ASPECTS OF HUMAN

RIGHTS FOR LAW

ENFORCEMENT AGENCY

Harold Sungusia
 Part five
Human Rights in Tanzania
Components
i. Pre and Colonial Era
ii. Post colonial Era – exclusion of bill of rights
iii. Post Bill of Rights Era
iv. Legal status of HR in Tanzania
v. Situation of Human Rights in TZ
vi. Achievements so Far
vii. Current Challenges facing the protection and
promotion of HR in Tanzania
viii. Conlusion
 1. Introduction
 situation and status of human rights in a country is a highly dynamic
process.
 WHY?
 It changes very frequently
 influenced by long standing, abrupt and unforeseen factors
 determinant factors are:
 the people themselves;
 the governance structure and system;
 the interaction with the outside world
 the economy and many others
 Tanzania did not want to have Bill of Rights
 1961; 1962; 1964; 1965; 1977; 2013/14
 Zanzibar got it in 1984 and has enshrined its Bill of rights vide 10th
Constitutonal Amendments 2010–
 it is not a settled issue whether really human rights are a Union Matter [is not
among the 22 listed union matters]
 Due to complexities Zanzibar requires its own description
 Current Draft Constitutional Bill - progressive
Major Features of Human rights in Tanzania
 Pre Colonial before 1894
 Communal societies save for few – Feudal ones and the horror
of slave trade
 Colonial – 1894 - 1960
 serious violations – right to self determination; right to
development; discrimination; draconian legislation
 Post Colonial – pre Ujamaa – 1961 - 1966
 Illusions – rejection of bill of rights; replacement by color;
continuation and introduction of draconian legislation
 Preventive detention Act no 60/1962 September. Customary Law
Declaration Order – GN 279/1963; NUTA Act 18/1964 – dissolve TFL
 Post Colonial - Ujamaa – 1967 -1992
 Sacrifice – social economic rights first – suspension of civil and
political rights – Interim Constitution 1965– abolished multi party
 Post Colonial – post Ujamaa 1993 - todate
 Liberalize civil and political rights – plight to social economic and
cultural rights – right to life at jeopardy.
 1. Pre and Colonial Era
Most communal societies believed in
communal ownership of property and
respect of dignity f every member of the
community
During the colonial time – abuse of
human rights was the order of the day
 2, Human Rights and
Colonialism
As it was, colonialism committed massive
violations of HR’s in tz [Africa].
Thus, TZ and OAU emphasised on fighting
colonialism, racism & apartheid.
Thus, there was no mention of HR’s in the TZ
first constitutions nor in OAU Charter.
In practice, the exercise of HR’s in all new
African states was not common.
 2, ….Post colonial Era –
exclusion of bill of rights
At the attaining of political independence
– bill of rights was regarded as a hurdle
against speedy development
Abuse of civil and political rights
prevailed, emphasis was on social
economic and cultural rights
 3. Post Bill of Rights Era
In 1984, the URT constitution was
amended in order to have in place a Bill
if rights which came into force in 1988,
and operational zed through BRADEA
Demand for, protection and promotion of
HR in Tanzania begun to soar
`
 Legal Basis of Human Rights

Constitution
UDHR
URT Znzbr Various Case
Laws Law
Ratified
International
Land, Labor, Education, Environment, Water, Treaties
sanitation, Criminal law, Family, Contract, Tort,
Consumer
Health
 3. Rights Protected by the Tanzanian
Bill of Rights
CHAPTER THREE - PROTECTION OF FUNDAMENTAL RIGHTS AND
INDIVIDUAL FREEDOMS
 Right to respect of human dignity – Art. 12
 Equality before the law. Art. 13
 Right to life. Art. 14
 Right to personal liberty - Art. 15
 Right to privacy and personal security - Art. 16
 Right to freedom of movement. - Art. 17
 Right to freedom of expression. - Art. 18
 Right to freedom of religion. - Art. 19
 Right to freedom of assembly and association. - Art. 20
 Right to freedom to participate in public affairs - Art. 21
 Right to work, Art. 22
 Right to receive just remuneration. -23
 Right to own property. - Art. 24
 4. Duties imposed
 Duty to work – Art 25
 Duty to obey the laws – Art 26
 Duty to protect public property – Art 27
 Duty to provide national security – Art 28
 Important General Rights and Duties –Art 29
 Right To Equal Enjoyment Of The Rights
 Equal Protection By The Law
 Prohibition Of Monarchy
 Prohibition Of Discriminatory Laws
 Duty To Enjoy Rights Without Interfering With Others
5. Procedure for enforcement of Rights
in Tanzania
BRADEA – Petition
Judicial Review – public law remedies
Suit against a government/ individual
Complaint at the Commission for HR and
GG
International Law
Treaty monitoring bodies
Tribunals
ICC
ACrtHPR
 a) Procedure under BRADEA – Petition
 Grounds – if section 12-29 of the Constitution

 Has been
 Is being contravened
 Is likely to be

 Court with original jurisdiction – High Court . Ss.4+5

 Petition
 Reference from subordinate court
 One Judge to determine worthiness of the case and
three judges to determine the merits.
 How? - Petition filed at appropriate registry s. 5
 BRADEA – Petition…..
 How? - Petition filed at appropriate registry s. 5
 Contents? S. 6
Name and adress of petitioner
Name and adress of respondent
Grounds upon which redress is sought
Specific articles that forms basis of the petition
Particulars of facts but not the evidence
Nature of redress sought.
 Service – Respondent or A-G [govt, or its servants
 Appeals against decision on substance lie to the High
Court bench of 3 judges
 Appeals from 3 judges decision lie to the Court of Appeal
Creatively using other legal provisions to
achieve almost the same end result
b) Judicial Review – public law remedies
 NB: without mentioning that certain rights have been violated –
still one can pursue remedies with almost similar effect –
especially where the Law Reform Fatal Accidents and
Miscellaneous Provisions) Act . Cap 310 R.E 2002 is applicable
 Establishing Republic’s liability in Tort. – s.1
 High court in exercising its criminal or civil jurisdiction may
issue prerogative Orders of:
 Mandamus
 Prohibition
 Certiorari
 A-G must be summoned as a party
 Procedure – application for leave to apply for prerogative
orders – is a must. It must be supported by affidavit of the
applicant.
 Upon issuance of leave – the applicant has to apply for such
orders - Chamber application, supported by Affidavit +
Statement [similar to plaint or petition.
 c) Suit
 NB: without mentioning that certain rights have been violated – still one
can still pursue remedies with almost similar effect – especially where
the CPC or the Govemnet Proceedinigs Act are applicable
 Section 22 of CPC Cap. 33
 Every suit shall be instituted by the presentation of a plaint
 Order iv. Rule 1 - suit by plaint
 Plaint – Order vii. Contents thereof
 See para (a) to (i)
 Name of the court
 Name, description and place of residence of Plaintiff
 -”- defendant
 Facts constituting the cause of action
 Facts showing court’s jurisdiction
 Relief which the plaintiff claims
 Verification
 Jurat
 S. 5 and 6 Government Proceedings Act – Cap.5
 d) Complaint under the CHRAGG Act
 Commission for human rights and good governance – cap. 391
 Functions:
Paras (a) to (o) of section 6
(b) to receive allegations and complaints in the violation of
human rights generally
(g) to investigate or inquire into complaints ..
Who can submit complaints? Section 15.(1)(b)
An aggrieved person
An association acting in the interest of its members
[corporate or not
A person acting in the interest of a group or class of
persons
5 Limitations - section 16(1) and (2)
President – URT and Znzbr can not be sued
Matters sub judis; diplomatic; prerogative mercy; matters
the president directs otherwise per the constitution
 …….CHRAGG
 How to file? S. 22
 May be oral or in writing + shall be recorded in form
 In a form of letter – addressed to the commission
 Rejection of complaint – 24 months rule; exhaust reasonable
remedies; bad faith, not with jurisdiction of the commission
 24 months rule may be dispensed with if:
 Necessary for the ends of justice than rejecting it
 It is of a constitutional importance
 The nature of complaint and circumstances surrounding it justify its
consideration
 Parties may be represented by advocate or any other person suitable
to represent
 Notice of complaint is issued to the other party for an opportunity to be
heard
 e) Making use of Extraterritorial Remedies
 NB: In additional to domestic remedies, still one can pursue remedies
with almost similar effect – especially where the UN/ regional treaties
ratified by Tanzania are applicable
 Human Rights Council
 HR Committee
 ICC
 Mandate – Genocide, Crimes against Humanity and War crimes
[Agression]
 AU
 AComHPR
 ACrtHPR
 SADC
 Tibunal
 EA
 Court of Justice
 C: Achievements Generally - Recent
 (a) Reduction of incidences of torture and
killings of Persons with Albinism (PWA);
 (b) The government’s initiatives to prepare
National identity as it guarantees the right to
identity and nationality;
 (c) Formation of Constitutional Review
Commission which has actually commenced
its role to involve citizens in the
Constitutional making process;
 C: Achievements
1. Having Bill of Rights in the Constitution
2. Judicial Activism
3. Establishment of Human Rights Organisations
4. Establishment of CHRAGG
5. Removal of Claw-back clauses in the Constitution
6. Ratification of International Human Rights Treaties
7. Participation in the treaty monitoring mechanisms
8. Expansion and intensification of Human Rights
Education
9. Growth of human rights awareness
 C: Achievements
1. Having Bill of Rights in the Constitution
1. Since – 1984 the 5th Amendment Brought into the Constitution
HR protection
2. The Bill suspended for five years 1984-1988
3. Introduction of BRADEA
 C: Achievements…..
2. Judicial Activism in Protection of certain rights
1. Series oc Cases indicated the trend
2. Notable Judges – James L. Mwalusanya and Kahwa
Lugakingira
1. Mbushuu Dominic
2. Christopher Mtikila
3. Daudi Pete
4. Butambala
5. Lujuna Shubi
6. Mwanza restaurant Case
NEO Judicial Activism in
- Julius Francis Ishengoma Ndyanabo
- Takrima Case
- Christopher Mtikila Case II
 C: Achievements ….
4. Establishment of CHRAGG
The Commission became operational on the 1st July 2001
after the coming into force of the Commission the
Human Rights and Good Governance Act No7 of 2001
as amended by Act No 16 of 2001 and Government
Notice No. 311 of 8th June 2001. The Commission was
officially inaugurated in March 2002

LHRC had played a vital role in support for the

establishment of the CHRAGG – the movement begun
in 1998 during the White Paper – concluded during the
13th Amendments in 2000.
NB: SERENGETI case being the 1st case to be heard by
the CHRAGG was filed by LHRC
 C: Achievements …..
5. Removal of Claw-back clauses in the Constitution
 C: Achievements ….
6. Ratification of International Human Rights Treaties
1. ILO Conventions
 35 Conventions
 Fundamental Conventions: 8 of 8
 Governance Conventions (Priority): 1 of 4
 Technical Conventions: 26 of 177
 Out of 35 Conventions ratified by Tanzania, United Republic of, of
which 34 are in force, 1 Convention has been denounced; none have
been ratified in the past 12 months. See -
http://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::NO:11200:P11200
_COUNTRY_ID:103476
2. UN Conventions

3. AU Conventions
 C: Achievements ….
6. Ratification of International Human Rights Treaties
2. Unesco - 9
a. Agreement on the Importation of Educational, Scientific and Cultural Materials, with
Annexes A to E and Protocol annexed. Florence, 17 June 1950.26/03/1963Accession
b. Convention for the Protection of Cultural Property in the Event of Armed Conflict with
Regulations for the Execution of the Convention. The Hague, 14 May
1954.23/09/1971Accession
c. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property. Paris, 14 November
1970.02/08/1977Ratification
d. Convention concerning the Protection of the World Cultural and Natural Heritage. Paris, 1
November 1972.02/08/1977Ratification
e. Convention against Discrimination in Education. Paris, 14 December
1960.03/01/1979Ratification
f. Regional Convention on the Recognition of Studies, Certificates, Diplomas, Degrees and
other Academic Qualifications in Higher Education in the African States. Arusha, 5
December 1981.12/07/1983Ratification
g. Convention on Wetlands of International Importance especially as Waterfowl Habitat.
Ramsar, 2 February 1971.13/04/2000Accession
h. Convention for the Safeguarding of the Intangible Cultural Heritage. Paris, 17 October
2003.18/10/2011Ratification
i. Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
Paris, 20 October 200518/10/2011Ratification
 C: Achievements
9. Growth of human rights awareness
 5. Current Challenges facing the protection
and promotion of HR in Tanzania

 HR education very low

 HR institutions still young
 Lack of strong judicial activism
 Technicalities and procedural impediments
 Not all human rights in Tanzania are Justiciable!
 i.e. it is difficult to enforce the rights that are not
covered by the application of BRADEA – But
 Other avenues can still be explored in the course of
seeking some judicial remedies e.g, through judicial
review [orders of declaration, certiorari, mandamus
and prohibition] can be useful tools of defending
human rights.
 D: Challenges - Generally
 Extra-Judicial killings where according to police statistics a total of 31
people were brutally murdered in the hands of polic as of December,
2012 such as the brutal killing of Daud Mwangosi in Iringa, killings of an
innocent person in Morogoro and an innocent child in Tegeta Dar es
salaam;
 Serious incidents of mob violence against law enforcers and as a result
(9) police officers were killed by citizens for the year 2012 only;
 (c) An increase in mob violence among civilians especially suspects of
theft and witchcraft where they are butchered inhumanely. Police
statistics indicate that a total of 1,234 people were killed as of
December, 2012.
 (d) Limited freedom of assembly as was for the arrest of 16 human
rights activists;
 (e) Infringement of freedom of expression and right to information, such
as the banning of Mwanahalisi newspaper;
 D: Challenges - Generally
 (f) Use of abusive language, government resources and use of children as
was the case in East Arumeru by-election. The vice hinders the growth of
multiparty democracy in the country;
 (g) The deteriorating quality of the education system in the country. The
Form four results in 2012 about 90% of students failed in the four form
exams;
 Serious denial of the right to health by both the government and medical
in2012 doctors twice went on strike and caused thousands of deaths. +
abduction and torture of Dr. Stephen Ulimboka
 (i) Children and women =vulnerable groups and victims of rape and physical
torture in households. official statistics = 6046 cases were reported whereby
567 of them were children December, 2012.
 (j) Embezzlement of public funds =the central and local government officials
misused billions of money. For instance, Kishapu is one of the districts
where embezzlement was reported to be at its maximum
 (k) several demolition and unjust evictions were carried out in several parts
=Kilombero and Chunya districts; and
 (l) An increase in road accidents whereby 11,438 were registered in 2012
 leading to 431 deaths.
 D: Challenges
1. Ratification of International Instruments
2. Compliance to the obligations arising from such instruments
3. Execution of pro-human rights decisions
4. ‘Unholy’ partnership/alliance between private and public sectors
5. Weaknesses in the justice administration system
6. Realization/justiciability of social economic and cultural rights
7. Realization of solidarity/collective rights
8. Prevalence of harmful cultural practices
9. Security of human rights defenders
10. Universlity vs. Cultural Realtivism/diversity
11. Prevalence of laws that encourage violation of Human Rights
12. Un-empowered obudsman
 D: Challenges ….
8. Realization of solidarity/collective rights
 Rights individuals exercised as a group including right to a clean
environment, natural wealth & resources and development remained
at risk in 2005.

 Lack of enforcement of National Environmental Management Act,

2004 led to on-going environmental degradation in the form of
water and air pollution.

 Citizens remained alienated from their lands and accompanying

natural resources. [ of recent – Mtwara Gas issue

 Despite measures for development including the (Mkukuta 1 & 2),

rural and urban poverty has remained extremely grave while
systemic economic and social reforms remained necessary.
CUF - leaders tortured in Mtwara
 Right to
Development in
Mtwara
By Sungusia Advocate
 D: Challenges ….
9. Prevalence of harmful cultural practices

1. FGM
2. Widow Cleanisng
3. Inheriting Widows
 D: Challenges ….
10. Security of human rights defenders

1. Threats
2. Intimidation
3. Fabrication of cases
4. Killings
No Name Media Risk/case/event Region
Cosmas ITV Tailed by some government leaders Mwanza
1. Makongo and police officers & Seriously sick
2. Anbert Tanzania Daima Received death threat from unknown Dar es Salaam
Ngurumo people & Tailed by unknown people
3 Fatuma Mtanzania & Tailed by unknown people after Mtwara
Mnyeto Tanzania Daima publishing violation of human rights
at Mtwara
4 Albert Info Radio Abducted and tortured by Tanzania Mtwara
Laizer People defence force & receiving
threats after disclose the torture
5 Josephat Tanzania Daima Arrested & Receiving threats from Dar es Salaam
Isango unknown people,
6 Charles Tanzania Daima Tailed by unknown people & receiving Dar es Salaam
Misango threats include death threats
7 Absalom New Habari Severe attack & tortured Dar es salaam
Kibanda
8 Unknown BBC radio& Intimidation including searching in Loliondo
Loliondo local the rooms
radio
9 Issa Kwizera Radio Found murded at Kigoma Kigoma
Ngumba
10 Mtwara All Media and Reported are threats to all vocal Mtwara
Press Club Journalist journalists
 D: Challenges ….
11. Universlity vs. Cultural Realtivism/diversity

1. The whole concept of ‘Home Grown Document’

 9. Future Prospects
a) Re-focusing the Bill of Rights in the Constitution –
especially in the anticipated New Constitution
b) Becoming a Serious Player at World Stage: Signing;
Ratifying and Domesticating Human Rights Legal
Instruments
c) Respecting Decisions by Courts of Law on Human Rights
d) Allowing Civil Society Genuine Space in Promotion and
Protection of Human Rights
e) Fully Arming Commission on Human Rights and Good
Governance – in Law, Manpower and Finances
f) Guarantee a continuous provision of human rights
education and awareness to the Public
Re-focusing the Bill of Rights in the Constitution
 it took 23 years of struggle mainly be the civil society to have a
Bill of Rights entrenched into the Constitution in 1984
 It was not a perfect Bill of Rights. It was old-fashioned and full of
claw-back clauses and a derogation clause.
 Judicial activism saved the course
 not received well by the government which looked for a way out.
It conceived the Basic Rights and Duties Act, 1994
 BAD Law - BRADEA
◦ Three judges requirement
 Difficult to have three judges coram
 Funny jurisprudence of not declaring violative provisions un-constitutional but
give time to Parliament to amend
 What is Needed?
◦ 1. Remove derogation clause
◦ 2. Re-work the bill of rights – introduce rights excluded; enshrine the
bill
◦ 3. Repeal the BRADEA
◦
Becoming a Serious Player at World Stage: Signing;
Ratifying and Domesticating Human Rights Legal
Instruments
 a good record when it comes to signing international treaties.
 signed and ratified most of important global and regional
human rights legal instruments
 But not ratified some important global legal instruments.
◦ 1. Torture Convention of 1984;
◦ 2. the Optional Protocol to the International Covenant on Civil and
Political Rights of 1966 and
◦ 3. the Second Protocol to the same Convention of 1989 on the
elimination of the death penalty.
 The main problem here is domestication of all the
international undertakings. Signing and ratification without
domestication is not very helpful given the monist system
which the country follows.
The Parliament- should abolish dualism in regard to ratification
Moreover the Parliament – need to do its work
- representing people
Making Laws
Making government accountable
 Respecting Decisions by Courts of Law on
Human Rights
 Bill of Rights was received well by the judiciary BUT
not viewed well by the Executive
 Solution to insulate the GoT
◦ curtail the wide discretionary powers of the judiciary
and particularly the High Court. This was done through
the enactment of the Basic Rights and Duties Act of 1994.
◦ ignore the decisions of the courts of law once they are
made. These decisions notwithstanding, the government
has approached the Parliament purporting amend
legislation which have been declared unconstitutional by
the courts
 Chumchua s/o Marwa v. Officer i/c of Musoma Prison and Another, and
amendment was taken to Parliament to ‘amend’ it. Also when Hon. Mr. Justice
Lugakingira allowed private candidates to contest in elections in Tanzania in
the case of Rev. Christopher Mtikila v. Attorney-Genera a constitutional
amendment was adopted High Court of Tanzania at Mwanza, Miscellaneous
Criminal Cause No. 2 of 1988 (Unreported), Mwalusanya, J.
 High Court of Tanzania at Dodoma, Civil Case No. 5 of 1993, Lugakingira, J.
(as he then was). This case is also reported in Volume 1 Commonwealth
Human Rights Law Digest, 1996, p. 11.
 9.d) Allowing Civil Society Genuine Space in
Promotion and Protection of Human Rights
 In Tanzania, like in many other countries, the government
has never been at ease with the civil society.
◦ competitors for attention and finance from the donors
 civil society are proving to the government that they are
useful
◦ promotion and protection of human rights
◦ pro bono cases are handled by civil society actors
◦ training in human rights is carried out by civil society
 a genuine partnership is beginning to develop between
the civil society and the government. This needs to be
cemented and provided with a viable basis in the law.
This is an area which the government needs to address
with a lot of seriousness and trust.
 Fully Arming Commission on Human Rights and
Good Governance – in Law, Manpower and
Finances
 CHRAGG - a government in siege and feeling forced to establish an
institution it does not believe in.
 Established from pressure from the donors and the civil society which
pushed the government
◦ in 2000 the government amended the Constitution But for the whole year there was no
PCE nor CHRAGG
◦ whenever the Commission has handed over a decision and recommendation, the
government is not bothered
 - i.e Nyamuma village case of Serengeti
 On receipt of the decision of the Commission the then Attorney General of Tanzania Hon. Andrew
Chenge wrote to the then Chairman of the Commission Hon. Mr. Justice Robert Kisanga
informing him that the government was not going to respect and implement the decision.
◦ since its inception, the Commission has been mainly funded by donors
 If human rights are to be promoted and protected properly in Tanzania, this
attitude of the government has to change.
◦ Binding decisions of the commission
◦ Tighten the process of getting the commissioners
◦ Government should not starve the commission of funds
◦ “ a starved and nervous Commission neither promote or protect human rights in
Tanzania”
Draft Constitution – Any Hope?
What is in the Bill of Rights
Expanded Bill of Rights
Making Tanzania a technical Monist
Country from dualist mode
Improved institutions for accountability –
but we still need PCCB to be a
constitutionally established institution
 10. Conclusion
Much of what has been identified as
chortbacks and irregularities may
successfully be adressed by the prospects of
the new constitution of Tanzania.
The Draft Constitution is very progressive
but may still be improved in order to
adequately provide protection of human
rights in Tanzania.
Let us make protection of human rights a
reality
 Thanks for listening
For queries please contact:
[email protected]