Opening Remarks by Chairman of the Commission for Human Right, Mhe Bahame Tom Nyaduga

OPENING REMARKS BY HON. BAHAME TOM NYANDUGA, CHAIRMAN OF THE COMMISSION FOR  HUMAN RIGHTS AND GOOD GOVERNANCE DURING THE TRAINING OF THE LAW ENFORCERS FROM TANZANIA MAINLAND AND ZANZIBAR ON THE LUANDA GUIDELINES ON THE CONDITIONS OF ARREST, POLICE CUSTODY AND PRE–TRIAL DETENTION IN AFRICA, HELD FROM 22^ND TO 24^TH AUGUST, 2016  AT ZANZIBAR BEACH RESORT, ZANZIBAR

Honourable Omar Othman Makungu, the Chief Justice of Zanzibar,

Honourable Commissioners from the Commission for Human Rights and Good Governance,

Distinguished Commissioners, Assistant Commissioners, Representatives from the Tanzania Police Force, Prison and Correctional Facilities,

Distinguished Representatives of APCOF,

Honourable Executive Secretary and Directors of the Commission for Human Rights and Good Governance,

Distinguished Facilitators and Participants to the training,

Ladies and Gentlemen.

Good morning!

Let me start by thanking the Honourable Chief Justice for accepting our invitation to officiate at this training.

It is my honor to introduce to you this important training for law enforcement officers from three of our law and order institutions on the Luanda Guideline on the Conditions of Arrest, Police Custody and Pre – Trial Detention in Africa.

I would like to thank the African Policing Civilian Oversight Forum (APCOF) for collaborating with the Commission, and for committing their limited resources, and allocating their time and energy for this important training. This training brings together participants from CHRAGG, Tanzania Police Force, Prison and Correctional Services in Zanzibar. I would like to thank the Secretariat of CHRAGG for all preparations and coordination with APCOF, the Tanzania Police Force, Tanzania Prison Service and Correctional Services in Zanzibar,   which made this training a reality. Let me also thank the participants and their respective institutions for accepting to be part of this training.

Distinguished Guest of Honor, During its 55^th Ordinary Session held in Luanda, Angola on 28 April to 12 May 2014, the African Commission on Human and Peoples’ Rights (ACHPR) adopted Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa - the Luanda Guidelines.  The adoption of the Luanda Guidelines forms part of the ACHPR’s mandate to formulate standards, principles and rules, on which African Governments can base their legislation. The African Charter on Human and Peoples’ Rights provides all people with the rights to life, dignity, equality, security, a fair trial and for an independent judiciary.  Therefore the Luanda Guidelines are expected to assist African States to implement their obligations in the specific context of arrest, police custody and pre-trial detention as per national legal framework, but with a focus on the rights of suspected persons who come across the criminal justice system.

In the year 2014, APCOF and CHRAGG conducted a review of  Tanzania’s current legislative and administrative framework for arrest, police custody and pre-trial detention. The review examined the Tanzania legal framework vis a vis   the Luanda Guidelines and came up with a report. A validation workshop on the said report was held in September 2014, Dar es Salaam  and included   representatives of the Tanzania Police Force and the Tanzania Prison Service. The report identified human rights based gaps in the law enforcement process which need to be bridged. These gaps can only be  bridged through a sustained application of principles stipulated in the Luanda Guidelines.

This training is therefore a follow up to  the process which began in 2014 with the aim of providing training for criminal justice sector stakeholders including the Tanzania Police Force,  Prison and Correctional Services, and  introducing the Luanda Guidelines to the law enforcement officals.

The Luanda Guidelines sets out the framework for arrest so that the national legal framework accords with the African Charter and other relevant international human rights norms.  The rights to liberty and security of the person are central to this Guideline, especially during arrest and pre trial detention. The guidelines are designed to address issues of arbitrary arrest and to limit the use of arrest, to exceptional circumstances as a measure of last resort.  The Luanda Guidelines also promote alternatives to arrest, where appropriate, and encourages States to establish diversion systems.

The Guidelines set out in detail a range of procedural guarantees for arrest, including need to inform the grounds for arrest, requirements for officials to identify themselves, limitations on the use of force and firearms, a framework for the conduct of searches, and provision for maintenance of an arrest register, forms for use at police stations and prisons, and checklists for monitoring places of detention.  The rights of an arrested person are set out at length in the guidelines.   

Distinguished Guest of Honor and participants, there are currently instances in Tanzania where conditions of detention in police custody constitute a violation of the right to freedom from ill-treatment. Between 2002 and 2012 CHRAGG inspected 225 Police Stations. Recent inspection conducted in this year revealed overcrowding in cells, poor ventilation, inadequate lighting, lack of access to drinking water and use of buckets as toilets. This is unacceptable in modern days. Failure to adequately provide for the protection of persons in police custody is further compounded by lack of sufficient financial resource and shortage of staff.

Allegations of torture by law enforcement officials persist, in spite of the protection against torture and other ill-treatment guaranteed by the Constitution of the United Republic of Tanzania (1977). Notwithstanding the protection against torture stipulated in the Constitution, torture is not a criminal offence in Tanzania.   There are reports which show that, the use of torture by police during arrest and in police custody is a systemic problem.  CHRAGG has documented a number of cases of extra judicial killings and torture. In fact as we speak here, CHRAGG is due to meet senior government and police officials to discuss the issue in Dar es Salaam tomorrow.

Distinguished Guest of Honor, Dear participants, Part III of the Luanda Guidelines establishes a detailed framework to promote a rights-based approach to making pre-trial detention orders, and to safeguard the rights of persons who are subject to such orders.  This Part shifts the focus of the Guidelines from the police to the judiciary, providing guidance on the type of considerations that should be included in judicial decisions to order and review pre-trial detention, and sets out procedures in the case of delays in investigation or judicial proceedings that may result in prolonged pre-trial detention. It establishes safeguards for persons who are subject to pre-trial orders, including the requirement to hold pre-trial detainees in officially recognized places of detention, rather than dark safe house used for torture and reiterates the right to have access to a lawyer.

Distinguished Guest of Honor, Dear participants, The Ministry of Home Affairs reports that, there are as many as 17,224 pre-trial detainees, approximately 50 percent of the prison population awaiting trial. Overcrowding in Tanzania’s prisons has been attributed to the high number of pre-trial detainees,  which is compounded by delays in cases, allegations of fabrication of cases, and minimal use of alternatives to imprisonment sentences. Experience shows that, pre-trial detainees can wait between 3 – 4 years for a trial to commence because of the shortage of judges and magistrates, budget constraints and delays in police investigations. Currently, Tanzania prisons population is estimated at 16 percent more above the capacity of prisons in the country of about 29,552 in mates.   

Overcrowding breeds an enhanced possibility for further violation of the rights of pre trial detainees, i.e. access to food and clean water, adequate health services and sanitation facilities. During its 2011 Universal Periodic Review, the Government of Tanzania identified the reduction of overcrowding in prisons as a key national priority.  It is necessary that one of the means of reducing overcrowding must include the use of alternative to pre trial, arrest and detention.

It is my expectation that, taken seriously this training will sow the seeds for change toward a positive and accountable outlook   on the conditions of arrest, police custody and pre – trial detention in Tanzania.

I urge the participants to approach the training with an open mind and be agents for change within your respective institutions. This is not going to be easy, because bad habits are difficult to abolish within a day.  Dear participants, you must be conscious that even “hard core criminal suspects have rights”. After all Article 16 (1) of the Constitution of the United Republic of Tanzania (1977), which binds us all states that:

“Every person is entitled to respect and protection of his person and further that any deprivation of such right be in accordance with laid down legal procedure.”

It is now my singular honour and privilege, that I now invite the Honourable Chief Justice to deliver his speech and formally open our training. You are welcome Your Lordship.

As for the rest of you, Thank you for your attention

22/08/2016