NON-CUSTODIAL MEASURES: TANZANIAN CONTEXT
NON-CUSTODIAL
MEASURES: TANZANIAN CONTEXT
1.
Introduction
to Punishment and Treatment of Offenders
Traditionally,
the theory of retributive justice is based on the idea of retaliation
(punishment), which is valuable in itself, and also provides deterrence. Before
non-custodial movement, sentences of execution and/or imprisonment were thought
to be effective ways of removing criminals’ threat to the public safety. However,
non-custodial measures add to these goals, trying to reform the offender
(rehabilitation) and put right what he did (reparation). Again, in the past,
victims of crimes only played a small part in the criminal justice process. Conversely,
under the current set up, the restorative approach to justice often makes it a
part of a sentence for the offender to apologize, compensate the damage they
have caused or repair it with their own labour.
Generally,
there are two specific types of sentences options available to a judge or
magistrate i.e. custodial or non-custodial sentences as explained below.
· Custodial sentencing/measures
(imprisonment/correctional facility/putting someone behind bars):
A
custodial sentence is a judicial sentence, imposing a punishment (and hence the
resulting punishment itself) consisting of mandatory custody of the convict,
either in prison (incarceration) or in some other closed therapeutic and/or educational
institution.
·
Non-custodial sentencing/measures
The
phrase “Non-custodial measures” is
defined as follows;
Any
decision made by a competent authority to submit a person suspected of, accused
of or sentenced for an offence to certain conditions and obligations that do
not include imprisonment; such decision can be made at any stage of the
administration of criminal justice [Tokyo
Rules: Rule 2.1].
Non-custodial
measures may include: unpaid work (this can be called community payback or
community service); house arrest; curfew; suspended sentence (that means that
breaking the law during a sentence may lead to imprisonment); wearing an
electronic tag; mandatory treatments and programs (drug or alcohol treatment,
psychological help, back to work programs); fine; apology to the victim;
specific court orders and injunctions (not to drink alcohol, not to go to
certain pubs, meet certain people); regular reporting to someone (offender
manager, probation); judicial corporal punishment.
· Other
names for non-custodial measures, includes; Diversion measures, Alternative to
incarceration, Alternatives to custodial sentencing, community services,
Disposition measures and Alternative Sanctions.
Note:
Detention and correctional facilities in Tanzania includes; Police stations
(i.e. police lockups), Prisons, Retention Homes, and Approved Schools.
2.
Local
and International laws/Standards on Non-custodial measures
(a) Relevant Local Legislations;
ü The
Constitution of the United Republic of Tanzania, 1977 (Article 45 – Prerogative of Mercy/Presidential Pardon/Amnesty).
ü The
Presidential Affairs Act, Cap. 9 (RE: 2002), Section 3 (to be read in the light
of Article 45 of the URT Constitution, 1977).
ü The
Probation of Offender’s Act, Cap.247 (R.E 2002)
ü The
Community Service Act, Cap.291
ü The
Prisons Act, Cap.58 (Section 52 & 72)
ü The
Parole Boards Act, Cap.400
ü Transfer
of Prisoners Act, No. 10 of 2004, Section 12 and 13.
ü Criminal
Procedure Act, (RE: 2002) – nolle
prosequi (Section 91), discharge (Section
152), habeas corpus [section 390(1)] and
etc.
ü The
Extradition Act, No. 15 of 1965 (RE: 2002) -
habeas corpus
ü Law
of the Child Act, No. 21 of 2009, Sections 101, 116 and 119.
ü The
Immigration Act, No. 7 of 1995 (RE: 2002), Section 14 (conviction and
deportation order)
ü The
Deportation Act, Cap. 380 (RE: 2002)
ü The
Penal Code, Cap. 16 (Section 26)
ü The Resettlement of Offenders Act, No. 8 of
1969 (RE: 2002), Sections 4, 5, 6 and 8.
(b) International
Standards;
ü The
United Nations Standard Minimum Rules for Non-custodial measures (The Tokyo
Rules), 1990 [Rule 2.1, 5.1, 8.2 and 9.2]
ü United
Nations Standard Minimum Rules for the Administration of Juvenile Justice (The
Beijing Rules), 1985 [Rule 18]; and
ü The
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, 1985. (Restorative justice, Rule
8-17).
3.
Why
Non-custodial Measures?
The
shift towards alternative sentencing means that some offenders avoid
imprisonment with its many unwanted consequences. This is beneficial for the
society, as it may prevent them from getting into the so-called the revolving
door syndrome i.e. recidivism or incorrigibility. Furthermore, there are hopes
that this could alleviate prison overcrowding and reduce the cost of
punishment.
Table I:
reasons (summary)
ü To avoid overcrowding in prisons
ü To save taxpayers money in keeping
offenders, employing pore personnel, expanding facilities and sometimes
outsourcing private companies to manage prisons
ü To rehabilitate offenders
(treatment and psychological help)
ü To avoid reoffending (recidivism
and incorrigibility)
ü To reintegrate/restore offenders
back into the society
ü To avoid paralyzing the economy
(i.e. to allow offenders to take part in own economic activities, pay taxes and
taking care of their families)
4.
Types/Forms
of Non-custodial measures: Scope of Application
Basically,
non-custodial measures applied to offenders differ from country to country
based on legal provisions and powers conferred on various authorities. However,
the most common ones includes;
(a)
Non-custodial
measures at the pre-trial stage
v Discharge of offender
– with or without conditions – bail – especially, juvenile offenders
“Where
appropriate and compatible with the legal system, the police, the prosecution service or other agencies dealing with criminal cases should be empowered to
discharge the offender if they consider that it is not necessary to proceed
with the case for the protection of society, crime prevention or the promotion
of respect for the law and the rights of victims. For the purpose of deciding
upon the appropriateness of discharge or determination of proceedings, a set of
established criteria shall be developed with in each legal system. Form in or
cases the prosecutor may impose suitable non-custodial measures, as
appropriate.” (Rule 5.1).
The
use of non-custodial measures at the pre-trial stage should also be seen in the
light of the basic rule reflected in Rule
6.1, according to which “pre-trial detention shall be used as a means of
last resort in criminal proceedings, with due regard for the investigation of
the alleged offence and for the protection of society and the victim”. Rule 6.2 promotes the earliest possible
use of alternatives to pre-trial detention.
v Diversion from Prosecution/Out of
Court Settlement
Diversion
can be defined as the channeling of prima facie cases from the formal criminal
justice system on certain conditions to extra-judicial programs, at the
discretion of the prosecution.
The
number
of complaints received by the police and prosecutors would overload the
criminal justice system if they were all prosecuted in the courts. The
police,
prosecutors, and courts have an array of options available to them to
divert
offenders from prosecution. These are to be found in the penal statutes,
and
may include: Absolute or conditional discharge, Verbal sanctions, An
arbitrated settlement, Restitution to the victim, or a compensation
order, Community service order,
Victim-offender mediation, Family group conference, restorative
process/justice.
Table II:
restorative justice (meaning)
Restorative Justice: Means any process in
which the victim and the offender, and, where appropriate, any other
individuals or community members affected by a crime, participate together
actively in the resolution of matters arising from the crime, generally with
the help of a facilitator. Restorative processes may include mediation,
conciliation, conferencing and sentencing circles.
Restorative
outcome means an agreement reached as a result of a restorative process.
Restorative outcomes include responses and programs such as reparation,
restitution and community service, aimed at meeting the individual and
collective needs and responsibilities of the parties and achieving the
reintegration of the victim and the offender.
v Plea bargaining
Comes
into play once a case has been lodged, and it does not exist in statutory form.
The underlying idea is to dispose of criminal cases without resorting to
trials. Plea bargaining permits the prosecuting authority and an accused or
his/her lawyer to enter into a plea and sentence agreement. The court may not
participate in the negotiations, but is required to approve the plea and
sentence, before making it an order of the court.
v Other alternative disposition
measures includes prerogative actions such as:
Withdrawal of cases, nolle prosequi, Habeas Corpus, and etc.
(b) Non-custodial measures at the trial
and sentencing stage
As
to the sentencing stage, the Tokyo Rules
provide for a range of non-custodial measures which the judicial authorities
may use. Although in doing so, they should take into consideration; the
rehabilitative needs of the offender, the protection of society and the
interests of the victim, who should be consulted whenever appropriate (Rules 8.1 and 8.2).
According
to Rule 8.2 (a) to (m), the sentencing authorities may
dispose of cases in the following ways: verbal sanctions (such as admonition, reprimand and warning);
conditional discharge; status penalties; economic sanctions and monetary
penalties (such as fines and day-fines); confiscation/expropriation order;
restitution to the victim (compensation order); suspended or deferred sentence;
probation and judicial supervision; a community service order; referral to an
attendance centre; house arrest; any other mode of non-institutional treatment;
or, some combination of these measures.
(c)
Non-custodial
measures at the post-sentencing stage
The
use of non-custodial measures is also encouraged at the post-sentencing stage,
and in this respect Rule 9.1 of the Tokyo Rules provides that the competent
authority shall have at its disposal a wide range of post-sentencing
alternatives in order to avoid institutionalization and to assist offenders in
their early reintegration into society. This rule is based on the principle that
reducing the length of imprisonment can reduce the risk of offenders becoming
institutionalized and thus unable to cope with society once they have been
released. Consequently, it can be of advantage to grant offenders early
release, while subjecting them, if necessary, to supervision. Rule 9.4 also promotes the idea of
releasing offenders from an institution to a non-custodial programme at the
earliest possible stage.
Rule 9.2
enumerates the following post-sentencing dispositions: i.e. furlough and half-way houses; work or education release;
various forms of parole; remission; pardon/parole/prerogative of mercy/amnesty –
President – Tanzania.
Table III:
sanctions (classification)
Sanctions
requiring supervision are: **Community Service, which involves
performance of a certain number of hours of unpaid work for the benefit of the
community, usually during the offender’s leisure time. **House
Arrest (home detention), where the offender is required to stay at home for a certain
period; the confinement may be limited to night time (curfew) or to night- and
leisure time. **Electronic Monitoring, where a tag is attached to the person
under supervision who cannot leave a designated area. **Open, Contract or
Ambulant Treatment for drug or alcohol dependent offenders.
Sanctions
that do not require supervision include: **Reparation
(Restitution), where the offender directly compensates his/her victim by means
of either monetary payment or unpaid services rendered. **Confiscation
of property derived from, or used in the commission of an offence. **Suspension
of driving- or other license. **Fines
(penalties).
5.
Non-custodial
measures vis-à-vis Custodial measures
Table IV: Guiding questions
Does
the system effectively contribute to a reduction of the prison population? Does
it enable the offence-related needs of the offender to be met? Is it
cost-effective? Does it contribute to the reduction of crime in the community?
Are there legal safeguards in place protecting the human rights of the
offender?
Though
not frequently used as penal sanction, custodial sentence (incarceration)
remains a common punishment for most of crimes committed. While imprisonment is
necessary in many cases involving violent offenders, it does not constitute a
panacea with regard either to crime prevention or to the social reintegration
of offenders. Again, in many countries the prison system faces major challenges
such as overcrowding and outdated facilities, as a result prisoners find
themselves in deplorable conditions that can have adverse effects on their
physical and mental health, thus impede their educational and vocational
training, thereby affecting their chances of future adjustment to an ordinary
life in the community. The impact of long-term imprisonment on a person’s
family and work life is also considerable.
According
to the Commentary to the Tokyo Rules,
non-custodial measures are of considerable potential value for offenders, as
well as for the community, and can be an appropriate sanction for a whole range
of offences and many types of offenders, and in particular for those who are
not likely to repeat offences, those convicted of minor crimes and those
needing medical, psychiatric or social help. In these cases, imprisonment
cannot be considered an appropriate sanction, since it severs community ties
and hinders reintegration into society and thereby also reduces offenders’
sense of responsibility and their ability to make their own decisions. On the other
hand, non-custodial measures have the unique characteristic of making it
possible to exercise control over an offender’s behavior while allowing it to
evolve under natural circumstances.
6.
Non-custodial
measures in Tanzania
(i)
Administration
In Mainland Tanzania, there are
different actors in the implementation of non-custodial measures. However, the
lead agency or institution is the Probation
and Community Services Department (under the Ministry of Home Affairs).
Generally, the Department was established
in July, 2008 following the changes in the Organization Structure of the
Ministry of Home Affairs. The Department is responsible for managing the
implementation of Non-Custodial Sentences across Mainland Tanzania. For easy
functioning, the Department (at the Headquarter) is divided into two main
sections, namely; the Probation Services
Section and Aftercare Services
Section. Below the Headquarter there are Regional and District Probation Offices responsible to the Director and Regional offices
respectively. The Department is headed by the
Director who is assisted by two
Assistant Directors.
The basic functions of the Department
and the two Sections are: to monitor and supervise probationers; to monitor and
supervise the implementation of community services program; to monitor and
supervise parolees as part of aftercare services; to monitor and supervise
offenders under the extra mural penal employment scheme; and to build capacity
of Local Government Authorities in the management and implementation of
probation and community services.
(ii) Key
Stakeholders to the Implementation of Non-Custodial Court Orders in Tanzania
(a)
Internal
Stakeholders
- The Judiciary
The
obligation of the Judiciary in the implementation of Non-Custodial Sentences
does not end up with imposing punishment, but also to supervise Community
service Committees. The fact that a Judge of the High Court, Resident
Magistrate in-charge and District Magistrate in-charge in their respective
jurisdictions are chairing the National, Regional and District Committees
respectively is evidence that the court has a special role in the
implementation of Non-custodial sentences in our Country.
- The Prisons
Prisons
Department has different obligations in implementing Non-Custodial Sentences.
Section 52 of the Prisons Act, No.34 of 1967 (RE: 2002), gives legal power to
the Officer In-charge of the prison to recommend inmates who are serving
sentences not exceeding 3 years to serve under community service program. The
Department also provides members to different Community Service Committees at
National, Regional and District levels and receives back offenders who have
violated conditions of the Court Orders.
- The Police
Police
Force has significant role in the implementation of Non-Custodial Sentences in
the Country; it provides members to the Community Service Committees at
National, Regional and District levels; arrests offenders who have violated the
conditions of the Community services Orders and provides relevant information
of offenders to Probation Officers when conducting Social Investigations.
·
Local
Government Authority
The
implementations of Community Service Orders depend largely on the availability
of placement institutions that provide works to offenders. The LGAs had played
an important role for providing placements to offenders to execute their
punishments in its respective institutions such as Dispensaries, Schools, Ward
and Village offices, Hospitals, City, Municipal and District Councils etc. The
LGAs also cooperated with Probation Officers in the supervision and monitoring
of offenders in their respective residential areas and provides relevant
information to Probation Officers when conducting Social Investigations.
(b)
External
Stakeholders
- The Kenya Probation Services
The
Tanzania Probation and Community Services Department is working closely with
the Kenya Probation Services Department. Kenya has advanced in the field of
Community corrections as current statistics show that 50% of the convicted
population is serving under non-custodial programmes. Therefore, there are many
issues which can be learnt and shared between the two countries.
- The Penal Reform International
The
Penal Reform International (PRI) is an the International Non-Government
Organization based in the UK that works in the field of Penal Reform. The PRI
is occasionally working with our Department by assisting in professional
capacity building and training of to enhance the use of non-custodial
sentencing.
(iii)
Statistics
and Implementation of Non-custodial Measures in Tanzania
In Mainland Tanzania, Non-Custodial
Programs (Community and Probation Services) are currently implemented in 17
Regions namely; Arusha, Coast, Dar es Salaam, Dodoma, Geita, Iringa, Kagera,
Kilimanjaro, Mara, Morogoro, Mbeya, Mtwara, Mwanza, Shinyanga, Singida, Ruvuma
and Tanga. Nevertheless these regions are not wholly covered as only 89 over
200 districts are benefiting from the services.
Since in July, 2005 up to April, 2013
the Department has managed to supervise a total number of 5,157 offenders under
Non-Custodial Programs i.e. (Community and Probation Services). Among the
supervised offenders, a total number of 3,930 offenders have completed their
sentences and were successfully re-integrated back into their respective
communities while a total number of 1,227 offenders are still serving their
sentences.
(iv)
Common
Forms of Non-custodial Measures in Tanzania
(a)
Probation
This
is a non-custodial court sanction by which a (either juvenile or adult)
defendant, who has been adjudicated or found guilty of an offence, is diverted
from commitment to a (juvenile or adult) correctional institution and released,
subject to certain conditions imposed by the court and under the supervision of
a probation officer. Probation in criminal law is a period of supervision over
an offender, ordered by a court instead of serving time in prison.
In
some jurisdictions, the term probation only applies to community sentences
(alternatives to incarceration), such as suspended sentences. In others,
probation also includes supervision of those conditionally released from prison
on parole.
·
The
Probation Orders
Under
the Probation of Offender’s Act,
Offenders may be sentenced to Probation in which case the Court may impose a
Probation Order on the accused. The sentenced person is not supposed to serve
that term in Prison but is ordered to be of good behavior for the whole period
he is put under Probation Order.
·
Application
Before
the person is ordered to serve under Probation, the Court considers the
character of the accused, mental condition of the offender, the nature of the
offence, antecedents, age, home surroundings, health or any extenuating
circumstances in which the offence was committed. With regards to the stated
factors, the Court may then do the following; Convict the offender and make a
Probation Order; or without proceeding to conviction, make a Probation Order.
An
offender on probation is ordered to follow certain conditions set forth by the
court, often under the supervision of a probation officer. During this testing
period, an offender faces the threat of being sent back to prison, if found
breaking the rules.
The
Probation Order has effect for a period of not less than one year and not more
than three years from the date of the order.
·
Advantages
of Probation
As
a punishment, it offers the opportunity of rehabilitation and reintegration
into the community without the social and family disruption caused by
imprisonment. This is particularly true of juvenile supervision. Probation is
an effective and cost-effective sanction which allows savings by the
correctional administration. In all countries, supervising an offender in the
community costs far less than imprisonment. In some civil law systems Probation
has been included in the criminal legislation as a truly alternative sanction, i.e. a defendant is sentenced to a
probation term. In other civil law countries, a suspended prison sentence with
condition, including supervision, constitutes the legal framework for
probation. In many civil law countries, a prison sentence of between 18 months
and 2 years is automatically suspended with no conditions in the case of a
first conviction. In some countries, the charge may be suspended to divert a
first-time offender from the whole court process.
Table IV:
definition of terms
A suspended sentence is a legal term
for a judge's delaying of a defendant's serving of a sentence after they have
been found guilty, in order to allow the defendant to perform a period of
probation. If the defendant does not break the law during that period, and
fulfills the particular conditions of the probation, the judge usually throws
out the sentence.
Split sentence means that, while the defendant
is ordered to spend mandatory time in jail, he or she isn’t incarcerated for
the entire sentence. Rather, the court ordinarily suspends part of the sentence
and places the defendant on probation for the remaining time. This has the
effect of the defendant serving a relatively short period of time in jail,
often (but not always) between 30 and 90 days with the rest of his or her sentence
spent on probation.
(b)
Community
Service
By
definition, this is an order of the Court whereby the offender is offered the
opportunity of compensating society for the wrong she or he has done by
performing work for the benefit of the community, instead of going to prison
·
The
Community Services Court Orders
Community
Service Order is an order of the court committing the offender to perform
unpaid public work in public institutions for the benefit of the community for
a period specified in the order instead of going to prison. The order applies
to persons who have been convicted for offences punishable by imprisonment for
a term not exceeding three years with or without the option of fine or for a
term exceeding three years but for which the court determines a term of
imprisonment for three years or less with or without the option of fine (Section 3 of the Community Service Act, No.6 of 2002 Cap.
291).
The
public institutions that provide placements for offenders include Central
Government and Local Government institutions, Community Based Organizations and
Non-Governmental Organizations performing work of public nature.
·
Community
Service Committees
In
Mainland Tanzania, there are Community Service Committees at National, Regional
and District levels. Members of these Committees are drawn from different
institutions within the Criminal Justice system such as the Police, Prisons,
Public Prosecution, Tanganyika Law Society and the Judiciary. The general
function of these Committees is to advice the Government in their respective
areas proper implementation of Community Service Orders in the country.
·
Works
of Public Nature Performed by Community Service Offenders
Such
works of public nature includes, but not limited to: Construction or
maintenance of public roads or roads of access; Afforestation works;
Environmental conservation and enhancement works; Projects for water
conservation, management or distribution and supply; Maintenance work in public
schools, hospitals and other public social service amenities; Work of any
nature of a foster home or orphanage; General cleaning and related activities;
Rendering specialist or professional services in the community and for the
benefit of the community; and Other manual works as may be approved from time
to time.
(c)
Parole
In
1994 Tanzania Mainland introduced the parole system as an additional non-custodial
sentence available under the law. The relevant Act became operative in 1998
through Government Notice No. 783 of 1997. A year later the National Parole Board
was inaugurated. The system was deemed necessary to deal with the plight of
long-term prisoners who deserved an urgent attention for the sake of prison
security, correctional administration and community safety.
·
Definition
The
term Parole is interpreted differently in different countries. Broadly, it is a
period of time following release from prison, when the offender is given help
to reintegrate into society. During this time the offender may be supervised by
a probation or parole officer. In a nutshell, parole is the provisional release
of a prisoner who agrees to certain conditions prior to the completion of the
maximum sentence period.
·
Application
There
are often conditions attached to Parole imposed by a governing body, usually a
Parole Board or Parole Judge. Breaches of any of these conditions can lead to
immediate recall to prison. If an offender re-offends while on Parole he may be
required to serve the remainder of his existing sentence in prison in addition
to any other sanction imposed by the court.
In civil law countries an early release from prison can be granted in
accordance with certain conditions or with no conditions, usually by decision
of a correctional magistrate. (Read:
the Prisons Act, Cap.58 (Section 52 &
72) and the Parole Boards Act, Cap.400).
NB. The
Parole and Extra Mural Penal Labor
Programs in Mainland Tanzania are currently being undertaken by the Prisons
Department until after necessary amendments are done to the Prisons and Parole
Boards Acts to mandate Probation Officers to supervise Parolees and Extra Mural
Prisoners.
Note: usually,
non-custodial measures are subjected to conditions and restrictions, the
violation of which may in serious cases lead to imprisonment.
(v)
Approaches
in handling and treatment of non-custodial offenders
Generally,
there are four main approaches employed by the relevant authorities in handling
as well as management of offenders in Mainland Tanzania. These are:-
- Rehabilitation
Rehabilitation
is the key component in the management of offender’s behavioral change. Thus,
offenders are assessed by Probation Officers to identify the actual and special
needs for rehabilitation. In daily practice, offenders are given
socio-psychological counseling for behavior modification, taught social and
life skills and entrepreneurship as means of empowering them to live life-free
of crimes. Offenders with special needs (Drug addicts, HIV/AIDS, T.B) are
referred to appropriate institutions for treatment.
- Restorative Justice
Probation Officers also practice restorative
justice by bringing together conflicting parties for reconciliation (the
Offender, Victim of crime and the Community). Reconciliation helps to restore
trust and strengthen relationships among the parties which in turn facilitate
smooth implementation of Non-custodial Court Orders.
·
Supervision
Offenders
are closely supervised both at their respective work placements and at their
places of residence. The supervision involves regular visits to enforce the
implementation of the Court Orders. In addition, the supervision process
involves several stakeholders such as offender’s sureties and relatives,
victims of the crime, neighbors and respective Local Government Authorities to
facilitate correction and successful re-integration.
7.
International
Dimensions (Minimum standards) on Non-custodial measures
According
to Rule 1.1, the two fundamental
purposes of the Tokyo Rules are to provide:
“a set of basic principles to promote the use
of non-custodial measures”; and “minimum
safeguards for persons subject to alternatives to imprisonment”.
(a) Scope of non-custodial measures
(Safeguards/restrictions) – principles
·
Non-discrimination:
Are applicable to “all persons subject to prosecution, trial or the execution
of a sentence” (Rule 2.1). Rule 2.2, the Tokyo Rules “shall be applied without
any discrimination on the grounds of race, colour, sex, age, language,
religion, political or other opinion, national or social origin, property,
birth or other status”.
·
Flexibility:
Rule 2.3 promotes considerable flexibility in the development and use of
non-custodial measures based on the following four criteria: the nature and
gravity of the offence; the personality and background of the offender; the
protection of society (the prevention of crime); and the avoidance of
unnecessary use of imprisonment.
·
Legality:
Rule 3.1 thus provides that “the introduction, definition and application of
non-custodial measures shall be prescribed by law”. The requirement that
non-custodial measures must be defined and applied only as “prescribed by law.
·
The
requirement of consent: it is essential that the suspect
or accused person consents to the non-custodial measure because, where it is
imposed instead of formal proceedings, consent to it can lead to the
renunciation of the legal safeguards that would exist if the case were
proceeded with.
·
Right
to review: Rule 3.5 stipulates that “decisions on the
imposition of non-custodial measures shall be subject to review by a judicial
or other competent independent authority, upon application by the offender”.
This right of appeal is an additional safeguard against arbitrary decisions.
(b)
Minimal
intervention Principle
ü Rule 3.8
prohibits non-custodial measures involving “medical or psychological
experimentation on, or undue risk of physical or mental injury to, the
offender”.
ü In
the implementation of non-custodial measures, the offender’s rights shall not
be restricted further than was authorized by the competent authority that
rendered the original decision” (Rule
3.10). This is a rule based on the principle of legality: any interference
with a person’s rights must be based on law, and no further restrictions can be
imposed without a decision taken by a duly authorized authority acting in
accordance with the law.
ü In
the application of non-custodial measures, the offender’s right to privacy shall
be respected, as shall be the right to privacy of the offender’s family” (Rule 3.11). In this respect the
Commentary advises against the use of methods of surveillance that treat
offenders solely as objects of control; further, surveillance techniques should
not be used without the offenders’ knowledge, and persons other than properly
accredited volunteers should not be employed for the surveillance of offenders.
ü The
right to dignity and the right to respect for the offender’s privacy are also
protected by Rule 3.12, according to
which “the offender’s personal records shall be kept strictly confidential and
closed to third parties. Access to such records shall be limited to persons directly
concerned with the disposition of the offender’s case or to other duly
authorized persons.”
(c)
The
criteria for resorting to non-custodial measures and the need for discretion
A
second important legal safeguard in the application of non-custodial measures
is that, as stipulated in Rule 3.2,
the selection of a non-custodial measure shall be based on an assessment of
established criteria in respect of: the nature and gravity of the offence; the
personality and background of the offender; the purposes of sentencing; and the
rights of victims.
(d)
Implementation
of Non-custodial Measures
In
implementing non-custodial measures, the Tokyo rules lays down the following
standards;
·
The
supervision of non-custodial measures
As
emphasized in Rule 10.1, “the
purpose of supervision is to reduce reoffending and to assist the offender’s
integration into society in a way which minimizes the likelihood of a return to
crime.”
·
The
duration of non-custodial measures – (not indeterminacy sentence/measure)
As
to the duration of the non-custodial measure, it “shall not exceed the period
established by the competent authority in accordance with the law” (Rule 11.1), but “provision may be made
for early termination of the measure if the offender has responded favorably to
it” (Rule 11.2).
·
The
conditions attached to non-custodial measures
According
to Rule 12.1, whenever the competent
authority has to determine the conditions to be observed by the offender, “it
should take into account both the needs of society and the needs and rights of
the offender and the victim”.
·
The
treatment process
Rule 13.1
of the Tokyo Rules provides the following examples of various schemes which,
“in appropriate cases ... should be developed to meet the needs of offenders
more effectively”: case-work; group therapy; residential programs; and the
specialized treatment of various categories of offenders.
·
Discipline
and breach of conditions
Even
though the imposition of some non-custodial measures is dependent on the
consent of the offender, most such measures are still sanctions that imply some
restriction of liberty, and offenders may therefore fail to observe the
conditions imposed on them. Such “a breach of the conditions to be observed by
the offender may result in a modification or revocation of the non-custodial
measure” (Rule 14.1). However,
according to the Commentary, not all breaches need lead to modification or
revocation, and the supervisor or competent authority can deal with minor
transgressions by less formal means.
8.
Criticism
of Non-custodial system in Tanzania
To
understand why non-custodial sentences are not popular among law enforcers, two
things need to be considered: one has to do with a tendency among judicial
officers to move repeat offenders up the sanction hierarchy; the other is a big
gap between the perceived severities of custodial versus non-custodial
penalties. In brief, the use of non-custodial measures in Tanzania face the
following challenges;
·
The penal laws do not have a
comprehensive list of diversion measures towards offenders. The most common
forms of non-custodial measures are probation, community service and parole, while
non-custodial pre-trial measures are totally ignored.
·
The minimum sentences law applies minimum
terms of imprisonment carte branche, thus preclude considerations being
given to probation, conditional discharge, suspended sentences and entering
into Recognizance.
·
The Parole
Boards Act exclude prisoners who are serving short term imprisonment, hence
limit the scope of its beneficiary.
·
Some of the existing non-custodial
measures such as corporal punishment are said to be inhuman, degrading and
barbaric, thus not in line with Article
13(b)(e) of the Constitution.
·
Court-Prison mentality: law enforcers
(polices and prison officers), court officials, prosecutors and lawyers are not
well trained in modern penal law movement, especially restorative justice. Therefore,
there is a need to develop training curricula for law enforcers, judges,
magistrates, probation service staff and others involved in the administration
of alternative sanctions and measures.
·
The large section of the public is not
aware about the use of non-custodial measures, thus this limits their
participation in the implementation of alternative sanctions/measures. Again, members
of the public are still with the perception that non-custodial sentence does
not do justice to victims of the criminal acts, they urge that the system
releases convicts who ought to pay dearly for their wrongful acts.
·
Although the Law of the Child Act, 2009 provides for non-custodial sentences for
children, in practice they are not available owing to a significant shortage of
probation officers and social welfare officers.
·
Corruption among members of the parole
boards, law enforcers and within the judiciary has eroded the essence of using
non-custodial measures as in most cases these measures are available to
offenders who can pay to influence the decision or have connection with
government officials.
9.
Conclusion
In
a punitive context dominated by risk aversion, we often overlook aims of non-custodial
measures such as rehabilitation and reintegration of offenders. This go beyond
utilitarian aims to reduce prison overpopulation and recidivism or
incorrigibility. Again, retribution has come to override the legal principles
of proportionality and custody as a last resort. There is now ample evidence
demonstrating that they are not being used to divert individuals from prison.
To the contrary, they are being used to manage risk and against individuals who
in the past would not have been brought into the penal web. That is, contrary
to popular belief they are being used to sanction individuals who should be
punished less rather than more.
References:
Commentary
on the United Nations Standard Minimum Rules for Non-Custodial Measures (the
Tokyo Rules), Geneva.
Frank, S.
(2010) The Applicability of Parole System
in Tanzania: Challenges and Way Forward. Advanced paper submitted in
partial fulfillment of the requirement for Masters of laws (LL.M.) Degree of
the University of Dar es Salaam.
Hogg, A.
(2012) The Privatization of Non-custodial
Measures: An uneasy Balance between Legitimacy and immediacy. Oñati
Socio-legal Series, Vol. 2(4):144-174.
Marcus, D.,
Ed. (2004) Alternatives to Custodial
Sentencing: A Manual for the Implementation of Community Service Orders in the
O.E.C.S. CDARI, Castries, Saint Lucia.
OHCHR & IBA
(2002) Human Rights in the Administration
of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers.
Geneva.
Robins, S.
(2009) Improving Africa’s Prisons Prison
policy in Sierra Leone, Tanzania and Zambia. ISS Policy Brief Nr 09,
September 2009.
Sarkin, J.
(ed) (2008) Human Rights in African
Prisons. HSRC Press, Cape Town.
UNDOC
(2006) Custodial and Non-Custodial
Measures: Alternatives to Incarceration (Criminal Justice Assessment
Toolkit), New York.
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