MZUMBE UNIVERSITY

DEPARTMENT OF ADMINISTRATIVE STUDIES

RESEARCH PROPOSAL

ON

AN ASSESMENT OF THE LAW AND PRACTICES RELATING TO THE

RIGHTS OF PRE-TRIAL DETAINEES UNDER DOMESTIC LAW

CASE STUDY AT DAR ES SALAAM, ILALA DISRICT

NAME OF STUDENT: MAULIDI ZUBERI SINGINO

REG. NO; 31305479/T.15

COURSE; LLB III

SUPERVISOR: MR. MUYA DANIEL

 TABLE OF CONTENT

Contents page no
1.0 INTRODUCTION.................................................................................................................................4
2.0 BACKGROUND OF THE PROBLEM.................................................................................................5
3.0 STATEMENT OF THE PROBLEM.....................................................................................................6
4.0 RESEARCH OBJECTIVES..................................................................................................................7
4.0.1 Specific Objective...........................................................................................................................8
4.0.2 General Objective...........................................................................................................................8
5.0 SCOPE OF THE STUDY......................................................................................................................8
6.0 SIGNIFICANCE OF THE RESEARCH...............................................................................................8
7.0RESEARCH HYPOTHESES.................................................................................................................9
8.0 RESEARCH DESIGN AND METHODOLOGY..................................................................................9
8.0.1 RESEARCH DESIGN....................................................................................................................9
8.0.2 AREA OF STUDY.......................................................................................................................10
8.0.3 POPULATION SAMPLE.............................................................................................................10
8.0.4 SAMPLING TECHNIQUE..........................................................................................................10
8.0.5 DATA COLLECTION.................................................................................................................10
8.0.5.1 Primary Data..............................................................................................................................11
8.0.5.2 Secondary Data..........................................................................................................................11
8.0.6 DATA ANALYSIS TECHNIQUE...............................................................................................11
9.0 LITERATURE REVIEW....................................................................................................................12
 REFERENCE

STATUTES

Constitution of the united Republic of Tanzania of 1977

Criminal Procedure Act (CAP 20 R.E 2002)

Basic Rights and Duties Enforcement Act, No.33 of 1994

INTERNATIONAL INSTRUMENTS.
African Charter on Human and Peoples Rights (ACHPR) of 1982
The International Covenant on Civil and Political Rights (ICCPR) of 1966
CASE

Rev. Christopher Mtikila v Attorney General [1995] TLR 31

BOOKS

Dr. ASHUTOSH, RIGHTS OF ACCUSED, Universal law publishing Co. PVT. LTD, New
Delhi, (2009)

CHANDRA MOHAN UPADHAYAY, Rights in pre-trial detention, A.P.H Publishing

Corporation, New Delhi (1999).

Human rights manuals for prosecutors, EGBERT MAYER, BARRY HANCOCK &
NICHOLAS COWDERY, wolf Legal publishers, (2003)

MCHOME, S.E, Brief Survey of the Law Relating to the treatment of suspects and accused,
University of Dar es salaam
PETER CHRIS MAINA. Legal Aid and Access to justice in Zanzibar: Examining Criteria for
provision of legal assistance, in perspective on Legal Aid and Access to justice in Zanzibar 2003

OTHER SOURCES
Pre-trial Rights in Africa: A guide to international Human Rights standards (2016)
Legal and Human Rights Centre (Tanzania), Tanzania Human Rights report of 2015
Legal and Human Rights Centre (Tanzania), Tanzania Human Rights report of 2010
 ABBREVIATIONS

R.E ………………………... REVISED EDITION

ACHPR…………………… AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS

ICCPR ………. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

RIGHTS
1.0 GENERAL INTRODUCTION

Human rights are fundamental rights which human have by the fact of being human, which are
neither created nor can be abrogated by any government. According to Lugakingira J as he then
was in the case of Rev. Christopher Mtikila v Attorney General1, he stated that
“Fundamental rights are not gift from the state but they are inherent in a person by virtue of
birth, and they are prior to the state and the law; the enactment of those rights in the
Constitution is mere evidence of their recognition and the intention that they should be
enforceable in a court of law.

This is a study of the assessment on what the laws provide about protection of human rights of
pre-trial detainees under domestic law and how it is implemented in practices.
The law in Tanzania has made a significant progress in the protection of the right to personal
liberty and rights of persons deprived of their liberty through Constitutional reform since 1984
by guarantee certain basic human rights by various Acts of government as well as international
instruments. Foremost among these covenants is the constitution of the United Republic of
Tanzania, to which a Bill of Rights was added in 1984.

The Constitution contains the Bill of Rights which guarantees fundamental rights and freedoms
of all persons including the pre-trial detainees. However problems of abuse of powers by law
enforcement officials. For instance, arbitrary deprivation of liberty has become a common
practice in Tanzania suspects of criminal offences are denied their right to bail, to legal
assistance, to communicate with relatives, in some cases pre-trial detainees are subjected to
torture and other ill treatments. Thus, there is a gap between what the law provides as rights and
the practices of law enforcement officials.

Therefore this study will improve awareness to the citizens on their rights when they are detained
as well of the police about the requirement of the law to protect human rights. After the

1
[1995] TLR 31
identification of the gaps between the law and practices conclusion(s) and recommendation(s)
will be given for improvement of the law and practices

2.0 BACKGROUND OF THE PROBLEM

The incorporation of the bill of rights in our constitution has long history, can be traced from the
first constitution of 1964 of which had no bill of rights which guarantees basic rights up to
interim constitution of 1984, in absence of the bill of rights in four constitution amendment lead
to outcry of lawyers, human activists and other people lead to undergoes the fifth amendment to
include therein, following fifth constitutional amendment of 1984 entrenched a Bill of Rights in
the Constitution but still bill of rights became enforceable in the court of law in 1988 and later on
the Parliament of the united republic enacted the Basic Rights and Duties Enforcement Act 2
which provides procedure to be complied with in the enforcement of the Basic Rights and Duties
provided under constitution the United Republic of Tanzania. These rights provided in different
international covenant or treaties. International covenants or treaties ratified by Tanzania are
binding and has a duty to uphold and implement the provisions of such treaties or covenants that
it is a party to; Tanzania is a party to different treaties such as African Charter on Human and
Peoples Rights (ACHPR)3 and the International Covenant on Civil and Political Rights (ICCPR)
of 1966, which was acceded on 11th June, 1976, under Article 9(1)4 This Covenant protects
among other things, protects persons against torture or cruel and inhuman or degrading
treatment, Also there are several other soft legal instruments providing for standards and
principles governing human rights protection.

But even though currently different laws of the country including Constitution of the united
republic of Tanzania and international laws guarantee basic rights including rights of the person
detained awaiting trial, Denial of human rights to suspects of criminal offences is very alarming
worldwide including Tanzania; there are several instances of Police Force violate the rights of
the pre-trial detainees domesticated in our laws and different international laws but in practice
the situation more worth in protection of the right by law enforcers.
Tanzania being a democratic country as in the other common law countries, its constitution
guarantees fundamental rights for all citizens, including the rights of persons who are suspects or
2
Act No.33 of 1994
3
Adopted 27,june 1982 and entered into force 21. October 1986
4
Of International Covenant on Civil and Political Rights of 1966
accused in criminal proceedings. The Constitution provides for rights relating to human dignity,
the right to life, the presumption of innocence and the right to be detained in conditions that are
consistent with human dignity. These rights are inherent to every suspect or accused person.
These rights are enshrined in the Constitution of the Republic of Tanzania of 1977. Although the
Constitution is fair and just, its provisions are not always practiced accordingly.

3.0 STATEMENT OF THE PROBLEM

The domestic law and international human rights law requires that an individual should be
arrested or detained according to the procedures established by law, At domestic level, both
Constitutions recognize the requirement for compliance of legal procedures for any deprivation
of liberty of the individual. Under sections 21 and 22 5 lays down grounds regarding the
circumstances, manner and extent to which police officers may affect arrest or detention of
persons suspected of criminal offence but it is clear that the rights of the detainees are violated
and the prospects of realization of their rights will be demonstrated after research findings. Even
though qualities of some of the grounds justifying deprivation of liberty in those sections do not
meet the requirements of the international and domestic human rights standards such as under
section 22(b) of the Criminal procedure Act, grants any police officer too wide power to arrest
any person without a warrant in large number of circumstances that include arrest of any person
when suspect him commit an offence or upon receiving information. But the law provides no
guidelines on how to define what constitutes “reasonable suspicion” or “credible information”.
This means the law leaves substantial discretion powers to any police officer to decide what is
reasonable and credible as a result may lead to deprivation of personal liberty for example, The
law requires existence of ‘reasonable suspicion’ or ‘credible information’ before any deprivation
of liberty is effected. Upon receipt of any information of criminal offence the investigating
officer has duty to carry out investigative process in order to verify the information received
before the suspect is arrested. If the outcomes of the investigation link the suspect with the
alleged offence then the suspect will be arrested and detained if necessary. In practice, the police
first arrest the suspect and the investigation comes afterwards when the suspect is already in
police custody and Sometimes the police may state that they were hunting for criminals and after
5
Of The Criminal Procedure Act
investigation those found guilty will be sent to court. In fact, police have no power to determine
whether the suspect is guilty or not. The duty of the police is to collect relevant evidence that
will enable the court to determine whether the suspect has committed the alleged offence or not.

Although, the law has made a significant progress in the protection of the right to personal
liberty and rights of persons deprived of their liberty through different laws try to guarantees
fundamental rights and freedoms of all persons including the pre-trial detainees. However, there
has been continuing problems of abuse of powers by law enforcement officials. For instance,
arbitrary deprivation of liberty has become a common practice in our country; suspects of
criminal offences are denied their right to bail, to legal assistance, to communicate with relatives,
in some cases pre-trial detainees are subjected to torture and other ill treatments. Thus, there is a
gap between what the law provides as rights and the practices of law enforcement officials.

Therefore, this study will examine some of the basic safeguards protecting the rights of pre-trial
detainees as implemented in practice in order to find out whether practices of law enforcers
conform to the requirements of the law and the right to challenge the legality of deprivation of
liberty during pre-trial and the study will give out the recommendation on how to protect the
rights of pre-trial detainees.

4.0 RESEARCH OBJECTIVES

The main objectives of this study are of two types which are general objective and specific
objective.

4.1.1 General Objective

The object of this study generally is to promote and protect human rights especially of all
persons in detention pending trial, due to that the study will provide a concrete picture on
whether practices of law enforcers conform to the requirements of the law and causes of
violation of rights of pre-trial detainees violation that need to be addressed in a particular
country in order to eliminate violation of rights of pre-trial detainees in our country.
4.1.2 Specific Objective
The objectives of this study set out to accomplish the following objectives:

1. The study will explore some of the rights of the pre-trial detainees guaranteed by the law
2. The study also will address on whether in practices law enforcers like police conform to
the requirement of the law.

5.0 SCOPE OF THE STUDY

This study is only concerned with the powers of law enforcers visa vis the rights of persons
deprived of their liberty on suspicion that such person has committed a crime. It will not consider
rights of persons convicted of any criminal offence. Also the study will focus on assessment of
the law and practices relating to the rights of pre-trial detainees under domestic law and in the
laws governing including domestic law and international laws in relation to situation of Tanzania
specifically Dar es salaam as place of case study to represent other region within Ilala District.

6.0 SIGNIFICANCE OF THE RESEARCH

This study will help to ensure respect for human dignity, the right to liberty and the right to a fair
trial as the rights of the pre-trial detainees under domestic laws includes the right to personal
liberty, Prohibition of arbitrary arrest or detention, Presumption of innocence, Notification of
reasons for arrest, Right to be brought promptly before a judge, Access to legal counsel, Freedom
from torture, the right to challenge legality of deprivation of liberty.
Also the research will help to prevent and protect against violations of the rights of people
suspected or accused of a criminal offence. These includes the rights to be free from, torture and
other cruel, inhuman or degrading treatment or punishment, arbitrary detention and finally to
determine what measures to be taken to protect the rights of pre-trial detainees and to find ways
on how these people will get their rights.
7.0 RESEARCH HYPOTHESES
The study will be guided by a number of assumptions that the researcher thought therefore the
research will be conducted on the basis of the following hypothesis:-

 Whether most of the people they are not aware on their rights when they detained
 In that regard, possibly increase of the violation of the rights of pre-trial detainees caused
by ineffective mechanism of accountability of the law enforcers who violate such rights.

8.0 RESEARCH DESIGN AND METHODOLOGY

In conducting the study, the researcher will employ different sampling design and method of
collecting data, whereby in sampling design it will include area of study, population will be
needed and how the data will be collected so as to complete the research.

8.0.1 RESEARCH DESIGN

Under this study the research will employ a case study design because it is an appropriate due to
its flexibility in terms of data collection and analysis, the approach is less expensive with regard
to financial resources and time compared to other design like survey design, the case study
design is a detailed, intensive knowledge about a single case or a small number of related cases
as the study depend or focuses on single organization. The case study design will be useful in the
study because it cut cross the limitation associated with financial and time in carrying out the
study hence facilitate qualitative analysis effective due to focus on small number of cases hence
enable to get a deeper understanding of the study.

8.0.2 AREA OF STUDY

The aim of the study could be better if it could have been conducted Country wide due to the fact
that the continuing problems of violation of rights of pre-trial detainees due to abuse of powers
by law enforcement officials For instance, arbitrary deprivation of liberty has become a common
practice to the entire Country, suspects of criminal offences are denied their right to bail, to legal
assistance, to communicate with relatives, in some cases pre-trial detainees are subjected to
torture and other ill treatments. But it is impossible for the researcher to conduct the research all
over the Country due to limited time and finance, as the research has to be done within two
months. Hence the research will be taken in Dar es Salaam within Ilala Municipality, due to the
accessibility to the sources of information relevant to the study, because the location of this area
will be easy to reach throughout, therefore it will be comfortable to carry out this study therefore
could be easily avoiding some costs of traveling and other financial needs due to financial
problem.

8.0.3 POPULATION SAMPLE

There persons should be consulted as sample on which the information will be available through
them, either by interviewing them, or ask the question in form of questionnaire, but the people
will be needed possibly not many due to the reason that time limited in accessing those
respondents, therefore only few person will be chosen as sample such as suspect for crime
detained, police officers and other relevant respondents.

8.0.4 SAMPLING TECHNIQUE

On account of the nature of this research, the stratified sampling design will be used. The
samples were arrived at purposive sampling which took into consideration ideals which
emphasized that it is important to choose respondents who would give the relevant information.
Thus the respondents in this research will be selected on the basis of the likelihood of giving the
relevant information with regard to the study.

8.0.5 DATA COLLECTION

In this research data will be collected both Primary and Secondary data.

8.0.5.1 Primary Data

This method will include key information interview and observation. The key information
interview will be used to respondents including those affected person with violation while
detained at police station and police officers, this help the researcher to get direct and easy
accessed information. In this method the researcher will, where necessary, use signs to get
information even from those who are dumb or deaf. The interview is expected to be unstructured
to allow convenience of the researcher in accessing data.
Also the researcher will use the observation method, this will afford the researcher an
opportunity not only of having first-hand information but also to make systematic observation of
the situation on the ground. Whenever possible they documented such observation which could
not be captured in the questionnaire that provides a very potentially useful source of information
for this report, so that he may come up with the correct observation of the law and the real
situation. Also focus group discussion will help the researcher to interact with the main
stakeholders and help to grasp the real feelings, beliefs, and experiences of the community
toward those affected person in the society.

8.0.5.2 Secondary Data

This method will involve collecting data through literature review, where the researcher will
collect data through published and unpublished resource materials which cover the aspect of
human rights to the pre-trial detainees and power of law enforcers both in Tanzania and
worldwide such as books, published reports, and websites. An extensive library research will be
done in order to supplement and enlarge primary data. National statutes, international treaties,
case law. This method will enabled the researcher to get more knowledge on the problem to be
researched and also to know what has been addressed by other researchers that should not repeat
the same thing.

8.0.6 DATA ANALYSIS TECHNIQUE.

For the data to be well understandable organized into a meaning full before presented. Therefore

the researcher will adopt method of analyzing data into qualitative data analysis. Qualitative

analysis will be used to provide logical interpretation and explain of the findings, the finding of

the study will be analyzed and presented using the simple content analysis to made the findings

to be explicit and in a manner to be easily understood.

9.0 LITERATURE REVIEW.
Human Rights to the pre-trial detainee in Tanzania have attracted a number of researches from
various authors. Most of the literature would to a certain degree, address the issue of pre-trial
detainees’ rights in Tanzania. Most of them are academically oriented and although they offer
recommendations at the end, they cannot be an effective tool of advocacy. In consideration on
how other researcher address the problem in reviewing their work it can be critical analyzed as
follows;

In his study Mchome, S.E6 observed that it is very clear that in most cases interrogations at
police stations are conducted in the absence of a lawyer or a relative, hence, “almost all
statements produced before the court do not show anywhere that there was a lawyer, a friend or
relative when it was taken”. Thus, rights of the suspects become under serious risk of being
violated. In this study the research managed to show the circumstance under which the rights of
suspect likely to be violated by police officer interrogation due to the fact that right to have
lawyer or relative as the right provided under section 54 of the Criminal Procedure Act 7 but in
practice most of suspect during interrogation are conducted while they are alone in absence of
lawyer or relative as the case may be. Besides the contribution made by the research but he fail
to come up with the suggestion to the effect that it should be mandatory procedure for an accused
to be informed this right first before interrogation so as to promote the rights to the suspects by
giving the statement freely and confident knowing that accompanied with the lawyer or relative.

In Haroub Othman and Chris Maina Peter (eds.) 8, has observed that enforcement of the
rights of pre-trial detainees is hindered by economic situation of the government and the
individuals. The government fails to fulfill its obligations and promises due to economic
problems of which some of them are associated with Structural Adjustment Programmes and
related economic policies by the International Monetary Fund (IMF) and by the World Bank
which have direct impact on the justice system in many developing countries.

6
Assistant Lecturer in Law at University of Dar Es Salaam, Tanzania, in his paper “Brief Survey of the Law
Relating to the Treatment of Suspects and Accused” (undated) p. 11
7
(CAP 20 R.E 2002)
8
Perspective on Legal Aid and Access to Justice in Zanzibar 2003, p.20
According to James L. Mwalusanya, the protection of Human Rights in the criminal justice
proceedings-Tanzania Experience, in M. Cherif Bassiouni & Ziyad Maotola9 the matter by
suggesting the High Court is an appropriate organ for redress for person to whom his right has
been violated by stating that the right to compensation for the infringement of the constitutional
right to liberty has yet to be tested in courts but failure to address the problem on the other side
of the coin most persons may fail to enforce their right due to the fact that a lot of persons are not
aware about the availability of the procedure and how one goes about invoking it and lack of
access to legal expert that could assist on the formulation and submission of a complaint before
the high Court.

9
the protection of Human rights in Africa Criminal proceedings, kiluwe Academic publishers (1995) p.302, address