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 commenta ry explores the sentencing regi me in Tanzania, begi nning

with pre-colonial a rrangements that focu sed on practices now described

as ‘restorative’ forms of justice. A lead ing case is discuss ed to show how

disputes were resolved in pre-colon ial Tanzania. The ar ticle then turn s to

examine the contempora ry sentencing regime. T he Court of Appeal is t he

highest judicial body i n Tanzania. Their deci sions are followed and binding

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

discretion has under mined the abilit y of the judiciary to i ndividualise

sentencing. Current judicial pronouncements on sentencing are scattered

and there is an absence of guidel ines to assist judges and user s of the court

system. After d iscussing the object ives of sentencing in Tanzania, and t he

principal sanction s, the author offers some commentar y on the direct ion

of necessary reforms i n this juris diction. The commenta ry furt her notes

the absence of comprehensive and coherent guideli nes to assist the court s

in making an in formed choice at sentencing. Sentencing guidel ines set the

initial benchm ark and help courts to achieve un iformity and consi stency

in sentencing. As other contr ibutions to this specia l issue of the journal

demonstrate, several A frican jurisdictions have adopted guideli nes, thereby

providing Tanzania with worki ng 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 m illion

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

published scholarship that examines the cr iminal justice sys tem, and

particularly the operat ive sentencing regime. Other countries, notably

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

article critiques the cu rrent state of sentencing in Tanzania and adopts

the following structure. First, a br ief overview of dispute resolution

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

legislation, including the minimum sentenci ng laws, are examined.

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

High Court, Tanza nia. Thank s to Ndjodi Ndeunyema for edito rial assista nce with

the article.

1 See S Terblanche A Guide to Se ntencing in South Afri ca 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 commenta ry on the principal sanct ions,

before concluding with some proposals on the direction of sentencing

reform in this jurisd iction.

2 Sentencing in pre-colonial Tanzania

During the pre-colonia l era in Tanganyika (as pre-independence

Tanzania was then known) there were various ways of resolving

disputes. The ca se of Kadume2 exemplies t he resolution of disputes

through community pa rticipation. Kadume was concerned with a la nd

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 t he death of

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

members of the inner lineage. T he lineage counsellor convened the

inner conclave of the inner lineage of the intern al 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 exa mining all the evidence and

relevant facts the internal moot na lly concluded by dividing the

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

retired in a cordial way and members congrat ulated each other on

achieving the nal sett lement of both the inheritance mat ters and the

land dispute. This ‘win-wi n’ 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 mechanism s would be

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

together the victim, offender, and community member s to address and

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

reintegration, and community pa rticipation in responding to crime,

and resolving disputes, and the related problems that affect societ y.

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 co mplementari ty in African conict management mechanis ms

(2013), available at https://papers.ssr n.com/sol3/pape rs.cfm?abstract_ id=2356459,

accessed 11 May 2020.

90 SACJ . (2020) 1

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