The Government has long been aware of losses to Tanzania’s beleaguered economy caused by the illegal activities of hoarders, black market dealers and foreign exchange manipulators. The side-tracking of scarce consumer items into private hoards with a view to profitable sale in the black market, when discovered, has aroused great public indignation at a time of grave difficulty and shortages. Yet the normal processes of the law have appeared unable to deal effectively with such crimes and hearings were often subject to serious delays and repeated ‘mention’ before magistrates. In the event, it appeared to the Government necessary to introduce a temporary emergency procedure for dealing with such cases.
Action against economic saboteurs was started on 25th. March, 1983, and appears to have been taken initially under the terms of the Preventive Detention Act, but it soon received retroactive cover under the Economic Sabotage (Special Provisions) Act, 1983, which became law on 4th. May. The original intention was to try cases of economic sabotage before a special advisory tribunal, leaving the final decision to the President, but parliament (Bunge) insisted that the Tribunal should pronounce a final verdict, leaving to the President the determination of appeals against sentence, but not against conviction.
The Act was brought into force by Presidential Order with retroactive effect to 25th. March, 1983, and remained in force for twelve months from that date, after which the President might extend it for a further six months. Any extensions beyond that period would require a resolution of Bunge. The whole body of legislation thus wore the appearance of temporary shock treatment. The Presidential Order confined the operation of the Act to Mainland Tanzania.
The Act was subsequently amended on 2nd. July by the Economic Sabotage (Special Provisions)(Amendment) Act 1983. Many of the amendments were for clarification, but certain changes of substance were introduced. Some of these have the effect of further limiting Presidentia1 discretion. The President’s power to order release on bail and the right of appeal to the President against sentence have disappeared. The Presidential power to act on any recommendation made to him by the Tribunal as he may deem fair and just is also withdrawn. The number of scheduled offences to which this legislation applies, is increased from 8 to 21. All of the scheduled offences were created by various existing laws, but removed from the jurisdiction of the courts , during the currency of the Act, except in cases to which the Act does not apply (see below). Thus, the definition of the various economic sabotage offences is to be found in the appropriate statutes. However, a written Laws (Miscellaneous Amendments) (No.2) Act, 1983, became law on 2nd. July with retroactive effect to 24th. March and extended the definition of the scheduled offence of hoarding in the Penal Code and also added to the Regulation of Trade Act, 1980, a section dealing with the improper disposal of certain goods by any person in the Party, in Government, or in any parastatal organisation. One interesting innovation in the amending Act is the authorisation of evidence on affirmation as well as on oath.
A revised Order bringing the Act into operation contains two innovations. First, drawing on his discretion to apply the Act to such persons or category, of offences as may be specified in the Order, the President ruled that the Minister for Home Affairs might direct that in serious cases the charges should be dealt with under the Criminal Procedure Code, or ‘any other written laws’. This appears to mean that there are to be three categories of economic sabotage offences. Serious charges against civil servants can be dealt with under the disciplinary procedures for the public service. Other very serious cases can be handled by the courts in the normal manner, leaving the less serious cases to come before the Tribunal. The decision rests with the Minister after considering the evidence submitted by the Inspector General of Police and it is not yet known what advantage will be taken of this discretion. The other interesting provision made in the Order indemnifies anyone who on or after 5th. April, 1983, voluntarily surrenders all goods, money, or foreign exchange which are held in contravention of the law relating to economic sabotage offences.
Cases are to be tried by a Tribunal presided over by a High Court Judge appointed by the President sitting with two other members also appointed by the President. Decisions may be by a majority of the Tribunal, which appears to mean that the presiding judge could be overruled by the other members. Sentences may be for a period of detention not exceeding 15 years and the Tribunal may make orders relating to the settlement during sentence of the person convicted and to the disposal of the property to which the offence relates by forfeiture to the United Republic.
Prosecutions are brought by Police Public Prosecutors under the direction of the Director of Public Prosecutions and the proceedings of the Tribunal are to be regarded as judicial proceedings. Thus, false testimony, wilful misrepresentation by an interpreter, or the fabrication or destruction of evidence, are punishable at law and may lead to imprisonment for seven years. The proceedings of the Tribunal are to be in public unless the premises are too small, or unless at any particular stage the Tribunal, or the prosecution, decides that proceedings should be in camera. The final judgment, however, must be given in public.
The procedure of the Tribunal is precisely laid down in Regulations. The decisions of the Tribunal are to be taken solely on the facts before it and if the Tribunal considers that the facts have not been proved it must acquit the accused. The order of proceedings, the calling by the Tribunal and the interrogation by either side, or by the Tribunal, of witnesses, the power of subpoena, the requirement of evidence on oath or affirmation and the burden of proof resting with the prosecution, except where any law otherwise provides, are practices which in general are identical with those of the courts. 8vidence must be given in the presence of the accused and taken down in writing by the Tribunal. Each witness must be informed that he is entitled to have his evidence read over to him in a language that he understands and any comments he makes must also be recorded. Evidence given in a language not understood by the accused must be interpreted to him.
The Act expressly allows the collection by the Tribunal of information whether or not it is evidence within the meaning of the law applicable in the courts. Nevertheless, the Tribunal is bound by certain rules of evidence, which so far as they go are similar to those of the courts. The Tribunal must be satisfied that the person is guilty. Confessions obtained by threat, violence, or the promise of immunity are inadmissible as evidence. The testimony of interested parties is not admitted. The accused is not compelled to give evidence in his own defence, though he is entitled to do so and to call witnesses. All evidence must be on oath or affirmation. Perjury, false evidence, or the presentation of false documents, is punishable by a fine not exceeding shs.50,000, or three years in prison, or both.
There are detailed rules governing investigation and arrest of suspects by the police. Where there are reasonable grounds for believing that an offence has been committed, a search order may be issued by the police officer in charge of an area. Arrest requires prior authorisation in the form of a warrant issued by a police officer in charge of an area, police station, or post, unless it is believed that the accused person might escape, or destroy evidence. It is for the police officer in charge of an area to decide whether there are prima facie grounds for proceedings and whether the accused should be temporarily confined for purposes of investigation. A police officer in charge of an area may also release the accused pending investigation on such conditions as are necessary, including the execution of a bond with sureties. If the police officer in charge of an area decides that the evidence does not warrant prosecution, he must release the accused forthwith.
A formal charge may be made by any police officer. However, the regulations suggest that the prior approval of the Inspector-General of Police is necessary and that the Inspector-General must thereupon apply to the Minister for Home Affairs for a confinement order authorising detention until the proceedings before the Tribunal have been completed. The Director of Public Prosecutions may give directions in writing to the Inspector-General, or to any other person involved in the proceedings.
A study of this legislation shows that care has been taken to safeguard the fairness of proceedings and avoid the misuse of powers for unworthy purposes, such as the satisfaction of a personal grudge. If faithfully carried out, the procedures laid down should effectively provide for the establishment of guilt and the release of those against whom guilt cannot be proved. It would be quite wrong, therefore, to conclude that basic human rights are ipso facto in jeopardy.
But alas! no Tribunal and no police officer is perfect and what is sadly Lacking – indeed expressly excluded by statute – is any remedy where justice miscarries. There is no appeal against conviction or sentence and no civil or criminal prosecution is possible against the Tribunal, or its servants, or any police officer, except on grounds of exceeding their authority, or acting with ‘undue negligence’. Further, legal representation of the accused before the Tribunal is forbidden by law. He has to conduct his own defence and name his own witnesses. The Government has no wish to see a guilty person found not guilty on account of a technicality and indeed if the police bring the wrong charge the Tribunal has power to alter the charge. But it is also important that the innocent should not be found guilty on account of an inadequate defence. The risk of miscarriage on legal grounds is increased by the majority rule, which makes it possible for the presiding High Court Judge to be overruled by his two non-legal colleagues. Many of these defects would be remedied by the institution of an Appeal Tribunal, perhaps under a Judge of the Court of Appeal, without disturbing the existing machinery.
J. Roger Carter