History of criminal law in Tanzania

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Criminal law is a branch of public law, which deals with the relationship between the state and individuals, contrasting with private law that governs interactions among individuals. Criminal law's primary purpose is to deter and prevent certain actions (or failures to act) by prohibiting them and enforcing penalties for violations. This is distinct from civil law, which manages disputes between individuals, typically leading to compensation for harm rather than punishment.

1. Criminal Law in Pre-Colonial Tanzania

In pre-colonial Tanzania, the foundation of social and political structures began with the family, evolving into clans and eventually tribes, which represented more organized societies with shared territories, dialects, and religious practices. The tribes were often led by chiefs or kings and displayed varying degrees of democratic participation, dispute settlement methods, and social hierarchies. Regions like Kilimanjaro saw the development of confederacies, where tribal organizations formed alliances and sophisticated administrative systems that included chiefs and councils of advisors. Certain tribes, including the Wahehe, Wangoni, and Wahaya, had distinct state-like structures, with leaders emerging from influential clans.

The concept of law in these communities developed as they transitioned from customary norms to more formalized rules enforced by the state. Customary law, initially indistinguishable from common social practices, became a tool of the emerging state to establish order. The transformation towards an organized force brought a shift from family and clan-based accountability to individual responsibility for offenses. Notable crimes included treason, espionage, and witchcraft, all of which could lead to severe penalties such as death, as seen among tribes like the Sukuma and Chagga. In cases of homicide, reconciliation or blood money was often preferred over vengeance, with community and clan support in paying compensation.

In contrast to later perceptions, crime was viewed through a socially-oriented lens, with acts such as adultery considered serious offenses. Social mechanisms like strict supervision, storytelling, and religion were used to inculcate values and control behavior. However, colonial influence introduced coercive measures, as the imposition of foreign rule and class distinctions began to influence local governance and justice.

1.1 Criminal Law during the German Colonial Period

a. Colonization Process.

The colonial scramble in Africa led to Tanganyika falling under German control after the Berlin Conference in 1884, officially becoming part of German East Africa by 1885. Initially administered by the German East Africa Company (DOAG) until 1891, the German government then took direct control. The colonial authority faced resistance from local leaders, including leaders like Chief Sina of Kibosho and Chief Meli of Moshi. The Germans resorted to divide-and-rule tactics and military force to quell uprisings, including significant campaigns against the Hehe and the famous Maji Maji Rebellion.

The German colonial rule was marked by widespread violence and brutality, especially against tribes with strong pre-existing state structures. Europeans exercised extreme control over Tanzanian society, using physical punishments indiscriminately, with whips symbolizing their authority. Settlers maintained extensive political and economic dominance, often controlling both their laborers and surrounding free peasants, underscoring the coercive nature of colonial rule and its influence over the criminal justice system.

b. The Emergence of Institutions of "Law and Other"

The resistance of the local population to German rule necessitated the establishment of more formalized legal institutions to enforce order. The Germans viewed the local populations as insufficiently advanced for Western-style laws, so the jurisdiction over the indigenous people was placed in the hands of District Officers and military commanders, with appeals directed to the Governor. However, there was no formal law governing the native population, so the Germans relied on the authority of local chiefs who had accepted German rule. These chiefs were recognized and protected, while those who resisted were eliminated and replaced by German appointees, often from the coastal Islamic communities. In areas without pre-existing political structures, the Germans imposed new systems, appointing headmen known as Jumbes and Akidas, with the urban equivalent of Akidas being Liwalis.

The Germans modified local customs and rules of procedure to serve their colonial needs, though they continued to refer to them as "natural law and custom." While minor cases were handled by native authorities, more serious matters were referred to the District Officers. Despite legislation outlining the punishments District Officers were allowed to impose, there were no clear definitions of the offenses for which these punishments could be applied. Although in theory the District Officers were supposed to enforce the criminal and civil laws contained in the German Imperial Codes and consular laws, in practice, these guidelines were often ignored. For Europeans, however, District Courts were established in key cities like Dar es Salaam, Tanga, Mwanza, Moshi, and Tabora, dealing mostly with civil matters.

c. Use of Criminal Law for 'Development Programmes'

The German colonial administration also utilized criminal law to advance its development objectives. One of the earliest uses of penal sanctions for development purposes in Tanganyika occurred during the German colonial period, particularly in the requisitioning of native labor for public works, often through force and without compensation. Labor laws were extremely punitive, with breach of employment contracts punishable by up to three months of imprisonment in chains.

Taxation, introduced in 1893, was another method of enforcing colonial development. Taxes were used to compel the native population into labor, with failure to pay taxes providing the government with a pretext to conscript people into public works or private farms. In 1912, the government introduced the House and Poll Tax Ordinance, further institutionalizing the use of criminal sanctions to enforce labor. Subsidiary legislation also supported government policies, granting municipal councils in Dar es Salaam and Tanga the power to enact by-laws that included obligations to cultivate cotton, restrictions on hunting specific animals, and the regulation of mining activities.

1.2 Criminal Law During the British Colonial Period (1918–1961)

a. The Establishment of British Colonialism in Tanganyika
Following the defeat of Germany in World War I, German East Africa (specifically Tanganyika) was transferred to British control in 1919, and in January 1920, the British renamed the region Tanganyika. In July 1922, Britain formally received the mandate to exercise full legislative and administrative authority. The office of the Governor, established by an Order in Council in September 1920, granted Horace Byatt, the first Governor, the power to enact ordinances, rules, and regulations, pending the approval of His Majesty. Initially, this power was vested solely in the Governor until the creation of the Legislative Council in 1926, after which legislative power was shared with the Governor in Council. District officers were appointed across the region, and the German-appointed Akidas were gradually replaced with hereditary chiefs. In 1925, Sir Donald Cameron became Governor, creating eleven provinces in 1926, each under Provincial Commissioners. This administrative structure maintained the District Officers’ broad powers, which extended across various sectors, including agriculture, education, health, and law and order. Native authorities established in 1923 replaced the Akidas and Jumbes to ensure British control over the territory, facilitating colonial exploitation.

b. The Reception Clause
The British exercised jurisdiction over Tanganyika through powers vested in the Crown under the 1890 Foreign Jurisdiction Act. In 1920, the Tanganyika Order in Council was issued, functioning as a de facto constitution. Section 17, known as the Reception Clause, stipulated that British jurisdiction would be applied "as far as circumstances admit," using the Indian Penal Code, Criminal Procedure Code, Evidence Act, and other Indian laws already in effect or subsequently applied. Where these laws were inadequate, British common law, doctrines of equity, and statutes of general application were to be applied. The Indian Penal Code, adapted to reflect British common law with modifications suitable for colonial India, became the primary source of criminal law in Tanganyika via the Indian Acts (Application) Ordinance of 1920, applied retroactively from April 1, 1919.

c. Customary Criminal Law
The 1920 Order in Council also allowed for the application of customary criminal law in cases involving native parties, provided that such customs were not "repugnant to justice and morality" or inconsistent with any Order in Council or Ordinance. This approach permitted flexibility in procedure and minimized delays, with native courts primarily administering customary criminal law in rural areas. British standards often conflicted with local notions of justice and morality, resulting in the invocation of the repugnancy clause to block practices like trial by ordeal, indiscriminate punishment of witches, and extended criminal responsibility to kin. For example, in Gwao bin Kilimo v. Kisunda bin Ifuti [1938], the High Court rejected a customary principle holding a father partially liable for his son's actions as repugnant to British justice and morality, affirming individual responsibility.

d. The Penal Code and Related Penal Statutes
Despite the existence of customary criminal law, the primary source of criminal law in Tanganyika was the Penal Code imported from India, which remained in use until 1930 when specific codes were introduced for each East African colony based on a model from the colonial office and influenced by the Queensland Criminal Code of 1899. Initially, the Penal Code’s impact was minimal, as traditional dispute resolution methods prevailed in rural areas. The economy had not developed sufficiently to necessitate or support widespread application of the Penal Code. New criminal offenses such as armed robbery only emerged by 1931, reflecting the gradual transformation of the society. Crimes not previously recognized, such as vagrancy, arose in urban areas due to economic pressures like the Great Depression. To address these issues, various statutes were introduced, including those targeting "idle and disorderly persons" and "rogues and vagabonds." Ordinances like the Destitute Persons Ordinance and the Township (Removal of Undesirable Persons) Ordinance of 1944 underscored the indiscriminate application of British law, which often disregarded the local context.

e. The Administration of Justice
In 1929, a two-tier court system was introduced with the Native Courts Ordinance, which placed native courts outside the jurisdiction of the High Court, with oversight by district and provincial administration, while final appeals rested with the Governor. The Local Courts Ordinance of 1951 renamed these institutions as Local Courts, allowing appeals to flow directly from District Commissioners to the Native Central Court of Appeal. Native courts handled most cases involving Africans, with serious offenses addressed by subordinate courts applying British law and minor offenses in rural areas handled by native courts applying customary law. This structure transformed native courts into systematized institutions aligned with British models, effectively integrating them as instruments of colonial governance. The system persisted until Tanganyika’s independence in 1961.

Criminal law in the post-independence era 1961 to date

a. The Reception of English Legal System

The post-independence legal system was based on the concept of continuity. Just after independence the Judicature and Application of Laws Ordinance (JALO) No. 57 of 1961 (CAP. 452) was enacted. This Ordinance laid the legal foundation of such continuity. Section 2(2) of the ordinance (the Reception Clause) reproduced the 1920 reception clause wherein the jurisdiction of the High Court was to be:-

"... exercised in conformity with the written laws which are in force-in conformity with the substance of common law, the Doctrines of Equity and the Statutes of General Application in force in England and

... with the powers vested in and according to the procedure and practice observed by and before courts of justice of the peace in England."

Even after adopting a Republican status in 1962 the position was retained (see the Republic of Tanganyika (consequential Provisions) Act no.. 2 of 1962). In short the independence government inherited the legal framework of the British.

The Judicature and Application of Laws Ordinance (JALO) took the same position on customary law, as that found in the reception clause of 1920. That means customary law both criminal and civil, continued to exist subject to the limitations specified in section 9 of the Ordinance. However customary criminal law was abolished in 1963 by Section 66 of the Magistrates Courts Act of 1963 (CAP. 537). In this law the courts were unified giving rise to a one-tier structure from the primary court at the bottom to the High Court. Administrative officers ceased to perform judicial functions.

(b) Selected Penal Statutes and Offences

(i) The Penal Code

The Penal Code is the major source of criminal law in Tanzania. Its history has been briefly outlined above. However there were some amendments to accommodate politico-economic changes that took place after independence. Examples include:-

• Section 89(c) of the Penal Code, introduced by Act no. 61 of 1962, made it an offence to dissuade others from assisting with the self-help schemes.

• After the 1967 Arusha Declaration the minimum sentence Act no. 2 of 1972 was enacted to increase punishments in the Penal Code for stealing from public enterprises.

The emergence of the problem of shortages of essential commodities in 1970's witnessed the creation of the offence of hoarding of goods -section 194 A of the Penal Code etc.

In short there have been no major changes in the penal code since independence.

(ii) The Minimum Sentences Act No. 29 of 1963

This was one of the harshest legislation introduced by the independence government. The official version was that the government was worried by the increases of theft in government offices, stock theft, house breakings and burglaries, robberies and corruption, etc. The Act introduced corporal punishments. In fact some MP's, during the debate on the Bill suggested that the flogging should be made in public, others that hands of the thieves should be amputed (see parliamentary debater). Only two MP's had reservations on the legislation. The Bill was passed.

Ironically the British colonial administration was different. To them flogging was to be administered in serious and special cases only (see circular to magistrates No. 6 of 1911 in 4 East African Law Report; App. 1. XVI). In 1972, through the Minimum sentences Act No. 1 of 1972. Corporal punishment was removed. However it was reinstated in 1989 by the Written Laws (Miscellaneous Amendments) Act, No. 2 of 1989.

(iii) Vagrancy Laws

The vagrancy laws during the colonial period were retained in the post-colonial period and in some cases extended. By Act No. ! I of 1983 Section 176 of the Penal Code widened , the categories of "idle and disorderly persons" to include unemployed person and those who absent themselves from their places of duty. Another legislation was introduced in the same year < 1983) i.e. the Human Resources Deployment Act (No. 6 of 1963).The Act introduced compulsory registration of all Tanzanians which was to be followed by the issuance of labor identity cards on top of the usual employers' identification cards. Under this Act all unemployed urban dwellers are to be settled in their villages of origin.

The Act can clearly be seen as one of the products of the early I980's economic crisis. It is a show of force, by the state, in the light of the prevailing conditions in the economy.

(iv) Corruption and Anti-Corruption Laws

Although there was no evidence of wide spread corruption in the colonial period the Prevention of Corruption Ordinance (CAP. 400) was enacted in 1958. The Central provisions were on "official corruption." Corruption started to be a serious problem in the 1960's. The slate did not leave this development unchecked. A new Prevention of Corruption Act No. 16 of 1971 was enacted. The Act repealed and replaced the 1958 Ordinance. New features of the Ac! included drastic increases in punishment for corruption offences, the expansion of corruption offences to cover public officers who live or are found with property beyond their known sources of income etc.

Intensification of corruption paralleling the deterioration of the economy. Finally the government undertook a major clamp-down on what it called "racketeers and economic saboteurs" initiated on the 25th March, 1983. The crackdown was aimed at people dealing illegally with foreign exchange, those hoarding commodities, those possessing unlicensed firearms and ammunitions and those found with government trophies. The government later enacted the Economic Sabotage (special provisions) Act No. 9 of 1983. Although the Act was enacted on the 6th May 1983 it was applied retrospectively to 24th March to cover all those arrested in the crackdown. Tnis Act established a special tribunal to hear all economic sabotage cases with a final and conclusive jurisdiction, not subject to" any review by any court or person in any capacity (Sect. 5 and 22 of the Act). However, some of the abnormalities in this Act were corrected in the Economic and Organized crime control Act No. 13 of 1984 which replaced it.

Such moves did not produce any substantial remedies to the economy. Since 1985 the government adopted a market economy.

(c) Use of Criminal Law for 'Development' Purposes

The use of law to implant "development' initiated by the colonial masters continued after independence. A few examples may suffice to illustrate the point:

(i) Taxation

The use of taxation legislation as a means of raising revenue and a means of securing cheap labor continued after independence for eight years. Local rates were abolished in January 1970. However the taxes, now called development levy, were reintroduced in 1983. Coercion was the major means of securing compliance by the people.

(ii) Subsidiary criminal legislation

There are many types of subsidiary criminal legislation which carry penal sanctions. City, Town and District Councils have wide powers of enacting by-laws regulating farming, education, the production, storage and sale of foodstuffs, health, trade, manufacture and sale of intoxicating liquors, public order etc. for application within their areas of jurisdiction. Crop authorities also make some by-laws. Some statutes give power to the Ministers to make bylaws for the same purposes.

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(a) Strict Liability Under the general principle of criminal law, mens rea (a guilty mind) is essential for establishing most crimes. However, in cases of strict liability, mens rea is not required. This means that the intention, belief, or state of mind of the accused is irrelevant.