"Any offence or non-criminal culpable conduct which is committed in combination or from whose nature a presumption may be raised that its commission is evidence of the existence of a criminal racket in respect of acts connected with, related to or capable of producing the offence in question."2

This type of crime is perpetuated by a well-structured group that specialises in serious crimes. The Convention is even more specific in its definition of such a group:

"Organised criminal group shall mean a structured group of three or more persons existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established pursuant to this Convention, in order to obtain directly, or indirectly, a financial or other material benefit."3

It is clear from the Convention that the main aim of the group is acquiring a financial or other form of material benefit. A typical organised criminal group is the Mafia, which originated on the island of Sicily, but now operates in various parts of the world. Explaining the Mafia, a former long-serving head of the Federal Bureau of Investigations (FBI) in the United States, J Edgar Hoover had this to say:

"La Cosa Nostra is the largest organisation in the criminal underworld in this country, very closely organised and strictly disciplined. They have committed almost every crime under the sun …

La Cosa Nostra is a criminal fraternity whose membership is Italian either by birth or national origin, and it has been found to control major racket activities in many of our larger metropolitan areas, often working in concert with criminals representing other ethnic backgrounds. It operates on a nationwide basis, with international implications, and until recent years it carried on its activities with almost complete secrecy. It functions as a criminal cartel, adhering to its own body of ‘law’ [and] ‘justice’ and in so doing, thwarts and usurps the authority of legally constituted bodies."4

Groups of this nature have been in existence for many years. What changes with time is the type of crimes they are involved in. They also move with both time and technology in their activities. Thus, they have been involved in prostitution, alcohol-smuggling, various drug-related crimes, money-laundering and, in recent times, to computer-related crimes.

Such organised groups are a danger to any democratic society. They have to be confronted. The problem is that these groups operate internationally. They are mobile and have accumulated vast wealth. They can even destabilise an unsuspecting weak state. For the war against organised crime to be successful, it therefore cannot be only national — it has to be transnational in character.

In Tanzania, organised crime is on the increase. The main threat is drug-trafficking.5 As a coastal state situated strategically on the western side of the Indian Ocean, it is used as a useful transit route for drugs en route to the southern part of the continent. In the process, some of the drugs remain in the country and find a market mainly among the middle and upper class in major towns. In an unprecedented recent situation, the police in Tanzania impounded a small, but complete machine for manufacturing mandrax tablets and heroin on the outskirts of Dar es Salaam. Together with the machine, the police also found the raw materials for making these drugs. How long this machine has been in operation and how far its products have been distributed in the country and in the region are as yet unknown. The picture will become clearer in the trial of the two people arrested in connection with this big ‘catch’.6

Drug-trafficking goes hand-in-hand with high-level corruption. Carriers are protected by officials who have been bribed by tycoons who send youth to Pakistan and other destinations in Asia. As a result, these youngsters are never searched or arrested. There are attempts to deal with this problem, but the law is still inadequate.

There is little information in the country about other forms of organised crime such as money-laundering. This may be because of the sophistication of those involved and the lack of technical capacity to detect the crime.

In the early 1990s, Tanzania enacted several laws directly addressing organised crime. These include:

the Proceeds of Crime Act (1991);7

the Mutual Assistance in Criminal Matters Act (1991);8

the Armaments Control Act (1991);9

the Arms and Ammunition Act (1991);10

the Drugs and Illicit Traffic of Drugs Act (1995);11 and

the Tanzania Intelligence and Security Service Act (1996).12

This group of legislation was to complement preceding laws that were out of date and could no longer match the current needs. These include:

the Extradition Act (1965);13

the Fugitive Offenders (Pursuit) Act (1969);14

the Witness Summonses (Reciprocal Enforcement) Act (1969);15 and

the Economic and Organised Control Act (1984).16

The implementation of this group of laws was partly through the existing criminal law and procedure regime using:

the Penal Code (1945);17

the Criminal Procedure Act (1985);18

the Evidence Act (1967);19

the Police Force Ordinance (1953);20 and

the Peoples’ Militia (Powers of Arrest) Act (1975).21

The above represents the spectrum of the legal regime in the country to fight organised crime, which as indicated above, is increasing apace. This regime is examined below in the context of the Convention Against Transnational Organised Crime. The discussion is divided into four main parts. The first part looks at legislation relating to organised crime. This is followed by legislation relating to international co-operation in criminal matters. The third part is on corruption and unethical practices and their influence on organised crime in Tanzania. The last part examines the regular criminal law and procedure in the country. It is through this regime that those caught by the long arm of the law are dealt with.

Organised crime

Economic and Organised Crime Control Act (Act no 13 of 1984)

The Economic and Organised Crime Control Act was enacted to repeal and replace the controversial Economic Sabotage (Special Provisions) Act (1983), which created much heat in the legal fraternity. It had provided for a completely new system of dealing with economic crimes, a system which bypassed the regular judiciary and established parallel courts staffed by a mixture of lawyers and lay personnel.

This law which, inter alia, defines organised crime,22 is aimed at making better provision for the control and eradication of certain crimes and culpable non-criminal misconduct through the prescription of modified investigation and trial procedures. Jurisdiction for trying offences under this law is given to the High Court of Tanzania23 and, before any case takes off, it requires the consent of the Director of Public Prosecutions (DPP).

The Economic and Organsed Crime Control Act conforms to a large extent with the Convention, for instance, in matters relating to the transfer of advantage or property involved in the commission of an offence.24 The transfer of such property is only permitted where there is determination of proceedings. Under article 7 of the Convention, it is provided that all state parties have to adopt measures that will enable the identification, tracing, freezing, or seizure of property. Whenever the proceeds of crime have been transformed, the transmitted property will be liable to seizure. The benefits or income derived from the proceeds of crime are also subject to seizure and confiscation. It is in the Convention’s interest that even bank, financial and institutions’ commercial records could be seized regardless of the duty of secrecy towards their customers.25 However, this requirement is not expressly or implicitly provided for in the Act.

Proceeds of Crime Act (Act no 25 of 1991)

There are many situations where the law has allowed criminals to get away with their crimes and, in fact, to benefit from their actions. More and more states are searching for ways to ensure that criminals do not benefit from their illegal transactions. This partly explains the enactment of the Proceeds of Crime Act,26 which is aimed at ensuring that criminals cannot enjoy their illegally acquired wealth.

In this legislation, proceeds of crime have been defined as any property that is derived from the commission of an offence. All courts, with the exception of the primary court, have jurisdiction to try cases under this Act.27 If the court convicts a person, the Attorney-General can apply for an order of forfeiture against any property used in the commission of the offence involved.28

The next issue is whether this legislation conforms to the Convention. Starting with the obligations of financial institutions, they are supposed to give information to a police officer if there are reasonable grounds to believe that such information will be relevant to an investigation or prosecution of a person.29 In the Convention, under article 12(6), it is provided that the government should empower the relevant authorities to order that bank, financial and commercial records are made available or seized, regardless of the duty of secrecy. The reason for this provision is that a person may have an account as a result of the commission of an offence, but he or she may have no other property in connection with the commission of the offence. Therefore, the Convention provides for the seizure of financial records to ensure that no person escapes liability because there is no property to be seized.

The Convention requires state parties to adopt measures necessary to enable the identification, tracing, freezing or seizure of any item that will enable confiscation.30 In the Act, it is clearly provided in Section 58 that police officers can require a person to produce any document relating to any property in order to identify it and, where possible, to seize the property. Restraining orders issued under sections 39 and 40 can also be used as a measure necessary to freeze property, because the property cannot be dealt with (if it is under restraining order) except as directed by the Attorney-General.31

There is also conformity with regard to protection of the rights of bona fide third parties as provided for in article 12(8). The same is provided in section 43(3), whereby there will be an exclusion of personal interest in a restraining order if a person having interest in a property applied to the court for the variation of an order. In this case, the court will grant the application and such interest will be excluded under section 43(4). In this provision, the rights of bona fide third parties have been protected.

Section 71(2) of the Act makes it an offence to engage in money-laundering. If a person is found guilty of this offence, he or she will be liable for a fine and/or imprisonment. Penalties for this offence are significant enough to show the intention of the state to punish offenders. However, the provision does not comply with the Convention’s requirement in matters relating to money-laundering. There is no scope for co-operation and the exchange of information at national and international levels, or for the establishment of a financial intelligence unit to collect information regarding potential money-laundering.32

There is also no conformity in matters relating to the confiscation and seizure of the proceeds of crime, particularly in matters relating to the demonstration of the lawful origin of alleged proceeds of crime.33 The Act has failed to provide for measures to be taken where there is income or benefit derived from the proceeds of crime as provided for in Article 12(5).

Drugs and Illicit Traffic of Drugs Act (Act no 9 of 1995)

Increased consumption and trade in hard drugs in the country prompted the parliament of the United Republic of Tanzania to enact the Drugs and Illicit Traffic of Drugs Act.34 This legislation consolidates preceding laws relating to narcotic drugs. It also provides for the control, regulation and forfeiture of property related to drugs and prevents the illicit traffic in narcotic drugs and psychotropic substances.

This law is a form of domestication of the International Convention on Narcotic Drugs and Psychotropic Substances. It was deemed necessary because the crime scene had changed to such an extent that the existing legal regime could no longer effectively deal with it.

Under this Act, the government is obliged to take all necessary measures to prevent drug abuse in the country.35 Thus, the Act provides for the establishment of the National Co-ordination of Drug Control Commission. The main duty of the Commission is to promote, define and co-ordinate the policy of the government on the control of drug abuse and drug-trafficking.36 The Commission, among others, is supposed to implement the provisions of international conventions on narcotic drugs and psychotropic substances, and to update and adopt drug control laws and regulations for the country.37 The Commission is required to report to parliament on the national situation and developments with regard to the supply of and demand for drugs.38

In terms of compliance with the Convention, the Act conforms to a large extent. The purpose of the Convention is to promote co-operation to prevent and combat transnational organised crime more effectively through legislative and administrative measures. The Act provides for punitive legislative measures to combat these crimes. The Act should combat organised crime effectively as required by the Convention.

Tanzania Intelligence and Security Service Act (Act no 15 of 1996)

For many years, the Tanzania intelligence service was a mythical entity. Service personnel were feared and shunned by society. They were negatively labelled as ‘flies’, ‘peeping Toms’, and others. They also had unlimited funds to use allegedly in pursuit of ‘enemies of the state’. Yet, they were above all using the taxpayer’s money without being accountable. This was considered to be unfair, hence, the enactment of the Tanzania Intelligence and Security Service Act. This legislation is primarily aimed at demystifying the so-called secret service and making it transparent and accountable to the public.

The Act formally establishes the Tanzania Intelligence and Security Service (TISS) as a government department in the Office of the President, with its main function to ensure security in the country.39

The Service is supposed to collect, analyse and retain information which, on reasonable grounds, is suspected to relate to activities that constitute a threat to the security of the United Republic of Tanzania or any part of it.40 In order to collect information, the Service has the power to investigate any person or body of persons who may cause a threat to the security of the country. In the course of the investigation, the service may enter into arrangements with international organisations to provide the government with security assessments.41 This is in line with article 13 of the Convention. Under this article, state parties are urged to enter into arrangements to establish joint investigation bodies. It is emphasised, however, that in the course of this form of co-operation, respect for the sovereignty of the other country must prevail.

Understandably, the duties of the Service are performed secretively. Information can only be disclosed for investigation purpose and in the public interest.42 Thus, there is protection of officials and employees of the Service, as well as their sources of information.43 In addition, employees of the Service are legally protected for acts bona fide done or omitted in relation to their duties and functions. Sources of information to the Service are protected, and no particulars of a person who is a confidential source of information will be disclosed. This form of protection is also covered by the Convention in relation to witnesses.44 It is an offence to obstruct an employee of the Service in the course of duty.45

The intelligence service in any country, if properly utilised, can play an important part in the war against organised crime.

Armaments Control Act (Act no 1 of 1991)

A big portion of organised crime is found in the arms and armaments business. It is thus important to regulate this area effectively. The Armaments Control Act46 was enacted to provide for the machinery and mechanism of controlling and managing the acquisition, manufacture and dealing in arms of war. It is the duty of the president to facilitate and ensure the formulation and implementation of a realistic policy for the control of all dealing in armaments in the country.47 These powers have been delegated to other officers of the government.48

In addition, the Act establishes the National Armaments Control Advisory Board with the main function to advise the government on issues relating to the implementation of policy on armaments.49 In performing its duty, the Board is assisted by a secretariat which provides secretarial, research and information services to the Board. In the course of its duties, the Board is allowed to co-operate and collaborate with other persons or bodies.50 Due to the sensitivity of the functions of the Board, it is financed and supervised through the Ministry of Defence.51

This Act does not relate to the Convention, as the Convention does not provide for guidance in armaments control.

Arms and Ammunition Act (Act no 2 of 1991)

The Arms and Ammunition Act was enacted to complement the Armaments Act of 1991.52 This law consolidates legislation relating to the control of civil arms and ammunition in Tanzania. It thus prohibits the carrying or possession of arms or ammunition without a licence.53 Licences are issued by the Arms Authority.54 However, licences issued in mainland Tanzania are not valid in Zanzibar.

The final issue is whether the Act assists in any way in the war against organised crime. Since organised crimes are committed by more than one person with the assistance of others, such criminal groups usually use arms and ammunition to commit offences, as well as to protect themselves against apprehension by the police. The Act attempts to restrict the possession or ownership of weapons to government. It is therefore arguable that the law, by imposing restrictions, contributes to a large extent to combating organised crime.

International co-operation in criminal matters

Extradition Act (Act no 15 of 1965)

Extradition is an important issue in both public international and human rights law. It involves moving a person from one national jurisdiction to another. It may also entail danger to the subject of extradition if it is not carefully handled. However, at a very general level, extradition aims to bring to justice an individual alleged to have committed or been convicted of a crime under the law of the requesting state.

In Tanzania, the applicable law is the Extradition Act. This Act does not apply to Tanzania only, but also to any other country declared by the minister.55 It is a principle of international co-operation between countries, and it ensures that every crime committed is punished regardless of the fact that the accused committed or was convicted of an offence in another country.

A country can apply through a diplomatic representative for the surrender of a fugitive criminal. In this case, the relevant minister will signify to a magistrate that a requisition has been made and the magistrate is required to issue a warrant of arrest.56 However, the accused will not be arrested if it is proven that the offence is of a political nature.57 An informative discussion of the nature of extraditable offences is found in the case of R v Calvin Cobb.58 A warrant of arrest was issued by Suffolk County Court in the United States. In the course of the hearing before a magistrate’s court, the accused contended that he was sought by the United States, not because of having committed any crime, but due to his civil rights activities. He argued further that the application for his extradition was politically motivated. In his own words:

"I say that I am only a small fly. 100 years from now I may not be alive, but the USA and Tanzania will remain. What happens will be a matter of history. If I am sent back the Court will be my executioner and this is the role which I hope the court will not assume."

The court ruled that the surrender of the accused was sought on political grounds and thus declined the application. The accused was accordingly discharged.

More or less the same situation faced the court in the case of Private Hezekiel Ochuka and Pancras Okumu.59 Here, the alleged leader of the 1982 abortive coup attempt in Kenya and a colleague hijacked a plane and landed in Dar es Salaam. They were arrested and the Kenyan government requested their extradition. The court ruled that the accused would be discharged because they were sought on political grounds.

Generally, it may be concluded that the Extradition Act conforms to the Convention. However, because of the passage of time, it is rather out of date and there are some areas that require updating.

Mutual Assistance in Criminal Matters Act (Act no 24 of 1991)

This Act is one of the new breed of legislation aimed at dealing with transnational crime in Tanzania. The Act was enacted to provide for mutual assistance between Tanzania, Commonwealth countries and other foreign countries; to facilitate the provision and obtaining of such assistance by Tanzania; and to provide for matters related or incidental to mutual assistance in criminal matters. Assistance is mainly sought in relation to evidence, the identification of witnesses and the forfeiture of property.60

This piece of legislation conforms to the Convention in matters relating to evidence and witnesses. The Convention provides for state parties to lend mutual legal assistance to other state parties in investigation proceedings.61 The Act also stipulates that there should be assistance in taking evidence in the foreign country and in Tanzania, as well as assistance in investigations.62

There is also conformity on the mutual assistance to be given. In the Convention, under article 14(3), it is provided that assistance can be requested, inter alia, in matters relating to the taking of evidence, executing searches and seizure, and any other assistance that is not contrary to domestic law. The same aspects are provided for under sections 4 and 5 with the latter stipulating categories of assistance under the law.

According to the Act, a person brought to Tanzania from a foreign country will be kept in custody.63 This is in compliance with the Convention’s stipulations that the state party to which the person is transferred, is obliged to keep such a person in custody.64

Generally, it can be concluded that there is conformity between the Act and the Convention.

Fugitive Offenders (Pursuit) Act (Act no 1 of 1969)

This rather old piece of legislation seeks to enable the police of certain contiguous countries to be authorised to pursue offenders fugitive from such countries within Tanzania. Such a country has to be gazetted by the minister responsible for legal affairs.65 The minister authorises the police from such a country to operate in Tanzania in relation to a fugitive offender(s). Once an offender is arrested, he or she has to be delivered to a police officer in Tanzania.66

The Act, to some extent, conforms to the requirements set out in the Convention. Section 5 of the Act provides for an arrested person to be delivered to the local police, while article 10(9) of the Convention provides for the requested state party to take a person, who is present in its territory or whose extradition is sought, into custody to ensure his or her presence at extradition proceedings.

Witness Summonses (Reciprocal Enforcement) Act (Act no 14 of 1969)

This law aims to enforce witness summonses issued by courts. It provides for the procedures to be followed in witness summonses, the service of summons, and the powers of the court and the minister to excuse the person to whom a summons was issued from complying with the summons. This law is rather old and its relation to the Convention is only by implication and not directly or by design.

Immigration Act (Act no 7 of 1995)

Immigration is an important aspect of human life. It is also of concern to all countries for their own security to know who enters and leaves their borders. For many years, immigration issues in Tanzania were governed by the Immigration Act of 1972. In 1995, new legislation was enacted that repealed and replaced it.

The new law provides for the control of immigration into the United Republic of Tanzania. The Act regulates the entry and stay of immigrants in Tanzania to ensure that they follow the law of the country. In order to ensure that all activities concerning immigration are properly conducted, the director of Immigration Services is appointed by the president for this purpose.67 The director works hand-in-hand with immigration officers whose duties are mainly to examine the documents of persons wishing to enter or leave the country, and to arrest those whose presence in the country is unlawful.68

The Immigration Act conforms to the requirements of the Convention. In matters relating to deportation, it is only the relevant minister who has the power to make an order of deportation.69 Deportation will be recommended by the director of Immigration Services after an immigrant is convicted of an offence and is deported from Tanzania to his or her country of origin. A deportation order can only be issued to immigrants and not to Tanzanians. In the case of Jama Yusuph v Minister for Home Affairs,70 the applicant, a Tanzanian, was deported by the minister. The court held that the minister is not empowered to deport a citizen of Tanzania, and that it is upon the person who is the subject of an order of deportation to prove that he or she is a citizen of Tanzania.

The control over entry and departure from a country, if properly exercised, can contribute to the war against organised crime. It may make it harder for criminals to move freely and jump from one jurisdiction to another.

Corruption and unethical practices

Prevention of Corruption Act (Act no 16 of 1971)

Corruption in the public service is a headache for every democratic government. It undermines its legitimacy and the confidence of the population in its leaders. In Tanzania, the fight against corruption started with the colonial government and continues to this day.

The Prevention of Corruption Act represents the most ambitious drive against this vice. It targets both soliciting and accepting bribes and other forms of corruption. The concept of corrupt transaction under section 3 of the Act has the same meaning as that assigned in article 8(1) of the Convention. The Act also establishes the Anti-Corruption Squad in the Office of the President to investigate and prosecute offences relating to corruption. The Squad is supposed to provide legal advice to the government and the public at large on issues relating to corruption.71

To some extent, the Prevention of Corruption Act of 1971, as amended, anticipated the Convention. Corruption is defined in section 5.3 of the Act as solicitation, acceptance or obtaining from a person any advantage as an inducement to do or forbearing to do anything in relation to his or her business. Under article 8 of the Convention, it is the act of promising, offering or giving to the public official an undue advantage so that the official act or refrain from acting in the exercise of his or her duty.

With regard to sanctions and penalties, the Convention under article 9(1) urges state parties to take administrative and legislative measures to promote integrity and to prevent, detect and punish corrupt persons. Tanzania has adopted such measures by providing heavy sanctions and penalties in the Act for offences relating to corruption.72 In order for the functionaries involved in the war against corruption to be more effective, the Squad has been elevated to a bureau. It is now called the Prevention of Corruption Bureau (PCB). One weakness of the Act is its failure to make it an offence to participate as an accomplice in the offence.

Prevention of Corruption (Amendment) Act (Act no 20 of 1990)

The amendment to the Prevention of Corruption Act of 1971 was aimed at curbing corruption in general elections.72 Therefore, it addresses both direct and indirect corruption during elections by either the candidate, his or her agents, or his or her party. Treating of voters and potential voters is also defined,73 ill-treatment is punishable,74 as is exerting undue influence which is prohibited under the Act.

The penalty for corrupt practices is higher. It consists of a fine not exceeding Tshs 30 000/=, or imprisonment not exceeding six years, or both. In addition, a person convicted of corrupt practices must be reported to the director of Elections, and his or her name will be deleted from the voters’ register.75 In addition, a candidate convicted of corruption in court is barred from standing for elections for a period of 10 years.

This amendment to the Act was timely, as corruption in elections had reached alarming proportions. Candidates would do anything to be elected and both petty bribery and grand corruption were involved.

Public Leadership Code of Ethics Act (Act no 13 of 1995)

It is not uncommon for the political leadership to forget its undertakings to the population and engage in unethical practices. This tendency is addressed by the Public Leadership Code of Ethics Act of 1995. The Act is aimed at establishing a code of ethics for certain public leaders. Its goal is to control the acquisition of property by public leaders, particularly government officials.

The code of ethics seeks to invoke, among others, the principle of declaring all property or assets and liabilities owned by a person in a position of power. This principle extends to his or her spouse and unmarried children.76 The aim of enacting this provision was to enable the relevant authorities to trace the property of public officials, and if any official acquires any other property through corrupt means, this will be detected. This principle conforms to the Convention in the sense that the Convention requires state parties to establish the necessary measures to trace the origins of such property.

Although public leaders are required to declare their assets and liabilities under section 9(1), this will not suffice to control potential ownership of property, as all properties/assets and liabilities are not subject to declaration. There are non-declarable assets,77 some of which can be acquired corruptly.78 For example, vehicles and other personal means of transportation are non-declarable assets, but these can be bought with money corruptly acquired, or a public official can acquire them as an economic benefit that is contrary to the principles of the code of ethics.79 It would be prudent if all property and assets acquired by a public leader, other than through his or her lawful means of income, were subject to declaration.

There is a prohibition against public leaders dishonestly acquiring any pecuniary advantage by benefiting from information obtained in the course of their duties, converting government property for personal use, and soliciting transfers of economic benefit.80 By doing this, such a public leader will be committing corruption as defined in the Convention.81

This code was enacted to bring about accountability among the public leadership. It is meant to curb corrupt practices among public leaders and to enhance good governance. If implemented effectively, the code will go a long way in reducing corruption among public leaders. They will no longer be able to accept any illegal economic benefit. In this respect, the Act has conformed to the Convention, which deals with the criminalisation of corruption in article 8.

Electoral Laws (Miscellaneous Amendments) Act

(Act no 4 of 2000)

This Act came in the wake of the general elections of 2000. It covers both elections for the National Assembly, and local government elections in Tanzania. Interestingly, this legislation does away with the safeguards against corruption in elections put in place in 1990. It is therefore controversial and not easy to understand. It is contrary to every logic as it more or less sanctions corruption, while everyone else condemns the practice.

Firstly, under this law, ‘treating’ is allowed and treating voters is no longer regarded as an offence. In addition, treating itself is not defined and the sky is therefore the limit. A candidate can decide to do a ‘favour’ for one person, a group of persons or a whole village — and get away with it.

Secondly, the Act makes it very hard to pursue corrupt candidates who have won elections. This is done through stringent conditions for filing election petitions. According to section 111(2) and (3), the registrar will not fix a date for the hearing of an election petition unless the petitioner has paid a deposit of five million shillings as security to the court. This means in practical terms that only rich petitioners can pursue their constitutional rights in electoral matters. A poor candidate who has been roughed up through corruption or treating, or a dissatisfied voter has no chance to pursue a corrupt ‘winner’.

The government seems to have protected itself, as this requirement does not apply to the Attorney-General if he or she is a petitioner or one of the petitioners.81 This provision seems to be absurd as it creates inequality before the law. It is not easy to justify the provision in general and more so the exemption given to the Attorney-General.

Criminal law and procedure

There are broad procedural laws in the statute book which are meant to operationalise the whole criminal justice system. These laws will be handy in any struggle to combat organised crime at national level, and they are extensive. A brief indication of their provisions is given below.

Penal Code (1945, chapter 16 of the Revised Laws of Tanzania Mainland)

This Ordinance was codified from the Indian Penal Code. The Code defines criminal offences and provides for the punishment of these offences.

Generally, if used properly, the Penal Code can combat organised crime because of its nature. It defines offences and, at the same time, provides for punishment.83

Criminal Procedure Act (Act no 9 of 1985)

This legislation repealed and replaced the Criminal Procedure Code84 which was basically copied from India. The Act mainly provides for the procedure to be followed in criminal prosecution.

Evidence Act (Act no 6 of 1967)

Like all legislation dealing with evidence, this Act is vital in criminal matters as it determines the standards of proof and the question of the admissibility of evidence and the capacity to give evidence.

Police Ordinance (chapter 322 of the Revised Laws of Tanzania Mainland)

This Ordinance, enacted in the 1950s, established the police force. Among others, it allows the police to carry and, where necessary, use firearms. It also provides for discipline within the police force.

Peoples Militia (Powers of Arrest) Act (Act no 25 of 1975)

This Act gives the Peoples’ Militia, which are not part of the disciplined forces of the country, the same powers to arrest criminals like those given to the regular police. The Peoples’ Militia, popularly known as Mgambo, is a creature of politics, established in the one-party era.

Conclusion

Organised crime is a serious matter. It concerns states individually and collectively. It would be absurd for a single state to think that it can combat organised crime single-handedly. There is a need for joint efforts in this struggle. This could be at regional, as well as at global level. This will indicate to those involved in this type of crime that there are no safe havens left for them. The UN Convention Against Transnational Organised Crime comes at the right time to boost the war waged by the international community against organised crime.

At national level, there must be very clear policies on organised crime. However, a policy is not enough in itself. It should be translated into concrete legislation dealing with various aspects of organised crime. New legislation should be accompanied by amendments and revisions and, where necessary, old and out of date legislation must be repealed. Archaic laws should not be allowed to stand in the way of the struggle for change and the need to rid society of organised crime.

In Tanzania, much remains to be done. Legislation processes have always been haphazard and disorganised. So far, the country has reacted to new and emerging situations, such as the increase in business and the consumption of hard drugs. It is time to change and, from now on, to prepare itself proactively for situations which can affect the people and the nation. The struggle against organised crime should be intensified.

Notes

Richard Nixon, 24 April 1969, quoted in F Pearce, Crimes of the powerful: Marxism, crime and deviance, Pluto Press, London, 1976, p 160.



See Section 2 of the Economic and Organised Crime Control Act (no 13 of 1984).



See Article 2 of the Convention.



Hoover was mainly relying on the testimony of Joseph Valachi, a well-known gangster before a Senate hearing. Quoted in Pearce, op cit, p 113.



The Zanzibar Chief Minister, Mr Shamsi Vuai Nahodha, is reported to have admitted that drug-trafficking is a major problem and a Bill was being drafted to curb the scourge. See L Lukumbo, Drug trafficking stalks Zanzibar, Daily News, 9 February 2001, p 1.



See, Police discover mandrax factory in Dar: Arrest two, The Guardian, 20 February 2001, p 1; Two held for running narcotics industry, The African, 20 February 2001, p 1; Dar heroin lab swoop!, Daily News, 20 February 2001, p 1. See also, Big time crime comes to Tanzania, The African, 21 February 2001, p 6.



Act no 25 of 1991.



Act no 24 of 1991.



Act no 1 of 1991.



Act no 2 of 1991.



Act no 9 of 1995.



Act no 15 of 1996.



Act no 15 of 1965.



Act no 1 of 1969.



Act no 14 of 1969.



Act no 13 of 1984.



Chapter 16 of the Revised Laws of Tanzania Mainland.



Act no 9 of 1985.



Act no 6 of 1967.



Chapter 322 of the Revised Laws of Tanzania Mainland.



Act no 25 of 1975.



Section 2(1) defines organised crime as any offence which is committed in combination or of which its commission is evidence of the existence of a criminal racket.



The judge of the High Court is supposed to sit with two assessors. Formally, these three officers of the court had equal powers and hence the two Assessors could out-vote the judge. This happened in the case of R. v. Nuru Mohamed Gulamrasul (reported in the Daily News, 13 February 1983). This situation has changed since the amendment of the law in 1987. The role of the assessors has been reduced to that of advisers only and it is the judge who decides on both the verdict and penalty.



Section 58.



See article 7(2), (3), (4), (5) and (6) of the Convention.



Act no 25 of 1991.



Section 8.



Section 9(1).



Section 70(1).



Article 7(2).



See Section 38(1) and (2)(a).



Article 8.



Article 7(7).



Act no 9 of 1995



Section 3(1).



Section 4(1).



Section 5(1).



Section 6.



See sections 5(1) and 4(1).



Section 14(1).



Section 15(4).



Section 17(2).



Sections 19 and 20, respectively.



See article 18(2).



Section 23.



Act no 1 of 1991.



Section 5.



This has been done under section 6.



See sections 7 and 8.



Section 9(1) and (8).



Section 9.



Act no 2 of 1991.



Section 4(1).



Section 5(2).



Section 3(1).



Section 5(1).



See sections 5(2) and 15(3).



District Court of Dar es Salaam at Kivukoni, Miscellaneous Criminal Cause no 41 of 1967.



District Court of Dar es Salaam at Kisutu, Miscellaneous Criminal Case no 1345 of 1982.



Section 4.



Article 14(1).



See sections 10, 14(1) and (2).



Section 16.



See article 14(1)(a).



Section 3.



Section 5.



Section 4(1).



Section 7.



Section 14(1).



[1990] TLR 80.



Section 2A(1) and (2).



See sections 3(3), 4, 5, 6, 8(2) and 9(1).



Section 9A.



Section 9D.



Under section 9B, the penalty for bribing, treating and exerting undue influence in the electoral process was put at a fine of Tshs 20 000/=, or five years imprisonment, or both.



Section 9H.



Section 6(b)(ii).



Section 10(1) and (2).



Section 10(2).



Section 6(f).



Section 12.



Article 8(1)(b).



Section 110.



See chapter VI of the Penal Code.



Chapter 20 of the Revised Laws of Tanzania Mainland.

References

A Aderinwale, Corruption, democracy and human rights in Southern Africa, Africa Leadership Forum, Abeokuta, Nigeria, 1995.

G Fiorentini & S Peltzman (eds), The economics of organised crime, Cambridge University Press, Cambridge, 1995.

JAGardiner, The politics of corruption: Organised crime in an American city, Russell Sage Foundation, New York, 1970.

H Hess, Mafia and mafiosi: The structure of power, Lexington Books and DC Heath & Co, Lexington, 1973.

EGHosea, Essays on combating corruption in Tanzania and the basic legal principles, Dar es Salaam, 1999.

FAIanni with E Reuss-Ianni, A family business: Kinship and social control in organised crime, Russell Sage Foundation, New York, 1972.

J Kasella Bantu, Tanzania voice from detention: The causes of corruption in Tanzania, Dar es Salaam Press, Dar es Salaam, 1979.

N Morris & G Hawkins, The honest politician’s guide to crime control, University of Chicago Press, Chicago and London, 1969.

JLMwalusanya, Checking the abuse of power in a democracy: The Tanzanian experience, in CMPeter & I H Juma (eds), Fundamental rights and freedoms in Tanzania, Mkuki na Nyota Publishers, Dar es Salaam.

F Pearce, Crimes of the powerful: Marxism, crime and deviance, Pluto Press, London, 1976.

LPShaidi, The problem of corruption in Tanzania, unpublished masters dissertation, University of Dar es Salaam, 1975.

IAShearer, Extradition in international law, Manchester University Press and Oceana Publications, Manchester and Dobbs-Ferry, New York, 1971.

UN, The United Nations and crime prevention, United Nations Department of Public Information, New York, 1991.

C van den Wijgaert, The political offence exception to extradition: The delicate problem of balancing the rights of the individual and the international public order, Kluwer, Deventer, 1980.