdictions have adopted guidelines, thereby

providing Tanzania with working models for potential reforms.

1 Introduction

The United Republic of Tanzania is Africa’s second-most populous

country south of the Equator, with a population of almost 60 million

people. Despite its size and importance, there has been a paucity in

published scholarship that examines the criminal justice system, and

particularly the operative sentencing regime. Other countries, notably

South Africa, have attrac ted far more attention from legal scholars.1 This

article critiques the current state of sentencing in Tanzania and adopts

the following structure. First, a brief overview of dispute resolution

in pre-colonial Tanzania is given. Thereafter, the key sentencing

legislation, including the minimum sentencing laws, are examined.

* Edward Gamaya Hosea h, PhD in Law (University of Dar es Sal aam); Advocate of the

High Court, Tanzania. Thanks to Ndjodi Ndeunyema for editorial assistance with

the article.

1 See S Terblanche A Guide to Sentencing in South Africa 3ed (2016); S Terblanche

‘The discret ionary effect of mitigating a nd aggravating factors: A South Afr ican case

study’in J Robert s (ed) Mitigation and Aggravation at Sentencing (2011) 261 at 264.

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(2020) 33 SACJ 89

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The article then provides brief commentary on the principal sanctions,

before concluding with some proposals on the direction of sentencing

reform in this jurisdiction.

2 Sentencing in pre-colonial Tanzania

During the pre-colonial era in Tanganyika (as pre-independence

Tanzania was then known) there were various ways of resolving

disputes. The case of Kadume2 exemplies the resolution of disputes

through community participation. Kadume was concerned with a land

dispute. It involved a dispute between Kadume, who was Makara’s

son and Soine, Makara’s half-brother. Kadume’s mother had separated

from Makara ten years before the dispute arose. On the death of

Makara, Soine took Makara’s land. Kadume was accepted as one of the

members of the inner lineage. The lineage counsellor convened the

inner conclave of the inner lineage of the internal descent. Quarrels

continued, and the intimate gatheri ng failed to reconcile the disputants.

The lineage counsellor decided in favour of Soine. Kadume felt

aggrieved by the decision and decided that the counsellor should

convene the internal moot. After examining all the evidence and

relevant facts the internal moot nally concluded by dividing the

land into two — both Kadume and Soine received a share. The moot

retired in a cordial way and members congratulated each other on

achieving the nal settlement of both the inheritance matters and the

land dispute. This ‘win-win’ situation for both parties to a conict

is an example of the predominant approach to conict resolution in

pre-colonial Tanganyika.

Today, this form of dispute resolution mechanisms would be

labelled ‘restorative justice’. Restorative justice is a method that brings

together the victim, offender, and community members to address and

resolve an offence or a dispute.3 It aims at restoration, reparation,

reintegration, and community participation in responding to crime,

and resolving disputes, and the related problems that affect society.

Restoration takes many forms, such as through compensation,

reparation or apology, and helps mend broken relationships in the

society.4 The case of Kadume offers an example of restorative justice,

2 See M Mukoyogo Legal Method (1996) part 3.

3 D O’Mahony & J Doak Rei magining Restorative Justi ce: Agency and Accountability in

the Criminal Process (2017); K Doolin ‘But wh at does it mean?: Seeking denitiona l

clarication’ (20 07) 71 J Crim L 427 at 432.

4 MT Ladan Towards complementari ty in African conict management mechanisms

(2013), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2356459,

accessed 11 May 2020.

90 SACJ.(2020) 1

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