To contemporary criminal justice in Tanzania

Thesis (LLD)--University of Pretoria, 2018.Tanzania is one of the jurisdictions that follows a common law adversarial criminal justice system. It is argued in this research that this system faces a host of challenges in addressing the needs of victims and offenders; holding offenders accountable; repairing harm and restoring relationships among parties; and involving the community in decision-making in dispute resolution. As such, this study investigates the possibility of applying restorative interventions in the criminal justice process in Tanzania Mainland. It is argued that restorative justice is a viable system for resolving minor or non-violent cases involving adult offenders. In this regard, the thesis examines well-established practices of restorative justice in relation to juvenile as well as adult offenders in North America and New Zealand, the intention being to lay the groundwork for the development of a governing framework specifically for adultoffender programmes; in addition, an opportunity for restorative intervention for serious crimes is provided as an option for willing parties. It is proposed that in Tanzania Mainland, restorative justice interventions could operate in conjunction with adversarial criminal justice as complementary justice mechanisms at different stages of the relevant processes. However, while the experience of restorative interventions in other jurisdictions is relevant, this research puts the emphasis on restorative justice in an African context. African jurisprudence based on the ubuntu or utu is taken as a platform for the implementation of restorative justice in Africa in general and Tanzania in particular. This research examines indigenous justice practices and how their values can be incorporated in the contemporary criminal justice system. Hence, the proposed restorative justice model in Tanzania Mainland takes on board both modern restorative justice and indigenous justice practices. The research is divided into nine chapters. Chapter 1 sets the scene by establishing the rationale of this research. It identifies the challenges presented by the contemporary criminal justice system and defines some key concepts. The chapter establishes opportunities available within the laws of Tanzania which may foster the establishment of restorative justice programmes. The chapter further sets up the scope and provides the methodology of the research. Chapter 2 analyses modern restorative justice by considering different definitions of restorative justice and provides a background to the genesis of restorative justice theory. The elements and advantages of using restorative justice are analysed in this chapter. The contemporary debates in restorative justice are listed and discussed in order to highlight the challenges that may arise in implementing restorative justice in Tanzania Mainland. Chapter 3 discusses different types of restorative justice practices such as victim-offender mediation, family group conferencing, conferencing circles and sentencing circles. The chapter considers other restorative justice practices with an indigenous justice approach such as the Zwelethemba justice model. The chapter also points out the stages under which diversionary measures for restorative justice may be considered. Chapter 4 views restorative justice in the perspective of indigenous justice. Hence, practices of indigenous restorative justice practices as practiced by the Maori and Navajo tribes are evaluated. The chapter further analyses the differences and similarities between modern restorative justice and indigenous restorative justice practices. Chapter 5 views restorative justice with an African indigenous justice jurisprudence. This chapter considers restorative justice in the context of transitional societies engaged in post-conflict reconstruction in Africa. Chapter 6 considers ubuntu and ujamaa as African jurisprudence that takes on board restorative justice values. A critical analysis of ubuntu through cases and how it has influenced the judicial thinking is addressed in this chapter. Chapter 7 addresses the Tanzanian contemporary criminal justice system. The chapter establishes how victims, offenders and the community are involved in the criminal justice process. The chapter takes a form of comparative analysis by bringing examples from other jurisdiction which have improved the criminal justice by involving victims, offenders and the community in dispute resolution. The chapter indicates that the contemporary criminal justice in Tanzania Mainland is technical for lay persons to fairly argue their cases for justice. Also, the court language concern in Tanzania Mainland which has been a controversial for years is addressed in this chapter. Chapter 7 provides opportunities available from the laws of Tanzania Mainland which may accommodate restorative justice in the criminal justice. The provisions of the Constitution of the United Republic of Tanzania 1977, the Criminal Procedure Act, 1985 and the Magistrates’ Courts Act, 1984 which may harbour the establishment of restorative justice programmes are discussed. Chapter 9 concludes the research by posing recommendations for the Tanzania restorative justice model. The proposed model may involve the Police, Social Walfare Officers, Village Council and Ward Tribunals at different stages of the criminal justice process.Private LawLLDUnrestricte