Opening Address by the President of the United Republic of Tanzania, His Excellency Benjamin William Mkapa, at the Judges and Magistrates Seminar, Karimjee Hall, Dar Es Salaam, 16 December 1996.

Honourable Chief Justice;
Honourable Justices of the Court of Appeal;
Honourable Justices of the High Court of Tanzania;
Honourable Magistrates;
Distinguished Participants and Guests;
Ladies and Gentlemen.

Of the three Constitutional Branches of Government, it is only the Judiciary that I had not yet had the opportunity to address in my capacity as President of the United Republic of Tanzania during the first year of my Administration. I addressed the new Parliament on 30th November, 1995 in Dar es Salaam; and the Executive Branch on 15th January, 1996 in Arusha on opening the Workshop on Governance and Management for Ministers and Principal Secretaries.

I was, therefore, very happy to receive the invitation of The Honourable Chief Justice to address the opening session of this year's Judges and Magistrates Seminar. I thank him very much.

Like in my encounters with the Legislature and the Executive, I intend to use this, our first meeting, to outline that part of my Government's agenda for the balance of its term that relates to the Judiciary. In doing so I wish to share with you ideas on the role and contribution of the Judiciary I consider necessary for the success and sustainability of political and economic reforms in our country, Tanzania.

I also want to share a vision with you - a vision in which these three Constitutional Branches of Government will work together in harmony to accomplish the political, social and economic platform upon which the Chama Cha Mapinduzi (CCM) Government I lead was mandated by the people to lead and administer our country. As far as the Judiciary is concerned it is a platform of enhanced personal and political freedom; of robust and evident justice; of development in equity; and of the rule of law.

It is common knowledge that the frontiers of personal, social, political and economic freedom have expanded greatly in our country in the last few years. So dramatic and fundamental is the change that some of the people are still at a loss as to what to make of this new freedom. For the first time in the history of our country a Bill of Rights is part and parcel of the Basic Law of the Land - the Constitution of the United Republic of Tanzania. But whether arising from the political freedoms that form the bed-rock of a thriving multi-party democratic system, or the economic freedoms intended to release and foster private initiative and entrepreunship for self and national development, the scope of conflict of interest in society has grown alongside the growing freedoms. Each person's freedom, exercised too zealously, carries with it the risk of encroaching on another person's freedom pursued with equal zeal.

The more freedoms our people enjoy, therefore, the more the demand for the evolution and refinement of the mechanisms for arbitration, adjudication, and due processes of Law. I recently heard that our Honourable Justices postponed their annual holidays in an attempt to clear pending election petitions. This is only one example of the great demands on the Judiciary that these freedoms impose! But even more noteworthy is the concept that one person's freedom must end when and where it begins to infringe on another person's freedom. As Edmund Burke put it: "Liberty, too, must be limited in order to be possessed".

This brings me to two issues I would wish you to give further thought to, namely the obvious need for increased public legal literacy in our communities and our nation as a whole; and improved professional legal training and apprenticeship. It serves no useful purpose to have a Bill of Rights in the Constitution if the people it seeks to protect are unaware of those rights or how to pursue them without infringing on anyone else's rights. With the costs of legal counsel sky-rocketing the way they do, we risk excluding a large majority of our people from the mainstream of justice and the process of seeking redress in Courts of Law.

You, our Honourable Justices and Magistrates, are people who have climbed far in the ladder of legal knowledge. I ask you to spare some of your valuable time to reflect and suggest ways to promote basic public legal literacy among your fellow citizens so that they too can have the possibility to enjoy their constitutional rights, and seek legal redress wherever and whenever necessary. I am truly concerned that the average person out there has not been sufficiently empowered to take full advantage of his or her legal rights enshrined in the Constitution and other Laws in our statute Books. Vulnerable groups such as women and children need special attention. Many of them, in their ignorance of the law, forego their rights. They need your help.

Another illustration of the need for enhanced public legal literacy is the reception which the Report of the Presidential Commission on Corruption got among the members of the public, including among people who have been to school. I have over and over again pointed out that the Commission was not performing the role of the Police, the Anti-Corruption Squad, the Public Prosecutor, or the Judge. The Commission was not collecting evidence for purposes of prosecution. Yet our people, including the newspapers, have taken many of the examples of questionable official conduct mentioned in the Report as prima facie evidence of corruption and are demanding instant indictment and even sentencing without due process of the law. They cannot tell the difference between suspicious conduct; a suspect; a formally charged or convicted person; evidence that can stand in court, and so on. To many, all these are one and the same thing. We truly still have a long way to go.

I am aware that some of you are already involved in some aspects of dissemination of basic public legal literacy through the Tanganyika Law Society. I welcome and encourage this development. But you know, as I do, that much more still needs to be done, and it really has to be done if our system of justice is to be relevant to one and all Tanzanians.

The other aspect is the need to put stronger emphasis on professional legal training. You know, much more than I do, that possession of an LL.B Degree alone is not enough to make one a good advocate, a good magistrate or a good judge. As the frontiers of freedom expand, and as the need for specialised legal training follows suit, we need to re-evaluate our system of legal training and apprenticeship. We need a system that produces practitioners well versed in the various specialised branches of the law and capable of giving clients value for their money, as advocates; and able to adjudicate fairly in cases before Courts of Law, as Judges and Magistrates. Above all, the professional ethics and attributes of this noble profession must be imparted to all practitioners of the law, at all levels.

Alongside this need for review on the training aspect, is also the need to review existing mechanisms and procedures for the appointment and evaluation of performance of members of the Judiciary, and the legal fraternity as a whole. A culture of inefficiency has permeated the public service and the judiciary is by no means an exception. What makes the problem more acute in the judiciary is the stature that the institution holds in society and the tragedy you all know inevitably accompanies delayed or denied justice. The need to take into greater account professional ethics and behaviour in the appointment and promotion of law practitioners is great and urgent indeed.

Honourable Chief Justice,
I am not learned in Law, but I fully appreciate the importance of having the independence of the judiciary entrenched in the Basic Law of the Land. It is an independence I will always support, encourage and protect. But I also believe that this is not intended to be an abstract independence, an independence of an aloof and detached legal fraternity suspended in mid-air without root or social and political context.

Members of the Bench must live and work in a society - a society which must of necessity put certain limitations on an otherwise rightful assertion of independence. Some of us could be more learned than others, but we still can learn a thing or two from each other and be more relevant to the times. The rights of an individual, for instance, have to be carefully weighed against the rights of an entire society or community. I would certainly consider it an aberration of justice to put the interests of one person above the interests of an entire community. The rule of law has to be applied judiciously, not with a single-minded or gratuitous pursuit of abstract justice.

An example of the injudicious application of legal procedures and existing laws is the endless resort to, and granting of, temporary court injunctions. It is true that temporary court injunctions, if used as originally intended, are a very important component of the judicial process. But, especially as present Tanzania is concerned, there can be no gainsaying that these injunctions have been perceived to be used to delay and deny justice rather than promote and safeguard it. This is especially so in commercial and trade disputes.

As I speak, there are close to 390 different court injunctions pending against actions by the National Bank of Commerce to recover outstanding loans from defaulting clients. Imagine how much it must cost the NBC to pursue all these litigations in court. A client borrows money, puts up a collateral, can't pay, and then puts injunctions in the path of the creditor when being compelled to pay by attaching the collateral. This is a travesty of justice! I am, of course, talking as a layman in law, but as I said, my expectation is that the application of our laws and legal procedures must serve the interests of the wider society. And believe me, my expectations are less generous than those of the average layman in law that I lead!!

I should also point out here that the long time it takes to adjudicate commercial disputes is often given to me as one of the disincentives to foreign investment in Tanzania. The idea has been put forward to establish a separate commercial disputes court. You know we are stretched for manpower, facilities and money. But, even without these problems, unless we become more reasonable in entertaining court injunctions the problem will not go away.

Honourable Justices and Magistrates,
I wish to assure you that you have in my Government an ardent partner in promoting democracy, freedom, good governance, and the rule of law in our country. As President, I depend on the Police and the Judiciary to put practice into these concepts. I have no other way. The Judiciary is an independent branch of Government, and would quite rightly wish to keep its independence sacrosanct. But whenever the turning wheel of justice picks any mud along the way, that mud will pretty soon hit me in the face. I should not, therefore, keep quiet if I see problems in our Judiciary.

It is for this reason that I want to use this opportunity to share with you a candid assessment of the image of our Judiciary in the eyes of our people and outsiders. I will do likewise to the Police Force in two days time. As promoters and dispensers of justice you can, ultimately, only be evaluated by the community or society you seek to serve. It is untenable that you should have your own institutional set of values that are at variance with the values of the society in which you live and work. Likewise, it should not be possible for you to have an assessment of your own performance that is indifferent to the opinion of the society around you.

For instance, when our streets turn into the old American Wild West, with instant justice being meted out to suspected criminals, it must raise a lot of questions as to the image of the Police and Judiciary that the people have. These people are not homicidal. They just don't think the Police and Judiciary can be trusted upon to ensure proper punishment is given to the criminals in their midst. So, they take the law into their own hands. Indeed, in some parts of Dar es Salaam, declining levels of criminality have been attributed to this Wild West phenomenon.

On 7th December 1996 I received the Report of the Presidential Commission on Corruption, commonly referred to as the Warioba Commission, which in line with the image of transparency and candidness I want to project, I promptly made public. Those of you who have read it will have sadly found out that it portrays the Judiciary as among the most corrupt institutions in Tanzania. I was, however, not surprised by this
conclusion. In all my regional tours there is one vexation ("kero") that I have learnt to expect to be aired everywhere, and that is complaints of corruption in the judicial system .

It is not really that the people in the judiciary are more corrupt than those elsewhere in public service. Rather it is a reflection of the public awareness that the judiciary is ordinarily the place they come for justice, for redress to injustice and to prosecute corrupt people. It is the ultimate custodian and dispenser of justice. If now the Police and Judiciary become themselves corrupt, what hope or other option does an ordinary citizen have? How does the Government fight corruption elsewhere in such a situation?

I am truly pleased that your seminar this year has as its main theme: Corruption in the Judiciary. It shows you are sincere enough to accept that the problem exists and that you are willing to address it squarely. I wish you all the best as you try to find out how this most unfortunate development has come about, how serious the problem is, and how you who represent the apex of our legal system can help to spruce up the image of the Tanzanian Judiciary, and the system of Justice as a whole.

I know the Government is often blamed for creating a fertile ground for corruption. I fully recognise that some of the problems facing the judiciary, such as shortage of stationery, transport, office equipment, facilities, and the like as well as inadequate salaries, late payment of court assessors and so on have their roots in the budgetary constraints facing the Government. But as I have had occasion to state before, the intention of the Government is to divest itself from directly productive and commercial activities so as to better perform the traditional functions of State, including Law and Order. It is my hope, therefore, that in the not too distant future we will be in a better position to increase budgetary allocations to the Judiciary.

But I cannot accept the notion that budgetary problems alone account for this level of corruption. Inadequate supervision of lower courts and staff, as well as an alarming erosion of professional ethics are largely responsible.

The Warioba Commission, in its interviews with a wide cross-section of ordinary citizens, was made to believe that corruption, especially at the level of Primary Courts, is endemic. Primary Court magistrates are accused of being thoroughly corrupt to the extent of blatantly perverting justice and completely ignoring basic principles and ethical boundaries of their otherwise noble profession. Some are even alleged to pass judgements without hearing cases! Some do not even keep records of court proceedings and judgements. Others deny people the right of appeal. The people's sad conclusion is that there may still be law courts - but no justice!

Corruption is also said to have now entered the ranks of District Courts, Resident Magistrates Courts and even the High Court. Judges and Magistrates are mentioned, and so are clerks and court assessors. Corruption is also said to be prevalent in opening case files; setting hearing dates; tracing case files; the use of temporary court injunctions; getting copies of judgements and court proceedings; granting of bail; issuing attachment orders; chamber applications; payment of assessors, and so on. Basic rules of judicial process are said to be habitually flouted especially in lower courts.

In short, the opinion of many people is that our Judiciary is corrupt and they are losing faith in it. They think what counts is money - those with money will always have judgements in their favour. This is truly a sad charge by the people on the institution of their last hope for justice. If we are not careful we will soon be heading for that depraved society described by the Irish Poet, Oliver Goldsmith, in which

"Laws grind the poor,
and rich men rule the law."

You have, I think, an axiom in Law to the effect that it is not sufficient for justice to be done; justice must also be seen to be done. And as long as the ordinary people do not seem satisfied that justice is being done, great damage will be caused to the image of the legal profession in Tanzania. You must be seen to be an agent in the war against this vice.

Honourable Judges and Magistrates,
To the ordinary people, the Police and the Judiciary are the embodiment and personification of State Power. Image is, therefore, very important. When this image is tarnished, so is the image of the State. The Judiciary, and the legal profession as a whole, is a highly respectable institution which should be the fountain of justice. It should be the repository of Justice dispensed without fear, favour or ill-will. It is the port of final call for those in pursuit of justice and truth. It is the ultimate weapon against corruption in society. If we allow our courts to be corrupted, then the fight against corruption is lost, ab initio. I have vowed to fight corruption, within the confines of our laws. I ask for your co-operation. Both you and I have an interest in the professional and moral stature of the judiciary. Let us then work together to raise it.

Thank you for your kind attention and I now declare this seminar open.