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Published online by Cambridge University Press: 28 July 2009
In 1963 a Minimum Sentences Act2 was passed which restricted discretion previously available to judges and magistrates when sentencing convicted persons. No new substantive offences were created by the Act but minimum sentences of imprisonment and corporal punishment were made mandatory for certain itemized property offences (“scheduled offences”). The Act aroused considerable interest both inside and outside this country and there is a long bibliography of comments on it.3 Much of the controversy concerned the mandatory infliction of corporal punishment, of at least 24 strokes, as part of the minimum sentence.4 Many members of the National Assembly were enthusiastic supporters of the corporal punishment provisions,5 although the Government leaders were more restrained: “They are not policies which we like”, said the Second Vice-President, Mr. Kawawa, “and I am convinced that Prisons Officers do not like them either; to administer corporal punishment is an unpleasant thing for any civilised person to do. But we have to make people recognize that to commit an offence against the nation or any of its citizens, is an evil thing which is a disgrace to the man who does it”.6
2 Act No. 29 of 1963; Cap. 526 of the Revised Laws.
3 The most important articles include: Read, “Minimum Sentences in Tanzania” [1965] J.A.L. 20; Kato, “Tanzania Innovation in Penology” (1972) 2 International Review of Modern Sociology. Comments may be found in Cole and Denison Tanganyika, London, 1964; Kawawa, “Crime and Penal Problems in East Africa” [1962] 2 E.A.L.J. 6; Tanner, “Crime and Punishment in East Africa” [1965] 21 Transition 378; Bomani, “Machinery of Justice in a Developing Society [1966, May] E.A.J. 22; Georges, Law and its Administration in a One Party State, Nairobi, 1973; Boehringer, “Developments in Criminology in Tanzania”, mimeo, Dar es Salaam, 1968; Milner, The Nigerian Penal System, London, 1972. The case law on the Act is dealt with by Slattery, Handbook on Sentencing, Nairobi, 1972; Huber, “Statutory Interpretation and Judicial Discretion” (1967) 2 Denning L.J. 99.
4 Cap. 526, ss. 5 and 11.
5 See the statements quoted in Read, op. cit.
6 Ibid.
7 Cole and Denison, op. cit., p. 311.
8 Official criminal statistics were last published in 1963. The figures given are extracted from Boehringer, op. cit. pp. 36–37, and “Jeshi la Polisi Ni lako lisaidie” an undated pamphlet issued by H. Aziz (then Inspector General of Police) in 1971 or 1972.
page 80 note 1 “The Nationalist”, October 21st 1969.
page 80 note 2 Ibid.
page 80 note 3 1969 Bill Supplement No. 9 to the Gazette, No. 42, Vol. 1.
page 81 note 1 See “The Standard”, October 22nd and 23rd, 1969.
page 81 note 2 “The Standard”, October 22nd, 1969.
page 81 note 3 “The Nationalist”, August 21st, 1971.
page 81 note 4 “The Standard”, August 21st, 1971.
page 81 note 5 See for example letters to “The Standard’s” People’s Forum, September 11th and 28th, 1971.
page 81 note 6 1972 Bill Supplement No. 1 to the Gazette, No. 54, Vol. LII.
page 81 note 7 “The Nationalist”, January 26th, 1972.
page 81 note 8 Minimum Sentences Act, 1972 (Act. No. 1 of 1972); Minimum Sentences (Consequential and Incidental Provisions) Act, 1972 (Act No. 2 of 1972).
page 81 note 9 “The 1972 Act” or “The Act” refers to Act No. 1 of 1972.
page 82 note 1 Cap. 526, ss. 4 and 5, and the Schedule.
page 82 note 2 The previous conviction must be for a like offence or a scheduled offence or of any of the offences provided for in Chapter XXVI to Chapter XXXII (inclusive) of the Penal Code-See s. 5 (a) of the Act.
page 82 note 3 In Juma Salum v. R.,[1972] H.C.D. no. 163 EL-KINDY J. incorrectly states that the definition of a juvenile has not been amended.
page 82 note 4 Cap. 526, s. 5 (2), (4) and (5) were the previous provisions.
page 82 note 5 S. 6 (2) defines a first offender and is more liberal than s. 5 (5) of Cap. 526 as any conviction more than 7 years previously does not now count against the person.
page 82 note 6 Cap. 526, s. 5 (2) (c) and 5 (4).
page 82 note 7 See Slattery, op. cit., and Huber, op. cit. Also R. v. Mavunge [1972] H.C.D. no. 116.
page 82 note 8 (1973) T.L.R. 8.
page 83 note 1 A leading case on this principle of sentencing is Hattan v. R. [1969] H.C.D. no. 234.
page 83 note 2 1969 Bill Supplement No. 9, op. cit. In a recent judgment which has not yet been reported (R. v. Mohamed Njaru Criminal Revision No. 91 of 1972, Mwanza) KISANGA, J., said: “But the test to be applied is not whether there are special circumstances. It is most likely that the trial magistrate in applying that test had in mind the provisions of section 5 (1) (c) of the Minimum Sentences Act 1963, which talks of special circumstances. But the correct test under the 1972 Act cited above is whether having regard to all the circumstances of the case it is just and equitable to impose a sentence less than the minimum. It would seem to me that under the latter test the court is afforded a much wider latitude in exercising its discretion, and had the trial magistrate applied that test I am unable to say that he would have necessarily imposed the minimum sentence as he did”. It is submitted that this is the correct interpretation of the leniency provision.
page 83 note 3 Cap. 526, s. 5 (2).
page 83 note 4 The discretion to impose sentences other than 10 strokes or a term of imprisonment avoids the unfortunate situation of being unable to make a probation order but awarding 1 day’s imprisonment in cases “where it is patently obvious that no real punishment should be imposed”. See R. v. Alexander Mabele [1970] H.C.D. no. 33 (Georges C.J.).
page 83 note 5 Under Cap. 526 there could be no leniency for persons convicted of cattle stealing or any of the scheduled Stock Theft Ordinance offences—see s. 5 (2) which applied only to Part I of the Schedule, Stock Theft Ordinance offenders may now be dealt with under the new leniency provision.
page 83 note 6 (1967) H.C.D. no. 361.
page 83 note 7 Penal Code, s. 268.
page 84 note 1 This judgment is very poorly digested in the High Court Digest and is inaccurate on vital issues. In an as yet unreported judgment (R. v. Joseph Okumu Criminal Revision No. 86 of 1972, Mwanza) the High Court was obliged to increase sentence to the minimum of 5 years when the Magistrate purported to exercise leniency for a 20-year old first offender who stole two sheep (also “cattle” under s. 263) worth, in total, only Shs. 40/- and both of which were recovered. Makame, J.: “It is commendable on the part of the learned trial magistrate that he should want to season justice with mercy but the justice he wishes to season with mercy must always remain justice according to the law”.
page 84 note 2 For the definition of “person employed in the public service” see Cap. 17, s. 4 (as amended by Act No. 50 of 1968).
page 84 note 3 Cap. 526, Schedule, Part 1.
page 84 note 4 S. 3. Missionary societies and charities have been omitted from the 1972 Act's schedules. TANU is now, of course, the only political party in Tanzania (Mainland) and the Act does not apply in Zanzibar.
page 84 note 5 Cap. 526, Schedule, Part I, item 3. See Francis s/o Ungami v. R. [1963] E.A. 460 and R. v. Mohona [1972] H.C.D. no. 40.
page 84 note 6 Item 3 of the 1st Schedule of the Act… “where the thing stolen is the property of a specified authority”.
page 84 note 7 First Schedule, item 8.
page 84 note 8 See R. v. Mohamed Naweka [1969] E.A. 353 and Ester d/o Zacharia v. R. [1972] H.C.D. no. 166.
page 85 note 1 [1964] E.A. 341.
page 85 note 2 Emphasis added.
page 85 note 3 See Slattery, op. cit. p. 154.
page 85 note 4 Georges, op. cit. see p. 79, n. 3.
page 85 note 5 No. 2 of 1972.
page 85 note 6 See Slattery, op. cit. pp. 18–24.
page 85 note 7 (1970) H.C.D. no. 158.
page 86 note 1 For example Sajile Salemulu v. R. [1964] E.A. 341 at 346.
page 86 note 2 See Huber, op. cit.
page 86 note 3 Kato, op. cit. p. 5.
page 86 note 4 Mustafa J. in R. v. Mwalipamila Kadinde. For criticisms of this reasoning see Huber, op. cit.
page 86 note 5 Penal Code (Cap. 16) s. 4, amended by the Administration of Justice (Miscellaneous Amendments) Act, 1971 (Act No. 26 of 1971), s. 3.
page 86 note 6 (1972) H.C.D. no. 204.
page 86 note 7 Rajabee Mbavuku v. R. [1962] E.A. 699.
page 87 note 1 (1972) H.C.D. no. 59.
page 87 note 2 (1973) T.L.R.
page 87 note 3 Nyerere, Freedom and Socialism (Dar es Salaam, 1968). See especially the Arusha Declaration, Socialism is not Racialism, the Purpose is Man, and the Introduction.
page 87 note 4 See page 81 footnotes 2 and 3 supra.
page 87 note 5 Mwongozo wa TANU, para. 28.
page 87 note 6 Kawawa, op. cit.
page 88 note 1 See Ngasa v. R. (unreported) noted in Read, op. cit. and Cole and Denison, op. cit.
page 88 note 2 See the Annual Report on the Administration of Prisons in Tanzania (Mainland) for the years since 1963.
page 88 note 3 Siasa ni Kilimo, para. 28.
page 88 note 4 See papers by Mandia and Kadiri in Studies in Criminology, 1972–1973 (mimeo, University of Dar es Salaam).
page 89 note 1 Cited from , Bottomore and , Rubel (eds.), Karl Marx; Selected Writings in Sociology (London 1956) PP. 228–230.Google Scholar
page 89 note 2 See Milner, op. cit.
page 89 note 3 See the Penal Code (Amendment) Act, 1968 (No. 12 of 1968) for Uganda and the Penal Code Amendment Act, 1973 (No. 1 of 1973) for Kenya (mandatory imposition of the death penalty for armed robbery). The Penal Code (Amendment) (No. 2) Act, 1965 (No. 53 of 1965) in Malawi requires that for theft by public servant there shall be imprisonment for not less than the period of time which it would have taken the convicted person to have earned the amount stolen at the rate of salary payable to him!
page 90 note 1 The Offenders Education Decree (No. 2 of 1972) and the amending Decree (No. 4 of 1972).
page 90 note 2 See , Gorkin, “The USSR judicial system”, in , Andrews (ed.), Soviet institutions and policies: inside views (Princeton, 1966), p. 199.Google Scholar
page 90 note 3 See , Mandel, Marxist Economic Theory (London, 1968), Chapter. 15.Google Scholar
page 90 note 4 See Andenaes, “General Prevention—Illusion or Reality”, (1952) 43 Journal of Criminal Law, Criminology and Police Science, 176, esp. 190–195.
page 90 note 5 There is evidence for this in the Nigerian experience. See Milner, op. cit., pp. 56–57.
page 90 note 6 See for example , Hood and , Sparks, Key Issues in Criminology (London, 1970): “Much depends on the extent to which the law is enforced, and on the probability of detection and conviction. A dramatic illustration of this occurred in Denmark in 1944, when the Nazis arrested the country's entire police force: within a short time the crime rate rose sharply, despite the fact that severe penalties were still provided for offenders who were caught”. (p. 174.) In Dar es Salaam in July 1973 the “Daily News” reported: “Thieves in Dar es Salaam have taken advantage of frequent electric power cuts by the Tanzania Electric Supply Company. For more than a week now, most of the city has faced serious disruption of electricity during working hours and the evening. Failures of power last between an hour to four hours. According to a police spokesman robbers have taken advantage of the power cuts. Cases of violent robberies are rampant”.Google ScholarPubMed
page 91 note 1 My thanks are due to my colleague Brian Slattery for discussions about s. 6.
