Tanzania Human Rights Report 2011

Transcription

Tanzania Human Rights
Report 2011
Part One: Tanzania Mainland – Legal and Human Rights Centre
(LHRC)
Part Two: Tanzania Zanzibar – Zanzibar Legal Services Centre
(ZLSC)
Partners
Embassy of Sweden
Norwegian People‘s Aid
Foundation for Civil Society
Accountability in Tanzania
Embassy of Finland
Publishers
Legal and Human Rights Centre
Justice Lugakingira House, Kijitonyama
P.O.BOX 75254, Dar es Salam, Tanzania
Tel: +255222773038/48,
Fax +255222773037
Email: [email protected]
Website www.humanrights.or.tz
&
Zanzibar Legal Services Centre
P.O.Box 3360, Zanzibar, Tanzania
Tel: +2552422384
Fax: +255242234495
E-mail: [email protected]
Website: www.hudumazasheria.or.tz
ISBN: 978-9987-432-9-2
©
LHRC & ZLSC
2012
ii
Editorial Board - Part One
Dr. Helen Kijo-Bisimba
Adv. Imelda Lulu Urrio
Adv. Harold Sungusia
Ms. Rose Ngunangwa Mwalongo
Adv. Laetitia Petro
Adv. Edna Lushaka
Ms. Anna Henga
Mr. Rodrick Maro
Researchers
Onesmo Olengurumwa
Pasience Mlowe
Research Assistants
Paul Mhaya
Godfrey Steven
Writers
Onesmo Olengurumwa
Pasience Mlowe
Erin Riley
Layout & Design
Rodrick Maro
iii
Acknowledgements
Preparaton, research and writing of the Tanzania Human Rights Report of 2011 could have
not been possible without the massive support and assistance of various stakeholders,
institutions and individuals. We will not be reasonable if some among many would go
unmentioned here for their valuable contribution during the preparation of this report.
The LHRC would like to express its deep appreciation; first and foremost to its researchers
Onesmo Olengurumwa, Pasience Mlowe and Erin Riley who devoted much of their time and
professionalism to collect and analyse information, as well as writing this report.
LHRC received immense support, assistance and encouragement from all key and strategic
stakeholders during the preparation of this document. These include people from the civil
society, leaders of various government institutions/ministries, international and local
organizations for availing us with relevant information that made this report rich and
authoritative.
Special thanks should also go to the editorial team, led and coordinated by the Research and
Human Rights Monitoring Unit of the LHRC; in particular Dr. Helen Kijo-Bisimba, Adv.
Imelda Lulu Urrio, Adv. Laetitia Petro, Rose Ngunangwa Mwalongo, Adv. Edna Lushaka,
Anna Henga and Rodrick Maro. We are also grateful to the LHRC’s field Monitors as well as
the entire staff, interns and volunteers who played a significant role in providing updated
information about the human rights situation throughout the country.
Finally, the LHRC appreciates continuous support from its partners, including the Embassy
of Sweden, Norwegian Peoples’ Aid, The Foundation for Civil Society and Accountability in
Tanzania.
iv
Table of Contents
Acknowledgements ...................................................................................................................................................... iv
Table of Contents .......................................................................................................................................................... v
List of Abbreviations and Acronyms ........................................................................................................................... xii
Legislations ................................................................................................................. Error! Bookmark not defined.
Regulations and Government Notices ........................................................................................................................ xix
List of Cases ................................................................................................................................................................ xx
Preface ....................................................................................................................................................................... xxii
Introduction .............................................................................................................................................................. xxiv
Chapter One ................................................................................................................................................................. 1
General Overview of Tanzania ................................................................................................................................... 1
1.1 Introduction ............................................................................................................................................................. 1
1.2 Geography ............................................................................................................................................................... 1
1.3 People ...................................................................................................................................................................... 3
1.4 Economy .................................................................................................................................................................. 3
1.4.1 General Description of the Tanzanian Economy .................................................................................... 3
1.4.2
Economic Situation by 2011 ........................................................................................................... 4
1.5 Historical Overview: Colonialism to Present ...................................................................................................... 5
1.6 Governance System ............................................................................................................................................... 7
1.6.1 The Executive ......................................................................................................................................... 7
1.6.2 The Legislature ....................................................................................................................................... 7
1.6.3 The Judiciary .......................................................................................................................................... 8
Chapter Two .............................................................................................................................................................. 10
Civil Rights and Liberties ......................................................................................................................................... 10
2.0 Introduction ........................................................................................................................................................... 10
2.1 Right to Life .......................................................................................................................................................... 11
2.1.1 Death Penalty in Tanzania: 17 Years of Psychological Torture in Prison ............................................ 12
2.1.2
Extra -Judicial Killings and Police Brutality ................................................................................ 17
2.1.3
Mob Violence ............................................................................................................................... 28
2.1.4
Killings due to Witchcraft ............................................................................................................. 33
2.1.5
Security of People with Albinism in Tanzania: Unfinished Business ........................................... 36
2.1.6
Road Accidents ............................................................................................................................. 38
2.2 Equality before the Law: Access to Justice and Fair Trials ................................................................................... 41
2.2.1
Independence and Impartiality of the Judiciary ............................................................................ 42
2.2.2
Judicial Infrastructure: Human Resources and Facilities .............................................................. 44
2.2.3 Right to Legal Representation .............................................................................................................. 45
2.3 Freedom of Opinion and Expression ..................................................................................................................... 47
2.3.1 Right to Information ............................................................................................................................. 47
2.3.2 Freedom of the Media .......................................................................................................................... 50
2.3.3 Harassment of Journalists ..................................................................................................................... 53
2.4 Forms of Torture in Tanzania ................................................................................................................................ 54
Chapter Three............................................................................................................................................................ 57
Political Rights ........................................................................................................................................................... 57
3.0 Introduction ........................................................................................................................................................... 57
3.1 Freedom of Assembly............................................................................................................................................ 57
3.2 Freedom of Association ......................................................................................................................................... 59
3.2.1 Freedom of Association for Political Parties ........................................................................................ 60
3.2.2. Freedom of Association as NGOs ....................................................................................................... 62
3.2.3 Freedom of Association for Trade Unions ........................................................................................... 65
3.3 Right to take Part in Governance ........................................................................................................................... 69
3.3.1 Post 2010 General Election Situation ................................................................................................... 69
3.4 Regional and District Commissioners: Political Figures or Civil Servants? ........................................................ 77
3.5 50 years of Independence without a New Constitution? ....................................................................................... 78
3.6 The URT Constitution, 1977 versus the 10th Amendment of Zanzibar Constitution ............................................. 81
Chapter Four ............................................................................................................................................................. 83
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Social Rights ............................................................................................................................................................... 83
4.0 Introduction ........................................................................................................................................................... 83
4.1 Right to Health ...................................................................................................................................................... 83
4.1.1 Accessibility to Health Facilities .......................................................................................................... 84
4.2 Right to Education ................................................................................................................................................. 95
4.2.1 Primary and Secondary Education; 50 years After Independence ........................................................ 97
4.2.2 Education and Poor Performance ......................................................................................................... 98
4.2.3 School Pregnancies ............................................................................................................................. 102
4.2.4 Higher Learning Institutions ............................................................................................................... 103
Chapter Five ............................................................................................................................................................ 107
Economic and Cultural Rights ............................................................................................................................... 107
5.0 Introduction ......................................................................................................................................................... 107
5.1 Cultural Rights as Human Rights ........................................................................................................................ 107
5.2 Economic Rights ................................................................................................................................................. 110
5.2.1 Economic Growth ............................................................................................................................... 111
5.2.2 Inflation Rate ...................................................................................................................................... 113
5.3 Labour Rights as Human Rights .......................................................................................................................... 114
5.3.1 Right to Work ..................................................................................................................................... 114
5. 3.2
Fair Remuneration ...................................................................................................................... 115
5.4 Right to Own Property......................................................................................................................................... 120
5.4.1 Land Related Conflicts ....................................................................................................................... 120
5.4.2 Ruthless Evictions .............................................................................................................................. 123
Chapter Six .............................................................................................................................................................. 129
Rights of Vulnerable Groups .................................................................................................................................. 129
6.0 Introduction ......................................................................................................................................................... 129
6.1 Rights of Women ................................................................................................................................................. 130
6.1.1 Discriminatory Laws and Contradicting Legislations ........................................................................ 131
6.1.2 Female Genital Mutilation .................................................................................................................. 133
6.1.3 Prevalence of Domestic Violence ....................................................................................................... 137
6.1.4 Trafficking in Persons ........................................................................................................................ 141
6.2 Rights of the Child............................................................................................................................................... 143
6.2.1 Violations of the Rights of the Child .................................................................................................. 145
6.2.2
Rights of the Unborn Child ........................................................................................................ 147
6.2.3
Child Labour and Economic Hardships ..................................................................................... 148
6.2.4
Children in Conflict with the Law ............................................................................................. 148
6.3 Rights of Refugees .............................................................................................................................................. 149
6.3.1
Number of Refugees ................................................................................................................... 150
6.3.2
Local Integration Program .......................................................................................................... 151
6.3.3
Situation of Stateless Persons .................................................................................................... 152
6.4 Rights of Indigenous People ................................................................................................................................ 152
6.4.1
Challenges of Indigenous People ................................................................................................ 153
6.5 Rights of Persons with Disabilities (PWD) ......................................................................................................... 155
6.5.1
The State of Persons with Disabilities in Tanzania ..................................................................... 155
6.6 Rights of Aged Persons ....................................................................................................................................... 156
6.6.1
Legal Protection of Aged People ................................................................................................ 156
6.6.6 Former EAC Employees Still in Courts Corridors ............................................................................. 159
Chapter Seven .......................................................................................................................................................... 162
Collective Rights ...................................................................................................................................................... 162
7.0 Introduction ......................................................................................................................................................... 162
7.1 Right to development .......................................................................................................................................... 162
7.1.1 Kilimo Kwanza (Green Revolution) ................................................................................................... 166
7.1.2
Food Security .............................................................................................................................. 170
7.2 Human Rights and Environment ......................................................................................................................... 172
7.2.1 Pollution in Mining Areas .................................................................................................................. 173
7.3 Corporate Social Responsibility .......................................................................................................................... 176
7.4 Consumers’ Rights .............................................................................................................................................. 178
7.5 A Glimpse on the Right to Access Natural Resources ......................................................................................... 179
7.5.1
Mining Industry: The Lost Golden Opportunity ........................................................................ 181
Chapter Eight .......................................................................................................................................................... 184
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Domestic Initiatives in Human Rights Protection ................................................................................................ 184
8.0 Introduction ......................................................................................................................................................... 184
8.1 Tanzania Commission for Human Rights and Good Governance (CHRAGG)................................................... 184
8.1.1 CHRAGG and the Paris Principles ..................................................................................................... 185
8.2 Tanzania Prison Service ...................................................................................................................................... 187
8.3.1 Current Prison Situation ..................................................................................................................... 189
8.3.2 Treatment of Prison Officials ............................................................................................................. 189
8.3.3 Treatment of Prisoners ....................................................................................................................... 190
8.3.4 Vulnerable Groups in Prisons ............................................................................................................. 191
8.3 Police in Tanzania ............................................................................................................................................... 193
8.3.1 Crime Prevention Capacity and Community Perception .................................................................... 194
8.3.2 Community Policing (Polisi Jamii) .................................................................................................... 195
8.3.3 Challenges Facing the Police Force in Tanzania ................................................................................ 197
Chapter Nine ............................................................................................................................................................ 199
Corruption and Abuse of Power ............................................................................................................................ 199
9.0 Introduction ......................................................................................................................................................... 199
9.1 Legal Framework to fight Corruption.................................................................................................................. 199
9.2 Role of Institutions in fighting corruption 2011 ................................................................................................. 201
9.2.1 PCCB .................................................................................................................................................. 201
9.2.2
Public Procurement Regulatory Authority (PPRA) .................................................................... 202
9.2.3 Ethics Secretariat ................................................................................................................................ 203
9.3.4 The Role of Civil Societies and Media in the Fight against Corruption ............................................. 204
9.4 Corruption Perception Index of Tanzania at International level .......................................................................... 205
9.4.1Transparency International Corruption Index (CPI) ............................................................................ 205
9.4.2 Corruption Perception Index according to MO Ibrahim Index ........................................................... 205
9.4.3 Corruption Perception Index According to EAC – Bribery Index 2011............................................. 206
9.5 Political Corruption ............................................................................................................................................. 207
9.5.1 Corruption in Elections....................................................................................................................... 207
9.5.2 Corruption in the Parliament .............................................................................................................. 208
9.6 Abuse of Power ................................................................................................................................................... 209
9.6.1 Illegal Export of Wildlife ................................................................................................................... 210
9.6.2 Corruption Scandals in the Ministry of Land and Human Settlement Development.......................... 210
9.6.3 Major Business Companies vs Tax Evasion ....................................................................................... 211
9.6 .4
Unnecessary Expenditures .......................................................................................................... 212
9.7 Investment with Corruption Elements ................................................................................................................. 213
9.7.1 Dowans Case: A Nightmare Still Haunting Tanzania ........................................................................ 213
9.7.2
The Sale of UDA ........................................................................................................................ 214
9.7.3
KAGODA Agriculture Ltd ......................................................................................................... 215
Chapter 10 ................................................................................................................................................................ 216
International Human Rights Law .......................................................................................................................... 216
10. Introduction ......................................................................................................................................................... 216
10.1 How International Law Binds Tanzania Domestically ........................................................................ 216
10.2 Adoption of International Human Rights Instruments....................................................................................... 217
10.2.1
International Bill of Human Rights ............................................................................................. 217
10.2.2
Other Binding International Human Rights Treaties .................................................................. 218
10.2.3
Non-Binding International Human Rights Instruments .............................................................. 219
10.2.4
International Labour Organization Conventions ......................................................................... 220
10.3 Treaty Reporting Requirements ......................................................................................................................... 221
Bibliography............................................................................................................................................................. 224
Part II ............................................................................................................................. Error! Bookmark not defined.
ZANZIBAR HUMAN RIGHTS REPORT OF 2011 ............................................................................................ 241
LIST OF ABBREVIATIONS ................................................................................................................................... 246
LIST OF CASES ....................................................................................................................................................... 249
INTERNATIONAL LEGAL INSTRUMENTS ........................................................................................................ 251
LEGISLATION ......................................................................................................................................................... 253
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CHAPTER ONE ...................................................................................................................................................... 256
General Overview of Zanzibar ............................................................................................................................... 256
1.0 Introduction ......................................................................................................................................................... 256
1.1 History ................................................................................................................................................................. 256
1.2 Geography ........................................................................................................................................................... 257
1.3 People .................................................................................................................................................................. 258
1.4 Economy .............................................................................................................................................................. 258
1.5 Political System ................................................................................................................................................... 259
1.6 Judiciary .............................................................................................................................................................. 260
1.8 Conclusion ........................................................................................................................................................... 262
CHAPTER TWO ..................................................................................................................................................... 263
Civil Rights and Liberties ....................................................................................................................................... 263
2.0 Introduction ......................................................................................................................................................... 263
2. 1 Right to Life ....................................................................................................................................................... 263
2.1.1 Road Accidents ................................................................................................................................................. 264
2.1.2 The Sinking of M.V Spice Islander I .................................................................................................. 265
2.3 Death Penalty ...................................................................................................................................................... 266
2.4 Mob Violence ...................................................................................................................................................... 268
2.5 Freedom from Torture ......................................................................................................................................... 269
2.6 Equality before the Law -Equal Access to Justice for All ................................................................................... 270
2.6.1 Proximity, Availability and Infrastructures of Courts ........................................................................ 270
2.6.2 Shortage of Manpower ....................................................................................................................... 272
2.6.3 Court Fees........................................................................................................................................... 273
2.6.4 Legal Education .................................................................................................................................. 274
2.6.5 Legal Aid ............................................................................................................................................ 274
2.6.6 Legal Representation .......................................................................................................................... 278
2.6.7 Delay of Cases .................................................................................................................................... 280
2.6.8 Independence and Impartiality of Judiciary........................................................................................ 280
2.7 Freedom of Worship ............................................................................................................................................ 283
2.8 Freedom of Expression ........................................................................................................................................ 284
2.8.1 Censorship of the Media Freedom...................................................................................................... 285
2.8.2 Harassment of Journalists ................................................................................................................... 285
2.8.3 Poor Coverage for Public Broadcasting Media .................................................................................. 285
2.9 Conclusion ........................................................................................................................................................... 286
CHAPTER THREE................................................................................................................................................. 287
Political Rights ......................................................................................................................................................... 287
3.0 Introduction ......................................................................................................................................................... 287
3.1 Political History ................................................................................................................................................... 287
3.2 Right to Participate in Governance ...................................................................................................................... 288
3.3 Right to Participate in Governance in Zanzibar................................................................................................... 289
3.3.1 Legal Framework................................................................................................................................ 289
3.4 Persons with Disabilities and the Right to Take Part in Governance .................................................................. 295
3. 5 Institutional Framework ..................................................................................................................................... 296
3. 6 Freedom of Association and Assembly .............................................................................................................. 297
3.7 Controversy over the Union ................................................................................................................................ 299
3.8 Conclusion ........................................................................................................................................................... 301
CHAPTER FOUR ................................................................................................................................................... 302
Economic and Social Rights.................................................................................................................................... 302
4. 1 Right to Education .............................................................................................................................................. 302
4.2 Legal Framework Governing the Right to Education in Zanzibar....................................................................... 303
4.3 Zanzibar Education Policy................................................................................................................................... 303
4.4 Challenges Facing Education Sector ................................................................................................................... 304
4.4.1 Shortage of Inclusive Education Schools and Teachers ..................................................................... 304
4.4.2 Shortage of Science Teachers ............................................................................................................. 305
4.4.3 Cost Contribution in Education .......................................................................................................... 305
4.4.4 Large Number of Pupils in Classes .................................................................................................... 306
4.4.5 Early Pregnancies and Marriages ....................................................................................................... 306
4.4.6 Lack of Facilities in Schools .............................................................................................................. 307
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4.4.7 Poor Performance of Secondary School Students .............................................................................. 307
4.4.8 Shortage of Lecturers in some Higher Learning Institutions .............................................................. 308
4.5 Right to Health .................................................................................................................................................... 308
4.5.1 Improvement of Health Services in Zanzibar ..................................................................................... 309
4.5.2 Challenges Facing Health Sector ........................................................................................................ 311
4.6 Right to Water ..................................................................................................................................................... 312
4.6.1 Legal Framework governing the Right to Water in Zanzibar ............................................................. 313
4.6.2 Current Situation in the Enjoyment of Right to Water ....................................................................... 314
4.6.3 Poor and Old Water Infrastructure System ......................................................................................... 314
4.6.4 Improper Control of Water ................................................................................................................. 315
4.6.5 Charging Fees without Services ......................................................................................................... 315
4. 7 Right to Property ................................................................................................................................................ 315
4.7.1 Destruction of Property ...................................................................................................................... 317
4.7.2 Limitation to the Right of Property .................................................................................................... 318
4.8 Right to Work ...................................................................................................................................................... 318
4.8.1 Salaries and Incentive Packages ......................................................................................................... 319
4.8.2 Shortage of Employment Opportunities ............................................................................................. 319
4.8.3 Stigmatization of People with HIV in Employment ........................................................................... 320
4.8.4 Lack of Social Dialogue between Employer and Employee .............................................................. 320
4.8.5 Poor System of Social Protection ....................................................................................................... 321
4.8.6 The Handling of Labour Disputes ...................................................................................................... 322
4.8.7 Re-Employment of the Retired Officers ............................................................................................. 322
4.9 Conclusion ........................................................................................................................................................... 322
CHAPTER FIVE ..................................................................................................................................................... 323
The Rights of Vulnerable Groups .......................................................................................................................... 323
5.1 Women and Girls ................................................................................................................................................. 323
5.1.1 Legal Framework for Women Protection in Zanzibar ........................................................................ 323
5.1.2 Policies on Women’s Rights............................................................................................................... 325
5. 1.3 Institutional Framework in Protecting Women ................................................................................. 325
5.1.4 Gender Based Violence ...................................................................................................................... 326
5.1.5. Domestic Violence ............................................................................................................................ 328
5.1.6 Women Economic Empowerment and Employment ........................................................................................ 331
5.1.7 Women and Health ............................................................................................................................. 332
5.1.8 Women and Education ....................................................................................................................... 334
5.1.9 Women Participation in Decision Making ......................................................................................... 334
5.2 Children Rights .................................................................................................................................................... 336
5.2.1 Legal Framework................................................................................................................................ 336
5.2.2 Institutional Framework ..................................................................................................................... 337
5.2.3 Right to Life ....................................................................................................................................... 337
5.2.4 Right to Grow and Develop ................................................................................................................ 339
5.2.5. Right to be Protected ......................................................................................................................... 342
5.2.6 Child Labour....................................................................................................................................... 348
5.2.7. Maintenance of Children ................................................................................................................... 349
5.3 Rights of the Elderly ............................................................................................................................................ 350
5.4 Rights of Persons with Disabilities ...................................................................................................................... 352
5.4.1 Legal Framework................................................................................................................................ 352
5.4.2 Institutional Framework ..................................................................................................................... 353
5.4.3 Poverty among People with Disabilities ............................................................................................. 353
5.4.4 Abuse against People with Disabilities............................................................................................... 353
5.5 Conclusion ........................................................................................................................................................... 354
CHAPTER SIX ........................................................................................................................................................ 355
HIV/AIDS and Human Rights................................................................................................................................ 355
6.0 Introduction ......................................................................................................................................................... 355
6.1 HIV/AIDS and Human Rights ............................................................................................................................. 355
6.2 Legal Framework on HIV/AIDS in Zanzibar ...................................................................................................... 355
6.3 Institutional Framework ...................................................................................................................................... 355
6.4 HIV/AIDS Situation in Zanzibar ......................................................................................................................... 356
6.5 Violation of the Rights of People living with HIV/AIDS in Zanzibar ................................................................ 357
6.5.1 The Increasing Stigmatization ............................................................................................................ 357
6.5.2 Right to Privacy .................................................................................................................................. 357
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6.5.3 Discrimination against People Living with HIV/AIDS ...................................................................... 358
6.5.4 Lack of Essential Medicine and Drugs ............................................................................................... 358
6.6 Conclusion ........................................................................................................................................................... 358
CHAPTER SEVEN ................................................................................................................................................. 360
SMZ Special Departments and Human Rights ..................................................................................................... 360
7.0 Introduction ......................................................................................................................................................... 360
7.1 SMZ Special Departments and Human Rights .................................................................................................... 360
a) Kikosi Maalum cha Kuzuia Magendo (KMKM) (Anti-Smuggling Unit) .............................................................. 360
b) Kikosi cha Valantia (the Volunteers) .................................................................................................................... 361
c) Educational Centres for Offenders (Prison Centres) ............................................................................................ 363
d) The Jeshi la Kujenga Uchumi (JKU) (Economic Building Brigade) ................................................................... 364
e) Kikosi cha Zimamoto na Uokozi (Fire and Rescue Services) .............................................................................. 365
7.2 Legality of Special Departments ......................................................................................................................... 365
7.3 Conclusion ........................................................................................................................................................... 366
CHAPTER EIGHT ................................................................................................................................................. 367
8.0 Introduction ......................................................................................................................................................... 367
8. 1 Right to Development......................................................................................................................................... 367
8.2. Right to Development in Zanzibar ..................................................................................................................... 368
8.3 Right to a Clean Environment ............................................................................................................................. 369
8.3.1 Human Rights and the Environment................................................................................................... 369
8. 4 The Environment in the Zanzibar Constitution of 1984 ..................................................................................... 371
8.4.1 Duty to Protect Natural Resources ..................................................................................................... 371
8.4.2 Waste Disposal and Sanitation ........................................................................................................... 372
8.4.3 Solid Waste Management ................................................................................................................... 373
8.4.4 Deforestation ...................................................................................................................................... 373
8.4.5 Natural Resources ............................................................................................................................... 373
8.4.6 Wide Spread of Plastic Bags Business ............................................................................................... 374
8. 5 Right to Peace and Security ................................................................................................................................ 374
8.6 Conclusion ........................................................................................................................................................... 375
CHAPTER NINE .................................................................................................................................................... 377
Domestic Initiative in Human Rights Protection .................................................................................................. 377
9.0 Introduction ......................................................................................................................................................... 377
9.1 Incorporation of Bill of Rights in the Constitution of Zanzibar, 1984 ................................................................ 377
9.2 The Commission for Human Rights and Good Governance ............................................................................... 378
9.2.1 Independence of the Commission....................................................................................................... 378
9.2.2 Performance of the Commission ........................................................................................................ 379
9.3 Zanzibar Law Review Commission ...................................................................................................... 380
9.4. The Establishment of the Office of the Director of Public Prosecution ............................................................. 381
9.5. Zanzibar Human Rights Guidelines (Muongozo wa Haki za Binaadamu Zanzibar) .......................................... 382
9.6 Conclusion ........................................................................................................................................................... 382
CHAPTER TEN ...................................................................................................................................................... 384
Corruption, Abuse of Power and Human Rights.................................................................................................. 384
10.0 Introduction ....................................................................................................................................................... 384
10.1 International Instruments in Combating Corruption .......................................................................................... 384
10.2 Corruption and Human Rights ........................................................................................................................... 385
10.3 Legal Framework in Combating Corruption in Zanzibar .................................................................................. 385
10.4 Financial Measures ............................................................................................................................................ 387
10.5 Institutional Framework .................................................................................................................................... 387
10.6 Codes of Conduct .............................................................................................................................................. 387
10.7 Transparency and Disclosure of Assets by Public Officials .............................................................................. 387
10.8 Current Situation on Corruption in Zanzibar ..................................................................................................... 388
10.8.1 Corruption in Dealing with Administration of Justice ...................................................................... 389
10.8.2 Abuse of Government Money .......................................................................................................... 389
10.8.3 Abuse of Power ................................................................................................................................ 390
10.9 Conclusion ........................................................................................................................................................ 391
SELECTED BIBLIOGRAPHY ............................................................................................................................. 392
TEXTBOOKS ........................................................................................................................................................... 392
x
ARTICLES AND CHAPTERS IN BOOKS ............................................................................................................. 396
WEBSITES ............................................................................................................................................................... 398
ZANZIBAR BUDGET SPEECHES ......................................................................................................................... 399
REPORTS ................................................................................................................................................................. 399
Index ......................................................................................................................................................................... 401
List of Figures
Figure 1: Consumers que for fuel in Mtwara, Sep. 2011 ....................................................................................... 4
Figure 2: Police Brutality in Arusha Incident .............................................................................................................. 19
Figure 3: Effect of exessive use of force by Police in Usinge ..................................................................................... 20
Figure 4: A dead body of a victim of the police brutality in Mbarali - Mbeya ............................................................ 21
Figure 5: Bodies of the Victims at the Tarime Mortuary............................................................................................ 22
Figure 6: The late Laida, few hours before his death as captured by the LHRC at Babati .......................................... 23
Figure 7: A body of a victim, who was shot from the back, as he was running away from the Police at the North
Mara Gold Mine ............................................................................................................................................ 26
Figure 8: One of the coffins dumped alongside the road, near the deceased villages ................................................. 28
Figure 9: Mob Killing by Stonning ............................................................................................................................. 29
Figure 10: Mob Killing by Burning ............................................................................................................................. 29
Figure 11: Mob Violence by Petty Traders (Machingas) in Mwanza ......................................................................... 30
Figure 12: A Survivor of Albino Brutality, Adam Robert at Geita Hospital ............................................................... 38
Figure 14: Police in Dar es Salam ‘crucify’ a mentally disturbed suspect in Dar es Salaam ...................................... 58
Figure 15: A campaign truck with children aboard ..................................................................................................... 79
Figure 16: Delivery Kits at Mbozi Hospital ................................................................................................................ 96
Figure 17: An ambulance designated for expectant mothers ....................................................................................... 97
Figure 18: A congested class at Mkombwe Primary School in Mbarali Mbeya ....................................................... 109
Figure 19: The Anti-Riot Police wrangles with the protesting UDSM students........................................................ 114
Figure 20: Mr. Elias narrating his ordeal to a lawyer ( LHRC) at Amana Hospital where he was admitted ............. 127
Figure 21: The elderly people at Funga Funga Home Care Centre in Morogoro ..................................................... 173
List of Tables
Table 1: People's perception on Death Penalty............................................................................................................ 17
Table 2: List of People Killed in 2011......................................................................................................................... 24
Table 3: Incidents of Mob Violence; Jan - Dec, 2011 ................................................................................................. 31
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Table 4: Illustrative Incidents of Witch-Hunt in 2011 ................................................................................................. 36
List of Abbreviations and Acronyms
ACHPR
ACHRWC
ACT
AFNET
AG
AHSI
AIDS
ALAPA
ALMA
AMNUT
AMO
ANC
APPT Maendeleo
APRM
ART
Art.
ARV
ASDP
ASP
AU
BAAC
BBC
BoT
BPIJ
CAG
Cap.
CAS
CAT
CBO
CCBRT
CCM
CCSECG
CEDAW
CHADEMA
CHAUSTA
CHC
CHF
CHRAGG
CHSB
CIS
CMR
CORDS
CPA
CPI
CRC
African Charter on Human and Peoples’ Rights
African Charter on the Rights and Welfare of the Child
Accountability in Tanzania
Anti-Female Genital Mutilation Network
Attorney General
African Human Security Initiative
Acquired Immuno-Deficiency Syndrome
Association for Law and Advocacy for Pastoralists
African Leaders Malaria Alliance
All Muslim National Unity of Tanganyika
Assistant Medical Officer
African National Congress
Progressive Party of Tanzania- Maendeleo
African Peer Review Mechanism
Anti-retroviral Therapy
Article
Anti-Retro-Viral
Agricultural Sector Development Programme
Afro – Shiraz Party
African Union
Business Action Against Corruption
British Broadcasting Corporation
Bank of Tanzania
Basic Principles of Independence Justice
Controller and Auditor General
Chapter (of the Series of the Laws of Tanzania)
Central Admission System
Convention against Torture
Community Based Organisation
Comprehensive Community Based Rehabilitation in Tanzania
Chama cha Mapinduzi
Commonwealth Codes and Standards for Economic and Corporate
Governance
Convention on the Elimination of all forms of Discrimination Against
Women
Chama cha Demokrasia na Maendeleo
Chama cha Haki na Ustawi
Consolidated Holdings Company
Community Health Fund
Commission for Human Rights and Good Governance
Council Health Services Board
Children in the Sun
Child Mortality Rate
Community Research and Development Organization
Criminal Procedure Act
International Corruption Index
Convention on the Rights of the Children
xii
CSOs
CSR
CTI
CTLA
CUF
DADPs
DARUSO
DC
DED
DMO
DMT
DOLASED
DP
DPP
Dr.
EAAACA
Eds
ESDP
ESRF
Etc.
FCS
FemAct
FES
FFU
FGM
FIDH
FORDIA
FSC
FSSR
GBV
GCA
GDP
GGM
GN
GoT
H.E.
HC
HDI
HESLB
HIMWA
HIV
HQ
HRMU
HSCT
HSDP
HSR
HSSP II
ICCPR
ICESCR
IDRC
Civil Society Organizations
Corporate Social Responsibility
Confederation of Industries
Central Transportation Licensing Authority
Civic United Front
District Agricultural Development Plans
Dar es Salaam University Students’ Organization
District Commissioner
District Executive Director
District Medical Officer
Dar es Salaam Motor Transport
Disabled Organization for Legal Assistance and Social Economic
Development
Democratic Party
Director of Public Prosecution
Doctor
East African Association of Anti-corruption Authorities
Editors
Education Sector Development Programme
Economic Social and Research Forum
Etcetera [a Latin word to mean ‘and so on/others’]
Foundation for Civil Society
Feminists Activism
Freidrich – Ebert Stiftung
Field Force Unit
Female Genital Mutilation
International Federation of Human Rights
Concern for Development Initiatives in Africa
Farm Service Centre
Food Self-Sufficiency Ratio
Gender Based Violence
Game Controlled Area
Gross Domestic Product
Geita Gold Mining
Government Notice
Government of Tanzania
His Excellency
High Court
Human Development Index
Higher Learning Students Loan Board
Huduma ya Injili na Maendeleo ya Wafugaji
Human Immune Deficiency Virus
Headquarters
Human Rights Monitoring Unit of LHRC
Hadzabe Survival Council of Tanzania
Health Sector Development Program
Health Sector Reform
Health Sector Strategic Plan
International Covenant on Civil and Political Rights of 1966
International Covenant on Economic, Social and Cultural Rights
International Development Research Council of Canada
xiii
IDRD
IDUs
IERPE
IGP
ILFS
ILO
IMF
INTERPOL
IOM
ISS
ITV
IWGIA
J.
KIWAKIJA
LADO
LCDO
LEAT
LESHABINGO
LGEs
LGRP
LHRC
LRCT
LSRP
MANYOITO
MCC
MCPI
MCT
MDGs
MISA-Tan
Misc.
MKUZA
MMR
MOAT
MoHA
MoHSW
MoVET
MP
MPDO
MSD
MSM
MVC
NACONGO
NACP
NACSAP
NACTE
NAFCO
NAIVS
NBC
NBS
NCCR -Mageuzi
NEC
International Declaration on the Rights to Development
Injecting drug users
Institute for Empirical Research in Political Economy
Inspector General of Police
Integrated Labour Force Survey
International Labour Organisation
International Monetary Fund
International Police
International Organization for Migration
Institute of Security Studies
Independent Television
International Working Group on Indigenous Affairs
Judge
Kituo cha Wasaidizi wa Kisheria cha Kijamii
Loliondo Development Organization
Longido Community Development Organization
Lawyers Environmental Action Team
Laramate e Sheria na Haki za Binadamu Ngorongoro
Local Government Elections
Local Government Reform Programme
Legal and Human Rights Centre
Law Reform Commission of Tanzania
Legal Sector Reform Programme
Enyoito Development Organization
Millennium Challenge Cooperation
National Consumer Price Index
Media Council of Tanzania
Millennium Development Goals
Media Institute of Southern Africa Tanzania Chapter
Miscellaneous
Mkakati wa Kukuza Uchumi Zanzibar
Maternal Mortality Rate
Media Owners Association of Tanzania
Ministry of Home Affairs
Ministry of Health and Social Welfare of Tanzania
Ministry of Vocation and Education Training
Member of Parliament
Monduli Pastoralists Development Organization
Medical Stores Department
Men having sex with Men
Most Vulnerable Children
National Council of NGOs
National Aids Control Program
National Anti-Corruption Strategy and Action Plan
National Commission for Technical Education
National Agricultural and Food Corporation
National Agricultural Input Voucher Scheme
National Bank of Commerce
National Bureau of Statistics
National Convention for Construction and Reform - Mageuzi
National Electoral Commission
xiv
NECTA
NEMC
NEPAD
NFRA
NGONET
NGOs
NHIF
NIT
NLD
NMCP
No.
nola
NPES
NRA
NSEGPR
OAU
OBC
OCHA
ODAC
OHCHR
ORCI
PAICODEO
PCCB
PEDEP
PEDP
PF 3
PF
PFMRP
PFT
PHSDP
PLWHA
PMI
PMTCT
PNVR
PPF
PPRA
PPTCs
PST
PWA
PWC
R.
R.E.
RC
Re.
REPOA
RON
RPC
rtd
RTD
S/N
s/o
National Examination Council of Tanzania
National Environmental Management Council
New Partnership for Africa Development
National Food Reserve Agency
Ngorongoro NGOs Network
Non-Governmental Organisations
National Health Insurance Fund
National Institute of Transport
National League for Democracy
National Malaria Control Program
Number
National Organization for Legal Assistance
National Poverty Eradication Strategy
National Reconstruction for Alliance
National Strategy for Economic Growth and Poverty Reduction
Organization of African Union
Ortello Business Corporation
Office for Coordination of Humanitarian Affairs
Open Democracy Advice Centre
Office of the United Nations High Commissioner for Human Rights
Ocean Road Centre Institute
Parakuyo Indigenous Community Development Organization
Prevention and Combating of Corruption Bureau
Primary Education Development Plan
Primary Education Development Programme
Police Form No. 3
Policy Forum
Public Financial Management Reform Programme
Police Force of Tanzania
Primary Healthy Sector Development Program
People Living With HIV/AIDS
President`s Malaria Initiative
Pregnant Mother to Child Transmission
Permanent National Voters’ Register
Parastatal Pensions Fund
Public Procurement Regulatory Authority
Post Primary Technical Centres
Prison Services of Tanzania
People with Albinism
Pastoral Women Council
Republic
Revised Edition
Regional Commissioner
Reference
Research on Poverty Alleviation
Registrar of Newspaper
Regional Police Commissioner
Retired
Radio Tanzania Dar es Salaam
Serial Number
Son of
xv
SADC
SAFAC
SAHRiNGON
SALAN
SAU
SEDP
SENAPA
SGR
SHIDEPHA+
SHILDA
SHIVYAWATA
SOSPA
SSATP
SUMATRA
T.shs
TACAIDS
TACCEO
TADEA
TAMICO
TAMWA
TANAPA
TANESCO
TANLAP
TANU
TAPANET
TAPHGO
TARJA
TAS
TASAF
TAWLA
TAZARA
TBS
TCRA
TCU
TDHS
TEITI
TEMCO
TFDA
TFL
TGNP
TLP
TLR
TLS
TNRF
TPDF
TPF
TPS
TPTA
TRA
TRAFO
TRAWU
Southern Africa Development Community
Southern Africa Forum against Corruption
Southern Africa Human Rights NGOs Network
Southern African Legal Assistance Network
Southern African Union
Secondary Education Development Programme
Serengeti National Park
Strategic Grain Reserve
Service Health and for People Living with HIV/AIDS
Southern Highland Development Organization
Shirikisho la Vyama vya Walemavu Tanzania
Sexual Offences Special Provisions Act, 1998
Sub Sahara Africa Transport Policy Program
Surface and Marine Transport Authority
Tanzania Shillings
Tanzania Commission for AIDS
Tanzania Civil Society Consortium on Election Observation
Tanzania Democratic Alliance Party
Tanzania Mines and Construction workers Union
Tanzania Media Women Association
Tanzania National Park
Tanzania Electric Supply Company Limited
Tanzania Legal Aid Providers Network
Tanganyika National Union
Tanzania Paralegal Network
Tanzania Pastoralists, Hunter-Gatherers Organisation
Tanzania Retired Judges Association
Tanzania Albinos Society
Tanzania Social Fund
Tanzania Women Lawyers Association
Tanzania and Zambia Railway
Tanzania Bureau of Standards
Tanzania Communication Regulatory Authority
Tanzania Commission for Universities
Tanzania Demographic and Healthy Survey
Tanzania Extractive Industries Transparency Initiative
Tanzania Election Monitoring Committee
Tanzania Food and Drugs Authority
Tanzania Farmers
Tanzania Gender Networking Programme
Tanzania Labour Party
Tanzania Law Reports
Tanganyika Law Society
Tanzania Natural Resources Forum
Tanzania’s People Defence Forces
Tanzania Police Female Network
Tanzania Prisons Service
Tanzania Professional Teachers’ Association
Tanzania Revenue Authority
Tanzania Transparency Forum
Tanzania Railways Workers Union
xvi
TUCTA
TYVA
UCRT
UDA
UDHR
UDP
UDSM
UK
UMD
UNA
UNAIDS
UNCAC
UNCITRAL
UNDP
UNFPA
UNGA
UNHCR
UNICEF
UNIFEM
UNODC
UPDP
UPE
UPR
URT
USA
USD
UTP
UTSS
UWAKAMA
UWM
VCT
VEO
Vol.
VOP
Vs.
WASHABU
WASHEHABIMA
WASHEHABISE
WASHEHABITA
WB
WEO
WHO
WHRNET
WiLDAF
WLAC
WMA
ZLSC
Tanzania Congress of Trade Unions
Tanzania Youth Vision Association
Ujamaa Community Resource Team
Usafirishaji Dar es Salaam
Universal Declaration of Human Rights
United Democratic Party
University of Dar es Salaam
United Kingdom
Union for Multi-Party Democracy
United Nations Association
United Nations AIDS Programme
United Nations Convention against Corruption
United Nations Commission on International Trade Law
United Nations Development Programme
United Nations Population Fund
United Nations General Assembly
United Nations High Commission for Refugees
United Nations Children Fund
United Nations Development Fund for Women
United Nations Office on Drug and Crime
United Peoples Democratic Party
Universal Primary Education
Universal Periodic Review
United Republic of Tanzania
United States of America
United States Dollars
United Tanganyika Party
Under the Same Sun
Umoja wa Wafugaji Kanda ya Mashariki
Umoja wa Wafugaji Mpanda
Voluntary Counseling and Testing
Village Executive Officer
Volume
Voice of the People
Versus
Wasaidizi wa Sheria na Haki za Binadamu Ukerewe
Wasaidizi wa Sheria na Haki za Binadamu Manyara
Wasaidizi wa Sheria na Haki za Binadamu Serengeti
Wasaidizi wa Sheria na Haki za Binadamu Tarime
World Bank
Ward Executive Officer
World Health Organisation
Women Human Right Network
Women in Law and Development in Africa
Women Legal Aid Centre
Wildlife Management Area
xvii
Legislations
The Affiliation Act, 1949, Cap. 278, [R.E. 2002]
The Agricultural Inputs Trust Fund Act, 1999 Cap 401 [R.E 2002]
The Anti-Money Laundering Act, No. 12 of 2006
The Anti-Trafficking in Persons Act, No. 6 of 2008
The Arbitration Act Cap 15, [R.E 2002]
The Basic Rights and Duties Enforcement Act, 1994, Cap. 3, [R.E. 2002]
The Broadcasting Services Act, Cap. 306, [R.E 2002]
The Commission for Human Rights and Good Governance Act, 2001, Cap. 391, [R.E. 2002]
The Community Service Act, No. 6 of 2002
The Companies Act, Cap. 212 [R.E. 2002]
The Constitution of the United Republic of Tanzania, 1977 Cap; 2 [R.E. 2002]
The Corporal Punishment Act, Cap. 17, [R.E.2002]
The Criminal Procedure Act 1985 Cap 20 [R.E 2002]
The Education Act, 1978 Cap 353 [R.E 2002]
The Employment and Labour Relations Act, No. 6 of 2004
The Environmental Management Act, No. 20 of 2004
The Fair Competition Act, No.4 of 2003.
The HIV and AIDS (Prevention and Control) Act, No. 28 of 2008
The Human Rights and Good Governance Act No. 7 of 2001
The Interpretation of Laws Act, Cap 1 [R.E 2002]
The Land Act, 1999 Cap. 113, [R.E. 2002]
The Law of Marriage Act, Cap 29 [R.E 2002]
The Law of the Child Act, No. 21 of 2009
The Legal Aid (Criminal Proceedings) Act, 1969 Cap. 21, [R.E. 2002]
The Local Customary Law (Declaration) Order, 1963, G.N. No. 36 of 1963
The Local Government (District Authorities) Act, 1982 Cap. 287, [R.E. 2002]
The Local Government (Elections) Act, 1979 Cap. 292 [R.E. 2002]
The Local Government (Urban Authorities) Act, 1982 Cap. 288 [R.E. 2002]
The Magistrates Court Act, 1985 Cap 11 [R.E 2002]
The National Defence Act, 1965 Cap. 192, [R.E. 2002]
The National Elections Act, 1985 Cap. 343[R.E 2002]
The National Prosecution Act, 2008
The National Security Act, 1970 Cap. 47, [R.E. 2002]
The Newspaper Act, 1978 Cap. 229, [R.E. 2002]
The Ngorongoro Conservation Act, 1959 Cap 284 [R.E 2002]
The Non-Governmental Organization Act, No. 24 of 2002
The Parole Board Act, 1994, Cap. 400, [R.E. 2002]
The Penal Code, Cap 16 [R.E 2002]
The Persons with Disability Act, No. 9 of 2010
The Plant Protection Act, 1997 Cap 133 [R.E 2002]
The Police Force and Auxiliary Services Act, 1939 Cap; 322, [R.E. 2002]
The Political Parties Act, 1992 Cap. 258, [R.E. 2002]
The Prevention and Combating of Corruption Act, No. 11 of 2007
The Prisons Act, 1967 Cap. 58, [R.E. 2002]
The Public Leadership Code of Ethics Act, 1995 Cap; 398, [R.E. 2002]
xviii
The Public Procurement Act of 2004
The Refugee Act, 1998 Cap. 37, [R.E .2002]
The Road Traffic Act of 1973, Cap 168 [R.E 2002]
The Societies Act, 1954 Cap. 337 [R.E 2002]
The Trade Union Act, 1998, Cap. 244 [R.E 2002]
The Transportation Licensing Act of 1973 Cap 317 [R.E 2002]
The Trustee Incorporation Act; Cap 318 [R.E 2002]
The Universities Act, No. 7 of 2005
The Village Land Act, 1999 Cap. 114, [R.E 2002]
The Wildlife Conservation Act, 1974 Cap 283 [R.E 2002]
The Wildlife Conservation Act, No. 5 of 2009
The Witchcraft Act, 1928, Cap. 18, [R.E 2002]
The Written Laws (Miscellaneous Amendment) Act No. 3 of 2011
The Written Laws (Miscellaneous Amendments) Act No. 11 of 2010
Regulations and Government Notices
Establishment of New Regions, G.N No. 383 of 2011.
Employment and Labour Relations (Code of Good Practice) Rules, 2007. G.N No.42 of 2007.
Labour Institutions (Mediation and Arbitration) Rules 2007, G.N No. 64 of 2007.
The Regulaton of Wages and Terms of Employment Order of 2010, G.N No. 172
xix
List of Cases
Attorney General v. Rev. Christopher Mtikila, Misc. Appeal No 45 of 2009, Court of Appeal
of Tanzania at Dar es Salaam (unreported).
Bernado Ephraim v. Holario Pastory, Civil App. No 70 [1989] H.C Mwanza [Unreported].
Emmanuel Mwakisha Mjawasi and 748 others (Claimant) V. The Attorney General of
Republic of Kenya, Reference No. 2 of 2010, East African Court of Justice at Arusha,
First Instance Division.
Ibrahim Korosso and 134 others & LHRC v. the D.C and OCD, case No.
HBUB/S/1032/2001.
James Francis Mbatia v. The Hon. Attorney General, Halima James Mdee and Returning
officer for Kawe Parliament Constituency Misc. Civil Cause No. 101 of 2010 in the High
Court of Tanzania at Dar es salaam registry.
Karata Ernest & Others v. The Attorney General, Civil Case No.95 of 2003 in the High
Court of Tanzania (Dar es Salaam District Registry at Dar es Salaam).
Legal and Human Rights Centre (LHRC) & Others v. Dowans Tanzania Limited (Tanzania)
& others, Misc. Civil Application No. 8 of 2011.
LHRC & Others v. AG & others Misc. Civil Case No. 15 of 2010 at High Court of Tanzania
in Arusha.
LHRC, LEAT and NOLA v. Attorney General and others Misc. Civil Cause No. 77 of 2005.
Mabere Nyaucho Marando and another v. Attorney General, Civil Case no. 168 of 1993, in
the High Court of Tanzania, Dar es Salaam Registry (Unreported).
Ms. Elizabeth Andrews Kawogo (appellant.) v. Secretary of State for the Home Department
(respondent), In the Immigration and Asylum Chamber; Upper Tribunal, Appeal Number
AA/16743/2010.
Mulbadaw Village Council and 67 others v. National Agricultural and Food Corporation
(NAFCO), Misc. Civil Cause No.10 of 1981.
Omari Mahita v. Rehema Shaban. Civil Appeal No. 149 of 2009 in the High Court of
Tanzania, Dar es Salaam Registry (unreported).
xx
Philip Anania Masasi v. Returning Officer Njombe North Constituency and others. Misc.
Civil Cause No. 7 of 1995 High court of Tanzania (Unreported).
Prince Bagenda v. Wilson Masilingi and another. [1997] T.L.R 220.
R. v. Mbushuu alias Dominick Mnyaroje, High Court (Dodoma) Criminal Session [1994]
T.L.R and also reported in 1994 2 LRC 335.
Tanzania Electric Supply Company Ltd v. Dowans Holdings SA (Costa Rica) & Dowans
Tanzania Limited, Misc. Civil Application No. 8 of 2011 in the High Court of Tanzania at
Dar –es salaam District.
Yoke Gwaku and 5 others v. National Agricultural and Food Corporation (NAFCO), Misc
Civil Cause No.52 of 1988 High Court of Tanzania at Arusha.
xxi
Preface
The Legal and Human Rights Centre (LHRC) is a non-profit making, non-governmental
organization striving to empower the public, promote, reinforce and safeguard human rights
and good governance in Tanzania. It was established in 1995 as an independent and
autonomous entity. It was registered under the Companies Act, Chapter 212 of the laws of
Tanzania as a company without shares limited by guarantee. LHRC began as a human rights
project of the Tanzania Legal Education Trust (TANLET).
The LHRC headquarters are based in Dar es Salaam and has a sub office in Arusha and
Kinondoni Legal Aid Clinic. Furthermore, LHRC is a co-founder of the University of
Bagamoyo (UB). Its operations are mainly focused in Tanzania mainland with specific
interventions in Zanzibar. LHRC is a member of different national, regional and international
NGOs Networks such as International Federation for Human Rights (FIDH), Southern
African Legal Assistance Network (SALAN) and East and Horn of Africa Human Rights
Defenders Project (EHAHRDP).
LHRC is an organization with more than 126 individual members throughout the country and
each year new members are registered. The members have different backgrounds and
professions: lawyers, politicians, journalists, retired public servants, human rights activists,
peasants, religious leaders and other groups.
The main objective of LHRC is to create legal and human rights awareness and to empower
the general public, in particular, underprivileged section of the society. This is done through
access to justice (Legal Aid Services & Mobile Legal Aid Clinic), mass education (Tv &
Radio Programmes, Paralegals & Village Legal Workers), community capacity building and
empowerment, human rights monitoring, research in legal and human rights, documentation
and dissemination of legal and human rights education. LHRC is currently finalizing its six
years’ strategic plan running from 2007 to 2012 to achieve a Just and Equitable Society.
At the end of the day, LHRC would like to have in place: improved practices, policies and
legislative framework of governmental and business corporations; increased capacity of civil
society, media and Parliament to address rights violations and monitor decisions and
improved performance and sustainability of LHRC.
In the course of pursuing its mission, LHRC has been producing Tanzania Human Rights
Reports since 2002. The report serves as an advocacy tool designed to inform and shape the
protection of human rights and good governance in Tanzania. Similarly, it acts as a
barometer measuring the adherence to human rights standards in Tanzania. This report serves
xxii
as a platform on which violations of human rights are exposed and areas that require
improvement are clearly pointed out. Notably, this report is used as a point of reference and
resource book due to its authenticity and non fictious facts that are empirical. LHRC signifies
its noble role as a voice for the voiceless and amplifies the voices of innocent victims of
human right abuses through publication of this report.
This report has been jointly published by the LHRC and the Zanzibar Legal Services Centre
(ZLSC) since 2006. The collaboration between the two ensures the document is authentic and
detailed on the state of human rights throughout the United Republic of Tanzania. This is
reflected in the structure of this report, which is divided into two parts: Part One discusses
the human rights situation in Tanzania Mainland, while Part Two considers the state of
human rights in Zanzibar. The partitioning of the report is due to the peculiarity of issues,
legal system and socio-political set up of each side of the union. It is our hope that this
detailed document will change the state of human rights in the country.
Bishop Dr. Elinaza Sendoro
Chairperson,
LHRC Board of Directors
xxiii
Introduction
In 2011, Tanzania marked 50 years of independence with a lot of challenges and minor
improvements in the field of human rights. The LHRC noted a lot of human rights violations
and abuses in the area of right to development, right to life and people’s participation in
governance and provision of social services.
The right to life in Tanzania continues to be violated by the state, its agencies and.
Individuals. For instance, LHRC surveys indicate that the right to life in Tanzania is also
violated in the following manner: the presence of the death penalty, extra-judicial killings,
and killings related to witchcraft beliefs, mob violence, suicide, domestic violence and road
accidents.
The democratic processes are still marred by legal and practical problems including the
denial of the right to freely assemble and form peaceful demonstrations. For instance, 39.9%
of the respondents suggested that the right to enjoy freedom of assembly in the country is
very poor compared to 5.9% who responded positively.
Tanzania has failed to attain development in various aspects of life, such as: the delivery of
social services, infrastructure, employment, and revenue collection, the use of natural
resources, power supply, transport sector, environmental protection, investment, and
economic growth despite marking 50 years of independence.
Other human rights issues of concern in 2011 include:
a) Unlawful evictions continued in the country;
b) The killings of more than 600 people due to witchcraft beliefs with the most
susceptible group being elderly women with red eyes;
c) The health sector faces a number of common problems such as lack of health
facilities, shortage of human resources and high prevalence of communicable and non
communicable diseases like HIV, Cancer and Malaria and high mortality rates of both
children and women. For instance, this report indicates that Tanzania has a 68%
shortage in health workers;
d) The performance in primary and secondary education in Tanzania is dropping
dramatically. According to LHRC’s surveys and the Ministry of Education and
Vocational Training, secondary and primary education performance is dropping
yearly. Generally, the results show that pass rate has decreased from 72% in 2009 to
xxiv
e)
f)
g)
h)
53% in 2011. For instance, in 2010 12% scored Division I-III while in 2011 only 7%
of the total candidates scored Divisin I-III.
Students’ strikes are on the rise in the country with no government effort to end this
problem in education sector. For instance, from January to December 2011, more
than ten Colleges and Universities experienced students’ protest and strike which
resulted into suspension and dismissal of some students;
Tanzania still remains to be one of the poorest nations in the world and is unlikely to
meet its Millennium Development Goals (MDGs). Regionally, the economy is not
growing as fast as its neighbours. Various world economic surveys ranked Tanzania
as the slowest growing economy in East Africa;
Rising in inflation results from the increase in the prices of various goods and
services, in particular, fuel and energy. An official with the Bank of Tanzania (BOT)
stated that fuel and energy costs have greatly contributed to the rise of inflation rate in
the country from 14.1% in August 2011 to over 19% in December 2011. For instance,
the price of sugar rose from 1,500/= to 3,500/= per kg in 2011;
Pastoralists in the country have been celebrating 50 years of ruthless evictions and
economic impoverishment. Tanzania lacks a pastoral land tenure regime. The
government has continued using the same land laws introduced by the colonial legal
systems in land administration. The lack of legal protection for pastoralists’ land
ownership has led to several major pastoralists and other land users related land
conflicts in Tanzania.
Methodologically, the researchers used both primary and secondary data collection
techniques. At least 6,000 people were randomly picked and directly interviewed. The
research dwelt on field work, surveys, focus group discussions, media and online research. In
addition, LHRC verified through direct information from various institutions relevant to the
issues discussed; Microsoft Excel and Statistical Package for Social Sciences (SPSS) were
used as tools for data analysis.
Furthermore, LHRC used reliable sources from every region of Tanzania Mainland on
various issues. This report is also a result of comparative analysis with other African
countries as well as the rest of the world on human rights compliance and issues reported.
Commendable jobs by researchers, writers, editors and collaborators together have produced
a detailed document giving readers a current and authentic situation of human rights in
Tanzania.
Dr. Helen Kijo-Bisimba
Executive Director
LHRC
xxv
Chapter One
General Overview of Tanzania
1.1 Introduction
Chapter one of the Tanzania Human Rights Report 2011 provides preliminary information
concerning the United Republic of Tanzania. This section explains the geographical location,
physical features, and natural resources of the country. It also covers other aspects like people,
economy of the country, political set up, history of the nation, and an explanation of the
governance system including the executive, judiciary and legislature. 1
1.2 Geography
Tanzania is the largest country in East Africa covering a 940,000 km2, of which 60,000 square
kilometers is inland bodies of water. 2 The total land of United Republic of Tanzania comprises
both, Tanzania mainland and the Isles of Zanzibar. The country has abundant land that is divided
into three categories: the general land, the village land and the reserved land. 3 In terms of land,
the country offers the best land for investment in agriculture in the East African region. For
example, the southern eastern regions of Lindi, Mtwara and Ruvuma have fertile land which
attracts cash crops plantations like cashew nuts.
The country lies South of the Equator with Latitudes of 1° and 12°, and Longitudes of 29° and
41° East. The geographical location of the country determines its climatic condition. Tanzania
experiences a long dry season in most of its places from May to October, and a rainy season
between November and May with heavy rainfall between March and May. Other areas like those
around Lakes Victoria and Tanganyika, Mufindi, Rungwe and Lushoto districts experience wet
and humid climatic conditions throughout the year. These areas are conducive for tea plantations,
one of major cash crops in Tanzania. 4
The temperatures of Tanzania vary significantly to the southern highland and the rest of the
country. The southern highland has a temperature range between 10° C during wet season and
20°C during dry season. The rest of the country has a temperature range between 25°C during
1
NOTE: Information contained in this chapter has resemblance with previous reports produced by LHRC save for
few updates as experienced in 2011. For example the update on economic situation of the country and population
estimates.
2
Tanzania Demographic Health Survey, 2010 produced by National Bureau of Statistics, Dar es Salaam, Tanzania
at page 1.
3
Sections 3 of both, the Land Act, No 4 of 1999 and the Village Land Act, No 5 of 1999 provides that the land in
Tanzania is a public land held by a President of United Republic of Tanzania as a trustee for the benefit of all
Tanzanians.
4
S. Agrawala (et.al); Development and Climate Change in Tanzania: Focus on Mount Kilimanjaro, Organisation for
Economic Cooperation, 2003 page 9.
1
wet season and 31°C during dry season; 5 save for some areas of the north and northeast, which
have temperatures of below 20°C.
The country is endowed with several natural physical features with world’s records such as
lakes, rivers, national parks, game reserves, and mountains. In addition, the great East African
rift valley divides the country into two; the western and the middle parts. The country has large
lakes, three of which are among the top ten largest lakes in the world. Lake Victoria is the 2nd
largest lake in the world, Lake Tanganyika being the 7th and Lake Nyasa is the 10th respectively.
In addition, Lake Tanganyika is the second deepest lake in the world with a depth of 4,823 feet
or (1,446.9 m).
The rivers that flow throughout the season include the Rufiji, Pangani, Wami, Ruvu, Malagarasi,
Kagera, and Ruaha. However, global climatic change and environmental degradations have
adversely affected the volume of water not only in rivers but also in lakes and man-made dams
such as Mtera and Kidatu which are most important for hydro-power generation in the country.
The national parks in Tanzania have been among tourist attraction and a major boost in the
country’s economy. The national parks in the country are listed in descending order according to
their size: Serengeti which covers an area of 14,763 square kilometers, Ruaha covering 10,330
square kilometers, Katavi with 4,471 square kilometres, Mikumi 3,230 square kilometers,
Tarangire 2,850 square kilometers, Udzungwa Mountains 1,990 square kilometers, Mahale
Mountains 1,613 square kilometers, Saadani 1,062 square kilometers, Lake Manyara 644 square
kilometers, Kilimanjaro 412.9 square kilometers, Rubondo 240 square kilometers, Arusha 52
square kilometers, Gombe Stream 52 square kilometers and Jozani Chwaka Bay 50 square
kilometers in Zanzibar. In addition, Tanzania also has a large number of national reserves which
have gained international recognition by UNESCO as World Cultural Heritage sites. 6 However,
the mountains of Kilimanjaro, Meru and others (such as Uluguru, Usambara, Udzungwa) provide
good scenic attractions. Mount Kilimanjaro marks the highest point elevation (5,895m. above sea
level) and the highest standing peak in the world, while the Indian Ocean has the lowest point
below sea level. 7
Tanzania also has man-made physical infrastructure that also attracts tourists, such as Isimila old
stone age, Bagamoyo historical sites, Kilwa Masoko, Zanzibar slave market, Mji Mkongwe,
Oldvai Gorge in Ngorongoro, Uvinza salt smelting and Mkwawa chiefdom ruins at Kalenga in
Iringa.
5
Loc cit.
A property in Tanzania that is on the World Heritage includes the following; Kondoa Rock-Art sites (2006), Ruins
of Kilwa Kisiwani and Ruins of Songo Mnara (1981) and Stone Town of Zanzibar (2000); Natural heritage:
Kilimanjaro National Park (1987), Selous Game Reserve (1982), Serengeti National Park (1981) and Ngorongoro
Crater (1979).
7
http://www.nbs.go.tz/index.php?option=com_content&view=articles&id=Itemid=115 (Accessed on February
2012)
6
2
1.3 People
The population of Tanzania has been increasing from 10,370,490 during independence in 1961
to over 41 million estimated people, 50 years after independence. 8 The increase is a result of
improved health services, reduction of hunger and extreme poverty among people, improvement
in infrastructures, and an increase in the elite class in society. 9 The population age structure is
composed of 40% of persons below 15 years, 48% persons between 15 - 64 and 12% of persons
above 65 years. 10 The population growth rate is 2.9% per annum and the life expectancy at birth
in Tanzania is 52.5 years for male and 55.1 for females. 11
The country’s national language is Kiswahili; however the official language is both Kiswahili
and English. The language of the court system is either Kiswahili or English. 12 Despite Kiswahili
being the national language which unites the people of Tanzania, the country is multilingual.
There are more than 120 tribes which can be grouped into the Bantu, Nilotic, Nguni and
Cushites. Minority tribes, which form indigenous groups, include the Ndorobo, Hadzabe,
Barbaig and the Maasai. Major tribes in Tanzania include Sukuma, Haya, Nyakyusa, Nyamwezi
and Chagga. The country has about 1% of Tanzanians with Asian origin who are mainly
engaging in micro and macro-businesses in cities. They are found mostly in Dar es Salaam,
Tanga, Mwanza, Tabora and Singida.
Tanzania is a secular state, where people have the constitutional rights to worship any religion.
The dominant religious groups in the country are Christians and Mujslims, while others include
Hindus and traditionalists.
Tanzanians are also free to join any political party of their choice. The country became a
multiparty state in 1992 and currently there are 20 registered political parties, the dominant being
Chama cha Mapinduzi (CCM) and the strong opposition parties are Chama Cha Demokrasia na
Maendeleo (CHADEMA), Civic United Front (CUF), National Convention for Construction,
Reform Mageuzi (NCCR-Mageuzi) and Tanzania Labour Party (TLP).
1.4 Economy
1.4.1 General Description of the Tanzanian Economy
According to the Human Development Report, 2011, Tanzania belongs to the group of low
human development countries in the world. 13 The economy of Tanzania depends heavily on
agriculture, which accounts for over 80% of the country’s GDP. Other economic activities
include the tourism, mining, fishing and industrial sectors respectively.
The country has devised various developmental plans including international and national plans
in order to attain high performance in economic development. The country implements the
Millennium Development Goals (MDGs) and the Tanzania Development Vision 2025 through
8
APRM Report, 2011 page xxi.
Ibid.
10
Ibid.
11
http://www.nbs.go.tz/index.php?option=com_content&view=articles&id=Itemid=115 (Accessed on February
2012)
12
S. 84 of the Interpretation of the Laws Act; Cap 1 [R.E. 2002] of the Laws of Tanzania
13
Human Development Report, 2011 page 127. Other groups include Very High Human Development countries,
High Human Development countries and the Medium Human Development Countries.
9
3
the National Strategy for Growth and Reduction of Poverty (NSGRP) popularly known as
MKUKUTA and currently, it is implementing its second phase (MKUKUTA II).
In 2011, Tanzania launched the Presidential five-year Development Plan 2011-2016 which aims
at boosting economic growth by 8% to 10% annually to accomplish the goals of the
Development Vision 2025. 14 The economic growth for Tanzania now stands at 7% per annum.
Lastly, Tanzania is implementing various sectoral programmes such as Kilimo Kwanza (green
revolution) in the Agricultural sector, PADED and ADAP, Education Structural Development
Programme (ESDP) in the Education Sector, and in the Health sector there are several
programmes such as Primary Health Sector Development Program (PHSDP 2007-2012) towards
attaining the Millennium Development Goals by 2025. 15
1.4.2 Economic Situation by 2011
In 2011, the economy of the country was hit by high inflation which reached up to 19%. It
affected the local market, making the price of consumable goods in local markets unaffordable.
For instance, in 2011 the price of sugar rose from 1,500/= to 3,500/= per kg. The inflation rate
was directly caused by oil price fluctuations in the world market and a down fall of local
currency over USD. 16 The exchange rate by December 2011 reached 1,830/= Tsh to buy 1
USD. 17
Figure 1: Consumers que for fuel in Mtwara, Sep. 2011
The country’s GDP has fallen by 0.1%, in 2011 from 6.5 in 2010 to 6.4 currently. The situation
may have been caused by the non-reliability of power experienced when several powergeneration enterprises closed production. The power rationing did not only affect larger
producers but also affected small-scale producers.
14
United Republic of Tanzania, Five years Development Plan 2011-2016
LHRC (2010) Tanzania Human Rights Report, 2010 page 111.
16
Hotuba ya Waziri wa Fedha Mh. Mustafa Haidi Mkulo, Akiwakilisha bungeni Mapendekezo ya Serikali Kuhusu
Makadirio ya mapato na matumizi kwa mwaka 2011/12 page 9. The Minister informed the Parliament that in 2011,
the price of oil in the world market reached 120 USD per barrel compared to 40 USD in previous years.
17
http://exchangerates.org.uk/UDS-TZS exchange rate history shows the highest 1878.1616 TZS; average
1547.0937 and lowest 1240.6948
15
4
LHRC calls upon the government to find a permanent solution for power generation in the
country to attract foreign and local investors. Failure to do so will result to economic stagnation.
The country’s GDP remains stagnant between 5% at a lowest level to 6%. 18
The government budget for the financial year 2011/12 is focused on reducing donor dependence
by 10% by 2015. In the financial year 2007/08, the percentage of the economy that relied on
donor funds was 28%, whereby in financial year 2010/11 the donor dependence is down to
17%. 19 The donor dependence has been reduced due to the government borrowing from the
banking system on a net basis. For example, by March 2011 the government had borrowed Tsh.
883.5bn compared to Tsh. 534.2bn it borrowed in 2010. The government intends to borrow Tsh,
1,204.3bn through the banking system in the financial year 2011/12. 20
The 2011/12 budget aims at achieving a GDP growth rate between 6% and 7.2%. This will allow
the government to reduce the inflation rate and maintain it to a single digit and to increase
domestic revenue by 17.2% (estimated) of GDP. 21
Regarding expenditures, the government is proposing to spend Tsh. 13,525bn in the financial
year 2011/12, Tsh. 8,600bn being for recurrent expenditures and Tsh. 4,926bn for development
expenditures. One of the priority areas is to increase energy generation and distribution in
partnership with private sectors through Public Private Partnership (PPP). Other expenditures in
percentage include the following: 16.9 on education, 20.56 on infrastructure, 6.8 on agriculture
and irrigation, 4.6 on water and 8.9 on health. 22 The budget allocated for health in 2011/12 does
not meet the required 15% as provided for in the Abuja Declaration. 23
1.5 Historical Overview: Colonialism to Present
In 1890, Tanganyika (now Tanzania mainland) was split into different areas through treaties
drawn by Germany, Britain and the Sultan of Zanzibar. After these treaties were signed,
Tanganyika and Ruanda-Urundi (now Rwanda and Burundi) became German East Africa
colonies, while Zanzibar (Pemba and Unguja) became a British protectorate under the leadership
of Sultan.
The agreements between Germany, Britain and the Sultan of Zanzibar were opposed by some
local inhabitants of Tanganyika. Stiff opposition to colonial rule in Tanganyika was led by
Mirambo of the Nyamwezi tribe in the western region, Mkwawa of the Hehe tribe in the
southern highlands and Mangi Meli of the Chagga tribe in the northern region. These pockets of
stiff opposition to colonial rule were highlighted by a popular insurgency in the southern and
eastern parts of Tanganyika that culminated in the Maji Maji resistance of 1905 to 1907. The
18
Ibid.
Ibid.
20
PWC; Tanzania Budget Review: Commentary page 2
21
Ibid.
22
Op cit.
23
In April 2001, Heads of State of the members of the African Union pledged to set a target of at least 15% of their
annual budget to improve the health sector. However, in 2011, only the Republic of South Africa and Rwanda had
achieved the Abuja Declaration target of at least 15%. For more information read the Report by WHO, “The Abuja
Declaration: Ten Years On” which is available at www.who.int/healthsystems/publications/Abuja10.pdf
19
5
Maji Maji resistance was inspired by Kinjekitile Ngwale, a spiritual leader in Southern Tanzania
whose medicine allegedly prevented the ‘white men’s bullets’ from harming his followers.
Germany’s colonial domination over Tanganyika ended in 1919 with the World War I. Control
of most of the territory passed to the British through a League of Nations’ mandate. Tanganyika
became a United Nations’ Trust Territory, subject to British control after World War II.
However, it began to move towards self-government and independence.
The area now known as Tanzania Mainland became an independent nation, named Tanganyika,
under the Tanganyika African National Union (TANU - a political party) on 9th December, 1961.
A year later, it attained the status of Republic under the leadership of Julius Kambarage Nyerere.
Zanzibar gained its independence from the British on 10th December, 1963, but was still under
the domination of the Sultan. The Sultanate was overthrown on 12th January, 1964 when the
Afro-Shirazi Party (ASP) came into power through revolution. On 26th April, 1964, the two
independent states (The Republic of Tanganyika and that of Zanzibar People’s Republic) merged
to form the United Republic of Tanzania.
Observing Tanzania’s history from a human rights perspective, there is no doubt that German
and British colonialism in Tanzania negated and suppressed human rights. When one State
colonizes another, it violates the right to self-determination of the colonized people. There is no
law that can justify colonialism. Colonial powers rarely allowed colonized people to enjoy any
human rights. 24
Tanzania was a multi-party state from 1961 to 1965, when it adopted a single-party political
system. Despite this system, there were two political parties operating in Tanzania between 1965
and 1977, TANU in the Mainland and ASP in Zanzibar. On 5th February, 1977, TANU and ASP
merged to form Chama Cha Mapinduzi (CCM). From 1977 to 1992, CCM was the only party
permitted to operate in Tanzania. In 1984, a Bill of Rights and Duties was incorporated into the
Constitution of the United Republic of Tanzania of 1977 through the fifth constitutional
amendment, after a long struggle by human rights activists. The provisions of this Bill are
discussed later in this report. In 1992, following the wave of change, opposition parties were
legalized and Tanzania became a democratic state with a multi-party system. 25
The first independent administration under Mwalimu Julius Nyerere was from 1962 to 1985. In
1985, Ali Hassan Mwinyi succeeded him and served two terms from 1985 to 1995. In 1995,
Tanzania held its first multi-party election. Benjamin William Mkapa of CCM served two terms
as president from 1995 to 2005. Mkapa’s successor, H. E. Jakaya Mrisho Kikwete, also from
CCM, was re-elected for his second term serving as the fourth president in Tanzania’s history on
October 2010.
The human rights situation in post-colonial Tanzania, like many other African states, has been
overshadowed by the need for development. Nationalist leaders conceived the process of
24
LHRC (2006) Through a Crucible of Human Rights Struggles in Tanzania: A Decade of Legal and Human
Rights, Dar es Salaam, pages 5 to 6.
25
See Mohammed Omar Maundi (2007) ‘Tanzania’ in Gavin Cathra et al (Eds), Security and Democracy in
Southern Africa, Johannesburg, Wits University Press.
6
economic development to be as one that did not necessarily promote or respect human rights. 26
The adoption of a Bill of Rights designed to protect human rights was denied at first, apparently
due to nationalistic ideas regarding the need for economic development.
1.6 Governance System
In Tanzania, the governing structure comprises of the executive, legislature, and judiciary.
These three bodies are established by Article 4 of the Constitution of the United Republic of
Tanzania of 1977 (as amended from time to time). The Constitution provides for existence of
two organs vested with executive powers; these are the Government of the United Republic of
Tanzania and the Revolutionary Government of Zanzibar, the Judiciary of the United Republic
of Tanzania and the judiciary of Zanzibar and two legislative organs the Parliament of the United
Republic of Tanzania and the House of Representatives in Zanzibar. 27 However, following the
10th amendment to the Constitution of Zanzibar in 2010, the Government of National Unity
(GNU) was formed by the ruling party CCM and the opposition CUF.
1.6.1 The Executive
The executive arm of the government of United Republic of Tanzania is made up of the
President, who is the Head of the State, the government, and the Cabinet. The Cabinet includes
the Vice-President, the Prime Minister, the President of Zanzibar and all ministers. The VicePresident assists the President with all union matters. Zanzibar has a semi-autonomous
government that has the power to deal with all non-union matters in the Isles. Details about the
Zanzibar government are provided in Part Two of this report. The composition of the current
cabinet has 27.6 percent of it is women.
1.6.2 The Legislature
The Legislature/Parliament is composed of the President and the National Assembly who are
elected for a five year term by direct popular vote. 28 The President appoints a Prime Minister
who must be approved by the National Assembly. The Prime Minister serves as the leader of
government business in the Parliament. 29 The President appoints his cabinet from the National
Assembly members. 30 The President also nominates 10 individuals from non-elected members
to be part of the Parliament. 31
26
Op cit, at pp. 5 to 6.
Article 4(1) and (2) of the Constitution of United Republic of Tanzania, 1977 as amended from time to time
28
Tanzania follows the Anglo-Saxon example and allocates Parliamentary seats on the basis of “winner takes all”.
Only those who win in their respective constituencies take their seats in Parliament. There is no second vote for a
particular political party and its selected candidates.
29
Article 51 of the Constitution of United Republic of Tanzania, 1977.
30
Article 55(4) Provides that, “All ministers and Deputy Ministers shall be appointed from among the Members of
Parliament.”
31
Article 66(1) (e) of the Constitution of the United Republic of Tanzania, 1977.
27
7
The majority of MPs are elected from their constituencies. However, there are ten MPs
nominated by the President and 102 special seats for women who are nominated by their
respective political parties. Additionally, there are 5 MPs who are members of the Zanzibar’s
House of Representatives and the Attorney General of Tanzania, who is an ex-officio member of
Parliament by virtue of his/her office. Laws passed by the National Assembly are only valid in
Zanzibar if they address specifically designated union matters and have been presented to the
Zanzibar’s House of Representatives by the responsible minister. 32
The Zanzibar House of Representatives has jurisdiction over all non-union matters, that is,
matters that do not pertain to foreign affairs, citizenship, higher education and other matters set
out by the Constitution as under the power of the entire Union. 33 There are currently 70 members
in the Zanzibar House of Representatives. 34 The House has the ability to make laws for Zanzibar
on non-union matters without the approval of the union government. The term of office for the
Zanzibar President and its House of Representatives is also 5 years. The semi-autonomous
relationship between Zanzibar and the Mainland is a relatively unique system of government.
More information about Zanzibar can be found in Part Two of this report.
There are also central and local governments that operate pursuant to Article 145 of the
Constitution of the United Republic of Tanzania, 1977 and local government laws that apply to
the regional and district levels of government. 35 As of now, Tanzania has 30 regions, following
the announcement of the new regions of Katavi, Geita, Simiyu and Njombe, declared in 2011. 36
1.6.3 The Judiciary
The Judiciary is a constitutional organ and an arm of the state vested with powers to interpret the
laws of the country. 37 Tanzania's legal system is based on English common law. Judicial
functions are administered by various courts established in accordance with the law. 38 The
judicial hierarchy in Tanzania Mainland (in descending order) consists of the following
structures: the Court of Appeal is the highest court in the country, followed by the High Court of
32
Articles 132 (1) and (2) of the Constitution of the Revolutionary Government of Zanzibar of 1984
The House of Representatives is established under Articles 63 and 64 of the Constitution of Zanzibar of 1984. It
consists of: elected members from the Constituents; nominated members by the President of Zanzibar, female
members (special seats 30% of all elected members) appointed by political parties and represented in the House of
Representatives, Regional Commissioners; and the Attorney General of Zanzibar. The matters that are considered to
be union matters are set out in the Constitution of the United Republic of Tanzania, 1977 at 1st Schedule.
34
Reith, S (2010) Tanzania after the Parliamentary and Presidential Elections of 2010: KAS International Report, at
page 115.
35
The local government laws include the Local Government (District Authorities) Act, Cap. 287 R.E. 2002 of the
Laws of Tanzania; the Local Government (Urban Authorities) Act, Cap. 288 R.E. 2002 of the Laws of Tanzania; the
Local Government (Elections) Act, Cap. 292 R.E. 2002; the Regional Administration Act, Cap. 97, R.E. 2002 of the
Laws of Tanzania. These laws have been amended by the Local Government Laws (Miscellaneous Amendments)
Act, 1999, Act No. 6 of 1999 and the Local Government Laws (Miscellaneous Amendments) Act, 2006, Act No. 13
of 2006.
36
G.N No 289 of 2011.
37
Article 107(A) 1 of the Constitution of the United Republic of Tanzania of 1977 provides that “The Authority
with final decision in the dispensation of justice in the United Republic shall be the Judiciary”.
38
See: Articles 108, 114 and 117 of the Constitution of the United Republic of Tanzania of 1977 also provisions of
the Magistrates Court Act, Cap. 11, R.E. 2002.
33
8
Tanzania, Resident Magistrates Courts/District Courts and Primary Courts. In the Court of
Appeal and High Court, adjudicators are called judges, while in all other courts, they are called
magistrates.
Judges are appointed by the President, in consultation with the Judicial Services Commission of
Tanzania. 39 Magistrates are appointed directly by the Commission. 40 The High Court of
Tanzania has three major divisions, dealing with land, labour and commercial matters
respectively.
There is also a court martial process meant to deal with cases related to armed forces personnel. 41
Moreover, there is a special Constitutional Court, which is an ad hoc court for resolving disputes
related to the interpretation of the Constitution of the United Republic of Tanzania, 1977. 42 The
sole function of the special Constitutional Court is to make decisions on disputes about the
interpretation or application of the Constitution between the Government of the United Republic
of Tanzania and the Revolutionary Government of Zanzibar. 43 One half of the members of the
Special Constitutional Court are appointed by the Government of the United Republic of
Tanzania and the other half are appointed by the Revolutionary Government of Zanzibar.
Tribunals have also been established under various laws to adjudicate on other matters, including
labour, taxes and land issues. 44
Zanzibar, as discussed in Part two of this report, has its own judicial system consisting of (in
descending order): The Court of Appeal of Tanzania, the High Court of Zanzibar, Regional and
District Magistrate Courts, Primary Courts, Kadhi Appeal Courts and Kadhi Courts. These courts
have jurisdiction over cases arising in Zanzibar that involve non-union matters. 45 The High Court
of Zanzibar is the highest court for matters originating from Kadhi Courts and the interpretation
of the Constitution of Zanzibar. However, the appeal process for a case originating from a
Magistrate Court is slightly different, as the case may be appealed to the High Court of Zanzibar
and then appealed again to the Court of Appeal of Tanzania.
LHRC believes that, it is the attribute of ‘independence of judiciary’ that can only guarantee an
unquestioble capacity and ability of the Judiciary in protecting and promoting human rights. .
Independence of the judiciary means every judge or magistrate, as the case may be, is free to
39
Articles 109 and 118 of the Constitution of the United Republic of Tanzania of 1977.
Article 113(1) of the Constitution of the United Republic of Tanzania.
41
Court Martial, including general court martial, disciplinary court martial and standing court martial, are governed
by the provisions of the National Defence Act, Cap. 192, R.E. 2002.
42
The Constitutional Court is established by Article 125 of the Constitution of the United Republic of Tanzania of
1977.
43
Article 126 of the Constitution of the United Republic of Tanzania of 1977.
44
The Labour Institutions Act, 2004 provides for establishment of institutions to adjudicate labour disputes in
Tanzania, The Tax Revenue Appeals Act, Cap 408 of R.E 2006 of the Laws of Tanzania provides for establishment
of Tax Revenue Appeals Board and the Tax Revenue Tribunal to adjudicate taxes issues and Land matters are
adjudicated by tribunals established under the Court (Land Disputes Settlements) Act, 2002.
45
There are 22 union matters. The Court of Appeal is one of the union matters listed in the First Schedule of the
Constitution of Tanzania. Other union matters include: foreign affairs, security, police, citizenship, immigration,
foreign trade, high education, aviation and statistics (among others).
40
9
decide matters brought before him/her in accordance with his/her assessment of the facts and
his/her understanding of the law without any improper influence, inducements, or pressures
direct or indirect from any quarter or for any reason. This is in accordance with the oath of
office, which they take to do justice without fear or favour, affection or ill will. 46
Chapter Two
Civil Rights and Liberties
2.0 Introduction
Various scholars have categorized human rights in terms of positive and negative rights. Civil
rights and liberties fall under the category of negative rights. Positive rights are rights to be
46
Peter, Maina (Undated) “A paper on the Independence of the Judiciary in Tanzania: Many Rivers to Cross” at
page 2.
10
provided for 47 but negative rights typically involve the right to be protected from certain
conditions including: arbitrary arrest, detention, torture, and death. 48
Positive right is when you ask someone or state to do something for you whereas
negative right is when you ask someone or state to stop doing something. 49
Civil rights and liberties at the international level are promoted and protected by several
international instruments such as the Universal Declaration of Human Rights (UDHR) of 1948;
the International Covenant on Civil and Political Rights (ICCPR) of 1966; the African Charter
on Human and People’s Rights (ACHPR) of 1981; the Optional Protocol to the ICCPR; 50 and
the Second Optional Protocol to the ICCPR. 51
The United Republic of Tanzania Constitution of 1977 has both substantive and procedural laws
that promote and guarantee negative rights. Negative rights are also enshrined in Tanzanian law
through the ratification and domestication of international instruments, such as those listed
above. 52 This chapter assesses how Tanzania protects and promotes negative rights such as the
right to life, freedom from torture, freedom of expression, access to justice and the right to a fair
trial.
2.1 Right to Life
Every human being has the inherent right to life and this right must be protected by law. The
right to life is a supreme right without which, other rights become insignificant. The fundamental
nature of the right is also clear from the fact that it is non-derogable; that is to say, it must not be
denied even in public emergencies such as war and other acts threatening the life of the nation. 53
Most groups across the world condemn the act of depriving someone of their right to life.
International human rights law has guaranteed this right as the most sacrosanct in a number of
treaties and international instruments including The African Charter on Human and People’s
Rights (ACHPR), 1981, 54 the Universal Declaration of Human Rights, 1948 55 and the ICCPR.
47
Many believe that the role of Government is to protect negative rights and not to provide positive rights.
Philosophers and political scientists define positive rights as obliging someone to accomplish something. Negative
rights, on the other hand, require others to stop doing something to someone. Negative rights do not allow the right
to be subject to the action of another person or state.
48
Weba, Elijah (2009) “Positive and Negative Rights: What’s the Difference, and Why Does It Matter?” See also
Halliday, Terence (2008) “The Fight for First Generation Rights: A Comparative Essay on the Mobilization of the
Legal Complex for Basic Legal Freedoms,” Prepared for World Justice Forum, Vienna, 2-5th July, 2008, page 3.
49
http://gwendolyncuizon.suite101.com/what-are-positive-and-negative-rights-a97006.html accessed on 21st
August, 2011.
50
It was adopted by the UN General Assembly on 16th December, 1966 and entered into force on 23rd March, 1976.
51
Adopted and proclaimed by the United Nations General Assembly resolution 44/128 of 15th December 1989.
52
The Constitution of the United Republic of Tanzania Article 12-30, The Basic Rights, Duties and Enforcement
Act of 1994 and the Penal Code Cap 16th of the R.E 2002 Laws of Tanzania.
53
Korff Douwe (2006) The Right to Life “A guide to the implementation of Article 2 of the European Convention”
Human rights handbooks, No. 8, Page 6. on Human Rights.
54
Article 4 also guarantees the right to life implicitly by stating that human beings are inviolable. To be inviolable,
every human being must be entitled to respect for his or her right to life and integrity of their person.
55
Article 3 upholds the right to life, liberty and security of the person.
11
The ICCPR provides that every human being has an inherent right to life and that this right shall
be protected by law, with no one arbitrarily deprived of the same. 56
However, this right is not as sacred and inviolable as it is thought. The concept that “no one can
arbitrarily be deprived his or her life” still leaves room for states to deprive someone of their life
where it is not found to be “arbitrary”. The word “arbitrary” gives states power to deprive a
person of their right to life so long as it is done in accordance with the law. Most states including
Tanzania have made use of this flexibility to create laws that allow the state to violate one’s right
to life. 57 For instance, the Constitution of the United Republic of Tanzania, 1977 guarantees the
right to life yet the right to life continue to be violated through laws that impose the death
penalty, allow killing during lawful warfare, 58 and those for self defense. 59
The right to life in Tanzania continues to be violated by individuals, by the state and its agents.
LHRC surveys indicate that the right to life in Tanzania is also violated in the following manner:
the presence of the death penalty, extra-judicial killings; killings related to witchcraft beliefs;
mob violence; suicide, domestic violence and road accidents.
2.1.1 Death Penalty in Tanzania: 17 Years of Psychological Torture in Prison
The death penalty is a calculated and cold-blooded killing of a human being by state. 60 Twothirds of the world’s nations have abolished the death penalty either in law or in practice, but
there are still many countries still performing executions. 61 According to Amnesty International,
in 2010, 23 countries carried out executions and 67 imposed death sentences in 2010. Tanzania
still retains death penalty in law, but has had a de facto moratorium on executions since 1994.
Tanzania imposes death penalty in capital offences such as murder cases, 62
treason, 63 and military-related offences. 64 Despite the moratorium on
executions, the government of Tanzania remained undecided on the
question of abolishing death penalty. For all those 17 years, hundreds of
prisoners convicted to death penalty have continued to be on death row
waiting to be hanged. Human rights activists view this as mental and
psychological torture inflicted to prisoners on death row.
56
Article 6(1).
S. 197 of the Penal Code Cap. 16 [R.E 2002].
58
Lawful killing refers to legal warfare according to the standards of international humanitarian law. International
humanitarian law does not allow the legal killing of protected persons e.g. civilians and prisoners of war;
59
www.hrea.org
60
Amnesty International (1989) When the State Kills: The Death Penalty v Human Rights, page 1.
61
World Congress against Death Penalty: Geneva 2010. A Booklet for Participants, page 10.
62
Section 197 of the Penal Code, Cap 16 of the Laws of Tanzania.
63
Section 39-40 of the Penal Code, Cap 16 of the Laws of Tanzania.
64
The National Defense Act, Cap 192 of the R.E 2002 Laws of Tanzania.
57
12
2.1.1.1 The Inhumanity of Death Penalty
The 2011 World’s Day against Death Penalty focused on the inhumanity of the death penalty as
a cruel, inhuman and degrading treatment and punishment. 65 The death penalty requires the state
to carry out the very act which is contrary to both the law and some of the religious beliefs. The
death penalty is inhumane because it is a premeditated punishment that cannot be executed
without discrimination, cruelty and error. 66 The death penalty not only dehumanizes the convict
but also the entire society, as it was once noted by Renny Cushing, 67 “If we let murderers turn us
to murder, we become what we say we abhor”.
(a) Death Row Dreadful Conditions: Mr. Tete’s testimony
As of December 2010, there were 295 males and 11 females on the death row. 68 Mr. Tete, who
was until recently on death row, says that the cells allocated for death row inmates are not
suitable for human beings. The cells for death row inmates are separate and distinct from the
cells of other inmates, and different the uniforms. It is wise to note that those on death row clad
into blue uniforms while as the rest of the inmates dress in orange. Worse yet, there is no
ventilation in the cells and there is lack of proper nutrition with inmates eating improper meals
and often only once a day. Inmates lack clean and safe drinking water, water for bathing and
poor access to medical care and treatment. Mr. Tete describes living conditions in prison as
follows:
…Na pia hatupati kabisa huduma nyingine za msingi Kama sabuni, dawa na
chakula cha kibinadamu.”
[We also do not receive basic needs such as soap, medicines or a decent meal]
Mr. Tete says that the situation in cells is further complicated by the fact that most death row
prisoners do not have a date or estimated time given for their execution. The time spent in cells
awaiting executions is a horrible experience for prisoners. Inmates suspect every prison officer
who comes to visit them to be the executioner. This has a negative implication on prisoners on
death row as many of them suffer from mental and psychological torture. Mr. Tete testifies as
follows:
Mimi nimekaa mahabusu kwa miaka 11 na baadaye nikahukumiwa kunyongwa hadi kufa na adhabu
haikutekelezeka kwa miaka 9 ...hali yangu ilikuwa mbaya sana pale nilipokuwa najua kuwa wakati
wowote nitakufa…hali kama hii humfaya mtu hata kula ashindwe…saa nyingine askari magereza
huwa wakitutishia kuwa leo mnakufa.., basi hali kama hii inatuumiza kiakili na kujiona wanyonge
zaidi na pengine unaweza hata kurukwa na akili wakati unasubiria kunyongwa.
65
Marked on every 10th of October.
Amnesty International (1989) When the State Kills: The Death Penalty v Human Rights, page 55.
67
Director of Murder Victims’ Families for Human Rights (MVFHR) at http://www.fidh.org/WORLD-DAYAGAINST-THE-DEATH.Accessed on 25th October, 2011.
68
CHRGG (2011) Individual Report, of the Tanzania National Human Rights Institution Submission to the Human
Rights Council; UPR 12th SESSION, 2011 in Geneva.
66
13
[I spent 11 years in remande prison and thereafter on death row for 9 years. I was in a pitful
situation especially whenever I recalled that I may die at any given time. The agony of not knowing
when you were going to die was by itself a psychological torture, as in most cases it could make one
lose appetite. At times, prison wardens would come in our cells threatening us that time had come for
us to die. That was real tormenting making us feel helpless. Staying on death row can actually make
you run mad.]
(b) Modes of Executions
According to Amnesty International, States are currently using the following modes of
execution: beheading, electrocution, hanging, lethal injection and shooting. 69 In Tanzania, the
death sentence is executed by hanging to death according to the Criminal Procedure Act, 1985
Cap 21 [R.E 2002] which states, “when any person is sentenced to death, he or she shall suffer
death by hanging.” 70 The President is compulsorily required by the Criminal Procedure Act,
1985 either to sign and issue death warrant, pardon the convict or order the sentence of death to
be substituted and commuted for any other punishment. 71 By its nature, capital punishment is a
reflection of retributive justice; it personifies the ancient maxim of ‘an eye for an eye and a
tooth for a tooth.’ 72 The death penalty is outrageous because its foundation is based on the
principle of vengeance. The death penalty obliges the state to condemn an offender to death as a
form of revenge. This revenge is cruel and inhumane to the individual as it is not only placing
the person in physical suffering but also taking their lives away.
According to the Universal Declaration of Human Rights 194873 which Tanzania is a party to,
no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
In addition, Article 13 (6) (d) and (e) of the Constitution of the United Republic of Tanzania,
1977 prohibit all sort of inhuman and degrading punishment. 74 This was as well pointed out by
the Late Justice Mwalusanya in the case of R. v. Mbushuu alias Dominick Mnyaroje, 75 that the
mode or manner of execution of the punishment was inhuman, cruel and degrading.
The death penalty is inherently inhumane, cruel, and degrading punishment and its execution also
offends Article 13(6) (d) and (e) of the Constitution.
69
http://www.amnesty.org/en/death-penalty/death-sentences-and-executions-in-2010.(Accessed on 25th October,
2011.)
70
Section 322.
71
Section 325(3).
72
Shaidi Leonard (Un dated)”The Death Penalty in Tanzania: Law and Practice” Page 1.
73
Article 5.
74
Article 13(6) (d) seeks to protect the dignity of a person in the execution of a punishment. Torture, inhuman
punishments and degrading punishments are prohibited. Punishments, which are not prohibited, have to be executed
in such a way as to protect the dignity of a person.
75
High Court (Dodoma) Criminal Sessions Case No. 44 of 1991 reported in 1994 2 LRC 335.
14
Deciding against Mwalusanya’s submission on arbitrariness and cruelty of mode of execution
and relying on the interpretation of the word “arbitrary” Tanzania Courts of Appeal in R. v.
Mbushuu denounced that death penalty is not arbitrary, hence not unconstitutional. 76
The death penalty as provided for in s. 197 of the Penal Code was not arbitrary and
was a measure reasonably necessary to protect society and is therefore saved by
article 30(2) of the Constitution. It was therefore not unconstitutional. 77
As reflected in this decision of the Court of Appel, the laws in Tanzania support the death
penalty and thus a need to repeal such oppressing and degrading laws.
(c) No Point of Return
According to the judicial system of Tanzania, a person condemned to death may have been
wrongfully convicted. The individual may have been convicted due to human error or wrong
evidence. The death penalty is a final verdict and does not give room to appeal after death. For
developing countries such as Tanzania where criminal investigative systems are very poor, there
is high possibility of wrongfully convicting and hanging suspects. The situation on the ground
shows that there are people who have been erroneously convicted because of poor defence
lawyers, forced and inappropriate confessions, false identification, suppression or fabrication of
evidence. For instance, Tete Kafunja was a former prisoner who stayed on death row for 9 years
for committing murder only to have been found not guilty of the crime in 2009 by the Court of
Appeal of Tanzania. Mr. Tete and others were wrongly convicted and sentenced to death by
hanging based on wrong evidence. Mr. Tete had this to say;
nasikitika sana kwa kuwa hata mtu niliyeambiwa nimemuua sijawahi kumuona, nimekaa kwa sasa
karibu miaka 20 gerezani kwa kosa ambalo silijui na pengine kama ingekuwa sio Mahakama ya
Rufaa kwa kweli ningenyongwa bila kuwa na hatia…kwani ushahidi uliotolewa pale mahakamani
ulionekana sio ushahidi wa kweli na ndipo mwaka 2009 Mahakama ikatuachia huru’
[I am sorry that even the person I was convicted for killing, I never; met, though I spent about 20
years in prison; paying for a crime that I did not commit… For sure, had it not been for the Court of
Appeal, I would have been hanged me innocently …the evidence presented in the court of law was
false and weak hence the Court set me free in 2009.]
2.1.1.2 Death Penalty versus Public Opinion
The government of Tanzania has been reluctant to abolish the death penalty for years now on the
ground that doing so would be against public opinion. The Minister of Good Governance in the
President’s office, Hon. Mathias Chikawe, who represented Tanzania in Geneva, was openly
quoted in the Tanzania 2011 Universal Periodic Review report as follows; 78
76
Court of Appeal of Tanzania (Dar es Salaam) Criminal Appeal No.142 of 1994.
Ibid.
78
UNGA (2011) National Report Submitted in accordance with paragraph 15 of the Annex to Human Rights
Council Resolution 5/1.United Republic of Tanzania, page 5.
77
15
Research shows that public opinion is still divided on the appropriateness of the
death penalty as majority of the people are retentionists.....Tanzania has not
acceded to the Second Optional Protocol to the International Covenant on Civil
and Political Rights.
The argument of keeping the death penalty because of public support has two problems; first,
human rights activists are concerned that public opinion on the issue of the death penalty would
not necessarily be collected and interpreted fairly and accurately. These human rights activists
claim that the majority opinion cannot be relied on in this matter because public opinion is very
subjective, not static, very dynamic and susceptible to manipulations. 79 Their worries on relying
on public opinion are centered on the fact that there may be possibilities of coming up with
unguided opinions and politicians may create a summary of statements that people may have not
intended.
The second argument on why public opinion cannot be a basis for a decision in Tanzania is that
the law on the death penalty had no public legitimacy in the first place. In 2011, the Tanzanian
Attorney General Hon. Fredrick Werema made a statement on this issue during the debate on
death penalty versus public opinion in Kigali. Hon. Werema was quoted as saying; “Death
penalty is a barbaric punishment, introduced by barbaric colonialists, for barbaric offences.”
The introduction of the death penalty to Tanzania came with the arrival of the colonialist penal
systems. In Tanzania, the death penalty was used by both German and British colonialists to
punish those who challenged their administration.
There were no consultations with local people when the death penalty was incorporated into the
Tanzanian penal laws. Consequently, if the death penalty was not a construct of public opinion
but came from colonialism, there cannot be any necessity to consult the public to abolish it. The
public opinion is of course still of utmost importance, but the government should not solely rely
on public opinion to abolish or retain death penalty. Depriving someone’s life is morally and
ethically wrong; the premeditated killing by the state of its own citizens is barbaric and culpable.
Under the guidance of principles of good governance and taking into consideration that people’s
legitimacy in various issues of national importance is crucial; the LHRC managed to collect
professional and guided public opinion (1,500 people were interviewed) on the death penalty
from different parts of the country. The questionnaire was structured to meet the interest of
different groups by taking into consideration their level of education and human rights
awareness. The questionnaire was composed of three questions; the first question was framed to
test the level of awareness, the second question was structured to know whether the public is
aware of inhumanity of the death penalty and lastly it was designed to give the public an option
to alternate between the death penalty and life
imprisonment.
Table 1: People's perception on Death Penalty
79
Sungusia Harold (2011) Submission of the Legal and Human Right Centre in Relation to the Death Penalty vs
Public Opinion in –Kigali Rwanda.
16
Graph one shows that 74% of all respondents to the question of the level of awareness know that
Death penalty is still part of our penal laws. It was easy to proceed with the question of validity
of death penalty having known that a great percentage of people were informed on the presence
of death penalty in the Tanzania Penal System.
Graph Two -Validity of Death Penalty
Graph Three-Commutation/Life Imprisonment
The two graphs above show that 76% of the people interviewed admitted that death penalty is
not a good punishment while as 74% of the same group of people as shown in Graph three
above recommend life imprisonment as the best alternative to death penalty.
The LHRC findings above shows that majority of the community is now informed and capable
of giving an opinion against death penalty. In this regard, the LHRC advises the state to go back
to the public and use open approaches to get public opinion on death penalty.
2.1.2
Extra -Judicial Killings and Police Brutality
While protection of human rights is traditionally entrusted to the states and accountable branches
of the government, this notion has been significantly eroded in recent years due to the fact that
states organs particularly the law enoforcement organs have turned out to be murderers. An
extrajudicial killing is the killing of a person by governmental authorities without the sanction of
any judicial proceedings or legal processes. Extrajudicial killings are by their nature unlawful,
17
since they bypass the due processes of the legal jurisdiction in which they occur. 80 Extrajudicial
killings and police brutality in Tanzania often affect political activists, trade union
demonstrations, criminal suspects, human rights activists, investigative journalists and political
demonstrations.
Police force, militia, prisons officials, park wardens and guards from private security companies
are in most cases named as the leading institutions in extra-judicial killings in Tanzania. Police
Brutality and Extra-Judicial Killings more often go together. The trend of police brutality and
extrajudicial killings continued to mount in the country. From January to December 2011,
already 25 people were reported to have allegedly died in the hands of police and other security
officers, while more than 50 were left injured. Worse still, civilians in Tarime, Tabora,
Shinyanga, Arusha and Rukwa terminated the lives of 5 police officers.
The following are some of the incidents of police brutality and extra-judicial killings recorded
from January – December 2011:
2.1.2.1 Shootings During Public Assemblies and Rallies
a) The Arusha Saga
On January, 2011 three people were shot to death and 30 others were left injured by police in
Arusha when CHADEMA held a peaceful rally. The police in Arusha were ordered to ban the
march on the grounds that it was a threat to peace. The three men were shot when security forces
fired on protesters following the arrest of opposition leaders. The LHRC findings show;
That, the act of CHADEMA to organize a political rally and procession within Arusha city
was right as they were exercising their Constitutional right as per Article 20 of the URT, 1977;
That, CHADEMA, complied with S.43 (1) of the Police Force and Auxiliary Act,1939 CAP.322
and Political Parties Act 1992 , S.11 by sending a notification to the OCD for their intention to
hold a peaceful political rally and procession;
That, the OCD positively responded to the notification;
That, the cancellation of the rally in less than 48 hours of the planned procession by the IGP was
unwise, unreasonable and utra vires;
That, those Police forces used excessive force in dispersing the procession;
That, the root cause of the political chaos is the rising temperature of competitive politics,
political extremist and intolerance which cropped after the October 2010 General Elections and
carried forward to local Government Mayoral election, Deputy Mayor and chairperson for
Municipal Council between CHADEMA and CCM; and
That, putting forward political interest and disregarding public interest is also attributable to
recent Chaos.
80
LHRC (2010) Tanzania Human Rights Report of 2010, page 43.
18
Figure 2: Police Brutality in Arusha Incident
b) Police Brutality in Urambo
According to LHRC findings, on 28th May, 2011 Police unreasonably and arbitrarily arrested and
tortured 20 people who attended CUF public gathering in Urambo at Usinge Ward. 81 The police
officers invaded CUF public assembly on the ground that it was unlawful. As the result six
CUF officials including the Honorable Magdalena Sakaya were detained for illegal gathering on
28th May, 2011 at Usinge Tabora. During the incident, police officers in Urambo caused the
death of one person Juma Said and left many others injured on 28th May, 2011.
The 20 villagers of Usinge narrate their
ordeal to the LHRC’s human rights
monitoring officer (not in the picture).
The deceased Juma Saidi after he was shot to death by
police at Usinge-Urambo
Figure 3: Effect of exessive use of force by Police in Usinge (Urambo)
81
LHRC (2011) Usinge Police Brutality Fact Finding Mission Report.
19
c) Mbarali Saga
On January 13th, this year, police officers at Ubaruku Mbarali shot to death one person injuring
two others. The incident came following a controversy over a road where heavy duty vehicles
above 8 tons belonging to Mbarali Estate continued to use the road which other private vehicles
owned by Tanzanians were strictly restricted and fined whenever found using the road.
Villagers in Ubaruku were angred by this and on 13th January, 2011 they made an operation
under Polisi Jamii (community policing) and captured one heavy-duty vehicle with registration
No. TAS S909 carrying petroleum to Ubaruku Filling station owned by the Estate. 82 Among
other things villagers wanted the district officials to visit the area and explain why the estate’s
trucks used the road while it was barred them to do the same.
However, instead of working on the villagers’ request, the district officials deployed a number of
police officers to suppress the mob and during the operation police officers shot to death one
person leaving two injured. The shootings and killing of their colleague made villagers furious
and they later retaliated by setting ablaze the truck as well as the petrol station.
Figure 4: A dead body of a victim of the police brutality in Mbarali - Mbeya
2.1.2.2 Shootings and Brutality Around the National Parks and Mining Areas
a) The Killings of Five People around North Mara Gold Mine on 16th May, 2011
Incidences of killings around the North Mara Gold Mine have been going on since the
commencement of the mine almost ten years ago where shootings of villagers continued to
mount supreme. A survey by the LHRC indicates that there have been an alarming number of
killings around the North Mara Gold Mine in the past few years. It reveals that about 21 people
have been killed around the mine between 2009 to June 2010. The LHRC findings show that the
82
LHRC (2011) Human Rights Survey of 2011, page 7.
20
Com
pany
’s
Priv
ate
Guar
ds
and
polic
e
offic
ers
are
both
resp
onsi
ble
for
the
shoo
tings at North Mara.
On 16th May, 2011 police officers guarding the Barrick owned North Mara Gold Mine in Tarime
shot to death five people and injured more than ten. The LHRC observation found that, a number
of people estimated to be 800-1000 entered the mining for the sake of collecting the remnants of
gold from the waste rock at around 5.00 am on 16th May, 2011. The LHRC findings indicated
that a group, which appears to have been found on the waste rock of the mine, was normal
villagers and ‘gold-seekers’ who had a mutual agreement with mine security officers and police
to enter the site; soon after the company had finished blasting high-grade ore. LHRC’s
researchers found that villagers who invaded the waste rock site were not muggers contrary to
government and police official’s statements after the killings. The shooting of remnants
collectors arose when paid security officers betrayed villagers by turning against them when
fellow officers arrived for inspection.
21
Figure 5: Bodies of the Victims of Police Killing in North Mara at Tarime Mortuary
The following is a list of the five people who were killed and injured at the mine;
Emanuel Magige (27), a resident of Nyakunguru Village; Chacha Mwasi (25) , a resident of
Bisalu Village; Chacha Ngoka (26) a resident of Kewanja Village in Tarime District and Chawali
Bhoke (26), a resident of Bonchugu Village; Mwikwabe Marwa (35) and a resident of Ketongoro
Village in Serengeti District. Three people were seriously injured and admitted at the Tarime
District Hospital before being referred to Bugando Hospital in Mwanza. They were; Frank
Joseph (20), Mwikwabe Mwita (30) and Samuel Nyangare.
(i)
Harrasment of Small Scale Miners in Liwale–Lindi
Police officers in Liwale were reported to have invaded the Ngujungu Gold Mine at Lilombe
village-Liwale on 16th June, 2011 where they harrassed small scale miners. The police officers
accused local miners of being intruders to the said mining site. About 70 small scale miners
were rammaged around their bodies by the police officers and in the course of so doing they
were forced to strip off their clothes. 83 This act was inhuman and cruel as most of them were
with their inlaws and their children.
(ii)
Police Brutality in Kiru Valley
On 2nd May, 2011, 41 people were arbitrarily arrested in Babati by police and charged for grave
offences such as armed robbery, malicious damage to properties, arson and conspiracy.
Intervention by the LHRC led to 29 people (6 children, 8 females and 15 males) being set free. In
that incident, one person Mr. Laida died while under the police officers’ custody. 84
83
http://www.humanrights.or.tz/wp-content/uploads/2011/07/Bi-Annual-2011-final-Compatibility-Mode.pdf. See
also http://www.ibn-tv.com/2011/06/police-alleged-to-strip-naked-artisanal-miners.
84
LHRC (2011) Kiru Fact Finding Mission Report of 2011.
22
Figure 6: The late Laida, few hours before his death as captured by the LHRC at Babati
Table 2: List of Some People Killed in 2011
No.
Deceased Name
Date/Month
Type
Death/Reasons
of
1.
Sese Kabanzi
2.
July Hamisi
3.
Chawali Bhoke (26)
4.
Mwikwabe Marwa (35)
//
//
//
5.
Emanuel Magige (27),
//
//
//
6.
Chacha Mwasi ( 25)
//
//
//
7.
Chacha Ngoka
//
//
//
8.
Juma Said
28th May, 2011
9.
Hamisi Boy
Shooting
during
a
public rally alleged
over
unlawful
assembly.
alleged poachers
3rd March, 2011
Mob Violence due to
Witchcraft
//
//
16th May,2011
5th February,
2011
Invading the gold mine
23
Violator
Police officers
Area
KiabakariMusoma Rural
//
Police/security
guards
//
North Mara Gold
mine
Police officers
Urambo
Selous
Game
Rangers/wardens
Kisarawe
10
Mohamed Suta
//
//
11
Denis Michael
5th January,
2011
CHADEMA procession
which was alleged to be
unlawful
12
Ismael Omary
//
//
//
//
13
Paul Njuguna
//
//
//
//
14
Rhobi
Mariba (43
15
Nyitamboka Mwita
16
Justine Muyamba
17
Safari Laida
June 2011
18
Edwin Kihwili
19
20
Juma Sanga
Tax Driver
21
22
23
24
25
Abdala Kikyndi
Aloyce Mushi
Riani Amosi
A suspected cattle rustler
Richard Desman
14th Sep, 2o11
15th Aug,2011
6th Aug,2011
Sep, 2011
27th August
,2011
Shot
Tortured to death
Shot
Shot
Severe Beatings
26
Tatizo Michael
3rd December,
2011
Tortured to death
Mwita
//
Police officers
Arusha
4th May, 2011
Alleged bandit
Police officers
Gibaso- Serengeti
8 June,2011
Alleged Poacher
Police officers
Serengeti
Alleged to have set on
fire a Petroleum Truck
belonging
to
an
investor
Died under police
Custody
Police officers
Mbarali
April 2011
Shot to death
police
Songea
May 2011
//
Shot
police
police
Moshi
Pasua Moshi
Police
Police
Park warden
Police
Park warden Gurumet
Game
Reserve
Police
Geita
Moshi
Mvomero
Kilosa
Serengeti
January, 2011
//
Babati-Manyara
Kasulu
Source: LHRC Human Rights Survey, 2011
2.1.2.3
Causes of Police Brutality and Extra-Judicial Killings
According to various studies including LHRC surveys and fact findings missions, police
brutality and extra-judicial killings are fueled by a number of factors including; laxity of laws,
poor recruitment systems, unchecked police brutality, lack of police autonomy and attempts of
protecting foreing investors/their investments.
(a) Laxity of Laws
The Tanzania Criminal system solely depends on the police force, being an enforcing organ
responsible for crime investigation, arrest and prosecution. However, the criminal sytem is weak
or rather silent when police personnel are involved in crimes such as brutality and extra judicial
24
killings. Lack of external and independent oversight body embodded with power to investigate
cases involving police brutality make police officers involved in crimes go unpunished. With a
considered opinion, the police require greater oversight and should not have a monopoly to
investigate and sanction their own misconducts.
Practically, many ad hoc commissions formed to investigate police brutality are solely composed
of officers from the same force accused of police brutality. For instance, following the shooting
of the five people in Nyamongo, the Prime Minister ordered the Minister of Home Affairs to
form an investigative commission to probe the matter. The Deputy Minister for the Ministry of
Home Affairs told the public that the commission was formed and composed of National
Security officers, Police officers and representatives from the Attorney General’s office. 85 The
investigative committee included neither religious nor political leaders nor other stakeholders
from private sector. The nature of the above may make it difficulty for the commission to be
trusted.
The LHRC urges the government to incorporate in the expected new constitution a national
oversight committee as an investigative and prosecutorial unit to pursue felonies committed by
police or security officers. This committee should have investigative and prosecution capacity
separate from the police officers. It should be endowed with the power to investigate and
prosecute any acts of misconduct and/or criminal acts by police/security personnel.
(b) Poor Recruitment Systems
The police personnel recruitment process has been overwhelmed by irregularities and corruption,
leaving the police with a poorly trained, unprofessional and undisciplined workforce that is prone
to corruption and violence. Nowadays, young police officers are too quick to draw their guns
and too inconsiderate when firing suspects. Many reported incidents indicate that victims have
been innocently shot on their backs. This is contrary to the police use of force against suspects.
The Basic Principles note that since policing is an important social service, principles for the use
of force and firearms must not only protect society, but also promote the welfare, enhance
working conditions and safety of law enforcement officials. 86 Police in Tanzania ignorantly or
intentionaly do not use these principles when dealing with suspects. They do not act in a
manner that upholds the right to life, liberty or security of the person; but rather use reasonable
force when dealing with suspects. The photo below shows how police officers use excessive
force unnecessarily.
85
86
Godfrey Mushi “Ripoti ya Mauaji ya Nyamongo yakabidhiwa” Nipashe 23rd August, 2011.
Preamble, UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
25
Figure 7: A body of a victim, who was shot from the back, as he was running away from the Police at the
North Mara Gold Mine
The use of firearms is an extreme measure and must only be used when a suspected offender
offers armed resistance or otherwise jeopardises the lives of police officers and less extreme
measures are not sufficient to restrain or apprehend the suspect. 87 In this regard the police force
in Tanzania is freely advised to recheck its recruitment systems and conduct several trainings to
its personnel who are already in the force to improve the safety of both the civilian population
and the officers themselves.
(c) Lack of Police Autonomy
The situation on the ground shows that the police force in Tanzania is not free from political
control. It is the view of the LHRC that the Tanzania Police Force must have a greater
autonomy from political control for it to be accountable and responsible to the people it serves.
However, this cannot be achieved if the force keeps on receiving orders from political quarters.
The police force does not seem to be independent because it lacks not only the facilities but also
the resources. This makes it vulnerable and dependent to external forces.
(d) Unchecked Police Brutality and Perpetuation of Impunity
The police force has a discouraging practice of transfering its officers who committ crimes
from one working station to another. The culture of upholding police brutality is rampant in
most parts of the country. For instance, in Kilosa Morogoro a police who was responsible for the
killing of young pastoralist was transfered imediately after the saga. The same situation
happened in Mbarali–Mbeya when a police officer who shot to death a villager in Ubaruku –
87
Commentary to Article 3, UN Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials.
26
Mbarali was transfered to another working station. Subsequently, those who were making a
follow up were intimidated, incurserated and finaly charged with unfounded allegations. 88
Furthermore, apart from responsible officers being transferred to other parts of the country,
police officers conspire to weaken their cases by destroying evidence, including the bodies of
victims of extrajudicial killings; and direct constant intimidation and violence to relatives of the
victims, complainants or witnesses. This was openly seen in Tarime after the shooting of the five
people in Nyamongo around North Mara Gold Mine. The police officers unreasonably harassed
and finally arrested, on totally unfounded allegations, the relatives of the victims before they
stole the bodies of the deceased from the mortuary and threw them where they found
convenient. 89
The LHRC’s studies show that there were some efforts taken by the government to assist the
relatives of the deceased to bury the dead. Villagers and relatives of the dead interpreted those
efforts as a trick used by the government and police officials to silence the matter. Relatives of
the victims declined to bury the dead before other stern measures could be taken. However,
police officers were used by politicians to force relatives of the victims to bury the dead without
even conducting an autopsy.
Figure 8: One of the coffins dumped alongside the road, near the deceased villages
88
LHRC (2011) Human Rights Survey of 2011, Mbeya and Morogoro Human Rights Profiles.
LHRC (2011) “Killings around North Mara Gold Mine”: The Human Cost of Gold in Tanzania-The Shootings of
the Five People,”page 9.
89
27
The police force lacks internal accountability mechanisms that could have detered police’s
misconduct of its officers who have commited crimes to face the law. Allowing police officers
who commit crimes to be charged may repair the reputation of the police force in Tanzania and
prevent future crimes by its personnel.
The LHRC advises the goverment and the police force to reform the force’s recruitment sytems.
Furthermore, all police officers and perpetrators of brutality in the country should be held
accountable. The Parliament should appoint and vert the IGP to head the police in Tanzania,
for the force to be free from political control and thus attain its autonomy.
2.1.3
Mob Violence
Mob violence has been referred to as a disturbance of the peace conducted by a group of people,
assembled and acting with a common intent in executing a lawful or unlawful enterprise in a
violent and turbulent manner. 90 In most cases, mob violence occurs when a group of people or
part of the community decides to assume the role of judges by punishing those who are suspected
to have committed an offence in the community.
2.1.3.1 Figures and Facts about Mob Violence
Numerous instances are reported of suspected criminals who are burnt by people in what is
commonly referred to as mob violence (angry mob). 91 The most common modes of killings are
burning (48.11 percent) and stoning (49.96 percent). Other modes accounted for only 3.0 percent
of the cases. 92
Figure 9: Mob Killing by Stonning
90
http://legal-dictionary.thefreedictionary.com/Mob+violence
APRM Report of 2011, page 145.
92
Ibid.
91
28
Figure 10: Mob Killing by Burning
International human rights instruments such as the ICCPR and the UDHR prohibit all sorts of
cruel and degrading punishment. The URT Constitution also prohibits cruel, inhuman and
degrading punishment. 93 Offences such as mob violence, destruction of property, arson and
assault are clearly prohibited by the Penal Code, Cap. 16 while the Criminal Procedure Act,
1984 requires due legal process to be observed when handling criminal suspects. Stoning and
burning are the worst forms of punishment and degrade the dignity of suspects.
Source: Police Statistics and LHRC’s 2011 Human Rights Survey.
93
Article 13 (6) (e)
29
The graph above indicates recorded 673 people who lost their lives due to mob violence from
January to December 2011. These shocking statistics depict that the state of apathy and
lawlessness is increasingly becoming an order of the day in Tanzania. In many reported
incidents, police stations and government offices have been stoned or set ablaze by angry mobs.
Figure 11: Mob Violence by Petty Traders (Machingas) in Mwanza
Table 3: Some Incidents of Mob Violence; Jan - Dec, 2011
N0.
NAME OF THE
VICTIM
DATE/YEAR
1.
LILA HUSSSEIN
10th April,
2011
2.
Two people
whose names
could not be
established
Cosmas Mniko
(69)
April-June
2010
4.
Nyangi
Mwikwabe (62)
3rd March,
2011
5
Nyamwija
Nyamisi
3rd March,
2011
6
Warioba Sira(35)
7
Mwita
Nyikondo(30)
3.
3rd March,
2011
3rd March,
2011
INCIDENT/REASO
N
VIOLATOR
Burnt to Death at
Kigamboni in Dar es
Salaam for theft
allegations
burnt to death after
they were suspected to
be thieves
Owners of South
Beach Hotel
Mji MwemaKigamboni-Dar
Students of
University of Dar es
Salaam
DAR-UDSM
MabiboHostel and
Mlimani campus
Burnt to death after
he was suspected to
have stolen 1000/=
Angry Villagers
Kiabakari-Musoma
Rural
//
Angry Villagers
Kiabakari-Musoma
Rural
//
Angry Villagers
Kiabakari-Musoma
Rural
Burnt to death by
villagers when he was
found stealing
//
Angry Villagers
Buhemba Village
-Musoma
Angry Villagers
Kiabakari
30
AREA
Musoma
8
Rose Bernadu
9
Tundu Jajaji
10
Camel Petro
Station
11
Uamuzi Sipendi
January 2011
12
Six peasants
19 May,2011
13
Burning of 73
houses
Property
destruction and
stoning of Mabibo
Police station.
10-14th May
Police Station
attacked
People attacked
petrol station
20 11
14
15
16
19th Feb,2011
//
6th July,2011
burnt to death
Angry villagers
Killed and burnt for
theft allegations
//
Kahama
Maswa
Destroyed and Burnt
due to a land dispute
Indigenous of
Mbarali
Mbarali -Mbeya
Killed
Angry Villagers
Moshi
Killed due to Land
dispute
Detterment from
conducting bussiness
Family conflict wrangle
over the deceaced
Pastoralists from
Rwanda
Zanzibaris
Ngara-Kagera
Citizens
Mabibo, Dar es
Salaam
Angry villagers in attempt
to rescue remandees
Villagers
June, 2011
Zanzibar
Serengeti-Mara
Villagers
Mbarali-Mbeya
17
Two people were
killed
28th March,2011
Killed
Angry Villagers
Bunda-Mara
18
April 2011
Attacked
Angry Villagers
Kyela -Mbeya
19
Court of law
invaded
Matre Hango
April 2011
Killed
Angry Villagers
Hanang Manyara
20
Lwali Iddi
May 2011
Theft allegation Killed
Tabora Girls
Secondary
Students
Tabora
21
Robert Maji
28th May, 2011
Theft allegation Killed
AngryVillagers/theft
Rukwa
22
D.2148 Surgent
Elikana
29/5/2011
Killed
Angry Mob
Rukwa
23
F.8333 PC
Emmanuel
14/2/2011
Killed
Robbers
Arusha
24
F.4964 PC.
Gwenge
15/3/2011
Killed
Remandees
Shinyanga
31
25
26
F.5344 D/C.
Salim
15/3/2011
E.9530 D/C
Joseph
22/4/2011
Killed
Killed
Remandees
Shinyanga
Angry mob
Tarime
Furthermore, a new inclination of lawlessness is emerging. There have been increasing reports of
groups of angry men invading and setting ablaze police stations demanding suspects to be
surrendered to them for lynching. On 11th November, 2011, the police station in Mbeya was
attacked by a mob who wanted their clansman released. Out of that incident in Mbeya, hundreds
of people were injured and properties were damaged, resulting in several arrests. On the other
hand, villagers were reported to have blocked highways demanding road bumps be constructed
when one of their clansmen was fatally run over by a speeding vehicle.
2.1.3.2 Reasons for Mob Violence
The main reasons for mob violence in Tanzania include: a continued increase in theft-related
cases, unfairness in the legal and administration of justice systems, ignorance of the law and loss
of trust to the police. Most of the interviewees who responded to a question on mob violence
mentioned the lost trust with the police as the main cause of mob violence in the country.
The reasons alluded to by respondents for the lost of trust on police include: unfairness by police
and other law enforcing organs such the judiciary, corruption in the police force and illegal
release of suspects. For instance, in Mbozi District, the head of police post in Mlowo was blamed
for allowing villagers to kill notorious robbers who used to steal petty things such as hens, shoes
and cell phones. 94 The chairman of a human rights organization in Mbozi, who happens to be a
resident of Mlowo, was quoted as saying;
Askari polisi ni chanzo cha kuwachochea wananchi wachukue sheria mkononi, hasa wa Mbozi
kituo cha Mlowa…utakuta watu wanafanya uhalifu lakini wakipelekwa kituoni mkuu wa kituo
anawambia wakati mwingine wachomeni hawa vibaka.
[Police especially those at Mlowa post in Mbozi are to blame on mob violence as more often
you will find them instigating civilians to punish the criminals by burning them.]
Unaweza ukawa umeibiwa kitu na mwizi, umempeleka polisi utaanza kupigwa tarehe mara
njoo kesho au kesho kutwa mpaka mtu anaachiwa.
[You may report at the police that someone has stolen from you but law enforcers will keep
giving you empty promises that you should come tomorrow, or a day after and eventually the
suspect is set free.]
There is also a public perception that the police and other law enforcement machinery are
not serious about cases reported and hence the need for the public to take law in their own
hands. However, this perception is also fueled by the fact that most people are ignorant of
the law. The culture of state of lawlessness is developing in the country because leaders
94
LHRC (2011) Human Rights Survey of 2011.
32
disregard the interest and the needs of the people. The graph below shows that, 65% of the
respondents believed loss of confidence with Police Force as the main reason for mob
violence in the country.
Failure by the government to focus on principles of good governance has forced citizens to
ignore the law. This is because perpetrators of impunity are not held accountable. State officials
have routinely failed to carry out their responsibilities accordingly, leading to
ineffective government, lack of transparency and inequity. Angry men (mobs) believe that
individuals and entities responsible for the dispensation of justice are not impartial, but rather
unfair and corrupt.
The prevalence of these killings is alarming. Especially in busy cities such as Dar es Salaam,
Mwanza, Arusha and Mbeya. These killings are rampant in cities because a large part of the
population is unemployed, or ‘jobless’ as Justice Robert Mihayo, amplified it as “the public has
turned into killing machines.” 95 The existence of a large portion of the urban population not
gainfully engaged, contribute to the mobs that kill so easily and without justification.”
The government of Tanzania is advised to respect the principles of good governance in order to
combat the state of lawlessness in the country. Respecting the principles of the rule of law and
good governance may win people’s confidence and rejuvenate the lost trust of people in the
police and judiciary. Furthermore, CSOs should join with the police force to educate the public
on the need to respect the rule of law.
2.1.4 Killings due to Witchcraft
The Tanzania Witchcraft Act, Cap. 18 [R.E.2002], defines witchcraft as acts of sorcery,
enchantment, bewitching, the use of instrument of witchcraft, the purported exercise of any
occult power and purported possession of any occult knowledge. 96 On the other hand, witchcraft
can be defined as a traditional belief-based power of witchdoctors and/or traditional healers who
95
The retired judge of Tanzania Court of Appeal and President of Tanzania Retired Judges’ Association. Hon.
Justice said this in the Paper Titled “ Development of a Culture of Lawlessness in Tanzania and its Impact on
Human Rights and Good Governance”A Paper Presented During the Launch of Tanzania Retired Judges
Association (TARJA) on 3rd November, 2011at Ubungo Plaza-Dar es Salaam.
96
Section 2 of the Wicthcraft Act, Cap. 18 [R.E. 2002]
33
promote themselves as people who possess the spiritual power to bewitch and cast evil spells on
others. All acts of witchcraft are punishable under the provisions of section 131 of the Witchcraft
Act and section 196 of the Penal Code in case a murder is committed.
Thousands of people lose their lives in Tanzania because they are suspected of engaging in
witchcraft. The leading regions for such incidents are Mwanza and Shinyanga. Between 2005
and 2011, about 3,000 people were lynched to death by fearful neighbours who believed them to
be witches. 97 This provides that an average of 500 elderly people, old women with red eyes in
particular is killed over suspicion of being witches annually all over Tanzania. For instance, 242
people were killed due to witchcraft beliefs in Shinyanga alone from January 2010 to June
2011. 98 This is also supported by police statistics which shows the growing trend of killings due
to witchcraft beliefs from 579 in 2010 to 642 in 2011. 99
Source: The LHRC 2011 Human Rights Survey and Police Statistics 2011
The LHRC 2011 survey indicates that between January and November 2011 more than 600
people have been killed due to witchcraft beliefs in different parts of the country. The most
susceptible group is elderly women with red eyes. The red eye is believed to be a mark of a witch
and ignites many of these tragic neighbourhood witch hunts. Apparently, many Tanzanian
women possess red-colored eyes due to smoke of cooking fire from the cow dung. In Tanzania
and in Africa generally, there is widespread belief that witches can cause poverty, diseases,
accidents, business failures, and famine, earthquake, and infertility and childbirth difficulties.
Therefore, the tendency of witch-hunt in Tanzania is highly associated with the occurrence of
such predicaments.
97
Daily Correspondent “2,575 elders killed over witchcraft beliefs” Daily News 26th July, 2011.
Anceth Nyahore “Watu 242 wauawa kwa ushirikina Shinyanga” Nipashe, August 2011.
99
As received through the letter from the police.
98
34
Table 4: Illustrative Incidents of Witch-Hunt in 2011
N0.
NAME OF THE
VICTIM(s)
DATE/YEAR
INCIDENT/REASONS
VIOLATOR
AREA
1. 110 Elderly women May, 2011
Killed
Unknown group of Misungwi-Mwanza
men
2. 1Abdala
Ng’ingo(90)
Killed
Unknown group of Iringa
men
3. 1Mariam Magoyo
4.
March, 2011
//
An elderly woman 3rd May, 2011
(70) and other
more 20 rape
cases
5. 1Serapia Lucas
January 2011
6. 1Helena Mayunga 6th January, 2011
7. 1Kamunda Shija
(44)
//
//
Raped
//
Unknown group of Kiteto
hooligans
Killed and some parts of Unknown group of Rombo-Kilimanjaro
his body were chopped hooligans
off
Killed
//
Unknown group of Maswa-Shinyanga
men
//
//
Mbogwe-Shinyanga
8. 1Husband and
Wife killed
(Magreth Makala
and Orgenes
Shaula)
April 2011
//
Angry Villagers
Iramba Singida
9. 1A girl’s body parts
were chopped off
20 th April,2011
//
Unknown people
Mbozi-Mbeya
10. 1Noel Sangu and
Gasper
Mwanisenga
killed
11. 1Venance Ntongwa
30th April
//
Angry villagers
Sumbawanga-Rukwa
May 2011
//
Angry Villagers
Sumbawanga-Rukwa
12. 2Albert
Mwakatuma
March,2011
//
Angry villagers
Kyela-Mbeya
13. 2Elizabeth Mombi
March 2011
//
35
//
Shinyanga
Witchcraft killings are very common in the lake zones, particularly in Mwanza, Shinyanga and
Sumbawanga. This is fuelled by the fact that the level of witchcraft practices in those regions is
mounting.
The LHRC advises the government to employ the same effort used to combat the killing of
people with albinism when dealing with the killings due to witchcraft beliefs. Furthermore, more
education and public campaigns are needed from both state and non-state actors to bring
awareness and understanding to people living in those regions.
2.1.5
Security of People with Albinism in Tanzania: Unfinished Business
Under the Same Sun (UTSS) 100 defines Albinism as a rare, non-contagious, genetically inherited
condition occurring in both genders regardless of ethnicity, in all countries of the world. Both the
father and the mother must carry the gene for it to be passed on to the child, even if they do not
have albinism themselves. The condition results into lack of pigmentation in the hair, skin and
eyes, causing vulnerability to sun exposure and bright light. 101 The population of people with
albinism (PWA) in Tanzania and Africa in particular is higher when compared with other
western developed countries. For instance, in the USA only 1 person out of 20,000 people is
affected with albinism as compared to Tanzania, approximately 1 person out of 2,000 people is
affected.
2.1.5.1 Continuing Incidents of Hunting PWA
Although there are few reported recent incidents of albino killings in Tanzania, people with
albinism (PWA) face a number of challenges such as stigmatization, killings and body assault.
The LHRC 2010 human rights report shows that the trend of albino killings in Tanzania is
dropping. For instance, there were no incidents of albino killing in 2010; however between 2000
and 2009 a total of 68 albino persons were reported killed.102 Although the killings are reduced,
the situation on the ground indicates that the safety of PWA is yet to be secured. The killings of
PWAs were still happening until very recently but there have been other attacks such as the
mutilation of individuals for their body parts. While the international community is outspoken
against attacks to PWA, international law is not as protective of these actions as it should have
been.
The United Nations Protocol to Prevent, Suppress and Punish the Trafficking in Persons,
especially women and children 2000 prohibits the trafficking of human beings, dead or alive for
the purpose of taking body parts. However, the protocol is silent about trafficking of body parts
of a person. This leaves the body parts of PWAs unprotected on the market once they are
separated from the individual. 103 Protection for the trafficking of body parts separated from the
person is a much needed step. Many PWAs in Tanzania, particularly children, continue to live
under constant fear of being attacked for their body parts.
100
A Canadian organization that advocates for the rights of People with Albinism (PWA).
www.underthesamesun.com. (Accessed on 29 October, 2011)
102
103
United Nations Office on Drug and Crime (UNODC). “Human Trafficking, UNODC,”
http://www.unodc.org/unodc/en/human-trafficking/what-is-humantraffickinghtml?ref=menuside (Accesed on 29
October, 2011)
101
36
Below are some of the most pressing and brutal incidents of albino bodily assaults recorded
between January and December 2011:
In Geita, a child named Robert (14) was brutally attacked and assaulted by a gang who wanted
to chop off his body parts. Robert was in the grazing field where the assailant found him during
the day. In the evening the same man went to his home on the pretext that he was looking for a
lost cow. The following day, the boy was attacked by the same man and his fingers were
chopped off. Robert had this to say: 104
I screamed a lot as he was slashing my hand. A few minutes later he began to chop off my fingers
and that is when I got the chance to bite his private parts. However, he managed to chop my fingers
after I fell down while trying to escape
Figure 12: A Survivor of Albino Brutality, Adam Robert at Geita Hospital 105
Giving a public statement on state of children with albinism, the founder and Director of UTSS
Mr. Peter Ash was quoted as saying:
Justice has not come and horrifying crimes against children with albinism continue unabated in
Tanzania. Only firm and decisive action on the part of Tanzanian government and society will stem
this tide of innocent blood being spilled
A 16 years old girl with albinism by the name of Kulwa was assaulted at her home at Mbizi
Village in Kahama District on 21st October, 2011. Kulwa was said to have been attacked by three
masked assailants who invaded her bedroom. The daughter’s father tried to rescue her but the
gangs disappeared with his daughter’s arm. 106
104
Daily News Reporter (2011) Albino Child Survive by bitting assailant’s private parts” Daily News 16th October,
2011.
105
Source UTSS Website
106
UTSS Press Release, October 26, 2011 – Vancouver, BC Canada.
37
Figure 13: Kulwa at the Hospital
107
Other reported incidents of
directed to children with
included the murder of a 14
child, (name withheld) in
in Geita on 13th May, 2011.
poisoned her because she
children with albinism in her
bodily assaults
albinism
month
old
Ibanda village
The
aunt
disliked having
family.
In another incident, there
were also two
children with albinism who
were
kidnapped this year; one in
Geita
and
another
in Rukwa. The
abduction
in
Geita involved a 4 years old
child
(name
withheld) who was abducted on January 2011 and retained for four hours before he was returned
home. The child was unharmed, but part of his hair was cut off by the assailant for magical and
superstitious purposes. The abduction in Rukwa involved a boy (name withheld) who was
abducted on February 2011 for four days by a group of unknown people, but finally with the
strong effort from Tanzania Peoples Defence Force (TPDF) and local villagers, the lost child was
found alive. 108
Such incidents of bodily attacks are considerably fuelled by traditional and powerful myths
within the community. Some members of the community believe that PWAs do not die but
disappear. Others believe that body parts of PWAs have magical powers to make a person rich
because they are not human beings but ghosts. Consequently, because of this myth, PWAs
continue to be neglected, discriminated against and even assaulted or killed on different
occasions.
The LHRC advises the government to find sustainable solutions to curb incidents of albino
attacks and killings in the country. The government should work jointly with CSOs and
community to find better approaches to educate the public about the realities of people living
with albinism. Educating people that PWAs are not ghosts as they believe, will reduce incidents
of discrimination and bodily attacks to PWAs especially children. The government of Tanzania
should not relax on this issue but should ensure that maintenance of security of people with
albinism in the country is an ongoing process.
2.1.6
Road Accidents
Road fatality in Tanzania is increasingly becoming a threat to life for thousands of innocent people in the
country. Several reports indicate that 1.3 million people lose their lives in road crashes every year
worldwide, 90 per cent of them in developing countries. Furthermore, these accidents have become the
107
108
Source UTTS
UTSS Press Release, October 26, 2011 – Vancouver, BC Canada.
38
leading cause of death for young people between the ages of five to 29.109 Currently, the number of
people involved in road accidents in Tanzania is greater than the population growth. 110
2.1.6.1 Legal and Safety Framework in Tanzania
In Tanzania, the institutions responsible for road safety are the Central Transportation Licensing
Authority (CTLA), a department within the Ministry of Communication and Transport that governs the
licensing of the public transport services, and the Surface and Marine Transport Authority (SUMATRA).
Road safety in Tanzania is regulated by the Road Traffic Act of 1973, Transportation Licensing Act of
1973, and the National Road Safety Policy of 2009. Futhermore, the right to life is guaranteed by the
Constitution of Tanzania through Article 14 which states every one has the right to life and protection.
Despite having these road safety regulations and institutions, road accidents have continued to be on the
rise. The LHRC 2011 human rights survey indicates that road accidents occur most frequently in major
cities such as Dar es Salaam, Mbeya, Mwanza, Arusha, and Kilimanjaro as well as a concentration in
major up-country highways such as Morogoro and the Pwani Region at Kibaha. The graph below shows
that Dar es Salaam is the leading region for road acccidents (10,429) while Pwani region leads in deaths
(504) by road accidents in 2011;
Source: Compiled from the Ministry of Home Affairs-Traffic Police 2011
According to the Tanzania Traffic Police, the number of people who lost their lives in road
accidents in 2011 was much higher than in 2010. Traffic statistics show that the number of
people who lost their lives in road accidents rose from 3,582 in 2010 to 3,981 in 2011. Likewise,
the trend of deaths by motorcycle accidents (Commonly Boda boda) rose from 647 in 2010 to
695 in 2011. Furthermore, the LHRC’s analysis shows that an average of 20,000 people in
Tanzania is disabled from road accidents annually. The graph below indicates the trend of road
accidents, deaths and casualties from 2009 to 2011;
109
The Citizens Reporter “UN launches action plan to reduce road accidents” The Citizens 15th May, 2011 also
found http://thecitzen.co.tz/sunday-citizen/-/10940-Un -launcehs-action-plan-to-reduce-road-accidents.
110
Amend Wep Page http://www.amend.org.
39
Source: Compiled from the Ministry of Home Affairs-Traffic Police 2011
2.1.6.2 Reasons for Road Accidents
The LHRC 2011 human rights survey indicates that road accidents are mostly fueled by human
error. Most people who filled the questionnaire pointed to negligence as the main cause of road
accidents in the country. Among other things the following are some of the leading factors to
road acidents in Tanzania: corruption, irresponsibility, poor management, reckless driving
while using cell phone and while drunk, driving without training, failure to respect and obey
traffic regulations, bad condition of vehicles, age of the vehicles, poor drivers’ remuneration and
lack of vehicle maintenance. Other studies revealed that 76% of road accidents are caused by
human factors, 17% by vehicle conditions and 7% external factors. 111 Human error can futher be
categorized as follows: 112
a)
b)
c)
d)
e)
f)
g)
h)
i)
Misjudgment;
Excessive speed;
Overtaking errors;
Negligent pedestrians, passengers, cyclists and cart pushers;
Alcohol and drugs consumption;
Reckless driving;
Overloading of passengers and goods;
Parking errors; and
Driver’s fatigue.
111
Rwebangira, T (University of Dar es Salaam) and DAC Maunder (Transport Research Laboratory, UK)
“Research Report of 2006 on Public Transport Safety in Tanzania” page 9.
112
Ibid
40
The LHRC observations reveal that most public transport drivers are poorly paid. Moreover, the
situation is complicated by the fact that drivers of public transport are not fully employed but
are paid daily or weekly depending on what they collect. This may force them to find alternative
income after working hours and hence increase fatigue while driving. The LHRC found that
some public transport drivers use excessive speed to reach their destination in order to have
ample time to engage in other income-earning activities.
The LHRC advises the government to take concern of all the reasons mentioned above to reduce
road fatality in the country.
2.2 Equality before the Law: Access to Justice and Fair Trials
Equality before the law is fundamental in a legal system for the maintenance of justice. Judicial
officers must treat all parties fairly regardless of gender, ethnicity, disability, sexuality, age,
religious affiliation, socio-economic background, size or nature of family, literacy level or any
other such characteristic. 113 Equality before the law is recognized in several international legal
instruments including Article 7 of the Universal Declaration of Human Rights (UDHR), 1948.
Both the ICCPR and UDHR state that all people are equal and deserve equal treatment before the
law.
At the national level, the right to equality before the law is guaranteed by the Constitution of
Tanzania, 1977 and the National Prosecution Act, 2008. Article 13 of the Constitution provides
that all people are equal before the law and should be free from any discrimination. Furthermore,
Article 13 (6) of the Constitution requires the state to ensure equality before the law by making
procedures that adhere to the following principles:
1
when the rights and duties of any person are being determined by the court or any other
agency, that person shall be entitled to a fair hearing and to the right of appeal or other
legal remedy against the decision of the court or of the other agency concerned;
2
no person charged with a criminal offence shall be treated as guilty of the offence until
proved guilty of that offence;
3
no person shall be punished for any act which at the time of its commission was not an
offence under the law and also no penalty shall be imposed which is heavier than the
penalty in force at the time the offence was committed;
4
for the purposes of preserving the right or equality of human beings, human dignity shall
be protected in all activities pertaining to criminal investigations and process; and in any
other matters for which a person is restrained or in the execution of a sentence;
5
no person shall be subjected to torture or inhuman or degrading punishment or threats.
For the purpose of this report, the following sub-topics are examined to assess the level in which
Tanzania legal system complies with principle of equality before the law: the independence and
impartiality of the judiciary, the judicial infrastructure and the ability to access legal
representation.
113
An Article Equality before the Law at www.judcom.nsw.gov.au. Accessed on 29th October, 2011
41
2.2.1
Independence and Impartiality of the Judiciary
Independence of the judiciary is the principle that the judiciary should not be politically watched
over from the legislative or the executive branch. That is, courts should not be subjected to
control or influence from the other branches of the State, or from personal or adherent
interests. 114 Independence of the judiciary should not be based on independence of the institution
itself but rather on independence of judges from internal and external control.
Several international instruments including the ICCPR, UDHR and Basic Principles of the
Independency of Judiciary (BPIJ) 115 insist on the independence of Judiciary. UDHR enshrines in
particular the principles of equality before the law, of the presumption of innocence and of the
right to a fair and public hearing by a competent, independent and impartial tribunal established
by law. The BPIJ insists on adherence to principles of impartiality when dealing with case
brought before judges. The Constitution of Tanzania on the other hand requires judges to
dispense justice freely while observing provisions of the constitution and other laws. 116 The
judiciary cannot be free and independent with weak procedures of judiciary appointment,
inadequate resources and poor remuneration of judicial personnel.
(a) Judicial Appointment
In Tanzania, senior judges are appointed by the President as per provisions of the Constitution.
The judiciary can not be free and independent if the procedure of appointing judges, Justices of
Appeal and Chief Justice (CJ) is centralized to a single person or a group in the executive branch.
Article 108 (2) of the Constitution of Tanzania empowers the President of Tanzania to appoint
the Chief Justice. Lord Falconer of Thoroton 117 insisted that to effectively administer justice the
appointment of judges must entirely be independent from government. Lord Falconer observed;
118
Judges preside not only over the cases which arise in the criminal and civil
justice system but their decisions affect society in many areas such as human
rights, judicial review, family law, mental health and immigration. They are
very often entrusted to chair major inquiries whenever an impartial, independent
investigation is required.
Tanzania should learn from the Republic of Kenya on how to elect judges independently. The
new Constitution of Kenya establishes an independent Judiciary Service Commission to handle
the appointment of judges. The Kenya Judicial Service Commission recommends a list of
qualified persons to be appointed as judges and the list is sent on to the President for approval.
The recent nomination and appointment of Kenyan CJ William Mutunga was celebrated as a
remarkable achievement after a long history of public and political confrontation and reform in
114
Justice Vijender Jain (Undated) “Independence of Judiciary” an Article.
Adopted by UNGA During the 7th United Nations Congress on the Prevention of Crime and Treatment of
offenders.
116
Article 107 (b).
117
Secretary of State for Constitutional Affairs and Lord Chancellor on Justice, Rights and Democracy.
118
Munuo Eusebio (2006) “The Appointment and Removal of Judges under the Common Law System – Tanzania.”
At the International Association of Women Judges 8th Biennial Conference 3-7 May 2006 Sydney, Australia.
115
42
the country. 119 This can as well be taken in line with the most remarkable and authoritative
statement by Lord Denning when he linked the Independence of the Judiciary with the
appointment of judges and the removal of judges from office. He observed:
I have endeavored to show the important role of the Judges and the lawyers. It may bring them into
conflict with those in authority in the state. That is why it is of the highest importance that the Judges
should be independent and impartial. They stand between the individual and the state, protecting
individual from any interference with his freedom which is not justified by law. In order to be
independent and impartial, they must be secure in their office. They must be paid salaries which are
adequate to their responsibilities and are such as to remove them from temptation to bribery and
corruption. Whilst carrying out faithfully their duties according to law, they must not be subjected to
any penalty, threat, inducement or promise by those in power so as to influence their decisions. All
this is fundamental to the rule of law. I trust that it is contained in every Constitution, in express
words or by implication. I trust that all peoples everywhere will uphold it. 120
Poor Remuneration
To maintain the independence of judiciary and proper service delivery, judicial personnel have to
be well paid and facilitated. In Tanzania, salaries, allowances, benefit and entitlements of Judges
including Principle Judge and Chief Justice are charged on the consolidated fund. 121 The
importance of an effective and well paid judicial system to the good governance and
development of any nation cannot be undermined. Taking into consideration that the judiciary is
a key player in the prevalence of the rule of law, the upholder of justice and people’s rights, it is
essential for judicial personnel to be well paid. An adequate salary brings dignity to the
profession, recruits highly qualified and experienced individuals and prevents bribery. The most
poorly paid judicial personnel include court clerks, magistrates and other ordinary judicial
personnel. On February 2011, the CJ Othman Chande noted that:
(b)
Mara nyingi tunashindwa kuwalipa Mahakimu hawa posho. Wengi hujilipia nauli. Walio
bahatika kuwa na Pikipiki ya Mahakama, huweka mafuta kwa fedha zao wenyewe. Saa
nyingine,Mahakimu hawa wanajiuliza; Je haya ni mazingira au mateso?
[In most cases we fail to pay allowances to magistrates … forcing most of them to dig from
their pockets for transport... Those with court’s motorcycles have to fuel at their own cost before
they can ride them. More often they have been found to complain over the harsh working
environment asking on whether it was meant to torment them.]
The judicial 122 branch currently depends on the Ministry of Justice and Constitutional Affairs for
its budget which may undermine its independence. This is very common because the judiciary’s
policy and budget processing in most African countries is dependent upon the Ministry of
Justice, an arm of the executive branch of government. The LHRC surveys reveal that most
judicial personnel in rural areas are poorly remunerated and the overall consequences of these
deficiencies restrict the access to justice for the poor and downtrodden people. These may
impede the maintenance of the rule of law and access to justice for all.
119
Ford Foundation at www.fordifp.org .(Accessed on 29th October,2011)
Samatta, B (2002) “Independence of the Judiciary, The East African Experience.” A paper presented at the
Conference of the East African Judges and Magistrates Association held at Jinja, Uganda, on the 5th October, 2002
See also Statement by Lord Denning at the 3rd Commonwealth Magistrates Conference 26-31 August, 1973,
Nairobi, Kenya. Referred to at Page 2 in the paper:
121
Section 4(2) of the Judges Remuneration and Terminal Benefit Act of 2007.
122
A speech by the CJ Othman Chande during the Law Day on February 2011
120
43
2.2.2
Judicial Infrastructure: Human Resources and Facilities
For judiciary to effectively and independently discharge its duty of justice dispensation, this
noble arm of the state has to be well equipped in terms of facilities, human resource and
infrastructures such as court buildings and safer living houses. This sub-topic assesses the
independence of judiciary by looking how far Tanzania has gone in judicial infrastructures,
human resources and facilities.
2.2.2.1 Inadequate, Poor and Dilapidated Judicial Infrastructures
Currently, statistics show that the judiciary in Tanzania has 974 out of 1105 court centers for
primary courts. The shortage of 131 court buildings in the country means there are thousands of
Tanzanians who cannot access judicial services. To access justice, individuals have to walk for a
very long distance and some may not be able to make the journey. During the Law Day in
February 2011, C.J Othman Chande informed the President that there was a shortage of primary
courts in the country. He observed;
Kuna sehemu nyingi sana nchini hazina mahakama, wananchi hufunga safari kutafuta haki zao, na kwa
gharama…mwanya huu huwabagua na hauwatendei haki.
[There are several places in the country without courts of law; citizens have to travel for a long distance
to access justice. This loophole not only discriminates them but it is also unjust. ]
The Judiciary does not only lack court buildings but even the few available are old and
dilapidated hence unsuitable to be houses of justice. The LHRC surveys show that many and few
available court buildings in Tanzania use old buildings which were used as administrative
building during colonial times. The LHRC findings are further substantiated by Chief Justice as
follows; 123
Mh Rais, Majengo mengi ya Mahakama za Mwanzo hayana staha. Mahakama ya Mwanzo ya Kate
(Sumbawanga) iko kwenye jengo lililokua ghala ya kijiji. Zile za Katoro (Geita) na Mugeta (Bunda)
ziko kwenye ghala ya mazao. Huko Mtwara, ile ya Chikundi iko katika jengo la soko la kijiji na ya
Nachingwea iko kwenye jengo lililokua kilabu cha pombe. Zile za Kilimarondo na Ndomoni (Lindi)
ziko kwenye gulio.
[Hon. President, most of the buildings housing primary courts are indecent. The Kate Primary Court
in Sumbawanga is housed in an old village godown while as those in Katoro, Geita and Mugeta in
Bunda are housed within food godowns. Primary Courts in Chikundi, Mtwara and Nachingwea on
the other hand are housed in a building which was once a local drinking joint, while as in
Kilimarondo and Ndomoni (Lindi) the said courts are housed at the market.]
2.2.2.2 Inadequate Human Resource in the Judiciary
Shortage of human resources is another factor that undermines the dispensation of justice in
Tanzania. With about 1,000 primary court centers, the judiciary in Tanzania has only 760
magistrates. The statement by Tanzanian C.J Justice Othman Chande shows that there are about
500 primary courts which lack permanent magistrates. He observed: 124
123
Hotuba ya Jaji Mkuu wa Tanzani Othman Chande Siku ya Sheria Nchini, Februari 2011, found in the TLS
website, URL http://www.tls.or.tz/docs/headlinesdocs/Hon%20CJ’s
124
Ibid.
44
Mh Rais, hivi sasa Mahakimu huhudumia Mahakama za Mwanzo zilizopo mbali sana na makazi yao.
Tuna Mahakama za Mwanzo 551 zinazopata huduma kwa kutembelewa na Mahakimu. Kiutoaji haki,
hizi ni Mahakama za Mwanzo za msimu! Kwa mfano, Hakimu wa Mahakama ya Mwanzo ya Mpanda,
Sumbawanga [sic] anahudumia Mahakama ya Mwanzo ya Mishamo ambayo iko umbali wa kilometa
130
[Hon President, currently magistrates serve Primary Courts which are situated far away from their
residential areas. We have 551 courts served by mobile or visiting magistrates. These are seasonal
primary courts! For instance, a Magistrate in Mpanda, Sumbawanga serves another Primary Court in
Mishamo which is 130 kilometers away.]
The LHRC advises the government to improve judicial governance and empower the judiciary to
be free and effective. Courts are expected to be impartial in the dispensation of justice. The state
should examine and improve the competence and degree of independence from the executive and
the Parliament. Judicial personnel have to be well remunerated to enable them deliver quality
services. Moreover, the government of Tanzania has a role to allocate sufficient funds for the
judiciary to be free and independent.
2.2.3 Right to Legal Representation
There is a dramatic movement in the world which obligates states to provide legal aid for the
downtrodden. Historically, the concept of assisting the downtrodden and the poor to access
justice originated in England in the 1400s with the Statute of Henry VII (1495). The Statute
waived all fees for indigent civil litigants in the common law courts and empowered the courts to
appoint lawyers to provide free representation in court without compensation. 125 At the
international level, several international instruments such as the United Nations Basic Principles
on the Role of Lawyers 126 The United Nations Standard Minimum Rules for the Treatment of
Prisoners, 127 the UDHR, and the ICCPR obligates states to ensure the poor access justice; for
instance, the ICCPR requires that an accused offender is entitled:
To have legal assistance assigned to him, in any case where the interests of justice so require, and
without payment by him in any case if he does not have sufficient means to pay for it. 128
In Tanzania, there is government funded legal aid provision, but it is only available for very
limited circumstances. S. 3 of the Legal Aid (Criminal Proceeding) Act, Cap 21 [R.E 2002]
provides for the provision of legal aid to individuals of low-income.
S. 3 [W]here in any proceeding it appears to the certifying authority that it is desirable, in the
interests of justice, that an accused should have legal aid in the preparation and conduct of his
defence or appeal, as the case may be, and that his means are insufficient to enable him to obtain
such aid, the certifying authority may certify that the accused ought to have such legal aid and
upon such certificate being issued the Registrar shall, where it is practicable so to do, assign to
the accused an advocate for the purpose of the preparation and conduct of his defence or appeal,
as the case may be.
125
Skinnider Eileen (1999): A Paper prepared for the Legal Aid Conference Beijing, China March 1999, page 3.
The Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention
of Crime and the treatment of offenders.
127
14 United Nations Standard Minimum Rules for the Treatment of Prisoners, Economic and Social Council
resolution 663 (XXIV)
128
Article 14(3) (d) of the ICCPR.
126
45
Irrespective of the legal provision above, legal aid is only available to people under a certain
income bracket charged with murder or treason and is not available for any other type of legal
case. There are multitudes of legal issues that Tanzanians face every day that drastically affect
their lives both in civil and criminal law. Civil law disputes arise from forcible evictions,
disputes over the inheritance of family land or family matters such as divorce or the custody of
children. Any person alleged to have committed any crime, no matter how much evidence there
is to support the allegation, must have a lawyer to defend their cases. With the limited legal aid,
millions of people in Tanzania cannot afford to hire advocates to represent them in courts of law.
The most affected people are the indigents in rural areas where there are no advocates. This
leaves people with low income very vulnerable to abuses because they have no legal recourse to
fight allegations or solve civil disputes.
Tanzania has few lawyers compared to its population and a small number of advocates compared
to other countries with their population. By December 15th, 2011, Tanzania had 2,315 advocates
to serve a population of more than 41 million people. Comparatively, Tanzania has fewer
advocates than Kenya which has about 10,000 advocates. A large number of advocates work in
towns and cities only. The absence of lawyers and advocates in rural areas impedes the right to
access legal representation in Tanzania. Remote geographical locations, poor provision of social
services, lack of electricity and poor infrastructures are some of the factors that undermine the
availability of lawyers in rural areas.
Several CSOs in Tanzania have opted to use paralegals to assist clients to access justice in a bid
to streamline this problem. Legal aid providers in Tanzania include LHRC, TAWLA, TLS,
WLAC, nola, and others. Paralegals are individuals who have been trained on elementary
knowledge of some of the laws and procedures in order to attend minor legal issues at the
grassroots level. LHRC and other legal aid providers have been using these people who work on
voluntary basis. In some places, LHRC’s paralegals are doing commendable job and have
already formulated themselves into Community Based Organisations (CBOs). 129 These
paralegals work on voluntary basis but are not recognized by the legal system as having a formal
role in the provision of legal aid.
Therefore, LHRC and other CSOs call upon the government of Tanzania to enact a law that will
recognize and protect paralegals in the country. The proposed paralegal law in Tanzania will
among other things identify sources of salaries for paralegals, educate the public about the work
of paralegals, and increase the public’s use of these valuable legal aid providers thus enhance
access to justice.
In 2010 Tanzania Paralegal Network (TAPANET) was formed by 20 paralegal units in the
country to meet the demand of paralegals from across the country. 130 The major roles of the
Network include: 131
129
Wasaidizi wa Sheria na Haki za Binadamu Tarime (WASHEHABITA), Wasaidizi wa Sheria na Haki za
Binadamu Mwaswa (WASHEHABIMA), Wasaidizi wa Sheria na Haki za Binadamu Ukerewe (WASHABU),
Laramatak e Sheria na Haki za Binadamu Ngorongoro (LESHABINGO), Wasaidizi wa Sheria na Haki za
Binadamu Serengeti ( WASHEHABISE), Geita Legal Aid Clinic (GELAC), etc.
130
TAPANET is formed by 20 paralegal units which include:1. Arusha Paralegal Unit, 2. Ukonga Paralegal Unit,
3.Tanga Paralegal Aid Scheme, 4. Kituo cha Wasaidizi wa kisheria cha kijamii (KIWAKIJA) 5. Kiteto Paralegal
Unit, 6. Songea Paralegal Centre, 7. Paralegal Aid Centre Shinyanga, 8. Kibaha Paralegal, 9. Mbeya Paralegal Unit,
10. Muungano wa Wanawake Mufindi, 11. Lindi Paralegal Aid Centre, 12. Kigoma Paralegal Aid Centre, 13. Moshi
46
The Network be an instrument for all paralegals for information and experience sharing on
women’s and children rights, Capacity building for paralegals in Tanzania, Advocacy for
recognition of paralegals in Tanzania, To have a legally and uniform system of recognition for
paralegal work in Tanzania.
Paralegals play an important role in the provision of legal services. They carry out a broad
variety of work in all areas of the law and are a vital resource to an organisation.
Therefore, the LHRC advises the government to enact a law that considers the need to include
paralegals in legal service delivery, the circumstances in which paralegals may be used, their
relationship to lawyers, their specialization and remuneration, the nature of paralegal training and
whether accreditation is considered desirable in the future.
2.3 Freedom of Opinion and Expression
Freedom of expression is the right to speak freely without any censorship. Freedom of
expression must be guaranteed and may be subject only to narrowly drawn restrictions which are
necessary to protect legitimate interests. 132 The Declaration of Principles on Freedom of
Expression in Africa, 2002 provides that the freedom of expression and information is a
fundamental and inalienable human right and an indispensable component of democracy. 133
Similarly, Articles 19 of both the ICCPR and the African Charter on Human and Peoples Rights
(ACHPR), 1981 guarantee the right to freedom of opinion and expression.
At the national level, the Constitution of the United Republic of Tanzania 1977 134 provides every
citizen with a right to give his or her opinion and receive any information of public interest and
pertinent to the welfare of the nation. However, practically neither the freedom of opinion nor
the freedoms of expression are fully enjoyed in Tanzania because there is no specific legislation
to support these rights. The protection offered in the Constitution is limited due to the existence
of claw-back clauses that limit its application. These claw-back clauses allow the government to
enact pieces of legislations that restrict freedoms of speech, opinion and information.
2.3.1 Right to Information
Several international instruments state that everyone has the right to access information. This
requires public bodies to be only the custodian of public information. The Declaration of
Principles of Freedom of Expression in Africa, insists that everyone has the right to access
information, subject only to clearly defined rules established by law. 135 The right to access
information is also guaranteed by Article 18 of the Constitution of United Republic of Tanzania,
1977. 136
Paralegal Organization, 14. Kibaha Picha ya ndege Paralegal, 15. Mwanza Paralegal, 16. Mtwara Paralegal Centre,
17. Kyela Paralegal Unit, 18. Iringa Paralegal Centre, 19. Dodoma Paralegal Unit and the 20th is Morogoro
Paralegal Unit.
131
Women Legal Aid Clini at http://wlac.co.tz/tapanet.php (Accessed on 16th Nevember, 2011)
132
www.article19.org. Accessed on 12th November, 2011.
133
This right includes the right to seek, receive and impart information and ideas, either orally, in writing or in print,
in the form of art or through any other form of communication.
134
Article 18 of the Constitution of the United Republic of Tanzania.
135
Part Four of the Declaration of Principles of Freedom of Expression in Africa, 2002.
136
(a) every person has the right to freedom of opinion and expression of his ideas, (b) has a right to seek, receive
and impart or disseminate information and ideas through any media regardless of national frontiers,
47
The right to information is perceived differently depending on who interprets and why. This is
because there are multiple institutions championing for the same cause, which can bring forward
strength or confusion depending on the strategy. The cause has been championed through the
efforts of civil society organizations, social movements, community groups, academia and the
media personnel themselves. Although each group works from a different angle, their goals are
to ensure that many of the draconian clauses and bureaucratic processes that inhibit free flow of
information are removed or revised.
The majority of citizens do not enjoy freedom of information, or the right to know. A large part
of the community has no access to important information because there are no laws that
specifically address the right to know. Efforts to establish laws on the right to information and
media services over the past three years have not yielded the desired results. 137 The situation is
also complicated by the fact that few people possess media-related devices such as a radio or a
television because a large percent of people in rural areas cannot afford to buy them. For
instance, in the entire country only 5% of the population has access to a television and only 1%
of the population in Tanzania has access to the internet. 138 The only resource left is newspapers,
which require regular circulation in rural areas and the ability to read the language in the
newspaper, which is a challenge in some areas.
The enjoyment of this right by ordinary citizens who live in rural areas is difficult because many
media outlets are based in cities and towns. The 2011 LHRC surveys revealed that people living
in rural areas are less informed about national affairs due to lack of media outlets, low level of
legal and human rights awareness and high levels of secrecy in local government affairs.
However, the current multiparty situation is promising when compared to the single party
system. The introduction of the single party system in 1965 was followed by restrictions on the
freedom of expressions especially in regard to the media. Between 1965 and the early 90s when
Tanzania re-introduced multipartism, the operation of the media was restricted to suit the
political system in power. In fact, the main electronic media was the State-owned Radio
Tanzania, Dar es Salaam (RTD), while the print media were the government-owned newspaper
publishers, the Daily News, Mzalendo and the Sunday News. However, there were other few
newspapers owned by associations and the ruling party (Mfanyakazi and Uhuru respectively).
With only limited media, the right to access information was a nightmare.
The freedom of information in Tanzania is currently curtailed by statutory provisions. The
Newspapers Act, 1976 Cap. 229, [R.E. 2002] is one of the major media laws that govern print
media in Tanzania. The Act contains various restrictions on the type of information that should
be published and criminalises conduct that ought to be civil wrongs (torts). Defamation, for
example, has been criminalised in Tanzania. Courts have used the provisions of the Act to award
(d) has the right to be informed at all times of various events in the country and in the world at large which are of
importance to the lives and activities of the people and also of issues of importance to society.
137
Previously, the government prepared two drafts Bills – the Freedom of Information Bill in 2006 and the Media
Services Bill in 2007, both of which aimed at defending impediments to a free media that holds back the
constitutional right of citizens to receive and impart information. According to the Media Council of Tanzania
(MCT), a dispute on the contents of the proposed media laws slowed the enactment process, and the progress of
these laws was left stalled by the end of 2009, when the then-Information, Culture and Sports Minister George
Mkuchika decided to put aside the discussion on the medial laws while presenting the Ministry’s 2009/2010 budget.
138
Africa Media Barometer, (2010), the first home grown analysis of the media landscape in Africa, page 5.
48
exorbitant damages to plaintiffs in defamation. Other offences such as sedition, incitement to
violence and publication of false news have been created by the Newspapers Act. The law by
itself is not that bad, but has been badly used to fulfil individuals’ interests. Media is therefore,
obliged to conduct self-censorship in order to avoid the commission of such offences. In so
doing, the public could be denied their constitutional right to access information because of
increased restrictions. The Act has been used several times to either suspend or deregister
newspapers perceived to be critical to the government.
Freedom of information is also prohibited by the actions of the government to actively conceal or
inactively provide information. The Tanzanian Chapter of the Media Institute of Southern Africa
(MISA-Tan) conducted a survey between June and July 2011 on the availability of information
from government. The survey by MISA-Tan assessed the information-sharing capacities of
several government institutions by examining their websites and other means of communications
such as letters and telephone communications. 139 The survey involved the following eight
government institutions and ministries: Ministry of Health, Ministry of Works, Ministry of
Information, Culture and Sports, Ministry of Justice and Constitutional Affairs, Parastatal
Pensions Fund (PPF), Tanzania Commission for Aids (TACAIDS), Surface and Marine
Transport Regulatory Authority (SUMATRA) and National Health Insurance Fund (NHIF).
Among the eight government and public institutions surveyed, only four had independent
websites while the other four had either webpage or links under the Government of Tanzania’s
national website. 140 Most of the websites were in English and contained outdated information.
For instance, the study found only the 2001/02 budget speech on the webpage of the Ministry of
Works. 141 Furthermore, the study found out that most of the institutions are not responsive to
correspondence. For instance, out of all ministries and government agencies contacted within the
first 14 days between June and July, the Ministry of Constitution and Legal Affairs was the only
entity which responded to MISA-Tan. 142
The survey found out that the Ministry of Constitution and Legal Affairs and the Surface and
Marine Transport Regulatory Authority (SUMATRA) were the most open institutions.143 On the
other hand the Ministry of Works was found to be the most secretive public institution in
Tanzania. 144
Government institutions should take these findings seriously as a lesson; therefore Ministries and
government institutions should adopt modern means of information sharing. Government
institutions and ministries are hereby advised to update their websites with current information
written in both Kiswahili and English because they hold information not for themselves but as
custodians of the public. Government institutions have to widen ability of citizens to access
information by enacting a robust law that guarantees this right.
139
MISA-Tan (2011) Report on the Most Open and Secretive Government Institutions in Tanzania, page 4.
Ibid, page 5.
141
Ibid., page 6.
142
Ibid., page 5.
143
Ibid., page 13.
144
Ibid., page 14.
140
49
2.3.2 Freedom of the Media
Freedom of the media is defined differently depending on the actor. For instance, for media
consumers, it is the freedom to freely consume information or entertainment from any source
without government restrictions. For media creators and distributors, it is the freedom to
structure business affairs freely in seeking to offer the public an expanding array of media
options, for both news and entertainment. For both consumers and creators, media freedom is
being able to speak one’s mind without restraint and without threat. 145 Tanzania has one of the
most expansive media communities in the Southern African Development Community (SADC).
Tanzania has over 18 daily newspapers, 41 weekly newspapers, 60 radio stations and 15
television stations. 146
The Tanzanian Constitution guarantees the right to freedom of expression but does not explicitly
provide for freedom of the press. The minimum constitutional guarantee for freedom of
expression is insufficiently addressed in enabling legislation. There are several restrictive laws
that limit freedom of expression and the ability of the media to function effectively.
The Newspaper Act of 1976, applicable only in Tanzania mainland, remains a major impediment
to media freedom in the country. Among the most problematic provisions are the imposition of
fines and a jail sentence of up to four years for any person who prints or publishes a newspaper
without registering it with the Registrar of Newspapers; or who furnishes the Registrar with false
information regarding the paper’s particulars. The Registrar enjoys wide discretionary powers
with regard to the registration process. It also permits any police officer “to seize any newspaper,
wherever found, which has been printed or published, or which he reasonably suspects to have
been printed or published” in violation of the Law. It also gives the Minister for Information
powers to ban or deregister newspapers ‘in the public interest’ or ‘in the interest of peace and
order at the union level’.
The National Security Act of 1970, Cap. 47 [R.E 2002] is a draconian piece of legislation which
should be completely repealed and replaced by legislation in line with international human rights
standards. It gives the government absolute scope to define what should be disclosed to or
withheld from the public. The Act makes it a punishable offence in any way to investigate,
obtain, possess, comment on, pass on or publish any document or information which the
government considers to be classified. This includes documents or information relating to any
public authority, company, organisation or entity which is in any way connected with the
government, including the ruling party.
(a) Freedom of the Public Media
According to various stakeholders, the government uses several methods to contain the freedom
of the media. The easiest way to control the media is to own it. Tanzania currently has several
media operations owned by the government, including television, radio and newspapers. This
government-owned and sponsored media is known as public media.
145
Theirer Adamu (2010) “The Battle for Media Freedom” an Article found at www.mediafreedom.org. (Accessed
on 14th November, 2011.)
146
Friedrich-Ebert-Stiftung (FES) and Media Institute of Southern Africa (MISA) (2010); the first home grown
analysis of the media landscape in Africa, MISA-TAN, Dar es salaam, page 7.
50
The accuracy of public media is very questionable and perceptions are one-sided in favour of the
government, especially during elections. An editor for The Daily News, a government-owned
newspaper, created a lot of fuss during the 2010 general elections after writing a provocative
message against a presidential candidate from the opposition wing. The editor’s article of 23rd
September, 2010 at page 7 stated “And the truth is that Dr. Wilbrod Slaa will not be the fifth
president of Tanzania” and “the media behind the former priest can quote us on that.” This
statement was referring to Dr Slaa, a candidate from the Chama cha Demokrasia na Maendeleo
(CHADEMA) party. Dr. Slaa a former Roman Catholic priest who was running for the
presidency alongside the incumbent President H.E Jakaya Kikwete from the ruling party Chama
Cha Mapinduzi (CCM). This editorial created a lot of commotion, particularly among Christian
journalists who saw the editorial as offensive and fueling religious sentiments. The editorial was
also a reflection that there are still many Government functionaries that think they are employed
to serve the interests of the ruling party, the CCM instead of the public at large.
There have also been some concerns by the public that the Government did not want to renew
the contract of Dunstan Tido Mhando, the former director of the Tanzania Broadcasting
Corporation that supplies government-sponsored radio and television. It was speculated that
under his direction, the television and radio tried to assume some independence from the
government and opened the doors to opposition parties against the wishes of the ruling oligarchy.
Perhaps it is wise to note that rarely can you find a radical or critical journalists working in the
Government-sponsored media as they easily find it unfriendly to their philosophies.
(a)
Private Media
Tanzania has private media operators, although there are very few due to the challenges
involved. Challenges facing independent news providers are directly related to freedom of the
press, as news providers must be able to provide accurate and uncontrolled coverage. Freedom of
the media in Tanzania has never truly existed due to the lack of strong press clubs, a variety of
financial constraints, lack of editorial independence and media owners’ interests in the work of
journalists. For instance, one Press club Secretary told LHRC researcher the following:
Mwandishi yupo tayari kuandika stori ya wananchi wanaogoma kwa kuwa hawajalipwa
miezi sita lakini yeye anaweza kuwa hajalipwa miezi mitatu lakini asifanye lolote.
[A journalist is ready to report a case involving other people’s delay of salaries for six months,
while he/she may have not been paid his salaries for three months but will keep his/her lips
sealed].
Financial constraints put a heavy burden on private companies. As a private operator, it is
difficult to generate revenue. The price of printing papers is very high and the tax scheme
reduces profit even further. The result is that there are few private operators and those that exist
have small profit margins. To maintain a certain level of funding, the operators turn to
advertising. Due to the economy in Tanzania, operators often have to solicit advertisements from
the Central Government, its agencies and institutions. The operators then find it difficult to strike
the balance in the conflict of interest between getting advertisements and maintaining editorial
independence. With a lack of profit, operators are also unable to pay journalists decent wages.
Many are paid through a ‘retainer allowance’. Media practitioners in many private media
51
operators are frustrated by the lack of pay and working in an environment that is constantly
under threat. Without a decent wage, many journalists are forced to find work elsewhere.
Most journalists end up working for government or other commercial businesses. Government
agencies provide reliable remuneration, health insurance, allowances professional enhancement
and a good pension. Many journalists seek employment in government despite the need to
comprise their journalistic integrity. Many disgruntled journalists remain employed in the news
room but with an attitude of ‘the end justifies the means’. Some have turned to commercial
entities like mobile phone companies, banks, airlines and some industries working as public
relations officers.
Another challenge is that most journalists are not fully qualified and have very low education,
leaving them vulnerable in the workplace. A few journalists in private companies have diplomas
or degrees but the majority of journalists working with Kiswahili newspapers, the national
language in Tanzania, only have certificates. As the qualification of individuals is low, salaries
are also low as is the quality of work. The low quality has brought down the reputation of
journalism as a profession and has made the fight for freedom of the press more difficult. Many
journalists are easily manipulated due to lack of knowledge about the industry and their poor
bargaining power. Without the knowledge and power to push the industry in the right direction,
it will be difficult to achieve more independence in the media.
Another challenge facing journalists in Tanzania is the lack of employment contracts. Majority
of them work without employment contracts and hence become vulnerable to any abuse by their
employers. Some journalists opt to work independently as freelancers to remain independent of
any agency. Often when freelancing, journalists use different names in order to work for multiple
agencies. This practice shows that freelancer journalists are not truly free to work independently
and must conceal their identity in order to publish different material. When a freelance journalist
uses the same name in different media outlets, they may face challenges from editors who may
refuse to use their stories.
The financial challenges facing journalists also leave individuals vulnerable to bribes. Journalists
are often corrupted through bribes from government officials, business tycoons and some
politicians to fabricate news. The stories invented are often meant to tarnish the image of
political or commercial adversaries. The journalism business is often a mere source of hand-tomouth income for survival and is not a long-term career because of the financial burden. It is
important to realize the environment that journalists work that lead to corrupt behavior. In 2010,
The MCT launched a Baseline Survey on Freelance Journalists in Tanzania. According to this
survey women and men working as freelancers are not always well treated by media owners and
managers. The same survey reveals that this situation is similar to other countries in Africa. It
also shows that Tanzania has some 3,000 freelance journalists, representing 75% of all
journalists in the country. 147
The long term effect of these trends is that there is poor quality journalism in Tanzania; although
the media has done a lot to transform the governing of the country, things could be much better.
More highly-trained journalists are needed in the private media. Currently, many journalists look
at the private media as merely a place to get practical experiences before finally landing at other
147
MCT (2010) Baseline Survey on Freelance Journalists in Tanzania, page 11.
52
destinations where they can be paid bigger salaries. Thus, many good journalists are found in
advertising and public relations companies, banks, NGOs and some international agencies
working in Tanzania instead of where they are needed, to inform the public.
2.3.3 Harassment of Journalists
Despite the achievements however, the media fraternity have had their shares of problems as
some of them have been working with a lot of tension. In its report the MCT states clearly that a
number of media people have been harassed, some arrested and subsequently prosecuted. The
list of journalists who have been victims of harassment is endless as some have been beaten, or
even had their tools reduced to dust as was the case with Laurian Mkumbata an ITV/Radio One
reporter in Iringa whose camera was crushed beyond repair by the Iringa Urban OCD. The
working conditions for journalists are becoming harsher by the day, with few appreciating their
work while some demean them whenever they can.
The Laurian Mkumbata incident
The fateful event took place in November 14th in 2011 when Mkumbata was trying to pursue a
story of a lady, one mama Mbilinyi alleged to have had sorceries powers known as Misukule at
her home. Iringa OCD Mr. Mohamed Semunyu crushed Mkumbata’s camera while other police
officers harassed and beating, with a club on his shoulder to destroy the evidence of police
brutality during the incident.
Nikiwa napiga picha matukio hayo, ndipo OCD wa Iringa Mohamed Semunyu aliponifuata na
kuniuliza wewe ni nani na unapiga picha hizi kwaajili ya nini? Nilijitambulisha kuwa mimi ni
mwandishi wa habari wa ITV na Radio One, naitwa Lauriani Mkumbata.Wakati nachukua
kitambulisho kuthibitisha kazi ninayofanya, aliniambia kuwa nyinyi ndiyo mnachochea vurugu
hizi akaninyang’anya kamera na kuibamiza chini mara mbili na kuisambaratisha vipande
vipande. Baada ya kufanya kitendo hicho alirudi kwenye gari na kuchukua bunduki na kuelekea
upande walipo kuwepo wananchi.
[I was taking videos of the incident when the Iringa OCD Mohamed Semunyu came and asked
me who I was and why I was taking the video pictures. I told him I was a journalist from ITV
and Radio One. He said, it is you who are instigating chaos. It was while taking my ID from my
pocket and that the OCD snatched my video Camera and crushed it twice on the ground. Having
done so, he went to his car took a gun and left me there and went on the direction of the people.]
alleged Mkumbata.
53
Figure 14: ITV/Radio One Reporter, Laurean Mkumbata with his Crushed Camera
Worse still, another journalist in Tabora was forced to flee when law enforcers threatened to kill
him simply because he had taken a video of extrajudicial killings during a public rally at Usinge
village in Urambo.
LHRC calls upon government organs to respect the role of journalists by cooperating instead of
mistreating them. Media owners on the other hand should learn to appreciate the role of
journalists by paying them fair remuneration to enable them shun away from corruption and
maintain professionalism.
2.4 Forms of Torture in Tanzania
The Convention against Torture and other Cruel, Inhuman and Degrading Punishment, 1984
(CAT) is the foremost international law on torture. Tanzania is not yet a party; however the
document is still influential within the country as it sets out an internationally accepted definition
of torture and standards of acceptable behaviour for states. The term "torture" is defined in the
Convention as “any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, and such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an official
capacity”. 148
148
CAT Article 1.
54
Tanzania has acceded to or ratified other international agreements that expressly prohibit torture
including The African Charter on Human and Peoples’ Rights, 149 and the UN International
Covenant on Civil and Political Rights (ICCPR). 150 Furthermore, the Constitution of Tanzania
expressly prohibits torture and all forms of degrading punishments. Article 13 (6) (e) of the
Constitution provides that; no person shall be subjected to torture or inhuman or degrading
punishment or treatment.
Although Tanzania has ratified these conventions, the national legislation still permits torture by
allowing or encouraging brutal punishments. This contradictory legislation includes: The Prison
Act of 1967, Penal Code, 151 Education (Corporal Punishment) Regulations 152 and the Corporal
Punishment Act. 153 For instance, Article 13 (1) of the Prison Act authorizes prison officers to use
such force against a prisoner as they deem reasonably necessary, either to force a prisoner to
obey an order, or to maintain discipline within the prison. 154 Additionally, the Penal Code 155
states that when a person is sentenced to death, the sentence shall direct that he shall suffer death
by hanging. Justice Nyalali viewed the act of hanging to be particularly gruesome, generally
sordid, debasing and brutalizing. That is to say, this punishment is unconstitutional as it is not in
conformity with Article 13(6) (e) of the Constitution of the United Republic of Tanzania. 156
Torture is routinely performed in practice by state security agents when dealing with suspects.
LHRC recorded some notable incidents of torture in the country from January to December
2011. These incidents occurred when people or suspects were held under police arrest or
custody, in national parks, mining areas and in prisons. Tanzania police officers and game
rangers have been pointed by many people in the country as the most brutal state security organs.
Game rangers in Selous Game Reserve particularly in Kisarawe District, were in several
incidents reported to have used brutal actions against suspected poachers. The LHRC researcher
was informed by one of the victim who managed to escape the ordeal that, Selous game rangers
have a tendency of torturing suspected poachers and leave them unattended, putting them at risk
of becoming wild animals’ prey. Police officers use excessive force during arrest. Occasionally,
police officers in Tanzania brutally beat suspects during arrest. For instance, police in Urambo,
Tabora tortured a sixty-three year old Mr. Hamisi Kajengele by severely beating him at the
Urambo central police station. Mr. Kajengele was quoted as saying:
“I went to the market with my bicycle to buy food when all over a sudden I heard an explosion.
Before I knew it, police officers jumped out of the car and I recall telling them ‘peace’ but what
came after was a severe beating all over my body.” 157
149
Article 5
Article 7
151
Sections 25 and 26 of the Penal Code, Cap. 16.
152
G.N No. 294/2002. The stated Government Notice (GN) is made under section 60 (o) of the Education Act, Cap.
353 of the Laws of Tanzania.
153
Cap. 17 of the R.E. 2002 of the Laws of Tanzania.
154
OMEGA Research Foundation (2011) Submission to the United Nations Universal Periodic Review 12th Session
of the Working Group on the UPR (3-14 October 2011)-United Republic of Tanzania, page 1.
155
26 (1) of the Penal Code, Cap. 16.
156
R Vs. Mbushuu Mnyaroge and Kalai sangula [1994] T.L.R 146
157
LHRC (2011) Usinge Fact Finding Mission Report of 2011.
150
55
In another incident, Police Field Force Unit (FFU) in Dar es Salaam mistreated one suspect by
beating him severely as shown in the next photo.
Figure 15: Police in Dar es Salam ‘crucify’ a mentally disturbed suspect in Dar es Salaam
The LHRC advices the government to ensure that every member of the security forces has access
to regular training on human rights standards and the use of security equipment. Furthermore,
legal reforms should be of first priority by amending all the laws that condone torture in the
country. As a first step to pave the way, Tanzania must sign and ratify the Convention against
Torture and other Forms of Cruel, Inhuman and Degrading Punishment of 1984.
56
Chapter Three
Political Rights
3.0 Introduction
Tanzania marked 50 years of independence on 9th December, 2011. Therefore, Tanzanians for
50 years of political struggles obtained the right to self-governance and the right to elect
representatives. Attaining independence from colonial powers was a great achievement to
Tanzanian history. However, Tanzania is going through an internal political struggle as it
attempts to achieve a new constitution 50 years down the memory lane.
In Africa, Political rights have been developing since the pre-colonial era when the continent was
divided into smaller empires and kingdoms. However, the full realization of the political rights at
the international level began with the Universal Declaration of Human Rights, 1948. 158 The
declaration emphasized the right of all people to self-determination as an independent sovereign
nation, thereby calling upon all states to demand for their independence. The right of selfdetermination was instilled in international law in 1966 when the world adopted the
International Covenant on Civil and Political Rights, 1966. Subsequently; the First Optional
Protocol to the International Covenant on Civil and Political Rights was adopted in 1969 while
as the Second Optional Protocol to the International Covenant on Civil and Political Rights was
adopted in 1989. 159 Thus, this chapter attempts to examine the realization of political rights in
various aspects 50 years after independence.
3.1 Freedom of Assembly
The freedom of assembly in the Tanzanian context is a subset of the freedom of association.
Both freedoms are provided for in Article 20(2) of the Constitution of the United Republic of
Tanzania, 1977. This right is not only protected by the Constitution in Tanzania but is also
protected by international legal instruments of which Tanzania is party to. 160 As we mark 50
years of independence, it should be recalled that the freedom of assembly was much curtailed
during a one party era which lasted from 1962 - 1992. At the time, the right to assemble required
a permit granted under the sole discretion of the District Commissioners under the Police Force
Ordinance. 161 The section provided that;
Any person who is desirous of convening, collecting, forming or organising any
assembly or procession in any public place, shall first make application for a
permit in that behalf to the District Commissioner……and if the District
Commissioner is satisfied having regard to all circumstances…he shall, subject to
the provisions of sub-section (3) issue a permit…..
158
Article1.
This protocol aims at the abolition of Death Penalty for which Tanzania has not yet ratified.
160
The International Covenant on Civil and Political Rights, 1966 Article 21, the Convention on Elimination of
Racial Discrimination, 1966 Article 5(d)(ix) and African Charter on Human and Peoples Rights, 1981 Article 11.
161
Section 40(2) of the Police Force Ordinance, Cap 322 [R.E 2002]
159
57
The above quoted position of the law was carried forward after the introduction of multiparty
democracy in 1992. The law was incorporated into the Political Parties Act, 1992, Cap 258 [R.E
2002] which required each political party to apply for a meeting permit from the District
Commissioners. 162 This provision was challenged in Mabere Nyaucho Marando and another Vs.
Attorney General, 163 on the ground that it offended Article 20(1) of the Constitution of the
United Republic of Tanzania which provides that;
Every person has a freedom, to freely and peaceably assemble, associate and
cooperate with other persons, and for that purpose express views publicly and
form and join with associations or organisations formed for purposes of
preserving or furthering his beliefs or interests
Following the results of that case, these powers were transferred to the police officer in charge in
the area concerned. 164 Now the position of the law is very clear, that any person desiring to have
a meeting or assembly must notify the police officer in charge at least 48 hours in advance giving
all details as to the manner of the meeting. The police officer may either allow the meeting to
take place or disallow it by issuing an order. In practice, the requirement to notify the police
officer in-charge 48 hours is interpreted as an application for a permit. This misconception
denies Tanzanians the right to freely assemble. For instance, in 2011 there were different
incidences whereby innocent people lost their lives due to police intervention to peaceful
assemble as follows:
Early January 2011, police killed three innocent people who assembled for a peaceful rally
organised by CHADEMA. The three including a Kenyan Citizen were shot as police tried to
suppress the demonstration in Arusha. 165
In another incident a drunken Police in Tabora, shot to death an innocent citizen after a public
meeting held by CUF. 166
An intended peaceful assembly organized by Anti- Dowans Activists 167 who were appealing
against execution of Dowans award was also disbanded by the Police force on 29th October,
2011. The reason stated by the police was that, the assembly had to stop due to unfounded
security reasons one being an Al-Shabab threat in the East Africa region. Surprisingly, there was
a football match between the two teams which was attended by almost sixty thousands people at
the national stadium in Dar es Salaam on the very same day; these are the Dar Young Africans
and the Simba Sports Club. 168
162
Section 11(1) of the Political Parties Act, 1992
Civil Case no. 168 of 1993, in the High Court of Tanzania, Dar es Salaam Registry (Unreported).
164
M.K.B. Wambali “Taking Stock of the Law and Practice of the Right to Freedom of Political Association in
Tanzania” in the Law Reformer Journal, The Law Reform Commission of Tanzania, and Vol. 2 Number 1 April,
2009 page 40.
165
Refer to chapter 2 of this report: Right to life, Arusha incident.
166
Ibid.
167
Dowans Holdings (SA) and Dowans Holding (TZ) is a successor of Richmond Development Company LLC
which was found to be dubious company. The company had entered into contract with TANESCO in order to
generate power however this deal did not work out. It resulted into breach of contract thus TANESCO was sued to
International Chamber of Commerce. It was ordered that TANESCO should pay Dowans 94bn.
168
www.janejohn5.blogspot.com/2011_10_01achivehtml
163
58
Source: LHRC 2011 Human Rights Survey
LHRC considers that there is limited freedom of assembly in the country. In the opinion survey
conducted by LHRC in 2011 the result as shown above, 46.7% of the respondents indicated that,
the freedom of assembly in the country is very poor compared to 10.2% who said is very good.
LHRC is of the view that limited freedom of assembly is a result of existence of bad provisions
of the laws such as Police Force and Auxiliary Service Act 1939, Political Parties Act, 1992 and
the Higher Learning Students Organisation Regulations 2009.
3.2 Freedom of Association
Freedom of association is the right to assemble for a legal common cause or purpose without
interference by the state. 169 The freedom of association includes the right to form political
parties, NGOs, trade unions and the freedom of religion and assembling to practice one’s
religion. In Tanzania, citizens enjoy a right to profess in any religion so long as it does not
violate the laws of the land. 170
The freedom of association is an internationally protected right found in various international
and regional legal instruments. The African Charter on Human and Peoples Rights, 1981 Article
10(1) provides that;
Every individual shall have the right to free association provided that he abides
by the law.
169
http://www.thefreedictionary.com/freedom+of+assembly
Article 19(1) of the Constitution of United Republic of Tanzania, 1977 provides for the right to religion without
undue influence.
170
59
The Constitution of Tanzania through Article 20 (1) and (2) guarantees freedom of association.
Tanzania has been increasingly enjoying her freedom of association since independence. The
rapid increase number of trade unions, political parties, civil societies, clubs, regional and
districts unions and even religions validates it.
The aforementioned associations in Tanzania are regulated by different legislations. However,
there are other good will associations that operate without any regulation, such as clan
associations in cities, while as others have the freedom to associate as provided for in the
Constitution. It is convenient to consider in details some associations and their founding
legislation for better clarity.
3.2.1 Freedom of Association for Political Parties
A political party means any organised group of people formed for the purpose of forming a
government or local authority within the United Republic of Tanzania through election or for
putting up or supporting candidates for such elections. 171 As Tanzania marks 50 years of
independence in 2011 it also celebrates 19 years of the re-introduction of multiparty democracy
in the country. 172 Currently, there are 19 registered political parties although only 5 have
representatives in the Parliament of the United Republic of Tanzania. 173 The Political Parties
Act, 1992 regulates the registration and conduct of political parties and is applicable in Tanzania
mainland and Zanzibar. The registration of political parties and related activities is a union
matter, meaning it is under the jurisdiction of the national government. However, there are some
opposition parties with strong base on one side of the union only. For example Jahazi Asilia has
influence and is well established in Zanzibar.
The procedures for registration are clearly stipulated in the Political Parties Act, 1992 and
Political Parties (Registration) Regulations 1992. 174 The registration of political parties is
undertaken at the office of the Registrar of political parties who is a presidential appointee. 175In
previous reports, the LHRC listed several provisions of the laws that curtail the freedom of
association of political parties. These legal requirements hamper democracy and have not been
amended for years now.
The first legal impediment is, for one to register a new political party; it must have at least 200
members that come from 10 different regions in the country at the time of registration. The
number is too large and unrealistic for a country like Tanzania where democracy is at its
embryonic stage. It is very difficult to solicit 200 members in 10 different regions of the country
because of time and cost for a party with no capital.
171
Section 2 of the Political Parties Act, 1992
Before independence the then Tanganyika was multiparty country where by the following political parties were
in existence, the United Tanganyika Party (UTP), the African National Congress (ANC) and the All Muslim
National Unity of Tanganyika (AMNUT). In 1954 Tanganyika National Union Party (TANU) was formed. After
independence and the union between Tanganyika and Zanzibar existed two political parties TANU in Tanzania
mainland and Afro-Shiraz Party (ASP) in Zanzibar. The single party regime was introduced in 1977 where by the
TANU and ASP united to form Chama Cha Mapinduzi (CCM).
173
The political parties with Members of Parliament are CCM, CHADEMA, CUF, TLP, and UDP.
174
175
Section 4(1) of the Political Parties Act, 1992
172
60
The second law that hampers the evolution of the freedom of association is the issue of crossing
the floor. The Constitution states that every political candidate must be nominated by a political
party. The law as its stands today states that if an elected representative ceases to be a member of
the nominating party, automatically loses the position he/she had. This law means that once a
political candidate is nominated by one party, they cannot “cross the floor” to join another
political party until the next election if at all the other political party shall nominate the
candidate. The situation is different from African jurisdictions which allow a political candidate
to cross the floor to another party while retaining his or her position. 176 If this was the case in
Tanzania, it would increase transparency and accountability to the members with different
ideologies from that of the nominating party. The following are two lessons to learn from the
2011 experience as to why LHRC still vies for amendment of the law to allow crossing the floor.
(a) Rustication of Hon. Hamad Rashid and Hon. David Kafulila
The country’s politics experienced a different turn when several members of political parties
were rusticated from their political parties this year. Good examples are the expulsions of Hon.
Hamad Rashid CUF Member of Parliament for Wawi constituency in Zanzibar as well as Hon.
David Kafulila, an NCCR-Mageuzi MP for Kigoma South. Thus, as the law stands today, they
are automatically disqualified to hold the posts they had as Members of Parliament. If the law
could allow crossing the floor, the two could have joined other political parties without losing
their positions. This could have saved about 19 billion that the National Electoral Commission
would spend to organise by-elections in the respective constituencies.
(b) Rustication of 5 Councilors in Arusha Municipality
In another incident, CHADEMA expelled five councilors in Arusha Municipality. If the law was
in place, the councilors could have joined other political parties and continued to hold their posts.
This would save tax payers money for developmental purposes as there would be no fresh
election.
Currently, Tanzania disallows independent candidates to vie for any political post. The issue was
put forward to the Court of Appeal and was ruled out in 2010. 177 Freedom of association requires
that each individual participates out of free will and not by compulsion; stating that a person
must belong to a political party, if he or she wants to take in government, this is another form of
compulsion to associate. It should be remembered that the idea of independent candidates is not
new; as the former President of Tanzania, the late J. K Nyerere was in favour of it and he was
once quoted saying that:
Mimi nadhani kwamba kwa kuwa sasa tunarudisha vyama vingi, vile vile tunarudisha haki zote
zile zilizokuwapo za raia pamoja na haki; siyo haki ya kuunda vyama bali pia wagombea binafsi
kusimama kama Sarwatt alivyofanya. 178
176
Republic of South Africa enacted the legislation which allows crossing the floor in 2002 after the ruling of the
court to justify its legality. In passing the legislation it was voted for by 86% majority.
177
Attorney General versus Rev. Christopher Mtikila, Misc. Appeal No 45 of 2009 in Court of Appeal of Tanzania at
Dar es Salaam (unreported)
178
Video on “May, Day Speech in 1995 by Mwl. J.K Nyerere” at Sokoine Stadium in Mbeya region.
61
I presume that since we have resorted to go back to a multiparty system it means we are now
returning all the previous rights to citizens not only to form other political parties but also for
independent candidates to vie in elections as Sarwatt did.
The LHRC reminds the Government that, the shortcomings that we see today in political parties’
arena need to be addressed. In 1992, we experienced the expansion of democracy by allowing
multiparty system. It is now high time to cement the initiatives of empowering democratic
society by allowing the registration of smaller political parties, crossing the floor and
independent candidates. Our role as civil society is to keep on advising law-makers to make
reforms for the smooth operation of political parties in the country.
3.2.2. Freedom of Association as NGOs
The role of Non-Governmental Organisations should not be underestimated as we celebrate 50
years of independence. NGOs in Tanzania play an important role, such as engaging in various
social, economic, political and cultural developments. The civil society organizations have been
involved in various programmes jointly with the government, legislature and the judiciary
providing much needed partnerships in development.
The historical background of the development of civil societies can be traced three phases back.
The first phase was during the colonial era where there was an emergence of social movements
and organisations. There was a dominance of religious organisations, linguistic and ethnic
organisations and dance clubs. For example, there were 51 ethnic associations formed by urban
migrants in Dar es Salaam by 1954. 179
The second phase in the development of civil societies in Tanzania was after independence.
During this phase, most social associations and organisations were banned from operating. Any
group wishing to pursue development issues had to tailor their programming to fit the majority
political perspective. For example, the Ruvuma Development Association was disbanded in 1969
because the regional authorities saw its autonomy and emphasis on democracy as a threat.
The third phase is the modern era, where there is a rapid increase of civil societies in the country.
The era is provoked by a change in government policy that is more lenient towards nongovernmental associations and their affiliations. This phase is being referred to as the
mushrooming stage where there is a dramatic increased number of NGOs registration. In 1993,
soon after the introduction of multiparty democracy, there were about 224 registered NGOs in
Tanzania. However, today as we celebrate 50 years of independence there are more than 10,000
registered NGOs. 180
3.2.2.1 Challenges faced by NGOs in Tanzania
The non-governmental organisations in Tanzania still face the following legal and non-legal
challenges. The legality of the operations of NGOs is governed by several pieces of legislations.
The Constitution of the United Republic of Tanzania, 1977, Article 20(1) which provides for
freedom of association and therefore provides the foundation for the existence of NGOs. The
enabling legislation which governs and regulates the conduct of NGOs is the Non-Governmental
179
S. Lange et al; Civil Society in Tanzania, Chr. Michelsen Institute: Development Studies and Human Rights, R
2006: 6 page 4.
180
Op cit.
62
Organisations Act, 2002.181 However, NGOs can also be registered under other laws such as the
Societies Act. 182
a) Legal challenges:
The LHRC’s Tanzania Human Rights report 2009, critically called upon the need to amend
several legislative provisions to allow for proper functioning of NGOs in Tanzania. The first
provision is Section 36(1) of the Non-Governmental Organisations Act, 2002 which shifts
liabilities of NGOs to individuals. This section allows individual “office bearers” of an NGO to
be held personally responsible for any crime committed by the NGO, unless it can be proven that
the individual was unaware of the commission of the offence.
Section 35(1) (c) of the same Act also states that no NGO can conduct fundraising activities
contrary to the Act or it will be a criminal offence. This section may be a threat and can promote
fear among NGO officials. Section 6 of the Act establishes a board that receives applications for
the registration of an NGO. Under Section 14, the board can refuse an application for registration
under the following conditions: the activities stated are not in public interest; the activities are
contrary to the written law; the application has misleading or false information; or because the
Council recommends its refusal. This section has too much discretion to refuse an application,
with no definition of what is in the public interest or on what basis the Council can recommend
refusal of an application.
Lastly, Section 3(1) empowers the President to appoint the Director of NGOs coordinating board
but does not provide required competence for such appointment. 183 This may waterdown the
confidentce nad independency of the Director who may decide in the favour of President.
b) Non-legal challenges
Non legal challenges facing civil societies are numerous, however for the purpose of this report,
only a few are discussed.
Existence of tension between the government departments and NGOs is one of the major
challenge which poses threat to NGOs in the country. In most cases the government does not
agree and appreciate the work done by the civil society. For Instance, civil societies under the
umbrella of Jukwaa la Katiba are working to educate the public on constitutional making
process. However, the government assumes that they are opposing the process.
Another challenge is the mushrooming and the existence of “briefcase NGOs.” Most of them
exist as statistics only and their whereabouts after registration are unknown. Some NGOs do not
comply with mandatory procedures to file their annual returns or report to the registrar.
Tanzania also has a high concentration of NGOs in urban settings with rural areas largely
forgotten. Very few organisations based in urban areas do operate in rural Tanzania. However,
some few organizations have managed to go countrywise up to the villages; for example the
LHRC has trained and works with human rights monitors in all districts of Tanzania and has
181
Act No 24 of 2002.
Cap 337 of the R.E 2002 of the Laws of Tanzania.
183
This has been repeatedly reported in our reports; see LHRC (2009) Tanzania Human Rights Report, 2009 pages
48 and 49.
182
63
recognized the need for NGOs in rural areas and trained paralegals in 17 districts of Tanzania.
One area especially in need is legal workers at the grassroots level in rural areas. The LHRC
urges the government to fast track legislation that will recognize the role of paralegals in justice
dispensation in rural Tanzania to address the issue.
NGOs in Tanzania heavily rely on donor funds. Donor funded projects put NGOs at risk of
operating according to the donor’s agenda rather than that of the needs of the community. Some
NGOs often lose their focus and objectives for which they were formed. It is a common
phenomenon for NGOs to change their functions depending on the interest of the donors to
secure funding.
The lack of transparency and accountability is another challenge that most civil societies in the
country face. The “ufisadi”, or corruption, is not only in public institutions but also in NGOs as
some of them have closed down their business due to fund embezzlement. 184
More often, NGOs lack sustainability due to lack of competent and qualified personnel. At times
the founding members tend to perceive that the business is easy to run, which is not the case. In
most of the time, founding members tend to personalize the organizations they run. It is wise to
note however that running an NGO requires expertise and commitments like any other sector.
There is no financial support from the government for NGO projects, even for those of a similar
nature to those in government. As we mark 50 years of independence, there is need to practically
implement the Public Private Partnership (PPP) between the government and civil societies. For
example, the fight against Female Genital Mutilation and Gender Based Violence could be areas
of mutual interest for intervention.
In conclusion, the LHRC highly appreciates the contribution of civil society organizations to the
development of prosperity in the country. If we closely consider the distribution of NGOs by
thematic approach, no area has been left out. For example, there are NGOs working in health
sector, education sector, corruption trackers and good governance, social accountability,
environment, human rights, mining, cultural aspects, and entrepreneurship strategies. The
government can only benefit with increased partnership, monitoring and support of NGOs in
Tanzania.
3.2.2.2 NGO’s Achievements 50 Years after Independence
The role of NGOs in the country 50 years after independence should be recognized for their
contribution to various aspects of development. The NGO sector has been very active in recent
years mainly because of the formation of strong coalitions and networks which advocates for
changes. These networks include but not limited to FemAct, Anti-FGM Coalition, Jukwaa la
Katiba, TACCEO, TRAFO, TANLAP, SAHRiNGON –TZ, THRD-Coalition, PINGOs Forum,
TALA, WiLDAF and SALAN.
Secondly, NGOs have been effectively engaging in international fora such as presenting shadow
reports to various international commissions. On 3rd of October, 2011 NGOs submitted its
184
The Foundation for Civil Society; “Mtazamo wa Umma Juu ya Asasi za Kiraia Tanzania” 2009 report pages 20
and 21.
64
stakeholders’ report during the Universal Periodic Review for Tanzania. The country’s report on
human rights situation was assessed by the United Nations Human Rights Council. 185
LHRC as a civil society organization has been in operation for 16 years. It has increased
knowledge and awareness on human rights to the people in the country. In course of promoting
and protection of human rights the LHRC has achieved the following;
(a)The LHRC has undertaken strategic legal cases which principally aim to change policy or
legal statuses that infringe basic human rights. For example, the LHRC was successful in arguing
the Takrima case in 2005. 186 In this case the constitutionality of section 119(2) (3)of the Election
Act, 1985 was challenged as it allowed hospitality and any other entertainment offered to voters
by candidates during elections not to be interpreted as corruption thus it was termed as Takrima,
meaning Tanzanian hospitality to entertain a guest.
(b) The LHRC also represented people evicted in the former Nyamuma village in a case against
the state after the villagers were evicted and their village was reduced to ashes by a government
order in 2009. In 2011, the Court of Appeal ordered that the evictees be returned to their former
residential areas. 187
(c) The LHRC also provides legal aid to thousands of people in Tanzania through its offices in
Arusha and Dar es Salaam, as well as through its mobile legal aid clinics across the country. For
example, in 2011 LHRC provided legal aid to 13,060 clients.
(d) The LHRC has been producing annual Tanzania Human Rights Reports since 2002. This
report is widely used by policy makers, law makers, law enforcers, legislators, development
partners and international community as a barometer for the human rights situation in the
country. Equally, this report is used as reference material by academicians at higher learning
institutions and secondary schools in Tanzania.
3.2.3 Freedom of Association for Trade Unions
The freedom of association through participation in a trade union is a constitutional right of
people working in the same field to unite in order to promote and protect their common
interests. 188 Membership to such an organisation or association consists of workers and union
leaders. Trade unions work under the following underlying principles: negotiate wages and
working conditions; regulate relations between its members; and between employees and
employers; take collective action to enforce the terms of bargaining; and raise new demands on
behalf of its members. 189
The International Labour Organisation (ILO) has adopted several international instruments for
the purposes of ensuring the right to form and join trade unions. Conventions 87 and 98 are the
most relevant whereas the Convention 87 promotes the Freedom of Association and Protection of
185
The General Assembly established the United Nations Human Rights Council by adopting Resolution
(A/RES/60/251) on 15th March, 2006 in order to replace the former commission for Human Rights.
186
LHRC, LEAT and NOLA versus Attorney General and Misc. Civil Cause No. 77 of 2005
187
Ibrahim Korosso and 134 others & LHRC versus the D.C and OCD, case No. HBUB/S/1032/2001
188
Article 20(1) of the Constitution of United Republic of Tanzania, 1977
189
See, Business dictionary online by visiting http://www.businessdictionary.com/definition/tradeunion.htmlhttp://www.businessdictionary.com/definition/trade-union.html. Visited on 1st November, 2011
65
the Right to Organise adopted in 1948. The Convention 98 which was adopted in 1949
guarantees the right to Organise and Collective Bargaining.
The right of workers to organise and demand fair remuneration is also guaranteed under the
Constitution of the United Republic of Tanzania. Article 20 (1) of the Constitution also provides
a general clause on the freedom of association. More specifically, the right to work and to
receive fair remuneration is provided for under the Articles 22 and 23. However, the Constitution
of United Republic of Tanzania does not contain any provision on the right of workers to form
trade unions. Comparatively, the Constitution of Uganda, 1995 provides clearly that,
Freedom of association which shall include freedom to form and join associations
or unions, including trade unions…and other civic organizations. 190
The Constitution of Uganda, 1995 went further under Article 40 (3) to provide that;
Every worker has a right to; (a) form or join a trade union of his or her choice for
the promotion and protection of his or her economic and social interests; (b)
collective bargaining and representation; and (c) withdraw his or her labour
according to law.
Tanzanian workers wish to have the same constitutionally protected right to unionize as Uganda.
Tanzania Congress of Trade Unions (TUCTA) should use the example of Uganda to pressurize
the government to make necessary amendment for inclusion of similar provisions in the new
Constitution.
While the right to unionize is not a constitutional right in Tanzania, the freedom to join a trade
union is regulated by certain legislations. These are the Employment and Labour Relations Act,
2004 191 and the Labour Institutions Act, 2004. 192 There are underlying regulations which are
applicable in labour disputes such as the Labour Institutions (Mediation and Arbitration) Rules
2007 193 and Employment and Labour Relations (Code of Good Practice) Rules, 2007. 194 Since
the enactment of these new labour laws, several miscellaneous amendments have been made. 195
These laws regulate labour matters in the country and provide mechanism for settling trade
disputes. They went further to impose an obligation for every employer to inform employees
their rights in writing and post it in conspicuous area for everyone to read. For example section
16 of the Employment and Labour Relations Act 2004 provides that;
Every employer shall display a statement in the prescribed form the employee’s
rights under this Act in a conspicuous place.
190
Article 29 of the Constitution of Uganda, 1995.
Act No. 6 of 2004.
192
Act No. 7 of 2004.
193
G.N No. 64 of 2007.
194
G.N No. 42 of 2007.
195
Written Laws (Miscellaneous Amendment) Act No. 3 of 2011 and Written Laws (Miscellaneous Amendments) Act
No. 11 of 2010.
191
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3.2.3.1 Right to Form and Join Trade Union in Selected Sectors
(a) Transport Sector
Transportation is one of the sectors which provide a wide range of employment opportunity to
people in the country especially the youth. However, it is neither recognized nor formalized
when it comes to interest and rights of its employees. Rights and interest of employees working
as drivers, truck assistants and bus conductors are not observed. For years since independence
employees in this sector do not enjoy benefit of joining trade unions and jointly pursue their
interests.
There has been a demand to formalize this sector by providing the employees with clearly
defined contracts. However, employers through their associations have been reluctant. For
example, in 2011 there were several strikes organised by bus drivers at Ubungo Bus terminal,
truck drivers in Arusha and commuter bus services (daladala) in Morogoro demanding
employment contracts. A driver at Ubungo bus terminal was quoted as saying;
Tumechoshwa na hawa mabosi wetu kila mara tunapodai maslahi yetu hatusikilizwi, tunataka
mikataba ya ajira itakayoelezea haki zetu. Kwa mfano mtu ukipata ajali sasa hivi au mzigo
ukipotea unaachishwa tu kazi na wanaajiri mtu mwingine sasa huu ni unyonyaji. 196
[We are tired of these bosses who, whenever we demand for our remuneration tend to ignore us.
We want employment contracts which will define our rights unlike the current trend where once
involved in an accident, a boss tend to give you a summary dismissal and immediately after
hires someone else to replace you. This is total exploitation.]
Passengers at Ubungo bus
terminal stranded with no
transport due to pending
negotiation between bus
driver’s representatives
and the Dar es Salaam
police special zone ACP.
Suleman Kova in May
2011.
196 Waandishi Wetu: “Mgomo wa Mabasi Waitikisa Nchi”. Nipashe, Mei 2, 2011
67
LHRC recommends to the responsible authorities particularly SUMATRA to deal with the rights
of workers in the transportation sector. LHRC sees the two major benefits to formalize this sector
one is: SUMATRA to ensure drivers have working contracts to enable employers hold them
accountable when they are involved in accidents unlike now where most of them tend to flee
away taking for granted that no one can trace them. Two, the government will increase revenue
collection through income tax (Pay as You Earn).
(b) Mining Sector
The LHRC’s fact finding mission conducted in mining sites in Nzega and Geita revealed out that
trade unions in respective mining sites are not independent. The said unions are not acting on
employees’ wishes but on employers (investors) interest thus fail completely to defend and
protect rights and interest of workers. LHRC found out that workers at Resolute Gold Mine do
not have a trade union and the management does not provide conducive environment for its
formation. One of the employees who for the purpose of this report chose to be anonymous
said; 197
the management frustrates the formation of trade unions by terminating contract
sometimes retrenchment is done in order to reduce the required Coram to form a
trade union at the work place.
The working conditions at Resolute Gold mine do not adhere to human rights standards for
example, the employees work for more than 12 hours, they work for seven days a week, poor
salaries, work as casual laborers and under poor and dangerous environment. This condition is
further complicated by the fact that Tanzania Mines and Construction workers’ Union
(TAMICO) does not have a branch branch at a Resolute Gold Mine. 198
A similar situation was observed at Nzega Five Company Limited, a small scale mining
company. Dozens of youths working under them need to be fed, treated in case they fall sick and
sheltered because their payments depend on what is obtained from the mines. Failure to strike a
deal from the mine will mean no payments. Owners allege to have been forced to use the system
of paying as you earn due to a meager capital.
Employees at GGM have failed to address their grievances due to employers suppressing efforts
by staff to form trade unions. The Employment and Labour Relations Act 2004 gives staff the
mandate to form labour unions. It is due to this law and others that GGM staffs are entitled to
join TAMICO which could have been used as a venue to vent their problems. However, efforts
by some of the staff to mobilize their colleagues have been suppressed by employers who have
been terminating all ring leaders. As such, employees have found themselves victims as they all
shun away due to fear of losing their jobs.
LHRC urges the Ministry of Labour, Employment and Youth Development to ensure that there
is compliance with the requirement of labour laws. In this world of globalization the investor is
merely interested in making profit and not in producers (employees) affairs. Thus there is an
urgent need for the government to create enabling environment for investors who invest in
197
198
LHRC (2011) Fact-Finding Mission to Nzega, Geita and Loliondo Report 2011 at page 4.
Loc cit.
68
mining sectors to consider interests of its workers as well. This call is extended to other investors
in industries and construction sectors whereby foreign owned companies have a tendency of not
respecting requirements of labour laws, especially formation of trade unions by workers.
3.3 Right to take Part in Governance
The right to take part in governance in Tanzania is a Constitutional right. 199 This right is
reflected in a number of international and regional legal instruments including those that promote
and protect the rights of vulnerable groups such as; the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW). 200 The Convention provides the basis for
realizing equality between women and men through ensuring women’s equal access to, and equal
opportunities to participate in political and public life, including the right to vote and to stand for
election. 201 The Convention on the Rights of Persons with Disabilities, (CRPD) promotes the
rights of persons with disabilities to participate in governance and decision making organs. 202
The Constitution also provides for the right to participate in government, however with the
critical limitation that, to run for government one must be nominated by a political party to
which he or she belongs.
The right to participate in political life in Tanzania is executed through democratic elections. In
the country there are two types of elections, the general and the local government elections. 203 If
any post obtained through these elections for whatever reason becomes vacant, then a by-election
is held to fill the vacancy, with exception of presidential position if by any reason becomes
vacant, then the vice president automatically assumes power. 204
3.3.1 Post 2010 General Election Situation
The political situation has not been calm after the 2010 General Election. There are several
political challenges that the country is still experiencing in 2011. This sub-chapter will analyze
some of post - 2010 General Election challenges.
3.3.1.1 Opposition Wing Composition
In commonwealth systems with a multiparty democracy there is an opposition wing. The
opposition wing in Parliament is formed by an opposition party with majority of MPs in the
House next to the party in power. In the 10th Parliament, (CHADEMA) is the official opposition
party. The opposition wing customarily forms a shadow cabinet composed of what is referred to
as shadow ministers, however, they are not constitutionally recognized. 205
199
Article 21(1) of the Constitution of United Republic of Tanzania, 1977.
This convention was adopted by the General Assembly in 1979.
201
Articles 7 and 8 1 of the CEDAW.
202
This Convention was adopted by the UN General Assembly on 13th December, 2006 and came into force on 3rd
May, 2008.
203
LHRC (2009) Tanzania Human Rights Report, 2009 page 54. General election is conducted after every five years
in the following posts, President, Members of Parliament and Councilors. The last general election in Tanzania was
conducted in October 2010. In the Local government election its where governance at grassroots level is realized by
electing village or street chairperson(s) and members of village assembly.
204
Article 37(5) of the Constitution of United Republic of Tanzania, 1997.
205
Rule 15(2) of the Permanent Parliament Outstanding Order, 2007.
200
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A misunderstanding arose between opposition parties in attempting to determine which party
was the official opposition. The conflict resulted in the formation of two different opposition
wings, the official led by CHADEMA and unofficial led by CUF. In contrast, the 9th Parliament
had the opposition wing accommodating all the opposition political parties in Parliament. Thus,
the LHRC urges the opposition parties to reconcile to have one strong opposition wing unlike the
current situation where there are working in isolation. Political tolerance is a must for democracy
to grow.
3.1.1.2 Poor Participation in Parliament Sessions
The Constitution of the United Republic of Tanzania guarantees the right of the citizen to
participate in the governance. This can be done directly or indirectly through represented by the
MPs. In year 2011, the LHRC has closely monitored the performance of the Parliament. One of
the striking problems is poor attendance of MPs in various debates session. It should be clearly
understood that the primary role of MPs is to represent citizens who elected them.
Morever, there was another serious problem observed in 2011 parliament’s sessions. Several
MPs were found dozing while the debate continues. LHRC finds it injustice and betrayal to the
people who elected them. MPs should be keen enough to follow debates and present citizen’s
concerns and opinions. LHRC has also noticed that the majority of MPs have been supporting
motions in unisons, while they are not aware of what they are supporting. If this trend continues,
it will not only lead to bad laws be passed un-noticed, but also failure to hold the government
accountable in various issues such as human rights violations, corruption scandles, etc.
Parliamentary sessions; empty chairs demonstrate absenteeism.
LHRC finds that it is not easy for serious MPs to doze off and dodge Parliamentary sessions. The
Constitution of the United Republic of Tanzania, 1977 provides five key serious functions of the
National Assembly. These are; to ask any questions to any minister concerning public affairs in
70
the United Republic which are within his responsibility, the second function is to debate the
performance of each ministry during the annual budget session of the National Assembly, thirdly
to deliberate upon and authorize any long or short term plan which is intended to be
implemented in the United Republic and enact laws to regulate the implementation of that plan,
fourthly, to enact laws where implementation requires legislation and lastly to deliberate upon
and ratify all treaties and agreements to which the United Republic is party and the provisions of
which require ratification. 206
LHRC calls upon all Members of Parliament to critically asses their level of performance of the
aforementioned functions. Dodging parliamentary sessions without good cause which is backed
up with public interest is injustice to the citizens.
LHRC believes that if MPs will seriously ponder their role for public interest, the number of
MPs who blindly support motions will decrease and thus improve the performance of the
Parliament.
3.3.1.3 Election Petitions versus the 12 Months Rule
Tanzania Election results are often contested for one reason or another. Reasons which may lead
to an election results contested include claims of uncounted votes, fraudulent behaviour by a
candidate or claims that a candidate is invalid.
Unlike other commonwealth jurisdictions, there is no “Election Court in Tanzania” For
example, in Kenya; the Chief Justice is empowered to create an Election Court on an ad hoc
basis to handle election issues. 207 The Election Court determines all election petitions and
matters where the results are contested. Election based allegations in Tanzania fall under the
jurisdiction of two courts; The High Court has jurisdiction over election petitions for individuals
running for Parliament, whereas 208 The Resident magistrate Court is vested with the power to
determine the councilor’s election petitions. 209
In considering whether election petitions are valid, the court has laid a number of precedent
guiding principles, found in Prince Bagenda versus Wilson Masilingi and another. 210 These
principles have been discussed by Hon. Robert Makaramba, J in his work “The Judiciary:
Election Petition for judges and magistrates, 2011”. The main principle that Makaramba
considered is the construction principle. He stated that, an election petitions must be held to a
strict standard. This is because the right to petition an election is not a common law right but a
statutory right. 211 The court takes a strict approach to ensure that only in the clearest cases will
an election result be overturned, as there could be large political ramifications. For instance,
where corruption allegations are proven, the candidate is even barred to participate in the future
206
Articles 63(3) (a) to (e) of the Constitution of the United Republic of Tanzania, 1977.
Hon. R.V. Makaramba, 2011 The United Republic of Tanzania, The Judiciary: Election Petition for Judges and
Magistrates, page 28.
208
Article 83(1) of the Constitution of United Republic of Tanzania, 1977; See also Section 110(1) of the National
Election Act, Cap 343 R.E 2010 of the Laws of Tanzania.
209
Section 109(1) of The Local Authorities (Elections) Act Cap 292 R.E 2010 of the Laws of Tanzania.
210
[1997] T.L.R 220.
211
It is provided for in the Constitution of United Republic of Tanzania, 1977, the National Election Act, Cap 343
R.E 2010 and the Local Authorities (Elections) Act Cap 292 R.E 2010.
207
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elections as endorsed by Samatta J. K (as he then was) in Philip Anania Masasi versus Returning
Officer Njombe North Constituency and others. 212
Tanzania has regulations around filing election petitions that make the system less democratic.
The first is the time limit on petitions. For example, for the parliament election petition, the
petition is supposed to be filed within 30 days after the declaration of election results by the
returning officer. The court is supposed to determine the petition within 12 months. Where the
case is unlikely to be determined within 12 months, the minister responsible for legal affairs in
consultation with the Chief Justice may extend the period, but the period must not exceed six
months. 213 However, the twelve months elapsed and no case had been determined because of
back logs in the court system. The fundamental cause for the delay is budget constraints,
shortage of judges and magistrates, as well as court procedures and technicalities. The courts are
handling other cases on top of election petitions and the additional cases may be burdensome.
In the case of councilors, the time limit is one month after the declaration of results and is
supposed to be determined within eighteen months. 214
The budget requested by the Judiciary for hearing petitions for the 2010 election was 3 billion;
however, the allocated budget was only 300 million, which is enough to only adjudicate 5
petitions. 215 In order for these cases to be determined, there must be enough budget allocation to
adjudicate if the cases are to be heard under the present court system.
Another procedure that decreases democratic legitimacy is that, anyone who wishes to file a
petition must pay the mandatory fees and security for cost as stipulated in the elections petitions
regulations. 216 The mandatory fees were argued in a preliminary objection raised by the Attorney
General in the case of James Francis Mbatia versus the Attorney General, Halima James Mdee
and Returning officer for Kawe Parliament Constituency. 217 The General Election in 2010
resulted in more than 40 elections petitions filed in different High Court Registries. However, the
mandatory procedure to pay fees to file an election petition has reduced petitions against
parliamentarians to 37.
Under the current system, litigations continue for over a year. Allowing more time to determine
cases will make it possible for a judgment to be delivered but at the same time will weaken the
governance system. 218 Where there is an election petition, the respective elected MP or councilor
will be tied up in court defending his or her case for more than a year, rather than being active
representing his or her people. As a result of these challenges facing the court system, the LHRC
proposes that, the best option to strengthen democracy in the country is to establish a separate
election court. This court should be established on an ad hoc basis to determine the election
212
Misc. Civil Cause No. 7 of 1995.
Section 115(5) of National Election Act, Cap 343 R.E 2010.
214
Section 114 of the Local Authorities (Elections) Act, Cap 292 of R.E 2010.
215
Bunge la Tanzania, Majadiliano ya Bunge, Mkutano wa Nne, Kikao cha Hamsini, 18th August, 2011 page 1.
216
The fees for lodging a parliament election petition are prescribed in the Second schedule to G.N No. 447 to the
tune of 200,000/= and for councilor election as to second schedule to G.N No. 448 to the tune of 100,000/=
217
Misc. Civil Cause No. 101 of 2010 in the High Court of Tanzania at Dar es Salaam registry.
218
The minister responsible for Constitutional and legal affair vide G.N No 383 of 18th November, 2011 whereby
the time has been extended for six months.
213
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petition cases promptly. The delay of election petition cases is not a dispensation of justice to the
people represented in a given locality.
3.3.1.4 Igunga By-Election
Tanzania has had difficulties in 2011 in ensuring that elections are conducted in a fair and proper
manner. One such example is the Igunga by-election. The constituency was left vacant after the
resignation the Member of Parliament Hon. Rostam Aziz.219 He resigned his position as the
Igunga MP and all other posts he held in his political party (CCM). The reasons that were
provided during his resignation included economic reasons; as an international businessman, he
was no longer willing to continue with dirty politics. He was quoted as saying;
Napenda kuliweka hili sawa. Uamuzi wangu wa kuachia nafasi zangu zote za
uongozi kwa tiketi ya CCM haukutokana na wala haimaniishi kukubaliana na
shinikizo lililopotoshwa kuhusu azma ya utekelezaji wa dhana ya kujivua gamba,
la hasha bali ni dhamira yangu ya dhati ya kuachana na siasa hizi uchwara
(gutter politics) na kutumia muda wangu kushughulika na biashara zangu.” 220
[I would like to set the records straight. My decision to step down from all the
posts under the ticket of CCM did not come and does not mean that I concur with
the misinterpreted pressure over the implementation of the cleansing ideology of
skin shading, nay, but it has come due to my sincere intention to shun away from
gutter politics so that I can spend my time to run my business.]
Thus, on 2nd October, 2011 Igunga by-election was held in order to fill in the vacant post and
Hon. Dr. Dalaly Kafumu of CCM was elected to succeed Rostam Aziz. The Igunga by-election
was marred with several irregularities including human rights violations. The Tanzania Civil
Society Consortium on Election Observation (TACCEO) coordinated by the LHRC was among
the internal observers of the election. TACCEO observed the following violations during the byelection:
Violations of Human Rights: First, children were used by some political parties in their
campaigns. 221 The report says that;
“Waangalizi walishuhudia watoto wakivaa skafu za vyama, wakipanda magari
kwa njia ya hatari, wakitangulizwa katika maandamano mbalimbali yaliyokuwa
yanaambatana na fujo za kisiasa.”
[Poll observers witnessed children clad in scalfs of political parties’ and board
trucks in an endangering style leading in chaotic rallies.]
219
Section 63(3) of the National Elections Act, Cap 343 empowers the speaker of Parliament to declare any seat
vacant for obvious reasons such as resignation, death or termination from political party which was nominated. It
reads “Whenever an MP resigns, dies or otherwise relinquishes his/her office, the speaker shall in writing to the
Chairman of the National Electoral Commission and Notice published in the Government Gazzette, declare that
there is a vacancy in the seat of the member of Parliament”.
220
Hon. Rostam Aziz speech to elders of Igunga-Tabora made on 23rd July, 2011 page 7.
221
LHRC&TACCEO (2011) Igunga By-election Observation Report, 2011 page 22.
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Figure 15: A campaign truck with children aboard
The use of children in elections is inappropriate and creates dangers to the children. For example
during the campaign, one child was knocked to death by a lorry.
Other violations of human rights included harassment of the District Commissioner of Igunga
district. The Igunga District Commissioner one Fatuma Kimario was ruffled by CHADEMA
followers for being in a place where CHADEMA was supposed to conduct a meeting. Defending
herself, she claimed that she was not aware of the timetable though no one paid attention to
her. 222 Furthermore, Mussa Tesha a member of CCM was seriously injured by a liquid suspected
to be sulphuric acid which was poured on his face during the campaigns.
There were also reports of fighting and different weapons were displayed publicly for
intimidation. For insitance the MP for Tabora Municipal, Hon. Aden Rage carried his pistol
publicly. This was very intimidating to voters and does not provide a good example to children
who were present in the campaign meetings. In addition it is a criminal offence under the Penal
Code, Cap 16 [R.E 2002] of the laws of Tanzania to hold any weapon in public. Nevertheless, no
serious measures were taken against him. 223
222
LHRC&TACCEO (2011) Igunga By-election Observation Report, 2011 page 24.
Section 84 of the Penal Code provides that; “[A]ny person who goes armed in public without lawful occasion in
a such a manner as to cause terror to any person is guilty to an offence and his army may be forfeited”.
223
74
Hon. Aden Rage shows
off his pistol during a
campaign meeting in
Igunga.
Misuse of Government Resources in Campaigns: During the by-election, cabinet members were
seen participating in campaign process in Igunga. In the process, government resources, such as
vehicles, were seen in the small town of Igunga. This means that Ministers were not on their
governmental and used government resources to go to Igunga to campaign. The Ministers
present also unethically used government development programmes as campaigns promises. 224
For example, Hon. Dr. John Pombe Magufuli was quoted as saying;
Leo hii ninavyokuja tumeshatangaza tenda kwa ajili ya kujenga daraja la
Mbutu… nilisikia kuna mmoja anasema mkimchagua atajenga daraja hilo kwa
siku 60 hizo ni ndoto. 225
[I came here today having come to send an advert to procure the construction of
Mbutu bridge…I heard someone say if voted in office he will build the bridge
within 60 days, that is a day light dream.]
Such utterances have persuasive power in the community when they are made by the responsible
minister. It ceases to be regarded as a political promise but rather a government directive. The
LHRC urges government ministers to distinguish between the two types of statements because in
multiparty democracy there should be fair grounds for all players. It is useful as well for selfassessment of party support in that region.
Use of abusive and Vernacular Language: The language used in Igunga campaigns did not
promote peace and tranquility in the country. The campaigns were dominated by abusive and
threatening utterances between the rival parties. 226 In addition there was also dominance of using
224
Para 3.3 (a) of the NEC, Electoral Code of Conduct, 2010, which provide that, “Ministers shall not combine
official trips and electoral activities and they shall not use publicofficials and /or resources for election related
activities in their personal interests.
225
Mwanachi Reporters “Dk. Slaa amnusuru Mbunge wa CCM”, Mwananchi Newspaper, 28th September, 2011.
226
LHRC & TACCEO (2011) Igunga By-election Observation Report, 2011 page 22. The use of abusive language
is prohibited under clause 2(2) (b) of Electoral Code of Conduct, 2010.
75
the languages of the local tribes, Sukuma and Nyamwezi in the campaign. LHRC considers it to
be a negative trend in Igunga. Citizens must know the policy and party’s manifestos before
exercising their right to vote.
Permanent National Voters Register (PNVR): The discrepancies in the PNVR experienced in the
2010 general election were also experienced in the Igunga by-election. There were
inconsistencies in the number of registered voters in Igunga. The number of registered voters in
the General Election of 2010 was 171,077 but during the by-election it was announced that the
total voters registered were 171,019. TACCEO discovered that there were names missing from
the list, for example, in Nyandekwa primary school polling station 2 peoples’ names were
missing, Nanga primary school had 15 names missing, Mgondavela-Mbutu had two names
missing as well while Bulyang’ombe polling station one Ngole did not vote because her status
indicated that she had passed away. 227
It is not clear where these discrepancies came from as the PNVR had been done since the last
general election. The National Electoral Committee (NEC) has to assess the integrity of some of
its officials. There should be no loopholes for irregularity such as PNVR inconsistency in terms
of its contents in order to have free and fair elections.
Number of Illiteracy: TACCEO observation mission in Igunga revealed the extent of illiteracy,
where quite a large number of citizens who could neither neither read nor write. The Ministry of
Education and the office of the newly elected MP for Igunga should conduct a feasibility study to
intervene if necessary. It is understood that the Sukuma people practice nomadic pastoralism, but
dynamism is essential for the development of any community to occur.
The role of Police: The police force did a tremendous job in Igunga. For example, on 1st October,
2011 there was unlawful assembly at around 7:00 p.m and the police were able to disperse the
gathering without using force as is common in dispersing some other gatherings.
Implementation of Election Expenses Act, 2010: The Igunga by-election was likely the most
expensive by-election that ever happened 50 years of independence. Major political parties spent
excessive amount of money than what is permitted under the law. 228 The maximum spending
permitted on elections in Tanzania is Tshs. 5,000,000,000/= for a presidential campaign, between
Tshs. 30,000,000/= and Tshs. 80,000,000/= for a legislative seat, Tshs. 10,000,000 for a reserved
seat, between Tshs. 2,500,000/= and Tshs.7,000,000/= for a councilor, with an overall maximum
of Tshs. 15,000,000,000/= per political party. 229
A mini-research conducted by TACCEO during an observation mission found that all 3 political
parties spent more than the authorized 80,000,000/=. One of the expenses was on night
allowances paid to journalists during the campaign. Every journalist was paid 80,000/= per night;
when multiplied this amount with the number of days journalists stayed in Igunga it is a huge
sum of money. If 2,400,000/= was spent on one journalist for the 30 days of the campaign it is
227
LHRC&TACCEO (2011) Igunga By-Election Preliminary Report, 2011 page 7.
CCM, CHADEMA & CUF.
229
Part B of the Schedule to the Election Expenses (Maximum Amount of Funds) Order, 2010. It is Government
Notice No. 247 published on 9th July, 2010. Igunga constituency falls under Cluster VI of part B to the Order
whereby its size is 6577.23 km2 with a population of 383,574 people. The Authorized maximum can be spent is
80,000,000/=
228
76
clear that the Election Expenses Act, 2010 and its regulations were violated. The Election
Expenses Act, 2010 directs the nominating political party to be held accountable for the expenses
incurred by a particular candidate. The law provides that;
[Every political party which sponsored a candidate shall within one hundred and
eighty days after the submission of the report by the candidate, transmit to the
Registrar the report containing the true returns in the prescribed form in relation
to the candidate a financial statement of all expenses incurred together with all
bills and receipts or some other evidence of payment.] 230
The experience drawn from the politics in this country tells us that it is uncommon for a political
party to sponsor a candidate of lower posts, save only for presidential posts. Candidates with
stronger financial status prevail in elections most than those with less or nothing. This is for the
both ruling and opposition parties. Rich people tend to spend up to their last cent in order to win
elections. The question is, how can a candidate who did not receive sponsorship from a political
party become accountable to his/her party? This is where LHRC finds the position of the law as
it stands today to be toothless.
Therefore, LHRC observes that there is a big gap between the implementation of the legislation
between the office of Registrar of political parties and the Prevention and Combating of
Corruption Bureau (PCCB). The Election Expenses Act, 2010 requires each political party to
submit to the registrar financial report of expenses incurred during election after three months.
There is no monitoring body which oversees the daily expenditure of political parties during the
process which is a major weakness of this law. There is a need to establish a department at the
PCCB office which will be working directly on fighting and preventing corrupt practices during
elections. This department will be responsible for daily supervision of expenses incurred in the
process rather than waiting for compliance by political parties to submit financial report.
3.4 Regional and District Commissioners: Political Figures or Civil Servants?
In Tanzania, there are three levels of government: national, district, and village. At the national
level there is the Parliament of the United Republic of Tanzania, while at the district level there
are District Councils and the village level has village councils. 231 The question which the
constitution has not clearly defined is the level of Regional and District Commissioners (RCs and
DCs). RCs and DCs are politically appointed positions involved largely in attending inaugural
ceremonies, graduations, responding to emergency situations, maintaining peace and security,
organising protocols and solving conflicts which are principally the duty of the Judiciary and the
Police.
The RCs and DCs are appointed by the President. However, when it comes to checks and
balances, the nature of governance is vague on how they can be accountable to the people. It
should be clearly understood that all civil servants are accountable to the permanent secretary of
the responsible ministries. Presidential appointees and politicians are accountable to their
corresponding constitutional organ, in our case the Parliament, so are the District and Village
Councils. The RCs and DCs positions lack connection to this governance system. It is an
assumption that there are two things which have shaped the structure of local administration in
230
231
Section 18(2) of the Election Expenses Act, 2010.
I.G. Shivji, “Debating Constitutional Amendments in Tanzania” Working Paper, 06.3, HakiElimu page 2.
77
African states; the colonial legacy and the party supremacy. 232 Due to lack of place in the
administration for the RCs and the role which they have undertaken, it is evident that RCs and
DCs serve as ruling party’s cadres and not as administrative public servants.
For the past nine months in 2011, several regions have survived without having Regional
Commissioners. This fact went unnoticed to most people because it is not an administrative level
for our country’s economy. For example, in Manyara and Dar es Salaam regions only acting
Regional Commissioners have been in office since August, 2010. This is a proof that RCs are not
needed in our administrative system.
LHRC is of the opinion that the Regional and District Commissioners do not have clear status in
the administration. LHRC suggests that, these positions be abolished in order to save the amount
of money used to sustain their offices. Regional and District Administrative Secretaries, who are
civil servants, can take over any duties of the RCs and DCs.
3.5 50 years of Independence without a New Constitution?
In recent years, there have been many changes in the political atmosphere in many developing
countries. 233 These changes are the result of internal political struggles and have diverse results
depending on the country. For example, Kenya’s internal struggles brought in a new
Constitution. In other jurisdictions, the revolutionary movement was more violent bringing
devastating consequences. Innocent citizens were killed and there were numerous reports of
other gross violations of human rights. Leaders of numerous countries have been removed or
have been forced to resign due to their unwillingness to change the structure and format of
government to support people’s wishes. In Arabic countries, the political struggles forced the
withdrawal of governments in several states including Algeria, Tunisia, Syria, Egypt, and
Libya. 234
These examples serve as the best lesson that Tanzania can learn in maintaining the peace and
tranquility that the country has been enjoying for 50 years now. The people’s concern for now in
Tanzania is a ‘NEW people – driven CONSTITUTION’ and the government in Tanzania must
emulate Kenya by listening to her people. The constitutionalism agenda is now discussed in
every forum, from urban to rural areas. Constitutionalism awareness has increased among the
citizens more than ever before. One of the respondents who filled in LHRC’s survey
questionnaire in Masqarouda, Hanang District wrote that;
Haki za binadamu huku kwetu hazizingatiwi kabisa, wanatunyang’anya maeneo
yetu ya kulima na kufuga, hakuna wa kututetea, mimi nafikiri suluhisho la pekee
ni katiba mpya. 235
[Human rights are not taken into consideration at all in our area. They grab our
farming and grazing areas and we have no one to speak for us. I personally think
a new Constitution is the only solution.]
232
W. Tordoff, “Regional Administration in Tanzania” in The Journal of Modern African Studies, Vol. 3 Issue 1,
1965 page 63.
233
H. Sungusia, “Gender and Constitutional Review in Tanzania” A paper presented at TAWLA Annual General
Meeting – on 26th March, 2011 at Dar es Salaam International Conference Centre page 1.
234
Ibid.
235
LHRC (2011), Manyara Region Human Rights Profile Report, 2011 page 7
78
The above quotation tries to suggest that there are different understandings of the
constitutionalism agenda among people in all cadres in the country. People of the United
Republic of Tanzania need a new constitution to replace the present outdated one. Over 50 years
of independence there have been several changes which took place such as re-introduction of
multiparty democracy, land tenure, economic and technological transformation, political
transformation and population increase as well as educational advancement. Thus, there is a need
to have constitutional transformation to suit the purpose. In honouring the voice of the people’s
thinking in present Tanzania, the President of the United Republic of Tanzania, on 31st
December, 2010 promised to work on it.
The Bill for Constitutional Review Act, 2011 was tabled in Parliament on 5th April, 2011. This
bill was strongly debated and as a result of the discussions, it was withdrawn by the government.
The discussion revealed that the bill did not meet people’s expectations. The amended
Constitutional Review Bill was presented to the parliament for debate and was passed in
November, 2011.
The Constitutional Review Bill became law on 29th November, 2011. During the debate in
Parliament the members who were present spent most of their time debating about CHADEMA
and accusing civil societies under the umbrella of Jukwaa la Katiba (who were opposing the
proposed process) rather than debating on the content. For example Hon. Ummy Mwalimu the
deputy Minister for Community Development, Gender and Children in her contribution attacked
human rights activists as she said;
Ninasikitika sana kuona wanasheria wenzangu na watu wanaojiita wanaharakati
wanahoji madaraka ya Rais”…Mimi nimekuwa mwanaharakati najua siasa za
uanaharakati waseme huku nyuma kuna interest za nani?...wakasome hawa! si
kuleta uchochezi katika nchi za watu. 236
[I am disappointed to see my fellow lawyers and those calling themselves
‘activists’ question the powers vested upon the President…I have been an activist
and I am aware of its politics, let them speak out over whose interest are behind it.
Let them go to school! Instead of instigating in other people’s country.]
General observation by LHRC during Parliamentary debate on passing of the Constitutional
Review Act, 2011 the Parliament was not well attended. There were very few members from the
rulling party and absence of most of the opposition Members of the Parliament. In this case, the
substance and content of the bill was not debated on merit.
The LHRC calls upon all political parties to suspend their political differences and decide on the
fate of this nation to create a new constitution and not amend the current one. In the history of
the Tanzania legislature, the attempt to amend is not the first one. The current Constitution has
been amended fourteen times. These amendments are as follows:
1. Amendments of 9th August, 1979 via Act, No 14 of 1979, which established the Court of Appeal of the
United Republic of Tanzania;
236
Maulid Ahmed, “Wabunge walivyomgeuza Tundu Lissu mpira wa Kona”, Habari Leo 21st November, 2011.
79
2. Amendments of 11th January, 1980 via Act No 1 of 1980 which incorporated new orders to suit the
Constitution of Zanzibar, 1984;
3. Amendments of 30th July, 1980 via Act No 28 of 1980;Added Electro Constituencies
4. Amendments of 2nd November, 1982 via Act No 21 of 1982 which stipulated new procedures on how to
appoint Regional Commissioners;
5. Amendments of 16th February, 1984 via Act No. 15 of 1985 which incorporated the Bill of Rights;
6. Amendments of 5th June, 1990 via Act No. 14 of 1990 establishing the new system of electoral committee,
procedure to determine election queries and other related matters;
7. Amendments of 24th September, 1990 via Act No. 16 of 1990 incorporating the nomination procedures for
the unopposed presidential candidate for Zanzibar;
8. Amendments of 29th May, 1992 via Act No 4 of 1992, which established multiparty democracy in the
country;
9. Amendments of 28th December, 1992 via Act No 20 of 1992 that included procedures of presidential
elections, presidential powers and related matters;
10. Amendments of 11th June, 1993 via Act No 7 of 1993 giving powers to National Electoral Committee to
supervise the councilor’s election and related matters;
11. Amendments of 17th January, 1995 via Act No. 34 of 1994 stipulating matters concerning the Vice –
Presidency, a new type of Members of Parliament introduced and related matters;
12. Amendments of 13th July, 1995 via Act No. 12 of 1995. Article 46 B –Incorporated Duty of principal
leaders of organs with executive powers to preserve the Union.
13. Amendment of 8th April, 2000 via Act No. 3 of 2000 incorporating people’s view on various matters after
the White Paper in 1998; and
14. Amendments of 6th April, 2005 via Act No.1 of 2005 incorporated various issues including the
establishment of the Commission for Human Rights and Good Governance.
LHRC calls upon everyone to take part in the writing the new Constitution for this land.
Politicians should not be left to only to hijack and dominate the agenda. It is important as well to
reflect at this juncture how the current constitution was made after union between Tanganyika
and Zanzibar. The procedures set out in the Articles of the Union when the Interim Constitution
of the United Republic of Tanzania 1965 was made, clearly provides that under Article (vii) (a)
and (b); firstly, it states that there is no supremacy of one Parliament over another, meaning the
House of Representatives in Zanzibar and the Parliament of United Republic of Tanzania are
equal to debate on the New Constitution. Article (vii) reads, “The President of the United
Republic in agreement with the Vice-President who is the head of the Executive in Zanzibar
shall;
80
Appoint a Commission to make proposals for a new Constitution for the United
Republic; and, Summon a Constituent Assembly composed of representative from
Tanganyika and from Zanzibar in such numbers as they may determine to meet
within one year of the commencement of the union for purpose of considering the
proposals of the commissioned aforesaid and adopt a Constitution for the United
Republic.
The current Constitution does not provide similar articles to follow as the Articles of the Union
provided in the past. Article 98 of the Constitution sets out the procedures for amending the
constitution. However, the mandate of making a new constitution emanates from Article 8 (1) (a)
of the Constitution of the United Republic of Tanzania, 1977 which states that all powers are
vested in Tanzanian Citizens.
The issue of the constitution does not concern only politicians, academia, activists, or lawyers.
The Commission to put forward proposals for the new Constitution should ensure that every
citizen of this country involved. The role played by civil societies such as Jukwaa la Katiba is to
engineer and raise awareness and empowering citizens to speak for their own.
3.6 The URT Constitution, 1977 versus the 10th Amendment of Zanzibar
Constitution
In 2010 the Zanzibaris made the 10th Constitutional Amendment of the Zanzibar Constitution of
1984. The amendment made therein made it possible for the formation of a Government of
National unity (GNU). These amendments initiated thereof had great implications to the
Constitution of the United Republic of Tanzania, 1977. For example, they provided for the
following which seem to be contradictory to the United Republic of Tanzania Constitution;
th
(a) The 10 amendment provides that Zanzibar is a Country: one of the two States that form
the United Republic of Tanzania. Article 2(1) of the Constitution of Zanzibar reads that;
“Zanzibar ni mojawapo ya nchi mbili zinazounda Jamhuri ya Muungano wa Tanzania”
literary meaning that “Zanzibar is among the two States constituting the United Republic
of Tanzania.”
This provision seriously implicates the constitutionality of Articles 1 and 2(1) of the
Constitution of United Republic of Tanzania. This reads “Tanzania is one State and is a
sovereign United Republic”. The cited provisions of the two constitutions equivocally
contradict one another as the issue of one State is technically defeated. 237
237
Mvungi S.E.A, (2011) “10th Constitutional Amendment of Zanzibar: The Break-up of the United Republic of
Tanzania” in Zanzibar, the Development of the Constitution, Zanzibar Legal Services Centre, Publication Series
Book No. 3 page 229. In this literature Dr. Mvungi urges that “If the provisions of Article 1 of the Constitution of
Zanzibar are true that Zanzibar is a State, how could the provisions of Article 1 of the Constitution of the United
Republic of Tanzania that Tanzania is one State still hold water?”
81
(b) The 10th amendment of the Constitution of Zanzibar has introduced other two different
posts which are not recognized under the Constitution of the United Republic of
Tanzania. These posts are the first and second Vice-presidents. The Constitution of the
United Republic of Tanzania has been overtaken by events because it still recognizes the
Chief Minister and not the Vice presidents. 238
(c) The 10th amendment has ousted jurisdiction of Court of Appeal of Tanzania in matters
emanating from the High Court of Zanzibar. Article 24(3) of the Constitution of Zanzibar
has been amended to add the following words that; “…na uamuzi wao utakuwa wa
mwisho na hautakatiwa rufaa kwenye mahakama ya Rufaa ya Tanzania”. (Their decision
will be final and conclusive with no room for an appeal at the Court of Appeal of
Tanzania).
The Court of Appeal is a Union matter as listed in the first schedule to the Constitution
of United Republic of Tanzania. Similarly, the Constitution of United Republic of
Tanzania, 1977 is a union matter. How can a State have two different Constitutions and
both become applicable?
th
(d) Furthermore, the 10 amendment of the Constitution of Zanzibar has gone further
disempowering the Union President. The Constitution of Zanzibar has been amended to
introduce Article 2(A) which gives power to the president of Zanzibar to divide Zanzibar
into regions, districts or any other areas. It is an undisputed fact that there is a clash of
power between the two presidents as wordings of the United Republic of Tanzania
Constitution provides that; “…..provided that the President shall first consult with the
President of Zanzibar before dividing Tanzania Zanzibar into regions, districts and other
areas.” 239
LHRC calls upon the citizens of Tanzania to debate on the fate of the nation while enacting the
Constitution without fear or favour of their political parties’ manifestos. The above cited
provisions are few among many other contradictory provisions available in the two constitutions.
238
239
Article 105 (1).
Article 2(2) of the Constitution United Republic of Tanzania, 1977.
82
Chapter Four
Social Rights
4.0 Introduction
Fundamental social rights are rights that one can enjoy in relation with others as a member of a
given society. Unlike civil rights and liberties, fundamental social rights are not freedom from
the State, but freedom with the assistance of the State. 240 Many states do not guarantee social
rights in their constitutions because most of its actors believe that the role of the Government is
only to protect rights and not to provide them.
The International Covenant on Economic, Social and Cultural Rights, (ICESCR) of 1966 inter
alia guarantees several fundamental social rights such as the right to education, right to clean and
safe water and right to health. Tanzania has ratified the ICESCR and includes social rights in the
Constitution however; it does not fully guarantee the right to education or the right to health. 241
These positive rights have not been included in the bill of rights; therefore they are not
enforceable in the court of law. This chapter assesses the extent to which Tanzania has complied
with its obligations under the ICESCR. It focuses in particular on the right to education and the
right to health.
4.1 Right to Health
The right to health is crucial because it is an essential component of the right to life under The
Universal Declaration of Human Rights of 1948, States are obliged under the ICESCR and the
ACHPR 1981 to provide health care for all citizens; However, the Constitution of the United
Republic of Tanzania, 1977 has not included the right to health in its Bill of Rights. 242
Tanzania has a National Health Policy, 2007 and the Public Health Act, 2009 at the national
level. Both the Policy and the Act focus on improving the provision of health services in the
country. The vision of the Health Policy is to improve the health and well-being of all
Tanzanians with a focus on those most at risk. The Policy also attempts to encourage the health
system to be more responsive to the needs of the people. The Policy provides: 243
240
Mashamba, C. (2009) ‘Using Directive Principles of State Policy to interpret Socio-Economic Rights into the
Tanzanian Bill of Rights’ the Law Reformer Journal Vol.2 No 1, page 81.
241
See Article 1-11 of the Constitution of the United Republic of Tanzania, 1977
242
See Article 12 of The International Covenant On Economic, Social and Cultural Rights of 1966. Also see Article
25 of the Universal Declaration of Human Rights of 1948; Article 16 of the African Charter on Human and Peoples
Rights of 1981.
243
National Health Policy, 2007.
83
Kuinua hali ya afya ya wananchi wote na hasa wale walioko kwenye hatari zaidi, kwa kuweka mfumo wa
huduma za Afya utakaokidhi mahitaji ya wananchi na kuongeza umri wa kuishi wa watanzania.
[to improve the health services of all its people especially those mostly at risky, through a creation of a
health system which will meet needs of all its people and thus increase the life span of all Tanzanians.]
The Tanzanian health sector has also formulated several health programs to implement the
objectives of the policy. The main health programs include the Health Sector Development
Program (HSDP, 2007-2012), The Health Sector Reform-HR, National AIDS Control Program,
National Malaria Control Program, The National Multi-Sector Response to HIV and AIDS
Pandemic, Council Health Services Board (CHSBs) and the National Tuberculosis and Leprosy
Programme.
The health sector in Tanzania is under the responsibility of the Ministry of Health and Social
Welfare. The Ministry has undertaken some efforts to institutionalize some of the health related
problems in the country. For instance, the Ministry is now linked to both national and
international institutions to improve the delivery of health services in the country. 244 The
Ministry is working to implement the Health Sector Strategic Plan of 2009 to achieve the
Millenium Development Goals by 2015. However, with all these strategies in place the health
sector is still performing poorly on the ground.
The LHRC 2011 human rights survey shows that the health sector faces a number of common
problems such as: lack of health facilities, shortage of human and financial resources, high
prevalence of communicable and non communicable diseases like HIV, Cancer, Malaria and
high Child and maternal mortality rates.
4.1.1 Accessibility to Health Facilities
The National Health Policy is one of the several health programs that emphasize the right to
universal access to health services. Despite the current programming, universal access is not a
reality on the ground. The accessibility to health facilities still remain a serious problem,
particularly in rural areas.
(a) Lack of Health Facilities and Prescribed Drugs
Few people have regular and convenient access to health facilities in Tanzania. People in rural
areas cannot access health services due to the unavailability of health facilities such as health
centers and dispensaries within a reasonable distance. For instance, the National Health Policy
requires every region or zone to have a referral hospital, every district to have a medical hospital,
every ward to have one health centre and every village to have one dispensary. However, this
policy requirement has remained more of a theory than a reality. For instance, the table below
244
Hotuba ya Waziri wa Wizara ya Afya na Ustawi wa Jamii Mhe. Dkt. Haji Hussein Mponda (Mb.), Kuhusu
Makadirio ya Mapato na Matumizi ya Fedha, Mwaka 2011/12.
84
indicates that Tanzania has 40% shortage of health centers and 25% shortage of dispensaries.
Source: Compiled from the Ministry of Health and Social Welfare, 2011
Furthermore, the above ministerial statistics are evidenced by the LHRC’s findings which
indicate that, there is a serious shortage of health centers and dispensaries in almost all regions in
Tanzania. For instance, Mbeya Region has a shortage of 488 dispensaries and 176 health centers;
the most affected districts are Mbozi and Mbarali districts as shown in the table below:
District
Mbarali
Mbozi
Service Category
Requirement
Available
Shortage
Average
Dispensary
98
34
64
66
Health Centers
20
6
14
13
Hospitals
1
2
o
1.5
Dispensary
185
33
153
109
Health Centers
32
6
26
21
Hospitals
1
1
0
1
Source: LHRC Survey 2011 at Mbozi and Mbarali Districts
Another challenge is that the few available health facilities face health shortage of equipment,
health workers and complete absence of prescribed drugs. Most of the health centers, hospitals
and dispensaries visited by the LHRC had a shortage or absence of prescribed drugs even for
common diseases such as malaria, chest and stomach diseases. The Tanzania Medical Stores
85
Department (MSD) has been blamed for its inability to supply required drugs as requested in a
timely manner. One of the health workers in Mbeya who preferred anonymity had this to say:
Sisi hatuna tatizo kama hosptali...dawa tunazoagiza haziji kwa wakati na zikija zinakuja tu pain
killers....ndo maana utakuta vituo vingi vya afya au hosptali utakuta madawa mengi yaliyopo ni kama
panadol tu...MSD hawana uwezo kabisa wa kugawa dawa za kutosha.
[As a hospital, we have no problem……. The medications we request rarely come on time and even so
in most cases they may supply pain killers such as Panadol only. MSD does have the capacity to
supply enough medications.]
b) Shortage of Health Worker/Officers and Lack of Motivation
Most of the requested and approved cadres in the health sector are not available in the labour
market. For instance, the current health policy requires every health centre to have at least one
Assistant Medical Officer (AMO) but LHRC’s findings show that there are some health centers
that have no AMOs. Hon. Haji Mponda, the Minister for Health and Social Welfare, said the
country has a shortage of about 100,000 health workers. The minister was quoted during the
parliamentary sessions as saying; 245
Mheshimiwa Spika, Sekta ya afya inahitaji jumla ya watumishi 144,704 katika kipindi cha utekelezaji
wa MMAM (2007 – 2017). Kwa sasa watumishi waliopo katika Sekta ni 47,627. Katika utekelezaji wa
MMAM, Wizara inatekeleza Mkakati wa kuongeza idadi ya watumishi kwa kiasi cha watumishi
97,077 ifikiapo mwaka 2017 kwa kuongeza idadi ya wanafunzi katika vyuo vyake na kuajiri
watumishi.
[Honourable Speaker, the healths sector needs a total of 144,704 during the implementation period of
MMAM (2007 – 2017). Currently, the sector has 47,627 civil servants. In the implementations of
MMAM the ministry implements its strategy to increase the number of servants to 97,077 by 2017 by
increasing the number of students in colleges as well as to employ more servants. ]
The minister’s statement above indicates that Tanzania has 68% shortage of health workers in
the sector. With such a shortage of healthcare workers in the country it would be difficult for
Tanzania to meet the goals of the Tanzania Primary Health Program by 2017. The table below
indicates the number of available, required and shortage of health workers in Tanzania.
No
Requirement
Available
Shortage
Percentage
1
144,704
47,627
97,077
68%
Health Workers in Tanzania –Requirement and Available Staff
The shortage of health workers in Tanzania means that the few workers that exist have to
perform both administrative and professional tasks. As a result, qualified staffs are frequently out
of work places attending meetings, seminars, workshops and the like. The seriousness of the
health worker deficiency is doubled when the few available health workers (32%) are compelled
to do administrative duties. For instance, in many districts hospitals there is only one Medical
245
Mhe. Dkt. Haji Hussein Mponda (Mb.); Kuhusu Makadirio ya Mapato na Matumizi ya Fedha, Mwaka 2011/12
Hotuba ya Waziri wa Wizara ya Afya na Ustawi wa Jamii, Uk 3.
86
officer (MD) and 3 - 5 AMOs; working as medical officers as well as administrative officers.
District Medical officers (DMO) work as medical officers for the district hospital and are also in
charge of health services at a district level. This dual role may undermine the quality of services
because administratively, the DMO may most of the time be out of hospital for administrative
responsibilities. Being under-staffed, the health sector also suffers from an inadequate
management of human resources resulting in high rates of absenteeism.
The shortage of skilled employees as well as insufficient of health facilities curtail the rights of
people to access health facilities in rural areas. At the national level, Tanzania has only 489
medical doctors out of 910 required medical doctors. This makes the country to have a shortage
of 54% of medical doctors in health sector. These statistics is not congruent with the population
of about 45 million people. Tanzania has only 98 specialist doctors who serve the entire
population. 246
The main reasons for the shortage of health workers in Tanzania is budget constraints, poor
salaries, lack of good infrastructure, poor working environment, motivation and poor enrolment
of medical students in health institutes and colleges. The findings of the LHRC’s human rights
survey shows that lack of motivation for workers in the health field, particularly those working in
rural areas, hinders service delivery. It may also significantly affect the morale among the
workforce and undermine the quality of service provision. The quality of the health services,
their efficacy, efficiency, accessibility and viability depend on the performance of those who
deliver them. 247 Lack of motivation may also drive many health workers from rural areas to the
city, leave the country to work elsewhere or leave the profession for another.
Despite the Ministry struggling to increase the enrolment of medical students in medical
colleges, the number of medical students joining the labour market does not meet the demand.
The Ministry’s statistics show that the enrolment of medical students has increased from 1,013 in
2005 to 6,713 in 2011. Despite this increase, there is still a shortage of skilled health
professionals in Tanzania. 248
(i) Maternal Mortality Rate - MMR
The Maternal Mortality Rate-MMR refers to the death of women before, during and after
delivery. The quality of reproductive health services in Tanzania is poor due to, among other
things, the level of poverty, lack of health facilities, long distance from homes to health centers,
lack of women health care centers, untrained midwives, lack of delivery facilities and common
diseases affecting women. The LHRC’s findings show that MMR is still rampant in Tanzania.
The current prevalence of MMR in Tanzania is 454 deaths per 100,000 live births
(454:100,000). 249 However, the given prevalence may in reality be high because some die
246
Statistics from the Ministry of Health and Social Welfare 2011.
LHRC (2011) Human Rights Survey of 2011 - Mbeya Human Rights, page 12. See also Profile Deogratius
Mbilinyi and Maguerita Daniel (2010) “Health worker motivation in the context of HIV care and treatment
challenges in Mbeya Region, Tanzania: a qualitative study.”An Article also available at
http://www.biomedcentral.com/1472-6963/11/266
248
Mhe. Dkt. Haji Hussein Mponda (Mb.), Hotuba ya Waziri wa Wizara ya Afya na Ustawi wa Jamii Kuhusu
Makadirio ya Mapato na Matumizi ya Fedha, Mwaka 2011/12, page 4.
249
247
87
without attending medical hospitals or health centers, thus go unreported. For instance, in Mbozi
20 women died at Mbozi district hospital in 2010 while about 10 women died during the first
half of 2011 in the same hospital. 250 Almost all Districts hospital in Tanzania lack qualified
gynecologists.
Lack of delivery facilities in hospitals and health centers force pregnant women to opt for
traditional midwives. In order for a woman to deliver in the health facilities, is compelled buy
delivery kits such as gloves, nylon cover for delivery beds (commonly Mackintosh) and a
washbasin, which is unaffordable to many. However, this is contrary to the National Health
Policy of 2007 which requires pregnant women to access free medical services.
Figure 16: The picture above shows Delivery Kits at Mbozi Hospital
Pregnant women in Makete District hospital in Iringa told LHRC researchers that they had to
spend more than two months to collect all required delivery kits before labour pain begin.
They said, delivery kits are so expensive that they had to spend more than Tshs. 30,000/=.
“Nashangaa serikali huwa inasema huduma kwa wajazito ni bure…lakini mbona sisi tukiwa kliniki
tunaambiwa lazima tuandae vifaa vya kujifungulia…hivi vitu ni gharama sana na ndio maana wenzetu
hujiamulia kujifungilia nyumbani...
“I am surprised that the government keeps telling us pregnant women are entitled to free medical
services. However, once at the clinic we are asked to bring a delivery kit… These equipment are very
expensive no wonder some of our colleagues opt to deliver at home.”
The government has made effort to rectify the accessibility of pregnant women to health
facilities by providing three wheel motorcycles. However, critics question on whether such an
ambulance can ply smoothly with the current state of the infrastructure in rural areas.
250
LHRC (2011) Human Rights Survey of 2011-Mbeya Human Rights Profile.
88
Figure 17: An ambulance designated for expectant mothers
(ii) Child Mortality Rate - CMR
The child mortality rate includes the death of infants and children less than five years. This subchapter provides an opportunity to evaluate the performance of programs of the Ministry of
Health and Social Welfare aimed at reducing child mortality in Tanzania as stated in the National
Strategy for Growth and Reduction of Poverty (NSGRP). 251 According to the Ministry of Health
and Social Welfare, the prevalence of CMR in Tanzania is dropping in some parts of the country.
For instance, in 2010 the CMR rate was 81/1000 but in 2009 the rate was 91/1000. The minister
observed; 252
Idadi ya vifo vya watoto wenye umri chini ya mwaka mmoja vimepungua kutoka vifo 58 kwa mwaka
2007/08 hadi vifo 51 kwa mwaka 2010 kwa kila watoto 1,000 wanaozaliwa hai. Aidha, vifo vya
watoto wenye umri chini ya miaka mitano vimepungua kutoka 91 mwaka 2007/08 hadi 81 kwa 2010
kwa kila 1000 wanaozaliwa hai.
[The child mortality rate has gone down from 58 in 2007/2008 to 51 in 2010 in every 1,000 children
born alive. The mortality rate for children under five years has also dropped from 91 in 2007/08 to 81
in 2010 in every1000 children born alive].
Despite the remarkable achievement, there are regions with a high rate of child and infant
mortality. The Eastern and Southern Highlands zones for example, have a high rate of 70 under 5
infant mortality rates, while as the Lake and Western zone have the highest rates of 102 and 109
251
NSGRP in Kiswahili it means Mpango wa Kukuza Uchumi na Kupunguza Umaskini Tanzania -MKUKUTA
252
89
deaths per 1,000 live births. The lowest rate is 58 deaths per 1,000 live births in the Northern
zone. 253
4.1.4 HIV/AIDS and Human Rights
HIV/AIDS is a global pandemic acknowledged as a major challenge in global health and one of
the defining issues of the present and future world. HIV/AIDS is a health problem that affects
millions of people in the world. HIV/AIDS is a human rights issue because it denies the right to
life to millions of people and leaves millions of children without parental care. Tanzania as a
developing country is highly affected by this most devastating and killer disease. This sub-topic
examines a few topical issues such as HIV prevalence, treatment and care, vulnerable groups and
HIV/AIDS and legal protection framework in line with principles of human rights.
The international community has signed and ratified several instruments as a ground work to
show solidarity in the battle against HIV/AIDS. Some of this instruments include; Abuja
Declaration on HIV/AIDS, Tuberculosis and other Related Infectious Diseases, 2001, The
Declaration of Commitment on HIV/AIDS (Global Crisis – Global Action); 254 The United
Nations Millennium Development Goals (MDGs), International Guidelines on HIV/AIDS and
Human rights of 2006, General Comment 14 of the Committee on Economic, Social and Cultural
Rights and The Commission on Human Rights Resolutions on the Right to the Highest Attainable
Standard of Health.
HIV/AIDS as a human right issue was discussed in the first consultation meeting in Geneva,
from 26 to 28 July 1989. Several years later, International Guidelines on HIV/AIDS and Human
Rights were adopted by the third International Consultation on HIV/AIDS and Human Rights in
2006. 255 During the 2006 meeting, states agreed to pursue all necessary efforts towards achieving
universal access to comprehensive HIV programmes such as prevention programmes, treatment,
care and support by 2010. 256
Tanzania’s Commission for AIDS (TACAIDS) and National AIDS Control Programme were
formed to coordinate responses and campaigns against HIV/AIDS at the national level. Other
national HIV/AIDS programs and policies include; Multi-Sectoral Strategic Framework on HIV
and AIDS (2008 - 2012) (Second NSMSF), National Policy on HIV and AIDS, 257 To implement
the policy; the government created legal framework by enacting the HIV and AIDS (Prevention
and Control) Act, 2008. Among other things, the Act addresses issues of stigmatization,
prevention, care and HIV/AIDS control. 258
4.1.4.1 HIV/AIDS Prevalence in Tanzania
The latest HIV/AIDS and Malaria Indicator Survey was conducted in 2007 by the Government
of Tanzania. Almost four years have passed since the study was carried out leaving it out of date.
Several measures have been taken between 2007 and 2011 as far as the HIV/AIDS prevalence is
253
Ministry of Health and Social Welfare (2010) Demographic Health Survey of 2010, page 140.
General Assembly Resolution S-26/2 of 27 June 2001.
255
A Hand Book on International Guidelines on HIV/AIDS and Human Rights, 2006 consolidated version, page 9.
256
Ibid page 5.
257
Prime Minister’s Office ‘National Policy on HIV/AIDS’ (Government policy Tanzania November 2001)
<http://www.tzonline.org> accessed 12 December 2008 (National Policy on AIDS).
258
The HIV and AIDS (Prevention and Control) Act, No. 28 of 2008.
254
90
concerned. However; these are the only statistics currently available on the prevalence of
HIV/AIDS. According to the findings of the 2007 survey, the HIV/AIDS prevalence in 2007 was
5.7%. It is clear even from this statistics that AIDS is one of the most serious public health and
development challenges in the region.
The Tanzania Health Demographic Survey of 2010 warns that the future course of Tanzania’s
AIDS epidemic depends on how the campaign against HIV can accommodate the following key
issues; HIV/AIDS-related knowledge, social stigmatization, risk behaviour modification, access
to high quality services for sexually transmitted infections (STIs), provision and uptake of HIV
counseling and testing and access to anti-retroviral therapy (ARVs). 259
The 2007 survey indicated that the rate of HIV/AIDS is higher in some regions than others.
Iringa, Dar es Salaam and Mbeya are the most susceptible and affected regions in Tanzania. For
instance, Iringa HIV/AIDS prevalence is 15.7, Dar es Salaam is 9.3 and Mbeya region is 9.2
percents respectively. The LHRC visited some regions and conducted surveys on the HIV/AIDS
situation to ascertain whether the results from the 2007 survey are still relevant today. The
survey was conducted by interviewing doctors and representatives from research institutes that
focus on health concerns including HIV/AIDS. The LHRC human rights survey in Iringa and
Mbeya indicates that the HIV/AIDS prevalence is still very high even though there are several
efforts taken by both the government and private sectors to reduce the prevalence.
The main reasons for HIV infection in Tanzania, particularly in the most affected regions
include, culture and traditions, individual behaviour, high rates of prostitution in cities, high level
of population and interaction due to business activities in those areas. For instance, there is high
level of infection in areas where many people travel through or conduct business such as Mbeya
Urban, Kinondoni, Igamba, Kyela, Tunduma, Mufindi, Njombe, Karatu and Mbozi. This is
mainly contributed by a huge number of mobile populations in those areas such as heavy load
truck drivers, petty traders, migrant workers, job seekers, foreigners and sex workers. Poor
supply of condoms and little knowledge on the use of condoms is another factor for a strong HIV
prevalence in rural areas. In addition, there is lack of strong preventives measures such as HIV
vaccinations, research and widespread HIV and AIDS education leaving various campaigns
against the pandemic with minimal effects. The government could invest more in preventive
measures such as research, vaccinations and HIV/AIDS education.
As stated above, studies and surveys on HIV/AIDS and other related diseases in Tanzania are
outdated. Knowing that Tanzania is a country with a high HIV/AIDS prevalence, the government
could invest on studies to determine how the country is fairing and which areas of the country
are the most needy ones. According to Mbeya and Iringa Regional AIDS Control Coordinators,
the magnitude lack of statistics is contained by several studies carried out by private institutions
such as Watereed, AMREF, TUNAJALI and SHIDEFA+. Other studies have been carried out
jointly between the Tanzanian government and some developed countries, such as Germany
through Gtz. Nonetheless, these studies are done at regional level only, hence becomes hard to
study complexities of HIV and AIDS at the District level.
259
Ministry of Health and Social Welfare (2010) Demographic Health Survey of 2010, page 209.
91
4.1.4.2 HIV/AIDS Treatment and Care
The need for the widespread access to antiretroviral, HIV prevention, care, support and treatment
remain a major national challenge and a human rights issue for millions of Tanzanians. A
number of people showing up for testing is increasing. For instance, the Minister of Health and
Social Welfare informed the Parliament that the number of people showing up for HIV testing
shot from 326,322 in 2005 to 13 million in 2010, while the number of people under ARV
treatment rose considerably from 29,000 in 2005 to 388,947 in 2011. 260 The health officers in
some centres visited by the LHRC, stated that the most vulnerable and affected groups of people
in Tanzania concerning HIV/AIDS are pregnant women, people affected with STI and people
under 24. The highest risk age for women is 25-35 and for men is 25-45.
Currently, the HIV/AIDS care and treatment services available do not meet the demand in the
country; for instance, receiving necessary blood tests is difficult. Most people interested in being
tested for HIV/AIDS cannot be serviced because there are few Counseling and Testing Centres
(CTC) in the country. Once a person is diagnosed HIV positive, he/she must receive a second
blood test to determine their CD4 cell count, which are the cells attacked by the virus. This blood
test is crucial in determining the strength of a persons’ immunity system and therefore it is also
used to give out proper medication and treatment. The tests should also be done regularly to
enable doctors track a patients’ progress.
In Tanzania, people who are tested and found to be HIV positive have difficulty undergoing CD4
testing because there is a shortage of CD4 testing machines in many of the CTCs. Currently, the
country has a total of 1,100 care and treatment centers to serve 388,947 people who are receiving
ARV’s dosages with more people showing up for testing daily. When the total number of people
under ARV treatment is divided by number of available centers, you may note that each center
has to serve 353 clients a day; this number is far greater than the clinics’ capacity to treat. This
means that the number of people wishing to be tested for HIV is greater than the available
services. This situation is further complicated by the fact that the few available centers lack
HIV/AIDs trained health workers. In addition, the CTCs centers are not accessible to many
people in rural areas. The situation in many visited centers showed that many clients of CTCs do
not return due to long distance from home to CTCs.
4.1.4.3 HIV/AIDS and Vulnerable Groups
The United Nations Guideline on HIV/AIDS and human rights requires states to collaborate
with the international community to create and promote a supportive and enabling environment
for women, children and other vulnerable groups by addressing underlying prejudices and
inequalities through community dialogue. The guideline also requires states to have specially
designed social and health services targeted towards HIV/AIDS needs especially among
vulnerable groups. States must support community groups attempting to address the issue. 261
In Tanzania, the most vulnerable groups are women, youths, men having sex with men (msm),
drug dealers, prisoners and children. That is to say, women and children are disproportionately
affected by HIV in comparison to other groups, as discussed below. This situation can easily be
260
Mhe. Dkt. Haji Hussein Mponda (Mb.), Hotuba ya Waziri wa Wizara ya Afya na Ustawi wa Jamii
261
International Guideline on HIV/AIDS and Human Rights of 2006 , page 52
92
Kuhusu
noted by looking the number of women and men who show up for testing and also the number of
those, who are under ARVs dosage. The guidelines further request that States should review and
reform criminal laws to ensure that they are consistent with international human rights
obligations and are not misused in the context of HIV/AIDS or targeted against vulnerable
groups.
(a) HIV/AIDS and Women
In Tanzania, over 60 percent of people living with HIV are women. Women are more vulnerable
to HIV infection than men; this is partly due to their biological morphology, early marriages and
difficulty experienced by women in negotiating for safe sex due to gender inequality. One
example of women’s dependency is the widespread culture of ‘sugar daddies’; some women
often accept the sexual advances of older men, or ‘sugar daddies’ for a variety of reasons
including money, affection and social advancement. 262 Another reason is that many women are
being forced into sexual acts, putting them at a high risk of contamination. In addition, women
involved in commercial sex and those with multiple partners have a very high risk of being
contaminated with HIV. These statements can be justified by looking at the number of women
and men who attend CTCs and are found HIV positive. However, there must be realization that
many people could be refusing to get tested thereby skewing the numbers.
(b) HIV/AIDS and Children
The impact of HIV/AIDS on children is always disproportionately large. Unborn and breast
feeding children are always at risk of HIV infections if a mother is living with HIV. Children can
only be rescued if a mother attends Prevention from Mother to Child Treatment (PMTCT)
clinics. HIV/AIDS produce millions of orphans and children living in difficult condition in the
country. Children’s grandmothers and other relatives often provide invaluable support to
orphans, but they are still more vulnerable to poverty, sexual abuse and poor nutrition than
children who live with both parents.
(c) HIV/AIDS and Injecting Drug Users (IDUs) and Men Having Sex with Men (msm)
Tanzania has about 30,000 injecting drug users (IDUs), half of whom might be infected with
HIV. 263 One particularly dangerous practice among IDUs is that of ‘flush-blood’ where a user
injects heroin or another drug and then draws a syringe full of blood that is passed to a second
user to inject. HIV prevention and treatment for injecting drug users in Tanzania has not
traditionally been a focus of government. However, in 2011, Tanzania became the first country
in sub-Saharan Africa to implement HIV/AIDS programme for IDUs. 264
Similarly, msm in Tanzania are increasingly becoming another group susceptible of HIV
infections. This is quite evident because many of these men conduct it in a more dangerous and
hidden environment. The situation for msm and IDUs is further complicated by the fact that both
practices are illegal under the laws of Tanzania. Homosexuality and use of drugs are both
criminal offences punishable under the Tanzania Penal Code, Cap 16. The illegality of their
262
www.avert.hiv.org/hiv-aids-tanzania (Accessed on 12th January, 2012).
www.avert.hiv.org/hiv-aids-tanzania. (Accesssed on 12th January, 2012).
264
Ibid.
263
93
practices make these two groups scared to access health services and in most cases denied health
services, education and other health campaigns against HIV/AIDS.
(d) HIV/AIDS and Prisoners
All people are equal and deserve equal treatment. Like other people, prisoners are also entitled
to enjoy the highest attainable standard of physical and mental health. Prisoners are highly
affected with HIV/AIDS in Tanzania because of common high-risk behaviours in the prison
environment such as unprotected sex (mostly anal sex between males), rape, sex bartering,
unsafe drug injecting practices and ‘prison marriages’are widespread. 265
Several studies show that the prevalence rates for some sub-Saharan African countries, America
and South America are very high; for instance an estimated 41.4 percent of incarcerated people
in South Africa are infected with HIV. 266 The main challenge is the inmates in Tanzania do not
receive proper care and HIV treatment like other people. There are no clear systems and
mechanisms put in place to provide HIV education and treatment in prisons. This is because
there are no appropriate health facilities and health officers in prisons. Denying inmate’s rights to
access HIV treatment and care are contrary to the National HIV Policy which states; 267
Prison inmates have the right to basic HIV/AIDS information, voluntary counselling and
testing and care including treatment of STIs.
4.1.4.5 Chronic and Non Communicable Diseases
Some of the chronic diseases in Tanzania include Cancer, Diabetes, Heart attack and HIV AIDS.
It was projected in 2005 that deaths due to chronic desease would expand dramaticaly. 268 Most
of the mentioned chronic diseases are non communicable diseases. Treating these chronic
diseases has been very expensive for developing countries like Tanzania. From August, 2010 the
country witnessed the coming of miraculous cure from Retired Pastor Ambilikile Mwasapile in
Samunge, Loliondo, Ngorongoro district of Arusha Region. Rev. Mwasapile said, God had
instructed him through dreams since 1991 about the medication and that, it would heal people
with chronic diseases namely: diabetes, asthma, epilepsy, cancer and HIV/AIDS. As a result, the
country witnessed thousands of people within and outside Tanzania flocking to Samunge seeking
cure.
265
UNAIDS (2005) HIV and Prisoners in Sub Saharan Countries, Page 4 at
(http://data.unaids.org/pub/Report/2007/hiv_prison_paper_en.pdf) (Accesed January, 2012)
266
http://www.avert.org/prisons-hiv-aids.htm. Accessed on 24th January, 2012.
267
Paragraph 4(1) (h).
268
Global report on HIV/AIDS.
94
Long queues of cars wait to reach Pastor Ambilikile Mwaisapile's Premises at Samunge
(a)
Why People Flocked to Rev. Mwasapile?
LHRC observes that the heavy traffic of people who went to Loliondo is an indicator that chronic
and non communicable diseases are poorly handled in the country. That majority of people do
not trust the health services provided in our hospitals. Furthermore, it also means that most of
the people lack access to treatment of chronic diseases. Needless to say, there is neither clear
country policy for chronic non communicable diseases mentioned above nor does it clarify on
the cost of the said medication.
(b) Patients who lost their Lives in Samunge - Loliondo
About 100 patients died while in Samunge. Most of them died because they went to Samunge
while in critical condition and terminaly sick, without any medical support and at the same time
staying in long queues for a number of hours and days. The 95% of those who lost their lives
were under medical treatment and died after they had stoped using their medication. For
instance, diabetic patients stopped using insuline dosage while on their way to Samunge. The
Samunge Health Center was also too small to accomodate thousands of patients who were taken
there after they became critically ill. 269
(c) Mushrooming of ‘Cups’ Dosage
The government’s silence led to random increase of other people offering a dose of one cup for
chronic non communicable diseases in the country, including that of Mbeya, Iringa, Tabora, Dar
es Salaam, Zanzibar and Mtwara. The concotion is that if the cups turned out to be poisonous
many people would have lost their right to life. About ten people were reported to have emerged
and pretended to have the capacity to cure chronic diseases. LHRC advises the goverment to
seriously stand against those who exploit sick people through cup-style medicine.
4.2 Right to Education
Education is a fundamental human right and essential for the exercise of all other human
rights. It promotes individuals freedom, empowerment and has far-reaching development
benefits. 270 Internationally, the United Nations has several instruments containing the right to
education. The International Covenant on Economic, Social and Cultural Rights, 1966, presses
269
LHRC, 2011: Fact Fainding mission in Samunge Report.
http://www.unesco.org/new/en/education/themes/leading-the-international-agenda/right-to-education-Accessed
on 16th October, 2011.
270
95
all member states to recognize the right of everyone to education and calls on states to provide
free primary education and a progression towards free secondary education as well as higher
learnings. The Convention against Discrimination in Education, 1960 discusses the need for
equal access to educational opportunities. On the other hand, the Convention on Technical and
Vocational Education, 1989 reflects UNESCO’s constitutional mission of ensuring full and equal
educational opportunities for all. 271
In Tanzania, the right to education is not fully guaranteed by the Constitution. The Constitution
of the United Republic of Tanzania, 1977 places no duty on the government to provide for
education and instead states that each individual has the right to educate him or herself. 272 Article
11(3) of the Constitutions stipulates:
“The Government shall endeavor to ensure that there are equal and adequate opportunities to all
persons to enable them to acquire education and vocational training at all levels of schools and other
institutions of learning.”
The right to education is also not part of the Tanzanian Bill of Rights which is contained in Part
III (Articles 12-29) of the Constitution of the United Republic of Tanzania. The right to
education as a positive right is not therefore enforceable in the court of law.
Tanzania has since 1961 made significant and commendable achievements in the education
sector. Immediately after independence, Tanzania managed to overcome racial discrimination in
the education sector by introducing various education programs and legislation including: the
Secondary Education Ordinance of 1962, The Rural Local Education Authorities, The First Five
Years Development Plan, Education for Self Reliance, the East African Council Act of 1967,
which established East Africa Examination Council, Education ordinance of 1969, The Musoma
Resolution of 1970, The Arusha Declaration, Primary Education (UPE) in 1974, Post Primary
Technical Centres (PPTCs), National Advisory Council on Education, The Education Act No. 25
of 1978 and Tanzania Professional Teachers’ Association (TPTA).
From the epoch of world economic liberation and globalization in 1990s to the marking of 50
years of independence in 2011, Tanzania continued to reform the education sector in various
ways. Some of the key education programs, policies and legislations from 1990s to date include:
Education Sector Development Programme (ESDP), Primary Education Development
Programme (PEDP) and Secondary Education Development Programme (SEDP), Tanzania
Development Vision 2025, Poverty Alleviation Strategy 2015, the Education and Training Policy
(1995), Local Government Reform Programme (LGRP), Public Service Reform Programme
(PSRP), Higher Education Students Loans Board (HELSB) under Students
Loan’s Board Act of 2004, National Commission for Technical Education (NACTE), Tanzania
Commission for Universities (TCU), Universities Act of 2005 and Public Financial Management
Reform Programme (PFMRP). All of these programs, policies and pieces of legislations were
purposely structured and directed at improving the efficiency and effectiveness of the systems
and structure of education services.
271
The Convention against Discrimination in Education Adopted by the General Conference at its eleventh session,
Paris, 14th December, 1960.
272
Article 11.
96
Despite the efforts mentioned, Tanzania has not been able to implement an effective education
strategy. The development of the education sector is skewed towards improper goals and targets.
While the rate of enrolment in primary, secondary school, technical colleges and universities is
increasing, the level of performance and the quality of education in Tanzania is dropping.
According to the LHRC’s report of 2010, education policies in Tanzania are neither well-focused
nor coordinated to produce desired outcomes. In most cases, these policies are quantity-oriented
rather than being both quality and quantity oriented. 273
The following section will examine the challenges in educational programming in Tanzania:
4.2.1 Primary and Secondary Education; 50 years After Independence
Immediately after independence the country formulated various policies and programs to make
education accessible for all. During the colonial era, education was not a universal right but was
reserved for the sons and daughters of colonialists, other foreign nationals and few children from
local elite families (Chiefs).
The education policy changed towards universalism under the Leadership of the first President
of Tanzania, the late Mwalimu Nyerere who used various slogans and policies such as Elimu kwa
Wote (‘Education for all’) and ‘Self-Reliance Education’ to build a united Tanzania based on
principles of equality and socialism. During his reign, education was a tool of unity. However,
today education is becoming a tool of disunity as schools in Tanzania serve to create a larger
social divide and embedding it into society, dispite a commendable work in student enrolment.
Performance in schools in Tanzania varies greatly depending on the type of institution. A
student in Tanzania is in a better position to perform well in school if s/he attends an private
school than public schools. Students at the well-facilitated private schools perform with flying
colours while those studying in shule za kata (ward secondary schools) who are the majority,
perform poorly. Those unable to afford the enormous fees to attend private school are unlikely to
succeed in schools, henceforth widening the gap between the rich and the poor.
Tanzania has been moving towards the free provision of education but is still far behind. To date,
public primary schools are free and there is a new branch of secondary schools called ward
secondary schools where the fees are minimal to allow lower-income children to attend. The
decrease in fees to attend school has led to a dramatic increase in enrolment, but not an increase
in performance. Currently, the country’s focus is on access only and not on learning. The
students enrolled in government-owned secondary schools have escalated from 11,832 in 1961,
to 1,789,547 in 2011.274 This is a positive progress, but without proper infrastructure to hold and
educate the students, the initiative may have no practical meaning for Tanzania’s children.
There is a lot of investment in education sector by both the private sector and the government.
The question is whether the sector is receiving the most benefit and whether it is logical and
proper to turn education into a commodity. If the answer is affirmative, then who will be able to
buy education when the majority of Tanzanians live below one dollar per day?
273
LHRC (2010) Human Rights Report of 2010, page 132.
274 Op cit.
97
The data shows there is a clear difference between the performances of students in private and
public schools.
4.2.2 Education and Poor Performance
School performance in Tanzania is dropping dramatically. According to LHRC’s surveys and the
Ministry of Education and Vocational Training, secondary and primary education performance is
dropping yearly. For instance, the figures below illustrate the performance of form four results in
Tanzania from 2010-2011. 275
Source: LHRC compiled analysis
The graph above shows that Form Four results keep on dropping yearly. Comparatively, the
number of students who scored Division One up to Division Three was 42,014 in 2010 equal to
12% of all students who sat for their Form Four final exams (458,114), while in 2011 only
33,577 students scored Division One to Three, equivalent to 7.4 % of all candidates (450,525). 276
This means that, 93% failed as seen in the figure below:
275
276
LHRC (2011) Tanzania Human Rights Survey of 2011; Mbeya Human Rights Profile.
Mkinga Mkinga “Boys outshine girls in Form Four exam results” The Citizen, 8th February, 2012.
98
According to the Tanzania education system, only students with divisions one up to three have
pass mark to proceed with advanced studies. This is to say, that 93% of all students who sat for
their Form Four exams in 2011 failed measurably by scoring Division Four and Zero. This is
discouraging because most of those who failed or scored Division Four and Zero come from
poor families and attended public schools.
The LHRC’s 2011 human rights survey indicates that many primary school students complete
standard seven without knowing how to read or write. For instance, in Kibaha about 20,000
students out of 222,704 in all Pwani primary schools can neither read nor write. 277 Similarly, the
Twaweza report for 2011 indicates that only 4 out of 10 students in standard seven can complete
the standard two assessments in Kiswahili, English and Numeracy. 278 The same report shows
that Tanzania students lag behind Kenya in reading English and Kiswahili.
But if we are all wrong? What if we were to take up one day and find out that the ways in which we
have been promoting education, allocating billions of dollars, organizing our schools systems and
measuring success have focused in wrong things? That the very thing we all cherish and spend so
much on is in fact not achieving what it was meant? 279
(a) Poor Teaching Environment
The main reasons for poor performance in Tanzanian schools include lack of quality-oriented
policies, seriousness in implementations of the existing policies, shortage of school teachers,
poor teaching environment such as poor infrastructures, shortage of books and desks, lack of
teaching staff houses, lack of teaching staff motivation, lack of hostels in ward secondary schools
and food for school students as well as frequent change of teaching curricular.
Inadequate Teaching Staff
277
LHRC (2011) Tanzania Human Rights Survey of 2011, Pwani Human Rights Profile.
Uwezo (2011) Are our Children Learning? Annual Learning Assessment Report of 2011, page 16.
279
Rajan Rakesh (2011), Annual Learning Assessment Report of 2011 Uwezo Initiatives in Uwezo.
278
99
The situation on the ground shows that there is inadequate number of teachers in schools. For
instance, a primary school teacher is forced to teach a class of about 100-200 students in some
schools contrary to the government ratio that requires one teacher for every 40 students. After
fifty years of independence, Tanzania has failed to prepare a pool of adequate and well-trained
teachers for its schools. For instance, for duration of 50 years Tanzania managed to increase the
number of primary school teachers from 9,885 in 1961 to 175,449 in 2011. This increment of
school teachers does not match with the increments of students’ enrolment in primary schools.
The total number of available teachers as shown in the table below cannot serve available
primary schools in the country.
Year
1961
2011
Schools
Teachers
Schools
Teachers
Primary
3,238
9,885
16,001
175,449
Secondary
41
764
4,367
52,146
Source: Compiled from the Ministry of Education and Vocational Training Statistics.
The LHRC’s survey indicates that many schools in rural areas have only three to six school
teachers. For instance, Mkombwe primary school with 946 students in Mbarali district has only 8
teachers. Rationally; this requires one school teacher to attend more than 100 students.
Realistically, this school requires at least 22 school teachers to meet the demand of 946 students.
The severity of this problem is very high in as was observed Ludewa, in Mchuchuma Primary
School where 208 students are taught by two teachers. 280 The situation is also dangerous for
female students because the school has no female teacher to cutter for some of their needs.
Congested and Dilapidated Classrooms, Lack of Desks and Toilets
Due to the congestion of classrooms there are often not enough desks for the students attending
classes. In many schools students squat on the floor due to lack of desks while in other schools
four to six students share one desk. In a school with 946 students, there are only 6 different
rooms to hold students. Mathematically, this then forces 157 students to share one classroom, as
shown below in the photo at Mkombwe Primary School:
280
Fransis Godwin “Wanafunzi 208 wafundishwa na walimu wawili” Tanzania Daima 8th August, 2011.
100
Figure 18: A congested class at Mkombwe Primary School in Mbarali, Mbeya; LHRC Survey, 2011
While new schools are being built daily, they are done so without proper planning. The LHRC is
of the view that this is done intentionally by politicians who want to announce the numbers of
schools they have built and not the quality of education they offer to students. This is a serious
issue in the education sector as can be seen in the photo below; the quality of schools buildings
used by students of Tanzania is extremely discouraging.
A classroom for pre-class one pupils in Morogoro; a picture by LHRC, 2011
101
School Funding
The government funding for schools, or capitation grants, often do not reach schools on time and
at times, is not sent as requested. Consequently, many schools lack books and other teaching
materials. To rescue the situation, school teachers make personal contributions to buy essential
teaching materials such as chalks and teachers reference books. One of the head teachers of a
school in Morogoro who preferred anonymity told LHRC that;
Suala la capitation limekuwa tatizo sana kwanza haziji kwa wakati na zikija zinakuja katikati ya mwaka na
tena sio kiasi kinachotakiwa, walimu inabidi kuchangishana na kununua chaki ili angalau watoto wasikae
bure...tukijaribu kuwauliza viongozi wa wilaya wao nao wanasema bado hazijatumwa...
[Capitation grant becomes a complex issue because they it is not brought on time, and when it comes, it is in
a very low amount at the middle of the year. These forces us to call for contributions among ourselves to buy
important facilities such chalks...when district officials are requested to provide on this, they tend to say
there is no cash which has been deposited.]
Lack of Food in Schools
Almost all public schools in Tanzania do not offer lunch or breakfast to students.
Geographically, many students walk long distances from homes to schools, henceforth forced to
skip their lunch and breakfast. The National Education Policy of 1995 expressively requires
government to introduce food program for students in primary and secondary schools. 281
Wanafunzi wanaweza kufuatilia mafunzo yao kama wana afya na wanalishwa vema.Tafiti
zimeonyesha uhusiano mkubwa kati ya maendeleo na kufaulu kwa upande mmoja na mifumo
ya afya njema na lishe bora kwa upande mwingine. 282
Students can only follow up classes when they are healthy and well fed. Research indicates that
there is a correlation between high pass marks on one side and the good health conditions and
nutrition on the other hand.
A Survey on the importance of food for primary and secondary schools conducted in Mbeya in
2006 by Ministry of Education indicates that between 50% to 75% students go to school without
breakfast and/or lunch from home and in schools. 283 This problem contributes greatly in school
dropouts and poor performance in Tanzania. The LHRC advises the government of Tanzania to
allocate specific fund for meals in primary and secondary schools.
4.2.3 School Pregnancies
Many female students in primary and secondary schools drop out of school because of early
pregnancies. This is a very serious and common problem in the entire country. Thousands of
female students drop out from school and become teen mothers. In Tanzania, The Education Act,
1978 and the Ministry of Education Regulation, 2003 GN.No.263 criminalize the act of
281
Paragraph 3.2.17.
Idara ya Elimu Mbeya: Taarifa ya Tatizo la Utoaji wa Chakula cha Mchana kwa Wanafunzi wa Shule za Msingi
na Secondary Mkoani Mbeya, page 1.
283
Ibid.
282
102
impregnating a school girl. Girls who become pregnant while in schools are immediately
expelled. 284
The issue of early pregnancy and the law expelling girls from schools has become a significant
political topic. There are no specific and defined efforts by the government shown to reduce the
problem of school pregnancies. Government leaders tell the public that no single child will be
barred from doing the final exams. Nonetheless, the government of Tanzania is still adamant in
keeping archaic laws that prohibit teen mothers from returning to school; as a result, thousands
of them do not sit for their final exams. For instance, the LHRC analysis of various reports show
that an average of 6,000 school girls drops out of both primary and secondary schools yearly
because of pregnancy.
According to Basic Education Statistics (BEST) by the Ministry of Education and Vocational
Training, more than 1,050 pupils dropped out of primary schools while more than 5,000 students
dropped out of secondary schools in 2011 due to pregnancy. 285 This is a figure that invites quick
actions. There are several factors that lead to some girls becoming pregnant such as lack of
dormitories, lack of food at homes and at schools, poverty, harmful tradition and practices, lack
of sex education and rape.
There are a few centres in the country that accommodate and educate teen mothers who have
been expelled from schools. There is one center for teen mothers in Dar es Salaam (under
UMATI), in Morogoro and another in Longido Arusha named Hope for Girls Centre. In these
Centres, pregnant girls are provided with a safe place to stay, during which they are counseled,
meeting with families being arranged, facilitated access to health care and provided with sexual
and reproductive health education. The centres also sponsor teen mothers to be able to attend
private schools. LHRC calls upon all stakeholders and the government of Tanzania to seriously
address this matter by allowing pregnant school girls to resume their studies after delivery.
4.2.4 Higher Learning Institutions
Tanzania has advanced from a single university in 1961 to 40 universities in 2011. This has led
to an increase of students’ enrolment from 14 students in 1961 to 104,130 in 2011. 286 The
increase of universities and enrolment of students has been supported to a great extent by private
universities. In 1995, the the government passed the Education Act to allow private institutions to
establish and provide university education. This is a remarkable and substantial progress
Tanzania has made.
The table below shows the rate of student enrolment in Universities in Tanzania since 1961 2011
Year
1961
1971
1981
1991
284
2001
2011
The Ministry of Education and Vocational Training: Basic Education Statistics (BEST), 2011
MoEVT (2011) Best Education Stastics in Tanzania, pages 31and 78.
286
Op cit.
285
103
Year
1961
1971
1981
1991
2001
2011
Teaching
College
1,723
4,475
13,138
15,684
15,561
37,698
University
14
2,200
3,650
4,269
No data
104,130
No data
652
No data
102,217
Technical
Colleges
1360
1814
Source: MoEVT 2011
(a)
Admission and Loan Disbursements
The Tanzania Commission for Universities (TCU) is a statutory body established through the
University Act No. 7, 2005 replacing the Higher Education Accreditation Council. The TCU
works as a regulatory body for higher learning institutions in Tanzania. It is an advisory and
supportive body which coordinates the proper functioning of all university institutions in
Tanzania to foster a harmonized higher education system in the country.
The TCU, in collaboration with University Institutions, National Council for Technical
Education (NACTE) and other higher education institutions, has established a Central Admission
System (CAS) which began operating in 2010. The CAS was established to overcome previous
admissions and loan disbursement problems.
Despite the fact that the budget allocation for higher learning institutions for the year 2011/2012
increased from 236.2 million in 2010/2011 to 317.8 in 2011/2012, the admission and loan
disbursement processes have not been without problems. Only 23,340 students (61%) out of
37,924 successfully applicants received a loan for their studies. 287 The country experienced
several strikes and demonstrations of students who did not receive loans, even though they had
secured admission.
A group of students marched to the premises of both the Ministry of Education and the HESLB
on August 2011. Students blamed the government institutions for failing to grant loans to
admitted students.
Year
Applicants Failed
Successful Successful Unsuccessful
Applicants Applicants Loan
Loan
Applicants Applicants
2011 48,477
10,553
37,924
23,340
14,534
Budget
allocation
317.8 Million
Source: The Citizen 1st September, 2011
287
Songa wa Songa “Ths. 317 bil set aside as student’s loan” The Citizen 1st September, 2011.
104
The loans board (HESLB) is blamed by students for being poor in record-keeping, late
disbursement of funds to students and poor problem solving processes. As a result, several
complaints and protests directed against university administrators who in turn use excessive
force to subdue discontent.
(b) Students Strikes and Protests
From January to December 2011 more than ten Colleges and Universities experienced students
protest and strikes. For instance, University of Dar es Salaam and University of Dodoma students
protested several times against loans board and college administrations. In November 2011,
University of Dar es Salaam students went on strike to pressurize the HESLB to pay their meals
and accommodation allowances, 288 but instead of listening to their claims the University
administration called Field Force Police who used tear gases canisters to disperse aggrieved
students, who were chanting slogans and carrying placards.
Figure 19: The Anti-Riot Police wrangles with the protesting UDSM students
Some other examples of universities that striked and protested with their events are elaborated
hereunder:
No.
College Name
Incident
Reason
1.
St. Johns’ University
Boycotted Classes
Delay of field allowances; 15 students suspended
2.
Tumanini
University, Branch
of Masoka - Moshi
Strike
Delay of field allowances
3.
Muhimbili
University of Health
Strike
Examination irregularities
288
Correspondent “UDSM students strike over `elusive` board loans” The Guardian 12th November, 2011.
105
and Allied Sciences
4.
Muhimbili
University of Health
and Allied Sciences
Two days demonstration
University authority banned students’ leadership
to impose a new government secular for
students’ organisation
5.
Makumira-Tumaini
Branch
Demonstration
Loans Disbursment irregularities
6.
University of
Dodoma
Prolonged student and
lecturers class boycot
Allowances and field work fees. Thousands of
them were suspended and 50 were expelled
7.
University of Dar es
Salaam
Students’ strike
Were demanding their meals and accomodation
allowance. The UDSM administration expelled
56 and suspended more than ninety students.
8.
CBE
Boyccotted classes
Students leaders were demanding democracy in
University affairs.
9.
IMTU
Students Marched to the
Education and Vocational
Training ministry headquarters
Air their grievances over tuition fee payment in
USD. About 600 students remain suspended for
the third month and the varsity still charges the
fees in dollars
10.
Kairuki Memorial
University
Marched to HESLB and
boycotted exams
Demanding the HESLB to pay for their fees
Source: LHRC Compilation, 2011
Since the year 2000, a trend of students to strike continues to rise in the country without any
government efforts to end this problem in the education sector. Students have been amplyifying
the same claims including stipend to support their academic life at the university such as food,
books and accommodation, yet no concrete solutions have been taken by the government to
end the problem.
The LHRC advises the goverment to find durable solutions to University students’ demands.It is
riducolous for the problem to keep on recurring every time with the same claims from the same
people and the same institutions without State taking serious measures.
106
Chapter Five
Economic and Cultural Rights
5.0 Introduction
After the discussion of social rights in chapter four, this chapter evaluates the enjoyment of
economic and cultural rights in Tanzania. Economic, social and cultural rights are often
discussed together, however in order to cover each in more detail, the subjects are discussed
independently. Both categories of rights are integral in international human rights documents,
forming an integral part of the Universal Declaration of Human Rights, 1948, the International
Covenant of Economic, Social and Cultural Rights (ICESCR), 1966 and Optional Protocol to
ICESCR, 2008.
5.1 Cultural Rights as Human Rights
For many years now there has been no agreed definition of cultural rights. However, cultural
rights can only be described within the context of culture or at least, an understanding of culture
must be in place before defining it. Culture is inseparable from the quality of being human and
the sense of self-respect. Culture as a way of life includes a set of distinctive spiritual, material,
intellectual and emotional features of society. Therefore, culture encompasses art, literature,
lifestyles, ways of living together, value systems, traditions and beliefs. 289 According to various
studies, the bearer of cultural rights include: individuals seeking to be protected from state abuse
and non-state actors, small states seeking to enjoy cultural rights against larger states; and
indigenous people/minorities seeking to be protected against state and investors. 290
It is now becoming a common practice to find scholarly works, papers and books titled SocioEconomic and Cultural Rights, but surprisingly, internal discussion excludes cultural rights.
States need to be reminded that cultural rights are part of human rights regime. It should be
known that, cultural rights, are enshrined in some international human rights instruments and
agreements ratified or accepted, especially the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights; the International Covenant on
Civil and Political Rights; the Convention on the Elimination of All Forms of Racial
Discrimination; the Convention on the Rights of the Child; the Declaration on the Rights of
Persons Belonging to National, Ethnic, Religious and Linguistic Minorities.
Other international instruments that advocate for cultural rights include; the Declaration on the
Principles of International Cultural Cooperation; the Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities; the Declaration on the
Right to Development; the International Convention on the Protection of the Rights of All
289
Joanne Bauer (2004) “Why Cultural Rights Now?” Human Rights Initiative Program (1994-2005). A Paper by
Dr. Elsa Stamatopoulou and Joanne Bauer. See also www.culturalsurvival.org (Accessed on 26th November, 2011)
290
Ibid.
107
Migrant Workers and Members of Their Families; and the ILO Convention No. 169 on the Rights
of Indigenous and Tribal Peoples.
Despite the fact that the international human rights instruments have articulated the rights to
enjoy cultural rights, however, the cultural rights are under-promoted and neglected at both
national and international level. For instance, The Universal Declaration of Human Rights of
1948 expressly provides that:
Art. (1) “Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and its
benefits. Art. (2) Everyone has the right to the protection of the moral and
material interests resulting from any scientific, literary or artistic production of
which he is the author."
This chapter discusses the cultural rights of communities in Tanzania. Cultural rights are
particularly important for indigenous peoples and minorities because these populations are often
discriminated, marginalized and rendered vulnerable by the dominant society, development
policies and laws. In Tanzania, there are minority groups and indigenous communities such as
the Barbaig, Iraqw, Sandawe, Maasai, Ndorobo (Kiye), Hadzabe and Sonjo, that strive to
maintain their culture and traditions. It is now difficult for these groups to live according to their
own culture due to several factors including development programs policies or laws, climatic
changes, investment activities and cultural interactions.
(a) Language
Tanzania is the home to more than 120 ethnic groups representing more than 120 vanaculars. Out
of the estimated 120 plus languages spoken today, 95% may face extinction in the next 50 years.
For instance, in Tanzania vernaculars are not used in schools, public gatherings or in the media
unlike Kenya and Uganda. Tanzania has very few community radios which promote local
languages and cultures. The law regulating Tanzania Communication and Regulatory Authority
(TCRA) restricts the establishment of community radios and use of indigenous languages. This
prohibition is contrary to Article 27 of ICESCR which obligates states to respect the rights of
persons belonging to ethnic, religious or linguistic minorities. ICESCR states;
That persons belonging to ethnic...linguistic minority…shall not be denied the
right, in community with other members of their group, to enjoy their own culture,
to profess and practice their own religion, or to use their own language.
(b)
The impact of Economic and Technological Advancements
The world of socio-economic development has brought together people of different cultures and
involuntarily integrated them into the present global market scheme and introduced different
cultures to remarkable technological advances. This global interaction poses a challenge to
human rights and clashes with cultures. An individual’s cultural background is one of the
primary sources of identity, but it can easily be eroded when cultures interact and intermix. The
current insecurity of cultural identity in Tanzania reflects fundamental changes in how we define
and express who we are today.
108
(c)
Investment Activities and Land Alienation
Another factor that affects enjoyment of cultural rights in Tanzania is the implementation of
investment activities and land alienation. Since 1961, minority and indigenous communities in
Tanzania has insecure holdings to their traditional land. For instance, the group of hunters and
gatherers commonly known as Hadzabe has progressively lost their traditional land because of
investment purposes. Land has been bought by companies or government for alternative uses and
has pushed the Hadzabe off their land. The Hadzabe live in Mbulu District in Eyasi Basin, but
the numbers of its population keeps on decreasing. Likewise, other indigenous communities such
as the Maasai and the Sandawe are constantly losing their traditional land for investment
purposes. For example, forceful eviction of the Maasai in Loliondo in 2009, the Yaeda Chini
saga in Mbulu District, Kilosa eviction and Ihefu-Mbarali eviction. It is obvious that, once
minority or indigenous community lose their land, they lose everything else including their
culture, language, cultural identity and their heritage.
The indigenous communities’ land is always rich of other natural resources such as wild animals,
forest, plains and water. The indigenous communities conserve land and other natural resources
because they believe it is part of their culture. That is to say, land is a sacred entity and the
keeper of their history, memories and culture. Land as incarnation of culture was also stated in
the United Nations Human Rights Committee in General Comment of 1994 as follows: 291
3.2...To enjoy particular culture may consist in way of life which is closely associated with
territory and use of its resources… 7… Culture manifests itself in many forms, including a
particular way of life associated with the use of land resources especially in the case of
indigenous peoples…that rights may consist traditional activities such as fishing and
hunting.
The survival of indigenous culture in the world is heavily dependent on protection of their lands,
because removal of such communities from their land affects their cultural life such as language,
link to their ancestral and their sacred sites. 292
Pastoralists such as Sukuma, Maasai and Barbaig have constantly continued to be marginalized
by being pushed to southern parts of the country. As a result, pastoralists lose their traditional
lands, children, lives, livestock and other properties. Furthermore, pastoralists particularly the
Maasai community involuntarily decides to abandon pastoralism and rush to towns and cities
seeking any type of work as a copying mechanism. Life in town is not suitable for pastoral
livelihood and a culture, hence having Maasai people in cities erodes their culture and forces
them to acquire new copying mechanisms.
The LHRC calls upon the government to respect the land rights of the indigeneous tribes, as it is
not easy for these groups to adapt or uphold a decent life in cities. It is also wise to note that
many of them have not gone to school and consequently end up being discriminated, exploited
and mistreated.
291
UN Human Rights Committee, General Comments 23, Article 27 (Fiftieth Session, 1994). See also Barume, K
(2010) Land Rights of Indigenous People in Africa, page 51.
292
Kymlicka, Wily (1995) Multicultural Citizenship, (Oxford: Clarendon Press), page 43. See also Barune, K (2010)
Land Rights of Indegenous People in Africa, page 52.
109
(d) Universality of Human Rights
The concept of cultural relativism has always collided with the concept of universalism of human
rights. In most circumstances, the promotions of human rights under universality principles have
posed a great challenge to the enjoyment of some cultural rights. For instance, all member states
of the United Nations have a legal obligation to promote and protect human rights, regardless of
particular cultural perspectives. 293 This implies that most areas of international law, universal
human rights are modern achievements and new to all culture. 294
The developing States like Tanzania have been forced on some occasions to respect universal
human rights at the expense of cultural rights. This is done with hesitation, without knowing that
universal human rights have sufficient flexibility to respect and protect cultural diversity. The
country needs to be informed that cultural considerations do not in any way diminish states’
human rights obligations under international human rights law. States can still find a better
approach to respect its own cultures without violating universal human rights.
(e)
Development Policies and Legislations
Various development policies and legislations either exclude indigenous communities or force
them to abandon their culture and traditions. Hunters–gatherers and pastoralists both face
common challenges as both are disregarded or not included in legislation or development
policies.
The LHRC reminds the government of Tanzania that not all traditional culture is not opposed to
human rights, but is the cultural context in which human rights must be established, integrated,
promoted and protected. Drawing on compatible practices and common values from traditional
cultures would enhance and advance human rights promotion and protection. This approach not
only encourages greater tolerance, mutual respect and understanding, but also fosters more
effective international cooperation for human rights. Tanzania must use better approaches to
accomodate global changes without negatively impacting cultural rights. This must be a country
that inherently recognizes cultural integrity and diversity without compromising universal
standards of human rights.
5.2 Economic Rights
According to the International Covenant of Economic, Social and Cultural Rights (ICESCR),
economic rights includes the following: the right to self-determination, the right to work, the
right to just and favourable work conditions, the right to form and join trade unions, the right to
social security and social insurance, the right to an adequate standard of living and the right to
own property. Economic rights are therefore directly related to the prevention of poverty,
protecting the ability of individuals to earn a living and afford basic needs. Various aspects of the
economy relate to the ability of individuals to earn a living in Tanzania, from international trade
to national labour regulations.
293
Universal human rights protection and promotion are asserted in the Vienna Declaration as the "first
responsibility" of all Governments.
294
See United Nations Department of Public Information DPI/1627/HR--March 1995.
110
5.2.1 Economic Growth
It is important to have a strong economy for Tanzanians to have a decent life. Economic strength
is traditionally measured by country’s annual Gross Domestic Product (GDP), or the market
value of all goods and services produced within a country in that year. The GDP is not a perfect
indicator of economic rights, but it gives a general idea of how well citizens earn a living. The
GDP shows the total production for the whole country’s economy and does not show how many
individual people in the country are able to participate in the economy, but it is assumed that
when the country produces more, there are more people taking part in production.
In Tanzania, economy has been steadly growing through the 2000s although recently it has been
slowing down due to the economic recession. 295 Tanzania was one of the top twenty fastest
growing economies between the years 2006-2009, coming in at 16 with a consistent average
growth rate of over 6%. 296 However, its economy has been affected by the recent global
economic crisis which began in 2008.
The Tanzanian Minister of Finance Hon. Mustafa Mkulo while addressing the UN conference in
USA stressed: 297
Our economies are interconnected as never before in many ways, from trade to financial flows. In
that regard, the risks to the African economies and especially the East African economies are
considerable.
Finance Ministers from different countries met in Washington DC during the International
Monetary Fund (IMF) and the World Bank annual meetings in September 2011; the latest global
economic forecast, where it was stated that the world economy was in a dangerous new phase.
The forecast emphasized that the impact of the ongoing world economic crisis will be very high
on low-income countries, particularly African countries such as Tanzania. This sentiment was
reiterated by Tanzanian Finance Minister, Hon. Mkulo: 298
Our economies are still on the recovery path and in the process of restoring critical economic buffers.
There is real danger that the modest progress we have attained in meeting some of the Millennium
Development Goals will be eroded by an ensuing global economic crisis.
295
African Economic Outlook accessed at http://www.africaneconomicoutlook.org/en/countries/eastafrica/tanzania/on November 16th, 2011.
296
Regional World Book Outlook (2011) World Economic and Financial Survey, page 61.
297
Business Time Adminstration “Africa faces ‘considerable risks’ from global downturn” Business Time 7th
October, 2011.
298
Ibid.
111
Top 20 Fastest-Growing Economies in 2005–09 299
While there is still a growing GDP, Tanzania remains one of the poorest nations in the world and
is unlikely to meet the Millenium Development Goals. 300 Regionally, its economy is not growing
as fast as its neighbours. Various world economic surveys ranked Tanzania as the slowest
growing economy in East Africa. For instance, Rwanda’s GDP has been growing annually
between 7-8%, while recently Tanzania only experienced a 5-6% rise in annual GDP. 301 The
economic recession is one of the factors that led to the decline in the economy, but other reasons
include persistent power outages, escalating fuel prices, rising inflation, falling revenue
collections, slow or partial donor disbursements and ever-rising public debt. 302
299
Ibid.
301
302
Ibid.
300
112
5.2.2 Inflation Rate
The inflation rate is another indicator of the extent to which individuals can obtain economic
rights. Inflation is represented as a percentage and is the difference in the average price of goods
from one year to the other. The importance of inflation is to tell how much an individual can buy
with their salaries. High inflation can mean that goods are too expensive for the average person
to afford. If salaries increase, but the price of rice and milk go up, then the purchasing power of
average person may be worse off.
The inflation rate in Tanzania has been escalating during the past few years and into 2011. The
National Bureau of Statistics (NBS) released a statement showing that the inflation rate has
reached an unexpected double digit figure in 2011. Tanzania inflation rate by December 2011
was ranging between 19-20%, very high especially in comparison to previous years. 303 The rise
in inflation is a result of the increase in the prices of various goods and services, in particular,
fuel and electricity. A Bank of Tanzania (BOT) official stated that fuel and electricity costs have
greatly contributed to the rise of inflation rate in the country from 14.1% in August 2011 to
16.8% in September 2011. 304 The BOT officer also mentioned that the economies in the
neighbouring countries, such as Kenya and Somalia, were also influencing the high inflation rate
in Tanzania due to the rise in food exports. The increase in food exports makes food less
available and therefore more expensive domestically. The BOT official observed: 305
Our borders are very porous, so there is pressure for food to go out. We also need to improve our
distribution systems to ensure that surplus food in the southern parts of the country reaches the north of
the country ...Sugar prices are also adding to the inflationary pressures. Tanzania banned sugar exports
in September in a series of measures to tame spiralling prices.
The current inflation rate has economic implications and major impact on provision of the prices
of goods and the ability for individuals to afford them. Basic necessities such as water, housing,
fuel, electricity and food all become less affordable with a higher inflation rate. The inflation
impact on interest rates also has other far-reaching implications, including reduced access to
capital, less investments, less production of goods and services, less employment, less income,
less poverty reduction and by extension less economic growth. Furthermore, economic scientists
argued that the inflation rate will have great implication in budget implementation. This is
because all cost items that were budgeted for when the process began in July 2011, will
substantially be high even before the requested budget funds are due. 306
The inflation rate in the country has resulted in a drastic fall of the Tanzanian Shilling in the
market. The value of the shilling determines how much you can buy with a certain amount of
money. The shilling hit its lowest point against the US dollar in 2011 when it was traded at T.Sh
1,840/- against 1$, meaning that less and less can be purchased with Tshs. 100/-. The cost of life
303
Reuters “Tanzania Influation Rate Continues”
http://af.reuters.com/article/investingNews/idAFJOE80F05Z20120116 ( Acceses Dec, 2011)
304
Special Reporter “Food and oil putting pressure on inflation, says BoT” The Guardian, 1st November, 2011.
305
Ibid.
306
Honest Ngowi Implication of double digit inflation in Tanzania “The Citizen 22nd July, 2011.
113
and living expenses in the country has reached unimaginable heights. With many people living
on less than 1$ a day, the country currently, experience food shortage and hunger.
The LHRC calls upon the government to work hard to reduce food exports, explore its own
sources of gas, electricity and fuel to reduce imports of these goods to do away with high
inflation rates.
5.3 Labour Rights as Human Rights
The International Covenant on Economic, Social Cultural Rights (ICESCR) is the core
international instrument that advocates for protection and promotion of labour rights. The
Covenant in Article 6 creates a duty for member states to guarantee that every person can gain a
living by working, can choose that work freely and calls upon all states to ensure the ability to
work by providing skills and training. Article 7 ensures individuals work in favourable
conditions and earn fair wages. In addition, Article 8 includes both the right to form trade unions
and strike while Article 9 promotes the right of persons to have social security, including social
insurance.
The other major international body regulating labour rights is the International Labour
Organization (ILO), a branch of the United Nations. The ILO is specifically mandated to create
international labour standards through states’ agreements. It has by now adopted more than 180
Conventions and 200 Recommendations geared towards harmonising and improving national
labour rights. The ILO conventions, along with the ICESCR, advocates for non-discrimination,
equal protection of employment; access to employment for marginalized and disadvantaged
individuals, equal treatment in the private and public sectors. In this regard, labour rights refer to
the right to access employment, right to decent work, right to work, right to form trade unions
and associations, rights to favourable conditions of work, right to social security and the right to
fair remuneration for work.
5.3.1 Right to Work
Nationally, Article 22 of the Constitution provides that every person has the right to work. Other
national legislations which guarantee the right to work include the Employment and Labour
Relations Act No. 11 of 2004 and Labour Institutions Act No. 1 of 2004. Tanzania is also a party
to some of the ILO core conventions which guarantee the right to work and access to
employment; such as the ILO Convention Concerning the Prohibition and Immediate Action for
the Elimination of the Worst Forms of Child Labour, 2000. Also at the national level, Tanzania
has a set of core legislations and policies such as the National Employment Policy of 2008 that
advocates for the rights of vulnerable groups, such as youth and women, to access employment.
Other national labour rights documents include: the Medium Term Pay Policy, Recruitment and
Employment Policy, the Public Service Management and Employment Policy, the Public Service
Act No.8 of 2002, Labour Institutions (Mediation and Arbitration) Rules 2007 307 and the
Employment and Labour Relations (Code of Good Practice) Rules, 2007. 308
Despite these laws, Tanzania has a high rate of unemployment. Tanzania has tried to come up
with various development programs, such National Strategy for Growth and Reduction of
307
308
G.N No. 64 of 2007.
G.N No. 42 of 2007.
114
Poverty (NSGRP) which builds on Tanzania’ Development Vision of 2025 in a bid to streamline
the poverty-related problems such as unemployment. Nonetheless, the first phase of
implementing NSGRP (in Kiswahili Mpango wa Kukukuza Uchumi na Kupunguza UmaskiniMKUKUTA) has passed without making significant change in the employment sector. 309
5. 3.2 Fair Remuneration
Both the ICESCR and the Constitution of the United Republic of Tanzania guarantee the right to
fair remuneration. The ICESR in Article 7 states that, States will undertake to provide favourable
conditions to work in, including:
(a) Fair wages and equal remuneration for work of equal value without discrimination of
any kind, in particular women being guaranteed conditions of work not inferior to
those enjoyed by men, with equal pay for equal work;
(b) A decent living for themselves and their families in accordance with the provisions of
the present Covenant;
(c) Safe and healthy working conditions;
(d) Equal opportunity for everyone to be promoted in his employment to an appropriate
higher level, subject to no considerations other than those of seniority and
competence, rest, leisure and reasonable limitation of working hours and periodic
holidays with pay, as well as remuneration for public holidays.
Despite the 2010 LHRC’s human rights report assessing the rights of barmaids/men, journalists
and civil servants of lower ranks concerning their remuneration for work, the situation has
remained unchanged.The 2011 human rights report also scrutinizes the remuneration of domestic
and mining workers.
(a) Domestic Workers in Tanzania Overworked and Almost Unpaid
Domestic workers in Tanzania are individuals who are employed to work as house-servants,
commonly known as house girls or boys. In most cases, people employed as domestic workers
are young girls and boys between the ages of 12 and 20 years. Today however, there are
occasions where adult men and women are also employed as domestic workers. The reality from
the ground tells that thousands of young people are trafficked from rural areas into cities with
promises of well-paid employment. However, most end up in difficulty situations as house
servants with little or no pay. The most affected groups of domestic workers are girls. A barmaid
in Kibaha who previously had been a house girl, preferring anonymity stated:
Nilichukuliwa toka kijijini kwangu Lindi na kuniahidi kazi nzuri yenye malipo kama
mfanyakazi wa ndani, lakini mwishowe nilshia kufanya kazi masaa 24 hata bila kupumzika siku
za mapunziko.Walinipa ujira mdogo sana wa 15,000/= kwa mwezi..Nilishindwa kurudi
nyumbani, na hatimaye nikatoroka na sasa ndo nafanya kazi hii.
[I was taken away from our village in Lindi Region, where they promised me a good paying job
as a house helper. However, I came here only to end up working almost 24 hours without a
309
Hotuba ya Kiongozi wa Upinzani na Msemaji Mkuu wa Kambi ya Upinzani, Mheshimiwa Hamad Rashid
Mohamed (Mb) Wizara ya Fedha na Uchumi Kuhusu Mpango na Makadirio ya Mapato na Matumizi kwa Mwaka
wa Fedha 2010/2011.
115
break let alone holidays. They gave me a meager 15,000/- per month… I could not afford to go
back home. I eventually fled away and I am now into this job].
A similar situation happened to a house boy who worked as a domestic servant for almost two
years without payment. Mr. Elias decided to take rat poison to release himself from exploitation.
Figure 20: Mr. Elias narrating his ordeal to a lawyer (LHRC) at Amana Hospital where he was admitted
Huyu baba ni kama ndugu yangu; ni wa kule kwetu alinichukua toka Arusha kwamba nije
nimsaidie kwa kazi za ndani hasa zile za kuangalia ngombe wa maziwa....tulikubaliana anilipe
20,000/- kwa mwezi toka 2009...lakini hajawahi kunilipa hadi leo...nimechoka sana nataka kurudi
kwetu Arusha, lakini sina pesa...nikimwambia anasema subiri..Kwa kweli kuna mateso...na ndo
maana nikaona heri nife tu.
[I regard this man as relative because we are coming from the same area. He picked me from
Arusha on account that I would be helping him with domestic chores especially taking care of
cattle. .. We had agreed that he would be paying me a monthly salary of Tshs. 20,000/- beginning
2009...but he has never paid me anything ever since. I am fed up and want to go back home but
have no money... He keeps brushing me off whenever I demand for my pay… This is a living hell
... no thus I felt that I would rather be dead].
The above two examples reveals how the underpaid house girl opted to become a barmaid and a
sex worker, while the boy opted to take rat poison. The mistreatment of domestic workers is
contrary to the Constitution of the United Republic of Tanzania, which provides that every
person has the right to fair remuneration for his or her work. 310 Also, the Regulation of Wages
and Terms of Employment Order of 2010 requires 68% of domestic workers’s salaries who share
310
Article 23
116
all basic services with his or her employers to be deducted from his or her salary. Findings show
that domestic workers work for long hours with very little pay and rarely are they paid. The
average wage for domestic workers in Tanzania is 20,000/- Tshs. per month.
The problem of trafficking people particularly young girls in cities as domestic servants with
insufficient payment is growing not only in Tanzania but also in other developed countries. For
instance, there was a conviction that attracted world media when a Tanzanian scientist and
former director of a London hospital, Saeeda Khan was made to pay 25,000 pounds (50,000
dollars) and was given a nine months prison term for keeping her relative as a slave labourer for
five years. The Scientist stayed with Mwanahamisi Mruke (47) without paying her.
Mwanahamisi was flown from Tanzania with a promised to be paid Tsh. 120,000/- per month as
a domestic servant. 311
In another similar incident, Ms. Eliza Kawogo a girl from Iringa Tanzania was trafficked from
Dar es Salaam to London in United Kingdom to work as a domestic worker in the family of Mr.
Dhanjis. Ms. Kawogo was forced to sleep on the kitchen floor. She worked from 7 o’clock in
the morning, cleaned the Dhanjis’ house, prepared breakfast and undertook household chores
throughout the day until 10:30 p.m. She was not permitted to leave the house save for going to
church. She was neither paid nor was she allowed to hold her passport. Ms. Kawogo developed
psyschological trauma and fear of returning to Tanzania. She is now a victim of human
trafficking and is seeking asylum in the UK.
During the International Labour Day on the 1st of May 2011, States met to discuss the possibility
of ratifying an international instrument for the protection of domestic workers’ rights to address
the problem of domestic workers in the world. Labour Secretary Rosalinda D. Baldoz made the
commitment at the start of the regional conference on the Convention on Decent Work for
Domestic Workers in Makati City. 312
We are seeing a scenario where by the Labor Day [May 1, 2012], we can have the instrument of
ratification of the convention signed by the President and concurred by the Senate,” Ms. Baldoz said
on the sidelines of the event when asked for a definite timeline.
The convention promotes basic rights of domestic workers, providing information on the terms
of employment, at least one day off, minimum wage, safe and healthy working environment, and
social security protection, among others.
The LHRC advises the government of Tanzania to ratify the convention and domesticate it to
become part of labour laws legislations.
311
http://www.jamiiforums.com/international-forum/118521-tanzanian-woman-used-as-slave-wins-case-againstformer-hospital-director.html.Accessed on 25th January, 2012.
312
www.wiego.org/category/occupational-groups/domestic-workers. Accessed on 25th January 2012.
117
(b) Mining Industrial Workers’ Employments Rights
Tanzania is endowed with a variety of natural resources such as minerals, land, gas deposits and
attractive tourist sites. Mining is a major industry in Tanzania, mostly in gold, diamond and
tanzanite. The major mines in Tanzania include: the Bulyanhulu gold mine in Kahama; the
Buzwagi gold mine in Kahama; the North Mara gold mine in Tarime; the Geita gold mine in
Geita; the Golden Pride (Resolute Gold) mine in Nzega; Tulawaka (Biharamulo), Tanzania One
(Tanzanite in Mirerani) and the Buhemba gold mine in Musoma, among others. However, these
mines provide very few job opportunities for Tanzanians. There have been many claims for the
violation of labour rights in mining areas as time goes by.
The present labour laws in Tanzania are not providing adequate protection for mining workers.
Tanzania has ratified several significant ILO Conventions such as: the Equal Remuneration
Convention, 1951 (No. 100); the Discrimination (Employment and Occupation) Convention,
1958 (No. 111); the Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87); and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
on 18th April 2000. Despite having these laws in place, the LHRC findings show that violations
of labour rights in mining areas are still rampant in the country. In 2011, the LHRC conducted a
human rights survey in several mining sites including the Geita Gold Mine (GGM), the Resolute
Gold Mine in Nzega and the Afrika Mashariki Gold Mine.
Employees of Geita Gold Mine (GGM) complain that the company that owns and manages the
mine “Anglo Gold Ashanti” violates labour rights. Employees complained to have been
unreasonably fired and without following due process of the law. They also said that, working
conditions at GGM is not suitable for human beings. LHRC’s findings from the Lake Zone
Tanzania Mines Construction, Energy and Allied Workers (TAMICO), stated that; 313
Most operators work for 12 hours with only a 15 minutes lunch break, in a Hot Seat. There is a
need to increase the shifts and find more time to rest, as well as to find therapy to treat them.
There is also a need to research on the ailment facing the staff to give them the required
treatment. Majority of the staff members are sick.
According to the findings, most of the employees who had fallen ill have doctors’ certificates
indicating that they are suffering from ailments related to mining activities. An employee who
preferred anonymity stated: 314 “A staff involved into an accident is normally declared redundant.
At times such a person may receive three letters one indicating termination, redundant or
describing him too sick to work. One of our colleagues was involved into an accident and he
returned to work only to receive a termination letter within a month,” he said.
Another staff, working in the chemicals section, informed LHRC team that he was very sick for
three weeks without being attended by a physician. He said:
313
314
Ibid.
LHRC (2011) Geita, Nzega and Loliondo Fact Finding Mission Report of 2011.
118
I have been diagnosed that I am suffering from heart and chest diseases and I suspect that
my sickness may have something to do with the chemicals I have been using at work for
years. I never used to have this ailment before this work.
As a dumper truck operator said he has been involved in hard work since when he was
employed. He stressed that;
I used to drive heavy duty machines carrying 250 to 300 tones and worked for long
hours. We were forced to undergo the so called ‘Hot Seats’, where a person is
supposed to work 12 hours with a short break of 15 minutes where food is brought to
you. I fell sick and went to the GGM hospital where the doctor said I had muscle pains
and should rest. I was relieved from my duties for sometimes and prescribed with pain
killers.
He lamented that he was never given any compensation for his ailment.
Also, another GGM dumper operator sustained body injuries while on duty. GGM ignored his
health conditions and fired him from work after some months. He stated: “I joined the GGM as a
security guard in 2006 but later on became a dumper operator in 2007 and one day while
packed, I saw another machine reverse towards me,
The dumper machines carry 300 tones and it was coming directly to where mine was and
that is when I decided to jump. I fell on my back and sustained severe injuries. I went to the
hospital where I got treatment and resumed work. However, few days later, one of the
heavy duty machines I was driving failed and returned its tray with so much strength that I
sustained yet more injuries on my back.
According to him, the fateful incident left him unconscious and almost paralyzed. He said he got
treatment at the Bugando Hospital where he was told to have had a disk dislocation at the back
and muscle sprain. He was later on terminated from his job on March 7th, 2011, with his
employer saying his treatment was too expensive to foot.
At least 90 percent of all staff in the productions unit are sick due to long working hours, dust and
the heavy duty machines they drive. The staff safety is Zero while as all leaders side with the
management who most of them care less for our health. He said.
This damper operator called upon government leaders to avoid closing their eyes as is now the
trends, to enable them gain their rights.
We are really mistreated let the government open its eyes to see these inhumane acts by
investors, he said.
The LHRC survey findings show that at least 50 employees were declared redundant recently,
mostly of whom were either on sick leave or had fallen sick at work place. 315 The tendency of
violating labour rights in the mining industry is very common, not only in GGM but also in other
mining companies.
LHRC advices the government of Tanzania to put strong implementation mechanisms of laws
and regulations regarding the rights of industrial workers in Tanzania.
315
Ibid.
119
5.4 Right to Own Property
The Universal Declaration of Human Rights of 1948 requires member states to respect and
promote the right to own property by creating an environment that allows people to freely enjoy
their properties and guarantee their protections. 316 Property can be defined as anything physical
owned by a person or group of persons who can freely use, sell or rent the same without any
external influence. 317 Similarly, the Constitution of Tanzania provides that every person has the
right to own property and protect them. Personal property laws were introduced into Tanzania by
colonialists. The right of one person to exclusively own a piece of land is only one form of
traditional property ownership in Tanzania. Other traditional forms of ownership include
communal, the use and enjoyment of property in a community without one person having
exclusive rights. These forms of ownership were not recognized by the colonial regime and were
not part of Tanzanian laws even though they had operated for centuries.
5.4.1 Land Related Conflicts
Pastoralism in Tanzania is one sector that practices a more traditional form of property
ownership. Pastoralism is a traditional and nomadic form of livestock keeping that requires land
and plays a significant role in the economy of Tanzania. Pastoralism provides the nation with
meat and other animal products such as animal skins. Apart from meat and milk production,
pastoralists act as managers of Tanzania’s natural resources. 318 Despite these important roles, the
pastoral property and economy in Tanzania have been jeopardized by current land politics and
other development policies. The legal regime does not fully protect pastoral properties such as
lands and livestocks a situation which creates room for easy manipulation. Tanzania has almost 3
million pastoralists scattered in several regions the Maasai and Sukuma being the largest groups
and are the most widely known.
The lands used and occupied by pastoralist today are mostly arid and semi-arid whose resources
are heterogeneous and dispersed, varying spatially and temporarily. The quality of the land is
essential to the livelihoods of pastoralists who need the fertile soil to feed their livestock.
Today’s world climatic patterns have resulted in unrealistic and highly unreliable land
conditions. Periods of extreme heat or lack of rain have led to lands being unfit for cattlegrazing.
Pastoralists practice rotational grazing to ensure that no land is overgrazed and there is enough
food for cattle for survival. This climate-driven mode of land and resource use has led to grazing
lands being dubbed as uninhabited, barren or under-utilized. As a result, the government
confiscates it for alternative uses without concern for the pastoralist way of life on the pretext
that it is ‘no man’s land’. 319
Pastoralists in the country have been deliberating on 50 years of ruthless evictions and economic
impoverishment. Tanzania lacks a pastoral land tenure regime. The government has continued
using the same land laws introduced by the colonial legal systems in land administration. The
316
Article 17.
318
Mung’ong’o Claude and Mwamfupe, Davis (2003) “Poverty and Changing Livelihoods of Migrant Maasai
Pastoralists in Morogoro and Kilosa Districts, Tanzania” Research Report No. 03.5. REPOA.
319
Olengurumwa’ P (2009) 1990s Land Law Reform and Impact on Pastoral Land Tenure: A Paper Presented at the
Consultative Workshop on the Proposed Tanzania Pastoral Week. February 2010-Arusha, page 2.
317
120
lack of legal protection for pastoralist land ownership has led to several major pastoralists and
other land users related land conflicts in Tanzania.
These conflicts have negatively impacted the livelihood of pastoralists in the country which have
led to the loss of land for pastoralists and thus their way of living. The violation of pastoralists’
rights to own property and sustain the pastoralism has resulted in an impoverished and almost
perishing community of pastoralists in the country.
Pastoral areas continue to be viewed as unproductive (wastelands) and government investment is
rarely proportionate to the contribution made by these areas to local and national economies.
Furthermore, the contribution that pastoralists make to the national economies is rarely quantified in
national development statistics. 320
Current development programs and policies such as MKURABITA, 321 Wildlife policies, and
investment policies are centered on the liberalization of land and natural resources, specifically
with a view of putting land and resources into the market place. 322 The culture of grabbing
pastoral lands for private markets is a disease among African countries such countries as Kenya,
Ethiopia, Sudan and Uganda. For instance, one Ethiopian writer stated: 323
The existing policies and legal institutional framework were put in place in 1950s and the tensions
between the state legislations in Sudan and customary land regimes and continual grabbing of land
and displacement of pastoralists was leading for conflicts among pastoralists, commercial farmers,
sedentary farmers and state security forces.
There have been endless land conflicts resulting in the loss of land and lives of pastoralists.
Some of the more memorable land conflicts involving pastoral land include: land conflicts in
Hanang (NAFCO), Loliondo land disputes in Ngorongoro, Kilosa, Simanjiro and Mvomero,
Mkomazi game reserve saga in Kilimanjaro and Ihefu eviction in Mbarali, Mbeya. 324 The
following are the major human rights violations that occurred from pastoralists related land
conflicts in Tanzania:-
320
Sendalo, D (2009 “A Review of Land Tenure Policy Implication on Pastoralism.
in Tanzania”, page 7.See also Olengurumwa, P (2010), Op cit, page 8. See also Kennedy, G (2007) The Impact of
Tanzania New Land laws on the customary Land rights of Pastoralists.
321
Mpango wa Kurasimisha Rasilimali na Biashara za Wanyonge Tanzania (MKURABITA). Mpango ambao
umeanzishwa na Serikali ya Jamhuri ya Muungano wa Tanzania. Mpango huu umeanzishwa kwa lengo la kuwapa
nguvu ya kiuchumi wananchi hasa wale wa kipato cha chini (wanyonge) vijijini na mijini kwa kuwaongezea uwezo
wa kumiliki na kufanya biashara katika mfumo rasmi wa kisasa, unaoendeshwa kwa mujibu wa sheria za kanuni
rasmi za kiutawala.The Property and Business Formalization Program is a community empowering initiative that
aims at facilitating the transformation of property and business entities in the informal sector into legally held and
formally operated entities in the formal sector of the economy.
322
The National Wildlife Policy of 1998, The Wildlife Act of 2009, Ngorongoro Conservation Act of 1959
.Tanzania Investment Promotion Policy and Tanzania Incestment Act of of 1997 etc.
323
Babiker, M (2007) Fighting for Inclusions Conflicts among Pastoralists in Eastern Africa and the Horn, pp 9495.See also Helland, J (2006) Pastoral Land Tenure in Ethiopia.
324
Porokwa Edward - Universal Periodic Review Workshop for Pastoralists in Arusha; February 2011. See also
LHRC (2011) Human Rights Survey of 2011. See also LHRC Tanzania Human Rights Reports from 2005-2010.
121
(a) Human Rights Violations
 Thousands of pastoralists were forcefully evicted from Ihefu, Mbarali and Kilosa
resulting into deaths of old people, women and children and about 100,000 livestocks;

Kisarawe evictions were accompanied by serious human rights violations such as lack of
alternative settlements; extreme fines were imposed to the tune of Tshs. 1 Million per
individual while others had to trek for more than 1,000kms with their livestock; 325
 The Government has continued to condemn the pastoralists as tribal mongers and
destroyers of the environment;
 There have been many reported cases of the police and government officials fabricating
charges against pastoralists as a method of intimidation as well as a means of receiving
bribes from suspects;

Pastoralists lost their properties after government officials and police forces set ablaze
traditional bomas in Loliondo destroying houses and personal properties in 2008; 326

Livestock watering holes were laced with poison by farmers in Chalinze incident,
resulting in the death of a number of animals; 327

Harassment and arbitrary arrest of pastoralist human rights defenders in Mbulu, Yaeda
Chini Mbulu and in Loliondo; 328
 Game wardens and park rangers shot to death hundreds of livestock after they found them
grazing close to national park boundaries in Mikumi and Katavi;
 Maasai families were forced to sell a higher portion of their reproductive cows, further
diminishing their vital pastoral assets while others were evicted from their land in
Ngorongoro to other parts of the district.
(b) Implications of Policies and Laws on Pastoral Livelihoods
The Maasai in Ngorongoro have the right to access land and other resources like other people in
the country. The NCA Act have a provision that prohibits both the right to access, own, use and
transfer land as provided by the Village Land Act No. 5 of 1999. The Ngorongoro Conservation
Area Authority (NCAA) has more power in land management in Ngorongoro Division. This
power is unconstitutional because it curtails the rights of Masaai people living in Ngorongoro, to
own and use land both customarily and according to the new land laws.
Previously under the repealed Wildlife Conservation Act of 1974, the Game Controlled Areas
(GCA) in Loliondo was part of village lands. But with the Wildlife Conservation Act of 2009 that
came into force in June 2010 this has radically changed. The new Act was enacted to justify the
presence of long-lived and unregulated investors on indigenous lands. The law prohibits both
325
PINGO’s Report at www.pingosforum.or.tz
Ibid.
327
Ibid.
328
Op cit.
326
122
agriculture and grazing in GCAs making it virtually the same thing as Game Reserves. It is now
illegal for village lands and GCA to overlap where previously they co-existed, pushing villagers
off their land. The current law requires the Minister of Natural Resources and Tourism to “ensure
that no land falling under the village land is included in the Game Controlled Areas.
Furthermore, the government has opted to take back the village land certificates from the only
two villages which possess village land certificates. These villages are; Ololosokwan village
where Orterlo Business Cooperation (OBC) is partly located and Engaresero Village close to
Lake Natron.
In 2011, a coalition of pastoralists NGOs presented a shadow report during the UPR process in
Geneva, in a bid to make the government responsible for the rights of pastoralists in the country.
The pastoralists urged the government to observe and implement the recommendations of the
UN-Special Rapporteur on the Rights of Indigenous Populations. The coalition also appreciated
the valuable recommendations raised by member states during the UPR assessment on the issue
of free, prior and informed consent on all matters affecting pastoralists and hunter-gatherers. The
coalition recommends the government to adhere to these human rights standards on issues
affecting indigenous people in Tanzania. 329
5.4.2 Ruthless Evictions
In Tanzania, the Land Acquisition Act of 1967 330 provides for the compulsory acquisition of
lands for public purposes. The law legalizes the confiscation of any private property for public or
for investment purposes. Under the Act, if land is taken by government for public or investment
purposes, must compensate to the owners. Furthermore, the law requires the owner to be paid
compensation equal to the market value of the land acquired, plus an additional sum on account
of the compulsory manner of the acquisition. Land acquisition in Tanzania is also governed by
other legislations with diverse objectives such as the Land Act No.4 of 1999, transfer of
categories of land under section 4(7) and 5(7) of the Act, 1999 and section 7(8) of Act No. 4, of
the Wildlife Act of 2008 on hazardous land.
The law on land acquisition jeopardizes private interest for public interest and hence denies an
individual right to own property as provided for in the Constitution of the United Republic of
Tanzania. Experience from the practice reveals that in most cases, objections have been directed
at compensation and not to acquisitions. One such example is the case of Kipawa where residents
had their main objection focused on miscalculations of compensations. On the other hand, the
329
Press Release by the Civil Society Coalition of Pastoralists and Hunter-Gatherers on the UPR UN Human Rights
Mechanisms raises violations of Human Rights for Pastoralists and Hunter-Gatherers. 4th October, 2011 Geneva.
These NGOs included Pastoralist Indigenous NGOs Forum (PINGOs Forum), Tanzania Pastoralists, HunterGatherers Organisation (TAPHGO), International Working Group on Indigenous Affairs (IWGIA), Ujamaa
Community Resource Team (UCRT), Pastoral Women Council (PWC), Association for Law and Advocacy for
Pastoralists (ALAPA), Longido Community Development Organization (LCDO), Tanzania Natural Resources
Forum (TNRF), Ngorongoro NGOs Network (NGONET), Parakuyo Indigenous Community Development
Organization (PAICODEO), Huduma ya Injili na Maendeleo ya Wafugaji (HIMWA), Monduli Pastoralists
Development Organization (MPDO), Simamnjiro Development Organization (SDC TRUST), Community Research
and Development Organization (CORDS), Enyoito Development Organization (MANYOITO), Free Ministry for
Mission to Unreached (FMUCO) Hadzabe Survival Council of Tanzania (HSCT), Loliondo Development
Organization (LADO), Umoja wa Wafugaji Kanda ya Mashariki (UWAKAMA), Umoja wa Wafugaji Mpanda,
Southern Highland Development Organization (SHILDA).
330
Cap 118.
123
situation is different in areas around national parks and protected areas. For instance in or around
national parks like Mkomazi game reserve, Serengeti national park, Ngorongoro Crater and
Kilosa have always seen to resist the entire process of land acquisition. The main reason behind
their rejection lies on the fact that there is no other land that can accommodate their activities.
(a) Nzega Compensation Miscalculations
As stated above, appropriate disbursement of compensation to land owners remained a chronic
problem. This problem was recently came to the knowledge the LHRC in Nzega District,
Tabora, where residents of Mkwajuni hamlet near the Resolute Gold Mine were evicted without
due and prompt compensation. People in Mkwajuni had a decent life through smale-scale mining
activities before their land fell into the hands of foreign investors. Talking to LHRC officers,
Mkwajuni villagers elaborated that they were promised that they would be compensated
according to the law to restore every person to their previous lives, but instead they found
themselves in abject poverty. Mkwajuni hamlet chairperson Shaibu Sudi stressed that;
We used to live within this area as a registered village but we were told to vacate. The former
chairperson and mayor handled all issues and we were told that the village was given Tshs. 15m/- as
compensation. We were told to list our names and submit them to the district on account that we would
be compensated, but to date nothing has come out of it despite the several trips to the district.
(b) Mbarali Land Disputes
Mbarali is a leading district in terms of land related conflicts in Mbeya region. Previously,
Mbarali had rice farms owned by National Agriculture and Food Cooperation (NAFCO) and
National Agricultural Company (NACO). However, these farms were sold to investors without
consultation or involvement of the community. The two farms, Kapunga Rice and Mbarali
Higland Estate are now owned by private investors. The coming of investors in Mbarali
precipitated several land conflicts in the area. Villagers complained that they should have been
consulted before entering into any contract with investors, because the said farms belonged to
them. One villager in Ubaruku ward told LHRC that: 331
Yamebinafsishwa bila kutushirikisha na sasa wananchi tunakodishwa laki moja kwa mwaka na
wanatoa pia kwa ubaguzi...haya mashamba ni mashamba yetu. Mwalimu aliyachukua toka
kwenye ardhi ya kijiji kwa ajili ya kuzalisha mpunga.
[They privatized our farms without involving us and they now lease to us for a hundred thousand
shillings per year. They are also leased discriminatively …. These are our farms. Mwalimu took
them from the village land for rice production.]
The same district has had land conflicts between Tanzania National Park Authority (TANAPA),
farmers and pastoralists. People have been evicted and they were poorly compensated. They
complain that they were evicted to places where there were no pastures, water or other social
services.
Currently, there are more plans to reduce the village land and create more national parks or
reserves. 332 For instance, the land of Luhanga and Mapigiwe wards in Mbarali were merged to
331
332
LHRC (2011) Human Rights Survey of 2011-Mbeya Profie.
Ibid.
124
Ruaha National Park. This exercise violated the rights of villagers to use their land. In this
regard, it is easy to say that the security of land ownership for small-scale farmers and
pastoralists in Mbarali is minimal.
There are instances where due to poor policies and practices, conflicts arises because pastoralists
move to places where there are farmers and this has brought conflicts such as in Kilosa, etc.
(C) Njedengwa Demolition Saga - Dodoma
The LHRC’s Dodoma fact finding mission report indicates that on 22nd October, 2011 SINANA
Enterprises demolished a number of houses at Njedengwa village at Makulu Ward in Dodoma.
The LHRC findings show that the victims of demolition were not trespassers as it was alleged,
but lawful owners of the land. The police used excessive force during the exercise.
Astonishingly, police used live bullets as seen in the photo below;
Used bullets shells used during the exercise
There was no police who was killed during the exercise as it was alleged, save for one who was
injured; no compensation was paid as claimed by the Capital Develeopment Authority (CDA).
One of the victims said that in 1978 there were few people who were compensated and those
were the only people who were within the Prime Ministers’ area. The number of police officers
and Court Brokers ‘commonly known as bouncers’ deployed for that exercise was excessive as
depicted in the photo below:
125
Police and Court Brokers (bouncers) were deployed to implement the eviction
Furthermore, it was observed that Namic Court Broker breached the order of the Dodoma
District Land and Housing Tribunal by demolishing 119 houses contrary to the notice issued
which ordered the demolition of only 26 houses.
These are among the 119 houses demolished said to be Tembes
(d) Meatu Unlawful Evictions
Between 10th and 15th of November, 2011 the Shinyanga Regional Commissioner Mr. Ally
Nassoro Rufunga ordered security officers under his authority to unlawfully evict members of
the indigenous community from their homes in Meatu. The operation engaged a number of
security forces in Shinyanga Region including the field force unit of the police force, internal
security officers, prison officers, immigration officer, militia and traditional security officers.
126
Other security bodies included game scouts from Serengeti National Park (SENAPA), Maswa
Game Reserve, Ngorongoro Conservation Area Authority (NCAA) and Mwiba Holding Co Ltd.
The security forces entered the area recklessly, lobbed teargas canisters towards civilians and
proceeded in setting houses ablaze and tearing them down. The homes belonged to pastoralists,
agro-pastoralists and hunter-gatherers found within Wildlife Management Area (WMA)
boundaries.
Meatu land conflict involves seven (7) registered villages: Mwangudo, Mwabagimu, Jinamo,
Iramba Ndogo, Makao and Mbushi. These villages formed jointly what is known as Makao
Wildlife Management Area. The Makao Wildlife Management Area, like any other WMA, is a
creature of statute formed and regulated under Part V of the Wildlife Act, 2009 read together with
the Wildlife Conservation (Wildlife Management Area) Regulation, 2002. 333
Outcomes for Declaring Makao as WMA:
1. Land management and administration shifted from respective Village Councils to
Authorised Association ‘AA’;
2. Community involvement for conservation of wildlife and environment was initiated;
3. The WMA is run as a business entity parallel to other production systems in the
respective villages;
4. Alienation and eviction of people from the area to pave way for investment in tourism
and wildlife conservation; and
5. Conflict and endless clashes between investors and villagers.
Villagers have been asked to relocate in order to protect certain areas for conservation. Since
2007, villagers living within the WMA have demanded some alternatives to relocate or atleast to
be compensated for their land. The demands have been made to local village authorities but it
has not been affected. Villagers were finally given an eviction notice from the District Council
dated 6th June, 2011. This prompted victims to seek legal aid from the LHRC. The LHRC
assisted the victims to lodge a land application to preserve their rights to the land. The case was
filed as No.19/2011 and 20/2011 for representative suits and injunction in the High Court of
Tanzania in Tabora respectively. The applications were rejected by the court for want of joining
necessary parties. 334
333
Normally, the establishment of a WMA is a process which starts with a consultation with the villagers, followed
by consent and consensus. Where a village(s) agrees to form a WMA then a constitution is made to regulate the
process and a Land Use plan and series of by-laws are created to implement the constitution. Under the constitution,
normally a Community-Based Organization (CBO) is formed and registered to run the Area.
334
LHRC (2011) Meatu Unlawful Eviction Report of 2011.
127
Advocate Shilinde Ngalula (left in glasses) from the LHRC speaks to Jabo Rupia, a displaced Hadzabe living
with Disability at Sungu Sub-village Camp
The LHRC led a human rights observation mission to Meatu after complaints that homes had
been destroyed. The observation recordered that;
• Over 7,000 villagers lost their homes which were burnt;
• A number of livestock was also believed to be destroyed;
• The value of the property that was destroyed is estimated to be worth millions of
shillings, although that has not been quantified yet;
• Destruction of food stocks;
• Internal displacement for Hadzabe at Sungu Sub-village and Iramba Ndogo village –
Meatu; and
• Several people were physically assaulted by the security officers, one being Mr. Jisunge
Mpemba who was shot and lost his leg.
The LHRC advises the government to exercise extra care during establishment of WMA. The
government is further advised to respect the rights of indigenous community found in those areas
intended to be WMA. Furthermore, the LHRC calls upon the State and other stakeholders to
provide humanitarian assistance to victims (homeless) of the unlawful evictions at Makao village
in Meatu.
128
Chapter Six
Rights of Vulnerable Groups
6.0 Introduction
This chapter dwells on the rights of marginalized or vulnerable groups in the society, as they are
sometimes referred to. These groups include children, women, refugees, internally displaced
persons, and elderly persons, persons with disabilities and stateless persons. There have been
serious initiatives to improve the rights and responsibility of vulnerable groups. Some of the
notable achievements with respect to vulnerable groups include the following:
(a)
Land rights now recognise the rights of women to own land which includes ownership
through customary rights of occupancy. 335 The legislations which regulate land matters in
Tanzania are the Land Act, 1999 336 and the Village Land Act, 1999. 337 These provisions
conforms to the precedent set in the case of Bernado Ephraim vs Holario Pastory and
another 338 where the High Court stated that the Haya Customary law on inheritance
discriminates against women and is therefore inconsistent with Article 13(4) of the
Constitution of United Republic of Tanzania, 1977 that bars discrimination; 339
(b)
The Employment and Labour Relations Act, 2004 and the Labour Institutions Act, 2004
prohibit discrimination against women at workplace; 340
(c)
Female representation in decision-making organs has increased compared to 1961. At the
time, there were no women in the Cabinet, but today there are 8 female Ministers and 3
female Deputy Ministers respectively. The then National Council, now known as the
Parliament of the United Republic of Tanzania had only six women in 1961, who
represented the following districts; Rufiji by Bibi Titi Mohamed, Iringa by Lady Marion
Chesham, Tanga Urban by E. Markwalder, Mwanza by B. C Johanson, Arusha S.
Mustafa while as the Special seat was occupied by one Lucy S. Lameck. 341 However, 50
years down the memory lane today we are talking of the 36.4% to 63.6% representation
between women and men respectively in the parliament. 342 Nevertheless, the target is to
attain a 50/50 representation by 2015 as stipulated in the SADC Protocol on Gender and
Development for which Tanzania is a signatory; 343
335
Section 19(1) of the Land Act, 1999 provides for the right of every person to own land.
Act No. 4 of 1999.
337
Act No. 5 of 1999.
338
Civil Appeal No. 7 [1989] High Court of Tanzania at Mwanza (Unreported).
339
340
Read Section 7(1) of the Employment and Labour Relations Act, 2004.
341
The Government of Tanganyika in 1961.
342
343
Article 12 of the SADC Protocol on Gender and Development, 2009 requires member states to make
commitment by 2015 at least 50% of positions in the public and private sectors where decision making is critical
will be held by women.
336
129
(d)
The increase in the net enrollment of girls in schools has accelerated the number of
professional women in Tanzania. Furthermore, it has amplified the emerging of strong
feminist activists who have played a great role to advocate for the rights of women in
Tanzania. For example Dr. Helen Kijo-Bisimba, Justa Mwaituka, Maimuna Kanyamala
Ussu Mallya, Ananilea Nkya, Dr. Asha-Rose Migiro (UN-Deputy General Secretary),
Anne Kilango Malecela, (MP) Magdalena Sakaya (MP) as well as Halima James Mdee
(MP) among others. Notably, the 10th Parliament is led by the first woman speaker in the
history of independent Tanzania and colonial Tanganyika, Hon. Anna Semamba
Makinda;
(e)
The enactment of the Law of the Child Act, 2009 was also a breakthrough to the
promotion and protection of the rights and welfare of the child;
(f)
Enactment of the Persons with Disabilities Act, 2010 344 has been significant development
in protection of the rights of persons with disabilities in Tanzania. The legislation ratified
the Convention on the Rights of Persons with Disabilities, 2008;
(g)
The number of refugees has decreased compared to early 1990s. This shows that peace
and tranquility in great lakes region is restored especially in Rwanda, Burundi and the
Democratic Republic of Congo.
The above achievements on the various vulnerable groups that the country is proud of, is a result
of the long struggle by various key players such as politicians, civil societies, activists and the
government through commitment to improve the livelihood of its citizens.
Perhaps it is wise to note however that marginalized members in Tanzania celebrate the 50 years
of independence amidst serious challenges. Women’s rights have not been attained at high level
as there is still persistence of gender based violence, escalating rate of female genital mutilation
and prevalence of discriminative laws against women such as marital rape and human trafficking
haunting them. Children in our societies are on the other hand victims of domestic cruelty and
torture, especially rape. Worse yet, rights of persons with disabilities are still violated, with the
worst of them all being the killings of Albinos. In short, older people once considered as the
masters of wisdom in the African set up, are now almost forgotten in the community.
6.1 Rights of Women
Throughout histry, women have been victims of torture, disenfranchisement, female genital
mutilation and gender based violence. They are often the most affected group during armed
conflicts and riots, victims of reproductive health complications and in natural calamities. There
have been struggles among courageous women in the past and present to fight for and defend the
rights of women. For example, Susan B. Anthony was arrested in the USA for casting an illegal
vote in the presidential election of 1872. She was convicted and was fined to pay 100 USD yet
she refused to do so. She brought changes in the world as women subsequently started to be
allowed to vote. She once firmly said;
“It shall be my work this evening to prove to you that in thus voting, I not only
committed no crime, but, instead, simply exercised my citizen’s rights, guaranteed
344
Act No. 9 of 2010.
130
to me and all…by the National Constitution, beyond the power of any state to
deny.” 345
Such struggles of courageous women of the world who openly fought for rights of women have
really transformed and inspired the world. No wonder, the world dedicated 1975 as an
International Year of Women and thereafter followed the four UN World Women
Conferences, 346 which were each held during the Decade of the Woman under the motto of
“Equality, Development and Peace.” 347 Out of these struggles, a number of international and
regional legal instruments were adopted such as the UN Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) of 1978.
At the regional level, Tanzania is a party to two legal instruments on the rights of women, the
African Charter on Human and Peoples Rights on the Right of Women in Africa 2003 popularly
known as the Maputo Protocol and the SADC Protocol on Gender and Development, 2009.
The above listed legal instruments are specific for the rights of women, but other pieces of
legislations have more general clauses on the equality of men and women. 348 In Tanzania, there
is commitment to the equality of all human beings under the Constitution. 349 The Constitution of
United Republic of Tanzania, 1977 guarantees the rights of women to take part in politics and in
decision-making bodies of the country. 350
6.1.1 Discriminatory Laws and Contradicting Legislations
Traditionally, the position of a woman in the country has been low compared to men. Tradition
and customs of various tribes illustrate this. For example, it is compulsory for a woman to greet a
man while kneeling down among the Wabena tribe. Thus to date, male dominance over women
has had an impact on legislation. After 50 years of independence there are still in the country
legislations which are discriminatory by nature.
The LHRC has been recommending the following Amendments to the Disriminatory Laws:
The Sexual Offences Special Provision Act, 1998, (SOSPA) has criminalized spousal rape for
legally separated spouses. 351 The criminalization of legal separated spouse rape should also be
extended to marital rape when the parties are still legally married. Currently, it is not against the
law to rape a spouse. According to most Tanzanian cultural and customary practices, women do
not have wider decision-making ability in sexual related decisions.
345
The Big Book of Great Speeches, Maanu Graphics Publishers, page 689.
The first world conference took place in Mexico City, 1975, the second in Copenhagen 1980, the third in 1985
held in Nairobi and the 1995 Beijing Conference.
347
P. Haussler, “Women’s Rights are Human Rights” in Journal of African Law and International Law, Volume 2,
Number 2, 2009 page 140.
348
Article 9(1) of the Universal Declaration of Human Rights, 1948, Article 4 of the International Covenant on Civil
and Political Rights, 1966 and Article 3 of the International Covenant on Economic, Social and Cultural Rights,
1966.
349
Articles 12 and 13(4).
350
Article 66(1) (b).
351
Section 5(2) (a) of the SOSPA reads as follows: “A male person commits the offence of rape if he has sexual
intercourse with a girl or woman under circumstances falling under any of the following descriptions (a) not being
his wife or being his wife who is separated from him without her consent to it at the time of the sexual intercourse”.
346
131
(a) The Penal Code as amended by SOSPA has criminalised female genital
mutilation/cutting to persons below 18 years. 352 There is a need to amend this provision
in order to criminalise the whole act of impunity of female genital cutting as provided
for by Article 5 of the Maputo Protocol. FGM is an inhuman, degrading and cruel
experience for its victims;
(b) The Citizenship Act, 1995, Cap.356 [R.E 2002] is discriminatory to women by its
refusal to allow Tanzanian women to extend citizenship to a spouse who is a foreigner.
A woman does not have the right to pass on citizenship to children while a man is
allowed under these cases if he marries a foreign woman; 353
(c) The Probate and Administration of Estate Act, Cap 352 [R.E 2002] allows for the
implementation of discriminatory laws under s.92 (1). The Act incorporates the
application of the Law of Persons (customary laws) which are discriminatory against
women. Customary laws in Tanzania are still applied in civil matters, including probate
matters. Section 92(1) of this Act states that the Act does not apply where another
primary court has jurisdiction except by order of the Minister. This means that where
customary law applies at the local level to a civil dispute, such as a will or an estate
matter, the Act is inapplicable. The problem with this is that customary laws
traditionally deny widows and girl children (daughters) the right to inherit property.
The Act should therefore be amended to secure the rights of women;
(d) The Customary Law (Declaration) Order, 1963 CAP. 358 [R.E 2002] denies widows
the right to inheritance. There are also other orders that perpetrate domestic violence
that should be amended or repealed; 354
(e) The Criminal Procedure Act 1985 355 and the Magistrates Court Act 356 provides for
court assessors but these laws are silent on the equal representation of women and men;
(f) There is a need to repeal the Customary Declaration Orders, 1963 in order for women
to enjoy the right to own land as provided for in the Land Act, 1999 and the Village
Land Act, 1999;
(g) These laws are still very much in use, despite its failure to allow women to inherit land.
For instance, under the customary law, neither a Chagga nor a Pare woman can ever
inherit land. 357
LHRC believes that the struggles to justice tend to take time and need courage, commitment,
dedication and determination. The LHRC calls upon all feminist activists, politicians in the
country to join forces until equality becomes a reality at all levels. It is also of the view that the
only way these discriminative laws will be struck out tha constitution that guarantees women’s
rights. This constitution will have a proposal provision to repeal all the discriminatory laws.
352
Section 169A of the Penal Code; Cap 16 R.E 2002 of the Laws of Tanzania.
Section 11(1).
354
LHRC (2010) Tanzania Human Rights Report, 2010 page165.
355
Cap 21 R.E 2002 of the Laws of Tanzania.
356
Cap 11 R.E 2002 of the Laws of Tanzania.
357
A. Rutazaa, Research Report on Tanzania women and access to law; the case study of Kilimanjaro, published
by Kilimanjaro Women Information Exchange and Consultancy Organisation, 2005 page 20.
353
132
The experience of the Law of the Child Act, 2009 repealing all provisions and legislations which
curtailed rights of the child, is a lesson of what can be done for women’s rights.
6.1.2 Female Genital Mutilation
Female Genital mutilation is sometimes referred to as female circumcision or female genital
cutting. The preferred term for the purpose of this report is female genital mutilation. The
terminology differences also existed in Kiswahili terms as used in Tanzania. In the past the word
“TOHARA” was used but later the right term became “UKEKETAJI” and sometimes the two
terms are used interchangeably. According to WHO, FGM can be explained as the whole process
whereby the external female genitalia is totally or partially removed or any other injury caused to
the external genitalia 358 organ be it for cultural or any other reasons. 359 Female genital
mutilation is a rather complex social practice. 360
Female genital mutilation may be a global issue, but it is more prevalent in North Eastern Africa
and some countries in West Africa. In East Africa, it is more dominant in Kenya and Tanzania.
The perpetrators of FGM advance the following arguments to support it; that FGM is a symbol
of womanhood to prepare the female child for marriage and prevent the death of a baby during
delivery by touching the clitoris. 361 Secondly, in England and America FGM was performed on
women as a cure for numerous ailments. Lastly, men in Tanzania especially the Nyaturu and
Maasai purport that an uncircumcised woman is likely to be promiscuous and unfaithful to her
husband. 362
FGM is still one of the cultural practices that are still widely practiced in Tanzania.It is one of
the inhuman cultural practices which have been directly and indirectly addressed by a
considerable number of international legal instruments. These include the following: The
Universal Declaration of Human Rights, 1948, UN Declaration on the Elimination of violence
Against Women, 1993, UN Declaration on the Elimination of all forms of Intolerance and
Discrimination Based on Religion or Belief, The UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious or Linguistic Minorities, 1993, Beijing Declaration
and Platform of Action, 1995, The UN Conference on Population and Development, 1994 and
the Vienna Declaration and Program of Action, 1993. The binding international legal
instruments include the International Covenant on Civil and Political Rights, 1966, the
International Covenant on Economic, Social and Cultural Rights, 1966, the United Nations
Conventions on the Rights of the Child, 1989 and the Convention on Elimination of all Forms of
Discrimination Against Women, 1979.
In Africa as a region, FGM is addressed in the African Charter on Human and People’s Rights,
1981, The African Charter on the Rights and Welfare of the Child, 1990 and the Maputo
protocol, 2003.
358
The female external genitalia are composed of the clitoris and clitoral prepuce, the labia majora (large lips of the
vagina) and labia minora (small lips of the vagina).
359
S. Mwaipopo; “The Law and Practice Relating to Female Genital Mutilation in Tanzania” Lund University,
LL.M Dissertation thesis, 2004 page 22.
360
Dorkenooo, E Cutting the Rose: Female Genital Mutilation: The Practice and its Prevention, Minority Rights
Group, London, 1994.
361
S.Mwaipopo; op cit page 27.
362
Ibid.
133
In the Tanzanian penal system, Female Genital Mutilation has been criminalised under the Penal
Code, Cap 16 R.E 2002. However there is a lacunae 363 in this law because only persons below
the age of 18 are affected by this provision. It has been an experience that even people above 18
undergo Female Genital Mutilation. For example, one respondent in Basutoghang Hanang –
district wrote that;
Mimi dada yangu alilazimisha mwenyewe kwenda kukeketwa. Alipata mchumba wa Kinyaturu
wakati yupo masomoni chuo cha ualimu Singida. Alipoenda kutambulishwa kwa wakwe zake
wakamuuliza kama amekeketwa ikaonekana kwamba hajakeketwa. Basi akapewa muda wa
kufanya hivyo la sivyo asingeolewa na huyo mchumba wake. Alirudi nyumbani akalazimisha
kwenda kukeketwa, sasa ameolewa yupo kwa mume wake. 364
[My sister was coerced to undergo the knife because while studying at the teaching college in
Singida, she fell in love with a man from the Kinyaturu tribe. The two were engaged and went
for the introduction to the man’s parents and the future in laws asked her on whether she had
undergone FGM. My sister said she was yet and that is when they gave her time and conditions
that she should undergo it or else she would not marry their son. My sister came back and forced
to be circumcised and is now married and living with her husband.]
6.1.2.1 Prevalence of FGM in 2011
The recent report on Tanzania Health Demographic Survey, 2010 indicates that the prevalence of
FGM in the country has gone down from 18% in similar survey in 1996 to 15% in 2010. The
report went further to elaborate on level of awareness attained to the community on existence of
FGM in the community. According to the survey, Zanzibar had an increased awareness and
knowledge about FGM with a score of 91% compared to 82% on the Tanzania mainland. 365 The
knowledge and awareness level among urban dwellers is higher compared with rural dwellers.
For instance, FGM is more prevalent in the northern and central zones compared with the rest of
the areas.
Drawing advocating for Anti-FGM Campaigns
363
Means a gap in legislation.
LHRC (2011) Manyara Human Rights Profile Report, 2010 page 13.
365
Tanzania Demographic Health Survey, 2010 page 296.
364
134
The top five regions with high prevalence of Female Genital mutilation according to a survey are
herein indicated in the table.
Rank
Region
Prevalence in %
1
Manyara
70.0
2
Dodoma
63.8
3
Arusha
58.6
4
Singida
51.0
5
Mara
39.9
Source: An Extract from the Tanzania Demographic Health Survey Report, 2010
The above findings are echoed by the continued FGM practices which are more often reported in
the media. Incidents of FGM practices in 2011 have been reported mostly in Mara region
specifically Tarime district. Several institutions, NGOs and religious institutions have made
regular intervention in Tarime. For instance in February this year, the LHRC conducted training
to traditional elders, police officers, retired mutilators, colleges as well as primary and secondary
schools’ students in Tarime. The training meant to sensitize them on the effects of the FGM
and to find a way to curb it. LHRC is one of the few organizations which have a documentary
depicting the real situation of FGM in the country following a fact finding mission in December
2010. The videos were taken immediately after the girls had undergone the practice. Notably,
the LHRC coordinates the Anti- FGM Coalition, a network of NGOs fighting against the
practice.
Other organizations which have been in the forefront in the anti FGM crusade are the Christian
Council of Tanzania (CCT) which in June this year made a call to people in Tarime to abandon
the barbaric traditional practices. The head of women and children department at CCT said;
Inasikitisha kuona watoto wa kike wanaendelea kuumizwa kwa kukatwa sehemu zilizowekwa na
Mungu. [It is sad to see girls injured through cutting parts endowed to them by God. 366
In an opinion survey conducted in Manyoni Singida in 2011, it was revealed that the trend of
FGM has changed due to fear of criminal charges by perpetrators and they now have opted to
mutilate children at an infancy stage during the first month after birth. The coordinator of the
Anti-FGM Network (AFNET) in Manyoni conducted a mini research in primary schools and
found out that most students interviewed were unaware of the fact that they were mutilated. She
said;
Watoto wengi wa kike tuliowatembelea kwenye shule hasa za msingi miongoni mwao tulikuta
wamekeketwa. Tulipowauliza walidai kwamba hawajui ni lini walikeketwa na wengine walifirikiri
ndio maumbile yao yalivyo hivyo basi ikapelekea kubaini kwamba hii tabia ya kukeketa watoto
wa kike wakiwa bado wadogo haijaanza leo. 367
366
367
Rhobi Mgendi, “CCT walia na ukeketaji Tarime” Mwananchi, 26th June, 2011.
LHRC (2011) Singida, Manyara, Kilimanjaro and Tanga Survey Report 2011 page 9.
135
[Most of the girls we talked to in primary schools were found to have been mutilated; we asked
them and they all said they did not recall undergoing the knife saying that they assumed that was
how they were born. This made us realise that mutilating toddlers had not begun now but has
been around for sometimes].
Other incidents in the year 2011 were of a man who was arrested in Dar es Salaam after he
conspired to mutilate his one year old daughter in Morogoro. The father is said to have fled to
Dar es Salaam due to fear of being nabbed. 368 He was taken to the Ilala District Court where
charges have been filed against him.
LHRC urges the government through its ministry of health and social welfare to conduct a study
at household level in areas mostly affected by the practice. During opinion survey LHRC found
out that the source of FGM statistics has been only Reproductive and Child Health Clinics
(RCH) alone. 369 However, it is undisputed fact that there are other pregnant mothers who do not
attend RCH at all. Thus in order to fight FGM from the grass root level RCH providers should
work with village executive officers in respective areas. This will reduce mutilation done to
infant children. Failure to do so will make it difficult to curb the emerging trend where FGM is
practiced to infant babies.
6.1.2.2 Effects of FGM
FGM has short and long term effects to the victim. The short term effects include the following:
hemorrhage, damages of arteries and veins which may cause sudden death due to severe
bleeding, excessive blood loss can result in long term anemia, tissue swelling and infections due
to unhygienic conditions during mutilation process and injury to the urethra and adjacent tissues.
The long term effects of FGM include the following: Keloid 370 formation or hardening of the
scar which causes problems at the time of first intercourse or at delivery; Haematocoplos 371 due
to retention of menstrual blood; infertility due to infections causing irreparable damage to the
reproductive organs; problems in pregnancy, childbirth, risk of HIV transmission; and,
psychosexual and psychological problems. 372
LHRC considers FGM as a barbaric cultural practice that has no mercy for the victim. However,
legislations and international legal instruments cannot eradicate this practice alone; but rather
peoples’ mentality on FGM must be changed to end the practice. The government through the
Ministry of Education and Vocational Training should integrate a topic on the effects of FGM in
primary schools in order to rescue the future generation from the practise. The topic should be
well taught especially in affected regions of Mara, Singida, Manyara, Arusha, Tanga, Dodoma
and Kilimanjaro.
368
Sarah Dickson; “Baba Kortini kwa kumkeketa bintiye” Habari Leo, 15th September, 2011.
Ibid.
370
Keloid is a result of an overgrowth of dense fibrous tissue that usually develops after healing a skin. It has a
tendency of recurring on future injuries to the skin.
371
Haematocoplos is a medical condition in which the vagina fills with menstrual blood for long than normal.
372
S.Mwaipopo; op cit page 51.
369
136
6.1.3 Prevalence of Domestic Violence
Domestic violence is any act or attitude that is likely to result in physical, sexual, cultural or
psychological harm or suffering or death, which occurs in the family or community. 373 Principal
domestic violence includes gender-based violence in which a woman is mostly the common
victim. It is a result of the unequal status and power relations between women and men in the
family and society in Tanzania. 374 Studies indicate that domestic violence is associated with
behavioral and psychological difficulties of its perpetrators and those of the victims. These
difficulties are driven by external factors such as social isolation, inadequate communication,
stress, alcohol abuse, drugs and poor self-control. 375
In most African societies, including Tanzania, women are accustomed to accept, tolerate even
rationalize domestic violence. They may remain silent about such experience. For example, there
is a common belief among the Kurya women that if a husband does not batter her, then there is
no love among the two. This shows how this unlawfully practice is accepted in some of the
communities in Tanzania.
Gender-Based Violence (GBV) at the international level is prohibited under Article 4 of the
United Nations Declaration on the Elimination of Violence Against Women, 1993. It calls upon
state parties to condemn gender-based violence irrespective of cultural, custom or religions of the
particular area. Also, the Maputo Protocol, 2003 calls on all African member states to condemn
the gender-based violence. Article 4(1) of the Maputo Protocal states that;
Every woman shall be entitled to respect for her life and the integrity and security of her person.
All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be
prohibited.
The Maputo Protocol has gone further to prohibit marital rape or unwanted sex as a form of
domestic violence. 376
To reduce the prevalence of gender-based violence, SOSPA, 1998 was enacted to make it a
criminal offence. The gender-based violence agenda has also been incorporated in the National
Development Vision 2025, the Women and Gender Development Policy of 2000 and a National
Plan of Action for the Prevention and Eradication of violence Against Women and Children
2001-2015. 377 Also, civil society organizations have contributed extensively in the campaign to
end gender-based violence. For example, the commemoration of 16 days of Activism Against
Gender-Based Violence is normally organised by civil societies. In 2011, the commemoration
message was “Miaka 50 ya Uhuru: Pinga Ukatili wa Kijinsia Kuimarisha Tanzania Huru”.
Literally meaning 50 years of independence, fight GBV to turn freedom into a reality.
6.1.3.1 Prevalence of Gender Based Violence
The Tanzania Demographic and Healthy Survey Report, 2010 captured in detail the prevalence
of gender-based violence. The report categorized the following types of violence:
373
The United Republic of Tanzania (2000): A national Plan of Action for the Prevention and Eradication of
Violence Against Women and Children, 2001-2015 page 1.
374
Ibid.
375
Ibid.
376
Article 4(2) (a).
377
Tanzania Demographic Health Survey Report, 2010 page 267.
137
(a) Physical violence: The report shows that 61% of women in central zone Tanzania mainland
have experienced physical violence, while only 22% in the Northern zone have undergone it.
Women in Zanzibar are the least likely to report that they have ever experienced physical
violence. The prevalence of women who have experienced physical violence is illustrated below
by regions. For the purpose of this report, only the top 5 are listed:
Rank
Region
Prevalence in Percentage
1
Dodoma
70.5
2
Mara
66.4
3
Ruvuma
50.8
4
Morogoro
50.1
5
Kagera
49.4
Source: Extract from Tanzania Demographic Health Survey Report 2010
(b) Sexual violence: In Mara region, the prevalence of sexual violence is very high. Currently,
spouses or partners account for 48.1 % of the perpetrators according to the report. The top five
regions include the following:
Rank
Region
1
Mara
32.5
2
Kigoma
31.9
3
Mbeya
30.8
4
Ruvuma
30.4
5
Rukwa
30.2
(b) Marital violence: Among women aged 15 to 49 who were asked if they have ever
experienced physical abuse perpetrated by the current or former husbands, 17% said they
experienced physical violence while 36% said they experienced emotional violence. Mara
was again in the top 5 regions in this category:
Rank
Region
1
Dodoma
77.7
2
Mara
61.2
3
Rukwa
54.4
138
4
Kagera
54.2
5
Mbeya
51.2
(d) Physical violence against husbands: the Tanzania Demographic Health Survey Report 2010
went further to provide statistics for physical violence perpetrated by women against their
husbands. In this category Unguja South has a high prevalence compared to all regions in
Tanzania.
Rank
Region
1
Unguja South
7.3
2
Dar es Salaam
5.3
3
Mjini Magharibi
5.3
4
Lindi
5.3
5
Iringa
4.7
139
In a mini-research carried out by the LHRC, it was revealed that the most dominant form of
violence was physical violence. From the table above, physical violence accounts for 33.72%
followed closely with property dispossession by 32.56%. Property dispossession especially for
widows and other beneficiaries has become a major challenge in the country. For example
LHRC legal aid clinics at Kinondoni and Arusha have experienced a rapid increase of probate
and matrimonial cases. In 2010 alone LHRC received about 2,360 clients with probate cases and
1,787 matrimonial cases, while as for the year 2011, 1271 clients were received with probate
cases and 1084 clients with matrimonial cases respectively.
LHRC is of the opinion that, property dispossession as one form of Gender Based Violence is on
the increase. It calls upon family members to consider interest of the deceased’s beneficiaries
first before personal interest. Clan elders have a role to play more than law can do for the best
interest of the victims.
The above findings from Tanzania Demographic Health Survey and LHRC mini research echo
the real situation on the ground as incidences of GBV are reported every day. For instance, one
of the LHRC’s monitors in Mara region reported a sad incident of a woman aged 24 who was
seriously injured by her husband to the extent that she was hospitalized.
Sarah Nyamuhanga (24) akiwa kitanda namba 9 wodi ya wanawake huku amelala na mwanae wa
wiki 3 alisema alipigwa huku akiwa amefungwa kamba miguuni na shingoni kuibana na tendegu
la kitanda na hakuweza kujitetea. 378
[Sarah Nyamuhanga (24) with her three months baby from the hospital bed number 9 in the
female ward, testified that she was brutally beaten while her feet and neck were tied towards the
bed sides while sleeping making her helpless.]
This picture depicts Sarah Nyamhanga’s limbs while admitted at Nyerere Hospital.
378
LHRC (2011) Monitors Report – Tarime, 2011.
140
Other reported incidences of gender based violence include the one of Wilfrida Nyakaware in
Tarime. 379 Another incident took place at Namikango village, Lindi where Aisha Phillipo was
strangled to death by her husband as a result of a conflict caused by an income of 90,000/=
proceeds obtained after selling their crops. 380 In another sad incident a woman in Tarime one
Agnes Chacha had both her limbs amputated by her husband. 381
LHRC pleads to everyone in the society to be an agent for change. Society must ensure each one
respects the rights of others by saying no to torture, cruelty and all forms of gender based
violence. LHRC further pleads to all women who are victims of torture to break their silence by
reporting to police stations and any other authorities for intervention.
The government should also take stern measures to GBV perpetrators and also build shelter
homes with counseling services to victims of GBV to enable them recover from the trauma
instead of the current trend where most of them report the incidents at the police only to end up
return to the the very same home a trend which is very risky.
6.1.4 Trafficking in Persons
Trafficking in persons has been refered to as neo-slavery. It is also defined as the recruitment,
harbouring, transportation, provision or obtaining of a person for labour or services, through the
use of force, fraud or coercion for the purpose of subjection to involuntary servitude, peonage,
debt bondage, or slavery. 382 The most common forms of human trafficking include forced
labour, 383 sex trafficking 384 and bonded labour. 385 Trafficking in persons is said to have two
categories: internal and external trafficking. 386
Trafficking in persons is a global concern in need of international attention. 387 There are a
number of anti-trafficking international conventions and declarations. These include the
following;
UN Protocol to Prevent, Suppress and Punish trafficking in Persons, ILO Convention 187,
Elimination of Worst Forms of Child Labour, Optional Protocol to the Convention on the Rights
of the Child on the Sale of Children, Child Prostitution and Child Pornography, 388 Optional
379
Samson Chacha, “Aozea ndani kwa kichapo cha mumewe” Nipashe 10th July, 2011.
Said Hamdan, “Mume amnyonga mkewe wakigombea sh. 90,000/= za ufuta” Nipashe 11th July, 2011.
381
Helena Magabe, “Mwanamke afyekwa miguu, kiganja cha mkono wa kulia”, Majira 19th July, 2011.
382
USA, Department of States, Trafficking in Persons Report, June 2011 page 8.
383
It is also known as involuntary servitude; it is when employers exploit workers who are more vulnerable due to
compelling circumstances such as high rate of unemployment, poverty, discrimination and political instability.
384
It is when women and girls are forced, coerced or deceived into prostitution or maintained in prostitution through
coercion.
385
It is when persons are forced to work in prostitution or any exploitative work through the use of unlawfully
created “debt” purportedly to have been incurred through their transportation or recruitment which exploiters insist
to have incurred, thus they must pay it before they can be free.
386
Refer to Tanzania Human Rights Report (2010) Pgs. 173 – 176.
387
According to the Anti Trafficking Unit Desk of the Criminal Investigation Department (CID) the crime is placed
in third position globally after illicit trade in drug and arms.
388
It was adopted and opened for signature, ratification and accession by General Assembly Resolution
A/RES/54/263 of 25th May, 2000.
380
141
Protocol to the Convention on the Right of the Child in Armed Conflicts, 389 ILO Convention 29,
forced labour, ILO Convention 105, Abolition of forced labour.
In Africa, a regional Anti-trafficking Action Plan was adopted in 2006. This is the Ouagadougou
Action Plan to Combat Trafficking in Human Beings, Especially Women and Children, 2006.
These initiatives have all been adopted by Tanzania through the enactment of the AntiTrafficking in Persons Act, 2008. 390 The initiatives taken by Tanzania to domesticate the
Palermo Convention have made Tanzania to be in Tier 2 group of countries. 391 The tier 2 groups
of countries according to Trafficking in Persons Report, 2011 are those with a high number of
trafficking cases where the government is actively attempting to combat.
6.1.4.1 Prevalence of Trafficking in Persons in Tanzania
According to the USA Department of Trafficking in Persons Report 2011, incidents of internal
trafficking in Tanzania are higher than transnational trafficking. Internal trafficking is usually
facilitated by family members and friends and often occurs due to promises made to the family,
such as education or assistance to a victim. Victims of trafficking in persons in the country are
more often used as domestic workers such as house girls and boys, barmaids, while as some are
engaged in forced prostitution.
The graph below shows the prevalence of human trafficking by regions in Tanzania:
Source: IOM on Database on Direct Assistance
389
Ibid.
Act No. 6 of 2008.
391
USA, Department of States, Trafficking in Persons Report, June 2011 page 24.
390
142
A study conducted by British Broadcasting Corporation (BBC) Swahili in Tanzania in 2011,
revealed that most of the victims of human trafficking in urban settings, are deployed as sex
workers. In the study, Dar es Salaam city was used as a case study whereby various places were
visited and victims interviewed.
The country is not free from external trafficking in persons. In 2011, two cases attracted media
attention: the case of Ms. Elizabeth Andrews Kawogo (appellant) V Secretary of State for the
Home Department (respondent), 392 Ms. Kawogo was trafficked to the United Kingdom. She was
taken to the UK by the Dhanji/Alibhai’s family from her home town in Iringa to assist an
old/sick person though at the end of the day she ended up to be a domestic servant. While in the
UK Ms. Kawogo was tortured and was not paid her monthly salary, she was locked in and had
no place to sleep. At one point, she requested her employer to send her back home to Tanzania
but the request was denied. Her boss said that “She had paid a lot of money for the flight and
visa and that she could not go back for at least a year.” 393 In a presumed process of rescuing
her, Ms. Kawago was taken by another Tanzanian family in the UK, one Ms. Mariam Kilumanga
on a promise that she will be safe. However, she ended up experiencing exploitation as it was
with the previous family.
The second reported incident is of Ms. Mwanahamisi Mruke (47), who was trafficked to London
in 2006. Ms Mruke worked for a Pakistan woman, one Saeeda Khan. The working conditions
were poor as she was not allowed to go out, worked 18 hours a day and ate only 2 slices of bread
without pay. She was quoted by BBC as saying;
I had hoped that I would receive a salary and improve my life. However my dreams were
shattered, I lost my strength and became unwell.
The LHRC urges the State to empower anti-human trafficking institutions so as to curb the
situation and at the same time support/help the victims of human trafficting.
LHRC calls upon the people who aspire to go abroad to find better life opportunities to consider
trafficking in persons as a threat. They should not be motivated by mere promises alone but
should rather investigate on the prospective employer to avoid facing what has been mentioned
above.
6.2 Rights of the Child
One of the significant achievements that the country has attained in the 50 years of independence
with regard to promotion and protection of children’ rights is the enactment of the Law of the
Child Act, 2009. The law was enacted following outcry of civil society and the pressure from
development partners. This law repeals and replaces some of the following repugnant laws:
1
(a) The Law of Marriage Act, Cap 29 [R.E 2002]. The interpretation section has been
amended with a more clear definition of a child. It now reads that a “Child” means a
person under the age of 18 years; 394
392
In the Immigration and Asylum Chamber; Upper Tribunal, Appeal Number AA/16743/2010.
In the Immigration and Asylum Chamber; Upper Tribunal, Appeal Number AA/16743/2010 page 7.
394
Section 162 of the Law of the Child Act, 2009.
393
143
2
(b) The Education Act, Cap 353 [R.E 2002], section 60 is amended by adding sub-section
(k) which protects an impregnated child by criminalizing the act. Sub-section (b) of the
same provision provides for the punishment of any person found guilty of impregnating a
pupil by setting a punishment of 3 years imprisonment and a fine of five hundred
thousand shillings. Section 59A has been added to the Education Act, which clearly
stipulates the obligation of every teacher, trainer and craftsman to report incidences of
child abuse to a responsible social welfare officer in their regions; 395
3
(c) The Employment and Labour Relations Act, 2004 has added a provision that
safeguards the interest of children who are employed. It prohibits discrimination of the
child in employment and prohibits the employer from undertaking any act that would
have a negative impact on the development of the Child under his employment; 396
4
(d) The Penal Code, Cap. 16 [R.E 2002], section 15(4) was added. This provision bars
the jurisdiction of normal courts from determining cases of children under the age of
twelve who are charged with criminal offences. All trials for children under that age will
be heard in the Juvenile Court and the law applicable to be the Law of the Child Act,
2009. 397
5
(e) The Law of the Child Act, No. 21 of 2009 repeals the following laws: 398 the Affiliation
Act, the Adoption Act, the Day Care Centres Act, the Children and Young Persons Act
and the Home (Regulation) Act. The Affiliation Act used to provide for child
maintenance of one hundred shillings per month. However, the Law of the Child Act,
2009 has provided wider discretion to the Court in setting child maintenance according to
the merits of each case.
Tanzania has ratified and domesticated the Convention on the Rights of the Child, 1989 and its
two protocols and the African Charter on the Rights and Welfare of the Child, 1990 (ACHRWC).
Thus, one would say that, there are sufficient legal safeguards to protect the well being and
development of the child. However, the LHRC has recorded a considerable amount of serious
violations of the rights of children. Paradoxically, most of the perpetrators of the incidences of
child abuse are family members, close friends, or neighbours. Children in Tanzania are still
victims of child labour, torture, corporal punishment, rape, denial of a right to survive through
abortions, physical violence, living in institutions with insufficient care, homelessness, heading
households, excessive domestic work, lack of playing grounds in urban areas, drug abuse, forced
prostitution, early marriages and trafficking in persons.
It is the LHRC’s observation that there is a communication gap between children and parents in
the country. Globalization and modernization has made the situation worse. A child living in
Tanzania today has a different lifestyle compared to that of 1961. Children are neither taught the
vernacular language nor are they socialized in the ethnic culture of their families and
communities.
395
Section 169.
Section 172.
397
Section 173.
398
S. 160(1).
396
144
LHRC urges law enforcers to implement what is contained within sections 173 to 192 of the Law
of the Child Act, 2009 when dealing with juvenile delinquency. Furthermore, the LHRC is of the
view that the government of Tanzania should put in place an implementation mechanisim that
shall ensure that policies and laws are fully implemented.
6.2.1 Violations of the Rights of the Child
Violations of children’s rights are increasing daily. The LHRC media survey report 2011
revealed that there were more than 200 incidents of child abuse. For example, Kilimanjaro region
recorded 132 cases of rape from January to June 2011. Other examples can be drawn from the
following table below:
Name of the Victim
Perpetrator(s) Incidence, area and consequence
One Kulwa Daudi (5yrs) and Abel Father
Daudi (4yrs)
The two children were killed in
Kwimba-Mwanza
Eliza Kashilila (1yr) and Doto Kahabi Father
(5yrs)
They were seriously injured by their
biological father in Kwimba-Mwanza
Theophil Evance (10yrs), Ritha Evance Father
(8yrs), Dimino Evance (4yrs) and
Theodory Evance (4yrs)
These innocent children from the same
family were murdered with an axe in
Karatu – Arusha
Riziki Ngwazi
Father
Was killed and buried under a
banana tree in Iringa
A child of 7 months
Mother
She was killed and put into a plastic
bag in Kilimanjaro
2 children in Dar es Salaam
Father
Were killed by their biological father
at Kipunguni area in Dar es Salaam.
Source: LHRC’s media survey 2011
The above table is just a sample of hundreds of similar cases of violence against children in the
country. It is obvious that the national trend on protection and the safety of the child is still a
challenge taking into consideration of the statistics drawn from the Ministry of Home Affairs in
2011; showing criminal offences committed against them.
145
A child who has been abused at the hospital
The statistics show that the number of children who are victims of rape cases and sodomy in
2011 is still very high, despite a slight drop from 6,493 in 2010 to 5,948 in this year. Another
issue of concern is children abandonment and stealing of infant babies, a trend which has taken
toll in recent years as shown in the table below.
Crime
2010
2011
Rape
6,493
5,948
Sodomy/unnatural offence
756
780
Abandoned infants
186
176
Stolen children
109
104
Source: Compiled from the Ministry of Home Affairs 2011 Stastics.
The above findings have also been reflected in the UNICEF report on Violence against Children
in Tanzania. The report highlights incidents of three types of child violence in the country. The
UNICEF report reveals that, 3 children out of 10 females aged 13 to 24 have experienced sexual
violence before reaching the age of 18. 399 For males children of the same age group, 13.4% of
them have experienced sexual violence before attaining 18 years. The report stated that the most
frequent perpetrators of sexual violence against children are neighbours and strangers. According
to the UNICEF report, children are at a high risk of physical abuse in Tanzania. The survey
revealed that three-quarters of both male and female children under 18 have experienced
physical violence. The forms of violence experienced include whipping, corporal punishment,
injuries caused by dangerous weapons, burning and confinement. The report indicates that 60%
of the perpetrators of violence are close relatives and family members. 400
The report went further to provide details of emotional violence such as calling one with horrific
names, bullying and/or threats to abandon. Prevalence of this form of violence to children is at
lower in comparison to the other forms of abuse; nevertheless, it is still an issue. Between 4%
399
400
UNICEF (2011), Violence against Children in Tanzania, Findings from a National Survey, 2009 page 2.
Ibid.
146
and 5% of both males and females were reported to have suffered emotional violence due to fear
of abandonment imposed against them. 401
6.2.2
Rights of the Unborn Child
According policies and laws, the life of a child begins at conception. The Tanzania penal laws
have therefore criminalised abortion. Despite having these laws, the practice of abortion
continues in concealed and often in an unsafe manner.There are health facilities, currently
performing illegal abortions in the country. In early 2011, the bodies of over 10 infants were
discovered buried in a shallow pit near Mwananyamala Hospital in Kinondoni district. The
LHRC calls upon the Ministry of Health and Social Welfare to conduct an investigation and
identify health facilities where abortions are conducted and revoke their licence. There is also a
need to sensitize people on the right to life and how to prevent unwanted pregrnancies instead of
abortions.
Bodies of infants found near Mwananyamala Hospitals in the year 2011
In Tanzania, the law that criminalizes abortion is based largely on moral and religious beliefs
and is justified by examining specific jurisprudence. The first is a court case, of Attorney
General vs. X from Ireland on ensuring that medical assistance to pregnant mothers does not
affect the pregnancy. Ireland also criminalises abortions, except where the life of the mother is at
risk. 402 Another piece of legislation relied on is The UN Declaration on Human Cloning which
401
Ibid.
[1992] IESC 1; [1992] 1 IR 1 (5th March, 1990). The Irish Supreme court interpreted Article 40.3.3 of the
Constitution of Ireland that medication of pregnant mother could be implemented if does not intend to affect the
unborn child.
402
147
was adopted on 3rd March, 2005 by the UN General Assembly, which calls on states to protect
human life.
6.2.3
Child Labour and Economic Hardships
The Minimum Age Convention, 1978 sets 18 years as a minimum age for admission into any type
of employment or work which by its nature is likely to jeopardize the health and morals of young
persons. 403 This convention was ratified by Tanzania on 16th December, 1998. In 1999 the
General Conference of the ILO adopted Convention 182 and the Convention on Worst Forms of
Child Labour. The two Conventions prohibit all forms of child labour and have been reflected in
the Employment and Labour Relations Act, 2004.
It is sometimes difficult to separate between the two aspects of child labour and economic
hardship as many children have no other source of income or care. The country is now faced
with a rapid increase of orphaned children from the HIV/AIDS pandemic. Many orphaned
children lack parental care and institutionalized children are also not taken care that well as do
many children from single parent homes where the parent has to work for long hours.
Children have few options for employment due to lack of skills and training and as such, are
highly vulnerable to working in jobs that involve hard labour. These hard labour positions
include the agricultural sector, mining, timber production fishing and petty business such as
selling fruits on the road side. During an opinion survey conducted by LHRC in 2011, child
labour was seen rampant in almost all the regions of the country. For example, in Makete,
children were found to have been engaging in timber works. Children are working in small
mining quarries in Ruvuma, at Ngembambili and Mkako villages, in the Buhemba gold mine in
Mara and in Ulanga District Morogoro. Children are also involved in uranium exploration in
Bahi and Namtumbo Districts respectively.
6.2.4
Children in Conflict with the Law
Child delinquency is a term used for children who are in conflict with the law. Persons below 18
years can be convicted of the same offences as adults, however the standard for the protection
and promotion of children rights require them to receive special treatment. According to
international conventions, there are agreed principles covering children in regard to the initial
procedures of arrest, interrogations, tendering evidence before courts of law and finally detention
facilities. For example, the African Charter on the Rights and Welfare of the Child provides that:
Every child accused or found guilty of having infringed penal laws shall have the right to special
treatment in a manner consistent with the Child’s sense of dignity and worth and which reinforces
the child’s respect for human rights and fundamental freedoms of others. 404
The Law of the Child Act, 2009 Section 120(1) safeguards children’s rights in conflict with the
law. The Act establishes approved schools or detention facilities for children convicted of an
offence. Under the Law of the Child Act, 2009 a person below the age of 18 is supposed to be
held in special facilities.
403
404
APRM report page 618.
Article 17.
148
The LHRC by the invitation of the Tanganyika Law Society (TLS) visited prisons to examine the
living conditions of inmates. In the prison report of 2011, the LHRC discovered that children are
detained together with adults contrary to the law. Some of these children are remandees while
others are prisoners. Children were mixed with elders in the following prisons: Mahenge,
Pangani, Kasulu, Tarime, Mara, Manyoni and Rwamulumba in Kagera. 405 These children are not
only put into custody but also engage in manual labour similar to adult inmates as one inmate
child in Rwamulumba prison said;
Hili ni gereza la kilimo kwa hiyo muda mwingi tunautumia shambani. Kazi ya kuchuma kahawa
ni ngumu usipotimiza malengo uliyopangiwa kwenye genge lako unapewa adhabu. Sasa inabidi
kufanya kazi hivyo hivyo hata kwenye jua kali kichwa kinauma hauna msaada. 406
[This is a special agriculture designated prison where we spend most of our times in farms.
Harvesting coffee is a very involving task and failing to meet the target set in your group means
facing severe punishment. This means, you just have to work even in the scorching sun. The
situation brings headaches but there is no one to come to your aid].
LHRC suggests that the government should consider building correctional school(s) or centres to
rehabilitate children who are in conflict with the law. The tendency of mixing children and adults
inmates will not rehabilitate the children but instead will tempt them to take part in crime.
Children will learn bad behaviours and criminal techniques while in prisons which defeat the
principles aimed at the best interest of the child.
6.3 Rights of Refugees
Tanzania has been hosting a large number of refugees since her independence. As the country
marks 50 years of independence, it also marks 52 years of hosting refugees. The first group of
refugees to enter the country was in 1959 when a group of Tutsi refugees from Rwanda entered
to Tanzania the then Tanganyika. 407 In 1964, the country received 10,000 refugees from
Mozambique who were members of the FRELIMO party that were fighting the Portuguese
colonial power in their country. However, this group returned to Mozambique after
independence in 1975. 408 There was a massive influx of refugees in Tanzania in the 1990s from
three major political unrests. The first was the assassination of the President elect of Burundi in
1993, Melchior Ndadaye, followed by the Genocide of Rwanda in 1994 and the civil war in the
Democratic Republic of Congo beginning 1998. 409
There are three refugee settlements that have been hosting Burundian refugees since the 1960’s.
These settlements are Ulyankulu in Tabora region, Katumba and Mishamo in Rukwa region. The
Chogo settlement hosts refugees from Somalia (the Bantu – Somali refugees) who fled the civil
405
Special Report on Human Rights Compliance in Prisons in Tanzania Mainland, Special Inquiry Committee of the
Legal Aid Providers in Tanzania Mainland, September 2011 page 30.
406
Ibid.
407
Mendel T. (1999): Refugee Law and Practice in Tanzania: Intelectual Journal of Refugee Law, Vol. 9, No. 1.
Oxford University Press. See also LHRC (2010) Tanzania Human Rights Report, 2010 page 193.
408
Jamhuri ya Muungano wa Tanzania, Wizara ya Mambo ya Ndani ya Nchi (2011): Mafanikio ya Wizara katika
kipindi cha Miaka 50 ya Uhuru (1961-2011), page 13.
409
The Ministry of Home Affairs website
http://www.moha.go.tz/index.php?option=com_content&view=article&id=46&Itemid=14 (visited on 2nd
November, 2011).
149
war in Somalia in the 1960s. The other refugee camps which were established in 1990s are
Nyarugusu, Mtabila, Kanembwa, Katumba and Ngara.
The rights of refugees are governed by several international legal instruments which include the
following: The Convention Relating to the Status of Refugees, 1951, the Protocol Relating to the
Status of Refugees, 1967, the Convention Relating to the Status of Stateless Persons, 1954, the
Convention on the Reduction of Statelessness, 1961 and the United Nations Declaration on
Territorial Asylum, 1967.410
In Africa, refugees’ issues are governed by the Convention Governing the Specific Aspects of
Refugees in Africa, adopted by the Assembly of Heads of States and Government at its sixth
Ordinary Session (Addis Ababa), 1969.
In Tanzania, refugees are coordinated by the Refugees Services Department, established in 1996
under the Ministry of Home Affairs. The national legislation that governs refugees in Tanzania is
the Refugees Act, 1998. 411 The Act defines a refugee and provides the situation when a person
ceases to be a refugee and defines the conditions for disqualification. 412 The definition of a
refugee includes: “one being out of his country, had well founded fear of persecution by various
reasons as to race, ethnic, religion, certain social group, lack of willingness to surrender to the
authority back in the country of origin.” 413
It should be understood that the refugee status is not an automatic right. There is mandatory
procedure to assess whether an asylum seeker qualifies to be a refugee. 414 The law in Tanzania
mandetes the responsible Minister the discretion to issue a Ministerial Order to declare a person
a refugee under section 4(c).
6.3.1
Number of Refugees
The number of refugees in Tanzania has dropped. This is a positive sign towards achieving peace
and tranquility in the great-lakes region, which has been dominated by civil wars for quite a
number of years. Despite relative peace in the region, the situations in the DRC and Burundi
have not been as calm as in Rwanda. In Kigoma, there are only two camps that are currently
hosting refugees: Mtabila and Nyarugusu. The two camps are a home to 100,515 refugees with
the following distribution:
Site
Origin
Population
Mtabila
Burundi
37,694
Mtabila
DRC
48
Mtabila
Other
27
410
United Nations High Commissioner for Refugees –Tanzania, International Instruments Relating to Refugees, 29th
July, 2000.
411
Act No. 9 of 1998.
412
Section 4.
413
Section 4(1) (a).
414
Section 9.
150
Nyarugusu
DRC
61,350
Nyarugusu
Burundi
1,160
Nyarugusu
Other
236
TOTAL
100,515
Source: UNHCR Monthly Statistics, 1st September, 2011
6.3.2
Local Integration Program
The international conventions on refugees prohibit the expulsion or return (non- refoulement) of
a refugee 415 and rather emphasize the voluntary repatriation of refugees to the countries of origin.
Section 34 of The Refugees Act, 1998 also provides for voluntary repatriation. The International
conventions and national laws also allow for local integration programmes for refugees who are
unwilling to return to their countries of origin. 416 One form of integration is naturalisation. The
UNHCR report stated that Tanzania is implementing the following major local integration
programmes;
(a)The government and the UNHCR are working on relocating 162,156 former
Burundian Refugees who have been naturalized to a permanent settlement. The group of
former Burundian citizens came to Tanzania in 1972 and settled in western Tanzania in
Mishamo, Katumba and Ulyankulu. The refugees will be relocated in 16 selected regions
of Tanzania mainland; 417
(b)Process of naturalisation of 22,337 Burundians who settled in Kigoma villages has
been progressing since the verification of their status conducted in 2010; 418
(c)Similarly, at the Chogo settlement in Handeni about 1,423 Somalis were given
permanent citizenship in 2005 and a further 1,551 applications are being processed.
Despite the easing of the refugee situation in recent years, the Refugee Service Department in the
Ministry of Home Affairs is still faced with some challenges. These challenges include:
continuing to host refugees in Tanzania even though there is relative peace in their countries of
origin. These place an extra burden to Tanzania. There is also an issue of environmental
degradation on the sites of old refugee camps. Refugees may have left or are being relocated
from the sites, but the ongoing and previous degradation is a problem that must be addressed.
Refugees also often opt to return to their country of origin through illegal boarders with no
support from refugee agencies that could facilitate voluntary repatriation. 419
415
Article 33(1) of the Convention Relating to the Status of Refugee, 1951 provides that, “No contracting state shall
expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or
political opinion.
416
Section 36 provides for resettlement.
417
UNHCR, Operations in Tanzania, Fact Sheet 1 September, 2011 page 1.
418
Ibid.
419
Jamhuri wa Muungano wa Tanzania, Wizara ya Mambo ya Ndani ya Nchi (2011): Mafanikio ya Wizara katika
kipindi cha Miaka 50 ya Uhuru (1961-2011), July 2011.
151
The LHRC calls for the observance of international principles relating to status of refugees by
the government. Tanzania has made history by hosting a larger number of refugees than any
other country in the world, thus the country deserves to be a haven of peace.
6.3.3
Situation of Stateless Persons
Stateless persons are persons who do not belong to any recognized state. Stateless persons are a
global concern and are protected by the Convention relating to the Status of Stateless Persons,
1954 and the Convention on the Reduction of Statelessness, 1961. One of the weaknesses of the
Refugees Act, 1998 is its silence in regard to stateless persons.
In 2011, the LHRC found the stateless persons as an increasingly important issue in Tanzania
due to their rising number seeking legal assistance. The LHRC attended 23 stateless persons
from DRC who had been denied citizenship in their country of origin. These individuals are now
claiming that they are Tanzanians. However, the Tanzanian government has equally, denied
them any status. The said stateless persons have stayed in Kigoma, Tanzania for many years and
have established permanent settlements. Another group of three Somalis were taken from the
border of Tanzania and Zambia at Tunduma by UNHCR and are now wondering in Dar es
Salaam with no place to go. Moreover, Asylum Access launched its report called “No place
Called Home” 420 which shows the trend of stateless persons in Dar es Salaam.
The LHRC observes that there is a need to amend the Refugees Act, 1998 to accommodate
stateless persons. Since the State is in the process of granting national identity to its citizens, the
issue of stateless persons should be taken into consideration to avoid issuing the same to noncitizens.
6.4 Rights of Indigenous People
The word “indigenous” comes from a Latin word “indigina” which is made up of two words,
namely indi meaning “within” and gen or genere meaning “root”. In other words, the term
“indigenous” means “born in”, or something that comes from the country in which it is found.421
During the colonial era the term “indigenous” in Africa was applied to all people found in the
colonised territories who were not colonisers. 422 The ILO Convention No. 169 defines indigenous
people as:
[t]ribal peoples in independent countries whose social, cultural and economic conditions
distinguish them from other sections of national community and whose status is regulated wholly
423
or partially by their own customs or traditions or by special laws or regulations
Defining who constitutes indigenous people in the African context is a challenge. However, there
are some principles that help discern who qualifies. The first principle is self-identification where
420
Asylum Access at asylumaccess.org/AsylumAccess/wp.../No-Place-Called-Home.Pdf
Barume, A (2010) Land Rights of Indigenous Peoples in Africa, IWGIA Document 115 (Copenhagen: IWGIA,
2010) page 20.
422
Op Cit.
423
Article 1(1)
421
152
some communities identify themselves as indigenous people. For example, in Tanzania the
Maasai, Hadzabe, Barbaig and the Tindiga are concidered as indigenous people. 424
The second principle is minority status of an ethnic group. Indigenous people are those who are
found in various areas implementing social and economic activities jointly within an exclusive
section of society and are very small compared to the rest of the population. For example, the
Hadzabe population in Tanzania has less than 3000 people and is considered an indigenous
group compared to the Chagga whose population is more than 1 million.
The third, principle is that indigenous groups often face historical discrimination by the rest of
the community. It is quite common in normal circumstances within a community to refer to
Maasai or Tindiga as primitive people. This is discrimination as it results into non-involvement
in most of the social-economic activities compared to other groups in the society.
Lastly, the indigenous communities are mostly attached to land for survival. However, presently
Tanzania’s indigenous people have been victims of land conflicts and eviction as a result of the
privatisation of the tourism industry. Since independence, several major land conflicts in
Tanzania have affected the land rights of indigenous people. For example, the members of the
Barbaig community of the Mulbadaw and Gawal villages had their land confiscated to establish
the NAFCO wheat farms in 1970s. 425 Currently, there are ongoing cases such as the aggressive
eviction of members of the Maasai community in Loliondo whose presence on their traditional
land is in conflict with the interests of a private hunting company. The LHRC and PINGOs
forum are currently representing the victims in legal action. 426 These are some of the cases
involving land conflicts where indigenous people are evicted from their ancestral land on the
interest of foreign investors.
6.4.1
Challenges of Indigenous People
Some of the challenges facing indigenous people in Tanzania include the following:
Endless Land Conflicts: The majority of indigenous people in Tanzania are either hunters and
gatherers or pastoralists. As a result, indigenous people rely on land for their livelihood. For
instance, the Maasai are predominantly nomadic pastoralists who depend entirely on fertile land
for their cattle to graze while as the Hadzabe are hunters and gatherers who depend on wild
animals and plants for subsistence. There have been numerous arbitrary evictions by the
government in areas where indigenous people live. One of the examples is the inhumane
evictions of different groups of people in Meatu in 2011.
424
Is articulated in Article 1.2 of the ILO Convention No. 169 and Article 3 of the UN Declaration on the rights of
Indigenous Peoples
425
Read: Mulbadaw Village Council and 67 others vs National Agricultural and Food Corporation (NAFCO), Misc.
Civil Cause No.10 of 1981 in the High Court of Tanzania at Arusha and Yoke Gwaku and 5 others vs National
Agricultural and Food Corporation (NAFCO), Misc Civil Cause No.52 of 1988.
426
LHRC & Others Vs AG & others. Misc. Civil Case No. 15 of 2010 at High Court of Tanzania in Arusha.
153
The Bukundi Ward councilor in Meatu speaks to journalists (not in picture) on the government’s eviction
order in January, 2011
Lack of Legal Protection: there is no legislation that safeguards rights of indigenous as a
minority group in the country. The country has neither recognized any particular group legally as
an indigenous one, nor has it signed international agreements on indigenous peoples. However, it
has never enacted a domestic legislation to protect indigenous rights.
Global Climatic Changes: a recent report on climate change conducted by Pastoralist
Indigenous Non-Governmental Organisation (PINGOs) in Kiteto and Simanjiro indicates that
there is change in climatic condition patterns; here is shortage of rainfall which has led to serious
drought, removal of vegetation cover and rising temperatures. 427 This climatic change has
adversely affected the indigenous communities in Tanzania.
Exclusion from Decision-Making Organs: There have been several occasions whereby
decision-makers have implemented developmental plans without involving the indigenous
communities. Some situations where the government has acted in such a manner include: the
land-use plan in Loliondo, land grabbing in Napilikunya and Ngapapa and involvement on
Hadzabe inhabitant land in the District of Kiteto in the Manyara Region. 428 A Ngorongoro
Member of Parliament Hon. Ole Telele was excluded from being amamber of the Board of
Directors for the Ngorongoro Conservations Authority.
427
PINGOs (2011), The Research on Impact of Climate Change to Pastoralist and hunter-gatherer communities in
Tanzania: A Case study of Simanjiro and Kiteto Districts.
428
The Indigenous World 2011, (Copenhagen IWGIA: 2011) pages 423 -432.
154
The LHRC calls upon the government to ensure that the objectives set by the UN General
Assembly are implemented in the Second International Decade on the World’s Indigenous
People 2005-2015. One of the objectives is the promotion of non-discrimination and the
inclusion of indigenous people in the design, implementation and evaluation of laws, policies,
resources, programmes and projects. 429
6.5 Rights of Persons with Disabilities (PWD)
The rights of persons with disabilities are an important area, especially for developing countries.
430
It is estimated that approximately 650 million persons or 10% of the world’s population live
with disabilities. UN statistics reveal that 80 percent of individuals with disabilities live in
developing countries. 431 However, some States have managed to put in place laws to protect and
promote respect of rights of persons with disabilities.
One of the great achievements in Tanzania regarding the rights of persons with disabilities is the
enactment of the Law of Persons with Disabilities Act, 2010. The law was enacted to safeguard
and promote the rights of persons with disabilities in the country.
The country’s Constitution prohibits any kind of discrimination thereto. The Employment and
Labour Relations Act, 2004 as well prohibits discrimination by providing equal opportunities for
everyone. Thus, persons with disabilities have legal protection as is provided under the laws and
under the National Policy on Disabilities of 2004.
The country has ratified and domesticated several international agreements to protect the rights
of persons with disabilities such as the ILO Convention No. 111 Concerning Discrimination in
Respect of Employment and Occupation 1958 on 26th April, 2002 and the UN Conventions on the
Rights of Persons with Disabilities, 2006 and its Optional Protocol. However, it is yet to ratify
the ILO Convention No. 159, Concerning Vocational, Rehabilitation and Employment (Disabled
Persons) 1983.
6.5.1
The State of Persons with Disabilities in Tanzania
Tanzania is among the countries with a high number of persons with disabilities in Africa. 432
Various studies indicate that there are more than 3 million persons with disabilities in the country
approximately 9% of the population. 433 The challenges facing persons with disabilities in
Tanzania include lack of equal employment opportunities, stigmatization from families and
society at large, inability to gain training or skills, an equal opportunity to education and
improper health facilities. As a result, some of the persons with disabilities have turned into
professional beggars in major cities to earn a living.
429
The United Nations Today; United Nations Publications, Sales No.E.08I.6: New York, 2008 page 205.
The term disability has been defined by section three of the Tanzania Person with Disability Act of 2010 as an
individual limitation or loss of opportunities to take part in the normal life of the community on equal level with
others due to physical, mental or social factors.
431
United Nations (2006), online: http://www.un.org/disabilities/convention/facts.shtml (accessed February 1,
2008). See also the LHRC (2007) Tanzania Human Rights Report/pg 67.
432
ILO, (2011): Fact Sheet, “Inclusion of people with disabilities in the United Republic of Tanzania”, Decent work
for people with disabilities; page 1.
433
Ibid.
430
155
The Ministry of Social Welfare is a government body, responsible for the protection of the rights
of persons with disabilities, though there are other non-state actors involved. One of such actors
is Shirikisho la Vyama vya Watu wenye Ulemavu Tanzania (SHIVYAWATA), an umbrella that
hosts a number of civil society organizations that protect and promote rights of persons with
disabilities in the country. The Ministry of Health and Social Welfare provided vocational
training to 2,690 persons with disabilities in 2011. 434 However, people living with disabilities
still face challenges which hinder their development.
Some of the reasons for serious stigma and non-acceptance in the community by PWDs are
based on certain cultural and traditional beliefs that still persist. Some of these include beliefs
that a person living with a disability in a family is a curse and as a result, people with disabilities
are often abandoned or killed by their parents and relatives to avoid that curse. Witchcraft and
superstitious beliefs are also one of the bad practices which lead to discrimination against people
with disabilities, particularly albinos, as was previously discussed in chapter two.
During an opinion survey, LHRC witnessed some positive developments in areas that
traditionally had a bad record in protecting persons with disabilities. For example, Hanang’
District has a special school for persons with disabilities in Basutoghang. There is also an
increased willingness for parents of children with disabilities to take them to school.
6.6 Rights of Aged Persons
In Tanzania, elderly people are considered as all persons above 60 years of age. The population
of aged people in Tanzania is increasing day after day. It is estimated that the current population
of aged people in Tanzania is around 2.3 million.
Aged persons throughout the world face a variety of challenges; some include discrimination,
lack of access to free medical care, lack of social security protection, targeted violence, social
exclusion and parental care responsibilities when taking care of their grandchildren. 435 In 2010,
the UN established the Open Ended Working Group on ageing to strengthen the protection of
human rights for older people. 436 The percentage of aged people is on the rise especially in
developing countries due to the increase of human life expectancy which extends to 61 years.
The life expectancy in 1950 was only 46 and has grown to 68 today in developing countries; but
it is expected to reach 81 years at the end of this century. 437
6.6.1
Legal Protection of Aged People
International legal instruments provide for the protection and promotion of human rights of aged
persons. The most important of all is the Madrid International plan of Action of Aging 2002. The
country has also ratified The Maputo Protocol, 2003 whereby Article 22 specifically provides for
protection of older women. The Maputo Protocol imposes obligation to member states to “ensure
the rights of elderly women to freedom from violence, including sexual abuse, discrimination
434
Dr. Haji Mponda, the Minister of Health and Social Welfare (2011): Budget Speech 2011/12 by, page 6.
UN-General Assembly, Sixty sixth sessions: Social Development; Follow up of International year of Older
Persons: Second world Assembly on Ageing, page 5.
436
It was established by the UN-General Assembly via Resolution No.65/182 on December, 2010.
437 UN-General Assembly, 66th sessions October 2011: Social Development; Follow up of International year of
Older Persons: Second world Assembly on Ageing, page 3.
435
156
based on age and the right to be treated with dignity”. In the country there is no legislation that
governs rights of aged people however there is The National Aging Policy 2003, which
recognizes rights of aged people as a special group in the society. It defines old age and provides
for responsibility of the government to ensure the aged with basic needs. For example the policy
directs the government to provide free medical care to people aged above who cannot afford to
pay and encourages cost sharing. 438
6.6.2 Lack of Free Medical Care
The National Aging Policy 2003 clause 3.1 provides for directives on how to improve provision
of health services to aged people. The policy establishes the problem encountered in rural areas
in determining age of persons who qualify for free medical care. It puts emphasis on cost sharing
in accessing health care and free care to those who cannot afford to pay for the medical
treatment. However in practice, provision of free medical care has proved failure. For example in
2011, the Ministry of Health and Social Welfare reach only 6,582 aged persons only who are
hosted in 17 centres. 439
LHRC visited the aged person collection centre known as Fungafunga in Morogoro region
during an opinion survey. The aged people at the centre raised their concerns that they feel the
government forgotten them. The centre does not attract aged people to stay because it lacks basic
needs such as medical services. One of the old people in the Centre was quoted as saying;
Kituo chetu wala hakijulikani ndio maana wazee wengi wanaondoka, chakula shida, sabuni za
kufulia hakuna, matibabu mtu ukiugua sio ya uhakika unaweza ukaachwa hata siku tatu bila
matibatu yoyote. 440
[Our centre is unknown thus why most of the elderly leave. Getting food is a problem and there
are no washing soaps, treatment when you fall sick is not guaranteed as you may be left for
three days without cure].
Figure 21: The elderly people at Funga Funga Home Care Centre in Morogoro
438
Clause 3.1 of the National Aging Policy.
Dr. Haji Mponda, (2011); the Minister of Health and Social Welfare, Budget Speech 2011/12, page 6.
440
LHRC (2011) Opinion Survey in Iringa, Morogoro, Mbeya and Pwani Report 2011.
439
157
In Karagwe at Omulushaka town, elders organised themselves in order to have their voices heard
by the President. One of the members of Saidia Wazee Karagwe ‘Help the elderly in Karagwe’
(SAWAKA), one of them informed LHRC that;
Unaambiwa matibabu kwa wazee bure unaenda kwenye dirisha la wazee hakuna kitu chochote
kinachoendelea, unaandikiwa dawa ambazo ni gharama na wala hazipatikani hapo hospitali sasa
utaenda kwenye duka la mtu binafsi atakuelewa? Serikali inabidi kutujali wazee ambao
tumelitumikia taifa hili katika umri wetu huu. 441
[You are told that there are free medical services for the elderly, when you go to the designated
window for the elderly, there are no medications. They prescribe with an expensive dose which is
not there and you are forced to buy at a private owned pharmacy. Do you think they will they
understand you? The government should care for the elderly as we have served this nation up to
this age].
6.6.3 Lack of Universal Pension Scheme
It is estimated by ILO (2008) that about 73% of older people in Tanzania remains economically
active whereby most are engaged in small scale agriculture. The reason for the aged people to
remain economically active is for survive. Thus the introduction of universal pension scheme
will assist older people to have sources of income which will enable them to survive. The
scheme will solve other problems such as access to health care and availability of other social
basic needs. A study conducted in 2010 by the HelpAge Tanzania and the Ministry of Labour
and Employment found out that the introduction of Universal Pension scheme will address a
number of these challenges facing the elderly. 442
6.6.4 Parental Care
Elderly people in Tanzania especially women have become parental guardians of their
grandchildren due to the increase of early pregnancy and the HIV/AIDS pandemic in the
country. HelpAge Tanzania estimates that older people take care of 40% of 2 million Orphans
and Vulnerable children in the country. 443
6.6.5 Vulnerability of Aged people to Witchcraft Killings
Killings of aged people due to witchcraft continued to accelerate from 579 people in 2010 to 642
in 2011. The lake zone regions have continued to lead in killing innocent aged persons accused
of witchcraft. In one of the incidents in Nkasi-Namanyele at Mashete village, a son aged 68
killed his own father aged 98 years accusing him of being a witch. 444
Another incident took place at Igonda village in Sumbawanga whereby mourners killed one
Gervas Katembo (70) accused to have bewitched his nephew Gabriel Katembo (68).
Other incidences reported in the media in this year include: the killings of 10 women in
Misungwi between January-May, 2011; Abdalah Ng’ingo (90 years) in Iringa; Kamunda Shija
441
Tanzania Land Alliances Fact Finding Report in Karagwe District on Land Rights, 2011.
http://www.taknet.or.tz/viewtopics.asp?topic_id=36&topic_status=0&discussions='list’
443
HelpAge: http://www.helpage.org/where-we-work/africa/tanzania/ (visited on 30th November, 2011).
444
Peti Siyame, “Two elderly men died in Rukwa over witchcraft accusations” Daily News, 17th August, 2011.
442
158
(44) in Maswa – Shinyanga; angry villagers killed a husband and wife in Iramba, Singida
accusing them of witchcraft. 445
LHRC calls upon all citizens in general to observe principle of basic human rights. Everyone has
the right to life as guaranteed under the Constitution of the United Republic of Tanzania. 446 In a
country where the rule of law is observed everyone is presumed to be innocent until is proven
guilty by a court of law. 447 Unethical behaviour whereby citizens take law in their own hands is
unacceptable. The State organs; the government and the judiciary, should also ensure that
departments dealing with dispensation of justice execute their duties fairly and justly.
6.6.6 Former EAC Employees Still in Courts Corridors
The former East Africa Community collapsed on 30th of June, 1977 ten years after its formation.
However, its history can be traced back to 1917 during the Custom Union between Kenya and
Uganda. The then Tanganyika joined the Custom Union in 1927 and the unification existed up to
1947. Thereafter 1948 to 1961, it was known as the East African High Commission.
Meanwhile, from 1961 to 1967 it became the East African Common Services Organisation.
Between 1967 to 1977, East African Community existed, which is said to be the cause of the
present day conflict between former employees of the Community and the government on the
other hand.
During the former East African Community that collapsed in 1977, member States namely
Kenya, Uganda and Tanzania jointly carried various activities. For example, some of the
activities operated by member States common air carrier, Harbours Corporation, railways, posts
and telecommunication as well as cargo handling services. After its collapse in 1977 each
country started running its own entity, thus employees began to pursue their terminal benefits.
The remedies for the former East African employees had been pending until 1984 when the
Member States negotiated and signed the Mediation Agreement for the division of Liabilities and
Assets. The East African Mediation Agreement, 1984 among other things had a clause that
required each Member State to explore areas of future cooperation. The implementation of the
aforesaid agreement was to be made enforceable to the country via the East African Community
Mediation Agreement Act, which is now Chapter 322 of the Laws of Tanzania [R.E 200]. One of
the liabilities the former East African Community had to settle was the payments of all terminal
benefits of its employees.
Implementation of the Mediation Agreement particularly in relation to the payments of terminal
benefits in the two founding states (Kenya and Uganda), has been done to greater part save for
the 749 employees in Kenya. 448 As for Tanzania, to date, it is still a problem as its former
employees have for 30 years now been in courts’ corridors with no success. Efforts by the
government of Tanzania to pay the former East African employees begun in 1999 but was
unsuccessful due irregularities such as calculation of their entitlements and the misleading
number of the former employees whose records were unclear.
445
LHRC (2011) Bi-Annual Presentation on the Situation of Human Rights in Tanzania, July 2011 page 19.
Article 14.
447
Article 13(6) (c).
448
Emmanuel Mwakisha Mjawasi and 748 others (Claimant) V. The Attorney General of Republic of Kenya
Reference No. 2 of 2010 the East African Court of Justice at Arusha, First Instance Division.
446
159
Therefore, in May 2003, the employees of the defunct EAC filed a Civil Case no. 95 of 2003,
resulting into consenting judgement in favour of the former employees of East Africa
Community and adduced into the Deed of Settlement, 2005. Thus, since then, the execution of
the deed of settlement has been misunderstood by both parties and different court interpretation
is sought. In the judgement of the High Court of Tanzania Dr. F. Twaib, J dismissed the
application in its entirety with respect to a prayer made that;
The court be pleased to issue to the Decree Holders/Applicants certificate for the amounts
payable to the Decree –Holders/Applicants as particularized in the attached two lists or
otherwise as the Court may find deem fit.
In reaching decision Dr. F. Twaib, J. relied on Clause 3 of the Deed of Settlement which limits
the amount payable under the same to TZS 117,000,000/= for all 31,831 ex-employees of
EAC. 449 It is an undisputable fact that irregularities that led to filing this case were not resolved.
For example most of the former employees in the group coordinated by Mr. Kimaro from Keko’s
office claim that they have not received any payment. This doubt was also ascertained by Dr. F.
Twaib, J. as quoted;
From the foregoing, and on the basis of the material made available to me in this application, there
is no entitlement that remains unpaid by the respondent (with possible exception of pensions for
those with less than ten years service, a matter which cannot be capable of ascertainment at
present)…
LHRC considers that the former employees of East African Community who are now senior
citizens should be paid the amount due to them because they once served this nation. The
exception, for which the court has raised in the ruling, needs to be ascertained as from the
records, as there are several unsettled discrepancies. For example, if one reads the Deed of
Settlement entered between the government and the former employees, will find the following;
HATI YA MAKUBALIANO imewekwa leo tarehe 20 Septemba, 2005 Baina ya Karata Ernest D.O,
Lwebanga Biyengo W, Macha Ambrose P. Milinga Walafried na Kabunga S. Kwa niaba ya
watanzania wengine 10,931…
[A deed of settlement is here by entered on this date, 20th of September 2005 between … Karata
Ernest D.O, Lwebanga Biyengo W, Macha Ambrose P, Milinga Walafried and Kabunga S. on
behalf of other Tanzanians 10,931…] 450
The preamble to the Deed of Settlement recognizs the existence of 31,831 ex-employees and
according to clause 3, it states that ‘payment of 117,000,000/= shall constitute the final
settlement of all claims.’ LHRC finds this unfair for the remaining 20,900 ex-employees to be
bound by Deed of Settlement entered without their prior knowledge and consent.
LHRC continues to argue that this matter should not be dealt with politically, but rather be
determined under the ambit of the laws. The claims of the group are different from example of
the issue of independent candidate which was argued to be political. For this case, it is clear that
449
Karata Ernest & others versus the Attorney General, Civil Case No.95 of 2003 in the High Court of Tanzania
(Dar es Salaam District Registry at Dar es Salaam) Date of Ruling 23/05/2011 page 12.
450
The Deed of Settlement between the government and the representative of the former employees of East African
Community which was signed on 20th September, 2005.
160
then majority of the ex-employees of East African Community have been left out. Dismissing
this application to its entirety is a denial of justice. This is substantiated by the fact that the two
lists of claims were submitted to the court. It was also necessary for the two lists to be dealt with,
in isolation because the claims contained therein were not identical.
161
Chapter Seven
Collective Rights
7.0 Introduction
International human rights are classified into three generations. The first generation of rights
consists of civil and political rights, the second generation of rights is known as economic, social
and cultural rights and the third generations of rights are termed collective rights. 451 The absence
of a universal and unanimously accepted definition of collective rights makes it a dynamic and
flexible category. Therefore, in the African context, collective rights are the rights that protect a
group of people, while individual rights protect the individual.
Some of these collective rights are found in the International documents. The African Charter on
Human and People’s Rights (1981) recognizes the right of all peoples to self-determination,
equality, and the right to existence, the right to development, the right to national and
international peace and the right to safe and clean environment. 452 Another international
instrument which recognizes and demonstrates collective rights include Article 1.2 of the United
Nations Charter which requires States to “develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples.” 453
At the national level, collective rights are recognized and mentioned in the Constitution of
United Republic of Tanzania, 1977. Various provisions of the Constitution recognize the
citizens’ rights to use and enjoy the natural resources of the country even though they are not
enforceable. Citizens have to live in a clean and safe environment and the resources of the
country have to be used for the development of all people.
7.1 Right to development
The African Peer Review Mechanism (APRM) report of 2011 indicates that the current economy
and level of development needs greater attention for the country to meet Millennium
Development Goals. The report further provides that the country has a high poverty rate with
16.5% food poverty and 33.4% basic needs poverty. 454
The right to development is stipulated in several regional and international instruments such as:
The Convention on the Rights of the Child, 1989, (The World Conference on Human Rights) The
Viena Declaration and Program of Action,1993, Program of Action: International Conference
on Population and Development, 1994, African Charter on Human and People's Rights, 1981
including the Protocol to the African Charter on Human and Peoples rights on the Rights of
Women in Africa, The African Charter for Popular Participation in Development, The African
451
Dersso Solomon (2003) Peoples’ Rights under the African Charter on Human and Peoples’ Rights: Much ado
about nothing? LLM Thesis Pretoria South Africa, page 1.
452
See Article 20, Article 19, Article 20, Article 22, Article 23 and Article 24.
453
Article 22, Declaration of the Rights of Peoples” published in Algiers on July 4th, 1976 and Universal
Declaration of Human Rights.
454
APRM Report (2011), page 40.
162
Charter on the Rights and Welfare of the Child, 1990, The Convention on the Elimination of All
Forms of Discrimination against Women, 1979, United Nations Convention on the Rights of
Persons with Disabilities, 2006, and the ILO Convention Concerning the Prohibition and
Immediate Action for the Elimination of the Worst Forms of Child Labour, 2000.
The right to development in Tanzania is not legally protected in the Constitution. Article 9 (1) of
the Constitution provides: “that the use of national resources places emphasis on the
development of the people and in particular is geared towards the eradication of poverty,
ignorance and disease. Much has to be done to expand the scope of the right to development in
the Tanzanian Constitution, the first step being including it in the Bill of Rights.
The enjoyment of other human rights can easily be exercised in line with the promotion of the
right to development. This proposition was also pronounced in the Human Development Report
of 2000. It provides that human rights and development share a common vision and purpose.
Both human rights and development seek to secure the following: 455
The freedom, well-being and dignity of all people everywhere; Freedom from discrimination by
gender, race, ethnicity, national origin or religion; Freedom from want – to enjoy a decent standard of
living; Freedom to develop and realize one’s human potential; Freedom from fear – of threats to
personal security, from torture, arbitrary arrest and other violent acts; Freedom from injustice and
violations of the rule of law; Freedom of thought and speech and to participate in decision-making and
form associations, Freedom for decent work – without exploitation.” Focusing on human freedoms
contrasts with the narrower view of development such as identifying development with the growth of
gross national product or with the rise in personal incomes or with industrialization or with
technological advance, or with social modernization. Growth of GDP or personal incomes can, of
course, be very important as a means to expanding the freedoms enjoyed by members of the society.
456
Amartya Sen elaborates:
Tanzania has formulated and adopted several development programs and policies since her
Independence in 1961. It has adopted the Development Vision 2025 program and subsequent
policies and strategies including the National Poverty Eradication Strategy (NPES), Kilimo
Kwanza Policy and National Strategy for Growth and Reduction of Poverty (NSGRP) commonly
known as MKUKUTA: Sectoral Programmes (PEDP, SEDP); Local Government Reform
Programme (LGRP) and Primary Health Sector Development Programme (PHSDP).
The Tanzania Social Fund –TASAF, has been a very instrumental policy in boosting
development in villages. TASAF provides an opportunity for communities to identify their own
development needs using participatory approaches and the implementation of identified
interventions. TASAF’s funds compliment Local Government Authorities (LGAs) efforts and
stimulate the participation of local communities in planning and executing their development
projects because it directly addresses local identified priority projects. 457 Despite the rampancy
of corruption during its implementation, TASAF is the best development policy aimed at
transforming the lives of the poor in villages.
455
Kumar Shiva (2004) MDGs and the Right to Development: Issues, Constraints and Challenges, page 7.
See Sen (1999) in Kumar Shiva (2004) MDGs and the Right to Development: Issues, Constraints and Challenges,
page 2.
457
456
163
The level of the country and individual development 50 years after independence is still very
low. Tanzania has failed to attain development in various aspects of life such as: the delivery of
social services, infrastructure, employment and revenue collection, the use of natural resources,
power supply, transport sector, environmental protection, investment and economic growth. The
former Vice-President and Prime Minister of the United Republic, Cleopa David Msuya once
said; 458
If Tanzania is to become prosperous on a meaningful and sustainable basis, then the Government must
deliberately invest in key strategic areas such as infrastructure, mining, energy, industries, natural
resources and tourisim...It is a shame to see Rwanda – who came to the aviation business only recently
– are already flying everywhere... We have to look for an alternative way to rectify the situation.
During independence in 1961 the country’s population was 8 million, but currently, it is
projected to be 44 million. The country’s development has to grow congruent with the rate of
population growth. It is unhealthy for the population to increase rapidly while the development is
dragging behind. Mwalimu Julius Nyerere managed to improve transport and transportation
systems in the country during the first five years after independence. Between 1961 and 1975,
there was a lot of developmental progress in the transportation sector, including the construction
of railway lines that connected different zones of the country.
Tanzania had tarmac roads which connected Dar es Salaam, Arusha and Moshi to Namanga. It
built the Tanzania and Zambia Railway (TAZARA) making it the first independent country to
build its own railway. 459 During the first two decades after independence, the country’s
development grew because of high exports and internal production. From 1990s to date, the
country is exporting very little while almost everything is being imported. The market has
witnessed the current economic crisis in the country, along with a high inflation rate and rising
food costs. Former Tanzanian Prime Minister Hon. Msuya elucidated the need for development,
including the need to increase exports:
However – unlike the increase in population – economic growth has in some cases slipped especially in
terms of what the country produces for export. The slip can be measured better by comparing what the
population of eight million was producing vis-à-vis what 43 million Tanzanians are producing today!”
One of the reasons why Tanzania’s economy has being growing slowly during 50 years of independence
is that we are importing more than what we are exporting. This is not good for any country’s
development!” For instance, the country was producing up to 200,000 metric tons of sisal a year in the
past; but, now. Only 30,000 metric tons are produced. Coffee production was 48,000 metric tons in the
460
early 1960s... But, 50 years later, production has only increased to around 56,000 metric tons only .
The LHRC’s surveys found that, the current production in the country is only for subsistence.
Most of the young and productive men and women are involved in neither agriculture nor
pastoralism production, instead they migrate to cities and towns for petty business commonly
known as “machinga business”. For instance, while in Pwani region, LHRC researchers were
informed by old village men that Coconut trees are very old and unproductive because young
men have all fled to the cities; as a result, there is no one to plant for future harvests. This trend
also applies to other long-life crops such as coffee and cashew nuts. This seems to be dangerous
458
Business Time Reporter “Tanzania: 50 Years of Independence Economic development mismatches population
raise “Business Time 22nd July, 2011.
459
Chachage, S (2004): Why is Tanzania Poor Forty years after Independence? University of Dar es Salaam 2004,
page 7.
460
Op cit.
164
to the economy because development of the country to a certain extent is measured by how much
it produces for its own consumption, and how much it exports.461
The standard of living at an individual level is extremely poor. Majority of Tanzanians still live
on less than one dollar per day. A larger part of the population is in slums where as rural dwellers
live in mud and grass-thatched houses.
MKUKUTA is a major poverty reduction strategy introduced in 2005 as the second poverty
reduction program in the country as implementation of the Millennium Development Goal. The
first phase of MKUKUTA I was implemented between 2005 and 2010, it is a development
strategy that was introduced to fast track Development Vision of 2025. MKUKUTA I was
reviewed in 2010. Currently, MKUKUTA II is being implemented. Its evaluation and practical
examples from the field indicates that MKUKUTA I has failed to transform the community. 462 In
June 2011, President Kikwete came up with another development strategy known as the Five
Year Development Plan, 2010 – 2015 instead of rectifying the weaknesses of the MKUKUTA
program. Like MKUKUTA, the Five years Plan will be used as a tool to fast track the
realization of the vision 2025.
The government invests a lot of resources in MKUKUTA as shown in the graph below, but it
also attempts to implement strategies aimed at the same goals. This can be termed as misuse of
national resources. Why should there be multiples of similar development strategies while they
do not seem to change the life of the poor for the better. 463 Below is a graph showing some of the
strategies from 2008-2011:
Source: APRM Report. 464Trend in allocation of funds in MKUKUTA and Non MKUKUTA areas
461
LHRC (2011) Human Rights Survey of 2011-Pwani Profile.
For more facts on the failure of MKUKUTA I See LHRC Report of 2010, pages 23-26.
463
APRM Report (2011), page 465. (Since 1990s there have been a number of core and sector reforms taking place
simultaneously. The core reforms are broadly intended to improve the enabling conditions for better performance
results and accountability in service delivery. A recent evaluation of implementation of the reforms in relation to
supporting the attainment of MKUKUTA goals concluded that the progress has been low in almost all reform. The
slow pace has therefore been a constraint to accelerating socio-economic outcomes.)
464
462
165
7.1.1 Kilimo Kwanza (Green Revolution)
Agriculture is a major contributor to the Tanzanian economic growth and it plays an important
role in poverty reduction. In Tanzania, the majority of people depend on agriculture for their
livelihood. Agricultural productivity in Tanzania has been fluctuating since 1961. According to
the 2011/12 budget speech by the Ministry of Agriculture, Food and Cooperatives agriculture
contributes to national economic growth (Broad based Growth) by employing 77.5.% of the
work force and produces 95% of available food in the country. 465 However, the contribution of
agriculture for the country’s GDP in 2010/2011 decreased from 24.6 in 2009 to 24.1 in 2010.
Cash crops such as coffee, tea, cotton, cashewnuts and sisal account for 85% of export earnings.
Kilimo Kwanza or Green Revolution is President Jakaya Kikwete’s initiative to transform the
agriculture sector. The slogan of Kilimo Kwanza was officially launched in 2009 with the
promise of creating a ‘green revolution’ in Tanzania within the framework of the Agricultural
Sector Development Programme (ASDP) which has been in place since 2005. The Kilimo
Kwanza initiatives are based on the following ten pillars:
1. Kilimo Kwanza Resolution
2. Financing KILIMO KWANZA;
3. Institutional Re-organisation for Management of KILIMO KWANZA:
4. Paradigm Shift to Strategic Framework of KILIMO KWANZA;
5. Land for KILIMO KWANZA
6. Incentives for KILIMO KWANZA
7. Industrialization for KILIMO KWANZA
8. Science, Technology and Human Resources for KILIMO KWANZA
9. Infrastructure Development for KILIMO KWANZA
10. Mobilization of Tanzanians for KILIMO KWANZA
District Agricultural Development Plans (DADPs) are the main sponsors and manager of the
Kilimo kwanza program at the local government level, while the Ministry of Agriculture, Food
and Cooperatives manages and finances Kilimo Kwanza activities at the national level. However,
with all these initiatives and inputs, Kilimo Kwanza has its challenges; as follows:
(a)
Inadequate Personnel
Inadequate number of extension officers in the country makes the implementation of Kilimo
Kwanza program difficult. For instance, according to the Ministry of Agriculture, the country
requires 15,082 extension officers to reach villagers, but as of now the ministry has only 5814
extension officers. 466 This depicts that, Kilimo Kwanza pillar number 7 has not been fully met.
465
Mheshimiwa Profesa Jumanne Abdallah Maghembe (Mb) (2011): Hotuba ya Waziri wa Kilimo, Chakula na
Ushirika, Kuhusu Makadirio ya Mapato na Matumizi ya Fedha ya Wizara ya Kilimo Chakula na Ushirika kwa
Mwaka 2011/2012, page 4.
466
Ibid.
166
The government should therefore work on improving extension services, infrastructure and
market information to help keep down costs of farm production.
(b) Supply of Agriculture Inputs
The Kilimo Kwanza program offers subsidies to farmers such as fertilizer through the National
Agricultural Input Voucher Scheme (NAIVS). One of the major components of the project was
to improve access to critical agricultural inputs through NAIVS. The scheme distributes
vouchers for a 50% subsidy on a package of fertilizers and improved seeds directly the rice and
maize farmers in areas of the country with high potential for farming. Nevertheless, the situation
on the ground shows that the whole process of paying vouchers to farmers is marred by
irregularities and corruption. These findings show that agents of payment vouchers have been
the main source of the problem on the implementation of this program.
The procedure for acquiring fertilizer subsidies requires farmers to contribute 50% of the
required costs, that is 50% of 180,000/=. Practically speaking, this has failed to work because
many farmers live under one dollar per day. The failure of farmers to pay part of the costs of the
payment vouchers has been used as a loophole by greedy agents to collaborate with farmers and
manipulate payment process. From January to December 2011, 30 agents and village officers
were suspended after being found with corruption scandals in Rukwa, Mbeya, Morogoro and
Kibaha.
According to the PCCB Bureau Chief in Ludewa, some village and ward leaders collude with
agencies and cheat by offering Wananchi 20,000/- as a bribe and later on deviate the same to
other places. He observed that: 467
How can one use the payment voucher to demand products for a dead person and deny the rightful
person from it? Using government’s documents to deceive someone is a criminal offence. We will
breathe hard to those behind dubious deals on payment vouchers during the coming farming season.
Another officer from the PCCB in the area emphasized that, there is a tendency of Village
Executive Officer (VEO) to abuse their power where they got into the payment voucher issue
while as the role belonged to the special selected committees at the village. He observed; 468
Not every person is entitled to receive the payment vouchers but at times VEO’s use their positions
and enlist names of the deceased or a child or villagers from other places and end up collecting the
payment vouchers instead. This is contrary to the rules and the regulations.
This was also stated by Minister Jumanne Maghembe when addressing the parliament. The
minister observed:
Katika kuharakisha mapinduzi ya kijani matumizi ya pembejeo na zana bora za kilimo ni muhimu
katika kuongeza uzalishaji na tija. Hata hivyo, matumizi ya pembejeo na zana za kilimo ni madogo
hapa nchini kutokana na sababu mbalimbali hususan gharama kubwa ya pembejeo na zana na hivyo
kufanya mkulima mdogo kushindwa kumudu gharama hizo.
467 Rose Mwalongo, LHRC’s Information officer.
468
Ibid.
167
[While fast-tracking the green revolution, it is wise to use agricultural subsidies and modern
agricultural for good harvests. However, the agricultural implements and subsidies are under-utilized
because majority of small scale farmers can’t afford its cost.]
The returns of the unused agricultural vouchers to the ministry symbolize the exclusion of smallscale farmers who make up the majority of the agricultural sector. The LHRC survey of 2011
shows that in many regions of the country, small-scale farmers have failed to buy vouchers due
to financial constraints. For instance, Tanga region returned to the ministry 65,246 vouchers,
worth Tsh. 1.2 billion. The reasons alluded by regional officers include lack of awareness and
cash for payment.
Wakulima walionyesha kutokuwa na uwezo wa kuchangia kiwango cha shilingi 75,000 hadi 80,000
kwa set moja ya vocha za pembejeo. 469
[Peasants lacked the capacity to contribute Tshs. 75,000 to 80,000 for a single set of vouchers of the
farming implements.]
These problems were further articulated by Minister Maghembe while addressing the
parliament. The minister mentioned the following challenges as the main factors affecting the
supply of agricultural inputs: 470
i.
ii.
iii.
iv.
v.
Kushindwa kukidhi mahitaji ya ruzuku ya pembejeo ambayo ni makubwa kuliko uwezo
wa Serikali ;( Failure to meet the high demand of implements subsidy which is out of
reach for the government.)
Usimamizi hafifu wa ruzuku za pembejeo katika baadhi ya Wilaya, Kata na Vijiji ;( poor
supervision of payment vouchers in some of the districts, wards and villages.)
Uteuzi wa mawakala wa pembejeo wasiokuwa na sifa katika baadhi ya Kamati za
Pembejeo za Wilaya; Appointment of unaqualified agents in some of (the district
agricultural subsidy committees.)
Baadhi ya wakulima kutoelewa umuhimu wa kutumia pembejeo za kilimo; na (“Little
awarenss by peasants on the importance of using agricultural inputs) and;
Baadhi ya wakulima kutoelewa vizuri utaratibu wa ruzuku na hivyo kurubuniwa na
mawakala wa pembejeo ambao hushirikiana na watendaji wa vijiji kuwaibia wakulima.
(Failure by peasants to understand the payment voucher system and thus ending up
conned by VEO’s who steal from them.)
While other regions complain of agricultural inputs being under-utilized, Rukwa Regional
Commissioner blames the Ministry for supplying fewer vouchers. The region received
inadequate vouchers in 2011 farming season, against the projection passed by the Regional
Voucher Committee last year. Rukwa region had received a total of 471,941 vouchers which is
1,519 less, as the government had promised a total of 474,360 vouchers of subsidized agriculture
inputs, including fertilizers and seeds.
469
LHRC (2011) Human Rights Survey 2011, Tanga Profile.
Hotuba ya Waziri wa Kilimo, Chakula na Ushirika, Mheshimiwa Profesa Jumanne Abdallah Maghembe
(Mb) Kuhusu Makadirio ya Mapato na Matumizi ya Fedha ya Wizara ya Kilimo Chakula na Ushirika kwa mwaka
2011/2012, page 29.
470
168
(e) Exclusion of Pastoralists and Small-Scale Farmers
The Kilimo Kwanza program in Tanzania has also failed to include livestock keepers and smallscale farmers in most of its activities. 471 Currently, Tanzania has 18,134,632 heads of cattle
scattered all over the country. 472 One regional veterinary doctor told the LHRC that the pillars of
the Kilimo Kwanza program is mentioned in only few sections on how livestock keepers would
benefit from the program. 473 The World Bank in several international forums in London
articulated the issue of including small scale farmers and livestock keepers as quoted below:
Kilimo Kwanza has come at an opportune time because of what the world is going through
in terms of demand for food and Tanzania has the potential for agricultural success. It has
land, manpower and other resources to make it happen. Just needs to focus on the small
farmer and ignore the difference between cash and food crops; since all can earn cash.
Moreover, it has the support of the World Bank.
Small-scale farmers and pastoralists in the country experience constant evictions from their
residential areas without following due process of the law. Livestock keepers in Tanzania are
neglected in many ways; for instance, this year in March 100,000 pigs died in Mbeya but no
leader took trouble to address the matter. 474
During the 2011 human rights survey, LHRC
interviewed 890 people from different parts of the
country. The basic question on Kilimo Kwanza
was ‘Does farmers benefit out of Kilimo Kwanza
response Policy? As shown in the graph on the
left 67.6% people who answered this question
said farmers do not benefit out of Kilimo Kwanza
program while 32.2 answered positively.
Source: LHRC 2011 Human Rights Survey
The negative response on Kilimo Kwanza Scheme indicates that many farmers particularly small
scale farmers are less informed about Kilimo Kwanza. One interviewee told LHRC that,
Mbolea ya ruzuku, mbegu na dawa n.k huenda kwa wenye kipato huku wakulima wenye kipato kidogo
hupata kidogo sana, hatupati mafunzo wala uhamasishwaji kukatishwa tamaa na vocha za pembejeo pia
kukosa maeneo ya kilimo hivyo hatuoni faida ya kilimo kwanza
[The fertilizer subsidy, seeds and agriculture implements are provided to the well to do people leaving very
little for peasants with low income. We rarely receive training nor are we sensitized. We have been
471
LHRC (2011) Human rights survey of 2011, Mbeya Profile.
Op cit
473
‘Kilimo Kwanza’ First pillar section 2(5.2, 6.1, 7.2)-(7.2.4)-(7.3.1) –(8.1.2) and (9-1).
474
LHRC (2011) Human Rights Survey, Loc cit.
472
169
demoralized by the payment voucher system as well as the little land for farming; Kilimo Kwanza is of no
benefit.]
The LHRC is of the view that Kilimo Kwanza is unlikey to meet its objectives if the small scale
farmers and pastrolists who are the main players in agriculture are not fully empowered. Kilimo
Kwanza should include small-scale farming and pastoralists/livestock keepers for it to succeed as
a policy for transformation. Furthermore, the government needs to intervene to make markets
work better by covering issues of Research and Development.
(d) Poor Infrastructure
The size of the country puts pressure on the demand for development of infrastructure. This is
further complicated by the fact that most of the agricultural communities are found in remote
areas making governing very difficult. Lack of reliable and all weather roads connecting towns
and villages have forced farmers to sell their products at lower price.
The LHRC advises the government to include small-scale farmers and pastoralists in Kilimo
Kwanza initiatives.
Furthermore, for the green revolution to materialize all pillars of Kilimo Kwanza have to be met
including the improvement of the infrasture. The government should find better mechanisms and
enough resources when applying the value chain approach to ensure a whole range of interconnected problems are addressed. If only one problem in the value chain goes unattended, the
intervention will fail because there are so many interlinked factors that influence input use. 475
7.1.2
Food Security
Several policies, institutional and legal reforms have been undertaken by the government of
Tanzania to ensure food security in the country. They are some pieces of legislations enacted
and reformed to ensure food security in the country: The Agricultural Inputs Trust Fund Act,
1999, Plant Protection Act, 1997, The Agricultural Resource Management Legislation), The
Plant Genetic Resource for Food and Agriculture Legislation, The Cooperative Development
Commission Legislation, Cereal and Mixed Crops Regulation, and The Fertilizer Regulations.
Moreover, Tanzania has several programs structured to ensure food security in the country such
as the Food Self-Sufficiency Ratio-SSR, National Food Reserve Agency - NFRA, and the
Strategic Grain Reserve (SGR). Food security exists when all people at all times have access to
sufficient, safe and nutritious food that meets their dietary needs for an active and healthy life. 476
The SGR is used to stabilize food prices and to support poor families in the event of food
crisis. 477
475
For example the incidence of high import prices, inefficiencies in the transportation system, lack of capital for
agro-dealers, lack of adequate skills among farmers, lack of small seed and fertilizer packages that meet farmers
demand, lack of information, lack of markets, and lack of an enabling policy framework.
476
FAO (2010) The State of Food Insecurity in the World: Addressing food insecurity in protracted crises.
477
Ibid., The SGR, through other sectors including agriculture and health, takes appropriate measures to address the
issues of poverty reduction and community empowerment. This includes prevention of low birth weight, improving
child feeding practices, micronutrient supplementation and salt iodations, and capacity building for nutrition
interventions and treatment of chronically malnourished children.
170
7.1.2.1 State of food insecurity in the Country
An evaluation of food security in the country was carried out in May 2010. The study suggested
that the state of food security for 2010 and 2011 would exceed the targeted increase of 1.4
million tons. The availability of food, particularly cereal crops in 2011 failed to meet that target.
The country expected to have 7,200,340 tones but the available cereal crops are 6,786,600 tones.
This means the country has a deficiency of 413,740 tons of cereal crops. 478 In Manyara region
343,683 people were affected by hunger, thus 37,677 tons of foods were required to rescue the
situation. 479 Food prices rose considerably in the country, making life for the majority that live
under one dollar per day difficult. For instance, the LHRC researchers in Manyara region
observed that food prices per kilogram in Manyara were above or equal to one dollar as shown
below: 480
FOOD CROPS PRICES IN MANYARA
S/N Food Category
1
Maize
Available or Within the Outside Lower Price High Pric
not available Region the Region
(Tsh/kg)
e
(Tsh/Kg)
Available
V
V
420
450
Rice
“
V
V
1400
1500
2
Wheat
“
V
V
1200
1600
3
Sorghum
“
V
V
300
540
4
Millet
“
V
V
900
1000
5
Finger Millet
V
V
800
1200
6
Cassava
“
V
1000
2000
7
Sweet Potatoes
“
V
800
1000
8
Irish Potatoes
“
V
V
600
800
9
Banana
“
V
V
1,500
2,500
“
V
V
1,500
2500
10 Beans
Source: LHRC Human Rights Survey 2011
478
Hotuba ya Waziri wa Kilimo, Chakula na Ushirika, Mheshimiwa Profesa Jumanne Abdallah Maghembe
(Mb) Kuhusu Makadirio ya Mapato na Matumizi ya Fedha ya Wizara ya Kilimo Chakula na Ushirika Kwa
Mwaka 2011/2012, page 181.
479
LHRC (2011) Human Rights Report-Manyara Human Rights Profile.
480
Ibid.
171
Other Districts affected by food insecurity include Ngorongoro, Longido, Singida, Igunga and
Iramba. In Iramba district, particularly in Kisiriri Division, the total number of community
members is 10,906 and the affected community members are 6,350; the total number of children
is 4,978 while as the affected children are 3,591. A total of 158 tons of cereal crops were needed
to rescue the situation. This makes the total number of people with food insecurity in Kisiriri,
Iramba District 9,941.
Sugar Shortage
For the last three months of 2011, Tanzania experienced a serious shortage of sugar. The gap
between local production and demand for sugar reached 100,000 tons. This made the price of
sugar to shoot from 1500, per kilogram to 2500-3500, per Kilogram. Prolonged sugar shortage
had major implications in the country’s economy. The cost of living was very high which left
thousands of families victims of hunger and food insecurity. The situation was triggered by
shortage of sugar triggered up the price of other essential commodities. 481
Even though the factories resumed production two weeks ago, the country's sugar deficit is
100,000 tons, since annual consumption is 400,000 tons against local output at 300,000 tons. 482
7.2 Human Rights and Environment
The foundation for linking human rights and environmental protection has its origin in Principle
1 of the Stockholm Declaration of 1972 which declared that; 483
Man has a fundamental right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being.
During the same conference of UN on the human rights and environment it was further declared
that;
Man’s environment, the natural and the man-made, are essential to his well-being and to the
enjoyment of basic human rights--even the right to life itself.
Other international instruments addressed the relationship between human rights and
environment include: the Protocol on Environmental Protection on the Conservation of
Antarctic Fauna and Flora (Madrid, 1991), The Framework Convention on Climate Change
(June 4, 1992), The Framework Convention on Climate Change (June 4, 1992), Protocol to
amend the International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, Protocol to amend the International Convention on
Civil Liability for Oil Pollution Damage (London, November 27, 1992), International
Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or
Desertification, particularly in Africa (Paris, June 17, 1994), The International Convention on
Liability and Compensation for Damage in Connection with the Carriage of Hazardous and
Noxious Substances by Sea (London, May 3, 1996), Cartagena Protocol on Biosafety to the
481
Namnewsnetwork http://www.namnewsnetwork.org/v2/read.php?id=168750 (Accessed on 4th November, 2011).
Tanzania Sugar Board Chairman Castor Raphael Ligalama said, see at
http://www.namnewsnetwork.org/v2/read.php?id=168750.
483
Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment 14-16 January 2002, Geneva:
Background Paper No.1.
482
172
Convention on Biological Diversity (Montreal, January 29, 2000), the Convention on Persistent
Organic Pollutants (Stockholm, May 22, 2001), The African Charter on Human and Peoples’
Rights of 1981, 484 Bamako Convention on the Ban of the Import into Africa and the Control of
Transboundary Movement and Management of Hazardous Wastes Within Africa (1991) 485, and
The Covenant on Economic and Social Cultural Rights (ICESR) of 1966 which obligates state
parties to improve and protect the environment and to regulate industrial pollution. 486
Apart from the Constitution of the United Republic of Tanzania, which also guarantees the right
to clean environment, Tanzania enacted a law to deal with environmental management and
protection in 2004. 487 Section 4 of the Tanzania Environmental Management Act (EMA) states
that,
4 (1) every person has the right to clean, safe and healthy environment.
(2) The right to a clean, safe and healthy environment shall include the right of access by
citizens to various public elements or segments of the environment for recreational,
educational, health, spiritual and economic purposes.
This provision creates a legal right that has always been a challenge to realize. In practice, the
protection of environmental justice in Tanzania in 2011 was tainted by several incidents,
discussed below.
7.2.1 Pollution in Mining Areas
Mining companies in Tanzania perpetuate human rights violations in various ways including
causing environmental pollution, violating the right to life and right to own property.
Environmental injustice is escalating in and around mining centers in most cases because the
areas around the mines are largely inhabited. The close proximity between the mine and
residential areas is scientifically discouraged, because mines frequently cause environmental
pollution.
Several surveys by the LHRC indicate that there are several incidents of environmental pollution
around the Resolute Gold Mine in Nzega, the North Mara Gold Mine and the Geita Gold Mine.
The extracting machines trash the hills for gold and leave the village surrounded by open pits.
The situation is similar to other mining centers where open pits are carelessly left to the
detriment of villagers. For instance, more than 3 people in Nyamongo died after falling into the
pits around North Mara Gold Mine in Tarime.
Around Resolute Gold Mine, about 43 houses close to the mine at Mkwajuni village were
cracked by forces from rock blasting on March 23, 2011; hundreds of villagers had to leave the
village temporarily from the dust being produced during rock blasting. Villagers complained that
they are frequently told to vacate the premises during blasting, causing them humiliation and
distress. 488
484
Article 24 (All peoples shall have the right to a general satisfactory environment favourable to their development).
Addresses the problem of hazardous wastes originating within the Continent of Africa.
486
Article 12(2)(b).
487
Environmental Management Act (EMA) of 2004.
488
LHRC (2011) Nzega, Geita and Loliondo Fact- Finding Mission Report of 2011.
485
173
The LHRC surveys discovered that the most common type of environmental pollution around the
mine is water and air pollution. This is a common phenomenon in almost all the mines in
Tanzania. For instance, in Geita near Geita Gold Mine residents complained that whenever it
rains, the water becomes black due to pollution from the mine. Mkwajuni Villagers around
Resolute Gold Mine complained that they have been regularly coughing and considered the dust
from the mine as the source of their ailment.
Uranium Exploration
(a)
The government of Tanzania is expected to officially commence uranium extraction in 2012 and use of
the ore proceeds for power generation. 489 Mining has in recent years been the fastest growing
industry in the country. Foreign investors have shown great interest in exploring and investing in
uranium minerals. The following are some of the areas that have been licensed for uranium
mining: North and South Matiri; the Kyela-Rungwe licence lies within the Mtwara
Development Corridor; the Ikungu licence was acquired in September 2009 focusing in uranium
exploration in Ikungu Singida district approximately 240 km northwest of Dodoma; Mwitikila
West and East; the Mkuju River Project (50km inside Selous Game Reserve); Mantra resources
in Namtumbo and Bahi; and the Manyoni Project. All these licenses are owned by Edenville
Tanzania, a company in the process of starting uranium exploration in the areas. Currently, there
are more than 25 companies from different countries in the world exploring Uranium in Tanzania
under more than 70 exploration licenses issued by the Ministry of Energy and Minerals. 490
In Tanzania, uranium exploration is conducted by Uranex NL, Omegacorp Ltd, Mantra
Resources Ltd, Japan Oil, Gas and Metal National Corporation, Central Iron Ore Ltd, VIPE
Industries Inc,Peak Resources Ltd, Kilimanjaro Mining Company, Inc, Minergy Company Ltd
(Mauritius),Universal Power Corpo,Tanganyika Uranium Corp, East Africa Resources Ltd,
Globe Metals & Mining Ltd, Atomic Minerals Ltd, Sabre Resources Ltd, Uranium Hunter
Corporation,Trimark Exploration Ltd, IBI Corporation Gambaro Resources, Douglas Lake
Minerals Inc, Canaco Resources Inc, Sub Saharan Resources and Indago Resources Ltd.
(b) Negative Impacts of Uranium Extraction Activities
There are several negative impacts of uranium extraction activities. They include:
(i)
Land Grab
The exploration activity covers large tracts of land in square kilometres. For example, the area
for exploration by Uranex NL comprises of 12,000 square kilometres. With a total number of 25
489
LHRC (2011) A Fact- Finding Mission Report on Uranium Extraction in Bahi, Manyoni and Namtumbo
Districts.
490
www.femapo.org. (Accessed 5th November, 2011.)
174
companies, the land mass for exploration will definitely lead to relocation of people. 491
Communities do not have any beneficial agreements with uranium companies. Neither the
Government at the district level nor the companies give people an opportunity to say what they
need most. A resident in Bahi said there was no need to embark in mining Uranium when the
gold found in other parts had failed to rescue the country from poverty. 492
The way I see it, the coming of uranium exploration will make us poorer as we will be forced to
relocate elsewhere. There are lots of herdsmen in the area where will they go then? Foreigners are the
only ones who have been gaining from our minerals. He said.
(ii)
Environmental Pollution
Uranium extraction is allegedly said to have negative side effects to people living close to the
mining areas. Such environmental pollution happens when the ore is broken up and exposed to
the atmosphere. Grinding, solvents and oxygen increase the mobility of uranium and other
accompanying elements. Furthermore, it is impossible to transfer the ore back its original
condition. 493
The LHRC studies indicate that people living near uranium exploration projects sites fear they
will be subjected to environmental pollution. One respondent said it was sad to see the company
conducting explorations distributing leaflets with only the advantages of mining without raising
any of the concerns of environmental impacts. The respondent doubted their intentions:
We are aware that Uranium has effects to human beings ranging from cancer, kidney problems and many others but
surprisingly the only thing we are told is the economic benefits. He said.
The LHRC findings noted that, people are not fully consulted or well-trained on both advantage
and disadvantages of uranium extraction. The denial to participate and give views on what they
want undermines the principle of good governance. This makes communities consider
themselves as foreigners and their leaders as property owners. In one interview, a villager living
nearby the uranium project in Namtumbo at Mfate village said:
Mantra hawajatupa elimu, wao wametoa elimu tena juu ya faida za uranium Kwa
viongozi wa kata.
[Mantra has not trained us but instead has offered the same to Ward leaders on Uranium
advantages only.]
LHRC’s general observation found out that uranium extraction will have a greater effect to the
environment and human health than any other mining activity in Tanzania. 494 Surprisingly,
without scientific justification, Hon. William Ngeleja, the Minister responsible for Minerals and
Energy, informed the Parliament that uranium does not have negative effects. However, LHRC
491
LHRC (2011) A Fact- Finding Mission Report on Uranium Extraction in Bahi, Manyoni and Namtumbo
Districts, page 12.
492
Ibid.
493
www.femapo.org.Accessed 5th November, 2011
494
LHRC (2011) A Fact- Finding Mission Report on Uranium Extraction in Bahi, Manyoni and
Namtumbo Districts (Uranium can be explained as a hard, dense, malleable, ductile, silver white radioactive.
Uranium metal has very high density.)
175
calls for scientific experiments to be conducted before the extraction of uranium is undertaken in
various areas in the country.
Uranium drilling at Mantra-Mkuju River
Project within Undendeule Forest Reserve
7.3 Corporate Social Responsibility
Corporate social responsibility demands that companies consider the potential negative and
positive implications of their activities on the human rights of stakeholders such as employees,
shareholders, customers and communities, in all aspects of their operations.
Corporate Social Responsibility (CSR) can be defined as the moral responsibility of a corporate
body for the impact of its activities on the environment, consumers, employees, communities and
all other members in the public sphere. 495 CSR focuses on shaping the businesses that promote
the public interest by encouraging community growth and development and voluntarily
eliminating practices that harm public interest. 496
The CSR can as well be referred to as an aspect of best business practice. This is
because companies today face extraordinary levels of scrutiny and rising expectations from their
various stakeholders regarding the way they conduct business. At the regional level, the concept
of CSR is slightly addressed by New Partnership for Africa Development (NEPAD) through the
concept of corporate governance. Among other things, NEPAD endeavors to promote an
enabling environment and effective regulatory framework for economic activity, while ensuring
that corporations act as good corporate citizens with regard to human rights, social responsibility
and environmental sustainability. They also promote the adoption of codes of good business
ethics in achieving the objectives of corporations, ensuring that corporations treat all their
stakeholders (shareholders, employees, communities, suppliers and customers) in a fair and just
manner and providing accountability of corporations. 497 In addition to this, the Head of African
495
LHRC (2010) A booklet on Corporate Social Responsibilities, page 2.
Guide to Corporate Human Rights Impact Assessment Tools, Aim for Human Rights.
497
496
176
States in Abuja 2003 adopted the Commonwealth Codes and Standards for Economic and
Corporate Governance (OECD). 498
The concept of CSR is not given legal recognition by legislations and legal system in Tanzania.
However, there are few institutions such as the Tanzania Bureau of Standards (TBS), Tanzania
Food and Drugs Authority and the Confederation of Industries (CTIA) that have a role to ensure
that Tanzania attains acceptable levels of corporate governance. 499
In 1990’s, Tanzania started experiencing a flow of unregulated foreign companies into the
country. These foreign companies are not given any obligation to maintain social responsible
practices but instead are given a red carpet treatment under the name of investment motivation
and attraction. The situation on the ground reveals that there are frequent infringements of
business ethics, relevant laws and human rights by profit-oriented companies investing in the
country. 500 According to the report on African Peer Review Mechanism (APRM) on Tanzania,
the enforcement of policies, laws and regulations for ideal corporate governance is still weak in
areas such as human rights, application of labour laws and sustainable environmental
management. 501 The corporate practice in the country disregards the adherence to principles of
rule of law and human rights as stipulated in the Constitution of Tanzania, which requires human
rights, be observed by all citizens, including corporations.
LHRC’s surveys indicate that there is a high level of violations resulting from companies’
operations in the country. One of the fundamental objectives of corporate social responsibility is
to respect the laws of the country. However, most companies in Tanzania violate the laws of the
country in lieu of their interests. These violations include environmental injustice resulting from
various corporate activities, such as mining and manufacturing industries; increased land
grabbing conflicts, violations of human labour and consumer rights. 502
The LHRC’s 2000-2010 reports reveal that several people have lost their lives while struggling
to defend their rights to use natural resources around them. About 100 people living around
national parks and mining areas lost their lives when struggling to use resources such as land and
minerals. For instance, in Nyamongo around North Mara Mine in Tarime five people were shot
to death by mine guards and police on 16th May, 2011 and the perpetrators were left unpunished.
Investors are treated as ‘semi-god's’ and embraced by the State when they violate the rights of
people. This is contrary to principles of CSR which require companies to respect human rights
and the laws of the country.
498
Ibid. ( These Codes and standards are listed as: (i) Code of Good Practices on Transparency in Monetary and
Financial Policies; (ii) Principles of Corporate Governance; (iii)International Accounting Standards; (iv)
International Standards on Auditing; (v) Code of Good Practices on Fiscal Transparency; (vi) Core Principles for
Effective Banking Supervision; (vii) Best Practices for Budget Transparency; (viii) Guidelines for Public Debt
Management; (ix) Labour Codes of the International Labour Organization (ILO); and (x) Codes on Industrial and
Environmental Safety and Hygiene of the World. Additionally, included in the NEPAD Framework is the African
Charter on Human and People Right‘s.)
499
APRM Report of 2009, page xvii.
500
LHRC (2010) A booklet on Corporate Social Responsibilities, page 2.
501
Ibid.
502
Ibid, page 5.
177
Moreover, the LHRC surveys discovered that there have been many complaints from the
communities living around the mines in Tanzania. Heavy mining machines have been planted in
mining centers and produce noise, water and air pollution. As a result, villagers living around the
mine cough regularly while others use water affected by chemicals from the industries. For
instance, the LHRC findings indicate that many people living around Geita Gold Mine at
Nyakabale village have been affected after using contaminated water released from the mine. 503
CSR also requires that companies produce some benefit to the surrounding community, to return
part of their profit to the local people in various forms such as by offering basic services like
water, road construction, building schools or health centres. Practically, the situation from the
ground reveals that the community leaving in or around invested areas lives in abject poverty.
7.4 Consumers’ Rights
A consumer or buyer can be defined as someone, who buys, uses, maintains and disposes of
products or services. Therefore, consumer rights can be termed as the rights of people who use or
buy products and/or services. To understand clearly the concept of consumer rights one has to
examine internationally recognized basic consumer rights such as: the right to safety: protection
from hazardous goods; the right to be informed: availability of information required for weighing
alternatives, and protection from false and misleading claims in advertising and labeling
practices; the right to choose: availability of competing goods and services that offer alternatives
in terms of price, quality, service and the right to be heard: assurance that government will take
full recognition of the concerns of consumers and will act with sympathy and undertake simple
and expeditious administrative procedures. 504
The UN General Assembly adopted the UN Guidelines for Consumer Protection on 9th April,
1985 in a bid to streamline the situation facing consumers in the world. The guidelines seek to
take into account the interests and needs of consumers in all countries, particularly those in
developing countries and to recognize that consumers often face imbalances in economic terms,
educational levels and bargaining power. 505
The Fair Competition Act of 2003 506 calls for the protection and promotion of competition and
the protection of consumers against misleading and deceptive conduct, unfair business practices,
implied conditions in consumer contracts, manufacturers’ obligations, product safety and
mandatory product information.
Another piece of legislation that controls products and services is The Tanzania Food, Drugs and
Cosmetics Act 507 after the Pharmaceuticals and Poisons Act was repealed. 508 This Act
establishes the Tanzania Food and Drugs Authority (TFDA) which regulates and controls the
quality, safety and effectiveness of food, drugs, herbal drugs, cosmetics and medical devices.
503
LHRC (2011) Nzega, Geita and Loliondo Fact-Finding Mission Report..
www.businessdictionary.com Accessed on 2nd February, 2011. See also United Nations Guidelines For
Consumer Protection (As Expanded In 1999).
505
United Nations Guidelines for Consumer Protection (As Expanded in 1999 ), Clause I.
506
Act No 8 of 2003, Came into force in 2004 and started effective implementation in 2007.
507
Act No. 1 of 2003.
508
No. 9 of 1978.
504
178
Despite these regulations, counterfeit products in Tanzania are believed to be more than 40% of
all goods in the market. 509 This depicts that the legal regime in the country is very weak in
regulating and controling the supply of goods and products. For instance, the problem of
counterfeit products have grown to an extent that it is a threat to the welfare and wellbeing of the
people. Tanzania’s markets have lots of counterfeit products from other countries such as
electronic materials, drugs, cars and foods.
The TFDA seized more than five types of fake drugs on the market including counterfeit malaria
drugs (Artemeter+Lumefantrine) and pain killers such as Ibuprofen and Erythromycin. The
TFDA Director said these drugs were found from more than 390 health facilities. 510
In another incident, two children, Nasma Maulid (1) and Omar Juma (2) who were residents of
Morogoro, were severely burnt when fake light bulbs exploded and fell on their living room
mattress. An officer from Tanzania Electric Supply Company Limited (TANESCO) insisted that
the increase of fake electronic equipment in the country has reached an intolerable magnitude.
The TANESCO officer stated: 511
Huenda chanzo cha ajali hiyo kikawa tatizo la bidhaa feki kama nyaya za umeme na balbu. ...
katika kipindi hiki cha mwaka huu, kumekuwa na bidhaa nyingi za umeme feki zilizoingia nchini
bila utaratibu hali ambayo imechangia kwa kiasi kikubwa kutokea kwa matukio ya nyumba
kuungua moto.
[The accident might have been caused by counterfeit products such as wires and bulbs. This year,
there has been an influx of counterfeit products in the country which enter through dubious routes.
This has increased incidents of burning of houses.]
The lack of specific legislation for the protection of consumer rights in Tanzania is a major
reason for the increase of counterfeit and fake products in the market. Tanzania has had the
opportunity to learn from Kenya which recently enacted substantive laws on consumer
protection. The laws on consumer welfare are entirely new in the Kenyan context as there was no
previous legislation that dealt specifically with consumer protection.
The legislation in Kenya went further to entrench consumer rights in their new constitution.
Article 46 of the Kenya Constitution provides that consumers have a right to goods and services
of reasonable quality, the information necessary for them to gain full benefit from goods and
services, the protection of their health, safety and economic interests and compensation for loss
or injury arising from defects in goods or services.
The LHRC advises the goverment to come up with policies and laws on consumer protection.
Since the country is currently undergoing major constitutional review, the LHRC urges all
stakeholders to campaign for the inclusion of consumer rights in the coming new constitution.
7.5 A Glimpse on the Right to Access Natural Resources
Natural resources are naturally occurring features or characteristics of the environment. Natural
resources often have significant commercial value. Such examples include oil, gas reserves,
water, forests, wildlife and mountains. Access to natural resources is broadly defined here as the
509
Bernad Kihiyo, Director Tanzania Consumer Society.
Owden Kyambile “Dawa feki... magari feki... fedha feki... kura feki... kwanini?” Nipashe, 2th October, 2011
511
http://www.bongo5.com/index.php?option=com_content&task=view&id=3604&lang=en. Accessed on 3rd
March, 2011.
510
179
processes by which people, individually or collectively are able to use natural resources, whether
on a temporary or permanent basis. These processes include participation in both formal and
informal markets; resource access through kinship and social networks, including the
transmission of resource rights through inheritance and within families; and resource allocation
by the state and other authorities with control over natural resources. 512
The international community came up with several instruments to ensure the enjoyment of the
right to natural resources. These instruments include The Convention on the Conservation of
Nature and Natural Resources of 1968, which requires member states to take necessary measures
to ensure the conservation and development of flora and fauna natural resources for the best
interest of its people. 513 Another instrument is The African Charter on Human and Peoples
Rights of 1981 (The African Charter). 514 The African Charter requires states to eliminate all
forms of foreign economic exploitation so that individuals are able to fully benefit from the
natural resources of their State.
Furthermore, the Constitution of United Republic of Tanzania of 1977 provides that national
resources shall be used for the development of people and in particular used for the eradication
of poverty, ignorance and diseases. 515 Tanzania is endowed with variety of natural resources
found almost in every angle of the country, including minerals, water sources, land, forests,
wildlife, gas, mountains and other attractive sites forming a stock of major resources.
In reality, the country has failed to utilize its resources for the development of its people 50 years
after independence. The facts from the ground candidly depict that there is a plunder of the
country’s natural resources and gross human rights violations. Over 70% of the population living
on less than one dollar per day, still depends on agriculture and natural resources for their daily
needs. This is a clear demonstration that the country has failed to use the abundance of natural
resources to transform the lives of its people.
The government of Tanzania has failed to provide sound management of natural resources in the
country. That is to say, Tanzania has failed to improve accountability, transparency, local
empowerment in natural resource management, sound management of natural resources and
public engagement.
Tanzania is good work of God intended for all her people. He gave it to us so that we will have
abundant life in it. The richness thereof and all in it, the resources underneath, the resources on the earth
and people living in it are in God’s plan for the joy and prosperity of each Tanzanian. God wants us to
live our lives to the fullest. 516
Tanzania has dramatically failed to control and manage its natural resources for development of
its people despite having good development programs on paper, such as MKUKUTA and Kilimo
Kwanza. For instance, MKUKUTA recognizes that; “Sound economic governance of natural
512
Cotula L, Djiré, M & Tenga, W (2008) The Right to Food and Access to Natural Resources Using Human Rights
Arguments and Mechanisms to Improve Resource Access for the Rural Poor; FAO-Rome Italy 2008, page 10.
513
Article 2. (Adopted by the heads of state and governments of the Organization of African Unity (OAU) in Algiers
on 15thSeptember, 1968).
514
The right to exercise sovereignty over natural resources was reinforced.
515
Article 9.
516
BAKWATA, CCT & TEC in Tundu, L. & Curtis (2008) How Tanzania is failing to Benefit from Gold Mine,
page 6.
180
resources is critical for poverty reduction, not only for the communities in the locality, but also
for the whole nation. The poor depend significantly on the environment and natural resources for
the basic needs and livelihoods.’ 517 However, the country has been unable to practice this
principle. This sub-chapter highlights the main areas where the country has not lived up to its
expectations such as the mining industries, tourism and wildlife industry.
7.5.1
Mining Industry: The Lost Golden Opportunity
Tanzania is endowed with a variety of mineral resources, natural gas deposits and some oil
traces. The country’s available minerals include Tanzanite, gold, diamonds and various
gemstones. There are also large proven reserves of uranium and natural gas in Tanzania.
After the liberalization of the Tanzanian economy and the emerging era of globalization and
privatization, Tanzania’s mining industry experienced many changes, including new policies and
laws put in place to attract foreign investment, the underlying objective being to promote the
large-scale extraction of the country’s mineral reserves. 518 Since 1990, more than 50
multinational companies and 250 local companies have acquired mineral rights in Tanzania. 519
The major mines in Tanzania include: the Bulyanhulu gold mine in Kahama; the Buzwagi gold
mine in Kahama, the North Mara Gold Mine in Tarime; the Geita Gold mine in Geita; the
Golden Pride Mine in Nzega Resolute Gold Mine and the Buhemba Gold mine in Musoma.
Other mines include the Kiwira Coal mine at the border of Rungwe-Kyela and Ileje districts; the
Liganga iron ore project in Ludewa district; the Mwadui Diamond Mine in Kishapu, the El Hilal
minerals and diamond mine in Kishapu; the Tanzania One mine and the Kilimanjaro mine in
Mirerani; small gold miners in Rwamgasa; diamond miners in Maganzo and the Songo songo
gas and uranium mines in Namtumbo, Manyoni, Babati and Bahi. 520
The mining industry in Tanzania experienced critical challenges after 1990’s. The major
challenges facing mining industry in Tanzania include failure to improve the lives of small-scale
miners, non creation of sound employment opportunities for local Tanzanians, failure to
transform the lives of the people, failure to increase its income capital and control human rights
violations in mining areas. LHRC urges the government to put in place an implementation
mechanisim to rectify the current situation.
Contribution to Country’s Economy
Various studies provide that in the 1990’s, exports of the country’s traditional products, such as
tea, coffee, tobacco, cotton and cashews were relatively equal to that of gold,; because of the
world gold’s market ten years later, gold exports outweighed agricultural exports. As of today
gold has quickly overtaken agricultural products and become Tanzania’s largest export. 521
517
Ministry of Finance and Economic Affairs (2010) National Strategy for Economic Growth and Reduction of
Poverty (NSEGRP) II page 21.
518
Society of International Development (2009) The Extractive Resource Industry in Tanzania: Status and
Challenges of the Mining Industry: Heinrich Böll Foundation Regional Office for East & Horn of Africa, page 4.
519
Adam Smith International (2011) Tanzania Extractive Industries Transparency Initiative Validation Report of
2011, page 1.
520
521
http://barrickbeyondborders.com/2011/03/mining-in-tanzania/. Accessed on 5th November, 2011
181
However, the troubling question is who reaps from that export? Obviously the beneficiaries are
investors and not the country.
Furthermore, between 1990 and 2011, more than 20 mineral prospects of gold, nickel, and
uranium have also been developed to various stages of exploration. This has tripled the country’s
annual gold production from less than one ton per annum in 1998 to about 50 tons to date,
making Tanzania the third largest gold producer in Africa making the mining industry the second
fastest growing sector of Tanzania’s economy after tourism. 522
The mining sector’s contribution to the economy is scant when compared with what is actually
reaped from the sector by foreign investors. Despite the increase in mining production, its share
in both GDP and government revenue has remained relatively small. Tanzania’s economy
currently depends heavily on agriculture, which accounts for more than 60% of GDP. Until 2009
the extractive sector comprised of 3.4% of GDP.
Comparatively, many other countries that enjoy similar mineral endowment have managed to
transform their minerals into economic prosperity for the nation and their population. These
countries include; Republic of South Africa, Ghana and Botswana. For instance, Botswana has
managed to transform itself from one of the poorest countries in the world at independence in
1966, to a middle income country with a per capita GDP of USD 13,300 in 2008. Mining
accounts for over 70 % of Botswana’s foreign earnings and 34.2 % of its GDP. 523
(b) Small-scale Miners and Employment
Before 1990’s there were fewer foreign investors who employed largely small-scale miners in
Tanzania. During this period, Tanzanians were freely accessing the mining areas and enjoyed
the right to access natural resources. Today, the extractive sector employs 1% of wage earners,
between 400-600,000 small-scale miners. At least 13,000 are directly employed in the
formalized aspect of the sector. Experience from the mining industry shows that many of the
better jobs are held by foreigners, who receive well-paid salaries accompanied by security of
work. On the other hand, majority of Tanzanians working with mining industry are casual
workers, employed without contract of employment, no security of employment, underpaid,
overworked and subjected to constant human rights violations. 524
The rights of small scale-miners are not protected properly by the legal regime. Both the repealed
and the new Mining Act of 2010 lack clear provisions for small-scale miners and gemstone
mining. The new Act omitted primary prospecting licenses, making it unlawful for locals to
search and explore minerals. The government argued that small-scale miners do exploration and
mining simultaneously and so omitted the primary prospecting licenses from the final Act. 525
LHRC’s findings show that in most cases small-scale miners lose their rights to extract minerals
when their land is approached by foreign investors. This has been an outcry for many years now
with vivid examples from North Mara Gold Mine in Tarime and Geita Gold Mine in Geita.
522
Adam Smith International (2011), Supra.
LHRC (2010) Tanzania Human Right Report of 2010, page 193.
524
See Chapter five of this report –sub chapter on the labour rights in mining industry
525
Olan’g Silas (2010) “Tanzania Passes a New Mining Law and Builds Capacity for Informed Policy Debate”
Revenue Watch Institute Tanzania Program Coordinator at www.revenuewatch.org.
523
182
(C) Challenges of People Living Around Mining Areas
The LHRC conducted several studies at The North Mara Gold Mine in Tarime, The Geita Gold
Mine in Geita and at The Resolute Gold Mine in Nzega and found that people living around the
mines face a number of challenges. These challenges include but not limited to violation of rights
to access natural resources, environmental pollution, lack of social services, forced evictions,
violation of employment rights, unnecessary arrests and even violence causing injuries and
deaths carried out by security guards for the mining companies. 526
In Tanzania legislations are enacted to attract investors at the expense of her people. The
legislative and legal regimes around the mining sector seem to compete more towards
encouraging foreign investment than promoting and safeguarding the interests of Tanzanians.
The legal regime in Tanzania cannot enforce the implementation of principles of corporate social
responsibility (CSR).
If companies are legally forced to observe and adhere to principles of CSR, then communities’
living conditions around the mines would be better.
The mining sector has failed to transform the country fifty years after independence mainly due
to: lack of transparence in the sector, a weak legal regime, low royalties paid by foreign
companies, 527 failure to include principles of CSR in national laws, corruption and exclusion of
artisanal miners.
Consequently, foreign investors have used these loopholes, including weak legislation, lack of
local experts in mineral extraction, lack of experts in contract negotiations and disloyalty among
political leaders to enrich themselves and leave Tanzanians with empty pits.
LHRC advises the Government to reform laws concerning mining sectors and implement them in
order to secure the rights of small scale miners and corporate social responsibility.
526
LHRC (2011) Nzega, Geita and Loliondo Fact- Finding Mission Report of 2011, See also LHRC (2011) A FactFinding Mission Report on Uranium Extraction in Bahi, Manyoni and Namtumbo Districts, See also LHRC( 2011)
The Price of Gold in Tarime:The shooting of Five-A Fact- Finding Mission Report, See also APRM Report of
2011,page 110.
527
Section 87(1) of the new mining law increased the rate of royalty paid on the gross value of minerals produced
under a mining license at the rate of: (a) Uranium 5 %, (b) Gemstones and diamonds -5 %, (c) Metallic minerals 4
%, (d) Gemstones - 1 %. The law also requires the government to own a stake in future mining projects. The royalty
rates for minerals in this law are not sufficient for promoting the economic development of the country.
183
Chapter Eight
Domestic Initiatives in Human Rights Protection
8.0 Introduction
States have an obligation under international human rights law to take every possible measure to
promote and protect human rights at the national level. The implementation of human rights at
the national level is best accomplished if the preliminary stages of ratification and domestication
of international human rights instruments have been fulfilled. Tanzania as a State has to undergo
several stages before any international instrument becomes part of its domestic laws. However,
the process of human rights protection and promotion at national level cannot be completed
without sound and independent enforcement mechanisms.
In Tanzania, domestic mechanisms involve several remedial bodies with statutory power to
protect and promote human rights in the country. These remedial bodies include: the police,
prisons, judiciary and other human rights institutions such as, the Commission for Human Rights
and Good Governance (CHRAGG); and the Prevention and Combating of Corruption Bureau
(PCCB). The state of human rights in Tanzania depends much on the strength of these bodies
entrusted to safeguard the rights of people in the country. This chapter evaluates the strength of
these bodies in human rights protection.
8.1 Tanzania Commission for Human Rights and Good Governance (CHRAGG)
The Commission for Human Rights and Good Governance (CHRAGG) is an independent
government department, established as a national focal point institution for the promotion and
protection of human rights and duties as well as good governance in Tanzania. CHRAGG was
established under Article 129(1) of the Constitution of the United Republic of Tanzania of 1977
as amended by Act No. 3 of 2000. The Commission became operational on the 1st of July, 2001
after the coming into force of the Commission of the Human Rights and Good Governance Act
No. 7 of 2001 as amended by Act No. 16 of 2001 and Government Notice No. 311 of June 8th,
2001. 528 The Commission was initially only operating on the Mainland due to constitutional and
legal issues, but now it has extended its mandate to Zanzibar. It has established an office in
Unguja and is in the process of establishing one in Pemba. 529
The key international instruments which advocates for the establishment of national human
rights commissions include the Africa Charter on Human and People’s Rights (ACPHR) of 1981,
which requires member States to adopt legislative and other measures to ensure that the rights,
duties and freedoms as protected by the ACPHR are realized and upheld. The Vienna
Declaration and Program of Action of 1993 and the Paris Principles Relating to the Status of
528
529
Commision for Human Rights and Good Governance http://chragg.go.tz. (Accessed on 7th November, 2011.)
184
National Institutions of 1993 (Paris Principles), both provide internationally recognized
framework for the national human rights institutions. 530 This section assesses the Tanzania
Commision for Human Rights and Good Governance on its adherence to the standards set by the
Paris Principles, as well as the implementation of its statutory functions as shown below. 531 The
following are the main functions of the CHRAGG;
(a) To promote within the country the protection and the preservation of all human rights and the duties to the
society in accordance with the Constitution and the laws of the land;
(b) To receive allegations and complaints in the violation of human rights;
(c) To conduct enquiries into matters involving the violation of human rights and the contravention of the
principles of administrative justice;
(d) To conduct research into human rights, administrative justice and good governance issues and to educate
the public about such necessary, to institute the proceedings in court designed to terminate activities
involving the violation of human rights or redress the right(s) so violated, or the contravention of the
principles administrative justice;
(e) To visit prisons and places of detention or related facilities with a view to assessing and inspecting
conditions of the persons held in such places and making recommendations to redress existing problems in
accordance with the provisions of the Act;
(f) To advise the government and other public organs and private sector institutions on specific issues relating
to human rights and administrative justice;
(g) To make recommendations relating to any existing or proposed law or administrative provisions to ensure
compliance with human rights norms and standards and with the principles of good governance;
(h) To promote the ratification and accession to treaties or conventions on human right, to which the country is
a party as well as monitor compliance with international human rights standards;
(i) To co-operate with international and regional and other national agencies and institutions competent in the
areas of protection and promotion of human rights and administrative justice;
8.1.1 CHRAGG and the Paris Principles
To be compliant with domestic and international standards, the CHRAGG must adhere to the
Paris Principles and the Act that established it, the Tanzania Human Rights and Good
Governance Act of 2001. The Paris principles were set by the UN General Assembly in 1993 to
establish minimum standards for the establishment, creation and formation of the organizations
in order for their functions to be meaningful while the domestic legislation sets out the mandate
530
The Paris Principles of 1993 are sets of core minimum recommendations Adopted by the United Nations General
Assembly relating to the status and functioning of national institutions for the protection and promotion of human
rights.
531
According to the Paris Principles, such mechanisms must follow these standards: Independent from the
Government, with such independence guaranteed either by statutory law or constitutional provisions; Comprise a
broad mandate capable of collectively promoting, protecting and monitoring the implementation of human rights
instruments through various means, including the ability to make recommendations and proposals concerning
existing and proposed laws and policies; vested with adequate powers of investigation, with the capacity to hear
complaints and transmit them to the competent authorities; characterized by regular and effective functioning;
Adequately funded and not subject to financial control, which might affect their independence; and Accessible to the
general public and, in the context of the Convention, particularly to persons with disabilities, including women and
children with disabilities, and their representative organizations.
185
and structure of the organization. The two documents also serve as domestic legislations which
specifically mandate CHRAGG to apply international standards. “CHRAGG shall make
recommendations relating to any existing or proposed or administrative provisions to ensure
compliance with human rights norms, standards and the principles of good governance”. Below
is a discussion of whether CHRAGG is adhering to the principles set out in both documents.
(c) Independence of the Commission
The Paris Principles require that national human rights institutions are independent from the
government, with independence guaranteed either by statutory law or constitutional provisions.
In this aspect, the Tanzania CHRAGG is not statutorily independent as it is limited by statutory
and constitutional provisions. In the Constitution, Article 130(3) gives the President significant
power over CHRAGG. According to the Article, the President can give directions, orders or can
even sto the CHRAGG from intertaining any matter, if the s/he is satisfied that it is in the public
interest to do so. Furthermore, Article 6 of the Tanzania Human Rights and Good Governance
Act of 2001 which establishes CHRAGG 532 prohibits the Commission from investigating the
President. Therefore, both the Constitution and the legislation establishing CHRAGG are
contrary to the Paris Principles.
(d) Power to Make Binding Recommendations
The Paris Principles state that national human rights bodies should also have the ability to make
recommendations that are binding and this principle is echoed in the national legislation. The
Tanzania Human Rights and Good Governance Act of 2001 stipulates that the decisions of the
Commission “shall have status of recommendation to the appropriate authority or person having
control over the person in respect of whose act or conduct- an investigation has been carried
out.” 533 Statutorily, the recommendations of CHRAGG are binding. Section 28(2) and (3) of the
Act requires Commission recommendations to be implemented within three days. Failing to do
that, the Commission may initiate judicial proceedings before the courts of law to enforce its
recommendations and proposals. This requirement has never been fully met.
In most cases, the CHRAGG recommendations are ignored and not fully implemented by the
state. Investigations that do take place often lengthen the entire process hence delay justice. This
was observed in Nyamuma case, 534 when the Attorney General told the CHRAGG that the
government had investigated the issues claimed by the CHRAGG and found it to be based on
fabricated evidence. 535 This was used as a ground for disregarding the recommendations made.
The Commission then invoked the provisions of section 28 (3) of the Act and recommended the
Legal and Human Rights Centre to go to the High Court. 536 The LHRC successfully appealed to
532
Tanzania Human Rights and Good Governance Act of 2001, No. 7.
Article 17(1).
534
In a big chunk of the village was taken to make the Ikorongo Game reserve. On October 8th 2001, an
announcement was broadcasted through loudspeakers saying villagers residing at the Remaining Nyamuma should
vacate the area by October 12th, 2001 in the same year and on the same day, they were forceful evicted and their
properties were set on fire. Legal and Human Rights Centre and the 135 villagers who had suffered from the ordeal
filed a complaint with the Commission against the first respondent the District Commissioner of Serengeti District
and the second respondent who was the District Police Commander officially known as Officer Commanding
District (OCD).
535
LHRC (2006) “The Human Calamity of Evictions at Nyamuma Serengeti “March 2006 page 5.
536
LHRC; Tanzania Human Rights Reports (2009 & 2010).
533
186
the Court of Appeal, which ordered the matter be referred to the High Court, before another
judge to be considered on merit. 537
Failure to act up on the recommendations of CHRAGG does not only infringe international
principles but also the provisions of the Constitution of the United Republic of Tanzania Act
establishing CHRAGG.
(e) Accessible to the General Public
The Paris Principles require national human rights bodies to be accessible to the general public,
and particularly to vulnerable groups such as persons with disabilities, women, children and their
representative organizations. This principle has never been attained in Tanzania for many
reasons including the lack of regional CHRAGG offices or focal persons at the grassroots level.
The Tanzania Human Rights and Good Governance Act of 2001 provides that, for the purpose of
better performing its functions, the Commission may, where necessary, establish branch offices
away from its headquarters in such geographical areas deemed necessary. 538 In practice,
CHRAGG has only three sub-offices in Lindi, Mwanza and Unguja. The lack of sub-offices in
other regions curtails the rights to access the Commission. Many victims in rural areas do not
lodge their complaints to the CHRAGG because they cannot afford travel expenses.
Another reason that undermines public access to CHRAGG is the lack of sufficient human
resources. For almost six months, from December 2010 to June 2011 CHRAGG had only one
commissioner. Commissioners are the engines of the CHRAGG and are required to hear
complaints and make recommendations; without them the Commission cannot function.
Furthermore, most people in Tanzania, particularly those living in rural areas, are unaware of
CHRAGG and its functions, let alone the complaint procedure.
The LHRC advises the CHRAGG to make itself accessible to the general public particularly to
persons with disabilities, women, children, indigenous communities, as well as their
representative organizations by opening up branches in every district of the country. The LHRC
reminds CHRAGG to invest in programs addressing issues of good governance and
accountability because it is part of its duties and functions. Having established sub-offices in
each district, CHRAGG may be able to timely intervene in emerging human rights and dispense
justice. This will as well enable the CHRAGG to assist victims who are in need of immediate
redress.
8.2 Tanzania Prison Service
Several international instruments address the minimum standards for the treatment of
incarcerated individuals such as, the Model Treaty on the Transfer and Supervision of Offenders
Conditionally Sentenced or Released, 539 the United Nations Standard Minimum Rules for NonCustodial Measures (the Tokyo Rules), 540 the Standard Minimum Rules for the Treatment of
537
Mihayo, R (2011) “Development of a Culture of Lawlessness in Tanzania and its Impact on Human Rights and
Good Governance”A Paper Presented During the Launch of Tanzania Retired Judges Association (TARJA) on 3rd
November, 2011at Ubungo Plaza-Dar es Salaam.
538
Section 13(2).
539
Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders and
approved by the General Assembly in its resolution 40/32 of 29th November, 1985.
540
Adopted by General Assembly resolution 45/110 of 14 th December, 1990.
187
Offenders and Prisoners, 541 the Basic Principles for the Treatment of Offenders, 542 and the
Convention Against Torture, Cruel, Inhumane or Degrading Treatment or Punishments 543.
At national level, legislation dealing with treatment and welfare of Prisoners include: The Prison
Act, 1967[R.E 2002],544 The Parole Board Act, 1994[R.E 2002],545 The Criminal Procedure Act,
1985[R.E 2002],546The Penal Code, 547 The Commission for Human Rights and Good
Governance Act, 2001, 548 Preventive Detection Act, 2004 549 and Transfer of Prisoners Act,
2004. 550
Historically, the Tanzania Prisons Service (TPS) was established as an independent Government
Department on 25th August, 1931. Prior to that date, the Service was administered under the
Police Force. 551 A new prisons policy was adopted immediately after independence with the aim
of embracing the humane treatment of offenders and adhering to human rights standards. The
major shift in policy was toward the rehabilitation of offenders as a contribution to community
safety. In practice, this shift was implemented with the following:
6
Introduction of the Prisons Act, 1967 which embodies the spirit of international basic human rights
instruments;
7
Establishment of several Open farm Prisons in the rural areas which were designated to be centers of
excellence for imparting agricultural skills to inmates and to extend such services to surrounding
communities;
8
Establishment of Vocational Training Centers in Mbeya and Morogoro regions for skills-training to
inmates. These were linked to the National Vocational Education and Training Authority so that
certification of graduates is universally recognized;
9
Expansion of economic projects inside the inherited closed prisons for skills-training for long-term
prisoners;
10 Establishment of educational programmes of different levels in prisons including adult basic education,
general academic subjects and primary school education for school drop-outs at the Young Offenders'
Prison; and
11 Adoption of a new training curriculum for prisons staff in line with the new approach whereby
observance of human rights was emphasized.
The Mission of the Prisons Service (TPS) is to effectively contribute to community safety
through the proper management of custodial remand services. TPS is also responsible for the
implementation of programmes and services which address offenders' rehabilitation needs and
the offering of policy advice on crime prevention and treatment of offenders. To achieve this
541
Adopted on 30 August 1955 by the United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, held at Geneva, and approved by the Economic and Social Council in resolutions of 31st July, 1957 and
13th May,1977.
542
Adopted by UN General Assembly on 14th December, 1990.
543
Was adopted in New York, 18 December 2002, by General Assembly resolution 57/199.
544
Cap. 58 R.E 2002 of the laws of Tanzania.
545
Cap. 400 R.E 2002 of the Laws of Tanzania.
546
Cap.20 R.E 2002 of the Laws of Tanzania.
547
548
549
550
Act No. 10 of 2004.
551
www.moha.go.tz
188
mission, the TPS set the following values and principles to guide the correctional work in the
Service:
Respect for human dignity and fundamental human rights, Treatment of offenders as
individuals, Risk assessment and management of offenders, Co-operation between
agencies and with community, Development of quality of staff, Public access to
information, Responding to changes and challenges, Provision of essential healthcare,
Maintenance of discipline and order in prisons, Appropriate care and treatment of
remands and Co-operation with international organization.
8.3.1 Current Prison Situation
Despite Tanzania invoking a lot of reforms in the prison service, the service is still far from
reaching the standards required by international conventions. Prison service in Tanzania faces
serious challenges such as lack of trained prison officials, congestion, poor conditions for
vulnerable groups, human rights abuses and daily treatment of prisoners are all far below
international standards for treatment of inmates.
8.3.2 Treatment of Prison Officials
Prison officials have the statutory obligation to deliver prison services according to national and
international laws. Prisons officials like other civil servants, deserve proper care and treatment
for them to deliver their work efficiently. The status of prison officials is well elaborated in the
Standard Minimum Rules for the Treatment of Prisoners. 552 This section therefore evaluates the
welfare of prison officials by addressing issues such as, prisoner-staff ratio, salaries and other
emoluments for staff, ranks, promotions and education.
The Standard Minimum Rules for Treatment of Prisoners 553 stipulates that prisons personnel
should include a sufficient number of specialists, such as psychiatrists, psychologists, social
workers, teachers and trade instructors. According to a CSO’s prison visit report of 2011, the
prisons visited have less number of employees and lack these kinds of professionals, including
medical professionals. 554 The prison visit report elaborate further that 90.24% of prison officers
who were asked whether officers in the employment of their prisons are enough to meet the
growing number of inmates said that, the number of prison staff is insufficient. 555 Currently, the
TPS has 11,639 employees to ensure the security of prisons countrywide, provide inmates with
needed programmes and services. This is insufficient when compared with the number of
inmates in our prisons which stands at 45,000.
Furthermore, prison officials of lower rank like other civil servants of the same rank, are less
remunerated when compared with the type of work they are involved in and the risk they are
exposed to. Prison officials often do not receive their salaries on time; they complain that
overtime working allowances are not honored or paid on time and some times not paid at all. The
situation is further complicated when most of them find themselves without government housing
and are forced to use their small salary to rent. The Prison visit report states that some prison
officials opted to share rooms to reduce the magnitude of the problem. This was observed at
552
Rule 46 (3).
Rule 49 (1) of the Rules.
554
TLS (2011): Special Report on Human Rights Compliance in Prisons Tanzania Mainland; By Special Inquiry
Committee of Legal aid Providers: June –July 2011, page 42.
555
Ibid.
553
189
Kwamngumi, Nzega, Sengerema and Loliondo prisons. One of the prison officials who shares a
room in Sengerema had this to say; 556
Most of the prison officials regardless of their family sizes live in a single room, something which
infringes on their constitutional right to privacy…..Some of the prison officials reside in small
storage spaces that can only hold a small bed….).
8.3.3 Treatment of Prisoners
The Basic Principles for the Treatment of Prisoners requires that all prisoners be treated with
respect in accordance with their inherent dignity and value as human beings. Any sort of torture,
inhumane treatment, or discrimination against any person on the grounds of race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status including the status of prisoners are prohibited by international human rights
instruments. 557 This section assesses the treatment of inmates in prison in Tanzania to examine
human rights compliance.
Necessities
Prisoners, like all human beings, deserve to enjoy social services such as dietary food,
accommodation, clothing, water, access to health services and other basic services. In Tanzania,
prisons have poor delivery of social services; the situation is a major problem and undermines
the rights of prisoners in prisons. Prison living conditions are also substandard because of
congestion in prisons. The current number of inmates in Tanzania is 45,000 but the prison
facilities have the capacity to only accommodate 22,669 inmates. This problem is critical in
many of the prisons as the number of inmates makes the prisons in Tanzania to be congested by
100%. 558
General observations suggest that the congestion in prisons is mainly contributed by the lack of
infrastructure in the prison department, frequent delay in cases and the ineffectiveness of the
judicial system in general. Additionally, failures by courts to use other statutory-available means,
such as bail, parole and probate, have contributed to prison congestion.
The international and national legal instruments require that prisoners be separated based on sex,
criminal records, age and the necessities of that inmates’ treatment. These international
principles also require prisoners to sleep in separate cells or rooms and two or more prisoners are
not supposed to share a room. The reality from the field is that accommodation for prisoners in
Tanzania is generally below the required standards of international principles for the treatment of
offenders. 559 Prisoners are frequently kept in cells with other inmates and are even kept in the
556
TLS (2011): Special Report on Human Rights Compliance in Prisons Tanzania Mainland, Op cit., page 146.
Article 1(3) of the United Nations Charter, 1945, Article 2 of the Universal Declaration of Human Rights, 1948,
Article 2(2) of the International Covenant on Social Economic and Cultural Rights, 1966, Article 2(1) of the
International Covenant on Civil and Political Rights, 1966, Article 2 of the African Charter on Human and Peoples
Rights, 1981 and Article 6(d) 0f the Treaty for Establishment of East Africa Community, 1999.
558
www.moha.go.tz
559
Section 69 of the Tanzania Prison Act, Cap. 58 of the R.E 2002 laws of Tanzania See also Report on Special
Inquiry on Prisons Situation in Tanzania Mainland by Fact-Find Mission of the Tanganyika Law Society June to
July 2009.
557
190
same cells/wards with young prisoners. For instance, in Tukuyu District Prison, a remandee aged
82 years charged with murder jointly with his 6 sons lamented thus; 560
Huku gerezani hakuna ubinadamu wala heshima. Mimi nimeshitakiwa kwa pamoja na watoto wangu
sita kwa kosa la mauaji, ninalala sero pamoja na watoto wangu watatu na unajua kwenye sero
utaratibu wa kwenda chooni na kusafisha choo. Kawaida huwa tunajisaidia ndani ya choo kilichopo
ndani ya sero na kila mtu anakuona, sasa watoto wangu nao wananiona najisaidia… wewe
mheshimiwa ulishawahi kumuona baba yako akijisaidia?... huko nikudhalilishana hata kama
wanasema mahabusu na wafungwa hawana haki.
[There is neither humanity nor dignity in this prison. I was jointly charged with my six children for
murder. I sleep in the same cell/ward with three of my six children and around here using and
cleaning the toilets is quite a task as more often you are forced to relieve infront of your children.
This is very humiliating. Have you ever seen your father relieve himself? This is shear regardless of
whether they say remandees and prisoners have got no rights.]
8.3.4 Vulnerable Groups in Prisons
All human beings have equal rights, but within the community there are certain groups of people
who are more susceptible to abuse and hence need extra protection. These are vulnerable groups
who face high levels of discrimination and generally more vulnerable to human rights violations
and less able to enforce their rights. This sub-chapter brings you the human rights situation of
vulnerable groups who are in prisons. These groups include women, children, the elderly,
persons with disabilities and persons with HIV/AIDS.
(a)
Women and Children
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women
(Maputo Protocol - 2003) requires African States through appropriate legislative, institutional
and other measures to promote and protect the rights of women. The Protocol makes particular
reference to women in detention, by requiring African states to ensure that the rights of pregnant
or nursing women or women in detention are realized by providing them with an environment
which is suitable to their conditions. 561
Women who are in prisons are supposed to be provided with sanitary pads and crucial women’s
hygienic requirements. The prison visit report depicts that, despite the fact that the number of
female inmates is low; many of them do not receive hygienic requirements. For instance, in
Kingolwira Women Prison, prisoners complained that prison authorities do not supply the
inmates with sanitary pads, arguing that in the past they were improperly disposed of in toilets
causing blockages in the drainage systems. One female inmate stressed:- 562
We [inmates] come from different places and have different backgrounds. Some of us are not
knowledgeable enough on how to use and dispose the sanitary pads. Sanitary pads were thrown
560
Article 24 (b).
562
561
191
in the open while others were soaked in toilets, thereby causing blockage of the drainage and
plumbing system. This made the prison management to ban/stop the use of the sanitary pads as a
preventive measure against possible outbreak of diseases due to the fact that flooding of toilets
might result into outbreak of diseases like diarrhea and dysentery.]
The situation is not promising to nursing mothers and their children. In many prisons, children
are not given special attention with regard to their basic needs. The inmates revealed that there is
no special diet being offered to children. These forces infants to share the adult food which is
also not dietary balanced. With regard to the treatment of young offenders or juvenile justice, the
prison visit report indicates that there are children of the age of 14-18 years who stay with adult
prisoners. This is contrary to the Law of the Child Act of 2009,563 which expressly states that ‘no
child shall be sentenced to imprisonment’. 564
Various laws including the Law of Child Act, 2009 provide that young offenders should be given
alternative punishments such as, sending them to approved schools, discharging the offender
conditionally on entering recognizance to be of good behaviour, discharge of the child without
making any order, repatriate the child to his home or district of origin or order that the child be
handed over to a person fit to care for him/her. 565
Prisons found with young prisoners mixed with adults include Mahenge, Pangani, Kasulu,
Tarime and Manyoni. Two remanded prisoners aged 12, were found in the same cell with adult
inmates. The Prison visit team interviewed one young prisoner who reported that they are
mistreated by adult inmates. The prisoner observed; 566
We (young prisoners) are assigned to work at the farm, chopping and fetching firewood, quarrying
and gardening activities outside the prison. We are assigned to manual labour with little consideration
for our age. The Convict leaders (Nyapara/Viherehere) beat us severely when we fail to accomplish
the tasks assigned to us. 567
b) Prisoners with HIV/AIDS
Taking into consideration that the Tanzania population is highly affected by the HIV/AIDS
pandemic and where as prisoners form part of the population, this section assesses the state of
people living with HIV/AIDS (PLHA) in prisons. According to the Prisons Standing Orders,
PLHA in prisons have to be treated in accordance with specific guidelines including regular HIV
testing for inmates, counseling available to PLHAs and adequate health care. 568 A prison
research report conducted in Tanzania indicates that only about 73% of all prisons visited were
found to have an HIV and AIDS Policy in place while 27% of the prisons did not have an HIV
and AIDS Policy. 569Generally, there is lack of facilities for HIV testing in prisons, so inmates do
not receive regular testing as required. Also, there is little evidence of any counseling or
information on HIV/AIDS prevention provided to prisoners.
563
Act No 21 of 2009.
Section 119(1) of the Law of the Child Act, 2009.
565
S. 119 of the Law of the Child Act.
566
567
Male Convict, 14 years of age, Mahenge prison.
568
Prisons Standing Orders, 2003 (PSO 2003).
569
Ibid, page 36.
564
192
The lack of health and HIV/AIDS services in prisons is a major source of the high HIV
prevalence in prisons. Prison officials stated that the spread of HIV/AIDS in prisons is the result
of both unsafe sexual contact between prisoners and unsafe medical practices. Prisoners do not
receive necessary HIV prevention campaigns or other necessary HIV/AIDS education. Inmates
also do not receive adequate protection from exposure. Prison officials do not provide condoms
to inmates, on the ground that it may condone sexual acts between men. This is because
homosexuality is an offence punishable under the penal code. This creates a difficult situation, as
official acknowledge that sexual contact between prisoners contributes to the spread of
HIV/AIDS. Nevertheless, prisoners are not given the means to protect themselves. 570
Patients known to have HIV/AIDS are generally enrolled in an ARV therapy program and sent to
a district hospital for care and treatment. However, some inmates interviewed complained that
when transferred from one prison to the other, they tend to lose HIV/AIDS care treatment. One
prisoner testified that:
…I am HIV positive, I was imprisoned and served my sentence in Arusha prison, where I used ARVs
and attended a clinic at Mount Meru Hospital. However, I was transferred to Loliondo Prison a month
ago without consultation with the Medical Officer who knew my HIV status. The ARVs that I have
been using were finished and I am yet to receive any. I have neither been sent to the hospital to check
for my CD4 count, nor sent to get ARVs. I am subjected to hard labour with little consideration for
my health condition. It is terrible that a person who is HIV+ is subjected to manual labour. 571
The LHRC advises the government to consider improving the life of vulnerable persons in
prisons. This may help vulnerable groups to be free from harassment and intimidation by prison
guards and other prisoners. These groups, by virtue of being incarcerated need special care and
treatment.
8.3 Police in Tanzania
The police force is another key organ vested with power to protect the rights of people by
ensuring security and peace. The mandate of the Tanzania Police Force (TPF) is grounded in S.5
of the Police Force and Auxiliary Services Act, Cap 322. The Act empowers the TPF to oversee
the work of the preservation of peace; maintenance of law and order; prevention and detection of
crime; apprehension and guarding of offenders; and protection of property. The Tanzania Police
Force (TPF) is currently 92 years old organization and is one of the six Departments under the
Ministry of Home Affairs. 572
The police force in Tanzania was established during colonial time with the aim of suppressing
African resistances. When Tanganyika and Zanzibar became the United Republic of Tanzania in
1964, public safety and security became a Union matter. During this time, policing issues were
directed towards protecting the ruling regime and less was done to involve the community in
preventing and solving crime. In 1990s, the rate of crime changed dramatically and the police
force attempted a new approach. 573
570
TLS/LSRP (2009) A Draft Report on Special Inquiry on Prisons Situation in Tanzania Mainland 2009, page 57.
Male Convict, 25 years old, Loliondo Prison.
572
TPF Annual Report for the Year 2010, page 4.
573
Ibid.
571
193
In a bid to streamline, the Force took a number of measures to change practices, including the
establishment of new police posts and placing emphasis on using traditional groups to
supplement policing work. However, these interventions were considered inadequate to deal with
the dramatic escalation in violent crime. The Police Force has since adopted new ways of
tackling crime by learning from other police forces around the world. 574
8.3.1 Crime Prevention Capacity and Community Perception
The main duty of the police force in Tanzania is crime investigation and prevention. This subchapter examines the prevention capacity of the police force and community perceptions of the
TPF.
The Criminal Procedure Act (CPA) outlines the powers and limitations of police officers when
dealing with suspects. The CPA provisions prohibit police brutality and human rights abuse. In
addition, Police officers have the statutory power to use only the reasonable force necessary in
performing their duties. The implementation of the CPA however does not reflect the law with
routine acts of human rights abuses reported. The brutal actions of police officers undermine the
protection of human rights guaranteed by the Constitution of the United Republic of Tanzania as
well as International Human Rights Instruments. 575 As time goes by, the TPF is perceived to be
oppressive and brutal because it has failed to work according to human rights principles. The
police are supposed to adhere to the following duties under the law:
1) Not arbitrarily arrest or detain and will only deprive persons of their liberty in accordance
with the law;
2) Promptly inform accused persons of the reason for their arrest and any charges brought
against them – this must be communicated to the accused persons in a way and a manner
they understand;
3) Act in a manner that upholds the presumption of an accused person’s innocence until proven
guilty in accordance with the law;
4) Ensure that arrested persons are brought promptly before an authorised and competent
judicial authority;
5) Ensure that, upon arrest, detention and charge, there is a presumptive right to bail or bond.
6) Ensure the right of a detained person to challenge the lawfulness of their detention and
recognise the enforceable right to compensation if an arrest or detention is deemed unlawful
by the courts;
7) Ensure that arrested and detained persons have access to interpreters and legal assistance, as
required;
8) Ensure that arrested and detained persons are treated humanely and kept under humane
conditions.
The principles mentioned above are grounded on three major distinct but interrelated roles of the
police: to protect life, liberty and security; to maintain public safety and social peace; and to
promote and uphold the rule of law and human rights. 576 The failure of TPF to conduct their
574
Op cit.
Africa Human Security Initiative-AHSI (2009)”Crime and Criminal Justice System: Tanzania Country Review
Report, page 61.
576
Commonwealth Human Rights Initiatives (2010) Common Standard for Policing in East Africa, page 25.
575
194
undertakings in accordance with those principles above has created mistrust between the police
and the community. Police brutality against suspects and innocent citizens continues to widen
enmity between them and the community. Therefore, the perception that the police force does
not promote security of the people has reduced the capacity of police to investigate and to
prevent crimes in Tanzania. People are less willing to cooperate with police and give crucial
information that could assist in solving crimes and prosecuting offenders.
Even with these challenges, the TPF annual statistical analysis indicated that the crime rates for
reported crimes decreased from 2009-2011, as shown in the table below:
No. Crime
Year of Crime
2009
2010
Decrease/Inc
Rate
Decrease/Inc
in %
1
Offences Against Persons
12,496
11,364
1,132
9.1
2
Offences
Peace/Tranquility
15,648
14,499
1,149
7.3
3
Offences Against Property
75,525
68,527
6,998
9.3
4
Traffic offences
22,019
24,926
2,907
13.2
Against
The reasons for the decrease in reported crimes is unknown, however, there is a possibility that
the police programs aimed at crime prevention are successful. Whether or not this success is a
reality, the TPF has to work hard to clear community perception towards the Force. If the
relationship between the police and community is strengthened, TPF would be in a better
position to investigate crimes including property-related offences and more modern crimes like
cyber and trans-national crimes. 577 In order to emerge from this negative perception, the TPF has
invoked a number of community friendly programs like Community Policing (Polisi Jamii). 578
8.3.2 Community Policing (Polisi Jamii)
Since 2005, the TPF underwent major internal reform initiatives. Studies commissioned by the
Force, led to introduction of changes which help address the growing negative perception from
the public. Most importantly, the TPF committed itself to be a professional, modern and
577
Mwema, Said (2008) “Challenges of Enhancing Performance and Responsiveness in the Police Force” Paper
presented at the National Convention on Public Sector Reforms on Achieving Rapid Results in Public Sector
Reforms at Ubungo Plaza on 18th June, 2008, page 2.
578
The vision of community policing is to enable communities and other stakeholders to have direct involvement in
setting local police priorities, in exchange for their cooperation and participation in efforts to prevent and reduce
crimes in communities.
195
community-centred Police Force that plays a pivotal role in achieving sustainable public safety
and security for political and socio-economic prosperity of the nation. Community policing,
commonly known as ‘Polisi Jamii’, is not a new program in Tanzania. The aim of community
policing is to enable communities and other stakeholders to have direct involvement in setting
local public safety and security priorities and develop a good relationship with the police
force. 579
The main objective is to put in place a strong and functional partnership between the police, the
community and other stakeholders to build trust and confidence in the police. In establishing this
relationship, the Force would be able to better address the needs of the community in combating
crime and service delivery while being supported by the community. Community Policing works
on the following five key pillars: service delivery, police partnerships, accountability,
empowerment of TPF personnel and members of community and problem solving.
Achievements on the Implementation of Community Policing
Even though the community trust in police is still very weak, the program has not been without
some notable achievements. The following are some of the notable activities that were
successfully carried out:
i.
Developing and implementing training programs on community policing initiatives to
community members across the country. Some notable programs included community
awareness and capacity building programs to the nation’s Wards/ Shehias;
ii.
The creation of Safety and Security Committees that covered 22 wards in Ilala Police
Region, Kilimanjaro (12 wards), Zanzibar (10 wards/Shehia), and Unguja (5 wards);
Conducting workshops, seminars and presentations on community policing initiatives and
human rights to 12 security supervisors from African Barrick Gold Mine;
Undertaking safety and security awareness programmes to religious leaders on prevention
and combating crime;
Creating neighborhood security network programmes in the community that was
implemented through a number of sensitizations programs countrywide. For instance, a
number of meetings were held with members of community on the establishment of
neighborhood watch groups at Kawe, Mbezi Beach ‘A’ and Mbezi Beach ‘B’ in
Kinondoni district. A total number of 2300 neighborhood watch groups were established
all over the country by the year 2010.
iii.
iv.
v.
The Force has also made attempts to cement their relationship with the public by applying
various mechanisms such as dissemination, sensitization and advocacy to inform the general
public on different initiatives. Information campaigns revolve around crime detection, prevention
and solving, as well as the rights and duties of community as far as safety and security is
concerned. Some of these mechanisms were carried through mass media namely television
broadcasts, radio and publications at district, regional and national levels. 580 Furthermore, the
TPF managed to decentralize the police services to ward/shehia levels by deploying police
579
Dhana ya Ulinzi Shirikishi at http://www.policeforce.go.tz/IJUE%20POLISI%20JAMII.pdf Accessed on
November, 2011 See also Mwema, Said (2008) Supra, page 10.
580
TPF Annual Report for the Year 2010, page 34.
196
officers in all wards and Shehia in the country. For instance, in 2010 a total of 3676 police
officers were deployed in all 3676 wards/shehia and in addition to that Ward/Shehia Safety and
Security Committee (Kamati za Ulinzi na Usalama za Kata) were established. 581
8.3.3 Challenges Facing the Police Force in Tanzania
Despite the fact that the Tanzania Police Force has implemented numerous programs for crime
prevention, the Force faces many challenges including the lack of enough personnel, lack of
autonomy and lack of modern techniques in crime detection. Other issues include poor
investigation techniques, corruption, poor record keeping especially for criminal records, poor
salaries and housing allowances, overwhelming bureaucratic procedures, pressure from political
quarters and lack of specialization among officers. Below is the summary of some of the
challenges:
 Lack of coherent and clear recruitment and training policies, weak human resources
information systems and inadequate training facilities;
 Officers are underpaid and lack motivation;
 Infrastructural challenges such as poor offices, housing, transport, old and poor
communication networks as well as weak management information systems;
 ICT infrastructure is still very poor in the Force and requires urgent development;
 The Police Force’s institutional and legal framework needs improvement. There is a lack
of autonomy, few internal inspections, low levels of supervision, lack of coordination in
the fight against corruption and limited accountability to the public;
 The Police Force lacks adequate financial resources from the government. This is the main
cause of all secondary problems affecting the Police Force such as corruption, human
rights violations and control from political quarters.
As previously stated in chapter two of this report, the TPF is not autonomous. The TPF officials
are still accountable to the Ministry of Home Affairs, the President, Regional commissioners and
District commissioners. Having these bodies on top of TPF structure automatically undermines
the freedom of police officials at all levels. For instance, at the district level, the TPF officials,
commonly called OCDs, are under the direct control of the District Commissioners (DCs) who
act as the chairperson of the District Security Committee as well as the chairperson of the ruling
party District Political Committee. That is to say, the OCD has to obey any order from the DC
who is a member of the ruling political party.
The TPF partisan is highly condemned. This is apparently true because the structure of TPF is
linked to the executive branch, as mentioned above. The opposition parties complain that the
TPF is used by the ruling party to suppress democracy in the country. This claim can be justified
by looking at many incidents and clashes reported to have occurred between political parties and
police, or citizens and police from January to December 2011. 582
581
582
Ibid.
See Chapter two and three of this report.
197
People have lost trust in TPF because of the high level of biasness when dealing with political
issues. The level of mistrust is propelled by controlled institutional set up. For instance, the
Inspector General of Police (IGP) is a presidential appointee accountable to the President.
Automatically, this undermines the autonomy of the Force and makes their operations difficult
while at the same time being viewed negatively. For TPF to be autonomous and free from
political pressures, the IGP should be recommended by the President and taken to the parliament
for approval.
The LHRC advises the TPF to improve service delivery by maintaining a well-skilled and
adequately remunerated workforce. The TPF has to enhance police knowledge on the skills and
financial capacities in performing police functions. The police Officers should uphold law and
order when carrying out their functions in accordance with the rule of law. Furthermore, the
LHRC calls upon the government to set enough resources to enable the ministry responsible to
insure its police officers under the ‘life insurance modality’ due to working under a very risky
environment. The move will not only motivate officers to fight crime but will also help their
descendants once they lose their lives in the battle field unlike now, where the burial of the
police officers means the same for descendants as more often they are left with nothing to live
for.
198
Chapter Nine
Corruption and Abuse of Power
9.0 Introduction
This chapter discusses the level of corruption and abuse of power in the country. Corruption
refers to individuals that are induced to violate their job or employment position by means of
improper consideration, such as trading favors, financial bribery, or career advancement. 583 The
abuse of power is the exercise of discretion in favor of one person to the detriment of others for
personal gain; especially where there is bids and contract awards competition. 584 The two
concepts are interconnected as they share similar features. These are unfairness, favouratism,
inequality, injustice, greedy, opportunistic as well as fiduciary relationship between the fortunate
and unfortunate. The fortunate are those with certain authority to act either in the public or
private sector, whereas the unfortunate are those who are the subjects of that authority.
Corruption is one of the major problems that violate human rights in our community. Corruption
was added as the fourth enemy of the state by the late Julius K. Nyerere. On 12th October, 1965
while addressing the National Assembly, he said that,
Corruption perverts justice, and if allowed to continue will destroy our nation. Therefore in my
duties in accordance with the Constitution, I shall insist that corruption in any form is exposed to
gaze of the people; where appropriate prosecution will follow. Members of this house and of the
Government will well be advised not only to resist corruption, but also to conduct themselves in
manner that it is obvious that they are not corrupted. 585
9.1 Legal Framework to fight Corruption
Corruption is still regarded as a serious social problem in various nations of the world. There
have been international, regional and national legal efforts to curb it. 586 At the regional level,
Tanzania is a member to various anti-corruption institutions which are governed by different
legal instruments. For example, Tanzania is a member to the Southern Africa Forum against
583
L.B Curzone, the Dictionary of Law, Pitman Publishing, Fourth Edition, reprinted in 1997, page 92. See also the
cases of Republic versus Parker [1985] 82 Cr. App. R. 60 and Republic versus L.G. Election Commissioner exparte
Maniwaring [1971] The Times Law Reports.
584
O. Fagbohun and G.A. Olanguju “International Law and the Crisis of Corruption: Africa in Focus” in Journal of
African and International Law, Volume 2, Number 2, 2009 page 4.
585
Chris, P Maina: Independence of Judiciary in Tanzania: Many Rivers to Cross in JUUKO, Fredrick (Ed), The
Independence of the Judiciary and the Rule of Law: Strengthening Constitutional Activism in East Africa, Kampala:
Kituo cha Katiba page 23.
586
The United Nations Convention against Corruption, (UNCAC) of 2003, the UN Resolution 51/59 of 1996 which
adopted the International Code of Conduct for Public Officials, the African Union Convention on Preventing and
Combating Corruption, 2003.
199
Corruption (SAFAC). 587 This organ became operational after the adoption of the Protocol
against Corruption which came into force in July 2005.
In furtherance of the fight against corruption in the country, on 19th September, 2011 Tanzania
officially opened the Tanzanian Chapter of the Business Action against Corruption (BAAC). The
BAAC among other things aims at promoting public-private partnership across Africa to fight
corruption. The fight against corruption in the African region has also been cemented with the
Bujumbura Declaration, 2011 which calls upon all states in Africa to cooperate in areas of
mutual legal assistance, law enforcement, joint investigations, tracing and recovery of ill-gotten
assets. 588
The anti-corruption bodies in East Africa region in 2007 formed the East African Association of
Anti-corruption Authorities (EAAACA) as a joint effort to fight corruption in the region.
However, this association faced a number of challenges including: lack of political will by
governments of member states, limited resources, poor legal framework to anti-corruption bodies
in the region and inadequate human resources. 589 These challenges make it difficult to fight
corruption in the East African Region.
Efforts to fight corruption roots back to the colonial era where various pieces of legislations were
enacted and multiple institutions were established at the national level. 590 The Prevention of
Corruption Act, 2007 591 is the main legislation which establishes and gives mandate to the PCCB
to discharge its functions. The Act, enumerates corruption offences and punishment thereof. To
enhance transparency and accountability there are other pieces of legislations which regulate the
fight against corruption such as the Public Finance Act, 2001, 592 the Political Parties Act, 1992
[R.E 200],593 the Election Act, 1985 594 and the Election Expenses Act, 2010 595. These Acts
establish organs which directly aim at fighting against corruption in the country. An example of
such institution is the Public Procurement Regulatory Authority (PPRA) established by the
Public Procurement Act, 2004. 596 Likewise, the Public Leaders Code of Ethics Act, 1995[R.E
2002] and the Economic and Organised Crime Act, 1984 [R.E 2002] have been enacted in order
to curb abuse of power to the public officials. The Public Leaders Code of Ethics Act, 1995[R.E
587
The coalition to combat corruption in Southern Africa region was formed in 2000. The founding member states
of this coalition were nine including the following; South Africa, Lesotho, Zimbabwe, Malawi, Zambia, Mauritius,
Swaziland and Botswana.
588
Article 19 of the African Union Convention on Preventing and Combating Corruption, 2003
589
R. O Baku; “A presentation made at the African Anti-corruption conference of the East African Association of
Anti-Corruption Authorities”, June, 2011 page 17
590
During the British colonial rule provisions against corruption were incorporated in the first Penal Code of 1938
and subsequent Penal Code of 1945. In 1958 the Prevention of Corruption Ordinance was enacted which was
repealed and replaced by the Prevention of Corruption Act, 1971. In 1974 the Anti-Corruption Squad was formed
through amendment of the Act. Again, in 1991 the Prevention of Corruption Act, 1974 was amended to establish the
Prevention of Corruption Bureau (PCB) which expanded its operation to district level. Lastly, through the current
legislation governing corruption this is the Prevention of Corruption Act, 2007 the responsible institutions to fight
against corruption is known as Prevention and Combating of Corruption Bureau (PCCB).
591
Act No. 11 of 2007.
592
Act No. 6 of 2001.
593
Cap. 258 of the [R.E 2002].
594
Cap. 343 of the [R.E 2002].
595
Act No. 21 of 2010.
596
Act No. 21 of 2004.
200
2002] establishes the ethics secretariat which is mandated to regulate and supervise the conduct
of public figures.
Lastly, the country has enacted the Anti-Money Laundering Act, 2006 due to the issue of
corruption and abuse of power being a trans-boundary agenda. This legislation was enacted to
fight for corruption and reduce the rate of increased cyber 597 crimes in the country.
9.2 Role of Institutions in fighting corruption 2011
The PCCB has been mandated under the law to deal with corruption and abuse of power and has
been the key actor in this area; however, there are other actors as well. Due to the pervasiveness
of corruption into all aspects of society, joint efforts between the public and private sector is
needed in the fight. This section will focus on the following selected institutions and their role in
the fight against corruption.
9.2.1 PCCB
The Prevention and Combating of Corruption Bureau is a key government institution which has
been formed under the Prevention of Corruption Act, 2007. The PCCB discharges its function
under the auspices of the office of the President, which arguably jeopardizes its independence
and lacks proper forum for making it accountable. 598 The LHRC advocates for independent
committee to monitor the actions and efficacy of the PCCB.
The PCCB finalized the National Anti-Corruption Strategy and Action Plan phase II (NACSAP
II) 599 which came into effect in 2008. NACSAP II aimed at curbing some weaknesses which
were observed during an evaluation of NACSAP I, such as the lack of involvement of the private
sector in the fight against corruption. In 2011, the PCCB launched the Tanzanian Chapter of the
Business Action Against Corruption (BAAC). It is anticipated that through public-private
partnerships more actors will join in the fight against graft.
The PCCB has the mandate to investigate and prosecute cases, as provided for in the Prevention
and Combating of Corruption Act, 2007 and other legislations. A total number of 47,283 of
corruption allegations were received by PCCB from its offices in the country from 1995 to
January 2011. The available statistics indicate that as from 1995 to January 2011 about 934 of
government officials were punished administratively while 256 people were convicted in courts
of law. Since the inception of the Prevention and Combating of Corruption Act, 2007 at least 798
trials are on progress in different levels of courts. It should be noted that, the PCCB has only
been able to recover Tsh. 97.7 billion, within its 16 years.
LHRC is of the opinion that, corruption has posed a serious challenge to our society and its
consequences are very detrimental to development. Thus, the role of the community should be
reflected in the fight by providing necessary support for the PCCB to discharge its functions
smoothly. For instance, initiative to formalize corruption and ethics studies in schools is a great
597
B. A Garner (Ed) in Black’s law Dictionary, Ninth Edition page 426 defines cyber crime or computer crime as
“A crime involving the use of a computer, such as sabotaging or stealing electronically”.
598
African Peer Review Mechanism (APRM): Tanzania Country Self Assessment Report (Final Revised Edition),
September 2011 page 6.
599
It was introduced in 1999 as a strategic policy and action framework followed the Warioba Commission Report
in 1996 which provided in nutshell the prevalence of corruption. NACSAP I ended in 2004.
201
step in the fight against corruption. Furthermore, the PCCB should as well fast-track allegations
and cases involving senior public servants. For example, senior public servants who have been
involved in multi-million contracts such as Radar and Dowans should be taken to court to face
justice. This is the only way the community can regain back its lost confidence on the PCCB‘s
competence.
9.2.2
Public Procurement Regulatory Authority (PPRA)
Public procurement is one of the areas that suffer the most from abuse of process and costing the
State millions. Corruption and bribe have been always a challenge in public procurement,
especially in construction contracts. Studies indicate that Asian countries are leading in
corruption practices to secure tenders and bids in the government. 600 The United Nations
Commission on International Trade Law (UNCITRAL) adopted the new UNCITRAL Model Law
on Public Procurement in July 2011. 601
The Public Procurement Regulatory Authority (PPRA) regulates all the public procurement
entities in Tanzania. It discharges its functions according to its enabling legislation and
regulations. However, the rate of corruption still remains high. The formal procedures are
followed well but with hidden agenda such as the so called ‘ten percent’, failure to realize value
for money and tax evasion.
The Public Procurement Regulatory Act, 2004 requires that each procurement entity must submit
a report to the PPRA to curb corruption on awarded contracts. The law says that;
The authority shall have power to enquire any procuring entity to furnish the Authority
information with regard to the award of any public contract and such other information in relation
thereto as the authority considers desirable. 602
The Annual Performance Evaluation report on Public Procurement Regulatory Authority for the
financial year 2009/10 submitted to the Parliament, indicates that only 69% of the procurement
entities submitted their report to the PPRA 603 while only 41% of procurement entities submitted
their report in financial year 2007/8. Despite this improvement, there are still numbers of
disappointing entities which have not been submitting their reports.
The PPRA Act, 2004 also contains provisions that prohibit bribery and corruption and its
regulations as well as providing for an Anti-corruption memorandum. These regulations include
the Public Procurement (Goods, Works, Non-consultant services and Disposal of Public Assets
by Tender) Regulations, 2005 604 and the Public Procurement (selection and Employment of
Consultants) Regulations, 2005. 605
600
M. Njuwa, Combating Corruption in Tanzania’s Public Services: Successes and Challenges, Mzumbe University,
2008 page 6.
601
The UNCITRAL Model Law on Public Procurement, 2011 replaces the UNCITRAL Model Law on Procurement
of Goods, Construction and Services. The New Model provides for new dimension in public procurement such the
use of electronic communication in public procurement.
602
Section 7(4).
603
Bunge la Jamhuri wa Muungano wa Tanzania, Majadiliano ya Bunge, Mkutano wa tatu, kikao cha sita, tarehe
13 April, 2011 page 1.
604
G.N No. 98 of 2005 provides for Anti-Corruption Memorandum in Sixth Schedule.
605
G.N No. 97 of 2005 provides for Anti-Corruption Memorandum in Seventh Schedule.
202
Although the PPRA coordinates procurements entities to adhere to principles and governing
regulations, the issue of 10% is still rampant to most procurement entities. 606 The LHRC
therefore, calls upon all responsible officers in procuring entities and tender boards to adhere to
norms and best practices to accelerate development by saying no to corrupt practices. Dr.
Mujwahuzi Njuwa said that; 607
We have argued that corruption does not have an independent existence. It resides in society thus
corruption is a social relation. Thus, the fight against corruption should be a collective fight in
which all stakeholders affected by it are involved.
9.2.3 Ethics Secretariat
The Ethics Secretariat was established under the Public Leadership Code of Ethics Act, 1995 and
its amendment in 2001. The Ethics Secretariat was formerly known as the Ethics Division and
prior to that it was known as the Ethics Inspection Unit. The secretariat has been formed to deal
with cases involving public officials’ such as members of judicially, politicians, senior public
officials in executive and other government departments like universities and commissions.
Similarly, the Public Service Act, 2002 608 and Public Service (Negotiating Machinery) Act,
2003 609 provide for other disciplinary bodies such as the Public Service Commission.610
The Ethics Secretariat attempts to oversee the activities and the possessions of public officials in
the country, however according to LHRC’s observations the Secretariat faces the following
challenges:
The ethics secretariat is composed of retired judges who have served the country. Arguably,
there is lack of seriousness on the work of this secretariat being a place for retired judges to
practice their carriers while they are no longer active.
The lack of dedicated personnel to work throughout the country is a very serious challenge.
Tanzania has 3383 councilors who are answerable to the secretariat. It is very difficult for the
secretariat to assure their promptly accountability.
Moreover, the secretariat lacks sufficient budget to summon and determine all cases where
public officials have allegedly failed to comply with the law. For example, in 2011 the secretariat
was able to summon 23 subjects only who failed to comply with the law. According to Judge
Kaganda’s press statement issued earlier in 2011, there were 1,032 councilors only who returned
mandatory reports and no action was taken against the 2,844 councilors who did not comply with
the law of submitting reports.
The Ethics Secretariat is not practical, as it is just interested with legal compliance and does not
go further in details. It is LHRC’s opinion that the secretariat should go further physically to
606
Bunge la Tanzania, Majadiliano ya Bunge, Mkutano wa Nne, Kikao cha Hamsini na sita, 26th August, 2011 page
58. Hon. Nyambari Nyagwine (CCM) was quoted saying, “Manunuzi ya Umma hutawaliwa na rushwa na hasa hasa
ten percent. Je, Serikali inasema nini juu ya hii Kansa?
607
M. Njuwa, Combating Corruption in Tanzania’s Public Services: Successes and Challenges, Mzumbe University,
2008 page 6.
608
Act No. 8 of 2002.
609
Act No. 19 of 2003.
610
Section 9 of the Public Service Act, 2002.
203
verify the listed properties in the compliance form. Furthermore, there should be a monitoring
and evaluation scheme to follow up public officials conducts before, during and at the end of
tenure.
9.3.4 The Role of Civil Societies and Media in the Fight against Corruption
The role of civil societies and the media involvement in the fight against graft is very crucial.
Recently, efforts by the two have been highly appreciated as in most of the time they have been
whistleblowers, an essential tool in the fight.
There are various civil societies which are exclusively dedicated to fight corruption in the
country such as the Agenda Participation 2000 and Concern for Development Initiatives in
Africa (ForDia). The two organizations have done various researches and writings on corruption.
Source: Compilation from LHRC survey 2011
The 2011 opinion survey conducted by the LHRC revealed that the Police force and Judiciary
are perceived as the most corrupt institutions in the country. The chart above represents findings
of the aforesaid opinion survey. This was done purposeful to verify findings on prevalence of
corruption perception index as provided by international anti-corruption bodies. In the two
204
consecutive years, police ranked in the first position as the most corrupt institution in the
country. Similarly, the community in areas visited during an opinion survey had similar
perception as shown in the graph above.
9.4 Corruption Perception Index of Tanzania at International level
The Tanzania Human Rights report normally produces the findings on corruption perception at
the international level. The aim is to inform the general public how the international world
perceives our country on level of corruption. There are three different findings which are
normally produced every year. The first one is the Transparency International Corruption Index
(CPI) which shows the world trend, the second is MO Ibrahim index which shows the trend in
Africa and the East Africa Bribery Index.
9.4.1Transparency International Corruption Index (CPI)
The report produced by the Transparency International on corruption perception ranks the
prevalence in terms of numbers from 0-10. It means that a country with 0 score is perceived to be
very corrupt and 10 means a country is very clean. The countries are ranked based on how
corrupt the public sector is perceived to be.
In 2011 the Tanzania scored 3 points out of 10 which signifies that the public is perceived to be
highly corrupt. 611 Considering the table below it is a clear indication that the public sector is
perceived corrupt due to poor improvement in its score. The poor performance of PCCB, noncommitment of the government to bring into justice its officials whom are alleged to have
involved in grand corruption such as Kagoda Agricultural and Radar case are some of the factors
which hinder Tanzania from making progress in terms of fighting corruption.
Year
CPI Score
2007
2008
2009
2010
2011
3.2
3.0
2.6
2.7
3.0
9.4.2 Corruption Perception Index according to MO Ibrahim Index
The MO Ibrahim Index of African governance Report 2011 has ranked Tanzania in 13th position
out of 54 African countries in terms of Good Governance. The MO Ibrahim index on good
governance observes the country’s adherence to rule of law, human rights, sustainable economic
development and human development.
The public sector as well is perceived to be more corrupt where it is found out that even the
officers of the court are accused of corruption. For example the Ukonga Primary court
Magistrate, the court’s clerk and the Cashier were taken to Kisutu Resident Magistrates court
accused to have solicited a bribe of 100,000/= in order to grant bail to a culprit. 612 Not only does
the public accuse the Judiciary for corruption, but the Local Government is as well accused
611
612
http://cpi.transparency.org/cpi2011/results/#CountryResults
Joyce Kabigi “Magistrate arraigned over corruption in Dar” Daily News 9th June, 2011.
205
likewise. For instance in Hai District the ward secretary was found guilty and sentenced to four
years imprisonment for receiving a bribe of 50,000/=. 613
These few cited examples of corruption scandals reported in various levels reflect on how
corrupt the public sector in the country is. LHRC strongly argues the government, PCCB and
public in general to fight corruption in order to attain high standard and performance in all four
main aspects in MO Ibrahim Index. According to MO Ibrahim Index, it is very difficult to find
adherence of rule of law, participation in human rights, sustainable development to the country’s
economy and human development to its people in a country with high prevalence of corruption.
9.4.3 Corruption Perception Index According to EAC – Bribery Index 2011
The East African Bribery Index 2011 survey was conducted at the household level across the
five countries of Burundi, Kenya, Rwanda, Tanzania and Uganda. According to this report, the
corruption prevalence for Tanzania has increased by 3% since 2010. In 2010, the country was in
4th Position as the least corrupt country in the region before Rwanda. However, the 2011 report
ranks Tanzania in 3rd Position after Uganda which indicates that Tanzania did not perform well
in this year. Comparatively, below is the chart showing the bribery prevalence.
Country Rank
Country
in 2011
Bribery Prevalence Rank in 2010 Bribery Prevalence in
in 2011
2010
1
Burundi
37.9%
1
36.7%
2
Uganda
33.9%
2
33.0%
3
Tanzania
31.6%
4
28.6%
4
Kenya
28.8%
3
31.9%
5
Rwanda
5.1%
5
6.6%
Source: East Africa Bribery Index 2011 report
According to the chart above corruption prevalence is increasing in Tanzania together with
Uganda and Burundi. Our neighbours Kenya and Rwanda have managed to decrease the level of
corruption prevalence whereas Rwanda seem to be doing better in the fight against corruption
than the rest of East African countries.
The report as well produces findings at institutional level to determine the prevalence of
corruption in the 5 countries. In Tanzania, the police force ranks number one followed by the
Judiciary, the same as in 2010. The two institutions are perceived by citizens to be more corrupt
due to lack of transparency on how they operate. They are not user friendly to the general public
due to malpractice by its officials. The other 3 institutions which are in top five are reproduced in
the table below;
Rank in Tanzania
1
613
East Africa
Institution
Regional Rank
6
Police Force
Ibid.
206
Prevalence Score in
%
62.1
2
3
4
5
9
17
26
29
Judiciary
Immigration
Ministry of Land
Local Government
Authorities
57.1
45.6
37.8
36.9
A report conducted in prisons in 2011 found that the police force also is allegedly involved in the
fabrication of evidence. The LHRC visited prisons in Tanzania and interviewed inmates. In most
prisons visited, the remandees blamed the police force for fabricating cases against them. It is
evidenced with the number of remandees who stayed in prisons for a long time without being
taken to court. The number of remandees that have not been sent to court illustrates that there is
not enough reasonable and proper evidence to support the cases against them, as is illustrated in
the case below. One of the inmates in Magu had this to say; 614
Huku kwetu bwana ukikamatwa na polisi kutoka si rahisi, kama mimi kesi yangu ni ya mauaji
lakini sijui hata nilimuua nani! Tulikamatwa na wenzangu ila wameachiwa baada kutoa kitu
kidogo. Mimi kwa kuwa sina uwezo sijui hata familia yangu inaendeleaje, basi ndio hivyo nangoja
kupelekwa mahakamani.
[In our area, getting out once arrested by the police is very tough. I have a murder case yet I have
no idea of the person I killed. I was arrested with several others, but my colleagues were released
after they dished something. I am stuck here because I have nothing to give them and have no idea
how my family is. I am simply waiting to be taken to court.]
9.5 Political Corruption
Corruption and politics cannot be dealt in isolation because it is through political arrangements
where grand corruption emerges and survives. Scholars have defined political corruption as the
use of legislated powers by political figures and government officials for illegitimate private gain
citation. Prior to 2011, it seemed that corruption was rampant during election processes.
However, the assumption was defeated with serious allegations of corruption implicating
Members of Parliament as well.
9.5.1 Corruption in Elections
Corruption allegations connected with the 2010 general election continue to be brought to
justice, though at a very slow pace. One of the cases which have been filed by the PCCB in
Mtwara region implicates the councilor for Naliendele ward for having bribed CCM supporters
during opinion polls. She is accused of corrupting 51 voters in order to be nominated as a
political candidate for CCM. 615
Also during 2011 by-election in Igunga, corruption practices were as well reported. Serious
allegations were posed against political parties to use food insecurity in Igunga as a campaign
614
TLS, Op Cit.
PCCB – Mtwara, Press Statement, “Diwani (CCM) Kata ya Naliendele – Mtwara Afikishwa Mahakamani kwa
Rushwa” 23rd June, 2011 page 1.
615
207
tool. In some of the campaign meetings, TACCEO observed that food was provided to the
citizens.
LHRC urges the Registrar of Political Parties to make public the report on the implementation of
the Elections Expenses Act, 2010 to identify corrupt practices during elections.
9.5.2 Corruption in the Parliament
Corruption and bribery as previously mentioned, does not have an independent existence within
society; it enters all aspects of society including the Bunge. Corruption allegations against
Members of Parliament were brought forward by Hon. Beatrice Shelukindo. 616 One of the
allegations was against the Permanent Secretary of the Ministry of Minerals and Energy. It was
argued that the Minister requested funds from 21 institutions under his Ministry. The purpose of
the raised funds undoubtedly was to facilitate the approval of the Ministry budget. This led to the
suspension of the Permanent Secretary to allow investigation under a special Parliamentary
Committee; however, it was not honoured. The Chief Secretary reinstituted the suspect
Permanent Secretary to office before the Parliamentary Committee accomplished its work. In
order to rescue the situation, the President suspended the Permanent Secretary in order to pave
way for the Parliament to do its job.
Energy and Mineral’s Minister (r) in
flamboyant mood as he hugs the
Permanent Secretary of his Ministry
during his triumph return after the
sus7pension.
The words of the Chief Secretary during a press statement shocked the public by saying that;
‘Huu ni utaratibu wa ‘kawaida’ (This is a routine). The LHRC believes that the situation is
worse than what it seems to be and the so called “Utaratibu wa Kawaida” should be put under
scrutiny.
Other corruption allegations raised during the budgetary Parliament session include the
accusation by Hon. David Kafulila to other three MPs who were trying to solicit bribes from the
Handeni District council and Kisarawe District. 617
616
617
An MP for Kilindi Constituency.
Neville Meena “Rushwa yazidi kulitikisa Bunge” 20th July, 2011.
208
Members of Parastatal Organisation Accounts Committee of the Parliament (POAC) led by Hon.
Zitto Kabwe were allegedly to have received bribe from the Consolidated Holdings Company
(CHC). The Minister of Finance accused the committee for acting on favour of the CHC. The
government planned to dissolve CHC but the committee continued to defend its operation. 618
Lastly, letters with fake signatures of the Prime Minister were as well disclosed in Parliament.
‘Tanzanians where are we heading?’ this was seen as simple joke that MPs tried to make to one
another, though legally this is a very serious matter.
LHRC considers these allegations to be a serious abuse of power by government officials and it
is worse that even the Parliament is corrupted. Corruption has destroyed the image of the
Parliament and the government in the eyes of the community and the world at large.
The LHRC further urges tough measures should be taken against every senior government
official involved in corruption scandals. These measures should not only be imposed to the
Permanent Secretaries, but also to the Ministers. The PCCB is urged to investigate all these
scandals, since they tarnish the image of the Parliament to community.
9.6 Abuse of Power
Abuse of power has been defined prior in this chapter, but it offends no one if it is further
scholarly defined in a democratic perspective. Abuse of power means failure by the government
and its agencies to act according to the law in governing the State. 619 The abuse of power always
tends to be more prevalent where there are no citizen’s based oversight institutions and where
there is monopoly of power by public officials, exercised with impunity. 620 The institutions
responsible for coordinating and regulating good governance in the country are under the
executive branch of the state.
In Tanzania, it is very difficult for public officials to be answerable since the investigative
institution is structured to report in the executive branch. To avoid what is so called ‘kulindana’
the perpetuation of the culture of impunity among senior public official’s institutions like PCCB,
the Commission of Human Rights and Good Governance and the Ethics Secretariat should be
answerable to the Parliament.
There is leadership crisis in our country; however it could be argued that the crisis is all over
Africa. In the words of the great Nigerian author Chinua Achebe:
The trouble with Africa is simply and squarely a failure of leadership. There is nothing basically
wrong with the African character. There is nothing wrong with the African land or climate or
water or air or anything else. The African problem is the unwillingness or inability of its leaders to
rise to the responsibility, to the challenges of personal example which are the hallmarks of true
leadership.
Chinua Achebe states that it is the role of public officials to ask if they are discharging their
duties responsibly or irresponsibly. For example a report by the Controller and Auditor General
618
www.corruptiontracker.or.tz/.../index.php
Kijo-Bisimba H., and Peter C. M, Justice and Rule of Law in Tanzania: Selected Judgments and Writings of
Justice James L. Mwalusanya and Commentaries; Dar es Salaam, Legal and Human Rights Centre, 2005 page 556.
620
Ibid.
619
209
(CAG) for 2009/10 revealed that retired government officials, our beloved deceased and ghost
workers are still on the government payroll. 621 This is a sign of irresponsibility on part of the
public officials on duty.
Similar to corruption cases, there are several incidences of abuse of power which the State has
failed to handle. This has eroded the confidence of the citizens to the government. Such
incidences of abuse of power include the following:
9.6.1 Illegal Export of Wildlife
The Wildlife Conservation Act, 2009 622 was enacted to repeal and replace the Wildlife
Conservation Act, 1974. 623 The Wildlife Conservation Act, 2009 was enacted to provide for
better provisions with respect to conservation, management, protections and encourage
sustainable utilization of wildlife and its products. One of the management processes as provided
for is the wildlife capture. The law prohibits capture of wildlife without a licence and adherence
to proper procedures. The Minister responsible has a final say on any decision made pertaining to
the Act. The act reads:
[t]he director may subject to the approval of the Minister grant capture permit subject to such
conditions as to the method of capture, care, stabling, feeding, crafting, transporting and exporting
of animals as specified in the regulations. 624
It was revealed during a budget session for the year 2011/12 that in November 2010 about 120
various species of wildlife and 60 of birds were illegally transported abroad. 625 The Minister
responsible suspended three directors and ordered investigations as to their involvement to be
conducted immediately. The suspects have been arrested and charged at the Resident Magistrate
Court in Moshi. 626
LHRC believes that the suspension of the officials was done just for the sake of approving the
Ministry’s budget by the Parliament. It is construed to be a political driven agenda with no real
goal to preserve the country’s natural resources for the future generation.
LHRC urges the government to take serious measures against anyone who is found involved in
illegal wildlife trade. Further, LHRC requests the MPs to continue pursuing the matter as it was
raised in order to preserve the natural heritage that the country is endowed with.
9.6.2 Corruption Scandals in the Ministry of Land and Human Settlement Development
The PCCB has taken 8 public officials from the Ministry of Lands and Human Settlement
Development to court. The scandal in this Ministry confirms the reports on Corruption
Perception index, which ranks the Ministry at the top list among corrupt institutions in Tanzania.
621
Exuper Kachenje “Mrema: Tumebaini mishahara hewa ya Sh 792 milioni” Tanzania Daima, 29th March, 2011.
LAAC has revealed that about 792 million paid to non-existing employees in the local governments in various
district councils and municipals in the country.
622
Act No. 5 of 2009.
623
Cap. 283 of R.E 2002.
624
Section 50 of the Wildlife Act, 2009.
625
Bunge la Tanzania: Majadiliano ya Bunge, Mkutano wa Nne, Kikao cha Arobaini na Tisa, 17th Agosti, 2011 page
37.
626
Ibid page 38.
210
The East African Bribery Index in 2011 has ranked the Ministry of Land and Human Settlement
Development in the 7th position. 627 In 2010 the Ministry was in the 8th position thus the level of
corruption and abuse of power in this Ministry is increasing. 628
9.6.3 Major Business Companies vs Tax Evasion
While addressing a closing session of the budgetary Parliament of the financial year 2011/12, the
Prime Minister Hon. Mizengo Kayanza Peter Pinda named the leading 15 tax payers in the
country. The list of the leading tax payers posed some critical questions to citizens and activists
as to why some of the re-known big companies were not there. According to him ( the Premier)
the leading tax payers in the country are:
Rank
1
2
3
4
5
6
7
8
9
10
11
12
13
Tax payer
Tanzania Breweries Ltd
National Microfinance Bank
Tanzania Cigarette Company Ltd
National Bank of Commerce
CRDB
Tanzania Ports Authority
Tanzania Portland Cement Ltd
Airtel (T)
Tanga Cement Company Ltd
Standard Chartered Bank Ltd
Citibank (T) Ltd
Resolute (T) Ltd
Tanzania International Container
Terminal Services (TICTS)
14 Tanzania Distillers Ltd
15 Group Five International (PTY) Ltd
Source: Hansard ……
Amount in billions
165.4
108.6
92.1
89.9
79.2
76.8
73.4
63.6
43.6
40.0
35.7
32.1
25.9
13.4
9.5
The LHRC and other civil society organizations such as the Agenda Participation 2000 noted
that there are several big companies which are not among the top fifteen tax payers. This issue
was also raised in the Parliament by Hon. Amina Abdalah Amour who was quoted as saying
that;
Mheshimiwa Spika, kuna makampuni mengi tu hayalipi kodi, mengine wafanyakazi wa TRA
hawayajui na mengine wanayajua lakini wanachukua rushwa na kuyaachia yale makampuni
yaendelee kufanya kazi bila kulipa kodi. Naishauri Serikali ifuatilie na wanaobainika kufanya
hivyo wachukuliwe hatua mara moja. 629
627
East African Bribery Index, 2011 page 41.
629
Bunge la Tanzania, Majadiliano ya Bunge, Mkutano wa Nne, Kikao cha Hamsini na sita, 26th August, 2011 page
37.
628
211
Honourable Speaker, there are several companies involved into tax evasion, some unknown to
TRA staff, while some are very much known yet they solicit bribes and leave them masquerade
without paying taxes. I call upon the government to follow up and immediate steps should be
taken to those found to have been involved.
For example, Vodacom Tanzania Ltd. openly claims to have 10 million customers and has
financial products which are widely used such as M-Pesa. However, Vodacom is not listed. On
the contrary, Airtel (T) with only 4.9 customers ranks 8th position in the list. Other notable
companies missing from the list include Serengeti Breweries Ltd and Salim Said Bakhresa & Co.
Ltd. There are also several mining companies that do not appear in the list.
According to the Tanzania Extractive Industries Transparency Initiative (TEITI) report on the
mining sector in Tanzania, the leading tax payers are Bulyanhulu, North Mara and Pangea
(Tulawaka and Buzwagi), Geita Gold Mine and lastly is Resolute (T) Ltd. It is ridiculous to find
out that only Resolute has appeared on the list of top ten tax payers. Tax collection is of utmost
importance initiative in a democratic society, for sustainable development.
9.6 .4 Unnecessary Expenditures
The government commitment in the budget speech for the financial year 2011/12 was to narrow
down unnecessary expenditures. The Minister of Finance was quoted saying;
…rationalize and scale down various allowances, cut down fuel costs on government vehicles,
reduce the number of internal and external trips, together with reducing the size of delegations and
continue ensuring that seminars and workshops are curbed and where necessary should be under
approval by the Prime minister’s office. 630
LHRC finds that the commitment of the government to cut down expenditures has been
dishonored. The data in the chart shows whether the budget reflects its commitment:
Expenditure
Allowances
Travel expenses
Fuel and vehicles maintenance
Seminars, Workshops and trainings
Amount allocated in 2010/11
in bn.
263
126
48
54.5
Amount allocated in
2011/12 in bn.
262
137
51.5
57.5
Source: Volume II Estimates of Public Expenditure Consolidated Fund Service 2011/12.
The LHRC urges public officials who receive privileges such as transport and housing
allowances and other benefits attached thereto, to use them diligently. It is evident that some
personal costs of public officials are being paid for with tax payer’s money, such as the use of
government vehicles for personal issues.
630
Hon. Mustapha Mkulo, the Minister of Finance, National Budget Speech 2011/12.
212
9.7 Investment with Corruption Elements
9.7.1 Dowans Case: A Nightmare Still Haunting Tanzania
The Dowans saga will survive for generations to come as one of the most dubious contract the
government of Tanzania has ever entered into since its independence. It should be noted that
there is a common law principle that, ‘A right cannot accrue from a nullity.’ The Dowans saga
originated from the Richmond era in 2007, where the Parliament declared that the deal was
dubious. Richmond was contracted to generate power in cases of emergencies, however it did not
manage to perform its contractual obligations. The Richmond Development Company LLC
(REDVO) as clearly pronounced by the Hon. Judge Mushi transferred its obligations to Dowans,
as he says;
…thus; unable to perform the Agreement, REDVCO (unaware of TANESCO), On 14th December,
2006, entered into a secret assignment of its contractual rights and obligations to a company
known as DOWANS HOLDINGS S.A (COSTA RICA) 631
A claim was then made by Dowans against the government to pay fine owed to REDVCO to
Dowans under this new arrangement. This claim caused outrage because the large award would
have to be paid from taxpayer’s money. Since the pronouncement of the Arbitral Award No.
15947/VRO of 2010, the Dowans saga took a different turn. A series of events have occured
regarding the payment of Dowans. These include:
i)
Civil societies under the lead of the LHRC filed a petition before the court of law to
challenge the registration of the arbitral award. 632 However, they were ruled out, as the
court found that they were not interested parties and had locus standi;
ii) The President of the United Republic of Tanzania publicly declared that he: “Does not
know who the owners of Dowans are”. He was quoted as saying; “Huyo Dowans
mwenyewe mie wala simjui”. This is a very disappointing statement from the Head of the
State whose entire citizens had banked on him to rescue the situation;
iii) A few days after, the purported owner of Dowans, Brigadier General (Rtd) Sulaiman
Mohammed Yahya Al Adawi 633 arrived in the country and had an opportunity to talk to
senior journalists under the condition that he should not be recorded nor could they take
his photo. He promised to reduce the award if the government allowed negotiations;
iv) On the 28th Day of September, 2011 the High Court of Tanzania at Dar es Salaam
pronounced the final judgement that the petition filed to challenge the registration of the
Arbitral award was dismissed with costs. Mushi, J stated; “It is hereby ordered that, in
terms of section 17 of the Arbitration Act Cap 15 [R.E 2002], the ICC’s Final Award
631
Legal and Human Rights Centre (LHRC) & Others Versus Dowans Tanzania Limited (Tanzania) & others, Misc.
Civil Application No. 8 of 2011 (unreported) page 4.
632
In this petition LHRC joined efforts with other two NGOs, The Lawyers Environmental Action Team (LEAT)
and SIKIKA Company Limited and the fourth petitioner was a natural person one Timothy Kahoho. In dismissing
the Misc. Civil Application No. 8 of 2011, Mushi, J. had this to say; “I am satisfied that the Petitioners have not
succeeded showing that they have the right and/or interest (cause of action/locus standi) to issue and serve the
Petitions against the Respondents”.
633
Waandishi Wetu “Mmiliki wa Dowans Anena” Mtanzania 21st February, 2011.
213
filed in this court, be formally registered and should be a decree of this court and
enforceable as such. It is so ordered”; 634
v) Civil societies, trade unions, Students of Higher Learning institutions, employees of
TANESCO, the former employees of the defunct East Africa community organized a
peaceful procession on 29th October, 2011, however the police disallowed it on
unfounded security grounds.
LHRC along with the general public have played their part to see that tax payer’s money is not
sacrificed for nothing. For now, the only hope is with the government to decide the fate of
Tanzanians. The LHRC suggests that the Government should;
i) Take legal actions against all public officials involved in this dubious deal. It should as well
consider confiscating all their belongings to raise money to pay Dowans;
ii) Be answerable to the parliament for willful refusal to implement the 23 recommendations of
the special parliamentary committee which led to resignation of the former Prime Minister
and automatic dissolution of the cabinet in 2007;
iii) Avoid such dubious contracts in the future and it should present a bill to the Parliament to
incorporate public participation in the public procurement process;
iv) Pay all former East African Employees who have been in the courts corridor for more than
30 years now. For more details read chapter six; supra.
Lastly, words of a famous human rights activist advocate Harold Sungusia of the LHRC are of
utmost important at this juncture. He said;
Mwizi na mlinzi wameshirikiana kuiba, je mwenye mali afanyeje?
[A guard and a thief have conspired to still, what can the owner possibly do?]
9.7.2
The Sale of UDA
UDA stands for Usafirishaji Dar es Salaam established on 4th June, 1974 when its fore-runner
the Dar es Salaam Motor Transport (DMT) was dissolved. In early February 2011, UDA was
sold to Simons Group Ltd, but the Public Organisation Accounts Committee of the Bunge
revealed a fraudulent transaction, or Ufisadi. The Parliamentary Committee revealed that part of
the purchase price was paid to the ex-cabinet Minister Iddi Simba through his personal account.
The Executive Chairman of Simon Group was quoted saying:
We had paid the money as part of the purchase price. It was paid to Simba as directed by the UDA
management. 635
The LHRC advises the government to involve the legislature in long-time investments contracts
to ensure they are entered for the public interests. It will be of public interest to see increased
public participation through the Bunge. The LHRC casts doubts on whether Members of
634
Tanzania Electric Supply Company Ltd Versus Dowans Holdings S.A (Costa Rica) & Dowans Tanzania Limited,
Misc. Civil Application No. 8 of 2011 in the High Court of Tanzania at Dar –es salaam District Registry page 89.
635
The Citizen team “Puzzle as UDA millions paid to board chairman” the Citizen, 3rd August 2011 page 1.
214
Parliament who double as members of the board of directors in various public companies,
represent public interests.
Finaly, LHRC urges all Members of Parliament who are members of boards in various
institutions to report accordingly any dubious deal before it gets worse.
9.7.3
KAGODA Agriculture Ltd
Where does this heavy investment of Kagoda Agriculture Ltd. operate in implementing Kilimo
Kwanza? The name suggests that it must be engaging in agricultural related activities; however
its whereabouts is unknown. For years now there has been pressure from civil society, media and
members of Parliament to unveil the myth behind Kagoda, but they have been unsuccessful. This
year, while witnessing other culprits who stole money in the EPA scandal, the Court sentenced
other people to five years imprisonment for stealing Tsh 1.864 billion. 636 The Kagoda
Agriculture Ltd. siphoned Tsh. 40 billion and no legal action has been taken so far as people
involved in Kagoda remain to be discreet.
LHRC urges the state prosecution machinery to take this matter to court to be determined
accordingly. The prosecution machinery should observe the basic principle of equality before the
law as provided for in the Constitution.637 This scandal tarnishes the image of the country and
endangers peace and security. Nevertheless, Kagoda Agricultural is not the only company that
raises questions; others include Meremeta Limited, Tangold Limited and Deep Green Finance
Limited. 638
LHRC is of the view that, government officials involved into dubious deals should be held
accountable as an observance of good governance and the rule of law.
636
Ibid.
Article 13 of the Constitution of United Republic of Tanzania, 1977.
638
Bunge la Tanzania: Majadiliano ya Bunge, Mkutano wa Nne, Kikao ch Hamsini na Nne, 24th August, 2011 page
191.
637
215
Chapter 10
International Human Rights Law
10. Introduction
International human rights laws come in many forms. Some international human rights laws exist
solely to provide guidance for states on how to develop the law; some provide internationally
recognized standards for human rights while others create binding obligations for States to
follow. All laws, whether Tanzania is a party to or not, are important to Tanzanian society as
they provide the international framework of accepted human rights standards. This section will
explore the various types of international instruments and examine whether Tanzania has made
international commitments to uphold human rights.
10.1 How International Law Binds Tanzania Domestically
Tanzania is a party to a number of international human rights agreements; both binding and nonbinding. The binding instruments include covenants, statutes, protocols treaties and conventions
and are legally binding for those States that ratify or accede to them. The only difference
between ratification and accession is that ratification follows the signing of the treaty and
accession does both in one step. 639
In Tanzania, a treaty must be ratified or acceded and domesticated to become part of domestic
legislation and thus binding. The process of ratifying any treaty is stipulated under the provisions
of the Constitution of the United Republic of Tanzania, 1977, which states that:
“the National Assembly (the Parliament) shall deliberate upon and ratify all treaties and
agreements to which Tanzania is a party and the provisions of which require ratification by ‘Yes’
or ‘No’ votes of the Members of Parliament. In order for a treaty to be completely adopted
domestically in Tanzania, the national law must then be modified to reflect the principles of that
treaty.” 640
The non-binding instruments have no enforcement mechanisms, but the States that sign commit
themselves to adhere to those instruments voluntarily. Declarations, principles, guidelines,
standard rules and recommendations have no binding legal effect, but such instruments have an
undeniable moral force and provide practical guidance to States in their conduct. 641 In recent
years, the international human rights law has had an ever-growing impact on domestic judges,
prosecutors and lawyers 642 (even for the treaties and other instruments which Tanzania has not
ratified). It is therefore important to assess at both treaties that Tanzania has ratified and
domesticated and those it has not.
639
UNICEF http://www.unicef.org/crc/index_30207.html
LHRC (2010) Tanzania Human Rights Report 2010 page 260.
641
http://www2.ohchr.org/english/law/
642
LHRC (2010) Tanzania Human Rights Report 2010 page 261.
640
216
It is clear from the observation that Tanzania has not been upholding its international obligations
to regularly report and domestically implement aspects of instruments it has signed. Tanzania has
also failed to sign and ratify fundamental international legal rights documents.
10.2 Adoption of International Human Rights Instruments
10.2.1 International Bill of Human Rights
The major binding international human rights instrument is the United Nations International Bill
of Human Rights. 643 The International Bill of Human Rights is a combination of several binding
documents. The documents were separated in order to allow States to agree to parts of the Bill in
order to secure even minimal support for human rights. However, no part of the International Bill
of Human Rights is less important than the other.
The following are instrument components to the Bill of Human Rights:
a)
b)
c)
d)
The United Nations Charter, 1945;
Universal Declaration of Human Rights, 1948;
International Covenant on Economic, Social and Cultural Rights, 1966;
Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, 2008 (not yet in force due to lack of signatories);
e) International Covenant on Civil and Political Rights, 1966;
f) Optional Protocol to the International Covenant on Civil and Political Rights, 1966;
g) Second Optional Protocol to the International Covenant on Civil and Political Rights,
aiming at the abolition of the death penalty, 1966. 644
Out of these key instruments, Tanzania has only signed and ratified the International Covenants
on Economic, Social and Cultural Rights and the International Covenant on Civil and Political
Rights but has not signed any of the Optional Protocols. The two Covenants press Member
States to promote human rights but they do not establish a legal mechanism for its enforcement.
Both the First Optional Protocol to the International Covenant on Civil and Political Rights and
the Optional Covenant to the International Covenant on Economic and Social Rights allow for
individuals or groups within a State to file complaints of human rights abuses directly to the
Human Rights Commission after all domestic remedies are exhausted. They also allow the
Human Rights Commission to investigate report and make recommendations on the actions of
member states where human rights offences are suspected.
Tanzania has ratified the parent documents, however, failure to ratify the protocols, means that
individuals may have no recourse if the State fails to protect their rights. The Second Optional
Protocol to the International Covenant on Civil and Political Rights aims at abolishing the death
penalty, something which Tanzania is yet to undertake, as discussed in the previous sections.
643
644
217
10.2.2 Other Binding International Human Rights Treaties
There are nine core International Human Rights Treaties, some of which are supplemented by
Optional Protocols. 645 Two of the instruments are the Protocols to the International Covenants
discussed in the previous section. The seven remaining instruments are listed below and the
Tanzanian ratification status.
Sn.
International Human Rights Instruments
Status
1.
Convention on the Rights of the Child, 1989
Signed in June 1990,
Ratified in June and
domesticated in
November 2009
International Convention on the Elimination of All Forms of
Racial Discrimination, 1966
Aceeded on 1972
2.
3.
Convention on the Elimination of All Forms of
Discrimination against Women, 1979
Signed in July 1980
and Ratified in August
1985
International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families, 1990
Not yet signed
4.
5.
International Convention for the Protection of All Persons
from Enforced Disappearance, 2006
Signed in September
2008 but not yet
ratified
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1984
Not yet signed
6.
7.
Convention on the Rights of Persons with Disabilities, 2006
Signed in March 2007,
Ratified and
Domesticated in
November 2009
Source: United Nations Treaty Collection, Charter IV: Human Rights. http://treaties.un.org
Tanzania has neither signed nor ratified the following International Instruments:
• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, (1984); This Convention defines and prohibits torture and commits States to
prohibit by law and prosecute all forms of torture. 646
•
The International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families, (1990) protects people working in a foreign country
645
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984;
http://www2.ohchr.org/english/law/cat.html
646
218
classified as migrant workers from discrimination, slavery, exploitation and oppression,
while also guaranteeing them their human rights. 647
Tanzania has also adopted two more important documents for human rights. The first is the
United Nations Convention on Corruption, (2005) and the second is the United Nations
Convention on the Status of Refugees, (1951).
The Convention on Corruption binds States to prevent and eradicate corruption in both the public
and private sectors through activities such as disciplining corrupt government officials,
promoting transparency in the use of public finances, strengthening the integrity of the judiciary,
and enhancing auditing in the private sector. 648
The Convention on the Status of Refugees together with its Optional Protocol defines the term
“refugee” and sets the minimum standards for the treatment of any persons fitting that
description within the borders of that country. 649
Tanzania is also a signatory to several regional treaties as a member of the African Union (AU);
including the African Charter on Human and Peoples’ Rights (1981) (ACHPR), ratified in 1984,
the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa, (2003) (The Maputo Protocol) ratified in 2007 and the African Charter on the Rights and
Welfare of the Child (1990) (ACRWC), ratified in 2003. Tanzania has also signed the OAU
Convention Governing the Specific Aspects of Refugee Problems in Africa, (1969).
10.2.3 Non-Binding International Human Rights Instruments
Some Declarations adopted by the General Assembly are not legally binding but rather are
expressions of political commitment by States that vote in their favour. There is no official
ratification or signing onto these Declarations, but States may express their opinions through
voting or by making official statements. Those Declarations that Tanzania voted in their favour
have strict endorsement and commitment from the government and therefore should be followed.
The international documents are very persuasive in international law as statements of
internationally accepted standards. One important Declaration voted for by Tanzania and 142
other nations was the United Nations Declaration on the Rights of Indigenous Peoples (2007).
Most of the countries that voted against or abstained have since declared their support. In voting
in favor of the Declaration, Tanzania expressed its commitment to "emphasize the rights of
indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and
to pursue their development in keeping with their own needs and aspirations.” It prohibits
discrimination against indigenous people, and it promotes their full and effective participation in
all matters that concern them and their right to remain distinct and to pursue their own visions of
economic and social development. 650
647
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,
1990 Accessed at http://www2.ohchr.org/english/law/cmw.html
648
United Nations Convention on Corruption, 2005;
www.unodc.org/pdf/corruption/publications_unodc_convention-e.pdf Accessed at
649
Convention and Protocol Relating to the Status of Refugees, 1951, United Nations High Commission for
Refugees.; Accessed at http://www.unhcr.org/3b66c2aa10.html
650
United Nations Declaration on the Rights of Indigenous Peoples, 2007; General Assembly Resolution
A/61/L.67; Accessed at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
219
Another important document is the United Nations Declaration on Human Rights Defenders
adopted by the General Assembly in 1999. While the United Nations Declaration on Human
Rights Defenders is not a legally binding document, it contains a series of principles and rights
that are based on human rights standards enshrined in other international instruments that are
legally binding, such as the International Covenant on Civil and Political Rights.
States are increasingly considering adopting the Declaration as binding national legislation. The
Declaration places a moral obligation on States to allow the formation of non-governmental
organizations, to protect human rights defenders, to allow them to carry out their work in human
rights promotion without prejudice or threats to life. 651
10.2.4 International Labour Organization Conventions
There are also United Nations Human Rights mechanisms under the International Labour
Organization (ILO). The ILO is an agency of the United Nations that focuses on labour
standards. It is the only tripartite United Nations agency combining governments, employers and
workers’ representatives in order to have a comprehensive debate with equal representation on
labour practices and policies. 652 The ILO has 183 members including Tanzania. The work of the
ILO is directly related to human rights standards as it works to ensure that the individuals
working in member states are not exploited by their employers with no consideration for their
health, families or economic advancements.
The labour standards attempt to create humane working conditions with a just remuneration.
Labour standards directly relate to the Constitution’s guarantee to the right to life by providing
the ability to earn a living, to pay for food and shelter, to be free from slavery and to be free from
exposure to life threatening hazardous substances. The labour standards also relate to right from
discrimination, guaranteeing proper wages regardless of ethnicity or gender. Eight ILO
Conventions have been identified by the ILO’s governing body as being fundamental to the
rights of people regarding employment.
The members of the governing body agreed that these minimum standards should be upheld
irrespective of levels of development of individual member states. Tanzania has ratified all eight
core labour conventions. These are:
Sn.
ILO Convention
Status by the GoT
1.
Forced Labour Convention, 1930
Ratified 1962
Freedom of Association and Protection of the Right to
Organise Convention, 1948
Ratified 2000
2.
651
Declaration on the Rights and Responsibilities of Individuals, Groups and Organs of Society to Promote and
Protect Universally Recognized Human Rights and Fundamental Freedoms, General Assembly Resolution
A/RES/53/144. Accessed at http://www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/a.res.53.144.en
652
http://tb.ohchr.org
220
Sn.
ILO Convention
Status by the GoT
Ratified 1962
3.
Right to Organise and Collective Bargaining Convention,
1949
4.
Equal Remuneration Convention, 1951
Ratified 2002
5.
Abolition of Forced Labour Convention, 1957
Ratified 1962
Discrimination (Employment and Occupation)
Convention, 1958
Ratified 2002
6.
7.
Minimum Age Convention, 1973
Ratified 1998
8.
Worst Forms of Child Labour Convention, 1999
Ratified 2001
Some of important Conventions in the ILO which Tanzania has not signed include the (ILO)
Recruiting of Indigenous Workers Convention, 1936 and the (ILO) Indigenous and Tribal
Peoples Convention, 1989 which Tanzania has not signed. Tanzania did ratify the Recruiting of
Indigenous Workers Convention, 1936; in 1962. Tanzania has neither ratified nor signed the
more recent Indigenous and Tribal Peoples’ Convention of 1989.
The Convention applies to tribal peoples in independent countries whose social, cultural and
economic conditions distinguish them from other sections of the national community and whose
status are regulated wholly or partially by their own customs, traditions, special laws or
regulations.
The Convention calls on States to ensure that indigenous and tribal peoples are able to participate
in economic life according to their cultures and traditions without discrimination and also call on
States to actively eliminate any socio-economic gaps in the society. 653
The LHRC calls upon the government to sign and ratify this important Convention and work
diligently to implement its principles for the development of indigenous and tribal peoples in
Tanzania.
10.3 Treaty Reporting Requirements
After the States sign an international instrument, they not only commit themselves to uphold the
principles in that treaty, but also ought to regularly report on the progress of its implementation
and adherence. Tanzania is entitled to submit periodic reports on all covenants ratified to the
Treaty Monitoring Bodies. These reports force a State to keep track of progress and demonstrate
to the international community that all necessary steps are being taken to uphold the human
rights standards contained in that treaty and that the State takes the matter seriously.
653
Indigenous and Tribal Peoples Convention, 1989 Accessed at http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169.
221
Tanzania lags behind in fulfilling its reporting obligation to the UN Human Rights Committee as
required. The reporting requirements are quite taxing and not all States have the resources to be
able to complete them in time. Reporting takes significant coordination, dedication of staff
resources, and expertise, some of which may not be available in some States. There are many
reports to be filed and varying deadlines. Where a government is already pressed for staff
resources it is not easy to determine which reports need filing or complete the work required to
fill out a report. The government must also be dedicated to report and take it as a serious task.
The government of Tanzania has not displayed a serious commitment to complete reports or
even show any indication that reporting on human rights is a priority.
Some of the delays on submitting the reports to the Human Rights Commission were detailed in
the Tanzania Human Rights Report of 2008. 654 These delays are still ongoing as no reports have
been submitted since that time and there is no progress made ever since despite the pressure from
the LHRC and other organisations. A summary of some of the reporting delays is listed below:
i.
The International Covenant on Civil and Political Rights, 1966 requires all member
states to submit a report every five years. Tanzania last submitted a periodic report on
October 8th, 2007 with a supplementary report added in April 2009. The report was
approximately five years late. Tanzania’s report was reviewed by the UN Human Rights
Committee on July 12th and 13th, 2009 and concluding observations of the Committee
were released on August 6, 2009. 655
ii.
The International Convention on the Elimination of All Forms of Racial Discrimination,
1966, requires member states to submit a report after every two years. Tanzania
submitted its eighth to sixteenth reports to the Committee on August 2nd, 2005. However,
it is yet to submit its seventeenth and eighteenth reports, which were due on 26
November 2007. 656
iii.
Under the Convention on the Elimination of all Forms of Discrimination against Women,
1979, a member state has to submit a report after every four years. Tanzania submitted its
fourth, fifth and sixth periodic reports to the CEDAW Committee on 30th March, 2009.
These reports were submitted approximately five years later. 657
iv.
The Convention on the Rights of the Child, 1989. Tanzania is required to submit a report
every five years. The last time Tanzania submitted its report to this Committee was on
October 20th, 2004. The report was approximately six years late. Tanzania’s next report is
due on 9th January 2012. 658
v.
On July 7th, 2007, Tanzania submitted a periodic report (comprising the initial report of
the State part) to the Committees for the Optional Protocol to the Convention on the
654
http://tb.ohchr.org
656
http://tb.ohchr.org
657
http://tb.ohchr.org
658
See: http://www2.ohchr.org/english/bodies/crc/crcs49.html
655
222
Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography,
2000. This report was due in 2005 making the government of Tanzania two years late. 659
vi.
Tanzania submitted its report for the Optional Protocol to the Convention on the Rights
of the Child on the Involvement of Children in Armed Conflict, 2000 in August 2008,
which was also more than a year late. 660
vii.
The International Covenant on Economic, Social and Cultural Rights, 1966 requires
member states to submit periodic reports after every five years. While Tanzania ratified
this instrument in 1976, it submitted a combined report of initial, ‘1st, 2nd, 3rd, and 4th
periodic reports’ on 25th August, 2009, which again was over 33 years late. 661
The government of Tanzania has been perfoming poorly in implementing its reporting
obligations on time due to lack of specific coordination of obligations to the treaty monitoring
bodies, insufficient capacity and knowledge on requirements of periodic reports and insufficient
funds to conduct research and data collection.
The LHRC would like to reiterate a previous recommendation that the government of Tanzania
should establish a specific Inter-Agency Committee(s) that would advise it on its obligations
under various human rights treaties. The Committee(s) should keep track of the UN timetables
and advise the government accordingly. It could be coordinated under the Human Rights
Department within the Ministry of Justice and Constitutional Affairs. 662 The government may
seek advice and assistance from UN bodies for the resources and expertise if it finds it difficult
to complete its obligations on time.
The LHRC also strongly advises the government to involve CSOs in all stages of the preparation
of the reports. This will reduce the current clashes of information between the government and
the CSOs when the treaty bodies review the reports.
Finally, it is hereby advised that, there should be specific Plan of Action, preferably under the
coordination of the proposed Inter-agency committee, to monitor the implementation of the
Concluding Observations (COs). 663 The COs contains instructions on issues which the State
party is supposed to implement within a certain period of time before the next reviewing session.
The CSOs are also advised to inter-play at this stage as well.
659
http://tb.ohchr.org
http://tb.ohchr.org
661
http://tb.ohchr.org
662
663
It should be noted that, after the deliberation of the country reports, normally the treaty bodies issue
recommendations known as Concluding Observations.
660
223
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MWEMA, Said: “Challenges of Enhancing Performance and Responsiveness in the Police
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2008.
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OLENGURUMWA, P: “1990s Land Law Reform and Impact on Pastoral Land Tenure” A Paper
Presented at the Consultative Workshop on the Proposed Tanzania Pastoral Week.
February 2010-Arusha.
OLENGURUMWA, P. & Tenga, R: “Half A Century Struggles By Pastoralists For Land Rights:
Examining Achievements, Challenges and The Proposed New Constitution As a
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OLENGURUMWA, O: “HIV/AIDS Pandemic in Tanzania: Situational Analysis in Legal and
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235
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Ministerial Speeches
BUDGET SPEECH: 2011/2012; Ministry Education and Vocational Training.
BUDGET SPEECH: 2011/2012; Ministry of Agriculture, Food Security and Cooperatives.
BUDGET SPEECH: 2011/2012; Ministry of Communication, Science and Technology.
BUDGET SPEECH: 2011/2012; Ministry of Community Development, Gender and Children.
BUDGET SPEECH: 2011/2012; Ministry of Defence and National Service.
BUDGET SPEECH: 2011/2012; Ministry of East African Co-operation.
236
BUDGET SPEECH: 2011/2012; Ministry of Energy and Minerals.
BUDGET SPEECH: 2011/2012; Ministry of Finance and Economic Affairs.
BUDGET SPEECH: 2011/2012; Ministry of foreign affairs and International Cooperation.
BUDGET SPEECH: 2011/2012; Ministry of Health and Social Welfare.
BUDGET SPEECH: 2011/2012; Ministry of Home Affairs.
BUDGET SPEECH: 2011/2012; Ministry of Industry, Trade and Marketing.
BUDGET SPEECH: 2011/2012; Ministry of Information, Cultural and Sports.
BUDGET SPEECH: 2011/2012; Ministry of infrastructure Development.
BUDGET SPEECH: 2011/2012; Ministry of Justice and Constitutional Affairs.
BUDGET SPEECH: 2011/2012; Ministry of Labour, Employment and Youth Development.
BUDGET SPEECH: 2011/2012; Ministry of Lands, Housing and Human Settlements
Development.
BUDGET SPEECH: 2011/2012; Ministry of Livestock and Fisheries Development.
BUDGET SPEECH: 2011/2012; Ministry of Natural Resources and Tourism.
BUDGET SPEECH: 2011/2012; Ministry of President’s office Public Service Management.
BUDGET SPEECH: 2011/2012; Ministry of Water and Irrigation.
Newspapers
Business Time Admin: “Africa faces ‘considerable risks’ from global downturn” Business Time
7th October, 2011.
Daily News Reporter: “Albino Child Survive by bitting assailant’s private parts” Daily News
16th October, 2011.
Godfrey Mushi:
“Ripoti ya Mauaji ya Nyamongo yakabidhiwa” Nipashe 23rd August,
2011.
237
Honest Ngowi:
“Implication of double digit inflation in Tanzania “The Citizen 22nd July,
2011.
Peti Siyame:
“Two elderly men died in Rukwa over witchcraft accusations” Daily
News, 17th August, 2011.
Rhobi Mgendi :
“CCT walia na ukeketaji Tarime” Mwananchi, 26th June, 2011.
Sarah Dickson:
“Baba Kortini kwa kumkeketa bintiye” Habari Leo, 15th September, 2011.
“Food and oil putting pressure on inflation, says BoT” The Guardian, 1st
Special Reporter
November, 2011.
Sunday:
“UN launches action plan to reduce road accidents” The Citizens 5th May,
2011.
Websites
http://gwendolyncuizon.suite101.com/what-are-positive-and-negative-rights-a97006.html
http://www.fidh.org/WORLD-DAY-AGAINST-THE-DEATH.Accessed
http://gwendolyncuizon.suite101.com/what-are-positive-and-negative-rightsa97006.htmlhttp://www.businessdictionary.com/definition/tradeunion.htmlhttp://www.businessdictionary.com/definition/trade-union.html
http://legal-dictionary.thefreedictionary.com/Mob+violence
http://wlac.co.tz/tapane
http://www.africaneconomicoutlook.org/en/countries/east-africa/tanzania/
http://www.amend.org/
http://www.amnesty.org/en/death-penalty/death-sentences-and-executions-in-2010.Accessed
http://www.businessdictionary.com/definition/tradeunion.htmlhttp://www.businessdictionary.com/definition/trade-union.html
http://www.helpage.org/where-we-work/africa/tanzania/=article&id=46&Itemid=14
http://www.humanrights.or.tz/wp-content/uploads/2011/07/Bi-Annual-2011-final-CompatibilityMode.pdf.See
http://www.ibn-tv.com/2011/06/police-alleged-to-strip-naked-artisanal-miners.
238
http://www.jamiiforums.com/international-forum/118521-tanzanian-woman-used-as-slave-winscase-against-former-hospital-director.html.Acc
www.wiego.org/category/occupational-
groups/domestic-workers
http://www.moha.go.tz/index.php?option=com_content&view
http://www.taknet.or.tz/viewtopics. Visited on 30th November, 2011
http://www.unodc.org/unodc/en/human-trafficking/what-is-humantrafficking.
http://www.unodc.org/unodc/en/human-trafficking/what-is-humantrafficking.
www.article19.orgt.php.
www.culturalsurvival.org.
www.fordifp.org .Accessed
www.judcom.nsw.gov.au.
www.mediafreedom.org.
www.underthesamesun.com.
www.who.int/healthsystems/publications/Abuja10.pdf
239
Part II
240
ZANZIBAR HUMAN RIGHTS REPORT OF 2011
Editorial Board
Prof. Chris Maina Peter
Mr. Ali Ahmed Uki
Ms. Safia Masoud Khamis
Ms. Josefrieda Pereira
Ms. Salma Haji Saadat
Ms. Harusi Miraji Mpatani
Ms. Mtumwa Said Sandal
Mr. Taki Abdallah Habibu
Ms. Jina Mwinyi Waziri
Mr. Jasadi Akhamed Bungala
Researchers & Writers
Mr. Omar Khalfan Sururu
Mr. Mohamed Khamis Hamad
Prepared under the Auspices of
©
ZLSC
2012
241
Table of Contents
Part II ............................................................................................................................. Error! Bookmark not defined.
ZANZIBAR HUMAN RIGHTS REPORT OF 2011 ............................................................................................ 241
LIST OF ABBREVIATIONS.................................................................................................................................... 246
LIST OF CASES ....................................................................................................................................................... 249
LEGISLATION ......................................................................................................................................................... 253
CHAPTER ONE ...................................................................................................................................................... 256
General Overview of Zanzibar ............................................................................................................................... 256
1.0 Introduction ......................................................................................................................................................... 256
1.1 History ................................................................................................................................................................. 256
1.2 Geography ........................................................................................................................................................... 257
1.3 People .................................................................................................................................................................. 258
1.4 Economy .............................................................................................................................................................. 258
1.5 Political System ................................................................................................................................................... 259
1.6 Judiciary .............................................................................................................................................................. 260
1.8 Conclusion ........................................................................................................................................................... 262
CHAPTER TWO ..................................................................................................................................................... 263
Civil Rights and Liberties ....................................................................................................................................... 263
2.0 Introduction ......................................................................................................................................................... 263
2. 1 Right to Life........................................................................................................................................................ 263
2.1.1 Road Accidents ................................................................................................................................................. 264
2.1.2 The Sinking of M.V Spice Islander I .................................................................................................. 265
2.3 Death Penalty....................................................................................................................................................... 266
2.4 Mob Violence ...................................................................................................................................................... 268
2.5 Freedom from Torture ......................................................................................................................................... 269
2.6 Equality before the Law -Equal Access to Justice for All ................................................................................... 270
2.6.1 Proximity, Availability and Infrastructures of Courts ........................................................................ 270
2.6.2 Shortage of Manpower ....................................................................................................................... 272
2.6.3 Court Fees ........................................................................................................................................... 273
2.6.4 Legal Education .................................................................................................................................. 274
2.6.5 Legal Aid ............................................................................................................................................ 274
2.6.6 Legal Representation .......................................................................................................................... 278
2.6.7 Delay of Cases .................................................................................................................................... 280
2.6.8 Independence and Impartiality of Judiciary........................................................................................ 280
2.7 Freedom of Worship ............................................................................................................................................ 283
2.8 Freedom of Expression ........................................................................................................................................ 284
2.8.1 Censorship of the Media Freedom ...................................................................................................... 285
2.8.2 Harassment of Journalists ................................................................................................................... 285
2.8.3 Poor Coverage for Public Broadcasting Media .................................................................................. 285
2.9 Conclusion ........................................................................................................................................................... 286
CHAPTER THREE ................................................................................................................................................. 287
Political Rights ......................................................................................................................................................... 287
3.0 Introduction ......................................................................................................................................................... 287
3.1 Political History ................................................................................................................................................... 287
3.2 Right to Participate in Governance ...................................................................................................................... 288
3.3 Right to Participate in Governance in Zanzibar ................................................................................................... 289
242
3.3.1 Legal Framework ................................................................................................................................ 289
3.4 Persons with Disabilities and the Right to Take Part in Governance................................................................... 295
3. 5 Institutional Framework...................................................................................................................................... 296
3. 6 Freedom of Association and Assembly .............................................................................................................. 297
3.7 Controversy over the Union................................................................................................................................. 299
3.8 Conclusion ........................................................................................................................................................... 301
CHAPTER FOUR ................................................................................................................................................... 302
Economic and Social Rights .................................................................................................................................... 302
4. 1 Right to Education .............................................................................................................................................. 302
4.2 Legal Framework Governing the Right to Education in Zanzibar ....................................................................... 303
4.3 Zanzibar Education Policy ................................................................................................................................... 303
4.4 Challenges Facing Education Sector ................................................................................................................... 304
4.4.1 Shortage of Inclusive Education Schools and Teachers ..................................................................... 304
4.4.2 Shortage of Science Teachers ............................................................................................................. 305
4.4.3 Cost Contribution in Education .......................................................................................................... 305
4.4.4 Large Number of Pupils in Classes..................................................................................................... 306
4.4.5 Early Pregnancies and Marriages ....................................................................................................... 306
4.4.6 Lack of Facilities in Schools............................................................................................................... 307
4.4.7 Poor Performance of Secondary School Students .............................................................................. 307
4.4.8 Shortage of Lecturers in some Higher Learning Institutions .............................................................. 308
4.5 Right to Health..................................................................................................................................................... 308
4.5.1 Improvement of Health Services in Zanzibar ..................................................................................... 309
4.5.2 Challenges Facing Health Sector ........................................................................................................ 311
4.6 Right to Water ..................................................................................................................................................... 312
4.6.1 Legal Framework governing the Right to Water in Zanzibar ............................................................. 313
4.6.2 Current Situation in the Enjoyment of Right to Water ....................................................................... 314
4.6.3 Poor and Old Water Infrastructure System ......................................................................................... 314
4.6.4 Improper Control of Water ................................................................................................................. 315
4.6.5 Charging Fees without Services ......................................................................................................... 315
4. 7 Right to Property ................................................................................................................................................ 315
4.7.1 Destruction of Property....................................................................................................................... 317
4.7.2 Limitation to the Right of Property..................................................................................................... 318
4.8 Right to Work ...................................................................................................................................................... 318
4.8.1 Salaries and Incentive Packages ......................................................................................................... 319
4.8.2 Shortage of Employment Opportunities ............................................................................................. 319
4.8.3 Stigmatization of People with HIV in Employment ........................................................................... 320
4.8.4 Lack of Social Dialogue between Employer and Employee ............................................................... 320
4.8.5 Poor System of Social Protection ....................................................................................................... 321
4.8.6 The Handling of Labour Disputes ...................................................................................................... 322
4.8.7 Re-Employment of the Retired Officers ............................................................................................. 322
4.9 Conclusion ........................................................................................................................................................... 322
CHAPTER FIVE ..................................................................................................................................................... 323
The Rights of Vulnerable Groups .......................................................................................................................... 323
5.1 Women and Girls ................................................................................................................................................. 323
5.1.1 Legal Framework for Women Protection in Zanzibar ........................................................................ 323
5.1.2 Policies on Women’s Rights ............................................................................................................... 325
5. 1.3 Institutional Framework in Protecting Women.................................................................................. 325
5.1.4 Gender Based Violence ...................................................................................................................... 326
5.1.5. Domestic Violence ............................................................................................................................ 328
5.1.6 Women Economic Empowerment and Employment ........................................................................................ 331
5.1.7 Women and Health ............................................................................................................................. 332
5.1.8 Women and Education........................................................................................................................ 334
5.1.9 Women Participation in Decision Making.......................................................................................... 334
5.2 Children Rights .................................................................................................................................................... 336
243
5.2.1 Legal Framework ................................................................................................................................ 336
5.2.2 Institutional Framework...................................................................................................................... 337
5.2.3 Right to Life ....................................................................................................................................... 337
5.2.4 Right to Grow and Develop ................................................................................................................ 339
5.2.5. Right to be Protected ......................................................................................................................... 342
5.2.6 Child Labour ....................................................................................................................................... 348
5.2.7. Maintenance of Children ................................................................................................................... 349
5.3 Rights of the Elderly ............................................................................................................................................ 350
5.4 Rights of Persons with Disabilities ...................................................................................................................... 352
5.4.1 Legal Framework ................................................................................................................................ 352
5.4.2 Institutional Framework...................................................................................................................... 353
5.4.3 Poverty among People with Disabilities ............................................................................................. 353
5.4.4 Abuse against People with Disabilities ............................................................................................... 353
5.5 Conclusion ........................................................................................................................................................... 354
CHAPTER SIX ........................................................................................................................................................ 355
HIV/AIDS and Human Rights ................................................................................................................................ 355
6.0 Introduction ......................................................................................................................................................... 355
6.1 HIV/AIDS and Human Rights ............................................................................................................................. 355
6.2 Legal Framework on HIV/AIDS in Zanzibar ...................................................................................................... 355
6.3 Institutional Framework....................................................................................................................................... 355
6.4 HIV/AIDS Situation in Zanzibar ......................................................................................................................... 356
6.5 Violation of the Rights of People living with HIV/AIDS in Zanzibar................................................................. 357
6.5.1 The Increasing Stigmatization ............................................................................................................ 357
6.5.2 Right to Privacy .................................................................................................................................. 357
6.5.3 Discrimination against People Living with HIV/AIDS ...................................................................... 358
6.5.4 Lack of Essential Medicine and Drugs ............................................................................................... 358
6.6 Conclusion ........................................................................................................................................................... 358
CHAPTER SEVEN ................................................................................................................................................. 360
SMZ Special Departments and Human Rights ..................................................................................................... 360
7.0 Introduction ......................................................................................................................................................... 360
7.1 SMZ Special Departments and Human Rights .................................................................................................... 360
a) Kikosi Maalum cha Kuzuia Magendo (KMKM) (Anti-Smuggling Unit) .............................................................. 360
b) Kikosi cha Valantia (the Volunteers) .................................................................................................................... 361
c) Educational Centres for Offenders (Prison Centres) ............................................................................................ 363
d) The Jeshi la Kujenga Uchumi (JKU) (Economic Building Brigade) ................................................................... 364
e) Kikosi cha Zimamoto na Uokozi (Fire and Rescue Services)............................................................................... 365
7.2 Legality of Special Departments.......................................................................................................................... 365
7.3 Conclusion ........................................................................................................................................................... 366
CHAPTER EIGHT.................................................................................................................................................. 367
8.0 Introduction ......................................................................................................................................................... 367
8. 1 Right to Development ......................................................................................................................................... 367
8.2. Right to Development in Zanzibar...................................................................................................................... 368
8.3 Right to a Clean Environment ............................................................................................................................. 369
8.3.1 Human Rights and the Environment ................................................................................................... 369
8. 4 The Environment in the Zanzibar Constitution of 1984 ..................................................................................... 371
8.4.1 Duty to Protect Natural Resources...................................................................................................... 371
8.4.2 Waste Disposal and Sanitation ........................................................................................................... 372
8.4.3 Solid Waste Management ................................................................................................................... 373
8.4.4 Deforestation ...................................................................................................................................... 373
8.4.5 Natural Resources ............................................................................................................................... 373
8.4.6 Wide Spread of Plastic Bags Business ............................................................................................... 374
8. 5 Right to Peace and Security ................................................................................................................................ 374
244
8.6 Conclusion ........................................................................................................................................................... 375
CHAPTER NINE ..................................................................................................................................................... 377
Domestic Initiative in Human Rights Protection .................................................................................................. 377
9.0 Introduction ......................................................................................................................................................... 377
9.1 Incorporation of Bill of Rights in the Constitution of Zanzibar, 1984................................................................. 377
9.2 The Commission for Human Rights and Good Governance ............................................................................... 378
9.2.1 Independence of the Commission ....................................................................................................... 378
9.2.2 Performance of the Commission......................................................................................................... 379
9.3 Zanzibar Law Review Commission....................................................................................................... 380
9.4. The Establishment of the Office of the Director of Public Prosecution.............................................................. 381
9.5. Zanzibar Human Rights Guidelines (Muongozo wa Haki za Binaadamu Zanzibar) .......................................... 382
9.6 Conclusion ........................................................................................................................................................... 382
CHAPTER TEN ...................................................................................................................................................... 384
Corruption, Abuse of Power and Human Rights .................................................................................................. 384
10.0 Introduction ....................................................................................................................................................... 384
10.1 International Instruments in Combating Corruption .......................................................................................... 384
10.2 Corruption and Human Rights ........................................................................................................................... 385
10.3 Legal Framework in Combating Corruption in Zanzibar .................................................................................. 385
10.4 Financial Measures ............................................................................................................................................ 387
10.5 Institutional Framework..................................................................................................................................... 387
10.6 Codes of Conduct .............................................................................................................................................. 387
10.7 Transparency and Disclosure of Assets by Public Officials .............................................................................. 387
10.8 Current Situation on Corruption in Zanzibar ..................................................................................................... 388
10.8.1 Corruption in Dealing with Administration of Justice ...................................................................... 389
10.8.2 Abuse of Government Money .......................................................................................................... 389
10.8.3 Abuse of Power ................................................................................................................................ 390
10.9 Conclusion ........................................................................................................................................................ 391
SELECTED BIBLIOGRAPHY ............................................................................................................................. 392
TEXTBOOKS ........................................................................................................................................................... 392
ARTICLES AND CHAPTERS IN BOOKS.............................................................................................................. 396
WEBSITES................................................................................................................................................................ 398
ZANZIBAR BUDGET SPEECHES ......................................................................................................................... 399
REPORTS.................................................................................................................................................................. 399
Index ......................................................................................................................................................................... 401
245
LIST OF ABBREVIATIONS
ACHPR
African Charter on Human and Peoples’ Rights
ACHR
American Convention on Human Rights
ADR
Alternative Dispute Resolution
AIDS
Acquired Immunodeficiency Syndrome
ANGOZA
Association of Non –Governmental Organizations of Zanzibar
APRM
African Peer Review Mechanism
ARV
Anti-retroviral Drugs
ASP
Afro-Shirazi Party
BDG
Business Development Gateway
CAT
Court of Appeal of Tanzania
CCM
Chama cha Mapinduzi
CEDAW
Convention on Elimination of all Forms of Discrimination Against
Women
CHRAGG
Commission for Human Rights and Good Governance
CPO
Centralized Payment System
CRC
Convention of the Rights of the Child
CUF
Civic United Front
DNA
Deoxyribo Nucleic Acid
DPP
Director of Public Prosecutions
EIA
Environmental Impact Assessment
EU
European Union
FAWE
Forum for African Women Educationalists
GBV
Gender Based Violence
GDP
Gross Domestic Product
GNU
Government of National Unity
HIV
Human Immune Deficiency Virus
HoR
House of Representatives
IAC
Inter-African Committee
ICCPR
International Covenant on Civil and Political Rights, 1966
ICESR
International Covenant on Economic and Social Rights, 1966
246
ICRDPD
International Convention of the Rights and Dignity of People with
Disabilities, 2006
ICU
Intensive Care Unit
ILO
International Labour Organization
IMFS
Integrated Financial Management System
JKU
Jeshi la Kujenga Uchumi
JOCDO
Jozani Credit and Development Organization
KMKM
Kikosi Maalum cha Kuzuia Magendo
LAB
Law Advisory Board
LPF
Life Preservation Fund
LTA
Land Tenure Act
MARPS
Most at Risk Populations
MHs
Members of the House of Representatives
MKUZA
Mkakati wa Kukuza Uchumi na Kupunguza Umasikini
MoEVT
Ministry of Education and Vocational Training
MoH
Ministry of Health
MoSWYCWD
Ministry of Social Welfare Youth, Children and Women
MPs
Members of Parliament
NGOs
Non Governmental Organizations
PESACA
Pemba Saving and Credit Association
PLH
People Living with HIV/AIDS
PLHIV
People Living with HIV
PO
Programme Officer
PRIDE
Promotion of Rural Initiatives Development Enterprises
PVR
Permanent Voter Register
SACCOS
Saving and Credit Cooperatives Societies
SADC
Southern Africa Development Community
SIDO
Small Industries Development Organization
SME
Small and Medium Enterprises
SMOLE
Sustainable Management of Land and Environment
SOS
Save Our Soul
TAMWA
Tanzania Media Women Association
TANU
Tanganyika African National Union
247
TAWLA
Tanzania Women Lawyers Association
TCCIA
Tanzania Chamber of Commerce Industries and Agriculture
TPSF
Tanzania Private Sector Foundation
UDHR
Universal Declaration of Human Rights
UN
United Nations
URT
United Republic of Tanzania
WEZA
Women Empowerment in Zanzibar
ZACP
Zanzibar AIDS Control Programme
ZAFELA
Zanzibar Female Lawyers Association
ZAN-ID
Zanzibari Identity Card
ZAWA
Zanzibar Water Authority
ZBC
Zanzibar Business Council
ZEC
Zanzibar Electoral Commission
ZLRC
Zanzibar Law Review Commission
ZLS
Zanzibar Law Society
ZLSC
ZNCCIA
Zanzibar National Chamber of Commerce, Industry and
ZNP
Zanzibar Nationalist Party
ZPPP
Zanzibar and Pemba Peoples Party
ZPRP
Zanzibar Poverty Reduction Plan
ZRB
Zanzibar Revenue Board
ZSGRP
Zanzibar Strategy for Growth and Reduction of Poverty
ZSSF
Zanzibar Social Security Fund
ZSTC
Zanzibar State Trading Corporation
248
LIST OF CASES
Ahly Construction Ltd v. District Commissioner of Micheweni, Regional Commissioner of North
Region of Pemba, Principal Secretary of the Ministry of Local Governments Zanzibar
and Attorney General of Zanzibar, High Court of Zanzibar at Vuga, Civil Case No.
24/2007 (Unreported).
Ali Mbarak Suleiman v. Commissioner of Police Zanzibar, High Court Zanzibar at Vuga, Civil
Case No 18/2003 (Unreported).
Christopher Mtikila v. the Attorney General, High Court of Tanzania at Dar es Salaam,
Miscellaneous Civil Cause No. 10 of 2005 (Unreported).
DPP v. Haji Ame Iddi and 6 Others, Criminal Case No 40/2011.
DPP v. Juma Juma Mohamed Session Case No 21 of 2004.
Fadeyeva v. Russia (2005) ECHR, available at: http://portal.coe.ge/downloads/Judgments visited
on 8th October, 2011.
Hamad Mussa Yussuf, Dadi Kombo Dadi and Ali Omar Juma v. Director of Zanzibar Electoral
Commission and Attorney General of Zanzibar, High Court of Zanzibar at Zanzibar,
Civil Case No 16 of 2009.
Honourable Attorney General v. Reverend Christopher Mtikila, Court of Appeal of
Tanzania at Dar-es-salaam, Civil Appeal No. 45 of 2009 (Unreported).
Juma Juma Mohamed v. DPP, Criminal Appeal No 243 of 2011.
Lamshore Limited v. ZSTC, High Court of Zanzibar at Vuga, Civil Case No 13/94 (Unreported).
Mohamed Ameir and Another v. Said Salum Khelef and Another, Regional Court at Vuga, Civil
Case No. 10/2000 (Unreported).
Mohamed Haji v. Kibata Mussa, High court of Zanzibar at Vuga, Civil Case No. 44/2004
(Unreported).
Mullin
v.
Union
Territory
of
Delhi,
AIR
1981
SC.
http://www.indiankanoon.org/doc visited on 11 September 2011.
Available
at:
Ramadhan Aman v. General Inspector of Police, Commissioner of Police Zanzibar, Principal
Secretary of Ministry of Home Affairs and Attorney General of Zanzibar, High Court of
Zanzibar at Vuga, civil case No. 23/2005 (Unreported).
Rev. Christopher Mtikila v. Attorney-General, High Court of Tanzania at Dodoma, Civil Case
No. 5 of 1993, [Reported in Volume 1 Commonwealth Human Rights Law Digest, 1996,
p. 11].
Richard William Sawe v. Woitara Richard Sawe, Court of Appeal of Tanzania at Dar es Salaam,
Civil Appeal No. 38 of 1992 (Unreported).
S.M.Z. v. Machano Khamis Ali and 17 Others, Court of Appeal of Tanzania in Zanzibar,
Criminal Application No. 8 of 2000, EALR, 2000.
249
Salama Mbarouk v. Mohamed Adam, High Court of Zanzibar at Vuga, Civil Case No 13/2004
(Unreported).
Serac v Nigeria, available at: http://www.chr.up.ac.za visited on 12 June 2011.
Suleiman Yussuf Ali. v. Emirates Airline. Ltd High Court at Vuga, Civil Case No. 11 of 2006
(unreported).
250
INTERNATIONAL LEGAL INSTRUMENTS
Abuja Declaration and Plan of Action on HIV/AIDS, Tuberculosis and Other Related Infectious
Diseases adopted by African Summit of Heads of states on HIV/ AIDS, Abuja, Nigeria,
26-27 April, 2001.
African Charter on Human and Peoples’ Rights, 1981(The Banjul Charter).
African Union Convention on Preventing and Combating Corruption, 2003.
American Convention on Human Rights, 1969.
Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or
Punishment, 1984.
Convention on Elimination of All Forms of Discrimination Against Women, 1979.
Convention on the Rights of the Child, 1989.
Dakar Declaration Held in Dakar, Senegal, between 17th and 21st November, 1997.
European Convention on Human Rights, 1950.
International Covenant on Civil and Political Rights, 1966.
International Covenant on Economic, Social and Cultural Rights, 1966.
International Convention on the Protection of the Rights and Dignity of Persons with
Disabilities, 2006.
ILO Code of Practice on HIV/AIDS and the World of Work, 2001, ILO-AIDS Code-2001-050165-1.EN.doc/v6.
International Guidelines on HIV/AIDS and Human Rights, 1997.
Kampala Declaration on Prison Conditions in Africa, Adopted at the Kampala Seminar on Prison
Conditions in Africa, September, 1996.
Madrid International Plan of Action on Ageing, 2002 (Madrid Plan) Adopted at the 10th Plenary
meeting of the Second Assembly on Ageing 12th April, 2002
Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa,
2000.
SADC Protocol against Corruption, 2001.
Second Optional Protocol to the International Covenant on Civil and Political Rights, 1987.
United Nations Convention against Corruption, 2003.
251
United Nations Declaration of Commitment on HIV/AIDS, 2001.
United Nations Declaration on the Elimination of Violence against Women, 1979.
United Nations Declaration on the Right to Development in 1986, Resolution 41/128.
United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines)
available at http://www2.ohchr.org/english/law/juvenile.htm visited on 8th February,
2011.
United Nations Standard Minimum Rules for Non-Custodian Measure (Tokyo Rules).
Adopted by General Assembly resolution 45/110 of 14th December 1990.
United Nations Standard Minimum Rules for the Treatment of Prisoners, Adopted by the 1st UN
Congress on Prevention of Crime and Treatment of Offenders held in Geneva 1955.
UN Resolution of Enhancing the Effectiveness of Periodic and Genuine Elections,
A/Res/46/137, 1991
Vienna Declaration and Program of Action, 1993
Vienna International Plan of Action on Ageing, 1982 Adopted by the world Assembly on Ageing
held in Vienna, Austria from 26th July - 6th August, 1982, endorsed by UN General
Assembly 37/51.
252
LEGISLATION
Anti Money Laundering and Proceeds of Crime Act, 2009 (Act No. 10 of 2009).
Broadcasting Services Act, 1993 (Act No. 6 of 1993).
Children’s Act, 2011 (Act No. 6 of 2011).
Civil Procedure Decree Cap 8 of the Laws of Zanzibar.
Cloves Act, 1985 (Act No. 11 of 1985).
Commission of Enquiry Decree Cap 33 of the Laws of Zanzibar.
Commission for Human Rights and Good Governance (Extension) Act, 2003 (Act No.12 of
2003).
Commission for Human Rights and Good Governance Act 2001 (Act No. 7 of 2001).
Confiscation Immovable Property Decree, 1964 (Presidential Decree No. 8 of 1964).
Constitution of the State of Zanzibar of 1963.
Constitution of the United Republic of Tanzania of 1977.
Constitution of Zanzibar of 1979.
Constitution of Zanzibar of 1984.
Criminal Procedure Act, 2004 (Act No. 7 of 2004).
Deep Sea Fishing Authority Act, 1998 (Act No. 1 of 1998).
Education Act, 1982 (Act No. 6 of 1982).
Employment Act, 2005 (Act No. 10 of 2005).
Environmental Management for Sustainable Development Act, 1996 (Act No. 2 of 1996).
Establishment of the Office of Controller and Auditor General Act, 2003 (Act No. 11 of 2003).
Fire Brigade Act, 1999 (Act No. 7 of 1999).
Forest Resources Management and Conservation Act, 1996 (Act No. 10 of 1996).
Government Proceeding Act, 2010(Act No 3 of 2010).
Interpretation of Laws and General Provisions Act, 1984 (Act No. 7 of 1984).
Jeshi la Kujenga Uchumi Act, 2003 (Act No. 6 of 2003).
Kadhi’s Court Act 1985 (Act No. 3 of 1985).
Kikosi cha Valantia Act, 2004 (Act No. 5 of 2004).
Kikosi Maalum cha Kuzuiya Magendo Act, 2003 (Act No. 1 of 2003).
Labour Relations Act, 2005 (Act No. 1 of 2005).
Land Adjudication Act, 1989 (Act No. 8 of 1989).
253
Land Distribution Decree, 1967.
Land Transfer Act, 1994 (Act No. 8 of 1994).
Land Tribunal Act, 1994 (Act No. 7 of 1994).
Law of Marriage Act 1971 (Act No. 5 of 1971).
Law Review Commission Act, 1986 (Act No. 16 of 1986).
Local Government (District and Urban Authority) Act, 1992 (Act No. 11 of 1992).
Magistrates’ Court Act, 1985 (Act No. 6 of 1985).
Mufti Act, 2001 (Act No 9 of 2001).
Naval Volunteer Decree Cap 52 of 1939.
Occupational Safety and Health Act, 2005 (Act No. 8 of 2005).
Offenders Education Act, 2007 (Act No. 3 of 2007).
Offenders’ Education Act, 1980 (Act No. 1 of 1980).
Penal Act, 2004 (Act No. 6 of 2004).
Penal Decree (Chapter 13 of the Laws of Zanzibar).
Persons With Disabilities (Right and Privileges) Act, 2006 (Act No. 9 of 2006).
Political Parties Act, 1992 (Act No. 5 of 1992).
Public Services Act, 2011 (Act No.2, 2011).
Presidential Decree (No. 1 of 1964).
Prevention of Corruption Decree, 1975 (Decree No. 4 of 1975).
Prevention of Corruption Decree, 1980 (Decree No. 2 of 1980).
Private Hospitals (Regulations) Act, 1994 (Act No. 4 of 1994).
Public Investment Act, 2002 (Act No. 4 of 2002).
Public Procurement Act, 2005 (Act No. 9 of 2005).
Public Services Act, 2011(Act No.2 of 2011).
Registered Land Act, 1990 (Act No. 10 of 1990).
Registration of Zanzibaris Resident Act, 2004 (Act No. 7 of 2004).
Social Security Fund Act, 2005 (Act No. 2 of 2005).
Societies Act, 1995 (Act No. 6 of 1995).
Spinster and Single Parents Children Protection Act, 2005 (Act No. 4 of 2005).
Tanzania Communication Act, 1993 (Act No 8 of 1993).
Tanzania Petroleum (Exploration and Production) Act, 1980, (Act No. 27 of 1980).
Young and Offenders Decree (Cap 56 of the Laws of Zanzibar).
Zanzibar Aids Commission Act, 2002 (Act No. 3 of 2002).
254
Zanzibar Election Act, 1984 (Act No. 11 of 1984).
Zanzibar Land Tenure Act, 1992 (Act No. 12 of 1992).
Zanzibari Act, 1985 (Act No. 5 of 1985).
255
CHAPTER ONE
General Overview of Zanzibar
1.0 Introduction
Zanzibar which is composed of the Island of Unguja and Pemba had experienced a very unique
and interesting history. Before the partition of East Africa Zanzibar was a strong empire
extending itself to various parts of Eastern and Central Africa such as Sofala in the present
Mozambique, Kismayo, Marka and Brava in Somalia, Lamu, Mombasa and Malindi in Kenya
and Kilwa in Tanzania Mainland. This Chapter gives an overview about Zanzibar. It provides
information on the history of Zanzibar, its people, geography, economy, judiciary, politics and
historical background of human rights in Zanzibar.
1.1 History
It is recorded in history that Zanzibar experienced the first intrusion of immigration in the early
1780’s. 664 A group of Arabs from Oman under the leadership of the Imam of Muscat known as
Seyyid Said Bin Sultan was said to be the first to intrude Zanzibar. 665 European imperialists
including Germans, Portuguese, French and British were also attracted to Zanzibar. Zanzibar
came under the Sultan from Oman from 1840 until 1856 when Zanzibar was under British
Protectorate.
Zanzibar gained independence from Britain 666, who had governed in cooperation with the Sultan,
with the handing over independence instruments on 10th December, 1963 667. On 12th January,
1964 a revolution took place to overthrow the Sultanate post-independence government allowing
members of the majority black population their first chance to hold political power; and the
Government of Zanzibar proclaimed a Revolutionary Government and a democratic rule 668.
Sheikh Abeid Amani Karume became the first President of Zanzibar and Chairman of the
Revolutionary Council 669 until his assassination on 7th April, 1972.
664
PETER, Chris Maina and SULTAN, Nayla Ahmed, “The Constitution, Structure of the State and Constitutional
Development in the United Republic of Tanzania and Zanzibar,” in ZANZIBAR: The Development of the
Constitution edited by PETER, Chris Maina and Immi Sikand, ZLSC, Publication Series Book, 3, 2011, p 59.
665
Ibid.
666
Arab Sultans from Oman ruled Zanzibar either on their own or with the British from 1828 to 1964. The rulers
of Zanzibar from Seyyid Said bin Sultan to Sultan Jamshid bin Abdullah are listed in PATIENCE, Kevin,
Zanzibar: Slavery and the Royal Navy, Bahrain: Dar Akbar Al Khaleej Press and Publishing House, 2000. See also
KHAMIS, K.S. and H.H. Omar (eds.), Historia Fupi ya Zanzibar, Zanzibar: Al-Khayria Press Ltd., 1994; ALISMAILY, Issa Bin Nasser, Zanzibar: Kinyangʼanyiro na Utumwa, Ruwi: Sultanate of Oman, 1999; FAIR, Laura,
Pastimes & Politics: Culture, Community, and Identity in Post-Abolition Urban Zanzibar, 1890-1945, Athens
and Oxford: Ohio University Press and James Currey, 2001; and SHAHBAL, Suleiman Said, Zanzibar: The
Rise and Fall of an Independent State 1895– 1964, Dubai, 2002.
667
The Constitution of the State of Zanzibar, 1963.
668
The Presidential Decree No 1 of 1964.
669
The Revolutionary Council exercised Executive, Legislative and Judicial roles.
256
The Union of Tanganyika and Zanzibar was established on 26th April, 1964 and the new country
was officially named the United Republic of Tanzania (URT) in October 1964. 670 Mwalimu
Julius Kambarage Nyerere became the first President of the United Republic of Tanzania while
Sheikh Abeid Amani Karume became the Vice President of the country in addition to his
position as the President of Zanzibar and the Chairman of the Zanzibar Revolutionary Council.
The two countries united into one sovereign State. In the process, the government of Tanganyika
ceased to exist while the Revolutionary Government of Zanzibar remained intact. All issues
relating to the former Tanganyika were to be handled by the Union Government and those
relating specifically to Zanzibar were placed in the hands of the Revolutionary Government of
Zanzibar. At that time, there were 11 issues which were specifically mentioned in the Articles of
the Union as Union Matters covering both parts of the Union. 671
Over time, the Union Matters have increased from the original 11 to 22 672. These Matters are
now listed in Schedule One to the Constitution of the United Republic of Tanzania of 1977. The
addition to the Union Matters include: All Matters relating to Coinage, Currency for the purpose
of legal tender (including notes), Banks (including savings Banks) and all Banking Business,
Foreign Exchange and Exchange Control, Industrial Licensing and Statistics, Higher Education,
Mineral Oil Resources including Crude Oil and Natural Gas, the National Examinations Council
of Tanzania and all matters connected with the functions of the Council, Civil Aviation,
Research, Meteorology, Statistics, the Court of Appeal of Tanzania and Registration of Political
Parties and other matters relating to Political Parties. 673
Zanzibar has her own Executive headed by the President of Zanzibar and Chairman of the
Revolutionary Council, Legislature in the name of the House of Representatives and the
Judiciary under the Chief Justice provided for under the Zanzibar Constitution, 1984. 674
The Government of the United Republic of Tanzania has powers over all Union Matters and
those matters pertaining to Tanzania Mainland. Of the Union Matters, the power to conclude
international treaties including international human rights instruments is vested in the Union
Government. The Zanzibar government has jurisdiction over all matters which are non-union and
pertaining to Zanzibar.
1.2 Geography
Zanzibar is composed of two main Islands of Unguja and Pemba with a total area of 2,332 square
kilometres with the former making up 67% and the latter 37% of the total land area. Apart from
these main Islands, there are also small islets surrounding the two that form part of Zanzibar.
670
The name Tanzania was coined after a national competition to replace the longer name of the United Republic
and Tanganyika and Zanzibar.
671
The Union Matters as provided in the Articles of the Union in 1964 were: The Constitution and the Government
of the United Republic of Tanzania, External Affairs, Defence and Security, Police, Emergency powers,
Citizenship, Immigration, Borrowing and External Trade, Public Service of the United Republic of Tanzania,
Income Tax, Corporation Tax, Customs and Excise, Harbours, Civil Aviation, Posts and Telegraphs.
672
See Markku Suksi, Sub-state Governance through Territorial Autonomy; a Comparative Study in Constitutional
Law of Powers, Procedures and Institutions, SPi Publisher Services, 2011 p 192, according to him the addition of
new matters to the list of Union Matters without formal amendment of the treaty has continued to function as a
source of contentious discussion.
673
See the first schedule of the Constitution of the United Republic of Tanzania, 1977.
674
Section 5A of the Constitution of Zanzibar, 1984.
257
These include Uzi, Kojani, Shamiani, Kisiwa Panza, Fundo and Tumbatu. Zanzibar is situated 20
miles from the shores of African continent. It is located approximately 32 nautical miles from
Mainland Tanzania. Zanzibar has a high population density.
1.3 People
Zanzibar is very cosmopolitan. It is composed of people with diverse racial and cultural
backgrounds. This diversity is largely influenced by the historical integration of Zanzibar with
external world. It is recorded in history that Zanzibar integrated with external world since the
Second Century AD. The integration gained momentum during the 8th Century when traders
from Persia, China, India, Arabia etc. came to Zanzibar using dhows powered by Monsoon
Winds.
The effect of that integration was the emergence of people of mixed races in the coastal regions
of East Africa including Zanzibar following intermarriages between foreigners and indigenous
people 675. The last national census was conducted in 2002. According to Chief Government
Statistician, the population of Zanzibar is 1,206,000 676. The population growth rate stands
currently at 3.1.
1.4 Economy
For a long time, Zanzibar was dependent on cloves which were introduced by Arabs during 19th
Century as the mainstay of her economy. However during mid 1980s Zanzibar began to shift
from cloves dependence to tourism. Currently, Zanzibar has become a place where tourists from
different parts of the world visit. The number of tourists who visit Zanzibar has been increasing
from 134,954 (5.1 %) in 2009/2010 to 175, 067 in 2011 which the highest number recorded for
the last 20 years. 677 It is estimated that in 2011 a total of US$ 104.3 million was generated from
tourism 678. Tourism is a very important sector contributing 27% of Zanzibar GDP and it
generates 72% of the total foreign currency collected in Zanzibar 679. There are 11,500 people
employed in tourism sector while 45,000 people are self-employed 680. The relative rapid growth
of the tourist industry in Zanzibar means that it now makes a significant contribution to the
Zanzibari economy and Government revenue.
However, the Government still intends to make cloves a large contributor to the economy of the
Isles. In the year 2011 the government had taken efforts to realise that intention. These efforts
include raising the price of cloves from Tshs. 5,000 in 2010 to Tshs. 10,000/= per kg on 3rd July,
2011. The price was later raised to 12,000/= on 13th July, 2011 and after further review was
675
See JJUUKO, Frederick and Godfrey Muriuki (eds.), Federation within Federation: The Tanzania Union
Experience and the East African Integration Process, A Report of the Kituo Cha Katiba Fact-Finding Mission to
Tanzania, Fountain Publishers Kampala, Uganda, 2010, p. 3.
676
Chief Government Statistician Office, 2010.
677
Speech of the President of Zanzibar and chairman of the Revolutionary Council during the celebration to
commemorate 48 years of the Zanzibar Revolution on 12th January, 2012, p. 41.
678
Ibid.
679
Ibid.
680
Ibid.
258
raised to Tshs. 15,000/= in August, 2011. 681 The government has also enhanced its efforts in the
fight against the smuggling of cloves from Zanzibar.
In 2000 the Government launched its long term development strategy (Vision 2020). The Vision
focuses on the eradication of absolute poverty and building a robust and internationally
competitive economy for sustainable development of the people of these islands. The Zanzibar
Strategy for Growth and Reduction of Poverty known by its Kiswahili acronym MKUZA II
(Mkakati wa Kukuza Uchumi na Kupunguza Umasikini Zanzibar) was launched in 2010 as a tool
for implementation of Vision 2020 for the period 2011-2015. The Zanzibar GDP ranges
between averages of 6.5 % and 6.7%. The National Income of Zanzibar has decreased to 6.5%
in 2010/2011 as compared to 6.7 % in 2009/2010. This is due to low growth rate of industrial
and services sectors 682. Zanzibari per capital income is pegged at 782,370/= which is equivalent
to USD 561.683
1.5 Political System
Zanzibar which was ruled under one party system shifted to multiparty democracy in 1992
following the official re-introduction of political system. 684 The Constitution of Zanzibar 1984
was amended to fit with the system. 685 The Constitution provides for periodic elections every
five years to elect the President of Zanzibar, Members of the House of Representatives and the
Local Councillors.
The power to legislate is vested to the House of Representatives 686 which is composed of elected
members from constituencies in Unguja and Pemba 687, women special seats 688, ten nominated
members by the Zanzibar President 689 and the Attorney General of Zanzibar. The House has
jurisdiction over all non-union matters falling under the autonomy of the Revolutionary
Government of Zanzibar.
The tenth constitutional amendment has introduced a power sharing government between the
party that emerges the winner in every general election and opposition parties 690. The
amendment has introduced two positions which are; the first Vice President and the Second Vice
President. Under that structure, the President of Zanzibar is from the party that wins the election.
The first vice President is nominated from the party that holds second position during election.
681
Speech by the President of Zanzibar and Chairman of the Revolutionary Council during the celebration to
commemorate 48 years of the Zanzibar Revolution on 12th January, 2012, p. 23.
682
Mapitio ya hali ya Uchumi na Utekelezaji wa Mpango wa Maendeleo Zanzibar 2010/2011 p. 9.
683
Ibid, p. 10.
684
Political Parties Act No 5 of 1992 Cap 258. It is important to note that this Act was adopted by the Union
Parliament as Political Parties have been listed in Schedule One to the Union Constitution as a Union Matter. This
legislation has to be read together with the Article 3 of the Constitution of the United Republic of Tanzania of
1977.
685
Section 5 of the Constitution of Zanzibar of 1984.
686
Section 5A (2) of the Constitution of Zanzibar of 1984.
687
ibid, Section 65.
688
Ibid, Section 67.
689
Ibid, Section 66.
690
The amendments also included some of the provisions which raised serious legal discussion among members of
academia. These provisions include section 1 which declared Zanzibar as a state. See also Tanzania Human Rights
Report, 2010, p. 348-349.
259
The second vice President is nominated from the party that provides the President 691. The cabinet
is composed of members from parties which have representation in the House of Representatives
depending on the number of seats each party holds from constituencies.
The new structure was implemented soon after the general election of 2010. Based on the
election results, the President and the Second Vice president are from Chama Cha Mapinduzi
(CCM). The first Vice president was nominated from the Civic United Front (CUF). The cabinet
is composed of 16 full Ministers of whom nine are from CCM and seven from CUF (of these two
are women, one from CCM and one from CUF) 692. There are six Deputy Ministers, five from
CCM and one from CUF (of these four are women, three from CCM and one from CUF) 693. In
addition, three are Ministers without special portfolios; of whom two from CCM and one from
CUF are also part of the cabinet 694.
Zanzibar is divided into five administrative regions and 10 districts. The regions are Urban West
Region, South Region and North Region in Unguja. In Pemba the regions are North and South
Regions. Each region is split into two Districts making six Districts in Unguja Island and four in
Pemba Island. The districts are divided into Shehias administered by Sheha appointed by
Regional Commissioner after consultation with District Commissioner. 695
1.6 Judiciary
There is a dual court system in Zanzibar applying different laws and procedures. One is common
law system following English legal system and the other is that of Kadhis Courts 696 dealing with
Muslim personal matters like marriage, divorce, maintenance and inheritance. The interpretation
of the Constitution of Zanzibar of 1984, Islamic matters and matters provided in Chapter Three
of the Constitution of Zanzibar ends at the High Court of Zanzibar. They do not go the Court of
Appeal of Tanzania. 697
The hierarchy of the Common Law Courts is, Court of Appeal of Tanzania 698, High Court of
Zanzibar 699, Regional Magistrate Courts 700, District Magistrate Courts and Primary Magistrate
Courts 701. While that of the Kadhis Courts includes District Kadhis Court which is the lowest
court, Appellate Kadhis Court, and High Court of Zanzibar where a Judge sits with a panel of
Ulamaa. 702
691
Section 39 of the Constitution of Zanzibar, 1984.
UKI, Ali, “Maridhiano and the Government of National Unity, its Impact on Elections and Constitutionalism in
Tanzania,” ZANZIBAR: the Development of the Constitution, op. cit., p. 235.
693
Ibid.
694
Ibid.
695
See The Regional Administration Authority Act No. 1 of 1998.
696
See Kadhi’s Court Act No. 3 of 1985.
697
Sections 24 (3) and 99 (b) of the Zanzibar Constitution of 1984.
698
Article 117 of the URT Constitution, 1977.
699
Section 93 of the Zanzibar Constitution of 1984; see also High Court Act No. 2 of 1985.
700
Magistrates’ Court Act No. 6 of 1985.
701
Ibid.
702
These are Islamic scholars well-versed in Islamic matters assisting the Judge to reach a just decision. See Section
10 of Kadhi’s Act of 1985.
692
260
The judiciary in Zanzibar is headed by Chief Justice appointed by the President of Zanzibar. 703
The High Court is presided by a Judge who is appointed by the President upon recommendation
by Judicial Services Commission704. Subordinate Courts are presided by Magistrates who are
appointed by Judicial Services Commission705
There are other quasi-judicial organs dealing with specific legal matters. These tribunals include
Land Tribunal and Industrial Court which are described in chapter two of this report.
1.7 Historical Background of Human Rights in Zanzibar
The history of human rights in Zanzibar can be traced back to 1963 when Zanzibar got its
independence. The independence followed the adoption of the first Zanzibar constitution; The
Constitution of the State of Zanzibar of 1963 that included among other things, the Bill of Rights
as provided by international human rights instruments. 706
However, that Constitution lasted only one month following the revolution of 12th January, 1964
which overthrew the government of 1963. Immediately after the revolution the constitution was
abrogated and Zanzibar began to be ruled under Presidential Decrees. 707 This meant the end of
the Bill of Rights as enshrined under 1963 Constitution. The most prominent was Decree No.
5/1964 entitled Constitutional Government and the Rule of Law 708 entitled Equality,
Reconciliation and Unity of Zanzibar People 709. The Constitutional Government and Rule of
Law Decree vested legislative power in the Revolutionary Council. The concept of separation of
powers was abolished and in its place, the Revolutionary Council, which had legislative and
executive powers, was introduced 710.
The main reason advanced for the banning of human rights in Zanzibar soon after the revolution
of 1964 stems from the fact that human rights provisions were incorporated in the 1963
Constitution to safeguard the interests of colonialists who amongt them had interest of staying
further in Zanzibar 711.
From 1964-1979 the Revolutionary Council was the legislative, main decision and policy
making body and heralded 15 years of autocratic leadership with neither a written Constitution
nor elections 712. On 5th February 1977 the Afro Shirazi Party (ASP) merged with the Tanganyika
African National Union (TANU) of Tanzania Mainland to form a new party, CCM as a sole
political party in Tanzania and declared to be supreme over all institutions of state 713. It was in
703
Section 94 of the Zanzibar Constitution, 1984.
Ibid, Section 94 (1).
705
Section 10 (1), Magistrate Courts Act, 1985.
706
Zanzibar unlike Tanganyika has opted to have a Bill of Rights enshrined in her Constitution while receiving
independent instruments from the British.
707
See Presidential Decree No. 1 of 1964.
708
No. 6 of 1964.
709
PETER, Chris Maina, The Protectors: Human Rights Commission and Accountability in East Africa (2008), p.
193.
710
Mahadhi J. Maalim(2004), pg 1
711
See Muongozo wa Haki za Binaadamu (Zanzibar Human Rights Guidelines) and Zanzibar Legal Service Centre
Manual for its Paralegals.
712
Ibid.
713
Oda van Cranenburgh (1995), p. 536.
704
261
the same year 1977 that the permanent Constitution of United Republic of Tanzania was adopted
to replace the Interim constitution of 1965714.
The new Zanzibar Constitution which was adopted in 1979 laid the foundations for the
establishment of Legislative body, Executive and the Judiciary715. It was modelled after the
Constitution of United Republic of Tanzania providing the same format and organization for
government, dividing into executive, legislative and judicial branches and also endorsed all
provisions in the Union Constitution relating to Zanzibar, with only modest modifications where
appropriate 716. The 1979 Constitution was then amended and replaced by new Constitution
adopted under one party system entitled Katiba ya Zanzibar (Zanzibar Constitution) which was
passed by the Zanzibar House of Representatives on 9th October, 1984 and came into force on 1st
January, 1985. 717
Zanzibar existed without legal human rights constitutional safeguards until 1984 when the
second post-revolution constitution incorporated Bill of Rights and the third after independence
was introduced. The Zanzibar Constitution, 1984 differed very much from the 1979 one, for it
had a Bill of Rights 718, defined a Zanzibari, stipulated state directives 719 and established a House
of Representatives that consists mostly of elected members 720.
1.8 Conclusion
This chapter has provided an overview about Zanzibar. In explaining some of the key aspects,
some achievements have been noted in 2011. These include slight economic growth particularly
GDP and per capital income which are higher than reported in 2010. The increase of the price of
cloves is an exemplary achievement in the year 2011. The change of the government structure
from winner takes all to power sharing government under GNU has also been noted in this
chapter.
714
East African Centre for Constitutional Development available at:
http://www.kituochakatiba.co.ug/tz%20const.htm (visited on 21 December 2011)
715
The Many Faces of Human Security: Case Studies of seven African Countries in Southern Africa (2005), pg 54.
716
Eastern African Centre for Constitutional Development Available at:
http://www.kituochakatiba.co.ug/zanz%20const.htm (visited on 21st December, 2011).
717
Section134A and 135 of Zanzibar Constitution of 1984 (2006 edition).
718
Ibid, Chapter three.
719
Ibid, Chapter Four.
720
Ibid, Chapter Five.
262
CHAPTER TWO
Civil Rights and Liberties
2.0 Introduction
Civil rights and liberties include a wide range of rights such as right to life, equality before law,
freedom of expression and freedom of religion. They imply the state’s role in ensuring that all
citizens are equally protected by law and enjoy all rights and freedoms without discrimination of
any type. These rights, which are known as integrity rights, are provided by different global and
regional human rights instruments such as the Universal Declaration of Human Rights of
(UDHR) of 1948, the International Convention on Civil and Political Rights (ICCPR) of 1966,
The African Charter on Human and Peoples’ Rights (ACHPR) of 1981 and the International
Convention of the Rights and Dignity of Persons with Disability (ICRDPD) of 2006. The United
Republic of Tanzania is signatory to all these treaties. This chapter will focus on discussing the
right to life, freedom from torture, equality before the law and freedom of expression and how
these rights implemented in the year 2011.
2. 1 Right to Life
The right to life stands as the core of civil rights and liberties and all other human rights. It is the
supreme right without which other rights are meaningless. This right is provided by different
international human rights instruments. Article 3 of the Universal Declaration of Human Rights
(UDHR) of 1948 declares that “everyone has the right to life, liberty and security of person”. It
is also translated into binding form by the International Covenant of Civil and Political Rights
(ICCPR) of 1966 which provides for, under Article 6 (1) “that every human being has the
inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of
his life.’
The Covenant has used the word inherent denoting that this right is not conferred by this
Covenant but the Covenant gives the recognition of its existence. The right is also provided
under regional human rights instruments like the European Convention for the Protection of
Human Rights and Fundamental Freedoms of 1950, the African Charter of Human Peoples
Rights (ACHPR) of 1980 and the American Convention on Human Rights of 1969 (ACHR).
Tanzania being signatory to ICCPR of 1966 721 and ACHPR of 1980 722 has incorporated the right
to life in its Constitution of 1977 which provides under Article 14 that everyone has the right to
life and equal protection of his/her life. It can only be permitted to be abrogated in accordance
with the law.
721
722
Tanzania ratified the ICCPR on June, 11, 1976 see www.treaties.un.org.
Tanzania ratified ACHPR in 1985.
263
Zanzibar being part of the United Republic of Tanzania 723 has also incorporated in her
Constitution of 1984 the protection of right to life which is in parimateria to Article 14 of URT
Constitution. 724
Inspite of its global, regional and domestic protection, right to life is reported to be still violated
in Zanzibar. The office of Director of Public Prosecution in Zanzibar (DPP) received 30 files
from police on death related events. The prosecution of seven cases was instituted before High
Court of Zanzibar in the year 2011 for murder allegations.
As evidenced, one Ahmed Mohamed Abdalla, 35 of Hurumzi Zanzibar was allegedly murdered
at Chukwani, West District within Urban West region of Unguja. Investigation connected three
suspects namely Juma Bakar, Nassir Fahmi and Adam Mmanga who currently face murder
charges before the High Court of Zanzibar. Another incident took place at Hotel of Magembe in
Michamvi Kae, in the Southern Region of Unguja on 22nd November, 2011 where one Aliphonce
Elias Mkota was allegedly murdered by three namely Yona Yohana Kosei, Ngoshai saidi
Makwaya and Maiko Kimeshwa Sekarei, all residents of Michamvi Unguja.
The increase in murder cases is mainly attributed to changing socio-economic scenario where
Zanzibar is going through cultural dynamism. There is big migration of labour force into
Zanzibar and at the same time upward trend in the use of narcotics drugs which has been
attributed to be the cause of the surge of murder cases.
2.1.1 Road Accidents
Road accidents have been taking the lives of many people in the Isles. It is reported that 45
people were killed by road accidents in 2011 and 44 were injured 725 as shown in the table below:
No
of
accidents
Injuries
Death
Jan
55
6
6
Feb
51
3
4
March
68
5
5
April
44
3
3
May
56
3
3
June
44
2
2
July
55
4
4
August
48
3
3
MONTH
723
Article 1 of the Constitution of the United Republic of Tanzania, 1977.
Section 3 of the Constitution of Zanzibar, 1984.
725
Source: The Office of Zanzibar Traffic Officer.
724
264
Sept
45
1
1
Oct
54
4
4
Nov
59
9
9
Dec
22
1
1
TOTAL
601
44
45
Source: Malindi Traffic Police, 2011.
The reason for these accidents is attributed to negligence of drivers and inefficiency of the Police
in administering and enforcing road traffic laws 726. It is recommended that serious measures be
taken by government and judiciary so as to ensure that those who violate laws are seriously dealt
by enforcement of the provisions of Road Traffic laws.
2.1.2 The Sinking of M.V Spice Islander I
The year 2011 witnessed a historic tragedy that claimed a number of human lives following the
sinking of M.V Spice Islander I which was travelling from Unguja to Pemba. The accident took
place off the coast of of Nungwi on 10th September, 2011. The number of passengers who died is
not known but according to a statement submitted to the House of Representatives by the Second
Vice President; more than 3000 people were on board of the vessel when it sank. Only 600
people were were rescued and the rest are presumed dead or missing. The cargo on board has not
been accounted for.
Following the incident, the President of Zanzibar using the power conferred to him under section
51 of the Constitution of Zanzibar, 1984 and sections 2 and 3 of the Commission of Enquiry
Decree Cap 33 of the Laws of Zanzibar, formed the commission of enquiry to look into the cause
of the accident. The Commission has completed the enquiry and the report was submitted to the
President of Zanzibar in November, 2011. The public is anxiously waiting for the findings of the
report to be made public. The public has started to complain over the delay of the report 727. The
Government has not made any response on the reason for the delay. It is recommended that the
findings of the report be quickly disseminated to the public so that the cause of the accident can
be known. It is also recommended that the findings and recommendations of the report be
considered and fully implemented.
Zanzibar Legal Services Centre took this accident seriously. This is because it deprived a large
number of Zanzibaris of this right to life and denied even a bigger number of their loved ones.
Thus, the Centre dedicated one of its Newsletter Sheria na Haki to this accident and also
participated fully in a Seminer organized by the Dar es Salaam based German Foundation – the
Friedrich Ebert Stiftung (FES) which discussed this at lengh.
726
Road traffic in Zanzibar is regulated by Road Transport No. 7 Act No. 2003. The law among other matters
prohibits reckless driving in section 115 but practically reckless driving takes many lives of the people in
Zanzibar.
727
Opposition, lawyers query sunk vessel delay; The Guardian, 28th December, 2011.
265
MV Spice Islander I which sank in the Indian Ocean off the northern tip of Unguja Island leading to deaths and
injuries of a considerable number of passengers in September, 2011.
2.3 Death Penalty
Death penalty involves taking away of the life of a person convicted of a capital offence. It is
executed by various methods such as hanging by neck until a person is dead, the use of gas
chamber, the use of the lethal injection or the use of electric chair. There is an ongoing
worldwide campaign to abolish the death penalty on the ground that it goes contrary to the
protection of right to life. The International Covenant of Civil and Political Rights of 1966
provides under Article 6 (2) that for the countries which have not abolished death penalty, it may
be imposed only for most serious crimes in accordance with the law.
The United Nations has introduced specific Protocol aiming at the abolition of death penalty.
This is the Second Optional Protocol to the International Covenant on Civil and Political Rights
(ICCPR) of 1989 which requires all state parties to abolish death penalty in their jurisdictions 728.
Besides those legal instruments, states are urged not to impose the death penalty to persons
below 18 years, pregnant women or people with unsound minds and the punishment may only be
carried out after legal process with all the possible safeguard of a fair trial including legal
assistance. 729.
In Zanzibar death penalty is still provided under domestic penal laws. Part VI of the Penal Act
No. 6 of 2004 provides for various penalties in which Zanzibar courts may inflict including death
penalty. 730 The Act further provides for types of offences in which death penalty may be
imposed which include:
a. Treason; 731
728
Article 1 of the Optional Protocol.
Adopted and proclaimed by General Assembly resolution 44/128 of 15th December, 1989.
730
Section 6 of the Penal Act No. 6 of 2004.
731
Ibid, Section 28. the court of Appeal of Tanzania ruled out in the case Machano Khamis Ally and 17 Others v.
SMZ that treason cannot be committed in Zanzibar because Zanzibar it is not a State. However, no legislative
action has been taken to repeal the offence from the statute.
729
266
b.
c.
d.
e.
Entering Zanzibar with intent to organize a counter revolution; 732
Instigating invasion; 733
Murder; 734 and
Child destruction. 735
The law provides for the mode of execution of the death penalty. It is provided for under
Criminal Procedures Act, 2004 736 that a person who is sentenced to death, the sentence shall
direct that he shall be hanged by neck until he is dead. 737 Only pregnant women and children
below the age of 18 years are clearly exempted from death penalty. 738 However the execution of
the death penalty requires the approval of the President of Zanzibar. 739 Records show that death
penalty was imposed in the year 2011. The High court of Zanzibar convicted one Juma Juma
Mohamed for murder and sentenced to death by hanging. 740 The convict being aggrieved with
that decision appealed to the Court of Tanzania which upheld the decision. 741 However, there
were no records in 2011 showing the execution of the death penalty imposed previously and this
is mainly attributed to culture of restraint by the President.
There is an intensive campaign in Zanzibar, like many other countries in the world to abolish the
death penalty. These campaigns are taken by many human rights activists including various
NGOs. The Zanzibar Legal Services Centre (ZLSC) conducts activities every 10th October; the
date has been internationally earmarked for that occasion. 742 It has been organizing seminars and
conducts various researches on the matter as well as circulating posters containing detail
concepts of the death penalty and its disadvantages.
In the year 2011, ZLSC published a book titled Death Penalty in Islamic Law 743 which
elaborates the recognition of death penalty in Islam subject to the strict laid down rules of
evidence and procedures in accordance with Islamic law. The book is very important in the
present campaign to abolish death penalty in Zanzibar where the public is reluctant to raise their
voices against the punishment only because it is provided in Islam. In response to this the book
clearly states that it is only in accordance with the strict rules of Islamic law this punishment may
be inflicted. This entails that under the present application of the common law principles, it is
wrong to inflict death penalty.
732
Ibid, Section 29.
Ibid, Section 30.
734
Ibid, section 196 and 197.
735
736
Act No 7, 2004.
737
Section 305 (i).
738
Section 305 (2).
739
Ibid, Section 310.
740
DPP v. Juma Juma Mohamed, Session Case No. 21 of 2004.
741
In Juma Juma Mohamed v. DPP, Criminal Appeal No. 243 of 2011.
742
On 10th October, 2011 when ZLSC earmarked death penalty, the public continues to oppose death penalty.
743
Dr Khamis, M.A., Death Penalty In Islamic Law, ZLSC, 2011.
733
267
The Book on Death Penalty in Islamic Law by Dr. Muhyiddin Ahmad Khamis (Maalim Siasa).
Despite these campaigns there is no indication from the government to strike-off from the statute
books this penalty though there has been no execution since 1964. Instead the President has been
invoking his power to commute the penalty as provided under the Zanzibar Constitution.
The government urges the public to continue to discuss the merit and demerit of death penalty
while the government follow up whether there is a need of abolishing of death penalty or not. 744
2.4 Mob Violence
Mob violence entails arbitrary action by a group of people punishing a person under the
allegation that the person has committed a certain act condemned by the society. Mob violence is
reported to persist in Zanzibar in different forms. The reason for such persistence is attributed to
ineffectiveness of law enforcement agencies in dealing with suspects.
One Mustafa Mohamed Namkwanga was seriously attacked by a group of people on allegations
of theft. The incident took place at Mfenesini Kivuma on 29th April, 2011 about 3: 00 am and the
victim died at 1:00 pm on the same date at Mnazimmoja hospital due to injuries sustained from
the attack. The matter was reported to police and investigations are still underway to identify the
suspect.
Another incident took place at Tomondo in Urban West Region of Unguja on 2nd July, 2011
where one Juma Seif Haji was found dead after being attacked by the group of people on
suspicion of theft. The matter was reported to Mwanakwerekwe Police station but so far no one
has been arrested in connection with the incident.
744
The Speech of the Second Vice President of Zanzibar, Hon. Seif Idd on Commemoration of World Death Penalty
Day at Eacrotanal on 10th October, 2011.
268
2.5 Freedom from Torture
The term torture has been defined in various ways. However it suffices to mention the definition
as propounded under Article 1 of the United Nation Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment of 1984 says:
any act by which severe pain or suffering whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed, or intimidating or
coercing him or a third person or for any reason based on discrimination of any kind when such
pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in official capacity …
The prohibition of torture applies to many measures for example beating on the soles of the feet;
electric shock applied to genitals and nipples; rape; near drowning through submersion in water;
near suffocation by plastic bags tied around the head; burning; whipping; needles inserted under
fingernails; mutilation; hanging by feet or hands for prolonged periods 745.
Mistreatment that does not meet the definition of torture are also prohibited; either because less
severe physical or mental pain is inflicted, or because the necessary purpose of the ill-treatment
is not present. It affirms the right of every person not to be subjected to cruel, inhuman or
degrading treatment. Examples of such prohibited mistreatment include being forced to stand
spread eagled against the wall; being subjected to bright lights or blindfolding; being subjected to
continuous loud noise; being deprived of sleep, food or drink; being subjected to forced constant
standing or crouching; or violent shaking746. In essence, any form of physical treatment used to
intimidate, coerce or "break" a person during an interrogation constitutes prohibited ill-treatment.
If these practices are intense enough, prolonged duration or combined with other measures that
result in severe pain or suffering, they can qualify as torture 747.
The prohibition of torture as well as cruel, inhuman or degrading treatment is not limited to acts
causing physical pain or injury. It includes acts that cause mental suffering for example through
threats against family or loved ones.
Prohibition of torture is provided by various international human rights instruments such as
Article 7 of the International Covenant on Civil and Political Rights, 1966, Universal Declaration
of Human Rights, 1948 and African Charter on Human and Peoples’ Rights, 1981 748. Tanzania is
party to these instruments. Tanzania is not a signatory to Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment of 1984 which makes it questionable for
Tanzania to have domesticated parts of the Convention into her municipal laws.
Zanzibar, as a part of Tanzania, has domesticated the prohibition against torture in its domestic
laws. The Zanzibar Constitution, 1984 provides under Section 13 (3) the prohibition of any
person to be tortured, inhumanly treated and awarded degrading punishment. The prohibition
against torture is elaborated in detail by the Criminal Procedure Act, 2004 which provides that a
745
The legal Prohibition against Torture available at http://www.hrw.org/news/2003/03/11/legal-prohibition-againsttorture visited on 20th January, 2011.
746
Ibid.
747
Ibid.
748
See Article 5 of the Charter.
269
person while under restraint shall be treated with humanity and with respect for human dignity. It
further insists that a person shall not be subjected to cruel, inhuman or degrading treatment. 749
The Zanzibar penal laws further prohibits corporal punishment as a punishment for any offense.
However, its execution is not criminalized.
As noted above, Zanzibar still recognizes death penalty in her penal laws. Though the penalty is
not executed, there has been a persistent mental torture to the convicts of offences who are on
death rows. During the time they are waiting for the execution of punishment, they suffer mental
torture. The convicts remain confined separately with the notion that they are waiting for the
execution of death penalty.
For the purpose of this report torture is not confined to the above aspects. In Zanzibar torture
takes place in different forms. There has been an unaddressed issue of torture at individual level
which is inflicted by private citizens on each other as a result of parental, spousal, school
punishment or from bullying which are always unreported.
2.6 Equality before the Law -Equal Access to Justice for All
Equal access to justice is a key requirement for the enjoyment of the right to equality before the
law as per Section 12 of the Constitution of Zanzibar of 1984 which holds that “everyone has the
right to be protected and get equal rights without discrimination.” The Constitutional provision
further assures that the rights, privileges and duties of an individual shall be protected and
decided only by the courts and state organs established under the law.
Access to justice enables people to use the law to protect their rights. Realization of this right
requires institutional and legal framework that would guarantee all persons accessibility to the
laws of the land and the judicial bodies. In Zanzibar, there are persistent problems that hinder
people from access to justice. These are such follows:
2.6.1 Proximity, Availability and Infrastructures of Courts
Zanzibar has a dual court system; that is the Common Law System and Kadhis Courts. Under
Common Law System, Zanzibar has a 5 – tier judiciary system: the Court of Appeal of Tanzania;
the High Court of Zanzibar; the Regional Magistrates Courts; District Magistrates Courts, and
Primary Magistrate Courts. The law establishing the Magistrate courts, the Magistrate Court Act
of 1985 750 provides that there shall be a Primary Court and a District Court in every District. 751
As far as the Kadhis Court system is concerned there is no possibility to go to the Court of
Appeal of Tanzania as this is not allowed under the Constitution in what is seen as preservation
of some matters under the jurisdiction of Zanzibar 752 including matters to do with Islamic law
749
Section 35, Criminal Procedure Act, 2004 (Act No. 7 of 2004).
Magistrate Courts Act, No. 6 of 1985.
751
Ibid, Section 3 and 9.
752
Section 99 (b) of the Zanzibar Constitution, 1984.
750
270
such as inheritance, marriage and divorce. 753 There is an argument that this is disadvantageous to
some and also a denial of testing the law to the fullest.
Proximity of courts has still remained one of the major problems impeding access to justice
particularly in rural areas. In spite of being reported, the problem is not so far solved 754. Most
primary courts are widely distributed, but the Regional Magistrate Courts, High Court and the
Court of Appeal are not proximate to the people and they have for a long time suffered from
inadequate financial and human resource.
Currently, in Pemba there is one Primary and District Court in Mkoani, Chake Chake, Wete and
Konde each. There is only one Regional Magistrate Court in Chake Chake and one in Wete.
People have to travel from remote areas to these areas. In Unguja, there is one Primary and
District Court in Makunduchi, Mwera, Mkokotoni, Mfenesini, Chwaka and Mwanakwerekwe.
There is one Regional Magistrate Court at Vuga in Zanzibar Town which has territorial
jurisdiction over Urban and some parts of Western District of Unguja. Another Regional Court is
in Mwera having territorial jurisdiction over the whole Southern Region of Unguja and some
parts of Western District areas. In Nothern Region of Unguja the court is at Mfenesini, while
residents of growing towns like Mkokotoni and Nungwi at the Northern tip have to travel a long
way to reach the court.
For a poor and or disadvantaged person it is not easy to move such long distances in pursuit of
justice. In the Pemba High Court sits once a month if a Judge is available from Unguja. So far
there is no Resident High Court Judge in Pemba. This does not only cause delay of disposal of
cases but also access to justice. The reason for failure to have regular High Court sittings in
Pemba is attributed to budgetary shortcomings.
The Court of Appeal of Tanzania sits once per year in Zanzibar. People have to wait a whole
year to know the fate of their cases. The Court of Appeal has never sat in Pemba and thus forcing
those with legal problems to follow the Court to Unguja.
There has been a growing number of cases on land issues in Zanzibar. This sector should have its
own system to ease the burden from the courts and hence, the Zanzibar Government had
introduced the Land Tribunal 755 with powers to address land cases, but the Tribunal has a huge
backlog of cases.
The Industrial Court is conferred with powers to entertain labour disputes in Zanzibar. 756 The
court is presided by the Chairman who is a High Court Judge appointed by the President of
Zanzibar. 757 The court is stationed in Unguja and has no office in Pemba. Labour disputes in
753
As it has been explained before, also matters relating to the interpretation of the Constitution of Zanzibar do not
go to the Court of Appeal of Tanzania.
754
See Tanzania Human Rights Report, 2010, p. 306-307.
755
Act No 7 of 1994.
756
Section 80 of labour Relation Act, Act No. 1 of 2005.
757
Ibid, Section 81(1).
271
Pemba have to be referred to Unguja for determination by court. The Labour Relation Act
provides for the establishment of Dispute Handling Unit which deals with mediation and
arbitration of all disputes referred to it. 758 So far the unit is not operative which makes all
disputes to be referred to Industrial Court which is presided by only one chairman who also
executes other functions in the High Court of Zanzibar. The Court sits once a week to determine
all matters referred to it without being first referred to Dispute Handling Unit. Had it been
operative, the Unit would not only reduce the backlog of cases but also labour disputes could be
effectively determined. The Court also faces the shortage of man power and equipment.
In addition to the above problems, the infrastructures of the courts are substantially poor. Many
courts in Zanzibar face the shortage of spaces particularly in rural areas. For example, Mfenesini
Court building that accommodates Regional Magistrate Court, District Magistrate Court and
Primary Magistrate Court has only one hall which all three courts need for holding sessions in
open courts. This shortage of extra halls compels Magistrates to conduct cases in their chambers
which are very small. This scenario not only jeopardises their safety but also affects the
administration of justice that insists cases to be conducted in open courts.
It is recommended that the tribunal to be presided by a Chairman who has no other judicial
functions so that he can have enough time to deal with labour related cases. It is also
recommended that there should be a sub-office in Pemba headed by a deputy chairman or any
officer authorized by law to handle labour disputes. It is also recommended that the Dispute
Handling Unit to be formed to deal with mediation and arbitration of labour disputes.
There is a need to make the courts closer to the people so that people can easily access to justice.
2.6.2 Shortage of Manpower
Though the number of judges and magistrates have increased following the appointment of four
judges and seven magistrates in 2011, the number is still not sufficient. The shortage forces the
few available Magistrates and Judges to handle many cases and thus leading to long delays. In
spite of the increase of District court Magistrates, in Mwanakerekwe District courts, it is
estimated that one Magistrate handles an average of 9 to 10 cases per day 759.
The problem of a lack of a resident judge in Pemba has still not yet been solved. One judge visits
in Pemba once a month and this is not even regularly fulfilled. Sometimes it may take six months
for a judge to visit Pemba. In general, judges in Zanzibar handle a considerable number of cases
in the course of the year.
The power to entertain matters relating to land is vested to Land Tribunal. This tribunal is
presided by the Chairman appointed by the President for term of five years 760. A shortage of man
power still faces this tribunal. Currently there is only one Chairman of the tribunal in Unguja and
758
Source: DPP Chambers, Mwanakwerekwe.
760
Section 4, Land Tribunal Act.
759
272
one Deputy Chairman in Pemba handling many cases. While all cases relating to land in the
whole Zanzibar must be brought before this tribunal, the disposal of the cases is very slow. For
example in the year 2011, 133 cases were filed in Unguja but only 26 cases have been so far
disposed of. In Pemba, 113 were filed but only 58 have been so far disposed of. Generally the
Tribunal is very slow to adjudicate cases due to the insufficient number of staff for Unguja and
Pemba Office. 761
The table below shows the disposal of cases in land tribunal since 2006.
Year
Number of filed
Number of Disposed
%
Cases
Cases 762
2006
121
45
37.2
2007
171
26
15.2
2008
151
13
8.6
2009
139
25
18.0
2010
220
5
2.27
2011
246
85
34.6
Source: Land Tribunal Registry, 2011
2.6.3 Court Fees
The payment of courts fees in civil cases is another problem that hinders equal access to justice.
The practice is that any person who files a civil suit before any court of law must pay a court fee
which always depends on the value of the subject-matter. Most Zanzibaris cannot afford court
fees let alone the costs of engaging the services of an advocate. Only few people can afford
payment of court fees resulting in failure of the majority to enjoy the right of access to justice.
Zanzibar still has in its statute books a law that allows people with limited means to file for a
waiver in meeting the legal requirement of paying court fees. However, lack of knowledge of the
existence of such an opportunity leads to the majority to give up on their rights. Therefore, this
761
Report of the Oversight Committees of the House of Representatives (Ripoti za Kamati Maalum za Baraza la
Wawakilishi), p. 100.
762
The disposal of cases include cases which were withdrawn from the Tribunal for one reason or another and does
not mean only cases which reached final stage.
273
opportunity is enjoyed by those who are aware of this law. Even then, they still cannot enjoy the
opportunity fully because of cumbersome application procedure. 763
2.6.4 Legal Education
Recent studies indicate that majority of Zanzibaris are barely knowledgeable of the law and their
rights 764. Studies reveal that majority of people acknowledge the fact that ignorance of law is a
serious problem which stands out as main the obstacle in the access to justice. 765 Even those who
have been to school can hardly access substantive and procedural laws due to language barriers
whereby English is the main language used in most legal documents save for the Constitution
which is in Kiswahili. Even where they can understand normal English, they still have to contend
with the tough legal language found in various legal instruments.
This is justification for legal literacy campaigns to give people an understanding of basic legal
terms and particularly their human rights and duties. It was not until recently that the teaching of
civics and general knowledge in secondary schools were consolidated to include the relevant
knowledge of basic human rights in the school curriculum. Specialized legal education is offered
in the high learning institutions.
However, that specialized education starts from Certificate to Diploma and Undergraduate
levels. Currently there is only one University offering an undergraduate degree course in law and
that is the Zanzibar University. There are few other academic institutions which provide Diploma
and Certificate Courses in Law. These institutions are Zanzibar University, Azania College of
Management and Zanzibar Business School. 766 The number of graduates in these institutions is
however still low as compared to the current national population of nearly 1,206,000.
A new programme established by the Zanzibar Legal Services Centre two years ago is providing
its Paralegals with legal education for a period of two years. During this training Paralegals are
introduced to the same education offered in the University Bachelors Degree. However, this
training is done in Kiswahili language and not English. In the course of the two years,
participants cover a total of eight subjects in this training. 767
2.6.5 Legal Aid
Legal aid if properly coordinated may assist in better access to justice. The lack of a proper
mechanism to provide for legal aid in Zanzibar is another problem that constrains equal access to
763
The application to file cases in forma pauparis is made to the District Commission through the office of the
Sheha. See order XXXVII of the Civil Procedure Cap 8 of the Laws of Zanzibar.
764
Baseline Survey for Monitoring of the Paralegals Project: A Report of the Needs Assessment Study, ZLSC, 2011.
765
Ibid, p. 33.
766
The University of Dar es Salaam’s School of Law has been offering a Certificate Course in Law through its
Zanzibar Centre for years. Another institution which has a Centre in both Unguja and Pemba through which
Zanzibaris can still study law through long distance studies is the Open University of Tanzania (OUT).
767
During the First Year the subjects covered are Legal Method, Criminal Law and Procedure, Constitutional and
Legal System, and Contract. In the Second Year Paralegals cover Civil Procedure, Administrative Law, Law of
Torts, and Law of Evidence.
274
justice. The provision of legal aid in Zanzibar is still guided by the Criminal Procedure Act,
2004 768. Under this Act, the High Court in any criminal trial involving capital punishment may
assign an advocate to defend an unrepresented accused where it appears that the accused has no
sufficient means to engage an advocate. 769Legal aid provision is limited only to criminal trials
and where a person is a charged with capital offences such as murder, manslaughter and treason.
Currently, only two organisations provide full legal aid to the poor and disadvantaged
Zanzibaris. These include Zanzibar Female Lawyers Association (ZAFELA) 770 and Zanzibar
Legal Services Centre (ZLSC). A number of people have been filing their complaints in ZLSC
offices seeking legal assistance in 2011.
The table below shows the number of complaints received by ZLSC office in Unguja from
people seeking legal aid in 2011.
NUMBERS OF DISPUTES RECEIVED FROM UNGUJA AND PEMBA ZLSC OFFICES
S/N
Type of Disputes
Brought by Men
Brought by Women
Total
1.
Family Dispute(divorce,
maintenance and division of
matrimonial asserts)
18
70
88
2.
Land Disputes
170
28
198
3.
Labour laws
92
35
127
4.
Grievous Bodily Harm
12
3
15
5.
Inheritance
15
21
36
6.
Rape
-
36
36
7
Defilement
-
5
5
8
Compensation
10
-
10
9
Nuisance
1
-
1
768
Act No 7, 2004.
Ibid, Section 197.
770
In 2011, ZAFELA received 109 complaints particularly facing women and children. It has been assisting the
public in drafting legal documents and representing them in the courts free of charge.
769
275
10
Defamation
6
8
14
11
Contract
54
27
81
12
Domestic violence
-
30
30
13
Civil
6
-
6
14
Road traffic
9
1
10
15
Early marriage/early pregnancy
13
24
37
16
Human Rights Cases
45
11
56
17
Child abuse
7
60
67
18
Destruction of the property
5
-
5
19
Assault
1
1
2
20
Murder
1
-
1
TOTAL
465
360
825
ZLSC has introduced the paralegals in every constituency in Zanzibar. Currently the centre has
50 paralegals and four in Zanzibar Special Forces Departments. The main intention of
introducing paralegals system is to address justice related problems to individuals and the
community as whole. Available report indicates many people acknowledge the importance of the
introduction of paralegals 771. From January to December 2011, ZLSC paralegals attended
different cases and reported them to ZLSC offices as seen in the table below:
LEGAL DISPUTES REPORTED BY UNGUJA PARALEGALS- ZLSC FROM JANUARY TO
DECEMBER 2011
Types of Case
Male
female
Children
Girls
Total Number of
Cases
Boys
1
Land disputes
22
13
-
-
35
2
Inheritance disputes
5
9
-
-
14
771
Baseline Survey for Monitoring of the Paralegals Project op. cit. p. 42.
276
3
Family and domestic violence
-
15
-
-
15
4
Maintenance for children
-
12
-
-
12
5
Divorce
-
10
-
-
10
6
Abduction
-
-
4
2
6
7
Early Pregnancy
-
-
8
-
8
8
Contract
6
1
-
-
7
9
Nuisance
4
-
-
-
4
10
Rape
-
-
9
-
9
11
Infliction of Grievous bodily harm
12
4
-
-
16
12
Violation of Human Rights
8
1
-
-
9
13
Theft
30
-
1
-
30
14
Defamation
4
3
-
-
7
15
Labour
6
1
-
-
7
16
Child abuse(cruelty)
-
-
3
4
7
17
Defilement
-
-
-
2
2
18
Suicide
1
-
-
-
1
19
Arson
3
-
-
-
3
20
Committing affray
4
2
-
-
6
21
Corruption
1
-
-
-
1
106
71
25
8
210
Total Number of Cases
NUMBERS OF CASES REPORTED BY PEMBA PARALEGALS
S/N
NATURE OF THE CASE
1
LAND DISPUTES
2
RAPE
3
THEFT
MALE
31
16
277
FEMALE
CHILDREN
TOTAL
5
-
35
8
10
18
1
-
17
4
MATRIMONIAL DISPUTES
5
5
ABDUCTION
6
ASSAULT
7
MURDER
8
DEFAMATION
9
CUSTODY OF CHILDREN
10
BUGLARY
4
-
11
INHERITANCE
1
1
12
PREGNANCY
13
HUMAN RIGHTS VIOLATION
14
1
1
13
1
2
-
18
8
8
1
3
I
1
1
4
2
2
-
4
2
2
2
4
7
2
2
11
SODOMY
-
-
4
4
15
DESTRUCTION OF PROPERTY
5
-
-
5
16
GREVIOUS BODILY HARM
3
1
-
4
17
CONTRACT
6
2
-
8
18
TRESPASS TO LAND
3
-
-
3
19
ATTEMTED RAPE
-
-
1
1
20
MAINTAINANCE FOR CHILDREN
-
-
6
6
82
38
38
158
GRAND TOTAL
In the year 2011, ZLSC in collaboration with ZAFELA and ZLS provided free legal aid to 50
people in Tumbatu in the North Region of Unguja while in Mkoani District in Pemba 40 people
received legal aid. 772 This was during the Annual Legal Aid on 13th December, 2011.
In spite of those efforts taken by these NGOs, members of the general public are still in dire need
of free legal aid services. Those NGOs are financially constrained to the extent that they cannot
afford to provide for legal aid services countrywide. Apart from that, there is no legal framework
that coordinates the provision of legal aid between government and private institutions.
2.6.6 Legal Representation
The right to be represented in any legal proceedings is provided under Article 12 of the Zanzibar
Constitution of 1984. However this right is hardly enjoyed due to number of drawbacks. One of
772
ZLSC Annual Activity Report, 2011 p. 12.
278
those problems is the high cost of engaging advocates to appear on people’s behalf or drafting
legal documents. Normally an advocate charges high costs so that many Zanzibaris cannot afford
to engage them. Recent studies reveal that very a few people in Zanzibar can afford to pay the
expenses of hiring advocate. 773
Another problem is the shortage of advocates. The current number of practicing advocates in
Zanzibar is 52 which is equivalent of 0.005 percent of the Zanzibar population. 774 All of them
reside and work in Zanzibar town leaving rural areas without any legal service. 775 It is revealed
that 42 out of 52 advocates which is equivalent to 80.76 percent are concentrated in Urban West
Region of Unguja. 776 In Pemba still there are only four resident advocates which is equivalent to
7.7 percent of the total number of advocates. 777 If a person in Pemba wants to engage the
services of an advocate he/she has to hire one from Unguja where the costs of engaging such a
lawyer are prohibitive.
In addition, advocates are not allowed to appear before Primary and Kadhis Courts 778. Though
Vakils 779 are allowed to appear before these courts, they do not have sufficient knowledge of law
to be able to handle legal matters effectively. Furthermore the number of Vakils is very low to
cover all courts in Unguja and Pemba. 780
Many of the enrolled advocates lack experience. This is a problem particularly in the Court of
Appeal of Tanzania where only advocates with five years or more of experience in the High
Court can appear before this court. The shortage of advocates coupled with the lack of
experienced advocates negatively affects access of justice to the people.
There is also a problem of pro bono service being provided by practising advocates normally
who have to be assigned by the Chief Justice to provide such services to people who cannot
afford to pay for legal services. 781 Even the Zanzibar Law Society has a power of assigning pro
bono cases to its member.
The Government has also to review the Legal Practitioners Decree Cap 28 which is failing to
serve the demands of the day. There is also the need to have more transparent means of
773
Baseline Survey, op. cit p. 33.
Ibid.
775
ibid.
776
Ibid. p. 34.
777
In actual fact there is no single advocate or law firm in the whole Island of Pemba.
778
Section 8 of Magistrate Court Act, 1985.
779
See section 2 of the legal practitioner Decree cap 28 and rule 6 of Subsidiary legislation. Vakils are defined as
Persons of good character and sufficient ability, admitted by Chief Justice to practice in any courts referred to.
780
Currently there are only four Vakils in Unguja Island.
781
The assignment of these cases to advocates goes very slow and normally not all enrolled advocates are assigned
those cases.
774
279
enrolment of advocates than what exists where it is mostly left to the discretion of the Chief
Justice. It would also be our recommendation that it is high time that Zanzibar establishes a
Council for Legal Education which will be responsible for setting legal education standards
including ensuring that private institutions conducting legal training are recognised by the
Government.
2.6.7 Delay of Cases
The delay of cases has been a serious problem in Zanzibar. Cases take long periods before they
are disposed of. 782 The delay of cases is a result of a shortage of judicial man power, legal
technicalities, absence of witnesses etc. The delay of cases compounds the negative
consequences in criminal cases particularly where an accused is in remand hence infringing
his/her freedom of movement and fair trial.
The availability of copies of court proceedings by the aggrieved of the decision of lower courts
has still been a problem. The copies of the proceedings of the cases take very long to be accessed
by parties 783. This problem is largely contributed by shortage of man power responsible for
preparation of the proceedings and lack of equipments.
Despite efforts that have been taken to speed the disposal of criminal cases, problems exist in
civil cases 784. There is no legal framework which has been introduced to speed up the disposal of
those cases. The government must take up this challenge by, for instance, appointing more
Judges and Magistrates, improving budget for judiciary and legal institutions, improving
situation for the attendance of witnesses and all who assist courts in disposing the cases.
It is also recommended that the Revolutionary Government of Zanzibar introduce what is known
as Alternative Dispute Resolution (ADR), a practice which has helped in solving a lot of civil
disputes outside the court and hence reduce the load of handling civil cases. This system is
already operational in parts of Tanzania Mainland particularly in Dar es Salaam.
2.6.8 Independence and Impartiality of Judiciary
One of basic tenets of access to justice is that the judiciary must be independent to oversee that
each and every person or institution is treated equally before the law and without discrimination.
The judiciary should be recognised and protected against undue interference in its work. This can
782
There were cases reported in Tanzania Human Rights Report of 2010 as they have been before the courts for long
time. Research indicates that these cases are not disposed of. Cases like Rashid Ali v. Najma Ali, High Court at
Vuga, Civil Case No 02/ 2001; Salama Mbarouk v. Mohamed Adam, High Court at Vuga, Civil Case No. 13/2004;
Suleiman Yussuf Ali. v. Emirates Airline. Ltd; High Court at Vuga, Civil Case No. 11 of 2006; Civil case No.
44/2004 between Mohamed Haji v. Kibata Mussa, DPP v. Thabit Mohamed Khamis, Criminal Case No.16/2002
before High Court of Zanzibar and DPP v. Said Ali Omar, Criminal Case No 203/2006 before RMC , are still
pending before respective courts since they are instituted.
783
For example parties in a case between Mohamed Ameir and Another v. Said Salum Khelef and Another, Civil
Case No. 10/2000 are waiting for proceedings to appeal before High court of Zanzibar since 2009. The case was
reported in Tanzania Human Rights Report of 2010 but as of today copies of the proceedings are not available to
the parties.
784
See Tanzania Human Rights Report, 2010, p. 314.
280
be done by, among other things, providing protection of tenure to the judicial officials and
enforcing their decisions without question.
In order for the Judiciary to be independent, the following requirements must be fulfilled: First,
judicial powers and personnel must be separated from those of the Executive and the Legislature;
secondly, judicial officers must be guaranteed immunity from prosecution or litigation when
discharging their duties; thirdly, there must be security of tenure for judicial officers and,
fourthly, there must be security of remuneration 785. Judicial independence whether institutional
or personal, is not pursued as a goal for its own sake. It can only have full meaning in the context
of and as an integral part of democratic government 786.
The Constitution of Zanzibar, 1984 explicitly declares that Zanzibar shall follow the system of
separation of powers between three authorities, the executive authority, the legislative authority
and the judicial authority. No authority shall intervene in another authority except in the manner
provided by the Constitution. 787
The Constitution of Zanzibar, 1984 guarantees Judges of the High Court security of tenure which
is important for their independence. The Constitution provides that a Judge of the High Court
shall continue to hold office until he/she reaches the age of 65 years when he/she will
compulsory retire 788. A judge can only be removed from office by the President of Zanzibar if
the question of removal has been referred to a special commission appointed for that purpose and
the commission recommends that the judge should be removed from office due to inability to
discharge his/her functions or due to grounds of misbehaviour. 789 The Constitution further
provides that Chief Justice or Judge of the High court shall not be appointed or elected to
perform other work in the Revolutionary Government of Zanzibar or in any other place for any
period without his/her consent in writing. 790
The Zanzibar Constitution does not expressly name the Judiciary as the final authority in the
dispensing of justice. Rather it states that the High Court of Zanzibar shall be a court of records
and shall have jurisdiction over all criminal and civil matters and any other issues as may be
specified by the Zanzibar Constitution and other laws 791. Failure by the Zanzibar Constitution to
name the Judiciary as the final authority in dispensing justice is considered a governance gap. 792
785
Nditi, N.N. , “The Independence of the Judiciary,” in Mtaki, C.K and Okema, M., (1994) Constitutional Reforms
and Democratic Governance in Tanzania, Faculty of Law, University of Dar es Salaam, p. 136.
786
Jjuuko, F.W., The independence of the Judiciary in the Independence of the Judiciary and the Rule of Law, Kituo
cha Katiba, Kampala Uganda p 2.
787
Section 5 A (1) and (3) of the Constitution.
788
789
790
791
Ibid, Section 93(1) of the Constitution of Zanzibar, 1984.
792
APRM Report of 2009, p. 75.
281
However, Section 113(8) of the Zanzibar Constitution states that the courts shall not be restricted
from investigating any organ.
The Subordinate Courts (Regional, District and Primary) are the busiest courts in Zanzibar
judicial system. The salary of Regional and District courts Magistrates was tremendously
increased in the year 2011. The salary increase is expected to enhance their accountability and
independence. However, Primary Courts magistrates are still lowly paid.
In spite of salary increase, Magistrates are not provided with any form of transport. They thus
end up taking the same commuter buses carrying relatives of suspects they had just convicted.
They are not provided with housing to commensurate with their position in society. Some live in
very dangerous neighbourhoods without assurance of their safety. Given these unfavourable
working conditions, it is not surprising that corruption and petty bribery are rampant in this level
of the judiciary.
In Zanzibar, the courts have also been prohibited from inquiring into acts committed by the
Zanzibar Electoral Commission793. In the same way Article 34(7) of the Zanzibar Constitution
prohibits anyone from challenging presidential election results in courts of law. In this view, this
area of “ouster clauses” needs to be reviewed since not all of them are justified.
In the year 2010 the House of Representatives passed the Government Proceeding Act 794 that
limits the judiciary from attaching government properties in case of government failure to
execute Court orders. 795
In 2011, the orders of the courts continued to be disrespected in Zanzibar particularly by
government agencies. For example in Civil Case No. 24/2007 between Ahly Construction ltd v.
District Commissioner of Micheweni, Regional Commissioner of North Region of Pemba,
Principal Secretary of the Ministry of local Governments Zanzibar and Attorney General of
Zanzibar. It was first ordered that the plaintiff be paid 104 million shillings in 5 instalments.
However, the order was not executed so the attachment of some defendants’ cars save that of
Attorney General was ordered but the order has not been executed. The non-execution of that
order forced the plaintiff to stone the car (SMZ 6460, Toyota Prado) used by Principal Secretary
of Ministry of Planning, Economic affairs and Development. The incident took place September,
2011 at Ministry’s headquarters, Vuga Zanzibar.
Other cases were reported back in 2010 but their orders have not up to date been respected.
These include the High Court of Zanzibar Ramadhan Aman v. General Inspector of Police,
Commissioner of Police Zanzibar, Principal Secretary of Ministry of Home Affairs and Attorney
General of Zanzibar, Civil Case No. 23/2005. It was first ordered that the car of Commissioner
of Police Zanzibar with registration No PT 1575, Prado to be attached and sold in auction. To
date, the order has not been executed. 796 In another case which involved Ali Mbarak Suleiman v.
793
Section 119 (13) of the Constitution of Zanzibar, 1984.
Act No 3 of 2010.
795
796
In Civil Case No 13/94 between Lamshore Limited v. ZSTC the High Court ordered the account of RGZ to be
attached for failure to pay the plaintiff, the order has not been executed.
794
282
Commissioner of Police Zanzibar, Civil Case No 18/2003 the court ordered the plaintiff to be
paid 1,700,000/= and other costs for demolition of his property. However, the court order was
not respected. The court ordered the attachment of cars of the defendant with registration
numbers PT 1535, Discovery, PT 0873, land Rover and PT 1575 Land Cruiser.
All appointments to the judiciary in Zanzibar are in the hands of the Judicial Service
Commission which is now handled by a Puisne Judge after being under the Chief Justice for a
very long time.
It is recommended that the appointment of court officials particularly Judges, Magistrates and
Clerks must consider their competence and ethics. The procedures relating to appointment must
also be strictly followed. More attention needs to be paid in terms of training and remuneration
of personnel as well as in the provision of adequate working tools. Courts must ensure that their
decisions are respected and enforced.
2.7 Freedom of Worship
Islam is the most prominent religion on the island of Zanzibar where more than 97% of the
populations are Muslims and 2.5 % of the Christians. Between 80 and 90 percent of the country's
Muslim population is Sunni; the remainder consists of several Shi'a subgroups. The Christian
population is composed of mainly Roman Catholics and Anglicans and a few other
denominations including Pentecostals, New Apostolic Christians, Seventh-day Adventists,
members of the Church of Jesus Christ of Latter-day Saints (Mormons), and members of
Jehovah's Witnesses 797. Freedom of worship has been provided for by a number of global and
regional Human Rights instruments. The Constitution of Zanzibar of 1984 provides for freedom
of religion under Section 19 which provides that:
Every person is entitled to have freedom to form opinion, conscience and choice of matters of
religion including freedom to change religion or belief. A person shall also be free to
propagate, worship and inspire religion.
The Constitution further declares that matters relating to the operation of religious organizations
shall not be under government authority though this has been contravened with the institution of
the Mufti Act in 2001. 798 A critical review has shown that the Act which was vehemently
opposed by Muslim has glaring defects. 799
The Mufti Act contains various provisions relating to the establishment of Mufti Office,
appointment Mufti, functions and powers of Mufti. This Act is said to go against both the
Constitutions of Zanzibar and that of the Union which declare Tanzania to be a secular State.
797
http://en.wikipedia.org/wiki/Religion_in_Tanzania.
Act No 9 of 2001. See also
799
Peter, Chris Maina, Mufti Act of Zanzibar, The Fundamental Rights and Freedoms of Muslims on the Isles,
Zanzibar: ZLSC Publications Series. No 6, 2008, p. 26.
798
283
The Act directly interferes with the rights, freedoms and affairs of Muslims in Zanzibar. 800 It is
also suggested that the Act robs Muslims in Zanzibar their right to freedom of assembly and
association. 801
The Act establishes the Mufti Office which is responsible for various Muslim matters. 802 Under
this Act, the President of Zanzibar is given power to appoint the Mufti to be the head of the
office.47 The Act further provides that the funds for the office shall include such sums as may be
approved by the House of Representatives. 803This may be considered as direct discrimination to
other religious affiliations which do not receive that benefit as Muslims in Zanzibar.
There have been reports of burning down churches in several places of Zanzibar in the year
2011. 804
In Fuoni in the West District of Unguja Island, the building of the Evangelical Assemblies of
God-Tanzania (EAGT) was torched July, 2011. In Kianga, about 10 kilometres, six miles from
Zanzibar town, another church building was burned down on July, 27. The fire destroyed 45
chairs of the Church. It was also reported on June 17, 2011 in Konde, a village within Northern
Region of Pemba Island another church, a Seventh-day Adventist Church building was razed.
Reports have been filed in Fuoni and Konde police stations respectively but no person has been
so far been connected with the allegations. 805
The burning down of churches hampers not only religious tolerance in the Islands but also
freedom of worship among respective believers. It is recommended that RGZ take appropriate
steps to ensure that all religious groups are equally protected in Zanzibar.
2.8 Freedom of Expression
The right to freedom of expression is guaranteed in the Zanzibar Constitution in that every
person has the right to freedom of opinion and expression, and to seek, receive and impart or
disseminate information and ideas through any media regardless of national frontiers and also
has the right of freedom from interference with his communications. 806
The Revolutionary Government of Zanzibar promised to open the doors to ensuring freedom of
information so that citizens receive information. 807 Currently there are two cable Televisions
800
Ibid.
Section 9, Mufti Act, 2001.
802
Ibid. Section 4.
803
Ibid, Section 11.
804
See IPP MEDIA: Available at:
http://www.ippmedia.com/frontend/index.php/oi.poc/Il=2389=170migrant.ie/1a0mggry.phie/?l=36244 (accessed
on15th December, 2011).
805
http://www.compassdirect.org/english/country/tanzania/article_115694.html accessed on 15th December 2011.
806
See Section 18 of the Zanzibar Constitution of 1984.
807
See Habari I Leo Newspaper, Available at: http://www.habarileo.co.tz/kitaifa/?n=23626&cat=kitaifa (accessed
on 27th November 2011).
801
284
operating in Zanzibar, one is based in Unguja and one is in Pemba. However they have a very
limited coverage only in urban areas. There are currently 10 Private Radio Stations operating in
Zanzibar but their coverage is not countrywide.
Although the right to freedom of expression is guaranteed in the Constitution it is not sufficiently
implemented in domestic legislations and practice. The Zanzibar Constitution lacks the legal
provisions for the protection of journalists’ sources of information in Zanzibar. This situation has
been contributed by the existence of restrictive legislation in Zanzibar. For example the
Registration of News Agents, Newspapers and Books Act of 1988 808 is very sweeping and
restrictive in its provisions. It provides for the licensing of journalists and the establishment of a
government-controlled “advisory board” to oversee the private print media.
2.8.1 Censorship of the Media Freedom
Censorship and other interferences to media freedom still persist in Zanzibar. It is for this reason
that until today Zanzibar has only one news paper that is owned by the government namely
Zanzibar Leo which mostly covers the government news. This situation deprives Zanzibaris of
information on what is happening in their country. Even though there are other printing news
papers from Tanzania Mainland which are daily available in Zanzibar, they do not have
extensive coverage on all events happening in Zanzibar.
It is recommended and it is pertinent at this juncture for the Zanzibar Government to allow
private media to operate in Zanzibar. These will not only assist people in accessing sufficient
information but also may open competition with other media particularly government-owned and
hence improve their operation.
2.8.2 Harassment of Journalists
It is a continuing tendency in Zanzibar for some journalists to face harassment from some
government authorities. This usually takes place when a journalist covers certain information
which government officials do not want exposed to the public. For example, a journalist of
Nipashe Newspaper 809 was forced to apologize or face prosecution by the Director of Health and
Prevention of Ministry of Health after writing about the defective conditions of all machines in
the Intensive Care Unit (ICU) 810.
2.8.3 Poor Coverage for Public Broadcasting Media
Many Zanzibaris particularly in the rural areas largely depend on public media i.e. Radio
Zanzibar and Television Zanzibar (TVZ) which are now under the Zanzibar Broadcasting
Corporation (ZBC). The Television of Zanzibar is predominant in Unguja while residents of
Pemba do not have an access to this service. Therefore they have to depend on other private
media which do not have country wide coverage. In spite of several promises by the Minister for
information this has not yet been fulfilled 811. In general the performance and the broadcasting
808
Act No. 5 of 1988.
An interview with Mwinyi Sadala, a Journalist of Nipashe on 20th December, 2011.
810
See Nipashe Newspaper of 29th May, 2011.
811
See the Zanzibar Leo of 1st October, 2011 (Issue No. 3556) and Zanzibar Leo of 10th October, 2011 (Issue No.
3545).
809
285
mechanism of TVZ are very poor. This situation has made the Zanzibar President to order this
organ takes measures to restore its lost glory. 812
2.9 Conclusion
This chapter has noted slight improvements in the enjoyment of civil rights and liberties in
Zanzibar in 2011 as compared to 2010. It has been learnt that the violation of right to life in 2011
has been more serious than in 2010. It was also observed that mob violence is still persists in
Zanzibar while road accidents continue to claim lives in 2011. The sinking of M.V. Spice
Islander I in 2011 beat the records of accidents in taking the lives of thousands people who were
on board. There are still many challenges facing the access to justice in Zanzibar. The only noted
improvement in 2011 has been the increase of number of Magistrates to reduce the problem of
manpower reported in 2010. The rest of the reported challenges in 2010 such as proximity of
courts, legal aid and representation, independence of the Judiciary and delay of cases still
prevail. Challenges facing freedom of expression have also been reported in this chapter
including censorship of media, harassment of journalists and poor coverage for public media.
Generally, the challenges reported in the year 2010 continued in 2011. This Chapter provided a
number of relevant recommendations. It is expected that the authorities responsible will take
them seriously to ensure civil rights and liberties are completely enjoyed. Lastly, but not least is
the need address the possible consequences of religious intolerance which is emerging as a
serious problem in the isles.
812
Zanzibar Leo of 8th December, 2011(Issue No. 3602).
286
CHAPTER THREE
Political Rights
3.0 Introduction
Political rights give opportunity to citizens to participate in the governance of their country. This
participation can be through associations and public debates/assemblies in which ideas are
discussed on the electoral process, giving and receiving information through various outlets,
including media, and related matters.
Political rights are vital in any society and Zanzibar is not excluded. A functioning society
should guarantee the rights of its members to freely take part in political activities regardless of
colour, sex, creed or origin. 813 One and all in a given society should have equal rights to take part
in the running of the government and should have equal access to opportunities available in
enjoying the political forum.
The political rights of the world citizenry are stipulated under the Universal Human Rights
Declaration, (1948) the most celebrated rights-based document. Furthermore, the International
Covenant on Civil and Political Rights of 1966 seeks to ensure such rights specifically under
Articles 19, 21 and 22, with a binding nature to state parties for the full enjoyment of their
population. The African Charter on Human and Peoples’ Rights, 1981 further carries this right
through Article 18 and it sets obligation on members of the African Union to promote such rights
to the populace in the continent. 814 The Zanzibar Constitution of 1984 has followed suit by
ensuring the political rights in the Bill of Rights provided in Chapter Three. In this chapter the
right to participate in the governance and freedom of association and assembly will be
thoroughly discussed.
3.1 Political History
A politically stable society and one that provides fully, the civil liberties of its people tends to be
more forthcoming in ensuring observation of human rights while the contrary brews a repressive
government and one that is less concerned with human rights. Moreover, it has been proved that
a government that observes the human rights of its people and adheres to principles of good
governance will perform better economically and will record better development achievements.
813
These are standards that no country is excluded from fulfilling although some have attempted to diverge from
them for reasons of socio–economic conditions.
814
The Charter was adopted at a time when nationalism was very strong in Africa in the wake of independence era
and as such it could not be implemented.
287
Zanzibar had a vibrant political history that lasted for about one decade from 1954-1964. It
started with the formation of first political party Zanzibar Nationalist Party (ZNP) founded in
December 1955 followed by the Afro-Shirazi Party (ASP) in 1957, the Zanzibar and Pemba
Peoples Party (ZPPP) founded in 1959 815 and finally the Umma Party in 1963.
The parties were formed at a time when the struggle for independence was at its highest gear at a
period that was fondly known as Zama za Siasa and when the parties confronted each other in
three elections culminating in the last one of 1963 that was only followed by achieving
independence on 10th December, 1963. However, on 12th January, 1964 the Afro-Shirazi Party
staged a successful revolution that brought to power a peoples’ government that has now lasted
almost 47 years. The Revolutionary Government immediately abolished multi-party politics until
1992 when the system was reinstated. It began with the amendment of the Union Constitution 816
and followed by the enactment of Political Parties Act of 1992 817.
Since the re-introduction of competitive politics in Zanzibar, the main political parties have been
the Chama cha Mapinduzi (CCM) and the Civic United Front (Chama cha Wananchi -CUF).
CCM has won four consecutive elections in 1995, 2000 and 2005. The Opposition has cried
electoral fraud and has boycotted the House Representatives several times as well refusing to
recognise the President of Zanzibar. The two parties have almost an equal following on the Isles.
The year 2010 marked the end of the political antagonism between CCM and CUF in Zanzibar
following to another political accord which resulted into the formation of the Government of the
National Unity. 818 The GNU has opened new chapter for Zanzibar after a long political
antagonism that affected Zanzibar in every aspect of life. The system has helped unite Zanzibaris
who had divided themselves into antagonistic partisan lines. The system has further made
Zanzibar to engage itself mainly on developmental activities instead of politics.
3.2 Right to Participate in Governance
The right to participate in governance is a right that enables individuals to participate in the
decision-making process of their country. This participation can be either directly or indirectly
through their freely chosen representatives. This right has been enshrined in different
International Instruments both global and regional. The UDHR is the first international document
that has entrenched the right to participate in the government of the country. Article 21 of the
Declaration provides that:
1.
2.
Everyone has the right to take part in the Government of his country, directly or
through freely chosen representatives.
Everyone has the right to equal access to public service in his country.
815
The ZNP was formed after local riots later known as Vita vya Ng’ombe in 1954; the Afro-Shirazi Party was found
in 1957 and it later splinted to allow the formation of ZPPP.
816
Articles 3 and 10 of the Constitution of the United Republic of Tanzania 1977 which had declared Tanzania a one
party state and party supremacy respectively were amended to usher in multiparty political system. These changes
were in conformity with the recommendations made in the Report of the Nyalali Commission of 1991.
817
Act No 5 of 1992.
818
See also the situation leading to the formation of GNU in Tanzania Human Rights Report, 2010, p. 329-331.
288
3.
The will of the people shall be the basis of the authority of the Government; which
shall be expressed in periodic elections which shall be by Universal and equal suffrage
and shall be held by secret vote or by equivalent free voting procedures.
The above Article was later on translated into binding form by ICCPR in 1966. This was through
Article 25 of the ICCPR which provide that:
Every citizen shall have the right and opportunity, without any of the distinctions
mentioned in Article 2 and without unreasonable restrictions:
a. To take part in the conduct of public affairs, directly or through chosen representatives;
b. To vote and to be elected at genuine periodic election which shall be by Universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
c. To have access, on general terms of equality, to public service in his country.
Although the word “democracy” is not mentioned in UDHR but Article 25 contains a set of
rights that goes to the heart of a democratic society. It appears that the drafters of this Article
have taken the view that the enjoyment of this right requires a democratic government based on
the consent of the people. 819 This Article is considered currently as laying international standards
in conducting democratic elections. It contains the so-called election elements which include
periodic elections, genuine elections, right to stand for election, universal suffrage, right to vote,
equal suffrage, secrecy of votes and free expression of the will of voters.
3.3 Right to Participate in Governance in Zanzibar
This part extensively provides the right to participate in governance in Zanzibar and the
challenges facing its enjoyment by Zanzibaris.
3.3.1 Legal Framework
Tanzania being signatory to the ICCPR has incorporated its relevant provisions in her
Constitution. Zanzibar as a part to URT has done the same as URT Constitution, 1977. In section
21 (1) of the Constitution of Zanzibar of 1984, this right is provided as follows:
Every Zanzibari shall have the right to take part in the conduct of the
government of the country, either directly or indirectly through freely chosen
representatives.
Section 21 (2) gives every Zanzibari the right and freedoms to participate effectively in decisionmaking on matters affecting him personally or the nation.
The right to vote, as one element of the right of participation in governance, has been provided in
Article 7 of Zanzibar Constitution. The Article reads:
819
Alex, C. Scott, D. and Richard, B., Defining Civil and Political Rights: The Jurisprudence of the United Nations
Human Rights Committee, Ashgate Publishing Limited, 2004, p. 68.
289
Every Zanzibari who has attained the age of 18 years has the right to vote in
the election conducted in Zanzibar.
The voting exercise is slated for every five years unless under other circumstances already
aforementioned in both the Constitution and the Election Act of 1985 820. Several conditions for
the enjoyment of this right are laid down under the Constitution and the said Election Act,
1984 821. Some of the conditions act as obstacles in the full enjoyment of those rights as
elaborated hereunder:
3.3.1.1 Ordinary Resident Requirement
The Election Act, 1984 provides that a person can only be registered to vote if he/she is an
ordinary resident of a particular constituency. A person is considered to be an ordinary resident if
he/her:
a)
has permanent residence in the constituency and has been living in there for
consecutive period of 36 months;
b)
resides in the constituency for employment reasons;
c)
is the wife or husband of an ordinary resident;
d)
is a dependents of the mentioned above;
e)
is a student residing boarding school recognized by government within the
constituency.
Civil servants, members of the security forces and employees of international organizations are
the ones who are covered under paragraph b) above. If a person is not an ordinary resident in that
constituency, he or she has to return to his or her original constituency where he can register.
The ordinary resident requirement has serious legal repercussions. The first legal problem is the
constitutionality of the requirement. The Constitution of Zanzibar is very clear that it confers
power to the House of Representatives to enact laws to restrict a Zanzibari from exercising
his/her right to vote only on the above four matters. The Constitution further insists that no any
other reasons except the above-mentioned can restrict a Zanzibari from exercising his or her right
to vote. It therefore clear that the House of Representatives has no mandate whatsoever of
imposing conditions other than those conferred under section 7 (2) of the Constitution. It
therefore follows that the legality of ordinary resident requirement is questionable.
Besides that, the residence requirement of 36 consecutive months in a particular constituency
defeats the nature of the concept of right to vote as provided in international human rights
instruments especially ICCPR. The enjoyment of the right to vote presumes an organic link of
some sort to a particular country, either on the basis of residence or citizenship. All persons
subject to objective and reasonable qualifications are entitled to enjoy that right. Any restrictions
that might be imposed should not lead to the denial of a person of his or her right to vote (UN
820
821
Act No.1 of 1985.
Act No. 3 of 1984.
290
Human Rights Comments on article 25 of the ICCPR) 822. To impose restriction limiting
Zanzibaris living permanently in a particular area renders the possibility of denying the
Zanzibaris the right to participate directly in the affairs of their country. This requirement
provides a conspicuous room for its abuse in case the authority intends to manipulate the
requirement. The requirement also excludes Zanzibaris who are living outside Zanzibar and
those who are infirmed or hospitalized.
As elaborated above, security forces, civil servants and members of international organizations
including their wives are exempted from complying with this requirement. This is another grey
area in the electoral laws. This provision has been the cause of problems in every elections,
particularly with regard to members of armed forces who are perceived to be partisans. The
provision also provides for the possibility of the exempted persons to lose their right to elect
candidates they want especially members of the House of Representatives and Councillors.
The residence requirement also has profound consequences on voting related rights. The Human
Rights Committee in its comments to Article 25 of ICCPR requires member states to give full
protection to freedom of expression, movement and association. The main reason behind this
emphasis is that free and fair election cannot be guaranteed without those rights. The condition
compels people to compromise their right to move and live where they want.
Practically, this condition has been creating an acrimonious atmosphere in every general election
in Zanzibar. Some people have been disenfranchised on grounds of missing the residence
requirement. The law though is clear that if a person does not have the residency qualification,
one may return to his/her original constituency where he/she can register. However, this has been
partially complied with. There has not been consistent practice in complying with those
requirements. The power to decide who is an ordinary resident is vested in the Sheha whose
decision is always perceived to be based on partisan lines.
3.3.1.2 Zanzibar Resident Identity Card (ZAN-ID)
In 2005, the Registration of Zanzibari Resident Act 823 was enacted which introduced Zanzibari
Resident Identity Card commonly known (ZAN-ID). The Act establishes registration office
headed by the Director. The Director is conferred with duties to:
(i)
register every Zanzibari resident in Zanzibar who has attained the age of eighteen
years and above;
(ii)
issue identity cards to every registered Zanzibari resident in Zanzibar;
(iii) maintain a record of all Zanzibaris resident in Zanzibar to whom this Act applies.
822
See the Office of High Commissioner for human rights. Available at:
http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/d0b7f023e8d6d9898025651e004bc0eb?Opendocument
(accessed on 25th December 2011).
823
Act No. 7 of 2005.
291
The identity card is only given to Zanzibari resident who has attained the age of 18 years.
Zanzibaris who are outside Zanzibar can only be registered and issued identity cards if they are
Zanzibaris resident, attain 18 years and must have returned to Zanzibar. The Act does not define
“Zanzibari Resident” but rather defines “Resident in Zanzibar” to mean dwelling permanently in
Zanzibar. This definition has been differently interpreted in practice and it has been used to deny
some Zanzibaris the right to hold the Zanzibar Identity card.
A Zanzibari is defined by the Zanzibari Act, 1985 824 as a Tanzanian citizen who has held
Zanzibar citizenship prior to the Union between Zanzibar and Tanganyika; a Tanzanian citizen
born in Zanzibar prior to the Union; a Tanzanian citizen who resided in Zanzibar prior to the
revolution; or a Tanzanian citizen who has at least one parent who is a Zanzibar citizen 825. The
Zanzibari Resident is required for once to be registered to be issued ZAN-ID. The Director is
empowered to refuse to issue or cancel identity card issued to any person who is not Zanzibari
Resident in Zanzibar 826.
The most controversial part of the law in Zanzibar is the amendment of the Elections Act No 11
of 1984 which included Zanzibari Identity Card as a requirement for one to qualify to register as
a voter 827. It entails that, this is another qualification for the eligibility to vote in addition to those
enshrined in the Constitution and Election Act.
The requirement of identity card during registration of voters has raised legal discussions relating
to the constitutionality of that requirement. Some Zanzibaris have decided to file petition before
the High Court of Zanzibar applying for orders of certiorari, mandamus and prohibition against
that requirement 828. However the application was struck off for some technicalities. The
proponents of the ZAN-ID lament that the constitution of Zanzibar empowers the House of
Representatives to impose conditions on matters stipulated above (article 7 (1) of the Zanzibar
Constitution) which may bar a person to register to vote. According to paragraph (d) of a person
shall be disqualified to vote in case of failure to prove or provide identity card showing age,
citizenship or registration of voting. Therefore, ZAN-ID requirement, falls within the umbrella of
paragraph (d) of the Constitution hence the requirement is legal.
The other view is that the requirement is unconstitutional as the constitution never allows such
requirement that aims at infringing one’s Constitutional right. The constitution does not restrict
itself to ZAN-ID but rather any kind proof may be used. Section (d) is very flexible as it gives a
room for a person to prove his/her identity in different ways.
824
Act No. 5 of 1985.
Ibid., Section 3.
826
Section 12 of the Registration of Zanzibaris Resident Act, 2005.
827
See Section 12 of the Election Act No. 11 of 2004.
828
Hamad Mussa Yussuf, Dadi Kombo Dadi and Ali Omar Juma v. Director of Zanzibar Electoral Commission and
Attorney General of Zanzibar, High Court of Zanzibar at Zanzibar, Civil Case No. 16 of 2009.
825
292
Be that as it may be, the ZAN-ID is very controversial issue and has got a number of legal and
practical shortcomings. In the first place the ZAN-ID is restricted only to Resident Zanzibaris i.e.
Zanzibaris who permanently dwell in Zanzibar. The definition of “permanence” is hard to come
by. This may create problem on identifying who is living in Zanzibar permanently and may
exclude Zanzibaris who stay outside Zanzibar yet they are Zanzibaris. The Zanzibari Act of 1985
was amended by the Registration Resident Act of 2005 to require Resident Zanzibari to hold
ZAN-ID. The Zanzibari Act never mentions about Resident Zanzibari. It only provides for the
definition of Zanzibari and how that status is obtained. The only logical conclusion that can be
drawn is that the ZAN-ID has nothing to do with Zanzibari identity. It is rather intended to be
used in election and in particular during registration.
The determination of the status of Zanzibari itself is a complex matter and has become a
contested issue particularly during the registration of voters. In certain incidences being ordinary
resident of 36 months in a particular constituency is regarded as a qualification for the eligibility
of ZAN-ID. Zanzibari requirements as stipulated in the Zanzibaris Act, No. 5 of 1985 is not
considered. This might cause eligible Zanzibaris to lose their right to register and instead the one
who is not eligible for Zanzibar elections to benefit from that right.
Furthermore the issuance of ZAN-ID involves very cumbersome procedures. In order one to be
issued ZAN-ID a special application is required and the procedure costs the equivalent of US$
20(approximately 30,000/= Tanzanian Shillings). In cases where documentation is required then
a person would need to get assistance from a Sheha (a local government leader) whose powers
and attitudes in this regard is controversial. For a person to get the ID he/she has to furnish
information and documents which are difficult to accessible for the majority of Zanzibaris. For
example a person has to show a birth certificate to prove he/she is a Zanzibari. There are
categories of eligible persons who do not possess birth certificates yet they are Zanzibaris. As in
the case of old people, those people who do not know their birth dates let alone possessing birth
certificates. Worst still no other means of proof such as use of affidavits is permitted to get ZANID.
To substantiate Zanzibari status is a suffocating atmosphere during registration of voters
particularly in Pemba. During elections the main opposition party, CUF strongly objected to the
ZAN ID requirement claiming that it disenfranchised many of its members. This protest led to
chaos and civil unrest during the first phase of the voter registration exercise which led to a
temporary suspension of the voter registration exercise on 4th August 2009. The requirement of
ZAN-ID for the eligibility of voter registration was perceived a political act rather than a genuine
legal requirement intending to facilitate the right to vote as guaranteed by the Constitution. Until
recently, the acquisition of ZAN-ID has been problematic. Shehas have been reluctant to issue
IDs to some Zanzibaris. CUF Secretary General Maalim Seif Shariff Hamad has been heard
making several claims on the denial of some eligible Zanzibaris ZAN-ID. If the denial continues,
many Zanzibaris will also lose their right to vote in coming elections.
From the above background, it can be rightly concluded that the ZAN-ID requirement in
registration to vote is mostly controversial. It is one factor that caused eligible voters to lose their
293
right to vote in 2010 general elections. The problem of ZAN-ID stems from the way it is issued
but not its relevancy. It is very relevant if it is provided in good faith; with intention of
ascertaining the Zanzibari identity.
It is therefore recommended that the Zanzibari Act No. 11 of 1985 be used to consider who is
fairly eligible to have ZAN-ID for the purpose of identifying a Zanzibari. The cards should be
considered as of right which should be freely issued to the eligible and not subject to payment of
any fees. The issuing exercise should be fairly and transparently conducted and not politically
motivated. The criteria for proving Zanzibari residency should not be limited to birth certificates
only, but other legal means should also be used. In the registration of potential voters the ZANID may be used to identify the eligible Zanzibaris and not residents. However, this should not
limit other means of proving the eligibility to register in the respective elections.
It was expected that with reconciliation and the Government of National Unity in place
everything would change. This is however not the case. There is a considerable number of
Zanzibaris who still do not have their ZAN-IDs despite constant visits to the relevant authorities
demanding the same.
3.3.1.3 Right to Stand for Elections
The will of the people requires an electoral process that provides an equal opportunity for all
citizens to become candidates and put forward their political views, individually and in
cooperation with others. 829 Persons who are otherwise eligible to stand for election should not be
excluded by unreasonable or discriminatory requirements such as education, residence or
descent, or due to political affiliation. No person should suffer discrimination or disadvantage of
any kind because of that person's candidacy. 830
The right to stand for election has been provided for by the Constitution of Zanzibar according to
each contested posts in elections. In other words, the conditions differ between one contested
post and the next. In Presidential election, the Constitution provides that any person may qualify
to be elected as a President if: 831
a.
b.
c.
d.
He/she is a Zanzibari by birth;
Has attained the age of 40 years;
Has qualifications to be elected a member of House of Representatives and
Is a member of and candidate proposed by a political party officially registered subject
to Political Parties Act of 1992.
The Constitution also provides for the specific qualifications for House of Representatives
contestants which also include proposition by officially registered political party. This
829
UN Resolution of Enhancing the Effectiveness of Periodic and Genuine Elections, A/Res/46/137, 1991,
paragraph 4.
830
UN Human Rights Committee, General Comments of article 25 of ICCPR, paragraph 15.
831
Section 26 (2) of the Zanzibar Constitution, 1984.
294
qualification has raised a very persistent discussion in the country as infringing the right to stand
for elections. Since the inception of multiparty politics there have been persistent calls from
opposition political parties and members of civil society for the opening up of the electoral
system to allow independent/ private candidates to contest elections at all levels. 832
In the United Republic of Tanzania (URT) where the same provision as contained in the
Constitution of Zanzibar, the discussion led the matter being brought before the High Court of
Tanzania where the court decided in favour of independent candidacy. 833 The URT government
being aggrieved with the decision appealed to Court of Appeal of Tanzania which held that the
matter is political and therefore reserve it to parliament to decide as the CAT held that it has no
jurisdiction to amend the Constitution.834 However, CAT advised Tanzania to consider the
International Human Rights instruments especially the United Nations Committee in paragraph
21 of its general comment No. 25 of 1996 as noted above. It is reported that this requirement is
not in conformity with international principles as it restrict the effective right and opportunity to
stand for election of individuals who aim to stand as independent candidate and limits the voters
choice of candidates 835
3.4 Persons with Disabilities and the Right to Take Part in Governance
The Constitutional guarantee relating to the right to take part in governance of the country does
not exclude persons with disability. Persons with disabilities are entitled to enjoy equal rights as
other members of the public. This is given more clarity by Persons with Disability (Right and
Privileges) Act , 2006 836 by insisting that all persons with disabilities have the same rights to
participate in the political life in society as all other citizens including right to vote and contest
for elective offices.
832
2009 African Pear Review Mechanism Report, p. 35.
This matter has been before the High Court of Tanzania twice. First in the case of Rev. Christopher Mtikila v.
Attorney-General, High Court of Tanzania at Dodoma, Civil Case No. 5 of 1993, [Reported in Volume 1
Commonwealth Human Rights Law Digest, 1996, p. 11]; and again in Christopher Mtikila v. the Attorney General,
High Court of Tanzania at Dar es Salaam, Miscellaneous Civil Cause No. 10 of 2005. In both cases the right of the
individual to stand for elections as an independent candidate was upheld.
834
See Civil Appeal no. 45 of 2009 between The Honorable Attorney General v. Reverend Christopher Mtikila.
This decision has been heavily criticized by former Chief Justice of the United Republic of Tanzania Hon. Mr.
Justice Barnabas A. Samatta in a public talk delivered at Ruaha University College on 25th November, 2010. See
“Judicial Protection of Democratic Values: The Judgement of the Court of Appeal on Independent Candidates,” in
SHIVJI, Issa and Hamudi Majamba (eds.), Rule of Law vs. Rulers of Law: Justice Barnabas Albert Samatta’s
Road to Justice, Dar es Salaam: Mkuki na Nyota, 211, p. 233. However, it is worth noting that the issue of
independent candidates is becoming even more important now with political parties sacking their Members of
Parliament. The latest cases are those of David Kafulila MP of NCCR Mageuzi and Hamad Rashid Mohammed of
CUF. There has been also a call from civilians to amend the Constitution to the effect that if a Member of
Parliament is expelled from membership of a party he should still remain a Member of Parliament. Holding by
elections has been explained to cause unnecessary costs.
835
EU Observation mission Report, 2010 quoting UN Human Rights Commission, General Comment No 25 of the
ICCPR, paragraph 15, p. 9.
836
Act No. 9 of 2006.
833
295
In exercising the right to vote, the Election Act, 1984 837 lays down procedures covering persons
with disability in the exercise of this right. The Act provides that if a voter is incapacitated by
blindness or other physical cause, or unable to read he may call the presiding officer or
companion without the presence of any other person and give the name of the candidate he or
she would like to vote for and the presiding officer shall correctly vote for him or her. The Act
lays down further procedures to be observed when a voter with disabilities exercises his/her right
to vote 838. The Persons with Disability Act, 2006 requires the proper implementation of that
procedure and more particularly provide for offence in case of its violation. 839 Though the Act
has tried to see to it that the will of a person with disability is respected, in practice the secrecy of
votes of the persons with disabilities is not ensured. It is high time that the responsible authorities
introduce ballot papers for the blind and ensure that good procedures are laid down to make it
easy for other persons with disabilities to exercise this right.
The Person with Disabilities Act, 2006 further provides for accessibility of polling stations for
persons with disabilities during elections including the provisions of necessary devices and
services to facilitate the exercise of this right. 840 The situation on the field is not always in
conformity with this provision. Some of the polling stations during elections are too far to be
accessible by some members of the public particularly those with disabilities especially in rural
areas. Therefore this deprives accessibility to some members of the public particularly persons
with disabilities. It is recommended that polling stations should be brought closer to the public
and must be as many as possible so that people may have better access of their right. Also some
public building used for elections purposes are not easily accessible by persons using
wheelchairs and tricycles.
3. 5 Institutional Framework
The UN Human Rights Committee Comments on Article 25 of the International Covenant on
Civil, Political Rights (ICCPR) that, the rights and obligations provided for in Article 25 (b)
should be guaranteed by law. This must be parallel to the establishment of an institution to
administer the electoral process. This institution must be based on independence, fairness,
impartiality and observe the established laws which are compatible with ICCPR. 841 In Zanzibar
the power to administer elections is vested in the Zanzibar Electoral Commission (ZEC) under
Article 119 of the Zanzibar Constitution. According to the Elections Act, 1984, ZEC is
empowered to supervise the general conduct of presidential, members of the House of
Representatives and members of Local Authority elections. 842It is also responsible for
coordinating and promoting voter education. 843 The Constitution empowers ZEC to divide
Zanzibar into electoral constituencies having such boundaries and names as ZEC deems fit,
which are not less than 40 and not more than 55. It is not clear which criterion ZEC uses in
determination of constituencies in both Unguja and Pemba Isles. Over the years, people have
837
Act No. 11 of 1984.
Ibid, Section 68(3) (h)-k.
839
Ibid, Section 24 (2-5).
840
Section 25 of the Act.
841
UN Human Rights Committee comments on Article 25 of ICCPR.
842
Section 5 of Elections Act, 1984.
843
Ibid, Section 5 (b).
838
296
questioned the basis of merging constituencies and expanding others in a way that would affect
the composition of the Zanzibar House of Representatives and the representation of Zanzibar in
the Union Parliament.
ZEC is composed of a Chairman who is appointed by the President as he deems fit; 844two
members appointed by the President on the recommendation of the leader of Government
Business in the House of Representatives; 845 two members appointed by the President on the
recommendation of the Leader of Opposition in the House of Representatives; 846 one member
appointed by the President from among the Judges of the High Court; 847 and one member who
shall be appointed by the President as he deems fit. 848 The Chairman of ZEC should be a person
who has been or has qualification to be a Judge of the High Court or of Court of Appeal in any
part of the Commonwealth or an eminent person in the society. 849
The President has extensive powers in the appointment of Chairman and some members of ZEC.
The qualification attached to a person who can be a Chairman is so loose that there are no criteria
to determine the eminence of a person in the society and who has to determine the eminence of
that person. This gives discretion to the President to choose any person of his choice. He can
choose any person he feels comfortable with. This creates problems particularly where the
president or the party is also a contestant in the elections. This creates doubts on the
independence, impartiality and effectiveness of ZEC in conducting free and fair elections.
3. 6 Freedom of Association and Assembly
Freedom of assembly and association is provided under section 20 of the Zanzibar Constitution,
1984. The Article stipulates that every person is entitled, subject to one’s free choice to freely
and peaceably assemble, associate and cooperate with other persons and more specifically to
form or join associations, trade unions, human rights organizations or other organizations for
his/her interests permitted by law. However the enjoyment of this right is not without prejudice
in matters relating to defence, security of the people, health and public interest. Other matters
include those required for the purpose of protecting rights freedom of others as well as matters
required for keeping prohibitions to government officers, army officers or those voluntarily
appointed.850
The multi party system was officially re-introduced in Tanzania in 1992 through Political Parties
Act, 1992. Currently there are about 20 851 registered political parties in Tanzania. Political
parties must have a pan-territorial image that is to say they should attract membership from all
844
Section 119 (1) (a) of the Zanzibar Constitution, 1984.
Ibid, Section 119 (1) (b).
846
Ibid, Section 119 (1) (c).
847
Ibid, Section 119 (1) (d).
848
Ibid, Section 119 (1) (e).
849
Ibid, Section 119 (2) (a).
850
Section 20 (2) a-c.
851
See: http://en.wikipedia.org/wiki/List_of_political_parties_in_Tanzania (accessed on 24th December 2011).
845
297
sides of the Union. The Political Parties Act, 1992 requires that in order for a political party to
get registration it must have 200 members from at least ten regions of Tanzania which will
include regions in Tanzania Mainland and Zanzibar. 852 The requirement of the registration of
political parties as provided by Political Parties Act, 1992 is said to be a barrier to freedom of
association as some political parties may be unable to fulfil the registration requirements. 853
Furthermore the Act provides that one among the sources of political party fund is government
subvention. 854 There is still a critical problem regarding the requirements for a party to qualify
for subvention from the government. Only registered political parties which have parliamentary
seats and popular votes are qualified as follows: 50 percent of the funds shall be disbursed
amongst qualifying parties on the basis of the ratio between the number of parliamentary
constituencies in the United Republic and the other 50 percent of the funds shall be disbursed
amongst qualifying parties, i.e. those with at least 5 percent of all the valid votes cast in all
constituencies in the United Republic.
The disbursement of funds to the parties is on the basis of the ratio between the total number of
valid votes cast for the parliamentary candidates of the party and the total number of all the valid
votes cast in the parliamentary election for all the qualifying parties. This distribution of funds
creates a great gap between parties. Some of the emerging parties can hardly compete with others
because of the lack of funds.
In Zanzibar, civil society associations are governed by Societies Act, No 6 of 1995. The Act
requires every society to apply for registration to the Registrar of the Societies. 855 The Act
empowers the Registrar power to refuse to register a society if he is satisfied that special grounds
as provided under Section 12 of the Act exist. One of those grounds is that if, in the opinion of
the Registrar, the society is repugnant with the provisions of any law or is otherwise
undesirable. 856 The word undesirable is not defined in the Act which opens it to the possibility
of abuse in practice. The Minister is also empowered to declare a society unlawful when he/she
considers it essential for public interest. 857 The law is silent on whether the decision of the
Minister may be appealed against or not. This also creates possibility of this power to be abused
hence constrains the freedom of association. The Society Act is outdated and needs to be
amended to fits in the present situation.
The Labour Relations Act, 2005 858 provides the rights to employees to take part in the formation
of trade unions or federation of trade unions and rights to be members of the same as well as
852
Section 10, Political Parties Act, 1992.
Tanzania Human Rights Report 2010 p. 347.
854
Section 139 (1) v, Political Parties Act, 1992.
855
856
Section 12 (2) iii of the Act.
857
Ibid, Section 5.
858
Act No. 1 of 2005.
853
298
their protection. 859 Employees have positively used that right with 14 trade unions currently
established in Zanzibar. 860
The registration of NGOs by Registrar’s Office is still a problem. The registration of NGOs is
mainly conducted in Registrar’s office in Unguja. The situation still persists as those applications
filed in Pemba sub office must be then transferred to Unguja Office for consideration. This leads
to an accumulation of applications hence delay the registration of NGOs. In the year 2011/12
about 46 NGOs were registered. 861 However, majority of those NGOs are centred in urban areas.
It is recommended that the registration exercise should be decentralized to other offices so that
the registration exercise is conducted effectively. It is also recommended that residents in rural
areas should be also sensitized on how and the importance of establishing societies so that NGOs
can also be established in equal manner as in urban areas.
3.7 Controversy over the Union
Since 1964, when Zanzibar and Tanganyika formed a Union, a number of claims have been
raised regarding the formation and legality of the Union. These claims have been commonly
known as “Kero za Muungano" (Grievances over the Union) which were extensively explained
in Tanzania Human Rights Report, 2010. 862.
The year 2011 witnessed an historic event of the Union and in particular the constitutional
development of Tanzania. For long time in the history of Tanzania, members of academia,
lawyers, politicians and even ordinary citizens have been out crying on the need of having a new
constitution contending that the current one is out dated and is full of flaws. Early in 2011, the
Government of the United Republic of Tanzania drafted a Constitutional Review Bill as a
process that will culminate into drafting a new Constitution.
The Bill provided for, among other things, the formation of a commission responsible for the
collection of public opinions to be included into a new constitution. The Bill also contained
matters which are of sanctity, referendum and the formation of constituent assembly.
When the Bill was first tabled before the Parliament, it was considered fundamental to seek
public opinion to improve the Bill. The Parliamentary committee conducted only three meetings
for the whole Tanzania 863. There were serious claims from Zanzibaris on the process of drafting
the Bill. In particular, Zanzibar complained that it was partially involved during the process of
drafting the Bill which is a Union issue. 864 This was interpreted by Zanzibaris as a persistent
disregard by URT government to Zanzibar.
859
Source from the Zanzibar Labour Commission.
861
Budget Speech of the Ministry of Justice and legal affairs, 2011/2012 p. 32.
862
See Tanzania Human Rights Report, 2010 at pp. 348-352.
863
When the Permanent Parliamentary Committee on Constitutional and Legal Affairs held its meeting at Bwawani
Hotel, it was claimed that at the outset the Committee wanted to exclude Zanzibar in holding a meeting seeking
public opinions on the Bill. It was a pressure from MPs from Zanzibar that led the committee to hold a meeting in
the whole Zanzibar. This was taken by Zanzibaris as continuing insubordination of Zanzibar.
864
The Zanzibar Minister for Justice and Legal Affairs made that claim at Bwawani Hotel when the Parliamentary
Committee hold a meeting seeking public opinions.
860
299
In addition, there were many complaints on the contents of the Bill. From Zanzibari point of
view the bill did not have the Union image in the sense that the position of Zanzibar was not well
articulated. The examples that were given include the power of URT President to appoint
commissioners, power to constitute Constituent Assembly, consideration of final report from the
commission and issuing terms of reference. At the same time, providing matters of sanctity,
among them being the union between Tanganyika and Zanzibar was among shortcomings of the
Bill. From these shortcomings, the Bill was vehemently rejected by Zanzibaris regardless of their
political and religious affiliations.
These pressures, coupled with those from many parts of URT, resulted in the Bill not being read
at that stage. The government decided to incorporate some of the comments from public
particularly those favourable to Zanzibaris. The Bill was read before Parliament November,
2011.
The Bill still contains provisions which are subject to criticism. The President of URT upon
consultation and in agreement with the President of Zanzibar has wide power to appoint
members of the commission 865 a situation that jeopardises independence of the commission. It
could be of use if the members of the commission are elected by the Parliament. In the same
manner, the President of URT issues terms of reference for the commission 866 and the
appointment of the secretary of the commission. 867 It is proposed that terms of reference should
be prescribed in the Act itself and the secretary should be appointed by the commission itself or
by the Parliament. The submission of the report should not only be to the President of URT and
Zanzibar but also should be made public.
Another concern is on the formation of the Constituent Assembly to be composed of all members
of the URT Parliament, all members of the House of Representatives (HoR) and 116 members
drawn from No-Governmental Organizations, Faith-Based Organization, all fully registered
political parties, higher learning institutions and groups of people with special needs 868. The
inclusion of members of Parliament in the Assembly casts a doubt as to whether; it is proper for
members of the creator of the present constitution and who took oath to protect the constitution
to put into end and to frame a new constitution. It is recommended that members of the
Constituent Assembly to be reduced and elected from other sections of the population in order
gain legitimacy.
The Act requires the Commission to safeguard and promote some matters including the existence
of the United Republic, the Executive, legislature and Judiciary, the Republican nature of
governance just to mention a few. 869 This entails that the public is not free to discuss the
nonexistence of those matters but only their existence. It is recommended that the public be free
to express their views freely and decide what will be the best for their future. The desire of the
public must be also respected.
865
Section of the Act.
867
Section 13 (2) of the Act.
868
869
Refer to the list in section 9 (2) paragraph a-i of the Act.
866
300
There are also concerns that the bill largely favours Zanzibar than Mainland Tanzania. 870
Despite those concerns the Bill was enacted into law by Parliament and assented to by the URT
President on 29th November, 2011. It is now awaiting its operation. It is hereby recommended
that the government should not be “hard nut to crack” in amending the Act to repeal all
considered shortcomings to make the process of making a new constitution just and fair.
The Union agenda seems to prevail over a long existed Zanzibari political acrimony between
Zanzibaris. It seems that the political reconciliation under the Government of Natioanal Unity
(GNU) has united Zanzibaris raising a common voice against the union. In November 2011, a
group of Zanzibaris rallied at UN Offices in Zanzibar questioning the legality of the Union
between Tanganyika and Zanzibar.
3.8 Conclusion
Political rights in Zanzibar still face a number of challenges as it was also reported in 2010.
There are still obstacles to the enjoyment of the right to participate in governance in Zanzibar.
These problems include the Zanzibari Identity Cards (ZAN-ID) which is a requirement for the
eligibility to the right to vote in election. In spite of legal complication about ZAN-ID, the
availability of these cards is difficult hence many Zanzibaris may lose their voting rights. It is not
only voting rights which are at stake but other civil rights as well as the ZAN-ID is required for
other services as well on the isles.
Similarly ordinary resident requirement that entails that in order for a person to be eligible to
vote, one must be live in a constituency for the consecutive period of 36 months. This is
constitutionally questionable and may be a factor that denies many eligible Zanzibaris to vote. It
has also been shown that Zanzibar Electoral laws still do not recognize independent candidates in
standing for election. This is deprives people who are not members of any party of their right to
be voted in the elections. The Union agenda, particularly a process towards a new URT
Constitution, has been the agenda throughout 2011. The Constitution Review Act was passed but
was subject to various criticisms. It is recommended that the government make sure the public is
free to participate in the whole constitutional making process.
870
A Speech of a shadow Minister for Constitution and Justice, Hon. Tundu Lissu made during Parliamentary
session, 2011.
301
CHAPTER FOUR
Economic and Social Rights
4.0 Introduction
The Universal Declaration of Human Rights, adopted by the United Nations General Assembly
in December 1948, proclaimed the inviolability of social and economic rights. Social and
economic rights contained in the Declaration include the right to own property (Article 17), the
right to social security and to the realization of social and economic rights “indispensable for a
person’s dignity and the free development of his or her personality” (Article 22), rights with
respect to employment (Article 23) and rights with respect to education (Article 26). Article 25
recognizes a right to a certain standard of living:
Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and
medical care and necessary social services, and the right to security in the event
of unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control….
Article 2 of the Declaration states that everyone is entitled to these rights without distinction of
any kind based on grounds such as race, colour, sex, religion and so on.
The moral statements expressed in the Declaration were given legal force through two
covenants: the International Covenant on Civil and Political Rights and the International
Convention of Economic, Social and Cultural Rights, 1966 which was followed by the Optional
Protocol of ICESCR and came into force in December 2008. Tanzania being a part of
ICESCR 871 though has not ratified the Optional Protocol of ICESCR has full responsibilities to
observe the said obligations. It is for this reason that some of the above rights have been
incorporated into the Constitution of Zanzibar of 1984. In this chapter the right to education,
right to health, right to water, right to property and right to work are discussed to examine how
these rights were implemented in Zanzibar in 2011.
4. 1 Right to Education
Education is both a human right in itself and an indispensable means of realizing other human
rights. As an empowerment right, education is the primary vehicle by which economically and
socially marginalized adults and children can lift themselves out of poverty and obtain the means
to participate fully in their communities. Education has a vital role in empowering women,
safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting
human rights and democracy, protecting the environment and controlling population growth.
871
Tanzania ratified the Treaty on 11th June, 1976:
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en re-visited on
10th December, 2011.
302
Increasingly, education is recognized as one of the best financial investments States can make.
But the importance of education is not just practical: a well-educated, enlightened and active
mind, able to wander freely and widely, are one of the joys and rewards of human existence. 872
Education has long been a high priority in Zanzibar policies and development strategies. After
the 1964 Revolution, strengthening of education quickly became an important goal for the
Revolutionary Government of Zanzibar. Compulsory and free basic education was declared in
September 1964 873. The declaration aimed at making education more equitable and redressing
previous imbalances in its provision. In a very short time a large number of schools were
constructed and enrolment was expanded considerable.
4.2 Legal Framework Governing the Right to Education in Zanzibar
As stated earlier that, the Zanzibar Constitution does not include the right to education as one of
the enforceable rights. It is rather enshrined under Article 10 (f) as one of the political objectives
of the government. The right to education is provided for under the Education Act 874, which
provides for free and compulsory education 875. The Education Act provides for obligation on the
part of parents or guardians to ensure that the child regularly attends school until he or she
completes basic education. Basic education is defined to mean basic primary and junior
secondary which every child in Zanzibar is entitled to be provided 876.
4.3 Zanzibar Education Policy
Currently, Zanzibar follows two system of education. One system is 3-7-3-2-2 of education;
three years of nursery school, seven years of primary education, three years of first cycle lower
secondary education, two years of second cycle lower secondary education, two years of
advanced secondary education and three years of higher education 877. Compulsory basic
education is provided free in public schools for ten years covering seven years of primary and
three years of first cycle lower secondary education. The Second system is 3-7-4-2; this system is
special for students who perform well in seven years of primary school and selected to enter into
special Secondary Schools. 878
However, this structure is confusing and makes analysis and classification of schools and
teachers more difficult. In really sense the structure does not give due attention to pre-primary
education and higher education. Basing on these weaknesses the Zanzibar Education Policy of
+
2006 aims at introducing the new system of education in Zanzibar which is 2-6-4-2-3 (that is 2
872
Economic and Social Council U.N DOC E/C.12/1999/10 (8th December 1999).
873
The Speech by the President of Zanzibar during the Celebration to Commemorate 48 years of the Zanzibar
Revolution, January, 2012.
874
Act. No 6 of 1982.
875
Ibid, Section 19.
876
Ibid, Section 20(1-2).
877
The Revolutionary Government of Zanzibar, Ministry of Education and Vocational Training: Zanzibar Education
Development Programme (ZEDEP) 2008/2009-2015/2016 p 18.
878
Ibid.
303
years of pre-primary education, 6 years of primary education, 4 years of secondary education
ordinary level, 2 years of secondary education advanced level and a minimum of 3 years of
higher education). 879 However, the system is not yet operational.
There have been developments on the increase of number of schools from nursery to tertiary
levels in Zanzibar in 2011. The nursery schools have been increased to 244 in 2011 (from 238 in
2010). Primary schools have been increased from 148 in 2010 to 156 in 2011. The enrolment in
Primary schools has also been increased to (41,293 in 2011) from 38,743 in 2010880.
Development has been also noted in Secondary Schools which teach Form I-VI which have
increased from 99 in 2010 to 103 in 2011 881. Enrolment in Universities has also increased. The
number of students enrolled in State University of Zanzibar (SUZA), Zanzibar University (ZU)
and College Education of Chukwani has increased to 3814 in 2011 from 3624 in 2010. 882
The government has established the Higher Education Loan Board 883 to sponsor students at
higher learning institutions 884. The major target of the government is to provide loans for up to
6000 students from 2011 up to 2015. Until 2011, 209 students have received loans from the
Zanzibar Higher Education Loans Board. The Board currently does not officially issue loans to
students undertaking Law, Public Administration, Arabic and Islamic Studies. 885
4.4 Challenges Facing Education Sector
Although statistics show the increase of schools established by government, there are many
challenges facing education sector in Zanzibar which need to be considered. Some of them are as
follows:
4.4.1 Shortage of Inclusive Education Schools and Teachers
The concept of inclusive education means to broaden educational opportunities for children with
disabilities and marginalized groups so as to realize their full potential. Inclusive education often
particularly focuses on those groups who have been traditionally excluded from educational
opportunities. These include children with disabilities and special educational needs. The
inclusive education approach is particularly important for these groups. 886
879
Zanzibar Education Policy, 2006.
Speech by the President of Zanzibar, 2011 p. 36.
881
Ibid.
882
Ibid.
883
Established under section 3 of the Zanzibar Higher Education Loans Board Act No. 3 of 2011.
884
It should be noted that Higher learning is a Union Matter as per First Schedule of the Constitution of the United
Republic of Tanzania, 1977. Zanzibaris also benefit from loans given by the Higher Education Students Loan
Board of the United Republic of Tanzania.
885
This is not systematically followed as sometimes it depends on “who one knows.” The reason of not giving
priority to those fields of studies is explained to encourage students to take other studies such as education, Health
etc.
886
Regional Seminar “Poverty Alleviation, HIV and AIDS Education and Inclusive Education: Priority Issues for
Inclusive Quality Education in Eastern and Western Sub‐Saharan Africa” Nairobi, Kenya, 23 – 27 July 2007
available
at
http://www.ibe.unesco.org/fileadmin/user_upload/Inclusive_Education/Reports/nairobi_07/tanzania_inclusion_07.
pdf visited on 7th December, 2011.
880
304
For a long time there has been a shortage of inclusive education schools and qualified school
teachers for inclusive education in Zanzibar. Currently there are 76 schools providing for
inclusive education in Zanzibar. Even though the Ministry of Education and Vocational Training
has established a special centre for Inclusive Education, the centre is not sufficient to meet
current needs. More efforts are needed to ensure that more centres are established so that the
right to education is enjoyed by all. As the number of students who were registered for inclusive
education has increased to 4300 in 2011 from 3883 in 2010 (boys 2252 and girls 2046), there is a
need also to increase centres providing for inclusive education.
4.4.2 Shortage of Science Teachers
Shortage of science teachers has become serious problem in Zanzibar. The State University of
Zanzibar is currently issuing a Bachelor Degree in Science with Education the shortage of
science teachers for all schools is high particularly in Pemba. 887 Lack of laboratory facilities,
books and movement of teachers from Zanzibar to neighbouring countries to seek for better
salaries are some of the reasons for the shortage of science teachers in Zanzibar. Fear of failure
in science subjects and lack of qualification makes many students opt for arts subject. The
Government has tried to raise the salary of science teachers to encourage students and potential
science teachers to study science subjects. Conducive environment needs to be put in place in
schools, especially improving laboratories and science teaching to encourage students be perform
well in science subjects.
The number of teachers has further been skewed in favour of some subjects. English,
mathematics and science subjects remain understaffed, resulting in both an unfairly distributed
teaching load, but more seriously in a large number of Zanzibari pupils not getting quality
teaching in key subjects. 888
4.4.3 Cost Contribution in Education
According to the Ministry of Education Guidelines for Schools, 1997, every parent of a student
is required to contribute a certain amount of money annually for his/her child. The contribution is
to some extent very burdensome to some parents some of whom cannot even afford their basic
needs let alone contributing to one’s child. This situation runs contrary to the requirements of
United Nation which requires that primary education to be available “free to all” and obligates
the States parties to progressively introduce free secondary and higher education 889. In fact it is a
kind of payment in the form of contribution. White the government has fixed the rates of
contribution. The ministry has fixed the upper limits of the contribution, but leaves it to the
discretion of the Head teacher and the school committee to decide the amount to be contributed
by each student as long as it does not surpass their ... Hence,, there is no uniformity in the
amount changed, with contribution sometimes ranging from Tshs. 12,000/- to Tshs. 20,000/=. In
many cases this payments becomes a burden to parents or guardians particularly when they have
more one child at school.
887
See Report of the Oversight Committees of the House of Representatives, 2011/2012, p 41.
Ibid.
889
General Comments No. 13. U.N DOC E/C.12/1999/10 (8 December 1999).
888
305
4.4.4 Large Number of Pupils in Classes
It is obvious that the government can hardly cope with high population increase as well as
positively to implement the Millennium Goals which Zanzibar wants to achieve by 100 percent.
In order to carry out this obligation, the Ministry of Education and Vocational Training, which
has the legal obligation of providing basic education, has developed, what are known as large
classes, especially in high density areas in order to meet the minimum compulsory education
goal. These classes may sometimes be too big to be handled by a single teacher. For example in
Bububu Primary School one class has more than one 100 students contrary to the Tanzania
National Target of 40 pupils per class rooms by 2010.
The average pupil teacher ratio at basic education level is 31:1, well below the Regional average,
the Education for All (EFA) target of 40:1 and the national benchmark referred to in Education
Policy 2006 of 40:1. 890 The pupil teacher ratio for public schools is 33:1, while in private schools
it is 16:1891. Inter district comparison figures show that North B district in Unguja has the lowest
pupil teacher ratio of 27:1, whereas Micheweni district in Pemba has the highest pupil teacher
ratio of 46:1. 892 At the primary level, Urban, West and Central districts have a higher proportion
of female teachers, and a higher proportion of qualified teachers than the average. This situation
deprives some pupils’ good quality of education. It is recommended that the number of students
in classes be made reasonable to be effectively handled so that the pupils can enjoy quality
education that allows feasible interactions between a student and teacher.
4.4.5 Early Pregnancies and Marriages
The right to education is compulsory for all children. However, sometimes the problem of early
pregnancies and early marriages deprive some students this right. For example in 2010/2011
twenty eight cases (28 cases) of early pregnancies has been reported in the Ministry of Education
and Vocational Training. Three cases involved students themselves. Ten cases were discussed in
the Office of Registrar of Education and eight students were allowed to continue with education.
Two students refuse to continue with education and eighteen students refuse to attend the
discussion committee. 893 Early marriage is one among reasons for a decrease of enrolled students
every year. In the year 2011 twenty four early pregnancy cases (24) were reported. The Ministry
of Education decided to expel all of them from school.
In response to this problem the government has established various alternative learning centres to
enable women and girls who drop out from schools due early marriages, pregnancy and
absconding to continue with education. About 20 centres with about 988 students have been so
far been established in Zanzibar. 894
Spinster and Single Parent Children Protection Act, 2005 gives protection to the unmarried
woman who is of the age between eighteen and twenty one years and who has not given birth to
890
The Revolutionary Government of Zanzibar, Ministry of Education and Vocational Training: Zanzibar Education
Development Programme (ZEDEP) 2008/2009-2015/2016 p. 18.
891
Ibid.
892
Ibid.
893
Budget Speech, Ministry of Education and Vocational Training 2011/12, p. 73.
894
Ibid.
306
a child. One among the step taken forward by this Act is the prevention of the pregnant pupil
from being permanently expelled from school as envisaged by Education Act, 1982. Spinster Act
has repealed the provision requiring the pregnant women to be expelled from school instead the
Act requires the women to be suspended until she gives birth after which she can be
reinstated. 895
4.4.6 Lack of Facilities in Schools
Insufficient facilities in schools like desks, classrooms, latrines and residential houses for
teachers continue to affect the education system in Zanzibar. Many pupils sit on the floor due to
shortage of desks in the schools. Schools also do not have latrines for students and sometimes
they are forced to use unfinished building and forests hence endangerim their health. For
example Jang’ombe Primary School, Kisauni School and Jumbi Primary School do not have
proper latrines for pupils and nor do they have sufficient desks. The problem is also prevalent in
Pemba particularly schools in rural areas.
4.4.7 Poor Performance of Secondary School Students
Though the number of students who join secondary education has increased, their performance is
very poor. Many students who sit for Form Four and Form Six examinations fail to join Form
Five or Higher Learning Institutions respectively. Some of this can be attributed to the problems
already mentioned facing students in Zanzibar. It is recommended that the government ensure
that those problems are eradicated so as the right to education can be effectively enjoyed.
RESULT OF FORM FOUR EXAMINATION FROM 2006-2010 (MALES)
YEAR CANDIDATES
895
PASS
RATE %
DIVISION
DIVISION
I
II
III
IV
TOTAL
I
II
III
TOTAL
IV
2006
3184
30
77
524 1907
2538
0.9 2.4 16.5 59.9
79.7
2007
3542
65
93
666 2126
2950
1.8 2.6 18.8 60.0
83.3
2008
4145
40
77
650 2477
3244
1.0 1.9 15.7 59.8
78.3
2009
4314
26 102 656 2698
3482
0.6 2.4 15.2 62.5
80.7
2010
7658
60 101 737 4609
5507
0.8 1.3
71.9
Section 16 of the Act
307
9.6
60.2
THE RESULT OF FORM FOUR EXAMINATION FROM 2006-2010 (FEMALES)
YEAR
CANDIDAT
PASS
RATE %
DIVISION
DIVISION
I
II
III
IV
TOTAL
TOTAL
I
II
III
IV
ES
2006
3150
20
41
360
2055
2476
0.6
1.3
11.4
65.2
78.6
2007
3708
56
76
446
2608
3186
1.5
2.0
12.1
70.3
85.9
2008
4301
24
47
436
2782
3289
0.6
1.1
10.1
64.7
76.5
2009
4411
14
64
546
2960
3584
0.3
1.5
12.4
67.1
81.3
2010
9372
29
72
599
5995
6695
0.3
0.8
6.4
64.0
71.4
Source: Budget Speech Ministry of Education and Vocational Trainings 2011/12
4.4.8 Shortage of Lecturers in some Higher Learning Institutions
Zanzibar has four Universities two of which two of them are owned by State ( the State
University of Zanzibar and the Zanzibar Institute for Finance Administration) and two private
Universities; the Zanzibar University and the University College of Education in Zanzibar.
Generally the institutions do not have sufficient Lectures and mostly have to depend on part-time
lecturers whom cannot be easily monitored. The shortage of full time lectures is associated with
the lack of staff development and poor management. Research activities are hardly conducted by
some higher learning institutions such as Zanzibar University and University College of
Education and hence they affect the development and efficiency of these institutions.
4.5 Right to Health
Health is a fundamental human right indispensable for the exercise of other human rights. Every
human being is entitled to the enjoyment of the highest attainable standard of health conducive to
living a life in dignity. The human right to health is recognized in numerous international
instruments. Article 25 (1) of the Universal Declaration of Human Rights affirms:
Everyone has the right to a standard of living adequate for the health of himself
and of his family, including food, clothing, housing and medical care and
necessary social services.” 896
896
General Comment No 14.Commitee on Economic, Social and Cultural Rights. U.N DOC E/C.12/2000/4 (11
August 2000).
308
The International Covenant on Economic, Social and Cultural Rights, 1966 provides the most
comprehensive article on the right to health in international human rights law. 897
The right to health is closely related to and dependent upon the realization of other human rights,
as contained in the International Human Rights Instruments such as Universal Declaration of
Human Rights, 1948, the ICCPR and ICESCR including the rights to food, housing, work,
education, human dignity, life, non-discrimination, equality, the prohibition against torture,
privacy, access to information and the freedoms of association, assembly and movement. These
and other rights and freedoms address integral components of the right to health 898.
Under the Constitution of Zanzibar of 1984, right to health is similar to the right to education to
the extent that the constitution does not include them in the Bill of Rights to be enforceable
rights. It is rather enshrined under section 10 (f) as one of the political objectives of the
government.
The government of Zanzibar had for a long time been providing free health services. However
from 2003/04 for the purpose of providing better services to the community, the government
introduced the cost sharing programme which requires that people have to pay for health
services. However, the cost sharing programme has not brought significant changes in health
sector as health services in Zanzibar are still bad. Health services in Zanzibar currently base on
three major areas namely: (a) Primary Health Care, (b) Secondary Health Services and (c)
Referral Health Services.
Over the years, Zanzibar has developed an impressive public sector health infrastructure, based
on a network of first and second line Primary Health Care Units in both urban and rural areas.
These refer either to 30-bed Primary Health Care Centres (known also as cottage hospitals)
and/or district hospitals, which in turn are supported by Mnazi Mmoja Hospital as the major
referral point for Zanzibar. Specialist inpatient psychiatric care is currently provided only in
Unguja, at Kidongo Chekundu Hospital, while Zanzibar Town also benefits from a maternity
hospital at Mwembeladu. 899
4.5.1 Improvement of Health Services in Zanzibar
There has been some improvements in health services in Zanzibar in recent years. The following
areas are reported to have been improved:
4.5.1. 1 Fighting against Malaria
Malaria has been one of the major causes for morbidity and mortality in Zanzibar. Recently
Zanzibar has registered an impressive achievement by rolling back this scourge. In 2010/2011
96,476 people had been tested for malaria using (Rapid Diagnostic Test –RDT) and 485 (0.5%)
were confirmed with positive sign of Plasmodium falciparum that lead to Malaria. 900 Efforts to
reduce malaria parasite are continuing in all parts of Zanzibar by spraying a total of 67,571
897
See Article 12 of The International Covenant on Economic, Social and Cultural Rights, 1966.
Fact sheet No. 31. Office of the United Nations High Commissioner for Human Rights.
899
Zanzibar Health Reform Strategic Plan II 2006/07-2010/11, p 19.
900
Budget Speech, Ministry of Health 2011/2012, p 22.
898
309
houses in Pemba and 53,891 in Unguja and destroying of Plasmodium falciparum. 901 The
programme of distributing free treated mosquito nets also continues 34,375 nets have been
distributed freely in 17 Shehia of Urban areas of Unguja. 902 As a result of the programme, the
infant mortality rate has dropped to 51/1000 in 2011 from 57/1000 in 2010. 903
4.5.1.2 Tuberculosis
The government has continued with its efforts to fight Tuberculosis (TB). Recently a special
Unit which deals with TB in general has been created 904. The creation of this Unit has improved
diagnosis and treating of TB patients. In 2011, 314 patients of TB have been identified. 223
patients (71%) were treated and they are under family supervision. 905
4.4.1.3 HIV/AIDS
HIV infections among the general population reveal high infection rates (86%) among people
aged between 20-49 years. Sexual transmission account for 90% infection among women aged
15-29 years. This rate is reported to be five times higher than their male counterparts. HIV
infection has been recorded to be slightly higher among females compared to males (0.7% by
0.5% respectively). The prevalence is higher in Unguja compared to Pemba (0.8% by 0.3 %).
HIV infection among young Zanzibaris aged 15-24 years is at 0.2 per cent, being three times
higher in females compared to males (0.3% by 0.1% respectively). In respect to urban-rural
context, the HIV infection is higher in Unguja compared to Pemba Island (0.9 per cent by 0.1 per
cent respectively) with an urban rural predilection of 0.6 per cent by 0.4 per cent respectively.
There is a relatively high HIV infection among divorcee women (10%) compared to singles and
those who are married (3.7% by 0.5% respectively), and HIV infection is higher among women
with primary education compared to those with secondary education (0.8% by 0.5%)
respectively. 906
In the year 2010 the totals of 73,046 peoples (35,641 are women and 37,405 men) have been
tested of Counselling Centre and Free testing centres. While 10,059(3,756 women and 6,303)
have been tested at the emergence centres and 1,729(17%) have tested positive (women 1,106
and 623 men) 907. A total number of 33,779 pregnant women attended attending the clinic for
pregnancy testing and if has been discovered that the total of 201 (0.7%) tested positively908.
Various centres in Unguja and Pemba have been established for providing free drugs for tested
positive 909. Voluntary HIV counselling and testing services are offered through 56 centres in
Unguja and Pemba. 910
901
The parasite that spreads Malaria. See ibid, p 23.
Ibid.
903
President Speech, 2012 op cit p 35.
904
Budget Speech, Ministry of Health 2011/2012, p. 27.
905
Ibid.
906
Zanzibar Ungass Reporting 2010, pg 11-12.
907
Budget Speech, Ministry of Health 2011/2012, p. 76.
908
Ibid, p. 75.
909
Ibid.
910
President Speech, p. 35.
902
310
4.5.2 Challenges Facing Health Sector
Despite the above improvement in health sector in Zanzibar, there are some drawbacks that
hinder the enjoyment of this right. The following are some of those drawbacks:
4.5.2.1 Shortage of Working Equipment
Available reports show that the Intensive Care Unit (ICU) of the main hospital of Mnazi Mmoja
does not function properly and it is without oxygen and monitoring system. The Unit also suffers
from the problem of the insufficient number of staff 911. In general this department does not well
function. There are no statistics showing how many critically ill patients who, for one reason or
another, have been forced to seek services somewhere else because this unit is not functioning
properly. The dream of the government to make this hospital a referral is not easy to come by.
The government needs to take serious measures to ensure this Hospital and other health centres
have adequate supplies of equipment, staff and services. This includes ensuring that there are
ambulance services in all main hospitals and health centres.
4.5.2.2 Shortage of Doctors and Medical Staff
Shortage of doctors and supporting staff is prevalent in Zanzibar hospitals. This problem is
mostly prevalent in Wete, Chake Chake and Mkoani hospitals in Pemba where reports show that
there is a shortage of doctors and many of them are working on the basis of experiences rather
than proper qualifications 912. In Radiologist Department for example, there is only one expert
who performs the works of four people and hence reduces the efficiency in this department 913.
More over some of the health officers who have been transferred to Chake Chake Hospital do not
have proper accommodation. This situation also affects their efficiency in providing proper
health facilities. 914
4.5.2.3 Dirty Hospitals Environment
There are reports suggesting that some hospitals in Zanzibar are very dirty. For example the
environment of Abdalla Mzee Hospital in Mkoani, Pemba is reported to be unsatisfactory for
proper treatment. Every corner of the hospital is very dirty. There are no children wards a
situation that leads them to share wards with adult patients suffering from various diseases. 915
This triggers the spread of disease instead of prevention and getting better treatment.
4.5.2.4 Lack of Mosquito Nets in Malaria Wards
The government has been serious in its campaign in providing free mosquito nets to pregnant
mothers and children. However nets are not available for patients in malaria wards in Mnazi
Mmoja main Hospital. This endangers health and safety of patients who were admitted in those
places. The authorities should make sure that they take measures to prevent patients from any
911
Report of the Oversight Committees of HoR, 2010/2011, p. 33.
Ibid, p. 35.
913
Ibid.
914
Shirika la Magazeti. Available at: http://magazetismz.blogspot.com/2011/05/wahudumu-wa-afya-wakosamakaazi.html (accessed on 24 December 2011).
915
Ibid, p. 34.
912
311
harm affecting their health when they are admitted in hospitals. These measures should include
spraying all places within hospitals to reduce mosquitoes.
4.5.2.5 Lack of Laboratory Facilities
The public would expect the availability of the required services at all times particularly in the
main hospital which the government intends to be a referral. Observation shows that laboratory
services are not fully available during nights in Mnazimmoja main Hospital. One has to seek for
those services in private hospitals and after that one has to bring back the results for treatment 916.
The government must make sure that all services are available at all times.
4.5.2.6 Use of Abusive Language in Maternity Ward
The pregnant women when attending hospital expects proper consultation and very polite
language. Things are different in Mnazi Mmoja maternity ward where it has been common for
some nurses to use the abusive language to the pregnant women 917. The authority should deal
with this problem by establishing code of ethics for nurses and ensure that they are enforced.
4.6 Right to Water
Water is the essence of life. Safe drinking water and sanitation are indispensable to sustain life
and health, and fundamental to the dignity of all. 918 Water is required for a range of different
purposes, besides personal and domestic uses, in order to realize many of the Covenant rights.
For instance, water is necessary to produce food (right to adequate food) and ensure
environmental hygiene (right to health). Water is essential for securing livelihoods (right to gain
a living by work) and enjoying certain cultural practices (right to take part in cultural life).
Nevertheless, priority in the allocation of water must be given to the right to water for personal
and domestic uses .The human right to water entitles everyone to sufficient, safe, acceptable,
physically accessible and affordable water for personal and domestic uses.
An adequate amount of safe water is necessary to prevent death by dehydration, to reduce the
risk of water-related disease and to provide for consumption, cooking, personal and domestic
hygienic requirements. 919 The right to water clearly falls within the category of guarantees
essential for securing an adequate standard of living, particularly since it is one of the most
fundamental conditions for survival. 920 The right to water is also inextricably related to the right
to the highest attainable standard of health and the rights to adequate housing and adequate food.
The right should also be seen in conjunction with other rights enshrined in the International Bill
of Rights, foremost amongst them the right to life and human dignity. 921
916
This was confirmed in interview with a nurse working in Mnazi mmoja Hospital, who pleaded anonymous on 5th
December, 2011.
917
This was raised in the House of Representatives when members were contributing to the Ministry of Health
Budget, 2011/2012, July, 2011.
918
United Nations Fact Sheet No.35 available at: http://www.who.int/hhr/news/FactSheet35en.pdf (accessed on 19
December 2011.
919
Economic and Social Council, UN DOC, E/C.12/2002/11 of 20 January 2003. Available at:
http://www2.ohchr.org/english/issues/water/docs/CESCR_GC_15.pdf (accessed on 19th December 2011).
920
Ibid.
921
Ibid.
312
The right to water has been recognized in a wide range of international documents, including
treaties, declarations and other standards 922. For instance, Article 14 (2), of the Convention on
the Elimination of All Forms of Discrimination against Women, 1979 stipulates that States
parties shall ensure to women the right to “enjoy adequate living conditions, particularly in
relation to water supply”. Article 24 (2), of the Convention on the Rights of the Child, 1989
requires States parties to combat disease and malnutrition “through the provision of adequate
nutritious foods and clean drinking-water.
4.6.1 Legal Framework governing the Right to Water in Zanzibar
The Zanzibar Government has a specific legislation 923 and Policy 924 which intend to improve and
develop the right to water. Among other things the Act establishes an independent authority
known as Zanzibar Water Authority (ZAWA) 925 which has jurisdiction in the management of
water in Zanzibar. 926The functions of this authority are provided under Section 5 of the Act
which includes the following:
a)
b)
c)
d)
e)
f)
g)
h)
To control, manage and protect all catchments areas and shall have mandate to take
legal actions against any person or body of persons in violation of, or disturbing or
encroaching the catmints areas;
To secure the continued supply of water in the country;
To develop and maintain waterworks plan and execute new projects for supply of
water;
To promote the conservation and proper use of water resources;
To manage production and distribution of water on sustainable basis;
To advise the government in formulation of policies relating to the development and
conservation of water;
To collect fees for water supplied and services offered to consumers;
To specify standards of water quality, effluent and water equipment as specified in
the Regulation of this Act.
The objectives of Water Policy are prescribed under Part 2.0 of the Policy which is to provide
guidance to enable Zanzibar to achieve its aim of providing access to clean and safe water for all
people and other water users to fulfil the needs of expanding social and economic activities while
considering the nature conservation.
922
Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Rights of the
Child, Geneva Convention relative to the Treatment of Prisoners of War, of 1949; the Geneva Convention relative
to the Treatment of Civilian Persons in Time of War, of 1949; the Additional Protocol I thereto of 1977;the
Additional Protocol II of 1977; Preamble, Mar Del Plata Action Plan of the United Nations Water Conference;
Agenda 21, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June
1992 (A/CONF.151/26/Rev.1 (Vol. I and Vol. I/Corr.1, Vol. II, Vol. III and Vol.III/Corr.1) (United Nations
Publication, Sales No. E.93.I.8), Vol I: Resolutions adopted by the Conference, Resolution 1, annex II; Principle
No. 3, The Dublin Statement on Water and Sustainable Development, International Conference on Water and the
Environment (A/CONF.151/PC/112); Principle No. 2, Programme of Action, Report of the United Nations
International Conference on Population and Development, Cairo, 5-13 September 1994.
923
Water Act, No 4 of 2006.
924
National Water Policy of 2004.
925
Section 3(1) of Water Act of 2006.
926
Ibid, section 3(3).
313
4.6.2 Current Situation in the Enjoyment of Right to Water
The government of Zanzibar is in the forefront to ensure that clean and fresh water is available in
Zanzibar. In collaboration with development partners, Zanzibar government has successfully
built two large tanks of water and installed of large pipes in different parts of Zanzibar town 927.
For this purpose JICA – Japan has donated 32bn/- and 960m/- comes from the Zanzibar
government for water project.
In spite of those efforts, the problem of shortage of water still persists in Zanzibar. It is only a
few areas of Zanzibar town which receive water supply but not regularly. Water shortage is still
a problem in the areas including Stone town, Mtopepo, Jang’ombe, Matarumbeta Sogea. This
situation has been confirmed by the Zanzibar Water Authority (ZAWA) Public relations officer,
Zahor Salum that the shortage has affected over 50,000 households forcing them to purchase a
20-litre bucket of water at between 300/- and 500/- especially during the Holly month of
Ramadhan 928. In February a similar problem affected the services of Mnazi Mmoja Referral
hospital halting the surgery services and services in the maternity department. 929 The problem
also faces Pemba Island particularly Mkoani District. 930 The problem of shortage of water in
Zanzibar has also been confirmed by the President of Zanzibar require ZAWA to make the
public aware on the reasons for such shortage. 931
Considering the amount of water which is normally produced by the ZAWA, not all Zanzibaris
will enjoy the right to water. For example in June –July 2011 ZAWA produced 918944cubic
metres (m3) for Urban West Region of Unguja lower than the estimated target of 1350360 m3.
According to ZAWA each resident of Urban West Region of Unguja demands 80 litres per
day. 932 The current population of Urban West Region is estimated to be 483,205. 933 That ratio
suggests that residents of Urban West Region of Unguja do not get even a litre of the required
water.
4.6.3 Poor and Old Water Infrastructure System
The water infrastructure system is too poor and old to ensure clean water supply in Zanzibar. It
also lacks regular and proper maintenance. The Deputy Minister for Lands, Settlements, Water
and Energy, Mr Haji Mwadini Makame had once confirmed that problem hampering availability
of water is due to dilapidated supply network, frequent breakdown of pumping machines,
unauthorized drilling of wells and building of houses close to water sources. 934
927
Report of the Oversight Committees of HoR 2011/12, p 104
http://in2eastafrica.net/zbar-faces-acute-shortage-of-water/ (accessed on 19th November 2011)
929
Ibid.
930
Ibid.
931
See The Zanzibar Leo of 16 December 2011.
932
An interview with Production Officer at ZAWA headquarters Zanzibar on November, 2011.
933
Zanzibar Statistical Abstract, 2010 issued by Office of Chief Government Statistician of Zanzibar, 2010.
934
Deputy Minister was replying a question from Ms Viwe Khamis Abdallah (Special Seats), 2011during HoR
session, July, 2011.
928
314
4.6.4 Improper Control of Water
The overuse of freshwater for washing cars and for gardening as well as leakages of water from
pipes both public and domestic are clear manifestation of poor management of water in the
islands. This contributes to not only the contamination of water in those linkages but also the
shortage of water in many places. The authority is very slow to react when there is leakage of
water pipes. For example the leakage of water pipe around Karume House (Zanzibar
Broadcasting Corporation) took almost a week for the authority to rectify the situation. 935 Similar
situation persists in Lumumba Secondary School.
4.6.5 Charging Fees without Services
The ZAWA has introduced fee as a consideration for water supply where each customer is
required to pay 2000/= per month. 936 People who have drilled wells at their own expenses are
required to register and pay 50,000/= annually. However, as the public expected, changes in
water supply, the situation has been different. There is no improvement in water supply in many
parts of Zanzibar. It is recommended that the fund contributed by public should be properly used
to improve water infrastructures so as water services are accessible to all.
4. 7 Right to Property
The right to property is provided in the Constitution of Zanzibar of 1984 under section 17 which
maintains the protection against the deprivation of property except upon the compliance of the
prescribes conditions. The section reads as:
No person shall be deprived off his/her property except upon the compliance of the
prescribe conditions:
a)
b)
c)
that the acquisition and occupancy of the property is of utmost importance for
defence and security of people, health requirement; town planning and any
other development in the public interest
That the need to acquire the property in question is absolutely necessarily to the
extent that it legalizes its acquisition even if it is detrimental to the owner; and
That there exist a law in respect of which acquisition or occupation of the
property provides for fair and adequate compensation. 937
By the end of 1980s and early 1990s both land administration and the land tenure system were
put in order. 938 The establishment of the Commission for Lands and Environment in 1989 was
generally aimed at keeping land activities under one organization for better consistency and
efficiency. On the other hand, the land tenure system was reorganized by the Land Tenure Act
(LTA) of 1992. Similarly other statutes work simultaneously with LTA. These are:
935
News (Taarifa ya Habari) of ZBC on 24 April 2011.
An interview with Planning Officer of ZAWA, at Chake Chake Pemba, November, 2011.
937
Section 17 of the Zanzibar Constitution, 1984 (2010 edition).
938
CHACHAGE, Chachage S., Environment, Aid and Politics in Zanzibar, Dar es Salaam:Dar es Salaam University
Press (1996) Limited, 2000.
936
315
•
•
•
•
•
Land Adjudication Act No.8 of 1990,
Registered land Act No.10 of 1990,
Land Survey Act of 1990,
Land Transfer Act No. 8 of 1994, and
Land Tribunal Act No.7 of 1994
The Land Tenure Act, 1992 among other things, provides that all land situated within Zanzibar
islands whether occupied or unoccupied is declared to be a public land from March 1964. 939 The
Act also prescribes the right to occupy land by Zanzibaris and its procedures, transfer of the right
of occupancy, leases and termination of the right of occupancy. Furthermore the Act provides
that the right of occupancy in land may arise if granted by Minister, recognition of the interest
following adjudication carried out under the Land Adjudication Act, 1992 and be registered
under Registered Land Act, 1990 and through inheritance of lawful registered interest. 940 Other
modes include purchase of a lawful registered interest and gift of registered interest from
bonafide holder of a right of occupancy. 941
According to section 8 (1) (a) of Land Tenure Act, the right of occupancy exists only for
Zanzibari over the age of eighteen years. This means that a non Zanzibari has no right to occupy
land in Zanzibar. It is proved that the guarantee of land happen to be a non Zanzibari or the
holder of land transfers his right occupancy to non-Zanzibar the right of occupancy shall be
terminated by the order of Minister responsible for land. 942 The current practice shows that land
is commonly transferred to non-Zanzibaris, contrary to LTA. It is also claimed that the
Department of land in Zanzibar gives land on discriminatory manner and favouritisms. The
power to entertain Land disputes is vested in the Land Tribunal. 943Compared with 2010 records
the land disputes have increased in 2011. 944
There was serious allegation on forcible land acquiring by the government in Zanzibar. For
example the people residing areas surrounding the Abedi Karume International Airport, allege
that their land has been illegally taken without any compensation by the government while they
legally hold the right of occupancy. About 3000 residents of the areas have been affected by this
act of government the pretence of the extension of the Zanzibar airport. 945
Disobedience of orders by the government regarding land problems was also reported in 2011 in
Zanzibar. For example the Second Vice President made an order to stop building in open space
and revoked the right of occupancy at Kwa- mchina, Mombasa, within West District of
Unguja. 946 Surprisingly the order is not obeyed. Some buildings have been completed and others
939
Section 3 Land Tenure Act of 1992.
Section 57 of Land Tenure Act of 1992.
941
Ibid.
942
Ibid.
943
Section 3 of Land Tribunal Act no 7 of 1994.
944
Refer 2. 7.2 above
945
http://zanzibaryetu.wordpress.com/2011/03/14/migogoro-ya-ardhi-zanzibar-ni-tatizo/ (accessed 20 December
2011).
946
See Mwananchi Newspaper. Available at: http://mwananchi.co.tz/mwananchi-jumapili/40-habari-mwananchijumapili/7772-vigogo-zanzibar-wanyanganywa-viwanja.html (accessed 20 December 2011).
940
316
are constructed. This raises question as to why the government is very strict in evicting residents
in certain areas but it is lenient in other areas.
4.7.1 Destruction of Property
The burning incident that took place on 6th May, 2011 relating to destruction of property was the
setting on fire of small shops at Pwani Mchangani and Kiwengwa in the Norhern Region
Unguja. 947 Reports show that the fifty four people (54) 948 most of them originating from
Tanzania Mainland were affected by the incident causing loss amounting to 80.4m/. In the
reaction to this act the government promised to bring to the justice the suspects of the incident.
The reason behind the burning of shops is alleged to be the improper use of shops by the owners
for selling alcohol and promoting prostitution.
The second Vice President of Zanzibar Hon. Seif Ali Iddi talking with the victims of the incident at Pwani
Mchangani
The suspects were arrested and bought before the Regional Magistrate Court of MfenesiniUnguja. 949
There were also reported incidents of setting ablaze bars in Zanzibar in 2011. Among the areas
where the incidents took place include Mji Mkongwe, Amani, Mitondooni, Unguja and Wete,
Pemba. The reason behind these incidents are because most of the bars and shops are situated
947
http://zanzibaryetu.wordpress.com/2011/05/09/serikali-haijafurahishwa-na-tukio-hilo /(accessed 20 December
2011).
948
This number is in accordance with a charge preferred by the Director of Public Prosecution against the suspects
following the incident.
949
DPP v Haji Ame Iddi and 6 Others, Criminal Case No 40/2011.
317
very close to residential area and places of worship contrary to Liquor Decree Cap 163. 950
Residents of those areas are said to complained against such behaviour but no action was taken
by the Government. 951 The failure of the government to take any action contributed to the arson
attack. No person was arrested in connection with these incidents. Zanzibar Legal Services
Centre joined a team led by Dar es Salaam based Legal and Human Rights Centre (LHRC) on a
fact-finding mission on this incident.
4.7.2 Limitation to the Right of Property
Despite the guarantee of the right to property as provided under the Zanzibar Constitution some
laws are very discriminatory and to some extent they curtail and limit not only the market
principle of economy but also farmers’ rights to enjoy their right to own property. For example
the Cloves Act, 1985 952 limits the enjoyment of that right by prohibiting the transfer of cloves to
any person other than the Zanzibar State Trading Corporation (ZSTC). 953 The Act provides for
the offence in case of the violation of that provision. The Act obliges the owner of cloves to sell
cloves to ZSTC only. 954This includes the prohibition of storage of cloves in ones house or any
other place. This provision contravenes the right to own property in Zanzibar and it said that
continuing to keep cloves in the hand of government only will not bring any benefit to the
government. It is therefore recommended that the government amend this legislation so as to
allow the cloves’ farmers to sell their cloves anywhere they want. 955
4.8 Right to Work
The right to work is provided under Section 21 (3), (4) of the Constitution of Zanzibar of 1984,
which reads:
(3). Every Zanzibari has a right to work and is entitled to equal rights and
privileges, and hold any position in employment under jurisdiction of Zanzibar.
(4) Every person without any discrimination of any form has the right to receive
remuneration according to his/her work and all persons working in accordance
with their competence and qualifications shall receive remuneration according
to their qualifications.
From the above Constitutional provision, different laws and Policies have been enacted. 956 The
comprehensive Legislation regarding the workers’ rights is the Employment Act, No. 11 of 2005.
950
Section 69 of the Decree enumerates grounds of which the licensing court to refuse the grant of a new license
including where the premises are in the immediate vicinity of public worship, hospital or public school.
951
In the mid of the year 2011 residents from Kwahani Constituency in Urban West Region of Unguja approached
the first Vice President regarding the matter. The first Vice President put emphasis that bars and shops selling
alcohol should not be established in residential areas or near places of worship.
952
Act No. 11 of 1985.
953
Section 3 of the Cloves Act, 1985.
954
Ibid, Section 7.
955
Mzalendo.net. Available at: http://www.mzalendo.net/habari/uchumi/zao-la-karafuu-libinafsishwe-mwanasheriaawadh accessed on 19 December 2011.
956
This includes: the Employment Act of 2005, the Workers Compensation Act of 1986, the Occupational Safety and
Health Act, 2005, Labor Relations Act, 2005 and Social Security Fund Act, 2005. Policies include: The Zanzibar
Youth Employment Action Plan of 2007 and the Protection of Child Works Policy and Regulations.
318
Part II of the Act provides the Fundamental Rights and Protection which includes the prohibition
of forced labour 957, Restriction on employment of children 958, Prohibition of the worst forms of
child labour 959, condition of employment of young persons 960, prohibition of discrimination on
the ground of race, gender, colour, religion, social origin or status, age, place of origin, national
extraction, political opinion, marital status, pregnancy, disability, HIV/AIDS status real or
perceived 961, prohibition of sexual harassment in employment 962 and Freedom of Association
and Collective Bargaining. 963
Despite legal framework which substantially conforms to international standards, there are some
factors affecting the right to work in Zanzibar. These include:
4.8.1 Salaries and Incentive Packages
In 2011 the Government of Zanzibar increased salaries and other incentive packages in public
sector. In spite of such increase, there is still a wide gap of salaries and other incentive packages
between the normal government employees and the presidential appointees. The salary of a
Director is ten times higher than that of an ordinary civil servant. Salary disparity can be also
seen between one sector and another for example the salary of public prosecutors and magistrates
even though qualifications for the two professions were the same. It is demoralizing to note that
while salaries in the public sector have gone up and now stands at Tshs. 125,000/=, in private
sectors, employees continue receiving the minimum salary of 70,000/-. 964
There is also no uniformity of salaries and other incentives between civil servants working in
different departments. For example servants working in Zanzibar Social Security Fund, Zanzibar
Revenue Board and the Zanzibar Insurance Corporation are paid highly as compared to the other
civil servants even though they are under the common civil service employment.
In spite the fact that the gap between senior officials and ordinary civil servant is not avoidable,
the gap must be reasonable considering standards of life of all Zanzibaris. It is unjustifiable for
the government to exonerate itself from paying ordinary servants high salaries on the ground that
the government has no money while others enjoy very luxurious life. The salary and other
incentive setting must consider the economy of Zanzibar particularly the inflation rate.
4.8.2 Shortage of Employment Opportunities
Despite the efforts of government to provide employment opportunities to its citizens, there is
still shortage of employment opportunities in Zanzibar. It takes ages for many University and
college graduates to find employment. In private sectors like tourism, the posts which could be
run by Zanzibaris are instead manned by non-Zanzibaris. This deprives Zanzibaris employment
957
Section 5 of Employment Act of 2005.
Ibid, Section 6.
959
Ibid, Section 7.
960
Ibid, Section 8.
961
Ibid, Section 10.
962
Ibid, Section 11.
963
Ibid, Section 12.
964
An Interview with ZATUC Secretary General Mohammed Mwinyi Khamis on 20th December, 2011 at ZATUC
headquarters, Kikwajuni Zanzibar.
958
319
opportunities. The Zanzibar Employement Act, 2005 prohibits employment of foreigners except
where there is no Tanzanian with the required qualifications available or where the vacant
position is a management position for which the employer is allowed to employ of his/her choice
under the provisions of the Zanzibar Investment Promotion and Protection Act, No 11 of
2004 965. The labour Commission which is responsible to oversee that situation must make sure
laws specifying posts that can be manned by foreigners are strictly followed.
This picture taken from Zanzibar Airport showing people who are seemingly foreigners working in receiving
tourists which is a type of work Zanzibaris can do 966
4.8.3 Stigmatization of People with HIV in Employment
The Employment Act, 2005 prohibits discrimination of any person on the ground of HIV /AIDS
status real or perceived. 967 There are reports indicating that people living with HIV/AIDS are
stigmatized and discriminated especially in private sectors. 968
4.8.4 Lack of Social Dialogue between Employer and Employee
The Zanzibar labour laws require that there must be a social dialogue between the employer and
employee. 969 In is reported that in Zanzibar social dialogue is not conducted. 970 The absence of
social dialogue and tripartite consultation in Zanzibar affects the welfare of workers. The
problem is reported to be serious in public sectors where most of the government leaders are said
to ignore this mechanism. 971 The government which is duty bound to encourage and establish
965
Section 36 of Employment Act, 2005.
Also available at: http://www.mzalendo.net/makala/utalia-au-utalii-zanzibar (accessed on 10 December 2011).
967
Section 6 of the Employment Act, 2005.
968
See chapter, Discrimination of People with HIV/AIDS.
969
See Part VII of the Labour Relations Act, 2005.
970
The speech of Chairman of ZATUC a workshop of labour Advisory Board, Social Dialogue and Tripartism,
conducted on 20th December, 2011.
971
Ibid.
966
320
regulations and competent institutions for negotiating has not yet committed itself to that effect
hence rendering trade unions and employers efforts to start social dialogue exercise futile.
Therefore it is recommended that the Labour Advisory Board advise government to strengthen
negotiation, social dialogue and tripartite consultation as tool of decent work (composition of
LAB and Wage Advisory).
4.8.5 Poor System of Social Protection
Social protection is an important dimension in the reduction of poverty and multidimensional
deprivation. It describes a set of policies that governments can pursue in order to provide
protection both to the ‘active poor’, enabling them to participate more productively in economic
activity, and to the less active poor, with considerable benefits for society as a whole 972. The
Vision 2020 acknowledges the needs of establishing a social security system and other safety
nets which protect the poor, disabled, the elderly and other vulnerable groups. The Zanzibar
Social Security Fund Act No. 2/2005 establishes a set of benefits required to be covered which
depend on the contributions to the Fund are 5% by the employee and 10% by the employer (S.
17 & the First Schedule). The Fund provides the following benefits:
a. Old age benefits;
b. Survivors’ benefits for dependants;
c. Maternity benefits;
d. Invalidity benefits;
e. Medical care benefits; and
f. Any other benefits approved by the Board (S. 26 (1)).
A member is entitled to receive a pension on attaining the pensionable age of 60 years or on
medical evidence that the employee is permanently unable to work. Dependants of deceased
members are entitled to gratuity as beneficiaries. A female member is entitled to maternity
benefit once in every three years. The medical benefit claims 3% of the 15% contribution to
ZSSF. Other members are also entitled to medical care benefit at 3% of the 15% contribution. A
member’s medical credit may be used to meet his/her spouse’s or children’s medical bill (S. 29).
A person not qualifying for pension receives a gratuity (S. 31). It should be noted that old age
benefits under the ZSSF Act comprises both gratuity and pension. The benefit is over 80% of
what members have contributed. Maternity and medical benefits are not offered under the
scheme.
Retirement age is 60 years but one may voluntarily retire at 55 years and obtain the benefits.
While Tanzania Mainland permits lump sum withdrawal Zanzibar does not. 973 In Zanzibar social
protection does not cover people who are neither employed nor employed in informal sectors.
There is also a problem of medical care in Zanzibar. Many public institutions do not insure their
employees. An employee has to bear his own cost for medical care.
972
Policy Paper on Social Protection:
http://www.sed.manchester.ac.uk/research/events/conferences/documents/Social%20Protection%20Papers/Shep
herd.pdf (accessed 26th December 2011).
973
John Jean Barya (2011), p. 62-63.
321
4.8.6 The Handling of Labour Disputes
The power to entertain these disputes is vested to Labour Tribunal. This tribunal is presided by
the Chairman appointed by the President for the term of five years. The Tribunal handles all
cases from Unguja and Pemba. According to the report, 10 cases were instituted in this
Tribunal. 974 Majority of complaints are pertaining to the improper dismissal from work which
involved public and private sectors. 975 The Tribunal suffers from the shortage of manpower that
makes the disposal of those cases to be very slow. For example in Unguja there is only one staff
who serves summons for Unguja as well as performing other office duties. 976
4.8.7 Re-Employment of the Retired Officers
Retirement age in Zanzibar is 60 years but one may voluntarily retire at the age of 55. 977 There
has been a practice of re-employing officers who have already retired in Zanzibar. Currently,
there are retired officers who have been appointed to hold different leadership positions such as
Principal Secretaries, Regional Commissioners, District Commissioners, Directors, just to
mention a few. In spite of the fact that laws allows the re-employment of the retired officers,978
the practice should be discouraged as there are many qualified people to hold the respective
posts. There are many Zanzibaris who are every day on the streets looking for jobs.
4.9 Conclusion
In a nutshell, there were problems in the enjoyment of economic and social rights in Zanzibar in
2011. It was found in spite of some achievements in the right to education especially on the
increase of number of schools and enrolment of students in primary, secondary and tertiary
education, there are still drawbacks in the enjoyment of this right. These include shortage of
science and inclusive education teachers, high density of pupils in classes and poor facilities in
schools. The right to water and health is not fully implemented due to a number of hurdles. It
was also observed in this chapter that the right to property is not fully enjoyed in Zanzibar. There
are still laws such as the Cloves Act, 1985 that hinders fully enjoyment of this right. The
problems in the enjoyment of right to work were also highlighted in this chapter. The chapter
provided a number of recommendations to make these rights fully enjoyed.
974
This figure is from July 2010 until March 2011. See The Budget Speech of Ministry of Justice and Legal Affairs,
2011/2012 at pg 56.
975
Ibid.
976
Reports of the Oversight Committees of the HoR, 2010/2011 at p. 100.
977
The Zanzibar Social Security Fund Act No. 2 of 2005.
978
Section 60 (2) (3) of Public Services Act, 2011.
322
CHAPTER FIVE
The Rights of Vulnerable Groups
Vulnerable groups are defined as those who are likely to have additional needs and experience
poorer outcomes if these needs are not met. There are some groups in the society that are
considered vulnerable to human rights violation and incapable of enforcing their rights. These
groups include women, children, people with disabilities and aged. Because of their unique
characteristics, society tends to marginalize and disempower them and think that they are
different from other people. Hence different international human rights instruments have been
developed to take care of the rights of these groups in the society. These instruments include:
(a). International Covenant on Civil and Political Rights, 1966;
(b). Convention on the Elimination of all Forms of Discrimination against Women, 1979;
(c). African Charter on Human and Peoples Rights, 1981;
(d). Convention on the Rights of the Child, 1989;
(e). Protocol to the African Charter on Human and Peoples Rights on the Rights of Women
in Africa, 2000; and
(f). International Convention of the Rights and Dignity of People with Disabilities, 2006.
Currently, there is a world-wide campaign to ensure that these groups are guaranteed their rights
as other members of the society. In this Chapter the rights of women, children, people with
disabilities and elderly persons will be critically examined.
5.1 Women and Girls
The international human rights instruments provide for equal guarantee of human rights to all
individuals within a state. The Convention on Elimination of all Forms of Discrimination against
Women (CEDAW), 1979 979 requires governments to ensure that women are not discriminated
against in any sphere of life. Another instrument is the Protocol to the African Charter on Human
and Peoples Rights on the Rights of Women in Africa, 2000. Tanzania being signatory to these
instruments, 980 is bound by their provisions.
5.1.1 Legal Framework for Women Protection in Zanzibar
The government of Zanzibar has taken specific steps to translate into reality key provisions of
the above international human rights instruments relating to women’s rights in its domestic laws.
The Constitution of Zanzibar, 1984 guarantees equal rights to all Zanzibaris without
discrimination of any kind. Section 11 of the Constitution provides that all human beings are
born free and all are equal and that every person is entitled to recognition and respect of his/her
979
980
Adopted on 19th December, 1979, entered into force 3rd September, 1981.
Tanzania ratified this Convention on 20th August, 1985.
323
dignity. The Constitution further elaborates under Section 12 that all persons are equal and are
entitled without discrimination to protection and equality before the law and that no law shall be
discriminatory. The Constitution clarifies the term discrimination under section 12 (5) to mean to
fulfil people’s needs on the basis of their nationality, ethnicity, place of origin, political opinion,
gender, religion or colour whereby some people are considered to be inferior than others or
barriers are placed on some people but are not on others or some enjoy some privileges but not
others. Therefore, all rights provided in the Constitution of Zanzibar of 1984 shall be enjoyed
equally by all members of the Zanzibari society.
Apart from constitutional safeguard, other laws have been enacted which contain some
provisions that protect the interest of women in Zanzibar. Examples of those laws are Penal Act,
2004 which, among other things, protects women from sexual abuse. In that case, some acts
when committed amount to crimes punishable by law. Those offences include rape, indecent
assault, defilement, abduction, grave sexual abuse, defilement of imbeciles, procuring for
prostitution, detaining female person in brothel, prostitution, keeping brothel, living off earnings
of prostitution, sexual harassment and adultery. 981 In addition to the provisions of those offences,
the law imposes severe punishment on those who commit them. This law further protects the
identity of the victims of those offences by prohibiting the disclosure of the name of the victims
of such offences except with courts’ permission. 982
The dignity of women is further protected by procedural laws. It suffices to mention Criminal
Procedure Act, 2004 which provides for the proper mode of searching women. Under the Act
whenever it is necessary to cause a woman to be searched, the search shall be conducted by a
policewoman or any other woman asked to do so in absence of a policeman. In addition, the
search will be done with strict regard to her decency. 983
Considering the vulnerability of women in employment, laws relating to employment have also
considered the protection of women from harassment at the workplace. The Zanzibar
Employment Act, 2005 prohibits all forms of sexual harassment in employment. Examples of
sexual harassment include requests for sexual intercourse, use of unreasonable language whether
written or spoken of sexual nature, use of unreasonable visual material of sexual nature, or
showing physical behaviour of a sexual nature which directly or indirectly subjects the employee
to unwelcome behaviour or offensive to the employee which has detrimental effect to the
employees’ employment, job performance and satisfaction. 984
In addition to the above laws, there are also other laws that guarantee equal rights regardless of
gender. These include Spinster and Single Parents Children Protection Act, 2005 985 which
provides for the rights of spinster, girls, female divorcee or unmarried woman to institute suits
981
See Part XV of the Act.
Ibid, Section 164.
983
Section 19 of Criminal Procedure Act, No. 7 of 2004.
984
Ibid, Section 11.
985
Act No 4, 2005.
982
324
for maintenance of the child. 986 Laws relating to land such as Land Adjudication Act, 1989; 987
Land Tenure Act, 1992; 988 Land Transfer Act, 1994; 989 and Land Tribunal Act, 1994 990 have
been enacted to regulate land matters and meet economic reforms and thus provide equal
opportunities for the people.
However, the law in Zanzibar has not moved forward in the area of matrimonial property
division especially when marriage partners split without reaching an agreement. In Tanzania
Mainland this issue in now settled by the Court of Appeal of Tanzania through a positive
interpretation of the Law of Marriage Act, 1971. 991 According to the Court of Appeal in the case
of Sawe v. Sawe, 992 in case of divorce the spouses share equally all the matrimonial property
acquired during the subsistence of their union.
5.1.2 Policies on Women’s Rights
The government has formulated various policies relating to women’s rights and protection.
Those policies include the Zanzibar Employment Policy (2009), which among other things,
promotes equal access to employment opportunities. Other policies are Zanzibar Food Security
and Nutrition Policy (2008); Zanzibar Small and Medium Enterprises Development Policy
(2006); Community Development Policy (2007); the Education Policy (2006); and Zanzibar
Mainstreaming Operational Plan.
5. 1.3 Institutional Framework in Protecting Women
In order to show how it values the issues relating to women and children, the Revolutionary
Government of Zanzibar has established a special Ministry dealing with affairs of women and
children - Ministry of Social Welfare, Youth, Women and Children Development in the year
2000. 993 This Ministry has taken a number of initiatives in protecting and promoting the rights of
women and children in Zanzibar. The ministry has become a centre where women have been
submitting their complaints including violations of their rights and the Ministry has been playing
a vital role in solving them.
In additional to the Ministry, there are several NGOs dealing with women affairs. These include
Zanzibar Female Lawyers Association (ZAFELA) which has been playing a very active role in
986
Ibid, Section 5.
Act No. 8 of 1989.
988
Act No. 12 of 1992.
989
Act No. 8 of 1994.
990
Act No. 7 of 1994.
991
Act No. 5 of 1971.
992
See Richard William Sawe v. Woitara Richard Sawe, Court of Appeal of Tanzania at Dar es Salaam, Civil
Appeal No. 38 of 1992 (Unreported).
993
The Ministry when it was formed was known as Ministry of labor, Youth, Women and Children Development. It
was in 2011 when the Ministry was named Ministry of Social Welfare, Youth, Women and Children
Development.
987
325
providing legal awareness to women in understanding their rights. 994 Other NGOs include
TAMWA, ZLSC etc.
5.1.4 Gender Based Violence
Gender based violence (GBV) refers to any action that results in or is likely to result in physical,
sexual or psychological harm or suffering occasioned to women including acts of threats of such
harm or suffering, coercion, or arbitrary deprivation of liberty whether occurring in public or
private life. GBV constitutes one of the most serious human rights abuses and public health
problems in the contemporary world. It may occur in various locations such as in families,
school, religious institutions, work places etc. It always has negative consequences on children in
the household, the unity of family, and the society as a whole.
The Zanzibar laws still does not define GBV. However, as shown above, various forms of sexual
violence that form parts of GBV are addressed by laws. 995
5.1.4.1 Gaps in Laws Relating to GBV
The Tanzania Human 996 Rights Reports of 2009 and 2010 discussed a number of gaps in
Zanzibar’s laws relating to GBV which may give room for GBV occurrences without legal
protection. 997 There are gaps still to be addressed. This intensifies the risk of GBV cases in
Zanzibar. It is recommended that the Revolutionary Government of Zanzibar takes serious
measures to amend relevant legislation to address the existing gaps.
5.1.4.2 Current Situation on GBV in Zanzibar
According to a recent research on Violence against Children (VAC), 2011 an average of 66.5%
of male and 66.5% of female experienced physical violence in Zanzibar before the age of 18.
The research reads that 50.6 of male who suffered gender based violence at the early age
undergone trauma after 30 days timeframe. 998
Data available indicates that GBV acts include wife battery, girls child forced marriages due to
dowry and rape which is also a major cause of school dropout as a result of pregnancy and HIV
infection among young women. 999
Other GBV acts are widow inheritance, denial of women of the right to work, right to own
properties, abusive language against women and child abandonment which contributes to the
problem of street children. 1000
It is reported that the bulk of GBV cases are not sent to the courts, instead they end up being
decided upon at shehia, village and family level and others at police stations. 1001 It was also
994
See the role played by ZAFELA elsewhere in this Report.
Refer to Part XV of the Penal Act and Employment Act, 2005.
996
There have been efforts to address this problem through research under Save the Children and ZAFELA in which
other civil society actors participated.
997
See Tanzania Human Rights Report, 2009 p 258 and Tanzania Human Rights Report, 2010 381.
998
TAMWA Press release on GBV ACTORS MEET WITH MEDIA 4/12/2011.
999
Ibid.
1000
Ibid.
995
326
lamented that there is a problem within the police force regarding the proper management of the
GBV cases but the society was also to blame for delaying to report the cases or decide them in
informal settings. 1002 The problem if not reported in time especially on rape and child
pregnancies may destroy the evidence.
Complaints are also directed at the Office of DPP for not paying serious attention to GBV
cases. 1003 The complaints indicate that the office of DPP does not always appeal against decision
of a court acquitting or withdrawing a case relating to GBV. 1004 Further reports shows that, it is
difficult for media to get information relating to GBV due to the reluctance of those involved to
report GBV incidences. 1005
5.1.4.3 Enforcement of Sexual Violence Cases
Though many cases are reported to the police and subsequently brought before courts of law,
there are many problems which were also reported in Tanzania Human Rights Reports of 2009
and 2010 facing the enforcement of sexual violence cases in Zanzibar. These problems still
persist 1006 and inhibit the proper prosecution of those cases. The following are some of those
problems:
5.1.4.3.1 Poor Investigation
In any criminal case including sexual offences, the prosecution has the burden to prove the
offence beyond reasonable doubts. In order to discharge this burden there must be proper
evidence. Quality evidence is collected through investigation conducted after the event has been
reported to police.
The main organ vested with the power to conduct investigation is the police. However,
investigation is constrained by a number of factors hindering the collection of valuable evidence
to prove such charges. Such problems are poor science and technology and infrastructure that
allow quick response to the events and overcome various challenges. Another problem that
constrains the investigation is the delay of the parents to report the matter to police. The sexual
cases must be reported to the authorities immediately, once the incident has occurred. However it
has been discovered that victims normally delay reporting incidents which the evidence
disappears. 1007
The problem of poor investigation begins in the first instance when a victim enters into a Police
Station to report an assault. Most Police Stations do not have Police Officers with proper
1001
Regional Criminal Investigation Officer of Southern Region of Unguja made that statement during his meeting
with GBV stakeholders, 2011.
1002
Ibid.
1003
Zanzibar Leo News paper issue No. 2011.
1004
Ibid.
1005
Ibid.
1006
See Zanzibar Human Rights Report of 2009, p. 259-26. See also Tanzania Human Rights Reports of 2010 pgs
383-384.
1007
MLYWCD, A Study on Analysis of the Policies and Laws Related to Sexual and Reproductive Rights in
Zanzibar, 2003.
327
knowledge on how to handle such cases. Also, police women who can be expected to be
sympathetic and understanding in situations of this nature are very few in Zanzibar.
Women and children’s desks have been established at Police Stations such as Madema in Urban
West Region but the results are yet to be published.
5.1.4.3.2 Deoxyribo Nucleic Acid (DNA) Test
There are some cases that necessitate the scientific examination of the victims. Examples of
those are sexual offences cases. The relevant test in those cases is Deoxyribo Nucleic Acid
(DNA). In Zanzibar, this test is not done because there is no machine for such purposes. The
only machine in the whole Tanzania for conducting tests of this nature is found in Dar-es-salaam.
Due current level of awareness and the need to prove cases, the number of cases has increased
and therefore one machine is definitely not enough for the whole country. Worse still police and
members of the public cannot afford expenses for conducting the test as a single test is said to
cost not less than Tshs. 300,000/=. This problem becomes serious particularly in those cases
where it is necessary to test pregnancy of a woman in order to ascertain paternity and thus pin
down the man responsible for the pregnancy. There has been limited use of this machine because
of its expensive nature.
5.1.4.3.3 Shortage of Medical Experts
Most of sexual abuse cases need testimony of the medical experts to prove whether a victim has
been raped or not. In Zanzibar there is a shortage of these experts. Currently, there are only two
of them in Unguja who have to move around all courts having jurisdiction over those offences.
This problem leads to the delay in these cases and hence renders the miscarriage of justice. There
are a few health centres examining victims of those offences. Many of them are in urban areas
including One-stop Centre – popularly known as Mkono Kwa Mkono to support victims. People
in rural areas have to travel far seeking for the services. In other areas the Ministry is yet to
establish centres of this nature and even where they have been established they are not
functional.
5.1.4.3.4 Ignorance of the People in Handling GBV Incidents.
The society is still ignorant of procedures to be taken after sexual assaults occur. 1008 As shown
above, once such incident occurs, the victim must be brought to proper authorities for
examination. That is not often done. It may take 3 to 7 days until the matter is reported to the
police while the potential evidence has disappeared. On top of that some parents decide to
resolve the matter between themselves instead of sending the matter to law enforcement
agencies. This allows the culprit to escape legal consequences. Some victims of these cases
refuse to cooperate with law enforcers in enforcement of those cases.
5.1.5. Domestic Violence
The term domestic violence refers to violence which occurs when a family member, partner or ex
partner attempts to physically or psychologically dominate another. It normally occurs between
spouses but may also include cohabitants and unmarried intimate partners. 1009
1008
1009
The GBV Cases are on the Rise available at www.mzalendo.net visited on 20th December, 2011.
Ibid.
328
Domestic violence may take different forms such as direct physical violence ranging from
unwanted physical contact to murder. It may also be indirect where violence may include
destruction of objects, striking or throwing objects at the victim. In addition, domestic violence
may include mental or emotional abuse including verbal threats of physical violence, insults and
other attacks on the victim, her children and other home occupants. 1010
Emotionally it can involve humiliating the victim, controlling what the victim can do or not do,
withholding information from the victim, doing things with the intention of making the victim
diminished or embarrassed, isolating her from friends and family and refusing the victim access
to resources. This form puts the victim at an imminent risk of suicide, eating disorders, drug and
alcohol abuse. 1011
Another form of domestic violence is economic abuse whereby the abuser controls the victims’
economic resources such as money and other properties. The victim is put under strict
dependency, withholding money at will and forcing her or him to beg for it. It may also prevent
the victim getting education, employment and other needs.
Domestic violence has many negative consequences to the victims and society in general. It is a
world-wide problem that transcends cultural boundaries and more. It is one of the prominent
tools used to violate the women rights in the society. It may be the cause for street kids, drug
abuses by young people and divorces. 1012
5.1.5.1 Legal Framework in Combating Domestic Violence in Zanzibar
Domestic violence issues in Zanzibar are regulated by various laws such as Penal Act, 2004;
Employment Act, 2005; and Kadhi’s Court Act, 1985. There is no specific legislation addressing
domestic violence issues is Zanzibar apart from those laws.
Zanzibar Penal Act, 2004 provides for many offences relating to domestic violence. Part XVI of
the Act provides for offences relating to marriage and domestic relations. In this Part, it is made
an offence for any person to wilfully and by fraud to cause any women who is not lawfully
married to believe that she is lawful married to and to cohabitate or have sexual intercourse with
him. 1013 The Act further makes it an offence to marry again during the lifetime of a husband or
wife. Other offences include undergoing a marriage ceremony fraudulently; cruelty to children;
desertion of children; neglecting to provide food to children; masters not providing for servants
or apprentices; trafficking of person and child stealing. 1014
1010
See Domestic Violence in: http://en.wikipedia.org/wiki/domestic-violence.
Ibid.
1012
Ibid.
1013
1014
Ibid, Section 166-173.
1011
329
Part XVII of the Act provides for offences against person which include murder, manslaughter
and infanticide. 1015Other offences are acts causing grievous harm to another person; 1016
removing of human organs from a body of another person; 1017 and assaulting a person. 1018 All
these are offences punishable under this Act.
Part XXV of the Act enumerates offences against liberty. These offences include kidnapping
from lawful guardian kidnapping or abducting with intent to confine a person; kidnapping
abducting in order to subject person to grievous harm; wrongful restraint; wrongful confinement;
and habitual dealing in slaves. 1019 Part XXVI of the same legislation criminalizes acts of stealing
from another including theft committed by husband from his wife and vice versa. 1020
5.1.5.2 Enforcement of Domestic Violence Cases
Of all offences provided under Penal Act, 2004 relating to domestic violence as shown above,
there is no procedure requiring courts to hear them in camera. This discourages women from
bringing their complaints as they may be heard publicly.
As for the matters falling under Kadhi’s Courts, there are also problems in these courts. There
are no rules of procedures currently applicable to those courts. The Chief Justice in consultation
with Chief Kadhi is empowered to make rules for the courts yet they have not done so. With that
problem, advocates are not allowed to appear in Kadhi’s Courts. Although Vakils are allowed to
appear in those courts, not only they are very few in number to cover all courts but they are also
not conversant in Islamic law - the only law applicable in those courts. Therefore, women have
to defend themselves and are hence deprived of their right to a fair hearing. It is necessary then
that if procedures have not been put into place then the Civil Procedure should be applied. There
is also need not only to train Kadhis to be able to deal with the current situation, but also to
utilise graduates from the Universities that teach Islamic Law.
It is recommended further that Kadhi’s Courts Act, 1985 be amended so that advocates and
people acquainted with Islamic Law are allowed in those courts to represent litigants. It is also
recommended that procedures regulating proceedings in these courts be approved as quickly as
possible and if not specific civil procedures should be developed for application in the Kadhi’s
courts.
5.1.5.3 Current Situation on Domestic Violence in Zanzibar
In spite of the above legal protection of women against domestic violence, it is reported that
domestic violence cases in Zanzibar are increasing. According to ZAFELA, 109 complaints were
reported in its office in 2011. Six complaints relating to domestic violence were reported to
1015
Ibid Section 195,196 and 205.
Ibid, Section 225.
1017
Ibid, Section 239.
1018
1019
1020
1016
330
ZLSC offices in the year 2011. 1021 Seventy four complaints were reported to the Ministry of
Social Welfare, Youth, Women and Children Development in 2011. 1022 Research shows that in
some places like Micheweni village in Northern Region of Pemba women are deserted by their
husbands the situation that leads them to become solely responsible for the custody and
maintenance of their children. 1023
Women deserted by their husbands in Micheweni Village in Pemba engaging themselves in stone breaking activities.
5.1.6 Women Economic Empowerment and Employment
Despite the legal efforts that have been taken by the Government to ban discrimination, 1024 there
are some instances of discrimination based on employment. Women have limited access to
employment opportunities in the formal sector. Recent statistics show that the female employees
constitute only 36.4 % of the total employees in the formal sector. 1025 Of those employed, only
8.64% are in supervisory and technical posts. Most of the other women are engaged in informal
sector doing petty businesses having very low income returns. These include small farming,
seaweed farming, pottery and handcrafts. 1026
While the Employment Act, No 11 of 2005 contains various provisions protecting women from
domestic violence, the Act also prohibits direct or indirect discrimination against employee in
any employment policy or practice on any ground including gender. In that case the employer is
1021
ZLSC Annual Activity Report, 2011.
Ibid.
1023
An Interview with Almasi Mohamed, Human Rights activist at his office Mlandege, Zanzibar on 15th December,
2011.
1024
Section 12 (1), (2), (3) and (5) as well as section 21 of the Zanzibar Constitution, 1984.
1025
Tanzania Human Rights Report, 2010.
1026
Ibid.
1022
331
required to take positive steps to guarantee equal remuneration for men and women for work of
equal value. If an employee is discriminated in any way described above by the employer or his
representative, the employee shall be entitled to lodge a complaint with the labour officer who
has powers to handle the matter.
The Act further prohibits employment, engagement of women or assignment of a female
employment at night in any industrial undertaking. 1027However certain categories of female are
excluded from that exemption. These include those holding responsible leadership positions,
management positions, those employed in factories or industries in which they are the only
dependent and if the nature of the employment requires their presence. 1028
Most of Zanzibari working women are engaged in the informal sector. Women have found
working in this sector a very competitive option because of lack of education, specialised skills
as well as sheer discrimination against them because of their gender. The government has tried to
redress this problem by creating funds that women can access such as the Jakaya Kikwete and
Amani Karume Entrepreneurship Fund and also private sector funds such as Business
Development Gateway whereby through this women can be economically empowered.
Some achievements were noted in the year 2011 on women economic empowerment. Through
WEZA, for example, a 4 year project co-financed by EU/Care Austria and implemented by Care
Tanzania and TAMWA with JOCDO, PESACA, FAWE, and ZAFELA as associates, women
managed to increase their income and social integration locally and nationally. 1029 This project
enabled a total of 1,735 (731 from Pemba and 1004 from Unguja) women to engage in different
income generating activities in Unguja and Pemba 1030. It has been said that women have been
engaged in production different items such as hand bags, spice based soaps, batiki, rosella, liquid
soaps and vegetable. It has also been learnt that women in Pemba have produced more than
3,873 kg of onions, spinach and pilipili boga which earns them a sum of Tshs. 6,179,450/=1031
annually.
However, the market has been a serious problem for women engaged in small business. Women
produce various items such as spices locally made soaps, clothes and excess food products such
as vegetables but they do not benefit from these products due to lack of reliable selling points or
markets within and outside their localities. 1032
5.1.7 Women and Health
Heath as right is not provided for under the Zanzibar Constitution, 1984. However one of the
political objectives of the Zanzibar government as provided for under section 10 is providing
good health services. The government through the Ministry of Health and Social Welfare is
1027
Ibid.
1029
WEZA Newsletter, 31st December, 2011.
1030
Ibid.
1031
Ibid.
1032
Ibid.
1028
332
taking legal, political and technical measures to ensure women have access to improved health,
nutrition, safe motherhood, supporting the fight against HIV/AIDS and sexually transmitted
diseases. Other efforts include reducing the maternal mortality and reviewing its health policies
to include gender.
Notwithstanding all these efforts, the health situation to women is not conducive. It is reported
that the number of women suffering from various diseases is high compared to men. The table
below, shows various clinics and treatment sought by both men and women.
Clinic
Women
Men
Total
Acupuncture
1,284
1,030
2, 314
Dental
1,829
1, 758
3,587
Diabetic
2, 883
2,090
3,051
Ear nose and throat
2, 265
3,099
5,364
Eye
8,385
5,969
14,354
Gynaecology
1,202
-
1,202
Care and treatment
4,787
2,618
7,405
Hypertension
1,023
504
1,504
Orthopaedic
885
1,762
2,647
Pediatric
438
746
1,184
Physiotherapy
1, 022
868
1,890
Skin diseases
2,003
1,446
3,449
Surgical OPD
1,990
3,227
5,217
Major theatre
445
525
970
Minor theatre
2,683
6,716
9,399
45
41
86
33,169
32, 399
65, 568
Eye theatre
TOTAL
Source: Budget Speech of Ministry of Health, 2011/2012.
333
It is further reported that maternal deaths are still high as indicated in the Table below:
Hospital
Pregnant women
Giving birth
By operation
Women death
admitted
without
when giving
operation
birth
Mnazimmoja
7, 564
5,593
1, 322
29
Mwembeladu
3,543
3,240
-
-
11, 107
8,833
1,322
29
Total
Source: Budget Speech of Ministry of Health, 2011/2012.
It is recommended that more efforts should be taken to improve the health sector for women.
These include bringing health centres close to villages so that women in rural areas get access to
health services.
5.1.8 Women and Education
The Constitution of Zanzibar, 1984 does not include the right to education as one of the
enforceable rights. It is rather enshrined under section 10 (6) as one of the political objectives of
the government. The right to education is provided for under the Education Act, 1982 which
provides for free and compulsory education. 1033
In Zanzibar the number of female students attending schools, Colleges and Universities is
reported to have increased in 2011. For example a total of women undergoing higher education
in different Universities and colleges outside Tanzania are 108, a number which is higher than
males who are only 78. 1034 The number of women of women in different Universities and
Colleges in Tanzania is higher than males. Recent statistics show the number of women in those
institutions is 426 compared to men who are only 410. 1035 However, the problem of early
pregnancy and marriages among students is reported to be a serious problem hindering their
performance in primary and secondary schools. 1036
5.1.9 Women Participation in Decision Making
The Constitution of Zanzibar, 1984 guarantees every Zanzibari regardless gender has the right to
take part in the governance of their country. Section 21 (1) of the Constitution reads:
Every Zanzibari shall has the right to take part in the conduct of the
government of the country, either directly or indirectly through freely chosen
representatives.
1033
Act No. 6 1982.
Budget Speech of the Ministry of Education and Vocational Training, 2011/2012, p. 145.
1035
Ibid, p. 144.
1036
Infra, 4.4.7.
1034
334
This Article suggests that women as long as they are Zanzibaris have equal rights to hold any
political office in their government or to elect people on their behalf. 1037
The gap between men and women in various elected and appointed positions is still high in
Zanzibar as shown in the table below:
S/N
POSITION HELD
MALE
FEMALE
TOTAL
%
Women
1
Ministers
17
2
19
10.5
2
Deputy Ministers
2
4
6
66.7
3
Principal Secretaries
14
3
17
17.6
4
Directors
69
24
93
25.8
5
Members
of
HoR
47
3
50
6
of
HoR
5
3
8
37.5
of
HoR
19
19
(Elected)
6
Members
(Nominated)
7
Members
(Special Seats)
8
Regional Commissioners
5
0
5
0
9
District Commissioners
8
2
10
20
10
Councillors
120
21
141
14.9
11
Shehas
318
14
332
4.2
Source: Statistical Abstract, 2010 and ZEC General Election Report, 2010 and Ministry of State (PO) Public
Service and Good Governance, 2011.
In political rallies, for example during election campaigns, Zanzibar women are usually the
majority. One then wonders why, in spite of women's noticeable interest in politics, and the fact
that they are the majority in the population, their participation lags behind that of men. 1038
1037
See Tanzania Human Rights, 2010 p. 387-389 on steps taken by Zanzibar to improve women participation in the
decision making.
1038
Zanzibar: Women want more Involvement http://voicesofafrica.africanews.com visited on 20th December, 2011.
335
Some researchers argue that women's lack of support for each other is often not seen as a part of
this social system; rather it is seen as traditional. This factor affects all women's ability to
become active politically as leaders. 1039
Cultural and traditional beliefs are reported to appear not only to have hindered women's
political participation in Zanzibar, but have also kept women out of many sectors of life that
could have led to their empowerment. 1040
It is further argued that women living in real poverty stand little chance of entering political life
because of the barriers posed by lack of many different kinds of resources. Their time is taken up
by the need to generate income, and they often lack sufficient education. 1041
Lack of confidence and limited education are other major factors that limit most Zanzibari
women from participating in politics.
The majority of women hold inferior positions in the government; NGOs; and Shehias compared
to men. It is recommended that women participation in the governance should be increased to
give them chance to participate in the decision making process. Political parties also must
appoint women to hold high positions including appointing them to contest for elections in
different constituencies.
It is obvious that Zanzibar lags behind when it comes to providing equal opportunities to all in
the decision-making sphere. Women are marganilised and their voice in hardly anywhere.
5.2 Children Rights
Tanzania has ratified almost all international conventions which govern the protection of the
rights of children and young persons. The country is a signatory to the Convention of the Rights
of the Child (CRC), 1989 and its Optional Protocols which are: Optional Protocol on the
Involvement of Children in Armed Conflicts, 2000 and Optional Protocol on the Sale of Children
2000, Child prostitution and Child Pornography of 2000 as well as other internationally
recognized conventions and instruments are designed to facilitate the protection and promotion
of the rights of the child and the young persons. This is cogent proof of the commitment of the
government of Tanzania and effectively that of Zanzibar as well as the political leadership to
promoting, protecting and enforcing respect to the rights of children and young persons.
A major improvement relating to child protection in 2011 is the enactment of the Child Act No 6
of 2011, a comprehensive legislation complying with international standards on child protection.
The Act defines a child as a person under the age of 18 years. 1042 This definition resolves the
long missing specific definition of a child. 1043 The Act further postulates basic rights and interest
1039
Ibid.
Ibid.
1041
Ibid.
1042
1043
See Tanzania Human Rights Report, 2010, p. 384.
1040
336
of the child and their protection. 1044 The Act establishes special court for a child and elaborates
its powers, jurisdiction and appellate procedures. 1045 Provisions relating to care and protection of
a child are also provided by the Act 1046. Matters relating to children in conflict with law which
were formerly provided by Children and Young offenders Decree Cap 58 are consolidated in this
Act. 1047 Matters pertaining to parentage, custody, guardianship, access and maintenance are
enshrined by this Act. 1048 The Act also provides for provisions on foster care, Kafalah, adoption,
consent to medical intervention and HIV testing. Others are specially approved schools and
residential establishment and day care. 1049 The enactment of this Act is a step forward towards a
full protection of a child’s rights.
5.2.2 Institutional Framework
The Ministry of Social Welfare, Youth, Women and Children Development Zanzibar is
responsible for the affairs of the children in Zanzibar. There are also various NGOs dealing with
the affairs of the children such as ZAFELA, ZLSC, and others which are mainly supported
financially by Save the Children which is very active in Zanzibar. Therefore, one could say with
certainty that to a great extent, the government has created space and a conducive environment
for the NGOs to complement efforts, hence attaining the most desired synergy in the endeavour
to enhance respect for the rights of the child. A child has the rights to life, to grow, to be
protected and to be involved in social affairs.
5.2.3 Right to Life
In Zanzibar a child’s life is protected while is still in womb of his/her mother. The Penal Act,
2004 protects that by criminalizing infanticide, murder, child destruction, and cruelty to
children. 1050 The Child Act clearly stipulates rights of the child necessary for his living and
development which include nutritious food, shelter; appropriate clothing; appropriate care and
protection, which involves adequate medical care and immunization education, including
religious education and play. 1051
To protect the life of the child the government has taken a number of efforts. One of those efforts
is improving nutrition and immunization. Statistics show that there is improvement of mother
sending their children in health centres to check their children’s nutrition. 1052
Distribution of Vitamin A and medicines to fight against worms has also been improved in
Zanzibar. There is country wide exercise to provide for vitamin A and measles inoculation
1044
Part 2 of the Act.
Part 3.
1046
Part 4.
1047
Part 5.
1048
Part 6.
1049
Part 7.
1050
Sections, 10, 196, 205, 217 and 168 of the Act.
1051
1052
Budget Speech of the Ministry of Health, 2011/2012.
1045
337
annually. The statistics show that there is a drop from 95% in 2010 to 89.4 % for vitamin A and a
rise is reported from 96% in 2009/2010 to 100 % in 2010/2011 for measles. 1053
Vaccination services for mother and children are normally provided in Zanzibar by the Ministry
of Health and Social Welfare to reduce deaths of children. The statistics show improvements on
immunization provided by the Ministry in 2010. 1054 The table below shows the current statistics
of vaccination in Zanzibar, some of which go beyond the expected targets.
UNGUJA
Vaccination
Vaccinated
%
BCG
33,607
132%
OPV 3
26,381
110 %
DPT-Help B 3
270, 027
114%
Measles
24,219
101%
Tetanus for pregnant women
17, 645
69%
SOURCE: Report submitted to the House of Representatives, 2011
PEMBA
Vaccination
Vaccinated
%
BCG
23, 086
94.3%
OPV 3
17,603
76.5%
DPT-Help B 3
17, 290
75.2%
Measles
14, 627
84.8%
Tetanus for pregnant women
10, 697
43.7%
SOURCE: Report submitted to the House of Representatives, 2011
1053
Report Submitted to the House of Representatives on the Implementation of the Rights of Child, 16th June, 2011
p 3.
1054
Ibid, p. 7.
338
The government has taken steps to fight against malaria. These efforts include distribution of
mosquito nets to pregnant mothers and children under 5 years. About 45, 000 nets have been
distributed in different places in Zanzibar in 2010/2011. 1055 It is reported that only 0.6 % of
pregnant mothers attending clinics were found with malaria. 1056
Along with those efforts the government has been taking various efforts to promote other social
services to improve health of children and pregnant mothers. Despite those efforts, there are still
some problems facing children and pregnant mothers in Zanzibar. These problems include poor
social services like clean water, electricity and food particularly for those living countryside.
Other problems include shortage of health centres in rural areas and lack of sufficient health
knowledge by pregnant mothers.
5.2.4 Right to Grow and Develop
In addition to having a right to life, a child has a right to grow well. A child can grow well if
he/she is properly maintained and educated. The Child Act and Zanzibar Penal Act, 2004
provides for special treatment to the child. The Child Act has many provisions necessary for a
child’s development. 1057 The Penal Act criminalizes cruelty to children, desertion of children,
neglecting to provide food, clothes, bedding and other necessaries and child stealing. 1058
5.2.4.1 Right to Education for the Child
The Zanzibar Education Act, 1982 provides for compulsory attendance of pupils at school
whereby a parent, guardian of every child enrolled for primary education is under legal
obligation to ensure the child regularly attends schools until the child completes the basic
education. 1059 Basic education is defined to mean basic primary and junior secondary education
which every child in Zanzibar is entitled to. 1060 In order to make the enrolled child continues
with the education, it prohibited for the girl child to get married before completion of her basic
education. 1061 If that provision is violated, the responsible pupil is expelled from school. The
child expulsion from school is construed to be violation of child right of education. The law
provides for the suspension of the child found pregnant. However the child may be reinstated to
school after delivery. 1062
The number of the pupils enrolled from nursery to secondary schools in Zanzibar is increasing.
The number of the pupils enrolled in nursery schools has increased in 2011 compared to 2010.
The number of pupils in government schools has increased to 6,876 in 2010/2011 from 4, 476 in
2009/2010. The report shows an increase of students enrolled in private schools in 2011
compared to 2010. In private nursery schools the number of the enrolled pupils in 2010 was;
1055
Report submitted to the House of Representatives, op.cit p. 9.
Ibid, p. 9.
1057
For example section 10 of the Act.
1058
Section 168,169,170 and 173 of the Act.
1059
1060
ibid, Section 20 (3).
1061
1062
Section 16 (1), Spinster Act, 2005.
1056
339
boys 8, 179 and girls 8,563. 1063In 2011 a total of 26, 724 pupils were enrolled; 12,857 boys and
13, 867 girls signifying improvement in 2011. About 36, 875 pupils were enrolled into standard
one in 2011. 1064
However, after the enrolment in schools the number of the students has been decreasing in every
year. The main reasons for that decrease is due to absconding, early marriage, poverty and early
pregnancy. 1065 The Minister for education and Vocational Training had once been reported
saying 7% of pupils do not complete their education due to drop out. 1066 The establishment of
alternative learning centres has accommodated a number of students who drop out from schools
for the above reasons.
Academic consideration is also given to children with special needs so as to make them enjoy
right to education as other children. The so-called inclusive education has been introduced to
children with special needs. Schools providing for such education are now 86 1067. The number of
students also has increased from 4, 191 in 2010 to 4,300 students in 2011 1068. The number of
teachers in these schools has also been increased from 2290 in 2010 to 2390 in 2011. 1069
However, the number is still not sufficient to cover all schools with such needs. 1070
Different centres have been introduced in Zanzibar accommodating children who need special
care such as orphans, disabled, and those deserted by their parents. These centres include
Mombasa Orphanage Centre (formerly known as Forodhani Orphanage Centre); Save Our Soul
(SOS); 1071 Children’s Village Istiqama Orphanage Centre; and African Muslim Agency. These
centres have been playing crucial roles in maintaining children who need special care.
In spite of the above developments, there are a number of problems facing children from
accessing this right. These problems include poor infrastructures, overcrowding of students in
classes, shortage of qualified teachers particularly science teachers. Other problems include
shortage of laboratory equipments particularly in schools in rural areas and child abuse1072.
These problems involve both government and private schools and can be put in general as due to
fast growth of the population and the failure of lack of corresponding investment in the education
sector.
1063
Ibid.
Hansard Report of the HoR , July 2011 p 12.
1065
Ibid p. 12.
1066
See Tanzania Human Rights Report 2010, p. 397.
1067
Budget Speech MoEVT, p. 67.
1068
Ibid.
1069
Report to the HoR, op.cit, p. 23.
1070
Infra, 4.4.1.
1071
In spite of the fact that SOS is meant to accommodate orphans, majority of students are not orphans. It has been
difficult to find a space for a student who seeks for enrolment.
1072
Ibid, p. 24.
1064
340
Another problem facing child education in Zanzibar is that of free movement of the child in
pursuit of education while still under his or her parents. For example, it is has been hard for
Pemba students to move with their parents or guardians if it involves transfer from a Pemba
school to one in Unguja. It is recommended that this practice should not continue for the interest
and welfare of the child who is psychologically disturbed when put under such a test.
5.2.4.2 Right to Play
Right to play is one among rights to conditions of living necessary for child’s development. 1073
There are reports indicating that there is a lack of space for children to play in Zanzibar. This
problem remains the biggest challenge for the early childhood development in Zanzibar and
solution yet far to be reached. 1074 There have been no serious steps taken by the community and
government to allocate spaces designed for kids to play.
Lack of space for children to play is attributed to expansion of settlements in urban areas, poor
planning, lack of coordination among organizations responsible for childhood development, and
corruption. 1075 Lack of outdoor play space forces children to play indoors or play around their
homes, and in filthy environment. There are few spaces with facilities for children to play, but
the majority children from poor families cannot afford to pay to be allowed to use the spaces and
facilities. Kids in rural areas from poor families are least likely to have access to a local parks or
access to pay for community playground.
5.2.4.3 Children in Conflict with Law
A serious problem exists with children who are remanded or imprisoned in Educational Centres
(Prison). The law provides for special treatment for children who are in those Centres including
being separated from adults. The law provides that there should special places where juvenile
offenders may be kept. 1076 In case of detention of a juvenile in police station, the law impose
obligation to Commissioner of Police to make arrangements for preventing, so far as practicable,
a child or young person from associating with adults charged with an offence. 1077 The law further
provides that a child or young who is not released on bail, shall instead of committing him to
prison, commit him to custody in special place established for that purpose by law and if it is
impracticable as to character of a child, the child may be committed in prison. 1078 If the child in
prison must be confined in a separate building or in separate part of the same building in such a
manner as to prevent him from associating with or having any communication with adults
prisoners. 1079
Recent findings show that the above requirements are not implemented. 1080 It is reported that
there is no separate building for children. They are only separated during nights but the rest of
1073
Section 10 of the Child Act, 2011.
www.wordpress.net.
1075
Ibid.
1076
Section 10 of Child Act, 2011.
1077
Ibid.
1078
Ibid.
1079
See the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) available
at http:/www.ohchr.org/English/law/juvenile.htm visited on 10th January, 2011.
1080
Report of the Oversight Committees of the HoR op.cit.
1074
341
the time they intermingle with adults. The intermingling causes many children to be physically
abused.
It is also highly recommended that the Government should ensure that these children undertake
their education while in custody so as to prepare them to become useful citizens and not lose
hope on them so early because they have committed offences and are thus rightfully in custody.
5.2.5. Right to be Protected
A child needs to be protected from being sexually abused, child labour and cruelty. The Penal
Act, 2004 provides for prohibition of rape and other form of sexual abuse and cruelty to a
child. 1081
5.2.5.1 Violence against Children
The MoSWYWCD in collaboration with Save the Children conducted a comprehensive research
on Violence Against children (VAC) from 2008-2011. 1082 The findings of the research indicate
that children and women in Zanzibar face sexual violence, physical violence and emotional
violence.
a) Sexual Violence
Sexual violence refers to any act, attempt, or threat of a sexual nature that results or is likely to
result, in physical, psychological and emotional harm. Results show that more than one in twenty
females and about one in ten males aged 13 to 24 from Zanzibar reported experiencing at least
one incident of sexual violence before the age of 18. 1083 The most common form of childhood
sexual violence reported by females was unwanted attempted sex, followed by unwanted sexual
touching. The most common form of childhood sexual violence reported by males was unwanted
sexual touching, followed by unwanted forced sex and unwanted attempted sex. 1084 Among 13 to
17 year olds, 2.3 percent of females and 4.3 percent of males reported that they had experienced
at least one form of sexual violence in the past year. About 1 in 10 Zanzibar 13 to 24 year olds
reported that their first sexual intercourse was unwilling, that is they were either tricked,
pressured, threatened, physically forced or coerced in another way to have sexual intercourse. 1085
b) Physical Violence
Physical violence against children can impair their physical, cognitive and emotional
development. The survey exposed how frequently children who experienced sexual violence also
suffered from physical violence. About 6 in 10 females and more than 2 in 3 males reported
experiencing physical violence prior to the age of 18. 1086 Almost 1 out of 2 females and more
1081
Sections 125 (1) (2) e, 163 and 168 of the Act.
The VAC Study in Zanzibar and the Multi-Sector Task Force 2008-2011.
1083
Ibid p 5.
1084
Ibid.
1085
Ibid.
1086
Ibid.
1082
342
than 4 in 10 males of 13 to 17 years old are reported that they experienced physical violence in
the past year by either a relative, authority figure (such as teachers) or an intimate partner. 1087
c) Emotional Violence
More than 1 in 10 females of 13 to 24 years of age and 1 of 5 males are reported to have
experienced emotional violence during childhood. More than one in twenty males aged 13 to 24
years are reported that they felt unwanted or were threatened with abandonment by an adult prior
to turning 18 years of age. 1088
Neighbours and strangers were the most frequently implicated perpetrators of childhood sexual
violence against females. In almost three quarters of cases, well-known partners were the most
frequently implicated perpetrators against males. Nine out of ten females who experienced
sexual violence reported that the perpetrator of at least one incident was older, while about half
of males who experienced sexual violence reported that the perpetrator was older. Nearly twothirds of females who experienced childhood sexual violence reported being victimized by a
perpetrator who was 10 or more years older.
Nearly 2 out of 3 females and males experienced physical violence by relatives and more than
half experienced physical violence by teachers before turning 18 years of age. The majority of
females and males 13 to 24 years of age who reported physical violence prior to age 18
experienced this violence by their fathers and mothers. Approximately 1 in 10 males who
experienced physical violence reported physical violence by a religious leader. 1089
5.2.5.2 Current Situation on Child Abuse
Complaints relating to child abuse were also reported in various institutions such as ZLSC that
received 26 complaints on child abuse in 2011. 1090 People had also filed a number of complaints
in MoSYWCD in 2011. For example, table below shows complaints reported at MoSWYWCD
between July 2010 and March 2011.
District
Rape
Early
Sodomy
Total
pregnancy
Urban
5
-
5
10
West
13
5
1
19
Central
3
1
-
4
1087
Ibid.
Ibid p 5-6.
1089
Ibid p. 6.
1090
Refer table above in paragraph 2.5.7.
1088
343
South
2
-
-
2
North A
1
-
1
2
North B
1
-
-
1
Chake Chake
6
5
2
13
Mkoani
4
1
-
5
Micheweni
5
2
-
7
Total
47
16
10
73
Source: Budget Speech of MoSWYWCD, 2011/2012
The Department of Social Welfare also received 150 complaints from Unguja and 189 from
Pemba including rape, sodomy, early pregnancy, maintenance and custody. 1091 Abuse of children
in Zanzibar has been a serious problem. 1092 Complaints relating to child abuse which were
reported to ZAFELA in 2011 include rape 9, pregnancy 6 and sodomy 3.
The Child Protection Unit at the Department of Social Welfare received a number of complaints
relating to child abuse in the year 2011 as shown in the table below:
1091
1092
S/N
Age of a victim
Gender of victim
Type of Abuse
1
11
F
Rape
2
13
F
Rape
3
14
F
Rape and Pregnancy
4
16
F
Rape and Pregnancy
5
16
F
Rape
6
5
F
Rape
7
17
F
Rape and Pregnancy
8
2
F
Rape
Hansard Report of HoR p 8 July 2011.
Ibid, p. 13.
344
9
15
F
Rape
10
14
F
Rape
11
6
M
Sodomy
12
5
M
Sodomy
13
14
F
Rape
14
12
F
Rape
15
7
M
Sodomy
16
5
F
Physical Abuse
17
4
F
Rape
18
8
M
Rape
19
17
F
Rape
20
14
F
Rape
21
6
M
Rape
22
4
F
Rape
23
17
F
Rape
24
7
F
Rape
25
16
F
Rape
26
3
M
Rape
27
16
F
Rape
28
18
M
Rape
29
15
F
Rape
30
11
M
Rape
31
9
M
Rape
345
32
15
F
Rape
33
13
M
Physical Abuse
34
16
F
Rape
35
14
F
Rape
36
14
F
Rape
37
19
F
Rape
38
12
F
Rape
39
17
F
Rape
40
17
F
Rape
41
17
F
Physical Abuse
42
15
F
Rape
43
12
M
Physical Abuse
44
12
F
Rape
45
14
F
Physical Abuse
Source: Children Protection Unit, 2011.
The Women and Children Protection Desk at Madema Police Station has also collected a number
of sexual abuse cases reported at different Police stations as shown in the table below:
SEXUAL ABUSE CASES REPORTED IN POLICE STATIONS WITHIN URBAN WEST
POLICE
STATION
ABDUCTION
RAPE
SODOMY
PREGNANCY
INDECENT
ASSAULT
GANG RAPE
DEFILEMENT
TOTAL
REGION OF UNGUJA IN 2011
MADEMA
15
2
1
12
44
-
2
76
346
BUBUBU
35
14
10
37
40
1
-
136
NG’AMBO
25
23
5
24
40
1
-
117
MAZIZINI
12
6
6
19
25
-
-
68
MALINDI
-
3
4
1
-
-
-
8
KWEREKWE
16
9
6
7
17
4
59
TOTAL
103
57
32
100
166
6
464
4
Source: Women and Children Protection Desk, 2011
Out of 464 reported cases, only 54 cases were brought before courts of law for prosecution. 393
cases are still investigated and 13 cases have been closed because of refusal of victims and
witnesses to co-operate with Police, non appearance of complainants in respective Police
Stations and families deciding to resolve them through agreements. 1093 Out of 54 cases which
were brought before courts, two cases were withdrawn and the remaining cases are at the hearing
stage.
In 2011, the MoSWYWCD in collaboration with the Save the Children has established One Stop
Centre at Mnazi Mmoja hospital with the aim of dealing with child abuse cases. The centre is
composed of experts from different organs such as doctors, public prosecutors, police and
counsellors. These experts assist in providing required services to the victims and collecting
evidence which can be used against the accused.
From May to December 2011 a number of sexual abuses cases were reported to One Stop Centre
as shown in the table below:
Types of cases
1.Pregnancy
2.Rape
3.Gang Rape
4.Indecent Assault
5.Sodomy
TOTAL
Number of Cases
133
214
4
13
22
386
Source: Women and Children Protection Unit, 2011.
Reports further show that there are children who live in severe hardship in Zanzibar. The study
conducted by the MoSWYWCD, identified 12, 453 children living in severe hardship in several
parts of Zanzibar. 1094
1093
1094
Women and Children Protection Desk Registry, 2011.
Budget Speech MoSWYWCD, 2011/2012.
347
In spite of measures taken by government to protect children from abuse, the problem is still
persistent and serious in Zanzibar. Courts and police stations are said to be havens for rapists in
Zanzibar as law enforcers and the judiciary are accused of freeing suspects. The reason being the
embedded corruption among law enforcers 1095. It is therefore recommended that more stringent
measures should be taken to ensure the problem is eradicated. These measures should include the
improvement of the administration of criminal justice on child abuse related cases, raising people
awareness on child abuse related cases and recalling to the family, their role in the welfare of the
child.
5.2.6 Child Labour
Child labour is legally prohibited in Zanzibar. The Employment Act, 2005 prohibits all child
labour including the worst forms of child labour which include:
•
•
•
•
All forms of slavery or practices similar to slavery such as the sale and trafficking of
children, debt bondage and serfdom and force or compulsory labour including forced
or compulsory recruitment of children for use in armed conflict;
The use, procuring or offering of child for prostitution, production of pornography or
pornographic performances;
The use, procuring or offering of a child for illicit activities, in particular for production and trafficking of drugs;
Work which by its nature or the circumstances in which it is carried out is likely to
harm the health, safety of children.
The law only allows employing a child for domestic work but a parent or guardian has to ensure
that a child gets sufficient time for education and rest. 1096
Despite legal protection of the child from forced labour and other forms of worst works, it is
reported in Zanzibar the problem is very serious. Studies show that about 9.2 % of children in
Zanzibar are involved in child labour. Among prominent sectors employing children are
fisheries, transportation, tourism and agriculture. 1097 A study that was conducted in
Mwanakwerekwe, Malindi, Karakana and Chumbuni areas in Unguja shows that 44 children are
involved in sand digging and fish cleaning activities. 1098
In Pemba the problem is also reported to be prevalent and serious. Children are reported to work
in worst forms of labour that endanger their health including fishing and rock-breaking for
gravel. 1099 The parents are said to claim that they cannot afford to send the children to school.
1095
Why Voice Against Abuse of Women and Children in Zanzibar remains High? Available at
http://www.dailynews.co.tz/feature/?n=26709&cat=feature visited on 15 December,2011. See also Child Abuse
Still high in Isles available at http://www.dailynews.co.tz/feature/?n=26709&cat=feature.
1096
1097
Report submitted to the House of Representatives, 2009, p. 28.
1098
Report submitted to the HoR 2011, see also Hansard , July 2011 p. 13.
1099
Too much work, Too little School available at: http://www.irinnews.org/report.aspx?reportid=88720 visited on
10th December, 2011.
348
Children involved in stone breaking activities at Micheweni Village in Pemba.
There are reported incidences that show children are used by adults to beg money in the streets.
The problem seems to be common in Zanzibar town 1100 . This does not only deprive a child time
to attend schools but also endangers his/her safety.
To fight against child labour the government is taking various steps including formulation of
policy and programme to fight against child labour. Special inspection relating to child labour
was conducted in four areas in Unguja. During the inspection it was found a number of children
are involved in child labour. 1101 It was found that people of those areas need to be educated on
the problem. The programme managed to take many children out from labour and enrolled them
in school. For example, about 200 children in Mkokotoni Village left child labour and joined
schools. 1102
5.2.7. Maintenance of Children
In Zanzibar, matters relating to maintenance are governed by Islamic Law. Kadhi’s courts are
vested with the jurisdiction to entertain matters relating to maintenance where all parties are
Muslims. Jurisdiction is also vested in the children court to make orders on maintenance of a
child. 1103 Apart from that, the government has enacted Spinsters and Single Parent Act, 2005
which provides for a legal safeguard for the maintenance of single parent children. This Act
provides that any father or alleged father of the child has the obligation to provide for the
maintenance of the child. 1104
1100
Hansard July, 2011 p. 15.
Report submitted to the HoR, 2011 p. 38.
1102
Ibid, 39.
1103
Section 18 of Child Act.
1104
Section 8, Spinsters and Single Parent Act, 2005.
1101
349
The mother of the child born out of the wedlock may institute a suit regarding maintenance of
the child in District Court. This is possible where it has already been proved that a person is the
father of the child. Where it is not, it will be very difficult for such mother to file for a suit
claiming for maintenance of the child. To prove responsibility of pregnancy, a woman needs to
wait until she gives birth and then conduct a DNA test. As already noted Zanzibar has no facility
to conduct such a test and the only one existing in the country is in Dar es Salaam, Tanzania
Mainland and the test is expensive and thus hardly available. This is also a problem in proving
paternity in sexual cases committed against children in Zanzibar.
Kadhi’s Courts are empowered to entertain matters falling under Muslim personal laws such as
personal status, marriage, divorce, guardianships and custody of the children in cases all parties
are Muslims. Matters also relating to Wakf or religious charitable trusts, gift intervivos and
inheritance where parties are Muslims as well as claims of maintenance where the claim is for a
lump sum of not exceeding five thousand shillings or for a periodical payment to be made at a
rate not exceeding fifty thousand shillings per month. 1105 The amount subject to Kadhis Court
jurisdiction is very minimal and there is a need to amend the Kadhis Court Act to extend the
Jurisdiction of Kadhis Court considering the current standard of life and the magnitude of the
maintenance problem in Zanzibar.
The problem of the maintenance of children exists in Zanzibar. According to ZLSC 6 complaints
on maintenance of children were reported in its office in 2011. The MoSWYWCD received 163
complaints relating to maintenance of a child in 2011. 1106 The Child Protection Unit received
172 complaints relating to maintenance of children in 2011. ZAFELA also received 35 cases
pertaining to maintenance of children.
Children also have the right to participate in the decision making in the society in the various
matters affecting their life. Zanzibar has taken various steps to involve children in various aspect
of life. These efforts include the formation of Children Councils in different parts of Zanzibar.
About 100 Councils have been formed in 100 Shehias of Unguja and Pemba. Among them 60
are in Unguja and 40 are in Pemba. 1107 The councils are also established in every District in
Unguja and Pemba. In 2011, more 30 councils were established in shehias which had no councils
before. 1108 In these Councils, children get chance to discuss many issues relating to their rights,
duties and welfare.
5.3 Rights of the Elderly
There is still no agreed definition of elderly internationally. Most developed world countries
have accepted the chronological age of 65 years as a definition of 'elderly' or older person, but
like many westernized concepts, this does not adapt well to the situation in Africa. While this
definition is somewhat arbitrary it is at times associated with the age at which one can begin to
1105
Section 6, Kadhis Court Act, 1985.
Budget Speech of MoSWYWCD, 2011/2012 p .18.
1107
Supra, Report submitted to the House of Representatives, 2009.
1108
Report submitted to the House of Representatives, 2011 p. 43.
1106
350
receive pension benefits. At the moment, there is no United Nations standard numerical criterion,
but the UN agreed cut-off is 60+ years to refer to the older population. 1109
The rights of older persons internationally were first considered in the Vienna International Plan
of Action on Ageing, 1982 1110 and later on in the Madrid International Plan of Action on Ageing,
2002 (Madrid Plan). 1111 The latter plan contained detailed recommendations to UN member
states on how to realize the rights of older people through three main areas which are
development, improving health and well-being as well as creating an enabling and supportive
environment for older persons.
At the domestic level, the rights of older people are not specifically provided for in the
Constitution of Zanzibar, 1984 that guarantees all Zanzibaris equal rights. The government has
taken various steps to ensure the well-being of the older persons. The second long term economic
plan for Zanzibar known as Mkakati wa Kukuza Uchumi Zanzibar (MKUZA II) articulates that a
special government focus on the welfare of older people has been made. The government has
maintained, albeit with some constraints, the long established centres for accommodating older
persons in Unguja and Pemba. These are Welezo, Sebleni, Gamba for Unguja and Limbani for
Pemba. However, the situation of the centres is not satisfactory. The buildings in which they live
are old and they are not routinely rehabilitated. Health services also have been problem in those
centres. Health centres suffers from inadequate professional staff, health equipment and financial
resources.
In the year 2011 the government has increased the amount of money paid to few older persons
living in government centres from 25, 000/= to 40, 000/=. Others are paid 15,000/= instead of
7000/= which was paid before. However, such increase is not compatible with current life
standard of an ordinary Zanzibari. The amount is very small considering the current unstable
inflation. It is therefore recommended that the amount should be further increased parallel with
the life demands.
The present social security benefits only covers people working in formal sectors which
represent 10% of the working age population. 1112 Others who are working in informal sectors
including agriculture, fishing etc mainly on subsistence basis are excluded.
Zanzibar still has no clear policy that can articulate the government commitment towards the
welfare of the older persons. In Tanzania Mainland, the National Ageing Policy, 2003 has been
formulated, among other things, to recognize older people as an important resource in the
1109
See http://www.who.int/health.info/survey/ageingdefnolder visited on 5th September, 2011.
Adopted by the world Assembly on Ageing held in Vienna, Austria from 26th July - 6th August, 1982, endorsed
by UN General Assembly 37/51.
1111
Adopted at the 10th plenary meeting of the Second Assembly on Ageing 12th April, 2002.
1112
Section 4 and 26 of the Zanzibar Social Security Fund Act, No. 2 of 2005.
1110
351
national development. 1113 Under this Policy the government commits itself to allocate enough
resource with the goal of improving service to older people and involve them in income
generating activities. 1114 The government also aims at providing legal protection to older people.
Zanzibar also needs a policy like this at least to cover those aspects.
5.4 Rights of Persons with Disabilities
The most prominent international instrument providing for the rights of the people with disability
is the International Convention on the Protection of the Rights and Dignity of Persons with
Disabilities, 2006 1115 in which Tanzania is a signatory. Zanzibar being a part of the United
Republic of Tanzania is also bound by that instrument.
Accordingly, various definitions have been put forward to understand who a disabled person is
and it is also a great challenge to explain various forms of disabilities because of the different
social economic context from which they considered. According to the World Health
Organisation (WHO), disability is an umbrella term covering impairments, activities limitations
and participation restrictions. 1116 Thus disability is a complex phenomenon, reflecting an
interaction between features of a person’s body and features of the society in which he or she
lives. 1117 According to WHO estimates 10 percent of any population comprises people with
disabilities. 1118
Zanzibar has enacted persons with Disabilities (Rights and Privileges) Act, 2006 which provides
for rights and privileges of people with disabilities. These include right to employment, access to
education, and entitlement to medical care, accessibility and mobility. 1119 The Act apart from
providing such rights and privileges also imposes obligations to government and every person to
provide for rights and privileges to those people.
The Public Services Act, a new comprehensive legislation enacted in 2011 has come with a clear
provision requiring public service authority to take appropriate measures to ensure public
services buildings and infrastructure are accessible and are user friendly to persons with
disabilities. 1120 The Public service authority must also ensure that persons with disabilities have
access to services rendered by public services institutions.1121 This legal requirement has come at
1113
Social Security and Social Protection in the Eastern African Community, edited by Barya, J.J, Fountain
Publishers, Kampala Uganda, 2011 p. 54.
1114
Ibid.
1115
Adopted 11th December, 2006; entered into force 3rd May, 2008.
1116
http:// www.who.int/topics/disabilities/en .
1117
Ibid.
1118
Said, Talaa M, The Economic Empowerment of people with Disabilities in Zanzibar through their Inclusion in
Microfinance and Vocational training Institution available at www.afri-can.org/TZ/talaa.ph accessed on 20th
December, 2011.
1119
Sections 3-12 of the Act.
1120
Section101 (1) of Act No. 2 of 2011.
1121
352
a right time where there are reports showing the inaccessibility of government buildings to
people with disabilities. 1122
Currently, there are initiatives at the level of the Law Review Commission of Zanzibar to
propose amendments to improve various laws including the law dealing with people with
disabilities.
5.4.2 Institutional Framework
Institutionally, matters relating to Persons with Disabilities are under the office of First Vice
President. The Persons with Disabilities Act, 2006 provides for the establishment of the Zanzibar
National Council for persons with disabilities as an autonomous body. 1123 Currently there is a
special Department of Persons with Disabilities Affairs which is an integral part of the
government of Zanzibar dealing with affairs of persons with disabilities. There are various NGOs
that complement the department dealing with persons with disabilities such as Association of
People with Disabilities.
5.4.3 Poverty among People with Disabilities
Studies carried out in Zanzibar estimates the disabled population to be 4 to 6 percent, with most
of them living under poverty line of one USD per day. 1124 It is observed that poverty among
people with disabilities is associated with deep-rooted attitudes of families, communities and
government for excluding people with disabilities in development programmes. 1125 As a result
people with disabilities are very poor due to the low literacy rate and limited employment
opportunities. Poverty has made them vulnerable to sexual harassment and abuse, dependent on
others for their basic needs and therefore unable to lead independent lives. 1126 There is a need for
the government to empower people with disabilities economically particularly through loan and
vocational skills so that they can have sustainable livelihood.
5.4.4 Abuse against People with Disabilities
There are also reports showing that people with disabilities suffers from violent or sexual abuse.
Estimates suggest that the number of people with disabilities who experience violent or sexual
abuse is ten times higher than the general population. 1127 It is said that disability places them in
positions of extreme vulnerability and reduces their ability to defend or protect themselves.
Disabled women, girls and children generally are routinely abused by family members, care
takers and strangers. 1128
1122
See Tanzania Human Rights Report of 2010 p. 406.
Ibid, Section 26.
1124
Said, Talaa M Economic Empowerment of People living with disabilities in Zanzibar through their inclusion in
Microfinance and Vocational Training Institution available in http://www.afri-can.org/TZ%20talaa.php-* last
accessed on 20th December, 2011.
1125
Ibid.
1126
Ibid.
1127
Maoulidi, S. The Justice System fails People with Developmental Disabilities available at http://www.dailynews
.co.tz/feature/?n=17756&cat=feature last accessed on 22/12/2011.
1128
Ibid.
1123
353
5.5 Conclusion
This chapter has delved on discussing the rights of women, children, people with disabilities and
elderly as examples of vulnerable groups. It has been observed that women and children still
suffer from physical, emotional and sexual abuse. The situation in 2011 has been worse in those
cases than in 2010. The situation has not been improved for women participation in the decision
making as they still hold few leadership and representative positions than men. This chapter
noted some improvements in women economic empowerment in 2011 as more women have
been greatly involved in small scale business activities under WEZA project. The situation is
worse with the aged as they live in unsatisfactory conditions just as in 2010.
354
CHAPTER SIX
HIV/AIDS and Human Rights
6.0 Introduction
HIV is a virus that attacks the body’s immune system. After infection, the body defenses may
continue to work for some time and the person may remain well. But in the majority of cases, the
immune system begins to break down and the person infected becomes prone to minor or major
opportunistic infections from which death may result. AIDS refers to the later stages of HIV
infection. The condition arises from HIV’s attack on one type of white blood cell, the T-cell and
a person generally becomes infected when a significant amount of virus enters the blood stream.
6.1 HIV/AIDS and Human Rights
HIV positive persons and AIDS victims are often subject to violations of human rights.
Examples of those rights are rights related to work, access to health care, right to privacy,
freedom of movement, etc. People living with HIV and AIDS may be easily discriminated
against particularly by society with insufficient knowledge on the rights of those people.
Notwithstanding the fact that millions of people have died due to this medical condition and
many continue to suffer from discrimination, stigma etc., the international community has not
found it necessary to address this problem in form of binding Convention. Recognition of
HIV/AIDs as a problem is just by mere Declarations. This is a clearly discomforting situation.
6.2 Legal Framework on HIV/AIDS in Zanzibar
Zanzibar has no specific legislation dealing with the rights of people living with HIV/AIDS 1129.
However the Constitution of Zanzibar guarantees all Zanzibaris without any discrimination the
rights and freedoms. This includes the right to life, equality of all persons, equality before law,
right to privacy and personal 1130. Detail provision regarding the discrimination is the
Employment Act of 2005 which among other things prohibits discrimination in employment.
The Act prohibits any employer to discriminate directly or indirectly an employee in any
employment policy or practice on any ground including race, gender, colour, religion, social
origin, national extraction, political opinion, marital status, pregnancy, disability, and
HIV/AIDS. 1131
6.3 Institutional Framework
Generally the Ministry of Health and Social Welfare is the organ responsible in Zanzibar for
dealing with matters relating to health, though there is a separate organ which specifically deals
with HIV /AIDS which is The Zanzibar AIDS Commission which is currently under the First
Vice President Office. This Commission is established under Zanzibar Aids Commission Act
1129
Zanzibar National HIV and AIDS Strategic Plan-II 2010-2015, p. 13.
See Part III of Zanzibar Constitution, 1984 (2010 Version).
1131
1130
355
(ZAC), 2002 1132. ZAC managed to develop a national HIV and AIDS policy which provides
stewardship on HIV and AIDS matters in the country. The Policy serves as an important
milestone in the fight against HIV and AIDS. The policy addresses HIV and AIDS in Zanzibar
and incorporates most of the current international policy principles. It lays down the
administrative and the legal framework for all programmes and interventions which are to:
“Prevent new HIV infections in the population, Treat care for and support those who are
infected; and mitigate the impact of HIV and AIDS on the social and economic status of
individuals, families, communities of all those living in Zanzibar, enhance the institutional
capacity/key implementers’ capacity to develop/implement HIV/AIDS interventions with gender
and human rights approaches.
Comparatively, HIV as a priority has been acknowledged and included as a national
developmental issue in the National Strategy for Economic Growth and Poverty Reduction
(MKUZA). Although the earlier versions of the ZPRP considered HIV and AIDS as an issue
under the health sector goals and strategies, and not as a national and cross-cutting
developmental agenda; it has been decided that the next generation of MKUZA will have HIV
and AIDS adequately mainstreamed in all the three clusters. Details of addressing MARPS (Most
at Risk Populations) needs have been outlined in ZSGRP. This change in focus was made
because the Government of Zanzibar recognizes the potential nature and impact of HIV and
AIDS to the national economy and social development as it can lead to the inability of the labour
force to effectively meet the demands of the society in production sectors and social services as
well as family life.
6.4 HIV/AIDS Situation in Zanzibar
The HIV/AIDS epidemic in Zanzibar has spread to affect all districts at unequal pace, levels and
magnitude. It is estimated that by September 2011, there were 5,676 infected patients have
people registered and served through 10 centres providing Anti-retroviral Drugs (ARVs). 1133 Out
of that figure, 2,866 people living with HIV/AIDS were already taking ARVs (1,811 women,
267 children and 788, men) in Unguja and Pemba. 1134 The number is higher than the one given
in December, 2010 which was 4,662. 1135 People have been responding very positively for
voluntary testing, whereby the number of those, who visited the respective centres in 2011, has
reached 68,416 compared to 51,415 in December, 2010. 1136 HIV infection is higher in Unguja
compared to Pemba Island (0.9 percent by 0.1 percent respectively) with an urban rural current
predilection of 0.6 percent by 0.4 percent respectively. In Urban-West and South Regions of
Unguja have relatively high infection compared to other regions in the islands (1%).
HIV infections rise with age increase from 0.5 percent in 15-24 years category to 0.8 percent
amongst those in the age category of 25-34 years and decrease thereafter with increasing age.
Relatively high HIV infection among divorcee women (10%) compared to singles and those who
are married (3.7% by 0.5% respectively). 1137 The current situation of HIV infection remain to be
1132
Act No. 3 of 2002.
Speech of the President of Zanzibar, op.cit p 35.
1134
The Guardian 26th December 2011.
1135
Ibid.
1136
Ibid.
1137
Ibid.
1133
356
0.6% in Zanzibar but there are three groups of youths have been more affected in particular the
drug users using injection have been affected for 16%, the prostitutes 10.8% and gays 12%. 1138
6.5 Violation of the Rights of People living with HIV/AIDS in Zanzibar
There are reports showing violation of the rights of people living with HIV/AIDS in Zanzibar as
elaborated hereunder:
6.5.1 The Increasing Stigmatization
In Zanzibar stigma and discrimination of people living with HIV (PLHIV) from the community
are prevalent 1139. Stigma can manifest itself in a number of ways from loss of employment and
denial of health care to social isolation and lack of family support. People living with HIV can
also be blamed by their families for becoming infected because of the burden that the disease
places on the family1140.The most common form of stigma is gossip. Close to gossip is verbal
insult and sometimes physical assault. In addition to that fact that spouses and partners subject
PLH to psychological pressure, sexual rejection also takes place.
PLH experience exclusion from social and religious activities because of their status. As much as
this exclusion is done by others, this stigma also comes from self. 1141. Stigma can have a major
impact on people living with HIV and those at risk of infection and has been shown to be
“associated with stress, depression, and lower perceived quality of life” among PLHIV. 1142 Key
stigma and discrimination related challenges include negative attitude among health care workers
that hampers accessibility and utilization of existing services. Homophobia and unfriendly
environment at service delivery point affects service utilization (and accessibility) by MARPs.
Internal (self) stigma is still a major challenge to PLHIV as well as MARPs. Discriminative
laws, policies and regulation have a negative bearing on some of the sub-population either to
effectively access services or even if they do access these services are mostly of inadequate
quality1143. The Second Vice President of Zanzibar Ambassador Seif Ali Iddi confirms that
stigma in Zanzibar continues to be a constraint in fighting against HIV 1144. It is also confirmed
by the First Vice President of Zanzibar Maalim Seif Shariff Hamad who criticised stigma against
people living with HIV/AIDS and warned that the act is contrary to human rights. 1145
6.5.2 Right to Privacy
Communities have adopted pre-marital testing and pre-marital testing has been adopted as
among the pre-requisite for marriage eligibility (criteria). The ongoing practice of community
driven pre-marital HIV testing is not voluntary and results are often not confidential. Public
knowledge on the limitation and respect of individual rights end up being infringed. The society
1138
The Speech of Ministry of State, the Office of First Vice President of Zanzibar, Fatma Abdulhabib Ferej during
the Commemoration of AIDS day on 1st December, 2011. See also Tanzania Human Rights Report, 2010, p. 412.
1139
Zanzibar Yetu available at: http://zanzibaryetu.wordpress.com/2010/11/ (accessed on 30 December 2011).
1140
Zanzibar Association of Peoples living with HIV and AIDS (ZAPHA+) (2010), p. 7.
1141
Zanzibar Association of Peoples living with HIV and AIDS (ZAPHA+) (2010), p. 55.
1142
Source: A Comparison of HIV Stigma and Discrimination in five international sites: the influence of care and
treatment resources in high prevalence settings,” Social Science & Medicine (2009), p. 21.
1143
Ibid.
1144
Zanzibar Leo of 2nd December, 2011.
1145
Guardian of 26th December, 2011.
357
enforcement on the pre-marital HIV testing has a negative bearing towards human right as it is
not voluntary neither it is ethically confidential as the in-laws intervention on knowing the bride
or groom Zero-status is against the principles of HIV testing and the HIV policy in totality. 1146 It
is said that behaviour of ‘openly declare’ health status makes life miserable and many people
point fingers against them. 1147
There must be legal and administrative mechanism prohibiting the disclosure of information
relating to the one’s health status except upon one’s consent or legal authorization. Those
medical practitioners and those responsible for conducting tests or providing health services to
victims must comply with ethics requiring non disclosure of information. 1148
6.5.3 Discrimination against People Living with HIV/AIDS
Despite the Constitution and other legislation prohibiting discrimination the rate of
discrimination is very high for PLHIV. The most common areas where PLH experienced
discrimination are related to work and employment. PLHIV lose, change or are denied
employment and promotion because of discrimination and stigma by employers and colleagues.
It is reported that 13% have been denied employment due to HIV status 1149. Many have also lost
sources of income due to their HIV status 1150. This is due to lack of education about society and
urge the society to be aware of the consequences of excluding peoples living with HIV 1151. The
government has decided to educate people by sponsoring a media programme known as 'Mshike
Mshike' to raise awareness among the youth and other vulnerable groups on the dangers of the
problem and promote behavioural change. 1152
6.5.4 Lack of Essential Medicine and Drugs
There is shortage of essential medicine and essential drugs for people living with HIV. This has
been confirmed by First Vice President that people living with HIV/AIDS had been living under
difficult circumstances due to lack of medicine and essential drugs. He noted that HIV/AIDS was
not about physical health alone but also touched on ethics, customs and people's culture and
affected economic and social development. 1153
6.6 Conclusion
This chapter has detailed information on the HIV/AIDS and Human Rights. It has been learned
that people living with HIV deserve right to privacy, access to health and right not to be
discriminated and stigmatized. However, it has been found that people living with HIV/AIDS
still suffer from stigma and discrimination that lead them to lose employment. Their right to
privacy is violated because of pre-marital testing and disclosure of their status by some unethical
medical attendants. This chapter also noted the shortage of essential medicines, a situation that
1146
Ibid.
Zanzibar Aids Commission, issue No. 14 from July-December ,2011, p. 20.
1148
Tanzania Human Right Report 2009, p. 287.
1149
Zapha+ (2010) p 20 and 22.
1150
Zanzibar Aids Commission, issue No 14 from July-December 2011, p. 21.
1151
Ibid.
1152
Guardian, 26th December, 2011.
1153
Ibid.
1147
358
deprives them access to health. The chapter recommends that the government expedite the
process of enacting comprehensive legislation on HIV/AIDS.
359
CHAPTER SEVEN
SMZ Special Departments and Human Rights
7.0 Introduction
The Constitution of Zanzibar under section 121 provides for the establishment of special
departments whose functions are specified by their specific laws. The Special Departments
established under that article are; Jeshi la Kujenga Uchumi - JKU (Economic Building
Brigade) 1154, Kikosi Maalum cha Kuzuia Magendo – KMKM (Special Force for Prevention of
Smuggling) 1155 and Chuo cha Mafunzo (Educational Centre for Offenders). 1156 The President of
Zanzibar is empowered under Article 121 (3) of the Constitution of Zanzibar to establish any
other departments to be known as special departments. Invoking that provision, other Special
Departments have been established under the Constitution. These are; the Kikosi cha Zima MotoKZU (Fire Brigade) 1157 and Kikosi cha Valantia -KVZ (Volunteers). 1158 Generally, apart from
their specific functions as provided by their respective laws, these Special Departments in
collaboration with police and defence forces are required to maintain peace and security in the
isles. This Chapter will indulge on discussing Special Departments in relation to the human
rights aspect in Zanzibar. The chapter will also contain a discussion on the legality of Special
Departments especially in the context of the Union between Tanganyika and Zanzibar.
7.1 SMZ Special Departments and Human Rights
For many years, Special Departments were accused of being directly involved in political
activities particularly during elections which is contrary to Constitution. 1159 Their involvement in
politics destroyed their image and frequently they were considered the ruling party agents. Over
time, they were associated with acts of human rights violation. 1160 This part will examine the
establishment and duties of each Special Department especially in the human rights context.
a) Kikosi Maalum cha Kuzuia Magendo (KMKM) (Anti-Smuggling Unit)
This is a coast unit of the Government of Zanzibar and according to Marrku (2011) a special
force. This unit has the legal right to own and use various weapons and armament required to
carry out its functions. 1161 History suggests that this unit has been in existence since the colonial
period in Zanzibar. The Naval Volunteer Decree Cap 52 of 1939 gave power to the British
Resident to raise and maintain a force of volunteers for the Naval Defence of Zanzibar within its
1154
Regulated under Act No. 6 of 2003.
Regulated under Act No. 1 of 2003.
1156
Act No. 1 of 1980.
1157
Established under Act No. 7 of 1999.
1158
Established under Act No. 5 of 2004.
1159
Section 121 (4) of the Constitution of Zanzibar, 1984 prohibits members of Special Departments to be involved
in political to vote except exercising right to vote in electi

Tanzania Human Rights Report 2011

Transcription

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