THE JUDICIARY

(Extracts from a speech to Judges and Resident Magistrates given at Arusha on 15th. March, 1984, by President Julius Nyerere)

President Nyerere began by admitting that there was a wider gap between Tanzania’s principles and practices than there should be. He referred to the ‘sickness of bribery and corruption’ which had entered society and he explained that it could not yet be said that people were absolutely equal before the law. It was still an advantage to have friends or relations in high places. Some of the shortcomings were for the time being inevitable in the sense that they could not be remedied immediately. They reflected the poverty, technological and educational backwardness and the lack of administrative and managerial experience, complicated by the international economic situation.

He went on by saying that’ first class administration of the laws does not by itself create a just society, especially if the laws themselves are unjust. An obvious and clear case of this is South Africa. But how does this subject relate to Tanzania? Successive Governments in this country have sometimes felt forced to pass laws which in practice can be very dangerous for justice. Perhaps the clearest case is the Preventive Detention Act, which was first passed in 1962, but the Economic Sabotage Acts, together with the setting up of Tribunals, could also be cited. And there may be others.

The reason for these laws is known. People can differ about whether or not they are necessary, but it is obvious that those who proposed them, or agreed to them, thought that they were necessary- and I am among those who saw their importance. It is, however, true that in their implementation there can be dangers. I myself believed that the power to use preventive detention for the security of the country – which was the intention of the Preventive Detention Act – is necessary and that when used for this purpose it has on the whole been used well. But on too many occasions we have used this law to arrest criminals, or people believed to be criminals, whose acts do not relate to the security of the state. This is bad use of a necessary law and can introduce the practice of evading the use of normal legal procedures for ordinary crimes. It is essential that we should correct ourselves in this respect and I am sure that the first person who has to correct himself is the President.

I am not sure that in its present form the law on Economic Sabotage is essential. What we want is a law which will effectively protect our national economy. But it is not sufficient that there be strict or harsh laws on this. Those concerned, including the courts, must be willing actually to use them to protect our economy. It is the use of law to protect criminals which destroys respect for the instruments of law and incites Government to pass laws like the present one. This is why I say it is necessary for you to understand the problems with which Government has to contend and if possible to send recommendations to us about how to deal with the problems in a manner which does not bring danger to the rule of law and the principles of justice.

…. I am quite sure that Tanzanians do not want a Judiciary which has no principles and which carries out the wishes of the Government or Party leaders instead of respecting the law. Tanzanian people want a Party with principles, a Government with principles and a Judiciary with principles.

…. The truth is that the protection of the principle of the independence of the Judiciary is in your hands and especially in the hands of the senior judges such as those at this meeting. You must enforce discipline strictly throughout the judiciary and do so without being swayed by personal sympathy for the wrong doer, or fear of unpopularity should he be related to persons known to you. There are jobs in our society which can be done by undisciplined people and people whose personal integrity can be called into question. Being a Judge or Magistrate is not among them.’

Julius K. Nyerere

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