RESEARCH REPORT ON EFFECTIVENESS OF COURT PROCEDURES IN KILIMANJARO REGION

Transcription

1 RESEARCH REPORT ON EFFECTIVENESS OF COURT PROCEDURES IN KILIMANJARO REGION ANALYSIS OF PRIMARY, DISTRICT, MAGISTRATE RESIDENT AND HIGH COURT KWIECO FINANCED BY ACT MARCH 2013 i

2 ACKNOWLEDGMENTS KWIECO would like to thank the UK Aid s Accountability in Tanzania program (ACT) for funding the Legal Sector Monitoring Project. KWIECO would also like to thank The Accountability program in Tanzania (ACT) technical team, comprising of Mrs Kate Dyer (the Director) and Amani Manyelezi (the Manager for results and effectiveness) for their guidance in the identification of boundary partners and the design of this research. We would like also to acknowledge the support and cooperation of Magistrates, Court assessors and citizens from Rombo, Moshi rural, Moshi urban, Hai, Siha, Mwanga and Same districts during the research. These were a constant source of information and guidance from the inception and implementation of this research. KWIECO would like to especially thank Dr. Wakuru Magigi, Mr.Edmund Zakayo and Gaudence Kapinga for their consultancy service during this research undertaking. We hope the findings from this research will provide future areas for intervention in Kilimanjaro region and Tanzania. Training and use of media group and other interested stakeholders may form a basis for awareness creation and capacity building to these groups who face setbacks due to ineffectiveness of court procedures in the region. Thank you very much Yours truly, Elizabeth Minde Managing Director ii

3 EXECUTIVE SUMMARY The central focus of the study was to find out the effectiveness of court procedures taking Kilimanjaro as a case in point. Specifically, it centered on finding out the awareness of the resident and magistrates on court procedures in respect to opening cases in view to children, women and special groups perspectives. Likely, it determines challenges facing magistrates and residents in opening cases and possible remedial actions for enhanced good governance and transparency in legal lyrics. The study employed simple random sampling method to get resident representatives and purposive sampling method to get magistrates in the courts. Interview technique using a set of questionnaires to residents and magistrates which were used to collect data. A total of 252 respondents were contacted in seven district of Kilimanjaro region. These Districts includes Siha, Moshi Urban, Moshi Rural, Same, Mwanga, Rombo and Hai. Among the total respondents 87 were magistrates, assessors and court advisors and 165 were residents. The study found that; The procedures in opening cases in the courts depend on the type of cases; for criminal cases one has to go to police station and open case file. Thereafter, the police are responsible to bring the claim to the court for further actions. For civil cases one has to report direct to the court and open the case. The arrangement to call the defendant is made in the court of law and the case is mentioned for the first time The accessibility of court services and timely legal services availability were found to take long time for the case to be heard as well as costs in terms of both funds and time. The most critical challenges earmarked include inadequate number of magistrates working in primary courts where a single magistrate found working in more than one court located in distant locations. One would be doubting the effectiveness of such staff iii

4 The working facilities in primary courts were found to be unsatisfactory particularly office stationeries, where residents have to buy some stationeries once they have cases in the court With regards to easiness and friendly accessibility of court procedures, the study revealed that in primary courts the procedures are simple and friendly but in district, resident magistrate and high court the procedures are very difficult and they require someone who is more knowledgeable on legal matters and court procedures Corruption, unethical conduct and practices in the legal system, cumbersome laws and systems, inadequate numbers of legal professionals and low level of public trust in the legal system were some challenges noted during this study Magistrates listening cases in terms of delivering services to residents, found facing with some challenges to be effective in their work. These challenges earmarked include limited residents awareness on legal procedures, and lack of freedom of court (court decision can be interfered by District Commissioner and others). Similarly, magistrates life being jeopardize by defendants is a common practice noted These courts in Kilimanjaro require heavy infrastructure improvement. These include; renovation of infrastructures in primary courts, providing working facilities, employing more magistrates to work in primary courts and provision of legal education to residents are some important ingredients earmarked for future court procedure improvement Involvement of different stakeholders and networking are important ingredients conveyance to effective governance in the region. These include civil society organisations, PCCB, the ministry responsible for legal affairs, media and the public in general. iv

5 TABLE OF CONTENTS Pg ACKNOWLEDGMENTS... ii EXECUTIVE SUMMARY...iii 1.0 INTRODUCTION RESEARCH CONTEXT Purpose METHODOLOGY FINDINGS AND SYNTHESIS Procedures of Opening Cases Awareness of Court Procedures and Accessibility of Services Special consideration to children, women and marginalized groups with special needs in the courts Effectiveness of court procedures in opening and handling cases Actions hindering residents in accessing quality legal services in the court Proposed solutions and stakeholders to be involved CONCLUSION AND RECOMMENDATIONS Conclusion Recommendations APPENDICES... 1 v

6 1.0 INTRODUCTION This study was done by KWIECO focusing on understanding effectiveness of court procedures in Kilimanjaro region. KWIECO is a non-governmental organization operating in Kilimanjaro region. It was established in 1987 with ten women who were founders. Its main sole function among others is to provide legal aid and ensure accessibility to justice to women, marginalized group and human rights are respected by the general public. KWIECO aims at enhancing the quality of life and alleviating poverty for the most vulnerable/destitute groups for purposes of enhancing the capacity to protect their rights and ownership of assets to the poor resource persons. 2.0 RESEARCH CONTEXT Access to justice is one of the core human rights principles in international Human Rights and is referenced specifically in the Universal Declaration of Human Rights of Others include the International Covenant on Civil and Political Rights of 1966; the African Charter on Human and Peoples Rights of 1981 and others. It is also referenced in the Constitution of the United Republic of Tanzania of 1977, under Article 13. In Tanzania the government has made significant commitments to the protection of human rights, gender equality and adherence to the rule of law. 2.1 Purpose The general purpose of the study was to investigate the effectiveness of court procedures in Kilimanjaro Region. Specifically the study dwells on; Finding out the awareness of the resident and magistrates on court procedures of opening cases Examining special consideration given to children, women and special groups in court procedures in opening cases, 1

7 Determining the challenges facing magistrates and residents in opening cases in the courts and redressing mechanisms for improvement of legal service delivery in the courts 3.0 METHODOLOGY The study on effectiveness of court procedures was conducted in Kilimanjaro region in seven districts; Moshi urban, Moshi rural, Rombo, Same, Hai, Mwanga, and Siha. A total of 252 respondents were interviewed using a set of questionnaires. Among the respondents contacted 165 were residents and 87 were magistrates, assessors and court advisors from all seven districts of the Kilimanjaro region. A simple random sampling technique was employed to get representatives of the resident and purposive sampling technique was used to get magistrates, assessors, and court advisors. A questionnaire was designed and a pilot study was conducted to test the validity of the data collection tool to the sample population. Having tested the data collection tool, a group of enumerators were trained to carry out data collection task in seven districts of Kilimanjaro region. After data collection, the questionnaires were coded in Software Package for Social Sciences (SPSS) for analysis and data presentations were facilitated with the use Microsoft Excel. The analysis of data and presentation of the results are as presented in the findings and discussion section. 2

8 4.0 FINDINGS AND SYNTHESIS 4.1 Procedures of Opening Cases Provision of legal services to residents like other services follows procedures depending on the type of complain and the court to which the case is being opened. Various statutory procedures have been provided by the law. Among the aims of this survey was to find out the awareness of the magistrates, assessors and other staffs of the courts on procedures of opening cases of various types in different levels of magistrates. The findings from the field have revealed several steps one has to follow so as to be able to open a case and other steps to proceed. A total of 87 respondents were interviewed, among them 29 were court assessors, 21 were magistrates in primary courts, 12 were from resident magistrates, and 25 magistrate advisors. The interviewed respondents affirmed that there are two steps necessary for each case to follow; for criminal cases first is to report to the police and open a file of the criminal offence. Secondly the police bring the case to the court for further legal actions. In situation of civil cases there is no need of reporting to the police in steady the claimant goes direct to the court and open a charge sheet together with payment of case opening fee. The second step is the arrangement of the date to mention the case and calling the defendant to the court. Procedures in opening cases in courts from respondents point of view (a) For criminal cases, one has report to the police and the police bring charge sheet to the court (b) For civil cases, the claimant report direct to the court and fill the complaint form and payment of charge sheet (c) Defendant is brought to the court and the case is mentioned for the first time 3

9 The study focused also on identifying whether the procedures for opening cases in various levels of courts are easy and friendly. The analysis of data from the magistrates, court assessors and advisors have revealed that in primary courts the procedures are simple and residents can follow easily as presented in figure 1. From the results presented most of the respondents (83.5%) testified that the procedures are simple and residents can follow simply. The trend of difficultness has been observed to increase in higher levels of the court as evidenced by findings presented in figure1. Figure 1: The extent to which court procedures are simple and friendly from the magistrates, court assessors and advisors point of view. From the residents point of view, most of them affirmed that the procedures of opening cases in primary courts are simple and friendly and does not entail series of steps to be followed but as one moves to other levels of the courts like district court, Resident magistrate court and high court the trend of difficultness increases as evidenced in figure 1. 4

10 4.2 Awareness of Court Procedures and Accessibility of Services The government of Tanzania established primary courts in different areas for the sake of increasing accessibility of court services to residents and timely provision of legal services. Most of the residents are not aware of the procedures of opening cases in the courts which imply the need to have sensitization programmes and legal service awareness campaign to residents not only in Kilimanjaro region but across the country. From the field survey it has been found that, courts except primary courts are located far away to the average of 10 kilometers. Figure 2: Residents awareness of court procedures and proximity of court services Further, consideration was made to examine whether services are provided timely to residents. The findings from the field research affirms that, in primary courts services are provided timely as evidenced by responses from 77.4% of the interviewed magistrates and other staffs working in the courts. The trend of delaying of legal services increases as the level of courts increases as portrayed in figure 3. The reasons associated with the delaying of legal services in district, resident magistrate and high courts were among them, long time taken to investigate the cases, inadequate number of magistrates and judges and limited number of courts at district and ward levels. 5

11 The process in the criminal justice system is long and a cause of delays in determining cases. A case will not be ready for hearing until after some time has gone by due to the fact that the Police after arrest have to do investigation on the case. The case may remain pending for some time until the Police say that they are ready to proceed with the trial or until they withdraw the case for lack of evidence. Other reasons associated with delaying in provision of court services were inadequate number of magistrates, long distance residents have to travel and inadequate transportation to follow court services particularly resident magistrate court and high court. Figure 3: Timely availability of legal services at different levels of courts The situation prevailing in the courts particularly primary courts calls a need for intervention to enhance easy accessibility and timely provision of court services to prevent a room for bribe and other actions which are against humanity resulting into loss of rights. The situation experienced from the residents is terrible and it needs dedicated effort to remedy and harmonize legal services at ward level. For instance one resident from Gonjamaore ward in Same District testified that a watchman is now performing the role of court secretary. The reasons given by residents with regard to untimely provision of court services are inadequate number of magistrates, poor court infrastructures, lack of working 6

12 facilities and cumbersome procedures in district courts, resident magistrate courts and high court. More reasons given by residents have been presented in table 1 in appendix Special consideration to children, women and marginalized groups with special needs in the courts The government of Tanzania recognizes special treatment which children, women and vulnerable groups have to get at various levels of service provision. In this respect various institutional arrangements have been made in different levels to ensure these groups are not denied of their rights. Within this research an attempt has been made to find out whether there are special treatment and considerations to women, children and people special needs such as disabled, and elders. The survey was carried out to magistrates and residents in different levels to determine whether the procedures in opening and running cases in the identified courts observes or take into account the needs of children, women and people with special needs. The results presented in figure 4 reveals the exiting situation from magistrates point of view, 67.5 affirmed that there are special considerations for hearing children cases and those involving special groups. From the respondents point of view it has been affirmed that most cases involving children are listened under chamber and special room. There is an increasing awareness of having special rooms and carrying out children cases under camera as it has been observed in different primary courts and district courts. Figure 4: Special considerations to women, children and people with special needs 7

13 In other primary courts, the respondents affirmed to have not experienced special treatment for cases involving children in the courts. Likewise women are treated same as their male counter parts. The evidence provides for the need to have an intervention in legal service sector to enhance accessibility of court services to women and people with special needs particularly in communities where patriarchy still exists. 4.4 Effectiveness of court procedures in opening and handling cases The study revealed that the quality and effectiveness of court services provided to residents is poor. 36.8% of respondents emphasized that court services at primary courts are of poor quality while 28.2% reported to experience moderate quality court services and only 35.0% reported high quality court services. At district level 26.1% of respondents emphasize that court services are poor quality while 44.4% reported to experience moderate quality court services and only 29.4% reported high quality or moderate court services. In addition, at Resident magistrate court, the study show that 34.7% of the respondents reported to experience moderate quality legal services, 37.2% experienced poor quality legal services and 28.1% reported to have high quality legal services at and at high court level, the study show that 19.8% of the respondents reported to experience moderate quality legal services, 41.5% 8

14 experienced poor quality court services and 38.7% reported to have high quality court services (Table 1). These results imply that the quality of services provided at all levels of court that is to say; primary, district, resident magistrate and high court are not satisfactory and are poor, due to poor services provided by the court, people have lost trust and hope with courts. This has triggered people to take actions and judgment themselves without following legal procedures set by the law. These are evidenced when thieves still people s property and are being killed without taking them to the court. In addition, people have strengthened social capital so that they are able to solve their conflicts without taking cases to court. Table 1: Quality of legal services provided at various courts Primary court Frequency Percent Poor Moderate High Total District court Frequency Percent Poor Moderate High Total

15 Resident magistrate court Frequency Percent Poor Moderate High Total High court Frequency Percent Poor Moderate High Total Actions hindering residents in accessing quality legal services in the court The constitution of united republic of Tanzania of 1977, chapter three, article 13 and sub article 3 provides to the effect that; The civic rights, duties and interests of every person and community shall be protected and determined by the courts of law or other state agencies established by or under the law therefore access to legal services in courts is a right of every resident, it is different from in practice not always the case for residents to have easy access to legal services. 87.7% of respondent agreed that there are actions that cause court procedures to be ineffective and thus hinder people from accessing quality legal services. (Table 2 in appendix 1). Some actions hindering residents in accessing legal services in the court include existence of corruption (16.7%), high cost of following cases (15.2%), inadequate legal centers (10.9%), limited understanding among residents about legal procedures (14.8%) and long distance to the court (10.5%). Also court magistrate mentioned challenges facing them in delivering services to residents; 10

16 these include limited understanding of residents on legal procedures (64.5%), magistrates life is jeopardize by defendants (27.4%) and there is no freedom of court (court decisions can be interfered by District Commissioner and others) (figure 5) From these findings most of residents complained about the existence of corruption in court at all levels, the implication of this is, rich people can use their money in influencing magistrates to make judgment favoring one side and the rights of the poor are violated because of corruption. Also long distance from the court to residents hinder people to access court services because people are required to travel average of 7 km to access court services. Failure of people to access court services mean the presence of many crimes in the society because everyone knows even if he/she make crime there is nowhere to be taken. Figure 5; Challenges facing magistrates 4.6 Proposed solutions and stakeholders to be involved Courts face different challenges in the provisions of legal services as it has been showed in table 2 in appendix 1, however magistrates courts have proposed provisions of legal educations to residents (44.8%), renovating of court working infrastructure (39.1%) and timely provisions of allowances (16.1%) in figure 2. Also community members proposed solutions for improving delivery of court services, 18.7% of respondent s emphasized education to be provided to all 11

17 residents about legal issues. For solving the problem of inadequate magistrates, residents (14.4%) proposed more court magistrates to be employed and be located in different district and primary court level. In the opening and handling cases in the court at all levels the issue of corruption was experienced by residents, and the solution to this problem is to prevent corruption practices (16.3%) by involving stakeholders like PCCB (Prevention and Combating of Corruption Bureau). Stakeholders identified in the study that could help in improving the effectiveness of court services some included Government (39.1%) civil societies (20.9%) and private companies/individuals (11.7%) as stipulated in Table 3 in appendix 1. Residents proposed to be provided with legal education on their rights and court procedures, this implies that, people fail to access legal services because of limited understanding on legal issues. The study revealed that people do not know how to speak and behave in the court building also opening and following cases procedures are not known to all residents. Figure 6: Proposed solutions 12

18 6.0 CONCLUSION AND RECOMMENDATIONS 6.1 Conclusion With reference to the information collected from the field survey and findings presented on the effectiveness of court procedures it is herein concluded that, the provision of court services at various levels (primary, district, resident magistrate and high court) varies from one level to another. The findings from the study show that the effectiveness of court procedures is still questionable as most of residents cannot access quality services. Instead of running to the court to claim their rights, they run from the court. These has been claimed to be caused by actions of the magistrates or court officers like corruption, frightening words, and abusive language. Also its effectiveness is affected negatively by challenges facing courts. These challenges include poor working facilities, unconducive environment, and inadequate number of magistrates, poor building infrastructures and lack of transport for magistrates who work in more than one primary court located in different wards. 6.2 Recommendations To improve the effectiveness of courts in service delivery to residents, the following is recommended. i) Legal education should be provided to residents, this will help people to know and understand their rights and where to claim in case of violation of human rights. The provision of education can help to remove the inferiority complex among resident particularly marginalized groups and women in patriarchy societies. ii) There is a need to for PCCB to work closely with courts at different levels and make follow up on cases which take long time to be heard as they provide a room for corruption. 13

19 iii) To the government it is recommended to increase the number of courts particularly primary courts that so that to be close to residents in their locality and employ more magistrates to meet the demand of the growing rural population. iv) Strengthen the existing primary courts in terms providing working facilities, improving building infrastructures and employing more magistrates to serve residents, this will reduce congestion of cases at district level and also increase efficiency in legal service delivery. v) Furthermore, recommendation is made to provide motivation to magistrates and other court staffs like allowances and timely payment of travel expenses. 14

20 6. APPENDICES Table 1: Reasons for delaying provision of court services Responses Reasons N Percent Hearing cases takes long time % Cumbersome procedures % Inadequate magistrate % Corruption % Limited understanding among residents on legal 4 2.0% procedures Inadequate working facilities 9 4.5% Inadequate evidence 2 1.0% Inadequate working facilities 1.5% poor court buildings 1.5% District court is located very far % poor services in rural areas 3 1.5% Limited understanding among members of courts on legal issues 1.5% poor governance 2 1.0% Total % 1

21 Table 2: Issues that cause people to fail accessing legal services in the courts Responses N Percent Inadequate legal centers % Inadequate court magistrate % Cumbersome or many complications in opening and hearing 9 1.9% a case Cases takes long time in hearing 3.6% Limited understand among the residents about legal % procedures High cost of following a case % Corruption % Patriarchy system 9 1.9% Inadequate working facilities % Inadequate court buildings 6 1.3% Inferiority complex % Friendship or nepotism 5 1.1% Illiterate of residents 8 1.7% Using abusive language 6 1.3% Using English language in handling cases 5 1.1% Frightening language 4.9% Long distance to the court % Disability 2.4% Poor governance 8 1.7% Residents can't afford to pay advocate % Poor traditions and taboos 4.9% High cost of opening cases 4.9% Total % 2

22 Table 3: Proposed solutions to improve court effectiveness Education should be provided to all residents about legal issues Responses N Percent % Motivation like allowances to officers of the court % Employing more court magistrates % Practice of good governance % Each ward should have a court % Support from organizations providing legal services 1.2% Prevention of corruption practices % Adding and improving working facilities % Magistrates should be rotating and not staying in one area for long time 3.7% Repairing court building % Using Kiswahili language 4 1.0% Creating a conducive environment 9 2.2% Regular training to magistrates % Police officers should be responsible in helping people 1.2% TOTAL % 3

23 REFERENCES: Civil Procedure Code of [CAP 33] of 1966 revised edition 2002 Human rights in Tanzania, selected cases and materials, Chris Maina, 1997 Human Rights, Key facts, Book Aid International, Edition Judicial protection of civil and political rights in Tanzania, cases, materials and commentary, J. Clement Mashamba, 2010 Justice and Rule of Law in Tanzania, selected judgments and writings of justice, Helen Kijo-Bisimba and Chris Maina, 2005 Rebecca MM. Wallace, International Law, fifth edition, 2005 The Magistrates Court Act [CAP 11], of 1985 revised edition 2002 UKWELI: Monitoring and documenting Human rights violations in Africa, A hand book, Amnesty International and CODESRIA (2010) 4