REVIEW QUESTIONS FOR HUMAN RIGHTS LLB III

2024/2025

ALL THE BEST

©barnabaslaurianpatrice2025.

1|Page
QUESTION NO 1. Account for the major historical legal events
that have contributed to the constitutionalising of human rights in
Tanzania.

Analysis of Historical Legal Events Constitutionalizing Human Rights in Tanzania

Tanzania’s journey to constitutionalizing human rights began with its independence. The
1961 Independence Constitution, based on the Westminster Model, established
governance but lacked a Bill of Rights. The 1977 Constitution, while foundational, also
initially omitted justiciable rights, focusing on socialist principles. the 1984 Fifth
Amendment was pivotal, adding Articles 12 to 32 to enshrine rights like life, liberty, and
expression, effective from 1988. The 1992 Eighth Amendment introduced a multi-party
system, enhancing democratic participation. The 2000 Thirteenth Amendment reserved
seats for women and established the Commission for Human Rights and Good
Governance, strengthening protections.

This section provides a comprehensive analysis of the major historical legal events that
have contributed to the constitutionalizing of human rights in Tanzania, drawing on
extensive research and legal authorities. The response addresses the evolution of
Tanzania’s constitutional framework, focusing on key amendments and their impact on
human rights protection, supported by historical context, legal provisions, and
contemporary examples.

Historical Context and Early Constitutions

2|Page
Tanzania’s constitutional history began with the Independence Constitution of 1961,
adopted after Tanganyika gained independence from British colonial rule. This
constitution, based on the Westminster Model, established the structure of government,
including an executive led by the Prime Minister and an independent judiciary, but
notably excluded a Bill of Rights, reflecting the colonial legacy of limited rights
protections.1

The 1962 Republican Constitution further entrenched a presidential system, maintaining

the absence of a justiciable Bill of Rights, and the 1964 Interim Constitution, following
the union with Zanzibar, continued this trend, focusing on political unity rather than
individual rights.

The 1977 Constitution of the United Republic of Tanzania, ratified on March 16, 1977,
marked a significant milestone as the current “Permanent Constitution.” It aimed to build
a democratic society founded on principles of freedom, justice, fraternity, and concord,
as stated in its preamble However, it initially did not include a justiciable Bill of Rights,
aligning with the one-party state and socialist ideology under the Chama Cha Mapinduzi
(CCM), which emphasized collective rights over individual freedoms.

The 1984 Fifth Amendment: Incorporation of the Bill of Rights. The most significant
event in the constitutionalizing of human rights was the Fifth Amendment to the 1977
Constitution in 1984, effective from March 15, 1985, under Law No. 15 of 1984
Constitution of the United Republic of Tanzania (last amended 1985 This amendment
incorporated the Bill of Rights, contained in Articles 12 to 32, which enshrined
fundamental rights such as the right to life (Article 12), equality before the law (Article 13),
freedom of expression (Article 18), and protection from arbitrary arrest (Article 15). This
was a response to growing domestic and international pressure for democratization, as

1
https://en.wikipedia.org/wiki/Constitution_of_Tanzania.

3|Page
noted in academic works like Wambali’s 1997 PhD thesis, which highlights the global
push for rights struggles ([Democracy and human rights in Tanzania Mainland : the Bill of
Rights in the context of constitutional developments and the history of institutions

The Bill of Rights allowed citizens to challenge rights violations through legal mechanisms,
with justiciability effective from 1988, supported by the establishment of the
Constitutional Court in 1994 via the Basic Rights and Duties Enforcement Act (Act No. 33
of 1994) This amendment marked a turning point, aligning Tanzania with international
human rights standards, such as the Universal Declaration of Human Rights and the
African Charter on Human and Peoples’ Rights.

The 1992 Eighth Amendment: Transition to Multi-Party System.

The Eighth Amendment in 1992 was another critical event, introducing a multi-party
system and replacing the one-party state that had dominated since independence. This
change, driven by political and economic reforms under President Ali Hassan Mwinyi,
was formalized through constitutional amendments that allowed for the registration of
multiple political parties, enhancing democratic participation

The multi-party system expanded political freedoms, enabling greater scrutiny of

government actions and reinforcing human rights governance by fostering political
pluralism and civic engagement, as noted in reports like the U.S. Department of State’s
2022 human rights practices.

The 2000 Thirteenth Amendment: Strengthening Human Rights Institutions.

The Thirteenth Amendment in 2000 further advanced human rights protection through
several key changes:

4|Page
- It modified the presidential election process to be determined by the highest number of
votes, replacing the previous majority vote requirement.

- It reserved 30% of National Assembly seats for women, promoting gender equality and
representation, a significant step for social and political rights.

- It explicitly declared judicial independence, ensuring the judiciary’s role in upholding

human rights without interference.

- It established the Commission for Human Rights and Good Governance (CHRAGG)
under Article 129(1), effective from July 1, 2001, via Act No. 7 of 2001 (amended by Act
No. 16 of 2001)

CHRAGG, governed by the Commission for Human Rights and Good Governance
(Complaints Procedures) Regulations, 2003, plays a vital role in promoting, protecting,
and mediating human rights issues, enhancing enforcement mechanisms.

These changes, detailed in constitutional texts and legal databases, reflect Tanzania’s
commitment to aligning with regional and international human rights standards, as seen
in reports from organizations like the Legal and Human Rights Centre (LHRC) ([LHRC

Comparative Analysis and Impact

The table below summarizes the major historical legal events, their details, and their
impact on human rights constitutionalization:

YEAR AMENDMENT DETAILS IMPACT ON HR

1961 Independence Based on Laid groundwork but limited

5|Page
 Constitution Westminster rights protection
Model, no Bill of
Rights, established
governance
structure

1977 Permanent Established Set stage for future

Constitution principles of amendments, focused on
freedom, justice, socialism.
no initial
justiciable rights.

1984 Fifth Amendment Incorporated Bill Constitutionalized

of Rights (Articles fundamental rights, enabled
12-32), effective legal challenges.
1988, Law No. 15
of 1984.

1992 Eighth Amendment Introduced multi- Strengthened political

party system, freedoms, governance
enhanced scrutiny.
democratic
participation.

2000 Thirteenth Reserved 30% Enhanced gender equality,

Amendment women’s seats, judicial protection,
judicial enforcement.
independence,
established
CHRAGG.

6|Page
These events collectively represent the evolution of Tanzania’s constitutional framework,
with the 1984 amendment being the most significant for formally entrenching human
rights, followed by the 1992 and 2000 amendments that expanded democratic and
institutional protections.

Conclusion

The major historical legal events contributing to the constitutionalizing of human rights in
Tanzania include the 1977 Constitution’s foundational role, the 1984 Fifth Amendment’s
incorporation of the Bill of Rights, the 1992 Eighth Amendment’s multi-party system, and
the 2000 Thirteenth Amendment’s institutional enhancements. These developments,
driven by domestic advocacy and international pressures, have shaped Tanzania’s human
rights landscape, though challenges in enforcement and political will persist, as noted in
contemporary reports

Question No 2. Debate for the topic that the human rights in the
Bill of Rights of Tanzania are more likely not to be enforced
successfully than statutory rights.

7|Page
Human rights in Tanzania's Bill of Rights face enforcement challenges due to historical
delays and political resistance. It seems likely that constitutional rights are harder to
enforce than statutory rights, given resource constraints and political interference. The
evidence leans toward a lack of political will, shown by recent restrictions on freedoms
and delays in implementing court decisions. There is controversy around the effectiveness
of judicial mechanisms, with some successes but many ongoing issues.

Legal Framework and Enforcement. Constitutional rights are enforced through courts,
supported by the Basic Rights and Duties Enforcement Act (1994), but recent
amendments have restricted public interest litigation, potentially limiting enforcement.
Statutory rights, created by legislation, often have specific tribunals, like labor courts,
making enforcement more straightforward. Cases like Chumchua Marwa V. officer in
charge musoma prison (1988) and Daudi Pete V. URT (1989) show judicial willingness to
uphold rights, but political backlash against judges like Justice Mwalusanya highlights
enforcement difficulties. Statutory rights, such as labor laws, seem more consistently
enforced due to dedicated mechanisms.

Detailed Analysis of Human Rights Enforcement in Tanzania

This section provides a comprehensive analysis of the debate on whether human rights in
Tanzania's Bill of Rights are more likely not to be enforced successfully than statutory
rights, drawing on extensive research and legal authorities. The response addresses the
historical, legal, and practical dimensions of human rights enforcement in Tanzania,
supported by examples, recent developments, and judicial decisions.

8|Page
Challenges Facing the Implementation of Human rights in Tanzania

The requirement that there should be three high court judges in human rights cases
has proved to be a challenge as far as implementation of human rights is
concerned. It has been stated that convening a panel of three judges is very
difficult. In any case, before the case comes before the judges it must go through
one judge who is supposed to scrutinise the case and make sure that before it
comes before the panel of three judges it is neither frivolous nor vexatious. This
results into a delay of cases.

Secondly, the courts sometimes might pass a judgement declaring a provision of

the law to be unconstitutional but the parliament may never be quick enough to
change the said law. Therefore, rights continue to be violated.

Thirdly, it has been reported that at times the corruption in the courts makes it
difficult for human rights to be implemented. This denies justice to a number of
victims seeking it.

Introduction to the Debate

The debate centers on the comparative enforceability of human rights as enshrined in

Tanzania's Bill of Rights, part of the 1977 Constitution and added through the Fifth
Amendment in 1984, versus statutory rights created by legislation. Constitutional rights
are fundamental and supreme, while statutory rights are subordinate and subject to
change. The question is whether the former faces greater enforcement challenges than the
latter, given Tanzania's political, judicial, and social context.

9|Page
1.0 Legal Framework for Enforcement

Constitutional Rights Enforcement:

The primary mechanism is through the courts, with the High Court having jurisdiction
over constitutional matters (Article 107). The Basic Rights and Duties Enforcement Act
(1994) facilitates enforcement, allowing individuals to seek redress for violations.

However, recent amendments, such as those in 2020, have been criticized for restricting
public interest litigation, potentially limiting access to justice (Amnesty International,
2020). This reflects a legislative trend that could hinder enforcement.

Statutory Rights Enforcement:

Statutory rights, created by ordinary laws, are enforced through specific legal procedures,
often with dedicated tribunals. For example, labor rights are handled by labor courts,
and environmental rights by environmental tribunals, providing clear pathways for
redress.

These rights are subordinate to the Constitution, meaning they can be struck down if
conflicting, but their specificity and legislative backing might make enforcement more
straight forward in practice.

PRACTICAL ENFORCEMENT: COMPARATIVE ANALYSIS

Constitutional Rights:

Historical cases illustrate enforcement challenges. In Chumchua Marwa (1988) and Daudi
Pete (1989), Justice James Mwalusanya upheld rights, but faced political backlash, with
attempts to undermine his authority, averted only by then-President Nyerere's
10 | P a g e
intervention (Journal of African Law, 2009). This highlights political interference as a
barrier.

Recent developments, such as the government's failure to implement a 2016 High Court
decision to raise the age of marriage for women to 18, show a gap between legal rulings
and enforcement (Human Rights Watch, 2024). Forced evictions of Maasai communities
and arbitrary arrests of opposition figures further indicate enforcement difficulties
(Human Rights Watch, 2025).

Statutory Rights:

Statutory rights, such as labor laws, benefit from dedicated enforcement mechanisms. For
instance, labor courts handle disputes efficiently, and penalties for violations are often
more readily applied, as seen in gender-based discrimination cases reported by the Trade
Union Congress of Tanzania (TUCTA) (U.S. Department of State, 2022). These rights,
being less politically sensitive, might face fewer hurdles, though they lack the permanence
of constitutional rights, as they can be amended or repealed by legislation.

Political Will and Judicial Independence

Political Will, Historical evidence suggests a lack of genuine political will. The 1984 delay
in justiciability and broad restriction clauses reflect state control preferences over
individual freedoms (Wambali, 1997). Recent actions, such as the 2020 amendment
restricting public interest litigation and bans on media and opposition activities, reinforce
this (Amnesty International, n.d.).

The government's withdrawal from allowing direct access to the African Court on
Human and Peoples' Rights (AfCHPR) for individuals and NGOs in 2019, becoming the
second country after Rwanda, undermines international oversight and enforcement
(Amnesty International, 2019).

Judicial Independence. The judiciary faces resource constraints, with only about 60 High
Court judges by 2008 for over 44 million people, delaying justice (Heyns et al., 2003).
11 | P a g e
Political interference, such as transferring judges for unpopular rulings, further weakens
independence, impacting constitutional rights enforcement more than statutory rights,
which often have less contentious procedures.

Recent Developments and Judicial Decisions

Recent reports highlight ongoing challenges. Human Rights Watch (2024) notes
continued forced evictions in Ngorongoro and arbitrary arrests, indicating constitutional
rights violations. The 2025 report details intensified clampdowns on opposition, with
extrajudicial killings and social media censorship, affecting freedom of expression

The AfCHPR has issued significant rulings against Tanzania, with 28 out of 70 decisions
by September 2019, including a November 28, 2019, ruling that a mandatory death
sentence section violates fair trial and life rights, pointing to systemic issues (Amnesty
International, 2019). The East African Court of Justice (EACJ) also declared parts of the
Media Services Act unconstitutional for encroaching on freedom of expression, but
enforcement remains limited due to jurisdictional challenges (Oxford Human Rights Hub,
2019).

Recent judgments from TanzLII, dated November 29, 2024, and May 23, 2024, indicate
judicial engagement, but specifics are unclear, suggesting potential enforcement efforts,
though outcomes are uncertain.2

COMPARATIVE TABLE: ENFORCEMENT CHALLENGES

Aspect Constitutional Rights Statutory Rights

Supremacy Supreme, cannot be easily Subordinate, can be

changed amended or repealed

2
TanzLII. https://tanzlii.org/taxonomy/case-indexes/case-indexes-human-rights.

12 | P a g e
Enforcement Mechanism Courts, Basic Rights Act, but Specific tribunals, clearer
recent restrictions procedures

Political Sensitivity High, often faces resistance Lower, less contentious

Judicial Independence Affected by resource Less impacted, more routine

constraints, interference enforcement

Recent Challenges Forced evictions, arbitrary Generally enforced, e.g.,

arrests, media bans labor laws

Conclusion

Research suggests that human rights in Tanzania's Bill of Rights face significant
enforcement challenges due to historical delays, broad restriction clauses, limited judicial
resources, and political interference. It seems likely that these constitutional rights are
harder to enforce than statutory rights, which benefit from specific mechanisms and
lower political sensitivity. The evidence leans toward a lack of political will, shown by
recent restrictions and delays in implementing court decisions, with controversy around
judicial effectiveness, as some cases succeed while many violations persist. While
constitutional rights provide stronger protection when enforced, practical enforcement is
more challenging, making them less likely to be successfully realized compared to
statutory rights.

13 | P a g e
Question 3. Based on historical and present incidents, support the
argument that constitutionalizing human rights in Tanzania was
and still is not a result of a genuine political will of the ruling class.

3.0 Introduction

This section provides a comprehensive analysis of the argument that constitutionalizing

human rights in Tanzania was and still is not a result of a genuine political will of the
ruling class, based on historical and present incidents. The response draws on extensive
research, legal authorities, and contemporary examples, offering a detailed examination
for an academic audience.

The constitutionalizing of human rights in Tanzania, particularly through the 1984 Fifth
Amendment that incorporated the Bill of Rights into the 1977 Constitution, has been a
significant legal development. However, the argument that this was not driven by
genuine political will is supported by both historical incidents and current challenges. This
analysis explores the political context, legal framework, and practical enforcement to
substantiate this claim, highlighting the ruling class's preference for control over rights
protection.

Tanzania was the active member on OAU which participate fully in making and
drafting the African Chatter on human and peoples

Pressure from different people both internal and external world

Pressure from Zanzibar who really wanted to have the bill of rights, thus
Tanganyika couldn’t avoid

14 | P a g e
3.1.0. Historical Context and Legal Framework.

Tanzania's constitutional history began with the 1961 Independence Constitution, which
lacked a Bill of Rights, reflecting the colonial legacy of limited rights protections.3 The
1977 Constitution, ratified on March 16, 1977, established principles of freedom and
justice but initially omitted justiciable rights, aligning with the one-party state and socialist
ideology under Chama Cha Mapinduzi (CCM)

The pivotal moment came with the 1984 Fifth Amendment, effective from March 15,
1985, under Law No. 15 of 1984, which incorporated Articles 12 to 32, enshrining rights
like life, liberty, and expression.

However, several historical incidents suggest this was not driven by genuine political will:

1. Delayed Justifiability of the Bill of Rights

The Bill of Rights was incorporated in 1984, but its justifiability was postponed for three
years, only becoming enforceable in 1988. This delay indicates reluctance to immediately
allow citizens to challenge rights violations through legal mechanisms, suggesting a lack of
commitment.

Supporting Evidence: Wambali's 1997 thesis, "Democracy and human rights in Tanzania
Mainland: the Bill of Rights in the context of constitutional developments and the history
of institutions..." notes that the government sponsored the enactment but has always
preferred to exercise extreme control over political rights, viewing the Bill of Rights as a
formal gesture rather than a genuine commitment. The Bill of Rights in the context of
constitutional developments and the history of institutions.

2. Pressure from the people/Public Debates.

There was a lot of pressure from people demanding for the incorporation of the bill of
rights into the constitution. The Tanzanian Law Society became very instrumental in 1983

3
(https://en.wikipedia.org/wiki/Constitution_of_Tanzania)).

15 | P a g e
In the constitutional debate on the bill of rights. Seminars were organised to debate more
on the need to amend the constitution and the public also gave various comments on the
constitution. One of the issues tabled at the seminar was the need for the bill of rights in
the constitution, the need for a multiparty government, and freedom of an individual to
form or choose a political party of his choice. The government rejected the idea of a
multiparty system of democracy, and in fact arrested, and detained one of the supporters
of this idea, a lawyer by the names of Wolfgang Dourado, under the preventive
Detention Act of 1962. People suggesting that the amendment was more a response to
public pressure and international democratization demands than an internal drive for
rights protection.

3. Pressure from Zanzibar.

The fact that Zanzibar had already incorporated the bill of rights into its constitution also
added more pressure on the government to incorporate a bill of rights into the
constitution. Much as the Bill of Rights was incorporated into the constitution in 1984, it
was not enforceable or justiciable until 1988. The government requested for time to
organise itself or so to say “put its house in Order.”

4. Regional development on Human Right and the position of Tanzania in Africa.

Tanzania was the active member on OAU which participate fully in making and drafting
the African Chatter on human and peoples. Wambali's thesis emphasizes global factors,
such as pressure from international institutions, as significant drivers, rather than genuine
domestic political will The Bill of Rights in the context of constitutional developments
and the history of institutions.

5. Broad Restriction Clauses in the Constitution

The 1977 Constitution, even after the 1984 amendment, includes broad restriction clauses
(e.g., Article 30(2)) that allow limitations on rights for reasons such as public safety,

16 | P a g e
order, and morality. These clauses have been criticized for being too vague, potentially
enabling excessive restrictions and undermining the practical impact of the Bill of Rights.

Supporting Evidence: The document "HISTORY OF BILL OF RIGHTS IN TANZANIA"

highlights that the government initially resisted including a bill of rights, arguing it would
hamper development, and the inclusion of such clauses suggests a preference for state
control over individual freedoms

Government Resistance to Judicial Activism. Historical cases such as Chumchua Marwa

(1988) and Daudi Pete v. URT (1989) demonstrated judicial willingness to uphold rights,
but judges like Justice James Mwalusanya faced political backlash for their rulings. This
indicates that the government was not supportive of independent judicial enforcement of
constitutional rights, further evidencing a lack of political will.

Supporting Evidence: The Journal of African Law (2009) discusses how political
interference, such as attempts to undermine judicial authority, reflected the ruling class's
resistance to rights enforcement

PRESENT INCIDENTS INDICATING ONGOING LACK OF POLITICAL WILL

Current challenges further support the argument that the ruling class lacks genuine
commitment to human rights:

1. Restrictions on Public Interest Litigation

In 2020, the Tanzanian Parliament amended the Basic Rights and Duties Enforcement Act
to restrict public interest litigation, requiring individuals or groups to demonstrate

17 | P a g e
personal harm before challenging laws or policies. This amendment severely limits the
ability of civil society to hold the government accountable for rights violations.

Supporting Evidence: Human Rights Watch reported, "Tanzania’s parliament has fast-
tracked a legal amendment that threatens to severely restrict the capacity of independent
rights groups to challenge laws, practices, or policies they believe violate fundamental
human rights," undermining a key mechanism for rights enforcement ([Public Interest
Litigation Under Threat in Tanzania .

2. Failure to Implement Court Decisions

The government has failed to implement key court rulings, such as the 2016 High Court
decision to raise the age of marriage for women to 18. This failure undermines the rule of
law and the effectiveness of constitutional rights.

Supporting Evidence: Human Rights Watch’s 2024 report states, "The government failed
to implement a 2016 High Court decision to raise the age of marriage for women to 18,"
highlighting ongoing enforcement gaps.

3. Withdrawal from International Human Rights Mechanisms

In 2019, Tanzania withdrew from allowing direct access to the African Court on Human
and Peoples' Rights (AfCHPR) for individuals and NGOs, becoming the second country
after Rwanda to do so. This move undermines international oversight and enforcement
of human rights, suggesting a lack of commitment to accountability.

Supporting Evidence: Amnesty International noted, "Tanzania’s withdrawal of individual

rights to African Court will deepen repression," indicating a strategic move to limit
external scrutiny.

Comparative Analysis and Impact

18 | P a g e
The table below summarizes key historical and present incidents, their details, and their
impact on the argument of lack of political will: This table illustrates a consistent pattern
of actions and inactions that undermine the argument for genuine political will.

period Incident Details Impact on argumen

Historical Delayed Bill of Rights Suggests reluctance,

Justiciability (1984) incorporated but lack of genuine
justiciability delayed commitment.
for three years.

Broad Restriction Vague clauses allow Indicates preference

Clauses (Article extensive limitations for control over
30(2)) on rights. rights protection.

Resistance to Backlash against Shows government

Judicial Activism judges upholding resistance to
rights, e.g., Justice independent rights
Mwalusanya. enforcement.

Present Restrictions on Limits on expression, Demonstrates

Freedoms assembly, especially ongoing intolerance
for opposition (U.S. for dissent.
State Dept, 2022).

Forced Evictions Continued evictions Violates property

of Maasai rights, shows lack of
communities (HRW, enforcement.
2024).

Restrictions on 2020 amendment Undermines

19 | P a g e
 Litigation limits public interest accountability,
litigation (HRW, restricts rights
2020) enforcement.

Failure to Non- Highlights

Implement Court implementation of enforcement gaps,
Decisions 2016 marriage age lack of rule of law.
ruling (HRW,
2024).

Withdrawal from 2019 withdrawal Reduces

AfCHPR Access limits international accountability,
oversight (Amnesty, suggests lack of
2019). commitment.

Conclusion

Research suggests that the constitutionalizing of human rights in Tanzania was influenced
by international pressure and public debates rather than a genuine political will of the
ruling class. Historically, this is evidenced by the delayed justiciability of the Bill of Rights,
the inclusion of broad restriction clauses, and resistance to judicial activism, all pointing
to a preference for control over rights protection. It seems likely that the ruling class
viewed the Bill of Rights as a formal gesture to meet external expectations, as noted in
Wambali's thesis and contemporary analyses. The evidence leans toward ongoing lack of
commitment, with present incidents such as restrictions on freedoms, forced evictions,
limitations on litigation, failure to implement court decisions, and withdrawal from
international mechanisms all demonstrating a lack of sincere effort to uphold human
rights. There is controversy around whether these actions reflect a lack of will or practical
challenges, but the pattern of political resistance and control suggests the former,
particularly given the ruling class's historical and current actions.
20 | P a g e
This analysis, supported by legal authorities and examples, confirms that
constitutionalizing human rights in Tanzania was and still is not a result of genuine
political will, but rather a response to external and internal pressures with limited
implementation.

Question 4. Of all the regional human rights systems, the African

system is the most developed. Discuss the truth of this statement
with the aid of relevant authorities and examples, if any.

Research suggests the African human rights system is not the most developed, being
younger and having fewer mechanisms. It seems likely that the European system is the
most developed, given its longevity and extensive case law.The evidence leans toward th
e Inter-American system also being well-developed, particularly in individual rights
protection. There is controversy around the African system's unique features, like
collective rights, but these don't make it more developed in institutional terms.

Age and Establishment

21 | P a g e
The European system, starting in 1950 with the European Convention on Human Rights,
is the oldest. The Inter-American system began in 1948 with the American Declaration
and formalized in 1969 with the Convention. The African system, with its Charter
entering force in 1986, is the youngest.

Institutional Framework

The European system has a wide range of institutions, like the European Court of Human
Rights, with extensive case law. The Inter-American system includes a commission and
court, both active for decades. The African system has a commission and a court, but the
latter, established in 2004, has fewer judgments.

Case Law and Impact

The European Court has handled over 20,000 cases, influencing global standards. The
Inter-American Court has significant case law on issues like extrajudicial killings. The
African Court, with only 35 judgments by 2023, has less impact.

Compliance and Enforcement

The European system has strong state compliance, though enforcement can be
challenging. The Inter-American system has binding decisions with varying compliance.
The African system struggles with compliance and has fewer enforcement mechanisms.

Unique Features

The African system uniquely recognizes collective rights and the right to development,
reflecting African values. However, these features don't necessarily make it more
developed in terms of maturity or impact.

22 | P a g e
4.1 Introduction.

This section provides a comprehensive analysis of the statement that "the African system
is the most developed" among regional human rights systems, comparing it with the
European and Inter-American systems. The response draws on extensive research, legal
authorities, and examples, offering a detailed examination for an academic audience.

Regional human rights systems play a crucial role in localizing international human rights
norms, reflecting regional concerns, and providing mechanisms for enforcement. The
three main systems are the African, European, and Inter-American, each with distinct
instruments and bodies. The statement claims the African system is the most developed,
which requires evaluating its maturity, institutional framework, case law, compliance,
and unique features compared to the others.

Historical Context and Establishment

4.2 The age of a system often correlates with its development, as older systems have had
more time to establish mechanisms and case law.

European System: Established with the European Convention on Human Rights in 1950,
under the Council of Europe, it is the oldest and most extensive, involving multiple
organizations like the European Union and the Organisation for Security and
Cooperation in Europe Universal Rights Group Its longevity has allowed for a robust
framework, with 47 member states under the court's jurisdiction by 2010, as noted in

Inter-American System: Began with the American Declaration on the Rights and Duties of
Man in 1948, formalized by the American Convention on Human Rights in 1969, and the
Inter-American Court established in 1979, under the Organisation of American States

23 | P a g e
([Regional Human Rights Mechanisms. It covers 35 member states, with a focus on
individual petitions and advisory opinions.

-African System: The African Charter on Human and Peoples' Rights, adopted in 1981 and
entering into force in 1986, is the principal instrument, with the African Commission
established in 1987 and the African Court in 2004, under the African Union

Given this, the African system is clearly the youngest, which impacts its development
compared to the more established European and Inter-American systems.

4.3 Institutional Framework and Mechanisms

The development of a system is also measured by the breadth and effectiveness of its
institutions.

European System: Includes the European Court of Human Rights, European Committee
of Social Rights, and European Committee for the Prevention of Torture, Commission
against Racism and Intolerance, and Commissioner for Human Rights, all with specific
mandates ([A Rough Guide to the Regional Human Rights Systems. The court's decisions
are binding for states accepting jurisdiction, and it accepts individual and state
applications, handling over 120,000 cases in backlog by early 2010.

Inter-American System: Comprises the Inter-American Commission on Human Rights,

with 7 Commissioners and various rapporteur ships (e.g., Freedom of Expression,
Women, Indigenous Peoples), and the Inter-American Court, based in San Jose, Costa

24 | P a g e
Rica, with binding, unappeasable sentences. It has been active since 1979, with a focus on
individual complaints.

African System: Includes the African Commission on Human and Peoples' Rights, with 11
experts in Banjul, Gambia, and 6 Special Rapporteurs, and the African Court, established
in 2004 in Arusha, Tanzania, interpreting the Charter and other instruments. It has
working groups like those on Indigenous Populations and Economic Rights, but fewer
specialized mechanisms compared to Europe.

The European system has the most extensive institutional framework, followed by the
Inter-American, with the African system having fewer specialized bodies, indicating less
development in this aspect.

4.4 Case Law and Impact

The volume and influence of case law are critical indicators of a system's development.

European System: The European Court of Human Rights has issued over 20,000
judgments since 1959, significantly influencing domestic laws and international human
rights standards. Its 1,503 verdicts in 2007 and backlog of over 120,000 cases in early
2010 show high engagement.

Inter-American System: The Inter-American Court has developed substantial case law,
particularly on issues like extrajudicial killings and disappearances, with binding decisions
since 1979, impacting states like Argentina and Guatemala.

African System: The African Court, established in 2004, has issued only 35 judgments by
2023, indicating a less extensive body of case law compared to the others. The African
Commission's decisions, while numerous, are often recommendations rather than binding,

25 | P a g e
limiting impact. The European and Inter-American systems have a more developed case
law, with the African system still building its jurisprudence.

4.5 Compliance and Enforcement

Enforcement and state compliance are crucial for assessing development.

European System: Has a strong record of state compliance, though enforcement can be
challenging, with mechanisms like the Committee of Ministers ensuring follow-up. Its
decisions are binding, and states generally implement them, though delays occur.

Inter-American System: Faces varying levels of compliance, with binding court decisions,
but some states, like Venezuela, have resisted, leading to tensions. The system's
enforcement is supported by OAS mechanisms, but effectiveness varies.

African System: Struggles with state compliance, with fewer enforcement mechanisms.
For example, Tanzania withdrew from allowing direct access to the African Court in
2019, undermining enforcement. The African Court's impact is limited by low ratification
rates, with only 8/15 states ratifying the merger protocol.

The European system has the strongest compliance and enforcement, followed by the
Inter-American, with the African system facing significant challenges.

4.6 Unique Features and Regional Considerations

Each system has unique features, which may affect perceived development.

African System: Distinctive for recognizing collective rights (e.g., peoples' rights) and the
right to development, reflecting African traditions and values. It also includes duties,

26 | P a g e
balancing individual and community rights, which is unique but doesn't necessarily
indicate higher development in institutional terms.

European System: Focuses on individual rights with a strong social rights framework, like
the European Social Charter, and has extensive mechanisms for specific issues like torture
prevention

Inter-American System: Emphasizes individual petitions and has been active in addressing
systemic abuses, with rapporteurships on marginalized groups like indigenous peoples
and LGBT rights, enhancing its development. While the African system's unique features
are valuable, they do not make it more developed compared to the mature institutional
frameworks of the European and Inter-American systems.

Comparative Table: Development Metrics

Metric European System Inter-American African System

System

Establishment 1950 1948 (Declaration), 1986 (Charter)

1969 (Convention)

Key Bodies ECHR, ECSR, CPT, IACHR, IACtHR ACHPR, AfCtHPR

etc.

Case Law Volume Over 20,000 Substantial, since 35 judgments by

judgments 1979 2023

Compliance Strong, with Varying, binding Struggles, low

challenges decisions enforcement

Unique Features Strong social rights, Focus on individual Collective rights,

extensive petitions, right to
mechanisms rapporteurships development

27 | P a g e
Conclusion

Research suggests the African human rights system is not the most developed, being
younger and having fewer mechanisms. It seems likely that the European system is the
most developed, given its longevity, extensive case law, and strong enforcement record.
The evidence leans toward the Inter-American system also being well-developed,
particularly in individual rights protection, with active courts and commissions. There is
controversy around the African system's unique features, like collective rights, but these
don't make it more developed in institutional terms. While the African system is evolving
and has made significant strides, it is still in the process of establishing itself as a robust
and influential human rights mechanism, lagging behind the European and Inter-
American systems in maturity and impact.

28 | P a g e
Question 5. The Constitution of the United Republic of Tanzania,
1977 provide all the necessary guidance for limitations of rights.
Discuss the truth of this statement with the aid of relevant
authorities and or examples.

The Tanzanian Constitution provides significant guidance on limiting rights, but there are
potential gaps in clarity. It seems likely that the broad grounds for limitations could allow
for abuse if not interpreted strictly by courts. The evidence leans toward the Constitution
being largely sufficient, though it lacks explicit proportionality tests. There is controversy
around whether the guidance is comprehensive enough, with some arguing for more
specific language.

The Constitution of the United Republic of Tanzania, 1977, includes provisions that
guide how rights can be limited, balancing individual freedoms with public interests.
However, its adequacy depends on interpretation and enforcement. Key articles like
Article 30 outline that rights must not interfere with others' rights or public interest,
listing grounds such as public safety and morality for limitations. Article 31 allows for
emergency derogations, ensuring necessary measures during crises.

While these provisions cover many scenarios, the broadness of terms like "public interest"
raises concerns about potential abuse. Courts play a crucial role in ensuring limitations
are justified, but the Constitution could benefit from explicit proportionality
requirements. This section provides a comprehensive analysis of the statement that the
Constitution of the United Republic of Tanzania, 1977, provides all the necessary
guidance for limitations of rights, drawing on extensive research, legal authorities, and
examples. The response evaluates the constitutional provisions, their sufficiency, and
potential criticisms, offering a detailed examination for an academic audience.

29 | P a g e
5.0 Introduction

The Tanzanian Constitution, ratified on March 16, 1977, and amended through 2005,
includes a Bill of Rights (Articles 12-32) incorporated in 1984, effective from 1988, which
outlines fundamental rights and their limitations. The question is whether these
provisions provide "all the necessary guidance" for limiting rights, ensuring a balance
between individual freedoms and collective interests. This analysis explores the relevant
articles, their scope, and critiques, supported by legal texts and scholarly discussions.

5.1 Key Provisions on Limitations of Rights

The Constitution provides specific guidance on limitations through several articles,

primarily Article 30 and Article 31, with additional context in related provisions:

Article 30: Limitations upon, and enforcement and preservation of basic rights, freedoms,
and duties

Article 30(1): States that human rights and freedoms, as set out in the Constitution, shall
not be exercised in a manner that causes interference with or curtailment of the rights
and freedoms of other persons or the public interest. This establishes a general principle
that rights are not absolute and must be balanced against others' rights and public interest.

Article 30(2): Outlines specific purposes for which laws can limit rights, including:

- Ensuring the rights of others or public interest are not prejudiced (Article 30(2)(a)).

- Defense, public safety, order, morality, health, rural/urban planning, mineral

exploitation, property development, or public benefit (Article 30(2)(b)).

- Executing court judgments or orders (Article 30(2)(c)).

30 | P a g e
 - Protecting reputation, rights, freedoms of others, privacy in court proceedings,
confidential information, or court dignity/authority/independence (Article 30(2)(d)).

- Regulating private societies/organizations (Article 30(2)(e)).

- Promoting/preserving national interest (Article 30(2)(f)).

- Article 30(3-5): Provides enforcement mechanisms, allowing individuals to seek

redress in the High Court for alleged violations, with the court having original jurisdiction
and the power to allow the government to rectify defective laws or actions instead of
declaring them void immediately.

Article 31: Derogation from rights and freedoms

- Article 31(1-2): Allows laws to enable measures during emergencies or for persons
endangering national security that derogate from Articles 14 (Right to life) and 15 (Right
to personal freedom), but only if necessary and justifiable.

- Article 31(3): Prohibits deprivation of the right to live except for deaths from acts of
war.

- Article 31(4): Defines "state of emergency" as periods under Presidential proclamation,

providing clarity for emergency derogations.

Other Relevant Articles with Specific Limitations:

- Article 5(2): Parliament can restrict voting rights for reasons like dual citizenship,
mental infirmity, certain criminal convictions, or failure to prove
age/citizenship/registration, ensuring electoral integrity.

31 | P a g e
 - Article 17(2): Freedom of movement can be limited by lawful acts/laws for executing
court orders, compliance with obligations, or protecting public/special interests,
balancing mobility with legal obligations.

- Article 19(2): Freedom of religion is protected per laws important for democratic
society security, peace, integrity, and national cohesion, ensuring religious harmony.

- Article 20(2-3): Freedom of association is limited; unlawful for political entities

promoting religious/tribal/racial/gender interests, advocating breakup/violence, or
operating in one part, with legislation for regulation, ensuring national unity.

These provisions collectively provide a structured framework for limiting rights, aligning
with the need to balance individual freedoms with collective interests and public order.

5.3 Evaluation of Sufficiency

To determine if the Constitution provides "all the necessary guidance," we assess whether
these provisions are comprehensive, clear, and sufficient to prevent abuse while ensuring
rights are protected. The following points highlight both strengths and potential gaps:

Comprehensive Coverage: The grounds listed in Article 30(2) are broad and cover most
scenarios where limitations might be required, such as public safety, morality, health, and
national interest. This aligns with international human rights standards, such as the
International Covenant on Civil and Political Rights (ICCPR), which allows for limitations
on rights like freedom of expression for reasons like public order or national security,
provided they are necessary and prescribed by law

Enforcement Mechanisms: Article 30(3-5) ensures individuals can seek redress in the High
Court, and Article 130 establishes the Commission for Human Rights and Good
Governance, providing additional mechanisms for promoting and protecting rights. This

32 | P a g e
ensures accountability and access to justice, which is crucial for effective guidance on
limitations.

5.4 Potential Gaps and Criticisms:

Broadness of Grounds: The grounds for limitation in Article 30(2), such as "public
interest" or "national interest," are quite broad. While this allows flexibility, it could lead
to abuse if not narrowly interpreted by the courts. For example, "public interest" could
be invoked to justify excessive restrictions, as seen in recent criticisms of laws like the
2020 amendment to the Basic Rights and Duties Enforcement Act, which restricts public
interest litigation, undermining the ability to challenge rights violations

Lack of Explicit Proportionality Test: Unlike some international standards (e.g., ICCPR
Article 19(3)), the Tanzanian Constitution does not explicitly state that limitations must
be "necessary" or "proportionate." While Article 31 requires derogations to be "necessary
and justifiable," this standard is not explicitly applied to regular limitations under Article
30. However, courts may interpret these provisions to include proportionality, as is
common in human rights jurisprudence. For instance, judicial decisions like Marando
(1993) have upheld proportionality in interpreting rights limitations, but this relies on
case law rather than constitutional text

Balancing Conflicting Rights: Article 30(1) states that rights must not be exercised to
interfere with others' rights, providing some guidance for balancing conflicting rights (e.g.,
freedom of expression vs. right to privacy). However, the Constitution could be more
explicit in outlining how such conflicts should be resolved, ensuring clarity for both
citizens and authorities.

Judicial and Practical Challenges: The effectiveness of these provisions depends on

judicial interpretation and enforcement. Historical and present incidents suggest
challenges:

33 | P a g e
Political interference, such as backlash against judges like Justice James Mwalusanya in the
1980s for upholding rights, indicates potential resistance to enforcing limitations fairly

Resource constraints, with only about 60 High Court judges by 2008 for over 44 million
people, can hinder timely enforcement

Recent reports highlight ongoing violations, such as forced evictions of Maasai

communities and restrictions on opposition, suggesting that broad limitation grounds are
sometimes misused

Comparative Analysis with International Standards

Tanzania's approach to limitations aligns with international human rights law, but there
are differences in specificity:

ICCPR: Article 19(3) requires restrictions to be "provided by law" and "necessary" for
specific purposes, with a clear proportionality test. The Tanzanian Constitution's Article
30(2) lists similar purposes but lacks explicit necessity and proportionality language,
relying on judicial interpretation.

African Charter: Article 27 allows limitations for reasons like national security and public
order, but emphasizes that they must be "necessary" and "proportionate." This suggests
that Tanzania's Constitution could strengthen its guidance by adopting similar explicit
standards.

COMPARISON OF LIMITATION PROVISIONS

Aspect CURT (Article 30) ICCPR (19(3)) ACHRPR (Article

27)

Grounds for Limitation Public safety, Public order, National security,

order, morality, national security, public order,

34 | P a g e
 health, national rights of others, etc public health, etc.
interest, etc.

Necessity/Proportionality Implied, not Explicit: must be Explicit: must be

explicit; relies on "necessary" and "necessary" and
judicial proportionate proportionate
interpretation

Enforcement Mechanism High Court International African

redress, oversight, Human Commission and
Commission for Rights Committee Court oversight
Human Rights

Conclusion

Research suggests the Tanzanian Constitution provides significant guidance on limiting

rights through Article 30 and other provisions, covering a wide range of grounds and
ensuring enforcement mechanisms. It seems likely that the broad grounds for limitations
could allow for abuse if not interpreted strictly by courts, as seen in recent criticisms of
laws restricting litigation and ongoing human rights violations. The evidence leans
toward the Constitution being largely sufficient, given its alignment with international
standards and judicial mechanisms, though it lacks explicit proportionality tests, which is
a point of controversy. While the Constitution is a living document interpreted by courts,
enhancing clarity with explicit necessity and proportionality requirements could
strengthen its guidance, ensuring it provides "all the necessary guidance" in practice.

35 | P a g e