by Tito Magoti an Advocate of the High Court of Tanzania,
In this blog post, Tito Magoti exposes the weaknesses in the criminal justice system in Tanzania for redressing victims of police brutality in the extractive industry.
In Tanzania, the police oversee peace and security at private and state-owned extractive sites. In the extractives industry, policing is dual: state police oversee external security to prevent ‘intrusions’ and protect assets, while outsourced private security firms handle internal and, if necessary, external security, often without firearms. In this piece, I reflect on the thorny relationship between the state police and the communities around extractive industries, particularly mining. I argue that weak criminal justice systems allow perpetrators of police brutality, including investors, to escape justice, making it hard for victims to seek redress.
Policing in extractives
Several laws govern criminal law in Tanzania. The Penal Code lists criminal offences and their penalties. The Criminal Procedure Act (CPA) details procedures for, among others, arrest, crime investigation and prosecution. The Police Force and Auxiliary Services Act establishes the police force, while the Police General Orders provide for policing procedures.
The Anti-Money Laundering Act and the Economic and Organised Crimes Control Act combat economic sabotage and resource smuggling. The anti-smuggling police unit runs operations to protect natural resources. Section 7 of the Regional Administration Act and Section 177 of the Local Government (District Authorities) Act empower Regional and District Commissioners to detain any individual for 48 hours if they commit or are suspected of committing an offence in their presence.
The police are mandated, by all standards—local, section 21 of the CPA and international—to use force solely as a proportionate measure of last resort. Despite such a mandatory requirement, there have been continued incidents of use of force leading to loss of lives and injuries. Detention powers are abusively used against civilians in conflicts with investors, often involving inhumane treatment. Anti-smuggling operations raise legal concerns about extreme use of force, prolonged detentions and malicious charges.
Police, extractives and the community
As noted earlier, the police provide security to extractive companies. In doing so, they arrest and detain people suspected of committing crimes in the extractive sector. However, it is the police who often engage in criminal activities, such as shooting, injuring and killing civilians for allegedly ‘intruding’ mine sites.
Rights bodies such as RAID, Human Rights Watch, Mining Watch Canada, and the Business & Human Rights Resource Centre have documented some incidents of killings. Tanzania’s Legal and Human Rights Centre has noted with concern incidents of extrajudicial killings and injury of civilians near the then Acacia North Mara mining site. Despite reports implicating the police, accountability has not been merited.
Recently, immunity against prosecution was extended to intelligence officers for anything they do, including committing crimes, under the cover of good faith. The development increases tensions between civilians and law enforcement agents. This is escalated by the growing incidents of police brutality with impunity.
Constraint to accountability and access to justice
Despite evidence that the police engage in crimes against civilians, the possibility that victims would pursue them is low. The main constraints include limited legal support for the victims. The requirement to sue the police as an institution for vicarious liability deters victims due to the risks and costs associated with pursuing the government in court.
Another constraint is the imminent powers of the Director of Public Prosecution (DPP) to withdraw criminal cases. The DPP only needs to file a nolle prosequi certificate, showing he has no intention to prosecute a case. Why would the DPP need to certify an interest in a case he is not a victim? The practice, overall, undermines efforts by individuals to seek justice.
The investigation of criminal cases takes longer, potentially linked to the reluctance of the DPP, as they choose when to sue. The situation becomes critical when the police are involved, triggering feelings of selective justice and inactivity of institutions of the administration of criminal justice.
In January 2022, police were implicated in the robbing and killing of a mining investor in Mtwara. Some officers were arrested, but the case has dragged on for over three years, with frequent adjournments. These cases often leave victims struggling to obtain justice.
The remedies in criminal litigation do not adequately redress victims, as convicts are only sentenced to jail. Courts rarely order restitution for bodily injuries or death, leaving victims to pursue separate tort claims, which can be a burdensome process.
Tanzania has not ratified the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984. While torture is considered jus cogens, mandating Tanzania to prohibit it, a comprehensive domestic legal framework would enhance accountability and address impunity.
Corruption has eroded accountability in the extractives sector. A leaked MoU between Acacia (now Barrick Gold) North Mara and the Tanzania Police Force indicates corporate capture of the criminal justice institutions. According to a report published by The Globe and Mail, the two entities engaged in a criminal syndicate with top police officials illegally earning up to US $31 million from Barrick. The scandal has yet to be accounted for, instigating suspicion of potentially unethical dealings between the two entities.
The judiciary is not proactive in guarding rights, with judicial officers like Judges serving at the pleasure of their appointing authority: the President. This is evidenced by the situation where a judge would be appointed as an Attorney General and then reappointed as a Justice of Appeal. This adds to litigants’ lack of confidence in Tanzania’s legal system, which is evident as recently 21 Tanzanians filed a lawsuit against North Mara Barrick Gold Corporation in Canada. Although the suit did not materialise to merits, and despite a pending appeal, the situation reflects a lack of confidence in domestic justice systems by litigants.
In summary, the overarching impact of the vulnerability of Tanzania’s criminal justice system diminishes both accountability and access to justice. To attain accountability in the extractives sector, an overhaul of the criminal justice system is essential for it to correspond to the requirements of justice. Adopting and utilising international standards that guide responsible behaviour in investment is crucial.
Tito Magoti is an Advocate of the High Court of Tanzania, holds an LLB from Mzumbe University, Tanzania, a PGD–LP from The Law School of Tanzania, and an LLM from both the University of York University, UK and the University of Pretoria, South Africa.