Constitutionalism 2002 Mvungi TZ

TANZANIA CONSTITUTIONAL DEVELOPMENT - 2002
PART ONE
Introduction to Political History The United Republic of Tanzania is a union between the Republic of Tanganyika and Peoples Republic of Zanzibar. The two were formerly independent states that share a chequered colonial history. The Republic of Tanganyika was first a German colony between 1884 and 1918 and then she became a colonial possession of United Kingdom of Great Britain ostensibly as a mandated territory under the League of Nations up to 1945. After World War II Tanganyika became a trusteeship territory under the United Nations. It remained under British rule up to 1962 when she became an independent sovereign republic. Zanzibar, the other part of the United Republic was a colonial possession of the Sultan of Oman since 1832. In 1878 the Sultan of Zanzibar signed a protection treaty with Great Britain and in 1914 she became a virtual colony of Great Britain with the Sultan acting as an insignificant local ruler. In October 1963 Zanzibar became a sovereign Arab Sultanate. The Africans overthrew the sultan in 12th January 1964 in a bloody revolution that brought an end to Arab colonialism. Zanzibar quickly moved into a union with Tanganyika on 26th April 1964 as a measure to secure the revolution against foreign interference. The new state was neither a federation nor a unitary state. The treaty of Union (known as Articles of the Union) gave Zanzibar separate executive, legislature and judiciary in respect of non-union matters in and for Zanzibar. Tanganyikas non-union matters were put under the jurisdiction of the Union. This gave the new state a quasi-federal constitution that has remained a source of controversy to date. The new state known as the United Republic of Tanzania was governed as a one party state without a constitutionally guaranteed Bill of Rights.
Mvungi: Tanzania Constitutional Developments - 2002
In 1984 both the Zanzibar Constitution and the Constitution of the United Republic of Tanzania were amended to include a Bill of Rights. The Union Bill of Rights was made unjusticiable for a three-year transitional period during which the Government was supposed to repeal or amend all authoritarian laws that offended Bill of Rights. In practice, the suspension of justiciability of the Bill of Rights did not assist the Government to clean its house. In July 1992 following a long constitutional debate and recommendations of the Presidential Commission on Multi-Party Democracy led by Chief Justice Francis Nyalali, the Union Constitution was amended to abolish the one party state and to put in place a multi-party system. Tanzania conducted its first multi-party elections in October 1995 without taking any measures to level the playing field for the new political parties. The structure, composition and procedure for appointment of members of the electoral commission remained a monopoly of the ruling CCM party. This giant state party remained with all the resources it had accumulated under the one party rule. In the elections that replayed the David and Goliath analogy, the nascent opposition managed to win 38% of the presidential vote and 20% of the seats in the Union Parliament. Thus the country witnessed the opposition taking seats in Parliament for the first time since the nation was founded. The presidential seat was contested by four candidates, namely, Benjamin Mkapa (CCM), Augustine Mrema (NCCR- Mageuzi), John Cheyo (UDP) and Prof. Ibrahim Lipumba (CUF). Mr. Benjamin Mkapa emerged the winner with 61.8% of the vote that is attributed to the immense influence of the late father of the nation Mwalimu Julius Nyerere and the rigging conducted by state security agencies. Prior to the Union general elections, Zanzibar held its Presidential and House of Representative Elections whose results were controversial. Salmin Amour, the CCM Presidential Candidate for Zanzibar presidency was elected with 50.5% of the vote in an election, which the opposition CUF alleged, was rigging. CUF refused to accept the election results and boycotted the House of Representatives. This dispute continued for three and half years and was resolved mid-1999 when the mediation initiatives of the
Commonwealth Secretary General bore fruit in the form of a peace accord known as Muafaka I. Five years later in the October 2000 elections similar and more serious rigging took place against the opposition. The elections results showed the opposition winning a dismal 5% of seats in the Union parliament. In Zanzibar the peace accord broke and CUF mounted a similar stand off like that in the previous elections. This led to the 26th and 27th January 2001 bloody demonstrations in Zanzibar and Pemba. Again mediation was conducted this time by local agencies and a 2nd Peace Accord known as Muafaka II was concluded between CUF and CCM in 10th October 2001. The Constitutional Structure of the State in Tanzania The Articles of the Union (1964) and the Constitution of the United Republic of Tanzania, 1977 establish three jurisdictional areas, namely, two separate and concurrent jurisdictions for matters in and for Zanzibar and Tanganyika. The third is the union jurisdiction for matters in and for the United Republic of Tanzania. The non-union matters in and for Zanzibar are placed in the hands of a separate legislature and executive in and for Zanzibar. No similar structure is provided for nonunion matters in and for Tanganyika. Instead, these have been placed in the hands of the Government of the United Republic of Tanzania. This constitutional structure makes the Tanzanian state a quasi federation. The quasi-federal nature of the Tanzanian constitutional structure inheres in three separate jurisdictional areas, with only two governments to handle them. Lack of a separate executive and legislature in and for Tanganyika takes away the federal qualities of the constitutional arrangement. Theoretically however, the non-union matters in and for Tanganyika are handled by the Union, which is a peculiar constitutional arrangement. The court system in Tanzania is reflective of the quasi-federal model. Zanzibar has a separate High Court with concurrent jurisdiction to that of the High Court of the United Republic. There is a Court of Appeal of Tanzania, which has jurisdiction to hear appeals
from both High Courts. Thus the judiciary a quasi union matter. The two former states of Tanganyika and Zanzibar share a common appellate system but not the high courts and subordinate courts. The judicial system in Zanzibar is divided into two parts, namely the ordinary magistrates courts and the Kadhi courts. The former comprises of the primary courts, which are the grassroots courts and the district and resident magistrates courts at the middle. The high court is both an appellate court and a court of 1st instance depending on subject matter and pecuniary value of the subject matter. The High Court of Zanzibar has final jurisdiction to hear appeals from the Kadhi courts. In every other respect the Tanzanian state has unitary characteristics. The central state administers 26 regions and more than 120 districts. Every district is further divided into wards and villages. Local government structures end at district level. The Economy Tanzania is mainly an agricultural country depending on the export of coffee, cotton, sisal, tea and other non-traditional export produce for its foreign exchange earnings. Agriculture provides 85% of employment. The drop in producer prices over the years has reduced real incomes for the rural population to the extent that over 75% of the rural population is living below the poverty line and 40% are living under conditions of absolute poverty. Structural adjustment policies introduced in late eighties have led to privatisation of the public sector and opened up the country to foreign investments. The expectations were that this policy shift will yield quick results in the form of economic growth, more jobs and more income. The contrary has been the case and so far the policies have created more problems than solutions. Privatisation of the government owned parastatals mainly to foreign investors has left the local entrepreneurs with empty hands. Retrenchment of workers in both private and public sectors has thrown thousands of workers into the streets without hope or means of
earning their livelihood. The tax burden, aggravated mainly by the foreign debt factor, continues to weigh heavily on the shoulders of the ordinary Tanzanian, whose tax payments are not matched with a corresponding power to make the government accountable for the tax payers basic needs. Therefore more Tanzanians are poorer now than they were two decades ago. The job market is shrinking as the laying off of workers in the privatised companies continues without a deliberate effort being mounted to create new jobs elsewhere. The traditional belief that the laid off workers will integrate into the rural economy is neither here nor there since the workers are ill prepared to fit into peasant community and economy. Most workers are urban dwellers per se without any rural connections. In any event the rural economy has collapsed due to fall of commodity prices and poor supply of inputs and infrastructure necessary for a modern agro sector. The mineral sector that held promise of economic redemption is recording negative returns. Poor policy and legal framework in the mining sector has resulted in a disaster. Foreigners have grabbed lucrative mining concessions at the exclusion of indigenous people and the government is paid a meagre 3% royalty excluding tax. Lack of monitoring capacity to detect smuggling of minerals has made Tanzania a haven for outlaws. LEAT, a Lawyers Environmental Action Team has reported gross violation of human rights in mining areas in Shinyanga and Mwanza that include uncompensated acquisition of land from natives and burying native miners alive during closure of mines undertaken as a measure to clear natives away from land given to foreign mining companies. In Arusha Mererani area where the rare Tanzanite jewel is found, small miners have been forcefully removed from mining blocks bought by South African Mining Company AFGEM. A court case filed by the small miners is still sub judice in the High Court of United Republic of Tanzania. The problems in the mining sector indicate total failure by the government to act as the custodian of the people of Tanzania in exercising permanent sovereignty over their natural resources.
This situation has stunned and angered most Tanzanians and created a wave of antiforeign investment climate. The net effect of these economic policies has been stagnation and deterioration of the economy. Absolute poverty is growing and productivity, income and life expectancy are falling. The average life expectancy for Tanzania has been reduced due to about 45 years and serious human rights issues regarding economic and social rights are emerging. Cultural and Social Life The cultural and social life of a nation depends very much on its political and economic systems. Tanzania boasts of peace and tranquillity as hallmarks of its social and political culture. For a country occupying a landmass of 630 square kilometres, composed of 123 different tribes each speaking its own language and having its own distinct culture, the peace and tranquillity heritage are not mere boasts. One has to note the diversity in religious convictions ranging from Christianity, Islam, Buddhism, Africanism and Atheism. The common language of Kiswahili has assisted in knitting tightly a people lacking a coherent economic structure and ethic linkages that would influence national cohesion. Tanzanians owe these characteristics as a united and peaceful nation to the Father of the Nation the late Mwalimu Julius Nyerere who tailored a coherent nation out of seemingly diverse ethnic peoples. PART TWO
THE CONSTITUTIONAL GUARANTEE OF HUMAN RIGHTS IN TANZANIA
Historical Background Tanzania did not have a bill of rights in its constitution since independence. It introduced a bill of rights in 1984 two years after the ACHPR was adopted by the African Heads of State and Government in Nairobi. Independence negotiations in early sixties deliberately
excluded a bill of rights.1 The reason was the apprehension by nationalist leaders that the colonial judges who then manned the judiciary would use the Bill of rights to frustrate nationalist governments efforts to bring speedy economic development to the people. The English Dominion Act, 1961 that is frequently wrongly cited as the Independence Constitution of Tanganyika did not contain a bill of rights.2 Similarly, the Republican Constitution that is the proper Independence Constitution of the Republic of Tanganyika did not contain a bill of rights.3 Mwalimu Nyerere feared that an independent judiciary composed of white judges could have posed a great danger to nationalist zeal for rapid development. Mwalimu Nyereres refusal to have the Bill of Rights in the Tanzanian constitution both at independence and during the making of the republican constitution in 1962 has been subject to strong criticism.4 The main tenor of this criticism is that Mwalimu Nyereres reasons were not sufficient grounds for denying Tanganyika a bill of rights. Critics could not absolve Mwalimu Nyerere for ruling his country with similar authoritarianism as the British had done. The new state had inherited authoritarian laws that Nyerere made no effort to change. Like in many newly independent African countries, the Tanganyikan nationalists anchored their governance upon illiberal and authoritarian foundations.5 The big mass of authoritarian laws left behind by the colonial administration gave the new nationalist government little difficulty in applying without the risk of earning bad
1 2
Chris Maina Peter, Human Rights in Africa, New York: Greenwood Press,1990, p. 2.
This was an to abrogate the UNO Trusteeship Agreement between the UNO and United Kingdom to give Britain constitutional powers to grant Independence to Tanganyika. This Act made Tanganyika a de jure colonial possession of Britain. It gave Tanganyika limited independence within the Commonwealth, while vesting her sovereignty upon the British Crown.
3 4
See: Proposals of the Tanganyika Government for a Republic, Government paper no. 1 of 1962
See: Chris Maina Peter, Human Rights in Africa, Op. cit., p. 2, Robert Martin, Personal Freedom and the Law in Tanzania, Nairobi: Oxford University Press, 1979, p. 40.
5
Kabudi, P.J., The State of Human Rights in Tanzania: The Challenges in the Twenty First Century, in Sifuni E. Mchome (ed) Taking Stock of Human Rights in Tanzania, Dar es Salaam: Faculty of Law, University of Dar es Salaam, 2002, at p. 110 See also: Reyntjens, F, Authoritarian in Francophone Africa: From Colonial to Post Colonial State, Third World Legal Studies, 1988, p.59.
names and publicity. It is those that sought to have these authoritarian laws changed who earned criticism and bad names like being dubbed terrorists or communists. In 1984 a Bill of Rights was introduced into the Constitution of the United Republic of Tanzania, 1977 by way of a constitutional amendment clearly modelled on the ACHPR.6 This came as a result of wide public demand for the bill of rights made by various sections of the civil society including the Tanganyika law Society. Nyerere conceded to the demand for a bill of rights because it was apparently clear that it was needed to protect individual freedoms in the post Nyerere era. Nyerere had personally guided his government to avoid blatant violation of human rights without having these rights legislated upon. When such violations surfaced, as they did in 1975 in the Shinyanga/Mwanza killings of innocent citizens by state agencies on allegations of witchcraft, Nyereres personal intervention and integrity pacified the bruised victims. It was evident that Nyerere would no longer be there to assist in guiding public servants in preserving, through acts of governance, the vision of a society ordered by respect for human rights. Nyereres public policies and acts of governance derogated from Human Rights in several important respects, but now in an era without his statesmanship, strictly circumscribed constitutional powers seemed a better guarantee against bad governance. The 1984 Bill of Rights Tanzania introduced a bill of human rights in its constitution through the Fifth Constitutional Amendment Act of 1984. The guaranteed rights were not justiciable immediately but were suspended for three years during which the Government was supposed to put its house in order by amending or repealing those laws that contravened the guaranteed rights. The law that suspended justiciability of the guaranteed rights was the Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984.
Fifth Constitutional Amendment Act, 1984 (Act no.5 of 1984).
The Tanzanian Bill of Rights was closely tailored to resemble the Universal Declaration of Human Rights while incorporating the duties analogy from the African Charter of Human and Peoples' Rights. Major groups of rights in the bill include the right to equality of human beings (Articles 12 to 13), the right to life (Articles 14 to 17), the right to freedom of expression (Articles 18 to 21) and the right to work (Articles 22 to 24). One important characteristic of the Tanzanian Bill of Rights is the use of claw-back clauses that take away the substance of the guaranteed right by constitution itself or by a law made by parliament in that behalf. Such clauses include the use of such phrases like in accordance with law [Articles 14 & 15(2) (a)], without prejudice to the relevant laws of the land [Articles 18 (1) & 19(2)], subject to the laws of the land [Article 20(1)]. These claw-back clauses constitute a significant departure from the substance of the rights guaranteed by the UDHR. Essentially claw-back clauses seek to erode, water-down or restrict the substance of the rights guaranteed. The courts in Tanzania have shown spirited vigilance in making sure that claw-back clauses that take away, water down or seek to defeat the substance of the guaranteed rights are not allowed to prevail. In Pumbun v. Attorney General (1993)7 the Tanzanian Court of Appeal held in relation to a claw-back clause in the Tanzanian Constitution that claw-back clauses to rights guaranteed by the constitution must be strictly construed otherwise the guaranteed rights under the constitution may be rendered meaningless by the use of such derogative or claw back clauses of the very constitution. The Tanzanian human rights regime can be understood within the context of the international commitments the state has bound itself to respect. In this regard Tanzania has not ratified certain international human rights instruments and one might venture to say that the unratified instruments constitute the substance of her derogation from the international human rights regime.
Per Kisanga, J.A. [1993] 2l LRC 317 at 323.
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Ratified International Human Rights Instruments Tanzania has signed and ratified international human rights instruments including the following: (i) Universal Declaration of Human Rights UDHR, 1948 (ii) International Covenant on Civil and Political Rights ICCPR, 1966 (iii) The international Covenant on Economic, Social and Cultural Rights ICESCR, 1966 (iv) The International Convention on the Elimination of all Forms of Discrimination Against Women, CEDAW 1979 (v) Convention Relating to the Status of Refugees, CRSR 1951 (vi) The International Convention Against Apartheid in Sports, 1985 (vii) The African Charter on Human and Peoples Rights, 1981 (viii) The International Convention on the Rights of the Child, 1989 (ix) The Rome Statute of International Criminal Court, 1999 Unratified International Human Rights Instruments Tanzania has hitherto not signed and ratified the following international human rights instruments: (i). The International convention Against Torture and other Cruel, Inhuman or Degrading treatment or Punishment (ii). The Optional Protocol to the ICCPR (iii). The Optional Protocol to the ICESC
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The backlog in the process of signing, ratification and incorporation of international human rights instruments is not a result of state policy but in most cases a consequence of inept state authorities. This conclusion seems to be supported by the fact that none of the unsigned or unratified instruments constitute a challenge to state policy direction. Introduction of Multi-partism In 1992, a presidential commission was established to study the possibility of establishing a multi party system headed by the Chief Justice Francis Nyalali. The Commission recommended the introduction of multiparty political system and overhaul of the legal system by, inter alia, scraping off 40 laws in the countrys statute books that violated human rights.8 The Government acted on the first proposal and introduced a multi-party political system. It abolished the one party political system fearing that the democratic movement in the country that was then in the minority according to the Commissions findings, might finally gain majority and overthrow the ruling party. The Government was however very slow in changing the laws to conform to human rights. Very few of the 40 bad laws have been repealed to date and in fact more bad laws have been enacted ever since the Report was given. The Law Review Commission made studies on the said bad laws and made an unfortunate proposal to have them retained on the grounds that they were still relevant and needed. The reason for the increase in authoritarian laws is the growing need for a more repressive state as globalisation impacts upon the economic structure of the society. In less than 10 years the government has privatised mostly to foreigners the countrys whole public sector. A total of 450 public companies have been sold, some at give away prices. Over 200,000 workers who were employed by these enterprises have been laid off with menial benefits.
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Enforcement Procedures The bill of rights provided for in the Constitution of the United Republic of Tanzania, 1977 and the Constitution of the Revolutionary Government of Zanzibar, 1984 are enforceable through constitutional petition in the High Court of the United Republic of Tanzania and the High Court of Zanzibar respectively. Article 26(2) of the Constitution of the United Republic provides for the right of every person, in accordance with the procedures provided by law, to take legal action to ensure the protection of the Constitution and the laws of the land. This is the Article, which vests locus standi in constitutional litigation in Tanzania. The eligibility to this right is universally given in that it is not restricted to citizens alone. Article 30(3) gives every person whose rights have been or are likely to be infringed by any person anywhere in the United Republic a right to institute proceedings in the High Court. Article 30(4) Vests upon the High Court original jurisdiction to hear and determine any matter brought before it relating to violation of basic rights provided for in the Constitution. State authority, namely the Parliament is vested with powers under Article 30(4)(a), (b) and (c) to enact laws providing for and regulating the procedure for instituting and hearing petitions under the Bill of Rights. The Constitution of Zanzibar contains provisions that are mutatis mutandis impari materia the provisions in the Union Constitution. The procedure for presenting a constitutional petition under the union constitution is further regulated by the Basic Rights and Duties (Enforcement) Act, 1994, which provides that the manner of instituting proceedings for enforcement of basic rights shall be by way of a petition accompanied by an originating summons. The matter must first be mentioned before a single judge who shall determine the issue whether the petition is frivolous or not. Only then shall the matter be placed before a panel of three judges who shall hear and determine the matter.
8
Nyalali Commission Report, Vol. 1: Government Printer, Dar es Salaam, 1992, p. 7.
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This long and arduous procedure has made human rights litigation in Tanzania a nightmare. This must have been done intentionally to frustrate or make its difficult for individuals to access the courts and to defend their basic rights. For instance it is clear that the provision laying down the condition of initiation of court action by way of a petition accompanied by an originating summons is duplex. Both the petition and originating summons are instruments for moving a court to act upon a matter brought before it. Since they are modes of instituting civil action, only one of them could be used, but definitely not both9. The procedure of placing the petition before one judge for preliminary hearing and only then commit it to hearing on merits by a panel of three judges is similarly a delay tactic. Tanzania has very few High Court judges. It is therefore difficult to appoint a panel of three judges. In law there is nothing wrong if a human rights matter is originally heard by only one judge. Taking into account the chronic problems of delay in the hearing and final determination of cases in Tanzania, this provision in quite unrealistic. With this brief outline of the legal framework for the protection of human rights in Tanzania, the report now turns to current human rights issues that have occupied the human rights movement in Tanzania in the year 2002. PART THREE
CIVIL AND POLITICAL RIGHTS
Introduction In accordance with the International Covenant on Civil and Political Rights (ICCPR) of 1966, civil and political rights include such rights as right to self-determination, right to life, freedom from torture or cruel, inhuman or degrading treatment or punishment, liberty and security of person and right to have ones inherent dignity of the human person recognized.
9
See: Supreme Court Practice, Vol 1 (1993) [ Sweet & Maxwell] Order 5 rule I at p. 28.
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Other rights include freedom of movement, equality before the law, presumption of innocence, freedom from unlawful or arbitrary interference with ones privacy, freedom of thought, conscience and religion, freedom of expression, right to peaceful assembly, freedom of association and right of the minorities. Many of these rights are incorporated in the Tanzanian Constitution. Only few of these rights have had events that require reporting in the year 2002 as narrated hereunder. The Right to Participate in Government of Ones Country
Political Crisis in Zanzibar Ever since the October 1995 general elections, Zanzibar has been facing grievous political crisis. The year 1995 general elections saw Salmin Amour of Chama cha Mapinduzi (CCM) becoming President of Zanzibar amidst bitter protest by the opposition, led by the main opposition party in Zanzibar, the Civic United Front (CUF). The CUF alleged that CCM had rigged the elections and stole the victory its candidate Seif Sharrif Hamad. This situation generated degenerated into a severe conflict between the ruling CCM and CUF. After a long state of unrest, the two parties eventually sat on a discussion table under Commonwealth Secretariat mediation. These discussions culminated into the signing of a political accord on June 9th, 1999, now known as Muafaka I. The accord outlined measures aimed at resolving the past conflict. The accord was however not respected. 10 Therefore the two parties entered into the second multiparty elections in October 2000 in an environment of political tension similar to or even worse than that of the 1995. As it were, the 2000 elections brought the CCM candidate Amani Karume to power. The CUF did not recognize the results because it claimed that CCM had rigged the elections again. There were allegations of mismanagement of the registration of voters and the campaign
10
See: Zanzibar: Democracy on Shaky Foundations, XIX, April 2000.
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process. International observers witnessed crude and deliberate police interference with the campaigns, voting and counting of votes.11 CUF demanded for nullification of the results and fresh elections under an independent electoral commission. These demands fell upon deaf ears as a result of which CUF organized the fateful January 27th 2001 demonstrations that ended in a disastrous blood bath. Scores of people were killed by the police and hundred others injured. Many fled to Mombasa, Kenya as refugees. Following a concerted campaign calling for peaceful resolution of the conflict mounted by the civil society, the two parties once again sat at a table to find a solution to the crisis. The long discussions resulted in a second accord signed in October 10th 2001. This second accord was named Muafaka II. It outlined several matters that must be done to end the conflict, including, among others, reform of the Electoral Commission, reforms of the constitution and electoral laws, the formation of an independent inquiry into the January 26th/27th
2001
crisis and reform of the law enforcement agencies. The Accord
included a schedule of implementation. According to this schedule, the year 2002 was concerned with the implementation of the Accord. Most of the steps to be taken were a responsibility of the Government. In the course of the year, the Government implemented a number of positive decisions stipulated in the Accord. These include the 8th and 9th of the constitution of Zanzibar providing for a restructuring of the Zanzibar Electoral Commission (ZEC) to include two members from the CUF; the formation of a presidential commission to inquire into and find out the causes and impact of the Zanzibar police killings and amnesty to CUF Secretary General Seif Sharrif Hamad who had been dismissed from public service. Let us briefly discuss each of these issues beginning with the last. The CUF leader Seif Sharrif Hamad was formerly the Chief Minister of Zanzibar in the CCM Government as member of the CCM party. He was dismissed from his post for allegedly acting against the Union. He lost his position and membership in the CCM party and was incarcerated
11
See: Zanzibar Eve of Violence: A Fact Finding Report on Police Brutality and Election Mismanagement, prepared by the Legal and Human Rights Centre and the International. Federation for Human Rights, May,
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in prison in what human rights activists considered to be grave human rights violation. Under the terms of the Muafaka II, Hamad regained his pension and emoluments as former Chief Minister of Zanzibar government. The commission of inquiry into the January 26/27th 2001 killings was appointed and has already submitted its report to the President of the United Republic of Tanzania. The Accord also provided for the formation of the presidential commission to oversee the implementation of the Accord. This commission was appointed and is already in business. Some other matters remain to be implemented and the Government seems to be in no hurry to meet the deadlines. The Accord has in many ways created positive political climate in Zanzibar. Acts of harassment, unjustified detentions, unjustified killings, arson, bitter discrimination on political grounds and so on that have been the daily news in the previous year were absent in 2002. The appointment of CUF members into the Electoral Commission has been accepted by both parties, although it leaves out other political parties. This leaves a loophole that might lead to new tensions arising from the mishandling of other political parties not involved in the Muafaka I and II. It was the politics of exclusion that led to the Zanzibar political crisis in the first place, therefore any half measures that will include CUF but leave other parties out is tantamount to playing in a vicious circle. The fact undeniable fact is that peace and tranquillity of Zanzibar is not a CUF/CCM affair. It is a matter of concern to all Tanzanians, therefore excluding other parties and interested sections of the Tanzania body politic is a dangerous game. The report of Commission of Inquiry into the 26th and 27th January 2001 killings was made public in November 2002. The sad news about this report is that it attempts to justify police violence. The report does not come out clearly condemning the excessive use of force by the police leading to deaths of scores of demonstrators. This leaves much to be desired. The report neither sets out clearly the right of compensation for the victims nor does it address the issue of accountability.
2001, Report 207. P. 13.
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As noted herein above, the implementation of Muafaka II is unnecessarily slow and may end up steering up new tensions and frustrations. It is always a good rule of politics that one must strike when the iron is hot, as a week in politics is a year of insurmountable difficulties and tensions. What the Government does not seem to understand is the fact that in political and legal terms CUF came out of the Muafaka II empty handed while CCM took it all. This compounded with the failure to adhere to timetable of implementation may give chance to recalcitrant elements to rock up the boat once again. The Government has blamed lack of funds and emergence of some difficulties not contemplated at the time of signing of the Accord for the delay. It is true that some difficulties emerged during the process of implementation of Muafaka II. One notable issue was the provision requiring the President to appoint two members in the seven-person Electoral Commission on advice of the head of the opposition in Parliament. It turned out that no political party other than CCM had members in the House of Representatives. CUF had already lost its 17 members as a result of boycotting three consecutive sessions of the House. A new amendment to the Constitution of Zanzibar had to be made to enable the President to appoint such members on advice of political parties where no official opposition exists. These explanations given by the Government for delay in the implementation of Muafaka II notwithstanding, this report notes some amount of lack of seriousness on the part of CCM and its two governments. The negotiations that led to Muafaka II were long and costly to the tax payer. It makes no sense for the Government to say that it has no funds for the implementation of the Accord, so late in the day. Until December 2002, the following issues had been implemented in accordance with the provisions of Muafaka II: (a) The Zanzibar Electoral Commission restructured by the appointment of two members of the commission from the CUF. (b) Establishment of a permanent voters register. (c) The constitution and the electoral laws of Zanzibar reviewed.
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(d) CUF involved in the governance of the country. (e) A Commission of Inquiry on the Events of January 26 and 27, 2001 established. (f) Refugees who had fled to Mombasa called back. The following issues of human rights relevance provided in Muafaka II are yet to be implemented: (i) Reform of the Judiciary and other law enforcement organs (ii) Provision of relevant civic education to the people. (iii) The formation of a coalition government between CCM and CUF. (iv) Compensation of victims of the January 26th/27th 2001killings. Other measures that have yet to be taken: (i) The establishment of a Secretariat of the Zanzibar Electoral Commission. (ii) Review of the union laws relating to the Accord. (iii) Establishment of public service media. Thus the year 2002 was, if one could name it so, the year of implementation of Muafaka II. This report notes however, that despite its achievements, Muafaka II left out many basic issues that lie at the bottom of the political crisis in Zanzibar. The question of the legitimacy of the revolution requires broader context than the one provided for by CCM and CUF. Like its predecessor Muafaka I it excluded other opposition parties thus reducing the political crisis in Zanzibar is a CUF/CCM affair. The narrow benefits accruing to CUF in the Muafaka II was mainly a result of the narrow participatory context of the Accord. Negotiating with a giant like CCM needed a broader national participatory context than what CUF could offer. Matters like the reform of the electoral commission, the judiciary, public media, electoral laws the constitution and the
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Political Parties Act require a broader participation and national consensus that can not be achieved by CUF and CCM meeting behind doors and coming out with accords. The Situation at the Union Level The right of the individual to take part in the governance of ones country is a fundamental right that can not be abridged. The behaviour of both CUF and CCM seem to suggest that as far as Zanzibar is concerned any conflict or changes should be an agreement between the two, and no one else. This has attracted criticism from other stakeholders, namely the citizens who are not members of these two parties and other political parties that want to do politics in Zanzibar. Thus, instead of being seen as an input into the democratic struggles of the nations, somehow the Muafaka I and II have sent strange signals that CUF is being co-opted into the CCM regime. Although such signals may be unfounded, such occurrences like the payments made to CUF by the government to enable it hold its General Meeting and the pension payments to its General Secretary add up to the negative propaganda. Other events during the year include the enactment of the NGO Act, 2002, the amendment of the Elections Act 1985 and the Prevention of terrorism Act, 2002. As these enactments have direct impact on the human rights situation in the country, this Report will discuss them latter. The Right to Political Association In the year 2002 two new political parties, namely Democratic Party (DP) and Chama cha Demokrasia Makini were given permanent registration by the Registrar of Political Parties. The application for registration of DP had been rejected on several occasions due to non-compliance with the legal requirements. The DP is headed by Christopher Mtikila, a man who has emerged as a strong one-manshow political activist in contemporary Tanzanian politics. In 1992 when multiparty system was introduced, Mtikila emerged as a fearless political activist against the
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Government. He filed several court actions to promote human rights development in Tanzania. In one of his most famous actions, Mtikila moved the High Court of Tanzania to declare that a candidate not belonging to any political party can contest for presidency. However, soon after this decision, the Parliament amended the Constitution to defeat the spirit of the High Court decision and the general right to participate in the governance of the country. Mtikila could not benefit from the High Courts decision to contest for presidency in the 1995 elections. In the 2000 elections Mtikila was in jail after a court had convicted him of an offence connected to uttering seditious words. Thus, registration of his party in 2002 was a great progress in the politics of his group. Nevertheless not long after his party was registered, Mtikila was arrested for allegedly uttering words that were abusive to President Mkapa and the Father of the Nation, the late Mwalimu Nyerere. Few days after he was released on bail in this case, Mtikila was re-arrested and charged with another offence connected to utterances he had made in 1999 against the Father of the Nation. Right to a Fair Trial The Right to a fair trial is provided for under article 13 of the Constitution. For this right to be realised, the trial body must be impartial and knowledgeable on the matter. A person whose right is at stake must be given an adequate opportunity of being heard. This implies the following collateral basic rights: - (i) the right to equal treatment before the law, (ii) The right to free access to ordinary courts of the land, (iii) the right to be presumed innocent until proved otherwise by courts of law (iv) the right to legal representation, (v) the right to be heard fully by an impartial court and the right to a speedy trial. (i) The right to equality before the law
In Tanzania this right has not been firmly established by law. Although Article 13 (1) of the Constitution of URT, 1977 provides for this right, the
21
laws of the country like the Government Proceedings Act, 1967 still gives the state and its agencies special rights and treatment. For instance one still has to give a three months notice to the Attorney General before instituting a matter against the State or any governmental body. (ii) The right to free access to Courts
This is another dead provision of the constitution. Article 13 (1) not only provides for equality before the law, but it goes further to declare that every person has a right to be protected by the law and to get equal justice without discrimination. This provision provides, in a rather round about manner, the right to free access to courts. In any event however, the constitution vests the jurisdiction to hear basic rights matters in the High Court.12 The year 2002 passed without increasing High Court registries in the country. There are still only eleven High Court registries in the whole country consisting of twenty-one regions in Tanzania Mainland. Furthermore, not all registries that are in existence have sufficient number of judges. With the exclusion of Dar es Salaam, Mwanza, Arusha, Tanga and Tabora, no registry in the Mainland Tanzania has more than two permanent judges. This report has already pointed out the provision of the Basic Rights and Duties Enforcement Act, 1994 providing that basic rights cases have to be heard by a bench of the three High Court Judges.13 This means that the hearing of such cases must wait until judges are transferred from one registry to another to constitute the full bench required by the law. This situation, coupled with the problem of insufficiency of judges and the endemic problem of insufficiency of funds for travel of judges is bad news for human rights litigation. The results are that many people, who would have otherwise instituted proceedings in court, opt not to go to court.
12
Article 30 (3) of the Constitution of URT, 1977
22
(iii)
The Right of Presumption of Innocence
The Penal Code, Cap 16 of the Laws and the Criminal Procedure Act, still retains non bailable offences. Bail Although Article 13 (6) (b) of the Constitution of URT, 1977 provides that no person shall be treated as a criminal until declared guilt by a competent court, denial of bail in several offences like sedition, treason, murder, and even ordinary offences like robbery with violence flies in the face of this constitutional provision. (iv) The right to legal Representation
This right is not provided for in the Constitution of URT, 1977 although accused persons are allowed to be represented by legal counsels of their choice. The Legal Aid Jurisdiction of Courts Ordinance, 1962 provided for powers of the Chief Justice to give dock briefs to practicing advocates to represent accused persons charged with murder or treason. There is however no comprehensive legal aid scheme and the government has left this area as a no mans land. (v) The Right to be heard
This right is well provided for in Article 13 (6) of the Constitution of URT, 1977. The right to be heard includes observance of rules of natural justice in the hearing of cases and the right of appeal. However, this Report notes that the right of appeal is in many cases theoretical only because the Court of Appeal is composed only of a maximum of 7 justices of appeal. In many instances the mortality rate over strips the rate of appointment of new justices to fill the vacant positions. In the year 2002 the Court was composed of only six justices of Appeal.
13
The Basic Rights and Duties Enforcement Act, 1994, section 10(1)
23
(vi)
The Right to Speedy Trial In Tanzania this right is largely non-existent. Many cases filed remain pending in courts for years due to shortage of judicial personnel or noncompletion of investigations by the police. The primary courts which are the grassroots courts handling the bulk of administration of justice in the country is manned by untrained personnel. Most magistrates in this level are form four leavers with a certificate of law. District Courts are mostly manned by resident magistrates who hold a bachelor of laws degree. There are some District Court Magistrates who have law diploma qualification that is far lower than their jurisdictional competence. Furthermore, the government has not secured magistrates to fill all the vacancies in the judicial establishment. As a result, acute shortage of magistrates has continued this year, despite some attempts to fill some positions here and there. According to the Chief Justice, there are only 640 magistrates in Tanzania, while the required number is 1.105,14 the shortage being 465 which is 41.9%. Lack of judicial officers has led to delay of justice. As the maxim goes, justice delayed is justice denied. Delays are also occasioned by non completion of investigation by the police. There was no improvement in investigations of crimes by the police in the year 2002. These delays reduce the justice administration system to sham. Reasons that are commonly advanced by the prosecution include lack of transport and personnel. In some cases suspects under police custody are not taken to court on the date fixed for the hearing. Consequently, such suspects end up not being granted bail by the courts.
14
The Speech of the Chief Justice of Tanzania His Lordship Barnabas, Samatta in the Graduation Ceremony of The Institute of Judicial Administration (AJA) Lushoto early November this Year (See also Mwananchi, 10th November, 2002 p.3)
24
On the 20th day of April 2002 suspects remanded Segerea remand prison had to boycott eating in protest against delay of their cases. 15 (vi) Denial of Justice Through Corruption There is a saying which says that a hungry and needy person can hardly be a serious source of justice. To this Peter has added that to expect a hungry person to be a fighter for justice is to expect too much from such a person.16 In Tanzania the working conditions of the judicial officers are appalling. Their salaries are too low to meet the cost of living and the court facilities dilapidated and in most cases totally absent. The government has done little to ensure that magistrate get decent accommodation, transport, meal and other necessary wants to give magistrates decent life. The result has been totally devastating, as the whole judicial department is now ridden with corruption. Efforts to investigate and net corrupt judges and magistrates so that such elements should not tarnish the image of the whole justice administration system are not bearing the expected results. This has left the whole question of corruption in the judiciary at the level of sheer allegations and suspicions. This has not helped the Tanzanian judiciary in improving its image but has in effect undermined it and reduced good work being done by some honest judicial officers to ashes. Although there may be other factors for corruption, insufficient personal emoluments cannot be left aside, for as Peter says, justice is occasionally bent to satisfy the needs of those who can fill the judicial officers stomachs. (vii) Independence of the Judiciary
15 16
Mwananchi, May 8th 2002 Chris Maina Peter, Judicial Activism in Tanzania, University of Dar es Salaam, 2000 (Mimeo).
25
In the year 2002 the Tanzanian judiciary demonstrated in two land mark cases its resolve to be independent in dispensing justice. Two constitutional decisions of the Court of Appeal given in a span of nineteen days may help portray this. On February 14th, 2002, the Court of Appeal in the case of Julius Ishengoma Francis Ndyanabo v Attorney General17 invalidated Section 111 (2) of the Elections Act, 1985 as amended by Act No. 4 of 2000. The court held that five million shillings deposit imposed by this provision upon elections petitioners as security for costs, was excessive and unreasonable. The court declared that the provision denied the petitioners of their constitutional right to free access to justice. This decision was hailed by the public at large as a land mark decision in the rights struggles in the country. On the other hand some government officials did not like it. The Speaker of the Parliament for instance reacted bitterly against the decision arguing that the court had usurped the power of the legislature. He said that the legislatures competence to make or unmake laws is not limited by anybody and anything except by the legislators wisdom and use of common sense. 18 This was a curious view indeed because it seemed the Speaker had forgotten that the constitution is the fundamental law of the Republic to which all other laws must conform. It is the duty of the courts to interpret the laws to so that they are consistent with the constitution. The reactions of some members of the parliament and the executive notwithstanding, the Court of Appeal went forward only a week later, to declared another legislative enactment unconstitutional. By its decision given on March 5th, 2002, the Court of Appeal struck down section 4 (2) of the Legal Aid (Criminal Proceedings) Act, 1969 for setting inadequate payments to advocates attending dock briefs by court assignments in the
17
Civil Appeal No. 64 0f 2001 (Court of Appeal of Tanzania Unreported).
26
case of Judge In-Charge of the High Court of Tanzania, at Arusha v. N.I.N. Munuo Nguni19 The executive has not taken these developments kindly. In its October session the Government tabled a bill re-enacting the same provision in the Elections Act that the Court of Appeal knocked down in Ndyanabos case stated above. The provision carries almost the same substance with that of the provision which the Court of Appeal had declared unconstitutional on February 14th, 2002. This is indeed unpleasant situation in building a society adhering to the important principle of independence of the judiciary. It is an essential aspect of the principle that the government should respect judicial decisions even those it dislikes. The re-enactment of the provision almost similar to that which was declared unconstitutional is in fact a disrespect of the judiciary. Right to Life Article 14 of the Constitution provides for right to life and to get protection from the society. Right to life is however not absolute as it is subject to the provisions of other laws of the country. (i) Death Penalty:
The Tanzanian Penal Code provides for death penalty.20 Attempts by the High Court of United Republic of Tanzania to declare this provision unconstitutional in the case of R. v. Mushi Dominic21 were overruled by the Court of Appeal of Tanzania that held that death penalty is not unconstitutional because it is saved by the provisions of article 30 of the Constitution.
18 19
Msekwa, P., on February 27th and 28th 2002. Civil Appeal no. 5 of 1998 (Court of Appeal of Tanzania Unreported) 20 Section 197 of cap 16 21 Criminal Session Case No 14 of 1991
27
Although the High Court of Tanzania and the Court of Appeal continued in this year to sentence capital offenders to death by hanging, it is reported that in the year 2002 no death sentence was executed.22 The President has either kept silent or reduced death penalty to a less severe punishment. Between 1995 and 2002, the President commuted to life imprisonment 100 death sentences imposed on murder convicts. The problem has been lack of mass education and sensitization on the need to abolish death penalty. The general public is still inclined to retributive sentences than alternative measures aimed at corrections. It is worth mentioning that the option of remaining silent keeps the convicts in the death row in perpetual fear and psychological torture. (ii) Child Dumping
The Report notes that incidences of child dumping continued to feature in the daily newspaper reports in the year 2002. Child dumping is an indicator of falling standards of living of the Tanzanian people. These reports indicate increasing rate of poverty and failure by many ordinary Tanzanians to make ends meet. The Government has not instituted special social security programmes for pregnant mothers intended to secure their welfare during and after pregnancy. Time has come for the government to establish such programmes aimed at giving social services security to mothers and children. This will reduce the mortality rate and curb out child dumping. It is important to note that most of the children who are dumped are those born out of wedlock. There is a direct link between economic depravity of the unwed mothers and child dumping. Since neither the father nor the society is statutorily bound to ensure the welfare of the child, unwed mothers find the economic burden of child upkeep too heavy to carry. Notably the Affiliation Ordinance has never been amended since it was enacted in 1953. This law requires a father of a child born out of wedlock to pay for the maintenance and education of the child. The rate fixed by the law is not more than one hundred shillings per month. This makes a total of one thousand and two hundred shillings per year, which
22
Seif Khatib , Minister for Home Affairs, Guardian , April 11th 2002
28
is equivalent to ten cent of a dollar per month or 1.2 U.S. dollars per year. This is a very rigidly enacted law that defeats the purpose for which it was enacted. Its life in the countrys statute books is a mockery of the rights of a child. Since help from relatives is hardly available these days, some poor mothers are left with no option but to dump their babies. The Commission on the Change of Law Relating to Children, which the Law Reform Commission appointed in 1986, submitted its report eight years ago, recommending amendment of this law, among other changes. It is not clear why the Government has not changed this law to accommodate changed economic circumstances. (iii) Mwembechai Killings
Two persons were shot dead at Mwembechai in Dar es Salaam following police clamp down of peaceful demonstrators. It was alleged that the demonstrators were protesting against Government interference in their freedom of worship. It was also speculated that they were Moslems. Police used live bullets against them killing two and injuring several others. The use of live bullets against peaceful demonstrators was clearly a violation of human rights by the state. Later it turned out that some of the demonstrators were Christians, a fact that lend credence to the view that religion was only the cover used to express a more deep social unrest arising whose roots are to be found in the deepening poverty among the wider sections of the population. (iv) States Failure to Maintain Law and Order
This report notes that in the year 2002 there were numerous reports of deaths resulting from acts of robbery and house breaking. These reports covering the pages of daily and weekly tabloids are a clear indication that the Police Force is failing to contain the crime wave. This is mostly demonstrable in cases of mob justice where lack of public confidence in the ability of the police to deal with suspects has given birth to mob justice. This is abuse of the rule of law by members of the public taking laws in their hands against suspects.
29
The Police Force is badly equipped, trained and remunerated. Members of the civil society and of Parliament have raised concern regarding the ill equipment, training and remuneration of the Police Force. These weaknesses explain the increase of corruption in the Police. This situation worsened in the year 2002 to the extent of prompting some legislators to propose that the Police Force should be disbanded. The response to this suggestion by the Inspector General of Police Omar Mahita was bitter. Although he admitted the failure of the police force to deal with criminals, he attributed this to lack of funds and facilities to meet the challenges of growing crime. The IGP called on the parliament to allocate more financial resources to the Police Force instead of allocating a lot of money for itself. This prompted exchange of words between the IGP and the legislators, an instance that gave chance to the public to partake in a lively debate that revealed that a lot remains to be done before Tanzanians may enjoy the rule of law and good governance. Presumption of Innocence In accordance with Article 15 (i) and (2) of the Constitution every person has the right to freedom and liberty and is presumed innocent until pronounced guilty by a competent court of law. The police and prison departments can only execute punishment imposed by the courts. They cannot to make judgment by themselves and punish suspects. However in 2002 there are many reported cases where members of the Police are alleged to have taken the law in their hands. These cases include beating suspects and using excessive force during arrest, investigation and custodial processes. The Reports now turns briefly to some instances revealing the state of violations. (i). Violation of Human Rights by Coercive Organs of State It was reported in mid-2002 that some prison officers had beaten up some city bus conductors in Dar es Salaam for allegedly wearing uniforms similar to those worn by prison officers. This was condemned by the public at large. A similar incident took place on 8th September 2002 when soldiers from Mgulani National Service invaded Kariakoo area and forcefully undressed some civil militia of Ilala municipality at Kariakoo for
30
wearing uniforms that resembled those worn by them. They left the poor municipality militia half naked in their underpants. On the 1st October, 2002, the press reported that members of the Tanzania Peoples Defence Forces had invaded the Kunduchi Police Station in the night of September 28th with the aim of liberating from police custody a soldier who had allegedly been caught inflagrante delicto with somebodys wife23. The soldiers allegedly ordered the Police Officer on duty to release imprisoned soldier. The register of detainees showed that no such soldier had been incarcerated in the police custody. The soldiers having discovered the futility of their mission, threatened to beat the policemen who then run away leaving the military men in full control of the police station. The soldiers then broke into the remand prison where suspects are kept. When they could not see the detained soldier, they shifted their anger to lamps in the police station building and the civilian residents living near the police station. According to the newspaper reports several residents were beaten up and a lot of properties in the surroundings including some cars damaged. MAJIRA identified two cars with registration numbers TZL 7733 and TZM 6853 as some of the damaged properties. On the 29th October, 2002 about twenty soldiers from the same camp attacked a bar owned by one Willy Lemma. They beat the bar owner and his clients. They also damaged a television in the bar. According to MAJIRA the soldiers had been angered by reports that implicated them in allegations of adultery and fornication. (ii) Treatment of Suspects and Mob Justice It is reported that in the year 2002 there were reports that the police harassed and tortured suspects and in other instances using excessive force that resulted in deaths. There were also reports of mob justice by members of the public. On 24th March 2002 Mr. Rajab Seleman (20), was marched naked at Kikwajuni Zanzibar before being beaten to death by an angry mob on allegation that he was a thief. Some people who knew him had tried to warn the mob that the suspect is mentally incapacitated but none paid attention to this
23
Majira 1st, October 2002
31
information.24 Similarly on 4th March 2002 an unidentified person was stoned to death by an angry mob on allegation that he was involved in breaking into a shop at Mbagala Kimbangulile Dar es Salaam.25 On 22nd July 2002 it was reported that an unknown person was burnt to death by angry mob for allegedly attempting to steal.26 Similarly on 1st May 2002 two persons, Wiliam Inyasi and Roisi Mzee were stoned to death on suspicion that they had taken part in theft.27 On the 9th May 2002 Daniel Theodore (22) was beaten to death on allegations of commission of arson.28 Other mob justice victims include three persons killed in Iringa and one Shija Julius killed in Mbezi, Dar es Salaam on suspicion of having stolen four sacks of coffee.29 It is obvious the failure of the justice administration system to administer justice to the satisfaction of the general public is one of the main causes of the mob justice culture. The insecurity resulting from inefficient handling of criminals creates a wave of desperation in the general public. The unproven belief is that killing suspected criminals may finally put an end to crime. The facts on the ground are that Police investigation is inefficient and slow. In many cases evidence is lost and suspects with sufficient means succeed in buying their freedom not only from the Police but also from the Courts. Such suspects become even more dangerous to the public than before their arraignment. The public feels safer to kill them than allow them to come back and cause more damage to the society by executing revenge reprisals. The government is to be blamed for failure to promote human rights education among the majority of the Tanzanians. Lack of civic education schemes means that the majority of the people are unaware of the law. This explains why most members of the civil society believe that they are committing no crime in partaking in mob justice.
24 25
Daily News 29th day of March 2002 Daily News 5th day of March 2002. 26 Daily News 23rd day of July 2002 27 Majira 2nd May the 2002 28 Majira 10th day of May 2002 29 Nipashe, 29th July 2002 & 17th August, 2002
32
The Prevention of Terrorism Act In the year 2002 Tanzania like many members of the international community enacted a prevention of terrorism law. The Parliament passed the Prevention of Terrorism Act of 2002 on the 5th day of November 2002. This was in consonance with the wave of terrorism acts that had hit the world in series of acts leading to the bombing of the World Trade Centre in New York in September 11th 2001. The objectives of the Act is to prevent both domestic and international terrorism. The Prevention of Terrorism Act is by all standards a bad law because it abrogates human rights guaranteed by the Constitution. The new law carries provisions that totally disregard some of the basic human rights such as the right of presumption of innocence. Section 12 (2) of the Act for example empowers the Minister for Home Affairs to declare any person he considers appropriate to be a suspect of international terrorism. Pursuant to the provisions of section 12 (5) of the same Act, the Minister may make regulations to allow among others, seizing of some properties of any person or group of persons believed to be terrorist. The Act does not say whether or not after being declared a suspected international terrorist, the suspect will be taken to Court for trial. The Act does not define who a terrorist is supposed to be. The Act only enumerates acts which amount to terrorism. It totally subjects basic individual right to the discretion of the Minister. The Act provides further for the exemption of security officers from any liability rising from investigation of terrorism even if it causes death of a person. This provision contravenes the right to presumption of innocence and the constitutional right to life. The Act not only gives the Police powers of arrest without warrant any person who has committed or whom the Police has reasonable grounds of suspecting to have committed or to be committing an offence but it also allows for powers to intercept communications in this way invading the right to privacy.30
30
See Part V section 31 of the Prevention of Terrorism Act, 2002
33
Treatment of Prisoners The state of prisons, detention camps and remand prisons is bad due to overcrowding, poor food and health services. Inadequate essentials of life contravenes the provisions of article 13(6)(e) of the constitution, which prohibit torture or inhuman degrading punishment or treatment. The government has not made it a priority to allocate more funds required to change the correctional services being undertaken by the Tanzania Prisons service. A practical example of bad treatment conditions is the Rujewa incident where 17 remanded suspects at Mbarali police station in Mbeya died of suffocation on the 17th November 2002 as a result of overcrowding.31 The 17 dead remand prisoners were among the 112 remand suspects who were detained in a small room capable of accommodating only 30 persons. The government acted by firing a few low-level government officials but no senior authority like say the Minister for Home Affairs took political responsibility. As usual the culture of taking political responsibility has not found a fertile germinating ground in the Tanzanian political elite. One has to threaten violence before a Minister may consider resigning as a result of any mishap in his or her Ministry. In this case no further action has been taken to ensure that remand prisons conditions are improved. On September 18th, 2002 MAJIRA reported that in Tarime Prison in Mara region, prisoners and detainees were walking naked for lack of clothes. It was said that those who had no clothes were not allowed to go out of the prison. Those who were dressed were seen in torn-up clothes that exposed their private parts. It was reported that similar situation prevailed in other prisons in Mara Region especially that of Kyabakari. The Prisons department has not yet given its comments on this newspaper report.
31
LHRC, the leading human rights NGO in Tanzania sent an investigation team to Rujewa in November 2002 which found out that the Reports on the deaths of remand prisoners were true.
34
Allegations of Torture Bahati alleged that once the Magomeni police officers made police dogs bite his legs and hips while in prison. Bahati, who was formerly a military officer of the Tanzania Peoples Defence Forces, explained some special torture inflicted upon him by Magomeni police, who used to place pieces of newspapers around his private parts and then set them on fire. I was burning but what could I do, for after they had done so they kicked me and then went out.32 The other suspect Hamisi told the newsmen that he used to receive beatings on every party of his body. The two men had been charged with the offence of murder which took twelve years before the case was heard. They were acquitted. The government reacted by a statement by Commissioner of the Police, Mr. Aden Mwamunyange who said that the Police Force was shocked with the report and that investigation into the matter would immediately follow.33 Beating suspects in police custody seems to be a common practice in Tanzanian police stations. On 27th October 2002 it was reported in MWANANCHI newspaper that one Renatus Vedastus had been severely beaten by police while in custody at Kirumba Police Station. It reported that the beating was so serious that Renatus had to be admitted at Bugando Hospitals intensive care unit. The victim had been arrested after being suspected of involvement in robbery. Another person called Makena Chacha was reported to have been beaten to death while in police custody at the same Kirumba police station.34 MAJIRA reported in its September 9th issue that prisoners at Keko prison and Magomeni Remand Prison were being subjected to torture. Two detainees, to wit, Jafari Bahati and Said Hamis, who were imprisoned for 12 years but eventually found innocent, showed the MAJIRA newsmen some marks of injuries on their bodies to support their allegations of torture in prison.
32 33
Majira 6th September 2002. Majira 9th September, 2002. 34 Mwananchi 7th November 2002
35
There is no doubt that prison conditions in Tanzania are far from satisfactory. Two issues come out clearly here, namely the relative lack of human rights awareness by prisons officers and the meagre resources allocated to the Prisons Department especially in relation to capital development. Both require prompt Government intervention in terms of human rights training of law enforcement officers and budget allocation to ease congestion in prisons. Subjecting prisoners to congestion amounts to inhuman treatment and breach of human rights by the state. Inhuman prison conditions have been confirmed by some of the 14 members of the Tanzania Labour Party (TLP) incarcerated in Keko and Segerea remand prisons in January 2002 reportedly equated prisons in Tanzania with a hell.35 Mr. Taslima, advocate for the accused in was quoted saying that Prison authority has reached a point where they deny our clients water which is a basic daily need.36 Although Prisons Authorities have consistently denied these allegations, one could hardly doubt a statement by such a distinguished Advocate. The Freedom of Assembly One of the omissions in the Tanzanian bill of rights is the freedom of assembly. Already opposition political parties are agitating for the inclusion of this basic right in the Tanzanian bill of rights. As is normally acknowledged in constitutional law, failure to guarantee of any right does not entitle the government to violate such right. Basic rights are fundamental and inalienable. Their enjoyment does not depend on their being provided for in a constitutional text. In the year 2002, the government committed various acts of violation of the right of assembly. It banned public meetings especially those organized by political parties. On the 21st January 2002 some CUF members organized themselves at Buguruni Kwa Mnyamani, Ilala, Dar es Salaam to express their dissatisfaction with the local government election results. The police force reacted vigorously to disband the agitated people in the
35 36
LHRC Human Rights Report, 2002 Daily News, 20th March, 2002
36
course of which teargas and guns were employed. No life was lost, although five persons were arrested in connection with that event. On 19th October 2002 the police force suppressed an open meeting organized by TLP in Arusha, which meeting was to be addressed by Mr. Augustine Mrema, the Chairman of the Party. Among the reasons put forward by the police force for suppressing that meeting was lack of security and the official visit of the Prime Minister in Arusha. TLP had reported to police about the meeting four days earlier.37 The same type of treatment befell the Secretary General of CUF, Mr. Seif Sharrif Hamad who was restrained by the police from convening a public rally at Mtende Village in Zanzibar on the ground that it could disturb law and order.38 Freedom of Demonstration Another basic freedom that has not been guaranteed by the Tanzanian constitution is freedom of demonstration. The Government has acted to restrict the freedom of demonstration by insisting that those who want to demonstrate or assembly must first get okay from the police. The law provides that notice of demonstration or assembly must be made to the police 48 hours before the event. This provision does not vest the police with powers to grant permission for demonstrations or public meetings. It is a provision intended to enable the police to provide security for the demonstrators or those assembled in public meetings. The police is empowered to stop a demonstration or public meeting from being held if it apprehends that the activity will lead to breach of peace or will create problems for another group exercising same right in the same area at the same time. In the year 2002 the police took advantage of this provision to ban a special prayer, hitma organized by a Muslim group at Mwembechai, in Dar es Salaam on February 13th, 2002 to commemorate the Mwembechai fracas of 1998.
37 38
Mwananchi 20th October 2002. Mwananchi 2nd November 2002
37
The demonstration took place despite the police ban as a result of which fighting broke out between the police and the demonstrators. Police confirmed deaths of two and arrest of 53 persons. Those who died were PC Said (26) Force No. 2080, a policeman and Musa Mtunguja (25), a carpenter. Among the fifty-three arrested demonstrators were two Muslim clerics, namely Sheiks Ponda and Kunducha. On April 10th, 2002, police in Dar es Salaam banned another demonstration organised by an unnamed Islamic Institution scheduled to take place on 12 April 2002 after Friday prayers. The demonstration was aimed at pressurizing the Authorities to release Sheiks Kunducha and Ponda. The police went further to ban a demonstration by the Organisation of Drivers and Daladala Bus Conductors in Dar es Salaam that was to be held April, 2002. The Spokesman for the Association had given a public statement on 23rd April 2002 that members of his organization would demonstrate to protest against free bus boarding for the police. In June, Muslims in Dar es Salaam notified the police force of their intention to demonstrate peacefully on July 4, 2002 in protest against ill treatment by the state. The demonstration was banned and many of those who decided to demonstrate were arrested. Several other demonstrations that were reported to have been banned by the Police include that of Dar es Salaam Secondary Schools Muslim students who had wanted to protest against violation of what they called their religious rights by Education Authorities in September, 2002, Tanzania Labour Party (TLP) demonstration in January, 2002 and the Dar es Salaam vendors (Wamachinga) demonstration in February 14th, 2002.39 Freedom of Religion Article 19 of the Constitution provides for freedom of religion. This right is generally speaking, respected by the Government subject to measures which are, in its opinion, necessary for maintenance of peace and order. In May 2002, it was reported that some Muslim students of Minaki Secondary School in Kisarawe demonstrated to protest the
39
LHRC Human Rights Report , 20002
38
use of students public utensils for consumption of pork. The demonstration was suppressed by the Field Force unit of police and some of the students were arrested and put under police custody for a day. The School Board ordered some of the students who organized the demonstration to be discontinued from their studies and others be suspended.40 The Tanzanian Muslim Students Association (TAMSA) blamed the school administration and the Ministry of Education for not respecting the rights of those whose religions do not allow eating pork. In another similar event, some Christian students of Sokoine University were suspended from studies for refusing to sit for examination on the day on which, in accordance with their beliefs, it is prohibited to work. The students blamed the university administration for not respecting their right to worship. PART FOUR
ECONOMICAL, SOCIAL AND CULTURAL RIGHTS
Introduction According to the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966 an individual is entitled to enjoy as a group or individually, economic social and cultural rights as part of guaranteed basic rights and freedoms. These rights include the right to self- determination, right to work, right to favourable conditions of work, right to fair remuneration, right to social security, right to found a family, adequate standard of living for oneself and ones family, standard physical and mental health, education, right to take part in cultural life and enjoy benefits of scientific progress and right to form trade union of ones choice.
40
Mwananchi 4th May 2002.
39
Tanzania ratified the ICESCR in 1976 but has modified it not to include as part of the guaranteed rights some basic rights like the right to work, education and health.41 The Right to Education The ICESCR provides for the right to education and requires member states to provide compulsory free education for all at a particular level capable to empower the individual to lead a respectable life as a law abiding member of the society. The state must ensure that the content of the syllabus is adequate to equip the individual so educated to earn a descent living in his community. Article 11 of the Tanzanian Constitution recognizes the right to education but does not impose upon the government any specific duty to comply with this right, or to ensure quality. The right to education is contained in chapter two of the constitution, which consists of directive state policies.42 The Education Act of 1978 provides for seven years compulsory primary education. To this extent the government of Tanzania has invariably attempted to provide free and compulsory education at primary level. Historical data indicates that illiteracy levels at independence in 1962 was 90%. To date this level has dropped to below 20%43. The government has however failed to maintain universal primary school attendance and the quality of the education given has fallen immeasurably. In 1986 the government introduced World Bank inspired cost sharing policy at all levels of education. Parents were required to contribute to the education of their children although it was apparent that they had no income to do so. The effect of this policy was fall in registration of pupils at primary school and secondary school levels. This led to a general drop of both illiteracy ratio and number of children in higher institutions of learning. By the year 2001 the primary school enrolment was only 57% as compared to 83% in 1986. About 47% of the primary school age children were
Constitution of the United Republic of Tanzania, 1977 Article 25 Michael Wambali, Democracy and Human Rights in Tanzania Mainland, PhD Thesis, University of Warwick, 1997 43 NECTA, 1986.
42
41
40
not being enrolled for schooling mainly because their parents were poor.44 This has prompted the government to abolish cost sharing in respect of primary schools. The government has instituted a programme known as Education For All (EFA) whose objective is to enrol all the primary school age going children every year. It is expected that the rate of primary school enrolment will increase from 57% in 2001 up to 70% in 2003. The number of the children who are in primary schools will increase from 78% in 2001 to 85% in 2002. Although this is basically a donor driven programme, it has succeeded in enrolling more than 1, 500,000 primary school age children in 200245. Corresponding to the increase of the number of the students, the government has employed an additional 7000 teachers this year. The ICESCR provides that secondary education shall be made generally available and accessible to all depending on the means available to a member state. The Governments cost sharing policy is fully operational in respect of secondary and higher education. The government has introduced education loan that are given on the basis of two criteria, namely, merit of the educational performance and Tanzanian citizenship. It is apparent however that educational loans are given to those students attending state universities only. Those attending private universities are not eligible. This is discriminatory against those Tanzanian children who have merit but cannot be absorbed into state universities. For many years Tanzania had only two state universities namely, the University of Dar es Salaam and Sokoine University of Agriculture. There are now more than eight universities in Tanzania. The government has failed to increase its education budget to cope with increasing numbers and basic requirements of higher education. Therefore the state universities have no capacity to enrol all eligible candidates. It is suggested that the government should consider changing its policy to allow eligible Tanzanian students attending private universities to benefit from education loans.
The Minister of Education Hon Joseph Mungai quoted by MAJIRA 5th September, 2002 This was stated by President Benjamin Mkapa while opening the 8th Conference of the Ministers of Education of Africa on December 3rd 2002 Nipashe 4th December 2002
45
44
41
This report notes that the learning environment in Tanzania is not improving. A recent research on primary school enrolment has revealed that the number of primary school age children has been increasing at higher rate than vacancies available for enrolment in the schools. In the year 2002 for example, about 214 students who were expected to be enrolled at Bwawani Primary School in Karatu, Arusha could not be enrolled for lack of classrooms.46 There is also a need to balance enrolment with number of teaching staff on the one hand and spending on capital development by building new buildings and installing requisite modern facilities of learning that go hand in hand with the development of science and technology on the other hand. At the same time salaries and emoluments of the teaching staff from primary to university level must be reviewed to make teaching a profession worth practicing. Right to Work The right to work is part and parcel of the basic rights enumerated in the ICESCR. This right includes enjoyment of favourable conditions of work and fair remuneration. The Tanzanian Constitution recognizes this right as a directive principle under Article 11(1) but does not recognize it as a justiciable basic right. In the year 2002 Tanzania witnessed increasing shrinkage of the labour market due to privatisation. A total of 13 public corporations were divested in the year 2002 and 130 non-core units. This made the total number of privatised public corporations to 259 and 210 non-core assets.47 Retrenchment of workers went ahead without forward planning for redeployment. Although the government policy has been to finance retrenchment from central government sources, poor retrenchment package and delay affecting the pay-off has led to labour unrest. Workers in the Tanzania Electric Company Ltd (TANESCO) Tanzania Railways Corporation (TRC), Friendship Textile Mills (URAFIKI), Tanzania Telephone and Telecommunications Limited (TTCL) and the National Bank of Commerce all went
46 47
Majira 28th February 2002. Privatisation in Tanzania, Annual Review 2001/2002 , October 2002
42
on strike due to lack of involvement and refusal by the management to offer fair retrenchment package. The situation is that while the job market has continued to shrink, the labour law regime has remained stagnant. The government has not effected expected amendment of labour laws to provide for a flexible growth of wages and employment benefits to meet the cost of living. Wages have remained below poverty datum line as a result of which productivity has declined while corruption has risen to unprecedented levels. The workers in most of the privatized public enterprises are complaining that the government is restructuring the economy without restructuring the labour regime. It is also true that workers have always been kept in the dark about the privatisation of their enterprises until a deal with the new investor has been struck. This has instilled feelings of insecurity among the workers who are normally not told how their rights will be protected under the new management. Normally the workers are presented with a fait accompli and have either to accept the new terms or lose employment. This has created anti-foreign investment climate. The tendency to sell most lucrative public corporations to investors from only one country, notably, South Africa has also thrown mud to the privatisation exercise implying that corruption might be playing some role. The control of the state of income structure in the labour market has remained hegemonic just as it was during the centrally planned economy. Minimum wages has remained low, although they were raised from 46 American dollars a month to 50 effective from July 2002. In real life minimum expenditure on basic needs for an individual worker is well above 250 American dollars per month. The government has itself been a very unreliable employer by failing to pay salaries and allowances in time. Government servants have invariably complained of delay of payment of their wages. For instance about 400 secondary school teachers who were employed in January this year had received no salary as on November 5th 2002 for the reason that their names were not yet computerized.48
48
This was disclosed by the Deputy Secretary of the Teachers. Association of Tanzania (CWT) as quoted by Mwananchi 6th November 2002
43
Failure to pay living wages and to respect the pay has made government servants prone to corruption. The bongoland culture which means using all ingenuity to fend for ones self has emerged and taken root. This has meant collapse of ethics and accountability and prevalence of dishonesty and corruption as a means of making ends meet. This has undermined good governance and economic development. The government is to blame for this situation. Right to Health The health system in Tanzania has collapsed. During the socialist epoch, the government had a proper curative and preventive health policies that ensured health and medicare for the majority of Tanzanians. Preventive medicine included continuing public awareness campaigns aimed at making the common people aware of the necessity to live in healthy and clean environment and to take measures to prevent disease. Every citizen was entitled to medicare and could walk into a dispensary close to his or her residence for treatment. A network of rural dispensaries and health centres manned by government medical officers meant that primary health care was available to all. District and regional hospital undertook the role of both referral and first instance cases. Five national referral hospitals were put in place to take care of the complicated cases. Of the five, Muhimbili Medical Centre in Dar es Salaam is also a teaching hospital that is part of the University of Dar es Salaams Muhimbili College of Medical Sciences (MUCHS). The failure of the government to allocate sufficient financial resources to the medicare system has meant that the while system fell into neglect, dispensaries and health centres were closed or left empty without doctors or medicines. District and regional hospitals also fell into neglect with deteriorating infrastructure and lack of competent medical personnel. Over and above these weaknesses, the introduction of cost sharing in health services has left much to be desired. Medicines are sold at very high prices that ordinary people cannot afford. Although the government offers free medical service in its hospitals and dispensaries for certain diseases such as TB and cholera, these are not the common diseases that affect the majority of the people.
44
Furthermore sometimes old persons have been required to pay cost for their medical care despite the provisions in the health policy entitling them to free medical services. It was for instance reported in the local newspapers that some old persons in Tabora were denied health services for failing to pay for the services.49 As if that is not enough, the government banned the use of chloroquine tablets that had been used as the first drugs of prescription for malaria treatment in Tanzania for the past years. The main reason the government gave behind this decision was that the tablets had proved incapable of fighting malaria in many malaria patients. So, the government introduced sulfadoxine pyrimethamine (SP) in place of Chloroquine. This decision was not well taken by many people, including some private medical practitioners. They thought that in spite of some defects, chloroquine is still effective and affordable. The government admits that chloroquine was able to cure about 48% of the patients.50 The newly introduced tablets were not available in many rural locations and are too expensive for the people to afford. In the year 2002 it was reported that in several parts of Tanzanian girls and women are being abused through the practice of partial or total removal of the clitoris in their genitalia causing injury and severe pain to the victim. This practice, known as female genital mutilation (FGM) damages physical and mental health of the victim permanently and it does not have any medical justification. FGM is practiced in Kilimanjaro, Arusha, Manyara, Dodoma, Mara, Singida, Iringa, Mtwara and Morogoro regions. In Dodoma, for example, 12,613 out of 16,789 (75%) women who went for delivery between 1998 and 2000 were mutilated. This was noted by Fortunata Makavu, the Women Wake Up Group Secretary on March 4th, 2002 when briefing journalists on the state of FGM in the region.51
49 50
Daily News 13th March 2002 Guardian 2nd February 2002 51 Daily News 5th March 2002
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Descent Standard of Living The Constitution of the United Republic of Tanzania does not guarantee in clear and express terms the right to a decent living. The closest guarantee of this right is found in the provisions of Article 14, which provides for the right to life and to obtain from society protection of ones life in accordance with the law. The claw-back clause in accordance with the law notwithstanding, it is unclear whether the interpretation of this provision imposes upon the state the condition to ensure that every citizen lives a decent life. This is an anomaly in a country purporting to have been pursuing socialist policies. It is now evident that Tanzanias entry into capitalism has been a nightmare to majority of its people. The state took no steps to empower the people with requisite tools for capitalist entrepreneurship. The consequence has been the growth of a predatory capitalism that has left the majority of people in abject poverty. Living standards have sunk to unacceptable levels. In cities less than half of the inhabitants earn a daily income 30 cents of a dollar. Absence of a social welfare policy means that no attempts are being made to create an accountable national capitalist economy. Life in the rural areas is a misery of malnutrition and diseases. The rural electrification programme and trunk roads programmes have been allowed to collapse. Villages are not only starved of alternative energy sources but they are also inaccessible by road. Tree cutting for fuel continues without any replanting of trees and generally life is a misery. In both urban and rural areas superstition is the foundation of the hope for a better tomorrow. In Shinyanga and Mwanza witch hunting is still a problem and many old women have been tortured and killed for being suspected of being witches. The gap between rural and urban communities is increasing as a result of which there is an explosion of migrant labour in urban centres. The majority of unemployed are young persons flowing out of schools and colleges. This has led to commodity peddling, begging and crime explosion. Although it is not the duty of the state to grant any of the economic, social and cultural rights, the ICESRC requires state parties to take steps to the maximum of available
46
resources in facilitating the enjoyment of these rights.52 It is therefore understandable that in developed countries the level of enjoyment of these rights may be higher than that in underdeveloped countries. Assessment of any success or failure in facilitating economic, social and cultural rights must always take into account the resources available in its national economy.53 Permanent Sovereignty Over Natural Resources The year 2002 Tanzania implemented further her economic reforms aimed at creating capitalist economic system as a replacement of the socialist system it has put in place during the Nyerere era. The capitalist policies were nick named market economic policies a sympathetic name aimed at pacifying the masses of poor people who had been made to believe that capitalism is evil, and cruel. The majority of poor people had been made to believe that their economic salvation lies with the socialist system that had created a big state sector and a fledgling co-operative system. The new capitalist policy was geared at securing in the shortest possible time as much foreign investments as possible. It was also aimed at privatising the state sector. In the new system nationals have played a minor role mainly because the assets divested to them are mainly those whose value is negligible. Going by PSRCs own admission, the method used to divest public enterprises to Tanzanians was through outright sale, share sale and management buy out.54 These methods mean that a national must have capital funds at hand to buy into any divestiture, an approach which PSRC never uses in respect of foreign buyers. Foreign buyers come in with bank guarantees and finally end up paying very little or through bank financing. Sometimes foreign buyers sell part of the rolling stock or non-core assets initially bought at knock down prices to raise capital. In the National Bank of Commerce divestiture for instance, the paid 12 million US dollars out of 15 million dollars sale price and the whole sum was used to re-capitalise the bank without the foreign buyer paying nothing else in respect of the 70% shares it
52 53
Article 2(1) Article 2(3) 54 See Privatisation in Tanzania, Annual Review 2001/2002 of October 2002 at p. 8
47
holds in the bank. In fact the divestiture agreement even entitled the foreign buyer an equal share of the difference in exchange value of the sell price when converted into local currency. Purportedly the new divested bank was paid an additional 15 million dollars equivalent in Tanzanian shillings as inter agency payments from the National Micro Finance Bank that had been established from the less profitable assets of the divested bank. Many complaints have been made against privatising at knock down prices to foreigners, leaving the nationals empty handed. The nationals know that it was their taxes that created the state sector and that any privatisation programme had to empower them to take over the state sector instead of giving it away to foreigners. Foreigners could be invited to make new investments but not to take over the local economic assets that needed only restructuring to be turned round. Further more most Tanzanians are unhappy about the governments policy of allowing foreigners to exploit the countrys natural resources without any control. This has affected the mining, forestry and game reserves. Foreign companies have been given concessions to exploit these resources under very dubious and unconscionable terms that leaves the country in the state of a victim of rape. Very little revenue is being collected from these sectors because foreign companies have a free hand in exploiting the resources without proper accounting. In fact the 3% royalties being paid to the government are too low to make any sense to anyone. In Bulyanhulu and Geita in Shinyanga, thousands of natives have been removed from their land go give way to gold mining being undertaken by foreign multinationals Barrick Gold from Canada, Kahama Gold Mining , Golden Pride and Ashanti Gold mines. In Mererani in Arusha a South African mining company (AFGEM) has taken over the mining of a rare gem known as Tanzanite at the exclusion of local miners. In the meanwhile, local communities have been routed out of their land to give way to the foreign companies that have been given rights to exploit the natural resources. In Hannang Districts the Barbaig pastoralists have been fighting a life and death struggle to wrest their land from the state company natural Agricultural and Food Corporation
48
(NAFCO). This state company has now been specified for sale but the pastoralists are still prosecuting two major court cases, namely Yoke Gwaku and 6 others versus NAFCO AND OTHERS, and Ako Gembul and 10 Others versus National Agricultural and Food Corporation (NAFCO) and Others.55 There is seemingly a concerted attempt at pillaging Tanzanias natural resources in the manner it has happened in DRC Congo and other African Countries. The World Bank has overseen these processes and blessed them as if there is nothing wrong with them. This brings forward the question of international corporate alliance against underdeveloped countries. An ideology of poverty reduction is peddled on one hand, while on the other billions of dollars are reaped and taken out of the so-called poor and underdeveloped economies. Rights of Vulnerable Groups In human rights jurisprudence today, economic, social and cultural rights include giving special protection to vulnerable groups. These are those special categories of people who stand in weak or insecure position vis--vis the other members of the civil society generally. Children, women, disabled and refugees must be given special protection by the law. Children are considered weak in relation to others because of their mental and physical immaturity, women are considered vulnerable in light of the historical social set up which has degraded them in many aspects of life while the disabled are considered vulnerable because of their physical or mental incapacity. Refugees are considered vulnerable because they have been forced to emigrate from their countries to foreign countries. Tanzanian record in 2002 in respect of each of this rights is as follows: (i) Childrens Rights In 1986 the Law Reform Commission of Tanzania appointed an eight persons Child Law Reform Working Group to review the laws relating to children. The Commission found out that the law relating to children in Tanzania has weaknesses that require
55
Civil Case no. 12 0f 1989 (High Court at Arusha)
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amendments. In April 1994 the Working Group, chaired by Dr. R.W. Tenga, submitted its report that pointed out the various areas of the law that ought to be amended. Since then no substantial legislative reform has been made. NGOs have undertaken concerted campaign aimed at making the government change the laws in this area. Such laws include the Affiliation Ordinance, Chapter 278 of the Laws of Tanzania. The Affiliation Ordinance lays down a complicated procedure that must be followed in establishing fatherhood of a child born out of wedlock and it lays down an inflexible formula of money to be paid by the father for his childs maintenance. According to the provisions of this law the child is entitled to a sum of money not exceeding Tanzanian shillings one hundred, an amount that can not buy a chewing gum. This amount, was set in 1949 when the ordinance was enacted and has remained unchanged despite changes in the economic situation. In these circumstances the law throws the burden of maintenance of such a child only on the shoulders of the mother. The fact is that many mothers who give birth to children out of wedlock remain unmarried and a good number of them who are poor can hardly manage their own living expenses let alone those of their kids. Consequently the year 2002 witnessed increasing acts of child dumping and growth of the number of street children. Children who have escaped dumping have suffered from low standard of care from their mothers despite the relatively better economic situation of their fathers. The growth of the number of street children goes hand in hand with the problem of juvenile delinquency. Tanzania has very few children reform homes and many children and young persons have found themselves being treated as adults by the law. The definition of a child under the Children and Young Persons Ordinance, Cap 13 excludes persons of between sixteen and eighteen years. Section 22 (1) of the Ordinance excludes children of below twelve years from the punishment of imprisonment in any case. However (1) of this Ordinance absolutely denies a young person an opportunity of being released on bail when charged with an offence involving a punishment of seven years imprisonment.
50
Sections 131 (2) (c), 131 (3) and sections 15 (2) and (3) of the Penal Code read together with Sections 4 and 5 of the Evidence Act, 1967 makes it possible for a child under twelve years to suffer not just imprisonment but life imprisonment if he commits the offence of rape. This situation is a result of the new Sexual Offences Special Provisions Act, 1998 that has taken away some of the basic privileges that were given to children by the Children and Young Persons Ordinance. It should be recalled that the adult justice system allows bail to be granted even in respect of some offences involving life imprisonment, for example arson under section 319 of the Penal Code56 It is not reasonable therefore that child law should impose more stringent penalties to children that to adults committing similar offences. Section 13 (2) of the Law of Marriage Act, 1971 allows marriage of a female persons of fourteen years. It should be recalled that in terms of section 130 (e) of the Penal Code such persons have not attained capacity to consent to sexual intercourse, let alone understanding the implications of being married. This report nevertheless notes that Section 138 (6) of the Penal Code recognizes a marriage of a female person of any age. It would seem therefore that the slowness of the government in effecting the much-needed changes and the relative insensitivity that official policies and the law has for children rights could lead one to conclude that children rights do not figure high on the agenda of the government. One requirement of ensuring the dignity of a child on trial is by giving it a separate trial and custody from adults. In Tanzania, with the exception of Ilala District that has a separate facility for juvenile court at Kisutu in Dar es Salaam. Other juvenile courts in the country continue to use District Court facilities due to lack of separate buildings pursuant to section 3 of the Children and Young Persons Ordinance (cap. 13). Courts are expected to comply with the minimum standards of childrens basic rights by at least holding children courts sessions in a different building or room from those being used by adults.57 Researchers have observed that magistrates and police offices normally mix
56 57
See section 148(5) (a) of the Criminal Procedure Act, 1985 See section 3 of the Children and Young Persons Ordinance, Chapter 13 of the laws of Tanzania.
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children with adults.58 Magistrates in Tanzania have complained about lack of adequate specialised training in child law.59 There are no indications that the government will retrain its judicial officers on child law in the near future. It is perhaps lack of specialised training that has contributed to bad sentencing practice of using custodial sentences instead of sending the convicted children to reformatory schools to be rehabilitated and educated. Another reason for this is lack of such schools in Tanzania. There is only one such school in Tanzania catering for boys only. This school is known as the Ilambo Approved School in Mbeya. It is obvious that the number of children that can be accommodated in this school is smaller than the number of children convicts. It is also obvious that there is no such facility in respect of female children. Similarly lack of children remand homes has meant that children are either kept in police stations or in ordinary remand used for adult inmates. Research conducted by the Legal and Human Rights Centre (LHRC), the leading human rights organisation in Tanzania reveal that there are only five remand homes in the country and sometimes children stay in police custody for more than seven days before they are either taken to court or released on bail.60 Another area where children rights have been subjected to widespread violation is that of Child labour. Although the law prohibits employment of children below fifteen and even below twelve years, employers have continued to employ and subject children to difficult and hazardous conditions.61 A great number of children are not attending schools because they are engaged in economic activities and household chores. Official information put
See ENVIROCARE, Report of Research on the Children in Conflict with the Law in Tanga, Kilimanjaro, Moshi, Arusha Iringa and Mbeya Regions, October, 2000, p. 39. 59 See ENVIROCARE, Report of Research on the Children in Conflict with the Law in Tanga, Kilimanjaro, Moshi, Arusha Iringa and Mbeya Regions, October, 2000, p. 39. 60 LHRC: Tanzania Human rights Report, 2002 at p. 36
61
58
See Employment Ordinance, cap 366, The United Nations Convention on the Right of the Child, 1989, the ILO Convention No. 138 of 1973 on the minimum age for admission to employment.
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the number of children not attending school in 2002 at 4.1 million out of 10.2 million children in Tanzania aged between 5- 14 years.62 It is publicly acknowledged that children are employed under very bad working conditions. They are not supplied with life protecting facilities like shoes, boots and gloves. They are therefore exposed to such hazards like vipers bites and other health hazards that make them sick and poor in school. Conditions of child labour are worse in Mines and Quarries in Chunya, Mbeya, Mererani Mines in Arusha and Kunduchi Quarry in Dar es Salaam. In Dar es salaam hundreds of children are employed in menial chores like providing assistance in panel beatings, welding and manufacturing of various articles such as metal sheets and woodworks, fish mongering, fish preparation, washing, selling foodstuffs and petty business and peddling of merchandise. The main denominator in child labour is low pay, overwork, harassment and abuse. Most of the children under employment are orphans, abandoned or street children. At least 60% are boys and 40% are girls. Finally, in close connection to the problem of child labour is the very serious case of sexual abuses disclosed during the year 2002. Newspapers came out with revelations of cases some rich persons who are running the business of children prostitution. It was reported by Uwazi of August 27- September 2, 2002 that one Bi Catherine alias Mama Nisa, owned number of girls in her house in Mikocheni, Dar es Salaam. It was reported that the girls were recruited from Arusha, Kilimanjaro and Tanga. They provide sexual services to men at a price ranging from Tanzanian Shillings 50,000/= to 200,000/= depending on whether a girl is below sixteen years or not and whether she is a virgin or not. These victims of sexual abuse are enticed not to use condoms, by being offered higher pay. This business has now attracted young boys, who are enticed to provide sexual services not only to women but to men.
62
Elisa Lwakatare, Director of Child Labour Unit in the Ministry of Labour, Youth Development and Sports Report to Child Labour Forum at Karimjee Hall in Dar es Salaam on 23rd June, 2002.
53
Women Rights Tanzania ratified the Convention on the Elimination of All Forms of Discrimination against Women of 1979 (CEDAW) in 1985. Article 13 of the Constitution of the United Republic of Tanzania prohibits all forms of discriminations including gender discrimination. by virtue of the 14th Constitutional Amendment. Like many other countries of the world Tanzania is primarily a patriarchal society whose political, social and economic systems protect men rather than women rights. Participation in political and economic affairs of the country is more open to men than it is to women. This has left women backward in many aspects of human life. Recently, steps to address this situation efforts to empower women and bring them to position of equality in comparison to men have been taken by providing for affirmative action ni many areas including education, politics, culture and economics. Out of 47 members of cabinet in the United Republic, four full ministers five deputy ministers are women. In Zanzibar out of 20 cabinet Ministers, one full minister and one deputy minister are women. In a court of appeal made up of seven justices one is a woman. The Constitution provides further that women shall be allocated at least 20 to 25 % of all the seats depending on the number of seats won by their parties in the parliamentary elections. This number is additional to any seats won by women contestants in constituency elections. As a result of these changes, women have played an increasingly significant role in national affairs. They have managed to join forces between parliamentarian womens group and those in NGOs networks to lobby parliamentarians to adopt women friendly legislation. Recent examples include the thirteenth constitutional amendment which expressly prohibited discrimination on any ground including gender, the Village Land Act and the Land Act containing a clear provisions recognizing womens right to own land which was hitherto unprotected by law. The Land Act establishes the Village Council as dispute settlement machinery. The composition of that tribunal is seven persons out of whom three must be woman. An Act to provide for procedures in land
54
dispute settlement called Land Court (Dispute Settlement) Act was enacted in the year 2002. In the year 2002 Tanzanian newspaper carried stories that indicate increase of rape cases. This is disturbing because only in 1998 the government enacted the Sexual Offences Special Provisions Act, 1998 which amended the criminal laws of the country by introducing severe sentences to be meted out by courts to persons convicted of sexual offences. The Rights of the Disabled The constitution of the United Republic of Tanzania does not provide directly for the protection of the disabled. Article 11 of the Constitution recognizes the rights of the disabled to get special treatment in respect of right to work, to self-education and social welfare. This provision however, falls within the directive principles and policies that are not directly enforceable in courts of the country. It is a mere recognition that places a moral duty upon the state to strive to attain the rights so recognized. There are some laws which specifically provides for the right of the disabled to get special treatment. The Employment of the Disabled Act of 1982 for instance requires the employers to offer employment to the disabled. Furthermore the Employment of the Disabled Regulations made under the Act require every institution or corporation employing more than 50 persons to employ at least 2 percent from the disabled.63 Again, section 16 of the Act excludes the disabled from being retrenched. Section 17 makes it a criminal offence to deny a disabled person of employment on the grounds of disability. The Disabled (Care and Maintenance) Act, 1982, requires the local government to provide special training for the disabled. It establishes an Advisory Council to advise the Minister responsible about the rights of the disabled. It further establishes a care and maintenance fund for the disabled. However Local Governments have not shown enthusiasm in allocating funds for this purposes as required by the law.
63
GN 463 of 1985
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The awareness of the general public of the rights of the disabled is very law. This is reflected in the general failure to provide for disabled facilities in public transport, public buildings and some other public services. NO law has been enacted to compel contractors and owners of buildings and facilities providing services to the public to introduce disabled friendly facilities and environment. Thus, although there is no open discrimination against persons with physical disabilities, in actual fact they are restricted in their access to education, employment, and provisions of other public services by negligent default. PART FIVE
PROSPECTS OF AN EVOLVING HUMAN RIGHTS REGIME
Globalisation and Human Rights In the third millennium mankind is faced with new challenges that have never before confronted mankind. The concept of democracy has been blown up by globalisation in a manner that is shattering. States are categorised as being democratic members of the international community not because they have institutions that arise from the popular will of the people and are led by freely elected leaders, but because they are compliant to the needs and interests of big powers. By the close of the second millennium it was widely believed that global governance was clearly destined to settle in the hands of international institutions like the UNO, the IMF and World Bank system. In retrospect what has become a reality is the outgrowth of an international oligarchy as a form of an elite led form of neo-liberal democracy that cares less for sovereignty of states, popular participation or any substantive and real democratic institutionalisation of governance in any state or international institution. Any local or international institutional framework must abide to the changing need to capture, control and use global capital and resources. It is to this end that the usefulness and acceptability of any political order shall be conceived, rationalised and maintained.
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Any measures to downsize, democratise, civilianize or even embowel the state derive from this genesis. The same act shall be categorised as civilised or uncivilised, defensive or terrorist, human and democratic or against human rights and undemocratic etc, depending on which side of the fence it is done. Globalisation has globalised science, technology, economy and culture without necessarily globalising the legal framework of rights, and for that matter, human rights as its universal ideology. Many states have adopted bills of human rights only half-heartedly without any intention of matching by deeds what they have covenanted in paper. Tanzania may wittingly or unwittingly fall into this category of states. She has ratified many, though not all international conventions on human rights. She has however not lived up to her obligations to match by deeds what she has promised to do through these instruments. In the year 2002, she bowed down to public pressure to establish a national human rights commission. She converted her toothless Presidential Commission of Inquiry into a Commission on Human Rights and Good Governance in March 2002. The Commission on Human Rights and Good Government The Tanzanian Commission on Human Rights and Good governance was established by Article 129 of the Constitution introduced by the thirteenth Constitutional amendment in 2000. The commission was finally appointed in March 2002. The Commission has the duty of promoting human rights, receiving complaints on human rights violations, investigating human rights violations, instituting proceedings on human rights violations, investigating conduct of officials and institutions, advising the government on human rights and good governance matters and taking requisite steps to promote mediation among officials or institutions.64 The Commission is not an independent institution since it is bound to receive directions and orders from by the President of the United Republic.65 It also has no powers to
64 65
Article 130 (1) of the Constitution of URT. ibid Article 130 (2).
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investigate into the conduct of the President and the Head of the Executive for Zanzibar.66 The commission is empowered to summon the officer complained of, can, if it finds appropriate, prosecute the officer complained of in the High Court. The effect of this provision is to make the commission the investigator, the quasi judicial tribunal for hearing purposes and the prosecutor. Such concentration of powers in one body is negative as far as good governance itself is concerned. It means that the commission shall have advantage to hear a matter and then take steps to prosecute the victims. The first appointment of the Commission was made on 14th March 2002 when the President appointed seven Commissioners. Six commissioners were sworn in on 15th March 2002 whereas the seventh Commissioner did not take up the appointment. On the 28th day of August the President appointed the seventh Commissioner who was sworn in on 30th August 2002. The Commissions first chairman is Justice Robert Kisanga, a respectable justice of the Court of Appeal of Tanzania who had served as a Commissioner of the African Commission on Human and peoples Rights. The commission has been travelling across the country to publicise itself and has already admitted its first case filed by the Legal and Human Rights Centre (LHRC) for and on behalf of residents of Serengeti who have alleged that the government officials burnt their houses and killed several others in mid nineties. On 5th October 2002 the commission met with NGOS in Dar es Salaam to discuss the manner the Commission will cooperate with NGOs in promotion of human rights in Tanzania. The Commission acknowledged the role of the human rights NGOs in the promotion of human rights in Tanzania. The meeting resolved that the Commission would cooperate with the NGOS in providing human rights education and promoting human rights generally. The Commission will use NGOS as one of its important sources of information. Human Rights NGOs
66
Ibid Article 130 (6).
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The legal framework for establishment of NGOs in Tanzania rests on three pieces of legislation, namely, the Societies Ordinance, the Trustees Incorporation Ordinance and the Companies Ordinance. NGOs registered under the Societies Ordinance face two main technical problems, namely, lacks of corporate personality and the danger of being arbitrarily deregistered by the Minister of home affairs. It is now being proposed that a new NGOs Act be enacted to provide for common procedure for the registration and management of NGOS in the country. There is a growing need to have as many NGOs handling human rights matters as possible. In a country just emerging from authoritarian one party rule democratic values embedded in human rights need careful, concerted and vigilant husbandry to germinate, grow and mature into a culture. Although the Government of Tanzania has recognized the role of NGOS in contributing to national development and participatory democracy67 one has to give these verbal intentions time to be proven true by deeds. Leading human rights NGOs include the Legal and Human Rights Centre (LHRC), Women Legal Aid Centre (WLAC), Tanzania Women Lawyers Association (TAWLA), Tanzania Gender Network Programme (TGNP), Legal Aid committee of the Faculty of Law, University of Dar es Salaam, (LAC), Tanzania Media Womens Association (TAMWA), and Lawyers Environmental Action Team (LEAT). In 2002, the government demonstrated a satisfying degree of tolerance and co-operation with the human rights NGOs. For example it participated in human rights training by allowing its officers including police officers, prisons officers, ward executive officers, magistrates, councillors, and others to be given human rights training. In most of the training programmes, the government sent its top officials to attend and others to officiate opening and closing sessions of training. To that effect the LHRC has prepared a special manual for the training of police officers while the faculty of law of the University of Dar es Salaam has been cooperating with the Prisons Services in introducing human rights
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Vision 2025, Poverty Reduction Strategy (PRS) and Tanzania Assistance Strategy (TAS.).
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provisions in Prison Services Orders and in conducting human rights training programme for prisons services officers. Persecution of LEAT As noted in the foregoing LEAT is one of the leading human rights NGOs handling environmental related matters. In 2002 there arose friction between the government and LEAT relating to the allegations of human rights violations by the government in gold mining areas in Shinyanga Region. LEAT purported to have carried out a research in Bulyanhulu gold mine in Shinyanga and discovered that the government buried alive 52 small miners while 11 others were killed during action to evict local population from the mining area that had been granted to big foreign mining companies. The government reacted not only by denying the allegations but by ransacking LEAT offices, seizing documents and video cassettes and arresting some of the LEAT lawyers, namely Rugemeleza Nshalla and Tundu Lissu in April 2002. Nshalla and Lissu have been persistently harassed for their pursuit of justice for the small scale miners who were evicted in 1996 to make way for Barrick Golds enormous Bulyanhulu gold concession. A criminal case has been instituted at the Kisutu Resident Magistrate Court in which the LEAT officers, together with Mr. Augustine Mrema, who also made the same allegations, are charged with sedition. Tundu Lissu was detained by police on December 23 in Dar es Salaam and held for over 24 hours in an underground jail known as The Hole. There was no probable cause and no warrant for his arrest. The LEAT lawyers are also restrained by magistrates order, from travel and from commenting on the events at Bulyanhulu. Uniform NGOs Law In the year 2002 the government enacted a uniform NGOs law, to wit, the NGOs Act, 2002. Some of the provisions of the Act fly in the face of constitutionally guaranteed rights like the freedom of association, expression and assembly. In contrast to the NGO Policy 2001, the preparation of the Act lacked consultation from the stakeholders as result of which their interests were not taken on board. Good governance entails that
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citizens should be consulted in decisions affecting their rights. Democratic constitutionalism imposes a duty upon the state to empower the people to participate in legislative action so that laws arise from peoples own will than vice versa. The NGOs Act is excessively restrictive, unreasonable and lacks check and balance. It creates cumbersome registration procedures through NGO Board established under the Act. One good element in the Act however, is the removal of the powers to de-register any NGO established under the Act without affording an opportunity to the respective NGO to be heard. CONCLUDING REMARKS It is apparently clear from the facts narrated in this report that there is an emerging human rights regime in Tanzania. The Report has sought to expose both success and failure of the Tanzanian nation in promoting and protecting human rights. Whether one may wish to have a better human rights record or not the fact is that the dice has been cast. Tanzania will never revert to authoritarian age again. Hopes for a better tomorrow, when the government wont interfere and violate human rights any more must continue to occupy the hearts of every activist and every citizen. The people must have the courage to shout foul when their basic rights are violated. For instance the use of excessive powers in suppressing the Mwembechai demonstration, the unjustified beatings of the innocent citizens by the state apparatus reported in this year, as well as the harassment of human rights defenders in the LEAT case indicate the dangers of keeping quiet when rights are violated. A study of the growth of the human rights culture of our nation reveals one salient feature, which is growing sense of impunity by state officials. There is hardly any one on the government who believes in human rights accountability. No one is courageous to be accountable and to resign the moment violation of a grave nature has occurred under his or her leadership. We are evolving a culture of impunity that encourages leaders to cling to power until they are forcefully removed. This is a bad culture in our leadership style that we must work hard to stamp out.
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Constitutionalism 2002 Mvungi TZ

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TANZANIA CONSTITUTIONAL DEVELOPMENT - 2002

Mvungi: Tanzania Constitutional Developments - 2002

Mvungi: Tanzania Constitutional Developments - 2002

Mvungi: Tanzania Constitutional Developments - 2002

Mvungi: Tanzania Constitutional Developments - 2002

Mvungi: Tanzania Constitutional Developments - 2002

THE CONSTITUTIONAL GUARANTEE OF HUMAN RIGHTS IN TANZANIA

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Fifth Constitutional Amendment Act, 1984 (Act no.5 of 1984).

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Per Kisanga, J.A. [1993] 2l LRC 317 at 323.

Mvungi: Tanzania Constitutional Developments - 2002

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Nyalali Commission Report, Vol. 1: Government Printer, Dar es Salaam, 1992, p. 7.

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CIVIL AND POLITICAL RIGHTS

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See: Zanzibar: Democracy on Shaky Foundations, XIX, April 2000.

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crisis and reform of the law enforcement agencies. The Accord

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Article 30 (3) of the Constitution of URT, 1977

Mvungi: Tanzania Constitutional Developments - 2002

The Right of Presumption of Innocence

Mvungi: Tanzania Constitutional Developments - 2002

Mvungi: Tanzania Constitutional Developments - 2002

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Civil Appeal No. 64 0f 2001 (Court of Appeal of Tanzania Unreported).

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Majira 1st, October 2002

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See Part V section 31 of the Prevention of Terrorism Act, 2002

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Mwananchi 20th October 2002. Mwananchi 2nd November 2002

Mvungi: Tanzania Constitutional Developments - 2002

LHRC Human Rights Report , 20002

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ECONOMICAL, SOCIAL AND CULTURAL RIGHTS

Mwananchi 4th May 2002.

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Mvungi: Tanzania Constitutional Developments - 2002