Dar es Salaam. Ho Chí Minh, Vietnam’s charismatic leader, said umpteen times that “one must never reserve for oneself good things and leave bad ones to others??.
He said what he feared was not the lack of food, but that of justice, because the latter situation was the cause of the loss of solidarity, entailing contradictions, conflicts and tension in society. Broadly speaking, according to Alberta Civil Liberties Research Centre, access to justice refers to the wider social context of court system, and the systemic barriers faced by different members of the community.
The Canadian-based civil liberties organisation lays down five major approaches which can describe the concept of access to justice from narrow to broad perspectives.
The narrowest conception of access to justice is an individual’s formal right to litigate or defend. This also implies the ability to provide legal representation to impoverished individuals.
This concept of access to justice forms the foundation for today’s legal aid service.
A slightly broader definition of access to justice encompasses the need to advocate for people who cannot afford lawyers, but also focuses on the inadequacies and limitations of the legal aid system. It calls for simplification of procedural and formal requirements and implementing mechanisms for group and third-party claims.
Access to justice also aims at reforming and streamlining many areas of the legal system, as well as reforming other social institutions to create a more holistic model of service.
Some commentaries point to the need to move away from court-centric and lawyer-centric approaches toward a more client-centric approach, which focuses on solving the problems of community members in their daily lives.
Alarm bells ringing
Common among many Tanzanians is the call to avoid mob justice and instead use legal mechanisms to settle disputes. Nevertheless, legal minds note that for that to happen the right to access to justice is supposed not to be as complicated as it is now the case.
There is a consensus in the country’s legal fraternity that though a slight improvement has been made to increase access to justice, the right to equality before the law and effective remedy continue to be affected by a myriad of factors.
This situation has set the alarm bells ringing. According to the 2018 report by the Legal and Human Rights Centre, for example, one advocate on Mainland Tanzania serves almost 8,000 people, complicating the right to access to justice. The access to justice has also been affected by costs of legal representation, shortage of resources within the Judiciary, judicial corruption and lack of legal awareness, the report adds. The situation has always been worsened by delays in investigations by law-enforcement officials, shortage of court buildings, limited access to legal aid and cost of legal advice and representation.
Life-threatening prison conditions
In 2016, the US Department of State reported harsh and life-threatening prison conditions and lengthy pretrial detention which both complicate the access to justice in Tanzania.
It is a manifestation of the broken justice system, the report noted, calling for reform and streamline as well as reforming other social institutions with the goal of creating a more holistic model of service.
The report quoted the commissioner general of prisons as saying funding for prisons was less than half the level required to provide adequate care for prisoners.
As of December 2015, the prisons, whose total designed capacity was for 29,552 inmates according to the report, held 31,382.
That was six per cent above designed capacity.
Pretrial detainees and convicted prisoners are held together. Authorities held minors together with adults in several prisons due to lack of detention facilities.
As significant as health
Referring to the designated institutions for citizens’ access to justice, the president of the Tanganyika Law Society (TLS), Ms Fatma Karume, sees the whole justice system of Tanzania as in a bigger crisis which needs fundamental reforms if not at all total overhaul.
She looks at the issue of justice in a wider perspective that incorporates the whole system that justice relies on for its full realisation. This involves a time when a person is arrested for an allegedly wrongdoing and being charged, to be remanded pending investigation, to investigation and finally trial.
On the course of undertaking such steps, the justice system is frequently tampered with, and the accused are normally confused with convicts. “Justice is as the same as health,” says the firebrand lawyer and daughter of the former Zanzibar President, Mr Amani Abeid Karume.
This is simply because no one will ever live without encountering a legal challenge in a lifetime. Instead of looking at the quantities—like how many court buildings and lawyers are available out there—the focus should be on the qualities of the justice system currently in place, she said.
A government’s burden
Among other major reforms that need to be taken to ensure citizens’ access to justice, calls have been made to the government to provide legal aid service free of charge to the needy instead of leaving the responsibility entirely to non-governmental organisations .
The government can best do this by ensuring that it sets aside budget to pay for a lawyer who will represent a citizen at the court until the trial is over. “Legal aid should be budgeted by the government to take care of the poor,” Ms Karume says.
There has been uproar among the legal solidarity, criticising the government’s indifference towards performing its responsibility of funding legal aid service and instead urging lawyers to volunteer something that the latter think is inconceivable. But according to the permanent secretary in the Ministry of Constitution and Legal Affairs, Prof Sifuni Mchome, that is the lawyers’ corporate social responsibility.
He points out that the government’s key task is putting in place a system that would allow legal aid service to be carried out easily.
“Access to justice is a shared matter,” says Prof Mchome, adding that the government’s part of that sharing is through the money it channels to the judiciary. “We cannot stop others from helping us [as far as the issue of access to justice] is concerned.”
Although article 13(6) of the Constitution stipulates the right to bail, some provisions of the Criminal Procedure Act 1985 seems to go against it. The Constitution provides for presumption of innocence, that a person is innocent until proven otherwise by the court.
However, section 148(5) (a) of Criminal Procedure Act contravenes the Constitution by denying bail to suspects of murder, money laundering, drugs and terrorism.
According to legal experts, the section judges the accused’s innocence before the court finds him/her guilty of the offence. “Where on earth have you found a country legislates a law that states that once a person is charged he or she can no longer have access to a bail, where is access to justice there?” asks Ms Karume.
Attorney General Adelardus Kilangi says his role is to advise the government on the legal issues and cannot give opinions on whether a particular law is good or bad.
However, the Criminal Procedure Act is one among the laws that Karist Michael, the deputy commissioner of research at Law Reform Commission of Tanzania (LRCT), confirmed to have received complaints about.
Mr Michael says the LRCT is aware of the complications surrounding the issue of access to justice in the country. Perhaps it is this awareness that prompted the commission to look at the complexities surrounding the country’s civil and criminal justice where a keen examination of various legislations that fall on the category and recommendations made to the government.
“One of the major issues which arose on the course of these projects is the prolongation of civil cases in courts,” says Mr Michael. “This is one among the reasons, which led to the digitisation of the Judiciary.”
A bone of contention between the country’s legal fraternity and the government has been the issue of funding the justice system with the former blaming the latter of less prioritization on the issue. Ms Karume notes that independence of the judiciary is inextricably linked with its financial muscles and urges the government to prioritise judiciary funding.
“Without sufficiently funding the judiciary, there shall be no real access to justice.”
However, Prof Mchome cautions that the problem is not the same as it used to be and there are signs of improvement. He confesses the unsatisfactory funding to the judiciary saying that what the government collects as revenue tends to be divided among various sectors.
“But with the current zero backlog strategy being implemented by the judiciary,” Prof Mchome says assuredly. “Prolongation of cases will be shortened and thus people’s access to justice will be realised.”