James Jesse, UDSM School of Law, University of Dar es Salaam

LAUNCHING OF THE FIVE YEARS TANLAP STRATEGIC PLAN

RUSSIAN CULTURAL CENTER, DAR S SALAAM

DECEMBER 8TH, 2010

A Paper on:

ACCESS TO JUSTICE IN TANZANIA

Presenter: James Jesse

Lecturer of Law, UDSM School of Law

University of Dar es Salaam

Email:jamesjessej@yahoo.co.uk

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James Jesse, UDSM School of Law, University of Dar es Salaam

ACCESS TO JUSTICE IN TANZANIA

“The United Nations has learned that the rule of law is not a luxury and that
justice is not a side issue. We have seen people lose faith in a peace process
when they do not feel safe from crime. We have seen that without a credible
machinery to enforce the law and resolve disputes, people resorted to violence
and illegal means. And we have seen that elections held when the rule of law is
too fragile seldom lead to lasting democratic governance. We have learned that
the rule of law delayed is lasting peace denied, and that justice is a handmaiden
of true peace. We must take a comprehensive approach to Justice and the Rule
of Law. It should encompass the entire criminal justice chain, not only police, but
lawyers, prosecutors, judges and prison officers, as well as many issues beyond
the criminal justice system. But a “one-size-fits-all” does not work. Local actors
must be involved from the start. The aim must be to leave behind strong local
institutions when we depart”.

Kofi Annan, Former Secretary-General of the United Nations

INTRODUCTION
What is Access to Justice?

The term Access to Justice is not defined in international law and has been used in

different ways in different contexts. Traditionally, the term has been used to refer to

opening up the formal systems and structures of the law to disadvantaged groups in

society. This includes removing legal and financial barriers, but also social barriers such

as language, lack of knowledge of legal rights and intimidation by the law and legal

institutions. The rationale to associate access to justice with disadvantaged groups is

that these groups face difficulties to seek and obtain remedy through formal judicial

systems because of the above mentioned barriers.

Simply defined, access to justice or access to courts refers to the ability of people to

seek and obtain a remedy through formal or informal institutions of justice, and in

conformity with human rights standards.

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James Jesse, UDSM School of Law, University of Dar es Salaam

Access to Justice as a Human Right

The right to access to justice has its foundation in provisions in international

human rights law that address the equality of people before the law, their

right to equal protection under the law, and their right to be treated fairly by

a tribunal or court. These rights are addressed in Articles 6 through 11 in the

Universal Declaration of Human Rights (UDHR) and are addressed in

more detail in Articles 14 – 16 of the International Covenant on Civil and

Political Rights (ICCPR).

So, access to justice intersects with various human rights in a number of ways:
First, it is itself a fundamental human right as set out in Article 8 of the UDHR. This
Article provides that: “Everyone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted him by the
constitution or by law.”

Other treaties address the need to ensure that specific groups are able to enjoy human
rights on an equal basis with others. The International Convention on the Elimination
of All Forms of Racial Discrimination (CERD) and the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) are
particularly relevant for vulnerable groups who may be subject to multiple
discriminations. For example, Article 5(a) of CERD requires that States “eliminate racial
discrimination in all its forms,” and guarantee the right of everyone “to equal treatment
before the tribunals and all other organs administering justice.” Article 15 of CEDAW
addresses these issues as they relate to women, and requires that States treat women
“equally in all stages of procedure in courts and tribunals.” This means that without
access to justice there cannot be guarantee of human rights to everyone.

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James Jesse, UDSM School of Law, University of Dar es Salaam

The UN Convention on the Rights of Persons with Disabilities, is more specific on the

right of access to justice, Article 13 provides that:

Article 13, Access to Justice:

1. States Parties shall ensure effective access to justice for persons with
disabilities on an equal basis with others, including through the provision of
procedural and age- appropriate accommodations, in order to facilitate their
effective role as direct and indirect participants, including as witnesses, in all
legal proceedings, including at investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for persons with
disabilities, States Parties shall promote appropriate training for those
working in the field of administration of justice, including police and prison
staff.

Secondly, access to justice is a means to protect and enjoy other rights. People who

feel wronged or mistreated in some way usually turn to their country’s

justice system to seek for appropriate remedy. The right of access to justice has

for a long time and in many jurisdictions been regarded as one of the most important

rights a person is entitled to enjoy in a democratic society. Without access to justice, it is

impossible to enjoy and ensure the realization of any other right whether civil, political or

economic. The ability to access justice is of critical importance in the

enjoyment of all other human rights.

Thus, a fair and efficient system for providing justice is crucial to the proper functioning

of society. Not only does it hold individuals, including state officials, accountable for their

actions, but it also sets norms of behaviour for other citizens. The Court of Appeal of

Tanzania considered the right of access to justice as a fundamental component of rule

of law.1 In Ndyanabo case, the Court referred to many cases from various jurisdictions.

1
Stated by the Court of Appeal in Julius Ishengoma Francis Ndyanabo v. Attorney General, Civil Appeal
No. 64 of 2001: Samatta, CJ, Kisanga, J.A, and Lugakingira, J.A.

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James Jesse, UDSM School of Law, University of Dar es Salaam

One of such cases was the South African case of Chief Direko Lesapo v. North West

Agricultural Bank and Another2 in which Mokgaro, J., talking about the right of access to

courts, said:

The right of access to court is indeed a foundational to the stability of an

ordinary society. It ensures the peaceful regulated and institutionalized
mechanisms to resolve disputes, without resorting to self help. The right of
access to court is a bulwark against vigilantism, and the chaos and anarchy
which it causes. Construed in this context of the rule of law and the principle
against self help in particular, access to court is indeed of a cardinal
importance. As a result, very powerful considerations would be required for
its limitation to be reasonable and justifiable.

It is trite that in any domestic legal system, respect and protection of human rights and

other legal rights cannot be fully guaranteed without the availability of effective judicial

remedies. Access to justice is of fundamental importance to the injured individual and it

is an essential component of the system of protection and enforcement of all rights.

FUNDAMENTAL ELEMENTS OF ACCESS TO JUSTICE

Reading from the General Comments of the UN Human Right Committee which

monitors the implementation of International Covenant on Civil and Political Rights

(ICCPR), there are five minimum standards or elements that should be met if access to

justice has to be secured. These are (i) Availability of independent and impartial courts

or tribunals; (ii) Competent and accessible courts or tribunals with sufficient resources

such as sufficient number of court rooms, judges, magistrates and other facilities

necessary for the court to administer justice; (iii) Good laws which are understood by

majority of the people; (iv) Available and sufficient qualified lawyers to represent those

2
Case CCT 23/199

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James Jesse, UDSM School of Law, University of Dar es Salaam

who cannot defend themselves in courts of law and tribunals and; (v) Timely and fair

trial to all regardless of their socio-economic and political status.3

The crucial question to us is whether Tanzania meets any or all of the above elements?

The answer is Yes or No! Let us see the situation of access to justice in Tanzania.

SITUATIONAL ANALYSIS OF ACCESS TO JUSTICE IN TANZANIA

In Tanzania, the situation and status of the right of access to justice has many

challenges or barriers. These barriers range from people themselves, the judicial

systems and its officers, the laws, the economy and many other factors as we shall see.

In general, it can be said that access to justice in Tanzania is critically deficient and not

adequately guaranteed. Some of these barriers are as follows:

I: Very few courts and magistrates to administer Justice

The statistics show that in 2009 there were 1,105 Primary courts in contrast to the

available 11,000 villages in the country. There were 88 District comparing to the

available 133 district in Tanzania. Resident Magistrates courts were 22 in the country

and High Court registries were only 13 in Tanzania Mainland out of over 20 regions. 4

With regard to the number of magistrates available, there were only 713 Primary Court

magistrates (47.54%) while the required number is 1,500 countrywide. This means that

there was a deficit of 787 magistrates (52.46%) as of November 2009. 5 The byproduct

of this shortage is inordinate delays in adjudication of cases and increase of corruption.

3
See, The ICCPR Art. 14 Human Rights Committee, General Comment 13, Article 14 (Twenty-first
Session, 1984), Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 14 (1994).
4
See Legal and Human Rights Centre, Tanzania Human Rights Report of 2009.
5
Harold Sungusia, The Challenges Facing Legal Aid Providers in the Improvement of Access to Justice
in Tanzania, a Paper presented at the National Consultative Meeting for Legal Aid Providers Organised
by Ministry Of Constitutional Affairs and Justice, New Africa Hotel, Dar es Salaam 11th November 2010.

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James Jesse, UDSM School of Law, University of Dar es Salaam

Together with this shortage of magistrates and courts is the limited geographical

accessibility of the courts. Physical location of courts leaves much to be desired. Most

of our courts and other law enforcement organs are located in urban or peri- urban

centres. People cannot easily access them in case of need.

II: Inadequate number of advocate (lawyers) and costs related

In contrast to Kenya and Uganda, Tanzania is far behind in terms of number of lawyers

who have been admitted to practice law. While Kenya has 11,700 practicing advocates

who serve 36 million people, and Uganda has 7,000 practicing advocates serving 31

million people, Tanzania has 1,223 practicing advocates serving over 40 million people.

While there’s a huge demand for legal services, the supply of lawyers is not keeping

pace. The few lawyers available are also located in urban centres. In this regard, the

implications for access to justice in Tanzania are, therefore, serious.

The second matter upon which to focus is the cost involved in legal decision-making

processes. The overall cost of engaging an advocate and attending in court when a

case comes for mention or hearing is another setback to majority of litigants. Probably,

we have all heard the array of jokes (or reality) about lawyers, usually based on the

proposition that lawyers are greedy and expensive. Thus, the poor and disadvantaged

groups are particularly likely to face problems accessing justice institutions because of

lack of available and affordable legal representation.

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James Jesse, UDSM School of Law, University of Dar es Salaam

Legal representation in Tanzania is not a matter of right. The government legal

representation is for suspects of criminal offences only, especially those charged with

murder and treason. And after all, it is not the government attorneys or defenders who

provide such representation; rather cases are assigned to private advocates who are

required to defend suspects and in turn a token of few shillings is given to them. The

rest of the groups who need legal representation rely on the compassion, wishes and

abilities of the Legal Aid providers belonging to the Civil Society Organisation (CSOs)

who offer pro bono legal aid which is not subsidized in any way by the government. 6

The need for having prompt and regular access to a lawyer is an important safeguard

against maltreatment or ill-treatment such as torture, cruelty, coerced confession or

wrongful admission which have a negative impact in the final determination of a case.

III: Long delays

Long delays are another critical challenge and a chronic disease in Tanzania. Courts

are slow in bringing cases to a conclusion. Inadequate number of skilled judicial officials

and prosecutors; lack of facilities; lack of commitment and accountability have a

negative impact in the realization of timely justice. In this regard, cases are inevitably

piling up in courts awaiting determination, leading to the delay of justice. During the

Prisons visit of June and July 2009, which was organized by the Tanganyika Law

Society and coordinated by the LSRP, the team met several remandees in the prisons

who awaited determination of their cases for over eight years. Some of the complaints
6
Section 3 of the Legal Aid (Criminal Proceeding) Act, Cap. 21 of the R.E. 2002 of the Laws of Tanzania,
states that “[W]here in any proceeding it appears to the certifying authority that it is desirable, in the
interests of justice, that an accused should have legal aid in the preparation and conduct of his defence or
appeal, as the case may be, and that his means are insufficient to enable him to obtain such aid, the
certifying authority may certify that the accused ought to have such legal aid and upon such certificate
being issued the Registrar shall, where it is practicable so to do, assign to the accused an advocate for
the purpose of the preparation and conduct of his defence or appeal, as the case may be.”

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James Jesse, UDSM School of Law, University of Dar es Salaam

from remandees are captured in the Report of Legal and Human Right Centre of 2009.

For example a female remandee at Arusha Prison narrated the following story [on

8/7/2009]:

Nakumbuka nilikamatwa mwaka 2000 asubuhi nikiwa natayarisha uji wa

kijana wangu. Mume wangu alikuwa ni mgonjwa ameparalaizi kalala ndani.
Tokea asubuhi ile mpaka leo (Julai 2009), sijawaona hao ndugu zangu na
kesi imesimama kwa sababu hakuna cheti cha kifo cha mtu ninayedaiwa
kumuua. Nilikamatwa kwa sababu walikuta maiti njiani karibu na nyumba
yangu. Kila mara Mahakamani ni nenda rudi miaka sasa imepita. [I recall
that I was arrested in the morning in 2000, as I was preparing porridge for
my child. My husband was paralyzed and was bedridden inside. Ever since
that morning to date (July 2009), I have never seen my relatives and the
case has been stalled because there is no death certificate of the deceased
they claim I murdered. I was arrested because they found the corpse
nearby my homestead. They have been taking me to and from the court for
years now].

Many people are denied justice through long detentions of suspects in prison custody.

These delays are attributed to back log of cases, insufficient transport facilities in the

police force or prison, corruption, the delay to furnish evidence by police, etc.

Advocates too have their part to blame. Cases in which advocates are engaged take too

long to be finalized. The role of advocates in causing delays involves late coming,

unnecessary adjournments which are condoned by magistrates and judges and failure

to present witnesses. All these problems create dissatisfaction to the public and

diminishing public confidence to the justice administrations system. Perhaps the most

visible and spectacular indictment of the present legal system and the administration of

justice is the current spate of mob justice. People take the law into their own hands to

impose severe punishments to criminal suspects. Death is easily and brutally meted out

for the most venial transgression; for example a kibaka who steals an earring is stoned

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James Jesse, UDSM School of Law, University of Dar es Salaam

or burnt until he meets his death. This is one of the manifestations of failure of formal

justice mechanism.

Efforts to initiate reforms of the legal sector have been underway for long. With the

launch of the Legal Sector Reform Programme (LSRP) an ambitious platform for

support across the whole legal sector has been established. The overall vision of the

LSRP is “timely justice for all”. This builds on the speedy dispensation of justice,

affordability and access to justice for all social groups, integrity and professionalism of

legal officers, enhanced independence of the judiciary and a legal and regulatory

framework and jurisprudence of high standards responsive to social, political, economic

and technological trends at both national and international levels. The overall objective

of the LSRP is to strengthen the judicial system. The focus of the programme is on five

strategic areas: 1) National legal framework, 2) Access to justice for the poor and the

disadvantaged, 3) Human rights and administration of justice, 4) Knowledge and skills

of legal professionals, and 5) Service delivery capacity in key legal sector institutions.

These ambitious objectives are still far to be realized. Consequently, the problem of

access to justice continues unabated.

IV: Lack of adequate information about the law, what prevails in practice, and

limited popular knowledge of rights

Legal awareness is the foundation for fighting injustice. The poor and other

disadvantaged people cannot seek remedies for injustice when they do not know what

their rights and entitlements are under the law. Equally important, the fact that justice

does not use a language mainly spoken by the justiciable (that is Kiswahili) remains a

source of incomprehension and suspicion of all kinds. It becomes a justice of the rich

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James Jesse, UDSM School of Law, University of Dar es Salaam

persons. There are also operational problems that are associated with these

phenomena. The alien nature of the legal system, the public’s unfamiliarity with it, the

adversarial nature of the litigation process and the technical nature of the law and its

procedure combine to compound the problem of accessing justice.

V: Formalistic and complicated technicalities

Due to a myriad of formalistic procedures and technicalities it can take weeks for a

litigant to appear in Court for the first mention; and the process of filing pleadings,

determining preliminary objections and interlocutory matters may take months or years.

By the time the case is ready to go for trial, so much time would have been wasted that

many litigants find it not worth the trouble. Very rarely do cases proceed for trial on the

first date set for hearing. There is usually one reason or the other for an adjournment.

An adjournment may mean a further delay of several months, sometimes years. A

hearing, especially where several witnesses are involved, may itself take years to

finalize before a date for judgment is set. 7 It is quite common for a case to take 5 to 8

years before it is finally determined in the single court.

Furthermore, the legal principles are not only of an alien source; they are rendered in

non-popular technical language, even for those acquainted with the English language.

This problem is not peculiar to Tanzania or developing countries alone. In the landmark

case of Powel v. Alabama8 decided in 1932, the U.S Supreme Court remarked on the

7
Fauz Twaib, Legal Empowerment of the Poor: Access to Justice and Rule of Law (undated paper).
8
287 US at 69..

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James Jesse, UDSM School of Law, University of Dar es Salaam

right to the effective assistance of counsel. The court construed the Sixth Amendment

right to the assistance of counsel and held that:

Historically and in practice, in our own country at least, it has always

included the right to the aid of counsel when desired....The right to be heard
would be, in many cases, of little avail if it did not comprehend the right to be
heard by counsel. Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with crime, he is
incapable, generally, of determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evidence. Left without the aid
of counsel he may be put on trial without a proper charge, and convicted
upon incompetent evidence, or evidence irrelevant to the issue or otherwise
inadmissible. He lacks both the skill and knowledge adequately to prepare
his defense, even though he had a perfect one. He requires the guiding hand
of counsel at every step in the proceedings against him. Without it, though
he be not guilty, he faces the danger of conviction because he does not
know how to establish his innocence. If that be true of men of intelligence,
how much more true is it of the ignorant and illiterate, or those of
feeble intellect. If in any case, civil or criminal, a state or federal court were
arbitrarily to refuse to hear a party by counsel, employed by and appearing
for him, it reasonably may not be doubted that such a refusal would be a
denial of a hearing, and, therefore, of due process in the constitutional sense.
(Emphasis added.)

VI: Lack of sufficient Legal Aid and Counsel

There is no legal framework in Tanzania which regulates legal aid in Tanzania. The only

law in Tanzania which provides for provision of legal aid or legal representation is the

Legal Aid (Criminal Proceedings) Act, 1969,9 Cap 21. This Act provides that where in

any proceedings it appears to the certifying authority that it is desirable, in the interests

of justice, that an accused should have legal aid in the preparation and conduct of his

defence or appeal, as the case may be, and that his means are insufficient to enable

him to obtain such aid, the citifying authority may certify that the accused ought to have

9
Cap 21 of the R.E 2002 of the Laws of Tanzania

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James Jesse, UDSM School of Law, University of Dar es Salaam

such legal aid and upon such certificate being issued, the Registrar shall, where it is

practicable so to do, assign to the accused an advocate for the purpose of the

preparation and conduct of his defence or appeal, as the case may be. In practice, this

law has only been used in very limited cases involving capital offences such as murder

or manslaughter.

It is clear from this law that, cases (or dock briefs) are assigned to practicing advocates

who in most cases are reluctant to take bro bono cases. The government does not

provide legal aid using public defenders. In addition, there is no legal framework to

cutter for legal representation in civil cases. Consequently, majority of people who are

indigent and thus incapable of hiring lawyers, appear and defend themselves in court

without any legal assistance. This serious gap renders the big portion of poor citizen

and marginalized groups unable to handle their cases freely and fairly in court

proceedings and thus loose cases because of unequal power relations with their

counterparts who might be people of means.

The unquenchable demand for Legal Aid in Tanzania led to a number of NGOs or

CSOs to establish legal aid schemes in order to serve the indigent majority who do not

have financial muscles to engage advocates 10. Up to now there are several CSOs or

institutions which offer legal aid. Some of them are the Legal Aid Committee of the

Faculty of Law, University of Dar es Salaam (now UDSoL), Tanganyika Law Society

(TLS), Tanzania Women Lawyer's Association (TAWLA), Legal and Human Rights

Centre (LHRC), National Organisation for Legal Assistance (NOLA), Tanzania Media
10
Harold Sungusia, op. cit p. 3.

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James Jesse, UDSM School of Law, University of Dar es Salaam

Women’s Association (TAMWA), Women in Law and Development in Africa (WiLDAF),

The Women’s Legal Aid Centre (WLAC), etc.

To strengthen and coordinate their efforts in provision of legal aid TANLAP was

established. The Tanzania Network of Legal Aid Providers (TANLAP) is a national-wide

network that was established in 2006 by legal aid providers following the need of having

an active and independent network of legal aid providers that will improve legal aid

services.

Most of the above mentioned legal aid providers offer various legal services, including

counseling, reconciliation, drafting of courts documents, couching or training clients on

how to appear and prosecute their cases in court and actually representing them in

courts of law. These organizations do not get any subsidy from the government. Most of

their projects are funded by international donors and the donor approach has been one

of supporting ad hoc, short term programs, rather than adopting a coherent approach

aimed at establishing a permanent legal aid structure.

However, apart from various challenges these organisations are facing including

shortage of funds to run their programs, they have done a commendable job to provide

legal aid to many indigent people in Tanzania. For instance, TAWLA reported to have

provided legal aid to 10,000 clients in the year 2009; in three consecutive years, LHRC

attended 14,088 clients in 2007, in 2008 they attended 12,877 clients and in 2009 they

attended 10,257 clients. These three NGOs attended more than 20,000 clients

combined in 2009. In average all legal aid providers attend more than 100,000 clients

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James Jesse, UDSM School of Law, University of Dar es Salaam

per annum. Assuming that, all these clients were to be attended by advocates for a

minimum legal fee of Tshs. 500, 000 each. In total they will need to have Tshs.

50,000,000,000 (fifty billion). This is a very huge amount of money! No more words can

be said than to congratulate the noble task which is being performed by the private legal

aid providers.

What policy and practice has been demonstrated to help overcome barriers?

The Government of the United Republic of Tanzania is aware of the problems facing

justice administration. Several efforts have been done in order to increase access to

justice for all Tanzanians. The Government has long recognized that reforms to

procedures governing the operations of the civil courts in Tanzania are necessary if

delays in case disposal and complaints about the conduct of advocates are to be

addressed. With the launch of the Legal Sector Reform Programme (LSRP) with its

overall vision of “timely justice for all” it was anticipated that many barriers to justice will

remain a history. However, up to now people have yet to adequately realize their access

to justice let alone “timely justice for all”. More positive steps need to be taken to

modernize our judicial system and increase access to courts in Tanzania.

On the aspect of Legal Aid, we are in fully support of the creation of the Directorate of

Public Legal Services (DPLS) under the Ministry of Constitutional Affairs and Justice.

The Directorate has begun very well by meeting with Legal Aid Providers in a

consultative meeting which was held on 11 th November 2010 at New Africa Hotel. It is

the expectation of the legal aid providers that their recommendations to the Directorate

will be acted upon as soon as possible.

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James Jesse, UDSM School of Law, University of Dar es Salaam

RECOMMENDATIONS

What reforms are necessary to develop transparent legal and institutional arrangements

in which all people have confidence, can access justice, and which will generally

contribute to a culture of fairness, equity and rule of law?

 Efforts should be made to promote access to justice, the rule of law and human

rights through legal literacy enhancement programs (awareness raising

campaigns) that aim to increase popular awareness of the Constitution and

related legislations. In other words, right holders be empowered to be more

aware of their rights. This is the responsibility of the government and

non-state actors.

 Capacity of justice administrators and law enforcement institutions

should continue to be strengthened to administer justice in a fair,

transparent and speedy manner.

 Enhanced civil society capacity to advocate for human rights and good

governance and provide more and more legal aid to many people.

 Conduct training to individuals at grassroots level who shall be

paralegals. Their main role will be dealing with simple cases brought to

them - by giving advice, drafting simple correspondences or simple

court papers to assist their fellow citizens in case of disputes.

Moreover, the paralegals can provide community education and raise

awareness on various legal issues. In this regard, legal framework for paralegals

need to be devised.

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James Jesse, UDSM School of Law, University of Dar es Salaam

 It is the duty of the legal profession to provide professional services free of

charge to those who cannot afford to pay for them. Lawyers should be

encouraged to be willing to carry cases for the needy in exchange for the

monopoly they hold over the provision of professional legal aid services.

 To ensure access to justice in a meaningful form, information on remedies for

injustice must be intelligible to the public and knowledge provided to them must

serve their practical purposes. Prof Peter rightly points out that for a hearing in a

court of law to be said to be fair, parties to the proceedings must understand

what is transpiring in their proceedings.11 Education illiteracy, the use of English

in court processes, unawareness of legal procedures and generally lack of

knowledge on the rights to the large majority of Tanzanian constitute a serious

obstacle to the access to justice. How is it possible for Tanzanian to have

adequate remedy if the majority of people are not able to take advantage of their

rights because of their ignorance? This is another critical challenge on access to

justice which should be adequately addressed.

 The government under the Directorate of Public Legal Services should

expedite the process of establishing a comprehensive legislation on

the legal aid which among other things will create institutions to

regulate legal aid provisions both in criminal and civil cases.

Furthermore, in order to protect the social infirm to enjoy the same rights of

legal assistance as common citizens not subject to economic difficulty, such

proposed law should also establish a Legal Aid Fund for purpose of providing

11
Chris Maina Peter, Human Rights in Tanzania: Selected Cases and Materials: Rudiger Koppe Verlag Koln, 1997, p.
333.

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James Jesse, UDSM School of Law, University of Dar es Salaam

material support for implementation of national legal aid schemes. This is done in

other countries such as Zambia, South Africa, UK, U.S, Australia, Finland, St.

Lucia and other countries.

Legal aid ensures vulnerable and disadvantaged people are not denied access to

justice because of their inability to pay for it and it ensures that people accused of

crime get a proper defence and a fair hearing. It is quite fair to say that legal aid to

the needy is one of the cornerstones of a fair and decent society. It provides the

framework within which citizens can enforce their rights and are held accountable for

fulfilling their responsibilities.

THANK YOU FOR LISTENING

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James Jesse, UDSM School of Law, University of Dar es Salaam

A SUMMARY OF BARRIERS TO ACCESS JUSTICE IN TANZANIA

 Awareness: The general lack of awareness of legal rights and remedies acts as a
formidable barrier to accessing justice.
 Mystification: The language of the law, invariably in very difficult and complicated
English, makes it unintelligible even to the literate or educated person. And this is
the language that courts and lawyers are comfortable with. Very little attempt has
been made translate laws in Kiswahili language and making it simpler and easily
comprehensible to the person engaging in legal issues.
 Delays: The average waiting time, both in the civil and criminal subordinate courts,
can extend to several years. The position in most of the High Court registries is no
different. Criminal appeals in the High Court, for instance, can be pending for over a
decade. This virtually negates the concept of fair justice.
 Expenses and Costs: We are all aware of the ineffectiveness of our costs regime
– even the successful litigant is unable to recover the actual costs of the litigation.
The considerable delay in reaching the conclusion of any litigation, which traverses
through various stages of the judicial hierarchy, adds to the costs and makes the
absence of an effective mechanism for their recovery even more problematic.
 Geographical location: This is an aspect that has not merited the attention it
deserves. We need to audit the physical accessibility of courts from the point of view
of user friendliness. But worse still we have not yet designed our courtrooms and
buildings to account for the needs of differently disabled persons.
 Access to the High Court in human rights cases: This is a matter of a serious
concern. In our constitutional framework, petitions for protection and enforcement of
fundamental rights can be filed only in the High Court where the corum is three

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James Jesse, UDSM School of Law, University of Dar es Salaam

judges. Invariably, this involves travelling to the High Court, engaging a competent
lawyer, and regular follows up of cases. A lot of time and expense is involved in this
process. Thus the division of jurisdiction between High Courts and subordinate
courts needs to be re-examined. We have the example of South Africa where even
the subordinate courts are empowered to enforce some fundamental rights. The
question that we need to address is whether we need to permit the subordinate
courts to deal with some of these critical issues, which have a direct bearing on the
rights to life and liberty, in order to facilitate access to justice.
 Lack of assistance from practicing advocates: Many lawyers do not want to take
pro bono cases. This is a problem which is generally faced in the justice
administration and is particularly acute in the subordinate judiciary.
 Lack of accountability: The existing mechanism for investigating complaints
regarding the functioning of judicial officials requires be re-examining and making
more effective. The problems that plague the administrative side of the functioning of
courts cannot be satisfactorily dealt with primarily on account of the lack of an
effective complaints mechanism. For instance, the problem of payment of bribes to
the staff attached to a court is widely acknowledged as being prevalent but very little
has been done to actually make the problem disappear. From the point of view of
the litigant all these constitute ‘hidden costs’ which cannot be recovered at all.

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James Jesse, UDSM School of Law, University of Dar es Salaam

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