Law Society statement on Tanzania to the United Nations universal periodic review pre-sessions

We presented a statement on Tanzania to state representatives at the United Nations, as well as NGOs, as part of the universal periodic review (UPR) pre-sessions.

Marketplace in Tanzania

The statement was read by – and prepared in collaboration with – Fatma Karume (former president of the Tanganyika Law Society).

In September 2020, Ms. Karume was disbarred after criticising the lack of judicial independence in and outside of court, after having been suspended from practising law in September 2019.

The decision to disbar her was overturned by the High Court of Tanzania in July 2021, but Ms. Karume’s practising certificate is yet to be returned in both Mainland Tanzania and Zanzibar.

Issues addressed

Lack of progress on constitutional reform.

The 1977 constitution of Tanzania establishes a system in which the legislature and judiciary are subordinate to the executive.

Despite Tanzania’s assurance in the last UPR cycle that a new constitution was being prepared, the current president of Tanzania has publicly stated that this is not a priority.

Lack of judicial independence

There's especially a lack of transparent appointment processes, political appointments and promotions of judges. In addition to this, there's a chief justice (head of the judiciary) who can be directly appointed and removed by the president of Tanzania.

Interference with the independence of the legal profession.

Under the Advocates Act and Advocates’ (Disciplinary and Other Proceedings) Rules Act, advocates can be disciplined by the Tanganyika Law Society, but also by a judge or the Advocates’ Committee.

The Advocates’ Committee is not an independent body; it includes state representatives.

The attorney general can start disciplinary proceedings before the Advocates’ Committee against lawyers and has done so – resulting in the disbarment of Ms. Karume and others.

Professional representation of the legal profession has also been weakened by the division into two bars, one for private practitioners and another for state – employed lawyers.

Non-bailable offences

Tanzania Mainland’s Criminal Procedure Act prohibits the release on bail for certain offences (including murder and armed robbery). Zanzibar revoked such non-bailable offences in 2004, but has recently reintroduced them.

This leads to prolonged pre-trial detention, as well as the accused being asked to pay significant amounts of money in order to secure their release.

Prolonged pre-trial detention of lawyers, human rights defenders, and opposition politicians

Many are charged with unbailable offences, such as terrorism or money-laundering.

As the UN working group on arbitrary detention (UNWGAD) said in the case of Tito Magoti v. Tanzania:

“Mandatory pretrial detention also deprives judicial authorities of their essential function, as an independent and impartial tribunal, to assess the necessity and proportionality of detention in each case.”

Lack of compliance with decisions of international bodies and tribunals

33 of the 76 judgments issued by the African Court of Human and Peoples’ Rights are against Tanzania, finding mostly violations of fair trial rights.

This indicates a systemic problem with Tanzania’s justice system.

In November 2019, Tanzania also withdrew its recognition of that court’s jurisdiction, ensuring that no more cases can be brought against it by individuals and NGOs, thereby evading accountability for human rights violations.

Our recommendations

 

  1. To complete the process of constitutional reform without delay and in any case prior to Tanzania’s next UPR cycle
  2. To ensure that judicial independence is established in the new Constitution, as well as in legislation, regulations, and in practice
  3. To amend its legislation and practice to revoke all non-bailable offences, and prevent illegal prolonged pre-trial detention
  4. To amend the Advocates’ Act in order to create an independent statutory authority to discipline private advocates 
  5. To adhere to its international legal obligations and implement decisions of international bodies, such as the UNWGAD and the African Court on Human and People’s Rights.

See our previous letter to the authorities in Tanzania on the issue of lawyers' disbarments.

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