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How bribery cripples justice in Tanzania courts

Source: Thomson Reuters Foundation - Tue, 27 Nov 2012 15:39 GMT
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By Kizito Makoye

The Judiciary of Tanzania, the country’s highest legal authority, is the latest institution to fall under the shadow of corruption following the arrest and prosecution of primary court magistrates who are accused of receiving bribes.

Several magistrates in lower courts have appeared before the court over the last five years to answer charges of receiving bribes with intent to influence court decisions. These charges paint a potentially disturbing picture of the country’s judiciary.

According to the independent watchdog site Tanzania Corruption Tracker System, most primary courts operate with impunity, where key decisions are made at the whim of corrupt magistrates who have developed a network to make money.

A government survey in 2009 has made similar findings. Only 36.3 percent of public officials questioned about corruption problems in Tanzania said that the primary and district courts were honest. Corruption also was viewed as widespread in the police force, Ministries of Finance, Home Affairs, and Lands, Housing and Urban Development.

For the magistrates, a ‘guilty’ or ‘not guilty’ plea has nothing to do with the offence someone is accused of having committed, rather it depends upon how much money the magistrate can pocket. Most verdicts favour the persons who pay more in bribes, according to Tanzania Corruption Tracker. 

This is contrary to legal ethics and the rule of law. 

Section 13(1) of the Constitution of the United Republic of Tanzania states that “All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law.” Subsection (4) adds that “No person shall be discriminated against by any person or any authority acting under any law or in the discharge of the functions or business of any state office.”

Three months ago, the country’s anti-corruption watchdog, the Prevention and Combating of Corruption Bureau (PCCB), arrested Honorable Pamela Kalala, the magistrate from Ilala district court in Dar es Salaam, accusing her of soliciting and receiving bribes from a relative of an accused person, so that she could influence the court’s decision on the case.

 According to PCCB prosecutors, Kalala sought a bribe worth Tanzania shillings (Tsh) 3 million (USD $1,849) in order to write a judgment in favour of Abubakari Mzirahi, who faced criminal charges. Mzirahi’s wife made an advance payment of Tsh 900,000 (USD $555) to Kalala, the PCCB said.  

A prosecutor from the PCCB, Alen Kasamala, alleged in court that Kalala violated section11/2007 of the PCCB Act, which makes it illegal for anyone to solicit and receive bribes. Kalala, however, met bail conditions and was acquitted based on unfinished investigations.

This is the fourth incident in which the PCCB investigators have charged magistrates with receiving bribes in the last five years. In December 2007, a district magistrate Jamila Nzota landed in court accused of soliciting Tsh 700,000 (USD $431) from a former representative of Manarth Enterprises Limited in exchange for preferential treatment in civil case number 33/207. Nzota was sentenced to three years imprisonment effective May 2009, after the court found her guilty.

Other magistrates prosecuted on bribery charges include a Kisutu Resident Magistrate Adolf Mahai in 2007 and Ukonga Primary Court Magistrate Ndovela Kihenga in  June, 2011.

These cases have dealt a blow to the country’s judiciary, which the U.S. Department of State described in a 2010 human rights report as one of Tanzania’s ‘poorly funded institutions plagued by inefficiency and corruption.’

According to the U.S. Department of State, some court clerks in Tanzanian courts are known to take bribes to decide whether or not to open cases and to hide or misdirect the files of those accused of crimes.

One woman described to me what she faced at Sinza primary court when she and her former husband sought a divorce after years of irreconcilable differences. A security guard at the primary court demanded Tsh 5,000 (USD $3) to take them to a magistrate. The young magistrate also demanded payment to take the case. The couple complied and proceeded to a court clerk who was instructed to open a case file for them. The official fee to open a case is Tsh 2,000 (USD $1.25), but the couple was told to pay 10 times more, Tsh 20,000 (USD $12.50).  

Having paid the clerk, they went to a second clerk whose job was to record the reasons the couple was seeking a divorce. The woman said this clerk deliberately wrote down the wrong information. When the couple questioned her, she demanded to be paid Tsh 5,000 (USD $3) so that she could get a special ink to erase that section of the file, the woman said.

The couple pressed ahead with their divorce and eventually the case was opened and resolved amicably in June this year.  Finally, the magistrate instructed the clerk not to issue the divorce certificate unless he was paid Tsh 200,000 (USD $123) for his service, the woman told me. The  magistrate was paid this bribe.  

In his classic book on ethics, RIGHT AND REASON: Ethics in Theory and Practice written in 1959 and still widely read today, Father Austin Fagothey provided some moral guidance for those disturbed by the bribery that pervades their lives.  He argued that a contract to do evil is invalid, cancelled by a prior obligation to do no wrong.

“No self-respecting person will soil his hands with a bribe, and public officials particularly must compromise their freedom to act impartially for the common good,” Fagothey wrote.

Kizito Makoye is a Tanzanian journalist based in Dar es Salaam

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