How Western Aid is fuelling corruption and bad governance in Tanzania

Gazeti la Mwananchi limejaribu kutafsiri kwa kifupi hii habari hapa ( lakini original story inaeleza kwa undani zaidi.

British lawyer and human rights activist Sarah Hermitage

Western governments that continue to pour aid into Tanzania are supporting the wide scale abuse of human rights in the country. The legal arena in Tanzania is nothing short of a circus where corruption and bartering have assumed an unchallengeable legality. Justice is bought and bartered for by the rich and powerful whilst the rights of the poor are ignored and abused. This circus is now being funded by western governments who continue to pour aid into Tanzania, hailing it as an African success story. They are failing to acknowledge the evidence to the contrary in a country where the death penalty remains on the statute book.

Donors seem blinded (perhaps conveniently) to the evidence coming out of Tanzania as to the lamentably poor state of governance and rising corruption in particular, in the institutions mandated to deliver justice such as the police and judiciary. Pronouncing Tanzania as a shining example of good governance and Africa’s success story begs the question; success for whom? The people of Tanzania or the commercial interests of respective governments that seek to do business in the country? Barrick Gold, Anglo Gold Ashanti, Heritage and Tullow Oil to name but a few of those interests. In January this year the British High Commissioner to Tanzania Diane Corner confirmed that the UK was the biggest investor in Tanzania. “There is not a single African country where we invest so much of our time and resources. This is the best country for business and economic relationship – as development partners, Britain has historically been Tanzania’s largest donor and our aid programme is now the largest it has ever been” she said.

Ironically, it is perhaps western ideals of good governance and the rule of law that allows this abuse to continue. Donor insistence for transitional regimes to adhere to western principles of good governance, in particular the non-interference with the judiciary by the executive, allows for corrupt regimes to act with impunity. Simply, adherence to this legal doctrine in an unsophisticated and underdeveloped legal system provides immunity to the corrupt. Manifest and major abuses of law can simply be dismissed with the simple response; “we cannot interfere with the judiciary” and there is little that can be said in response. Or is there? It is suggested here that there is a lot that can be said and that it is incumbent upon Western donors to do so if any espoused commitment to the protection of human rights in Tanzania by those donors can be taken seriously.

Constitutional systems that claim to be based on a separation of powers must provide for a system of checks and balances that render the institutions of state, accountable to each other and to the law. Such a system is imperative if the legal doctrine is to succeed. Without it, citizens are powerless to resist abuse of power. Despite a sophisticated and well developed legal system such as the one in the United Kingdom (UK), there is no shortage of corruption as recent events have shown, not least, the English parliamentarian expenses scandal. However, there exists in the UK, an effective system of checks and balances that provides for a high degree of accountability.

Abuse of legal process is a particularly cowardly but extremely effective form of corruption in Tanzania which always results in the denial of human rights, the rights of the marginalised and poor. Legal process in the lower courts in Tanzania is entrenched in a culture of corruption driven by bribery, oppression and power. Whether justice is delivered by the court i.e. a judgement delivered in accordance with the laws of Tanzania will depend on the parties to the case, their ability to influence and the potential of magistrate to succumb to that influence. Without risk of sanction, magistrates commonly seek and accept bribes.

Tanzania’s most prominent legal and human rights organisation, the Legal and Human Rights Centre (LHRC) states that magistrates have been reprimanded for delaying cases without trials and for writing judgments without adequate or justifiable reasons. Court clerks have assumed the role of advocate or legal aid providers in courts – there is an increasing tendency for court clerks and prison officers to demand some amount of money from inmates who need legal assistance. All of these actions create a negative impression of the judiciary and deny individuals fast and fair access to justice. “Complaints are directed at all branches of the judiciary but the main target is the Primary Courts. This is quite understandable as these courts are nearest to the people and hence their work affects the majority of the people in their daily lives and particularly when they operate without due regard to ethical considerations” (Tanzanian human rights lawyer Professor Chris Peter Maina of the University of Dar es Salaam)

This culture of corruption is further fuelled by advocates who manipulate cases to their advantage by backing the winning side. As a result the innocent are often sent to prison, denied bail and spend years on remand for offences they did not commit. This is a situation that is not only an indictment on Tanzania but on western governments who are failing to acknowledge the extent of the abuse and the misery that results from it. In 2009 the Tanganyika Law Society (TLS) published evidence of the wide scale abuse of human rights including torture in Tanzanian prisons. This was denied by the Ministry of Home Affairs but supported by Tanzania’s Commission for Human Rights and Good Governance (CHRAGG). The 2010 U.S. State Department’s Human Rights Report on Tanzania cites reports of the wide scale sexual abuse of detainees by prison officers and that juveniles were held with convicted, remand and adult prisoners.

Professor Maina found (Independence of the Judiciary in Tanzania: Many Rivers to Cross) that the majority of those who appeared before the Warioba Commission were of the opinion that it is impossible to get justice in Tanzania without giving some form of a bribe, corrupt elements manipulated court proceedings in various ways to achieve desired ends, evidence is distorted and, court records were falsified and destroyed. In the most serious cases “in an almost Mafioso extortion style” innocent people were incarcerated to force them or their relatives to offer bribes for their release. Maina reported on a tendency to protect incompetent, corrupt and unworthy elements – usually where there is a powerful “Godfather” in a strategic position within the judiciary or within the ruling Party or the government.

Whilst the Warioba Commission took place in 1996, evidence emerging from Tanzania over recent years shows little improvement. Tanzania’s non-governmental organisation the Tanzania Corruption Tracker System (CTS) a civil society initiative incepted to fight corruption in Tanzania reported in early 2012 that magistrates have devised numerous ways of soliciting bribes from their clients, and the trick, more often than not, revolves around judgments that can only be unmasked (as corrupt) by those well versed in legal issues showing once again that is it the poor and marginalised who are denied access to law by the vey institutions mandated under the Constitution to protect them.

Whilst the evidence suggests judicial corruption is more prevalent in the lower courts studies by U4 Anti-Corruption Resource Centre (2009) show that corruption pervades all levels of the judiciary and that bribery is commonly used to speed-up judicial processes (however the increased activity in the lower courts could account for the discrepancy in corruption levels: although no studies support this view). Judicial Reform for Improving Governance in Anglophone Africa reports that the appointment of judges in Tanzania is a gambling game. It is a matter of “who knows who” religious beliefs and is gender sensitive.

A further and similar level of legal abuse can be found in the Tanzanian police. A survey conducted by Tanzania’s Prevention and Combating Bureau (PCCB) in 2009 (published in 2011) ranks the Tanzanian police as the most corrupt institution in Tanzania (with the judiciary as runner up) a position confirmed by the 2011 East African Bribery Index (EABI) which carried out its survey in conjunction with Transparency International. CTS supports the view that the culture of judicial corruption permeates the police allowing them to augment their poor incomes.

In the main there is little evidence to commend the Tanzanian police. Most evidence suggests it is an uneducated and illiterate body which neither understands nor adheres to the obligations required by the Penal Code or, any other legal obligation associated with the office of law enforcement. Often resorting to thuggery and violence and disinterested in the rights of citizens, the police commonly use their powers to extort bribes, corrupt evidence and manipulate the legal process which inevitably results in the unlawful incarceration of innocent citizens.

Tanzania’s Commission for Human Rights and Good Governance recently released the results of a 2009 survey to determine the extent of brutality committed by law enforcement officers in Tanzania. According to the report, 97% of the 1,045 survey respondents indicated that law enforcers committed acts of brutality, including killing and beatings with the police identified as the worst offenders. The report also found the police often acted as prosecutors in lower courts, which allowed them to manipulate evidence in criminal cases. In January 2011 the Tanzanian press reported that police had “shot dead at least two unarmed civilians and left a dozen others nursing gunshot wounds following street demonstrations organised by Tanzania’s main opposition party Chadema. This report is supported by the LHRC who state over thirty people were killed by police brutality in the first few months of 2011. Combined with the corruption in the judiciary, police corruption makes access to justice nigh on impossible for the poor and marginalised in Tanzania.

The Constitution of the United Republic of Tanzania expects state authorities and agencies to direct their policies and programmes to ensure that, “all forms of injustice, intimidation, discrimination, corruption, oppression or favouritism are eradicated.” It is clear from the evidence that the government of Tanzania is not upholding the Constitution and thereby failing to protect the fundamental human rights of its citizens.

Transparency International maintains the judiciary is an organ of government and its composition and functioning is a matter of national law. However, multilateral, bilateral and unilateral donors support judicial systems through funding and expert advice and thus, do affect the future character of judicial systems where they make the largest financial and technical contribution to justice reform (as is the case in Tanzania).

Tanzania is not a mature democracy and strict adherence to a legal doctrine that results in the continuing abuse of human rights should not be supported by countries providing aid. If International donors do not want to be seen as complicit in this abuse then they need to re-visit their aid policies and the direction of the legal reforms they support.

Source: How Western Aid is fuelling corruption and bad governance in TZ | The London Evening Post FE