Zanzibar Human Rights Report 2015
TransformIfanye Justicehaki
IweInto shaukuPassion Zanzibar Legal Services Centre
i Funded by:
Embassy of Sweden, Embassy of Finland The Embassy of Norway, Ford Foundation, and Open Society Initiatives for Eastern Africa,
Publisher
Zanzibar Legal Services Centre P.O.Box 3360,Zanzibar Tanzania Tel:+25524 2452936 Fax:+255 24 2334495 E-mail: [email protected] Website:www.zlsc.or.tz
ZLSC May 2016
ii ZANZIBAR HUMAN RIGHTS REPORT 2015
Editorial Board
Prof. Chris Maina Peter Mrs. Josefrieda Pereira Ms. Salma Haji Saadat Mr. Daudi Othman Kondo Ms. Harusi Miraji Mpatani
Writers
Dr. Moh’d Makame Mr. Mzee Mustafa
Zanzibar Legal Services Centre @ ZLSC 2015
i ACKNOWLEDGEMENTS
Zanzibar Legal Services Centre is indebted to a number of individuals for the support and cooperation during collection, compilation and writing of the 10th Human Rights Report (Zanzibar Chapter). The contribution received makes this report a worthy and authoritative document in academic institutions, judiciary, government ministries and other departments, legislature and educative material to general public at large. The preparation involved several stages and in every stage different stakeholders were involved. The ZLSC appreciate the readiness and eager motive to fill in human rights opinion survey questionnaires. The information received was quite useful in grasping grassroots information relevant to this report.
ZLSC extend their gratitude to it’s all Programme officers especially Adv. Thabit Abdulla Juma and Adv. Saida Amour Abdallah who worked hard on completion of this report. Further positive criticism and collections made by editorial board of the report are highly appreciated and valued. Without their value contributions this report would have jeopardised its quality and relevance to the general public.
Various sources have been used in preparing this report like government and non-governmental reports, paralegals reports, Laws International and National, Policies and judiciary decisions.
The report as well owes copiously to civil societies both local and international, media and independent researchers for their works used. It would not be possible for ZLSC to use their own information as no institution has expertise in all fields. Therefore expertise and speciality information received with or without permission from the authors have been very fundamental in enriching this report.
ZLSC acknowledge the contribution of its supporting staff, administrators and volunteers for their diligent job in ensuring that this report is timely produced. Their kind moral and technical support by supplying activity reports is fundamental towards completion of this work.
ZLSC would like to recognise contribution made by Embassy of Sweden, Embassy of Finland The Embassy of Norway, Ford Foundation, and Open Society Initiatives for Eastern Africa, Legal Services Facility, Save the Children International, UNICEF and UHAKIKI Project.
ii CONTENTS
ACKNOWLEDGEMENTS ii CONTENTS iii LIST OF ABBREVIATIONS ix LIST OF CASES xii LIST OF LEGISLATION xiii LIST OF INTERNATIONAL LEGAL INSTRUMENTS xiv PREFACE xv Vision xv Mission xv Core Objectives xv
CHAPTER ONE 1 General overview of Zanzibar 1 1.0 Introduction 1 1.1 History 4 1.2 Geography 7 1.3 People 11 1.4 The Economy 13 1.4.1 Fumba Town Development 21 1.4.2 Mapinduzi Memorial Tower 22 1.4.3 Development of the Airways Services in Zanzibar 23 1.4.4 Launching of the MV-Mapinduzi II 23 1.5 Political System 24 1.6 Judiciary 28 1.7 Historical Background of Human Rights in Zanzibar 31 1.8 Conclusion 32
CHAPTER TWO 34 Civil Rights and Liberties 34 2.0 Introduction 34 2.1 Right to Life 35 2.1.1 Road Accidents 37 2.1.2 Marine Accidents Cases 41 2.1.3 Murder 42 2.1.4 Suicide 42 2.1.5 Mob Violence 43 2.1.6 Death Penalty 46 2.1.7 Extrajudicial Killings 52 2.2 Freedom from Torture 53 2.2.1 Street Tortures 55 2.2.2 UAMSHO and Terrorism 56 2.3 Equality before the Law-Equal Access to Justice for All 58
iii 2.4. Proximity, Availability and Infrastructure of Courts 59 2.4.1 Infrastructure of Courts 60 2.4.1.1 Human Resources 61 2.4.1.2 Paralegals 61 2.4.2 Legal Aid 62 2.5 Legal Representation 64 2.5.1 Delay of Cases 56 2.5.2 Independence and Impartiality of Judiciary 70 2.6 The Right to Freedom of Thought, Conscience and Religion 71 2.7 Freedom of Expression 73 2.7.1 Abuse of Freedom of Expression 77 2.8 Conclusion 80
CHAPTER THREE 81 Political Rights 81 3.0 Introduction 81 3.1 Right to Participate in Governance 82 3.2 Right to Participate in Governance in Zanzibar 84 3.2.1 Right to Vote 85 3.2.2 The October 2015 General Election 86 3.2.2.1Voter’s Registration 87 3.2.2.2Update of the Voters’ Registry 91 3.2.2.3Campaign Period 92 3.2.2.4October 25th – Election Day 94 3.2.2.5Annulment of Zanzibar Election and Its Consequence 95 3.2.2.6Bomb Explosions in Town Areas 97 3.2.3 Conclusions and Recommendations 99 3.2.3.1Recommendations 102 3.3 Freedom of Association and Assembly 102 3.4 Freedom of Association in Trade Union 104 3.5 Conclusion 107
CHAPTER FOUR 108 Social Rights 108 4.0 Introduction 108 4.1 Right to Education 108 4.1.1 Zanzibar Education Policy 108 4.1.2 General Achievements of Education Sector from 2010 to 2015 109 4.1.3 Challenges Facing Education Sector 109 4.1.3.1Budgetary Allocation 109 4.1.3.2Registration of Nursery Schools 110 4.1.3.3Registration of Primary and Secondary Schools 111 4.1.3.4Alternative Education 112 4.1.3.5Overcrowding Classes 112
iv 4.1.3.6 Shortage of Secondary School Science Teachers 113 4.1.3.7 No Cost Contribution in Education 114 4.1.3.8 Unwanted Pregnancies and Early Marriages 115 4.1.3.9 Teacher’s Problems 115 4.1.3.10 Lack of Facilities in Schools 116 4.1.3.11 Shortage of Qualified Lecturers in Higher Learning Institutions 117 4.1.3.12 Insufficient Budget for Higher Education Fund 118 4.2 Right to Health 119 4.2.1 Improvement of Health Services in Zanzibar 120 4.2.2 Challenges Facing Health Sector 121 4.2.2.1Private Sector 122 4.2.2.2 Availability of Drugs 122 4.2.2.3 Availability of Doctors 122 4.3 HIV/AIDS and Human Rights 123 4.3.1 HIV/ AIDS Legal Framework 124 4.3.2 Institutional Framework 124 4.3.3 HIV/AIDS Situation in Zanzibar 124 4.3.4 Violation of the Rights of People living with HIV/AIDS in Zanzibar 125 4.3.4.1 The Stigmatization and Discrimination against People Living with HIV/AIDS 125 4.3.4.2 Right to Privacy 126 4.3.4.3 Lack of Essential Medicine and Drugs 126 4.3.4.4 Narcotic Drugs/ HIV/AIDs and Related Challenges 126 4.4 Right to Clean Water 127 4.4.1 Current Situation of Provision of Right to Water 129 4.4.2 Challenges Facing Water Supply 130 4.5 The Youth and Society 131 4.6 Conclusion 132
CHAPTER FIVE 133 Economic and Cultural Rights 133 5.0 Introduction 133 5.1 Right to Property 135 5.1.1 Right to Acquire and Own Immovable Property 138 5.1.2 Limitation to the Right of Property 141 5.1.3 Poor Regulation of Prices 141 5.2 Challenges related to Property Ownership 142 5.2.1 Destruction of Property 143 5.2.2 Distribution of Property after Marriage 144 5.2.3 Change of Ownership after Transfer 144 5.3 Right to Work 144 5.3.1 State of Employment of Zanzibar 145 5.3.2 Salaries and Incentives Packages 146 5.3.3 Shortage of Employment Opportunities 147 5.3.4 Poor System of Social Protection 149
v 5.3.5 The Handling of Labour Disputes 151 5.4 Cultural Rights 151 5.4.1 Stone Town As World Cultural Heritage 155 5.4.2 Zanzibar Doors 156 5.4.3 Traditional Healing and Medicine 159 5.4.3.1Traditional Medicine from Zanzibar Herbalist 160 5.4.3.2Traditional Healing (Uganga wa Kienyeji) 161 5.5 Preservation of Cultural Heritage 163 5.6 Conclusion 166
CHAPTER SIX 167 The Rights of Vulnerable Groups 167 6.0 Introduction 167 6.1 Women Rights 168 6.1.1 Legal Framework for Women Protection in Zanzibar 168 6.1.2 Institutional Framework for Protecting Women 168 6.1.3 Gender Based Violence 169 6.1.3.1Current Situation on GBV in Zanzibar 170 6.1.3.2Prosecution of Sexual Violence Cases 171 6.1.4 Domestic Violence 172 6.1.4.1Legal Framework in Combating Domestic Violence in Zanzibar 172 6.1.4.2Prosecution of Domestic Violence Cases 172 6.1.5 Specific Problems of Girl Child 172 6.1.6 Women Participation in Decision Making 173 6.2 Children Rights 174 6.2.1 Legal Framework 174 6.2.2 Institutional Framework 175 6.2.3 Right to Life 176 6.2.3.1Children Homes 177 6.2.3.2Children an d Religious Institution (Madrassa) 177 6.2.4 Right to Grow and Develop 177 6.2.4.1Right to Education for the Child 178 6.2.4.2Right to Play 178 6.2.4.3Violence against Children 179 6.2.4.4Current Situation on Child Abuse 179 6.2.5 Child Labour 180 6.2.6 Maintenance of Children 180 6.3 Children in Conflict with the Law 181 6.4 Rights of the Elderly 181 6.5 Rights of Persons with Disabilities 182 6.5.1 Legal Framework 183 6.5.2 Institutional Framework 184 6.5.3 Challenging Facing People with Disabilities 185 6.6 Conclusion 186
vi CHAPTER SEVEN 187 Collective Rights 187 7.0 Introduction 187 7.1 Right to Development 189 7.2 Rights to the Environment and Sustainable Development 190 7.3 Improving Transportation 191 7.4 Right to Clean Environment in Zanzibar 192 7.4.1 Noise Pollution 194 7.5 Right to Peace and Security 195 7.5.1 Stone Town Security 197 7.6 Conclusion 201
CHAPTER EIGHT 202 SMZ Special Departments and Human Rights 202 8.0 Introduction 202 8.1 SMZ Special Departments and Human Rights 202 8.2 KMKM (Special Force for Prevention of Smuggling) 203 8.3 Offenders Educational Centres (Prison Centres) 203 8.4 The Jeshi la Kujenga Uchumi (JKU) (Economic Building Brigade) 203 8.5 Kikosi cha Zimamoto na Uokozi - KZU - (Fire and Rescue Services) 204 8.6 Conclusion 204
CHAPTER NINE 205 Corruption, Abuse of Power and Human Rights 205 9.0 Introduction 205 9.1 Meaning of Corruption 205 9.2 International Instruments in Combating Corruption 206 9.3 Corruption and Human Rights 207 9.3.1 Corruption in Politics 208 9.4 Laws Combating Corruption in Zanzibar 208 9.5 Institutional Framework 208 9.6 Current Situation on Corruption in Zanzibar 208 9.6.1 Corruption and Politics 209 9.6.2 Corruption in Sports 209 9.6.3 Corruption in the Administration of Justice 209 9.6.4 Abuse of Government Money and Embezzlement 209 9.6.5 Abuse of Power 210 9.7 Conclusion 210
CHAPTER TEN 211 Domestic Initiative in Human Rights Protection 211 10.0 Introduction 211 10.1 Incorporation of Bill of Rights in the Constitution of Zanzibar, 1984 211 10.2 The Commission for Human Rights and Good Governance 212
vii 10.2.1Independence of the Commission 213 10.2.2Performance of the Commission 214 10.3 Law Review Commission of Zanzibar 214 10.4 The Office of the Director of Public Prosecution 215 10.5 Police Force and Human Rights in Zanzibar 216 10.6 Zanzibar Human Rights Guidelines (Muongozo wa Haki za Binadamu Zanzibar) 217 10.7 Human Rights Day 217 10.8 Conclusion 219 SELECTED BIBLIOGRAPHY 220 ARTICLES AND CHAPTERS 221 REPORTS 222 SPEECHES 222 WEBSITES 222
viii LIST OF ABBREVIATIONS
AAKIA Abeid Amani Karume International Airport AAPAM African Association of Public Administration and Management AC Appeal Cases ACHPR African Charter on Human and Peoples’ Rights (ACHPR) ADB Africa Development Bank ADR Alternative Dispute Resolution AG Attorney General AIR All India Law Report ASP Afro Shirazi Party ASP Afro-Shirazi Party BADEA Arab Bank for Economic Development in Africa CAG Controller and Auditor General CCM Chama Cha Mapinduzi CHADEMA Chama Cha Demokrasia na Maendeleo CHRAGG Commission for Human Rights and Good Governance CJ Chief Justice CUF Civic United Front DNA Deoxyribo Nucleic Acid DPP Director of Public Prosecutions ERP Economic Recovery Programs FAWE Forum for African Women Educationalists GBS General Budget Support GBV Gender Based Violence GDP Gross Domestic Product GDP Gross Domestic Product GNU Government of National Unity GSO Government Security Office HC High Court HCD High Court Digest HCZ High Court of Zanzibar ICCPR International Covenant on Civil and Political Rights ICE Institute of Continuing Education ICSEC International Covenant on Social Economic and Cultural Rights IFMS Integrated Financial Management System IPU World Future Council, the Inter-Parliamentary Union ITUC International Trade Union Confederation JSC Judicial Service Commission JUMIKI Jumuiya ya Uamsho na Mihadhara ya Kiislamu LEGCO Legislative Council LRC Law Review Commission LRCZ Law Review Commission of Zanzibar LRT Law Report of Tanzania
ix MACEMP Marine and Coastal Environment Management Project MCT Media Council of Tanzania MDG Millennium Developments Goals MKUZA Mkakati wa Kukuza Uchumi na Kupunguza Umaskini Zanzibar MoEVT Ministry of Education and Vocational Trainings MV Marine Vessel NGO Non-Governmental Organization NIDA National Identity Card Authority OAU Organization of African Union OUT Open University of Tanzania PVR Permanent Voters Register SACCOS Saving and Credits Cooperatives Societies SAP Structural Adjustment Program SC Supreme Court SEP Structural Economic Programme SMOLE Sustainable Management of Land and Environment SMZ Serikali ya Mapinduzi Zanzibar TAMWA Tanzania Media Women Association TANU Tanganyika African National Union TEMCO Tanzania Election Monitoring Committee TLR Tanzania Law Report TMA Tanzania Meteorology Agency TPDF Tanzania People Defence Force TWA Trans World Aviation UDHR Universal Declaration of Human Rights UN United Nations UNESCO The United Nations Educational, Scientific and Cultural Organization is a specialized agency of the United Nations UP Umma Party ZAA Zanzibar Airports Authority ZABEIPO Zanzibar Strategy for Growth and Reduction of Poverty Zanzibar Education Implementation Project ZACPO Zanzibar Clove Producers Organization ZAECA Zanzibar Anti-Corruption and Economic Crimes Authority ZAFELA Zanzibar Female Lawyers Association ZANGOC The Zanzibar NGO Cluster for HIV and AIDS Prevention and Control ZAN-ID Zanzibar Identity Card ZAPDD Zanzibar Association of People with Development Disabilities ZAT Zanzibar Aviation Services & Travel Limited ZATU Zanzibar Association of Teachers Union ZATUC Zanzibar Association of Trade Union Confederation ZAWA Zanzibar Water Authority ZBC Zanzibar Business Council ZBC Zanzibar Broadcasting Corporation
x ZCT Zanzibar Commission for Tourism ZEC Zanzibar Electoral Commission ZIFF Zanzibar International Film Festival ZIPA Zanzibar Investment Promotion Authority ZLR Zanzibar Law Report ZLS Zanzibar Law Society ZLSC Zanzibar Legal Services Centre ZNP Zanzibar Nationalist Party ZPPP Zanzibar and Pemba People’s Party ZSSF Zanzibar Social Security Fund
xi LIST OF CASES
Dietrich v. The Queen [1992] High Court of Australia. DPP v. Kinganyiti & Others [2012] No. 01 HCZ (Unreported). Fontevecchia y D`Amico v. Argentina, Merits, Reparations and Costs. Judgment of November 29, 2011. Series C No. 238. Francis Carolie Mullin v. Administrator Union Territory of Delhi [1981] 3 SCC. Handyside v. the United Kingdom, no. 5493/72, 7 December 1976. John Swake v. DPP and 2 Others, High Court of Nairobi [2013] EKLR. Mabere Marando andEdwin Mtei v. Attorney General, High Court of Tanzania Civil Case No 168 of 1993 (Unreported). Mbushuu and Dominick Mnyaroje and Kalai Sangula v. Republic, Court of Appeal of Tanzania (Dar es Salaam) Appeal No. 142 of 1994 Reported in [1995] 1 LRC 216. Merafong Demarcation Forum and Others v. President of Republic of South Africa and Others [2008] ZACC 10. Minister of Justice v. Hofineyer [1993] 3 SA 131 (AD). Njoroge Macharia v. Republic, High Court of Nairobi [2011] EKLR. R v. Sussex Justices ex parte McCarthy [1924] 1 KB 256. Raymond v. Honey [1982] 1 All ER 756. Shah v. Attorney-General [1970] 543, the High Court of Uganda.
xii LIST OF LEGISLATION
Children’s Act No 6 of 2011. Constitution of the United Republic of Tanzania, 1977. Constitution of Zanzibar, 1984. Criminal Procedure Act No. 7 of 2004. Elections Act, No. 1, 1985. Employment Act No. 11 of 2005. High Court Act No. 2 of 1985. Kadhis Court Act No. 3, 1985. Labour Relations Act No. 1 of 2005. Land Tenure Act No. 12 of 1992. Local Administration Act No. 8 of 2014. Magistrate Court Act No. 6, 1985. Mufti Act No. 9 of 2001. Penal Act No. 6 of 2006. Persons with Disabilities Right and Privileges Act No. 9 of 2006. Promotion of Tourism Act No 9 of 1996. Regional Administration Authority Act No.1 of 1998. Road Transport Act, Act No. 7 of 2003. United Republic Declaration of Name, Act No. 61 of 1964. Zanzibar Commercial Court (High Court Division Act) No. 9 of 2013. Zanzibar HIV and AIDS Prevention and Management Act No. of 2013. Zanzibar Tourism Act No. 6 of 2009. Zanzibar Water Authority Act No. 4 of 2006.
xiii LIST OF INTERNATIONAL LEGAL INSTRUMENTS
African Charter on Human and Peoples Rights, 1981 International Covenant on Civil and Political Rights, 1966 International Covenant on Economic, Social and Cultural Rights, 1966 Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty in all Circumstances, 2002 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, 1983 Protocol to the American Convention on Human Rights to Abolish the Death Penalty, 1990 Second Optional Protocol to the International Covenant on Civil and Political Rights, 1987 Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, 1989 UN Declaration on the Elimination of Violence against Women (CEDAW), proclaimed by the UN General Assembly in its resolution 48/104 of 20th December, 1993 Universal Declaration of Human Rights, 1948
xiv PREFACE The Zanzibar Legal Services Centre (ZLSC) was established in 1992 as a non-governmental, voluntary, independent and non-profit making organisation. During the 23 years of its existence, the Centre has grown from strength to strength, working tirelessly to achieve all its major aims and objectives in keeping with the vision and mission of the Centre. Its major aim is to provide legal services to the poor, women, and children, the disabled, marginalised and other disadvantaged sections of the Zanzibari society. The Centre also aims to popularise knowledge on the law and to produce publications in all areas of legal concern to the people of Zanzibar. In order to achieve these aims, the Centre strives to ensure that all the people of Zanzibar have a basic understanding of legal and human rights principles and can act on them in order to build a society based on rule of law, good governance and the observance of human rights norms. The Centre is a Body Corporate and thus has right and capacity to sue and be sued in its own name and own both moveable and immoveable property. It also has its own Official Seal and Emblem. Vision Rights and Access to Justice for all Mission Zanzibar Legal Services Centre is a Non-partisan, Non-profit Organization dedicated to raising people’s awareness, promoting human rights and good governance. Core Objectives The Centre primarily provides legal aid in the form of counselling and advice to the poor and those who cannot afford to hire lawyers to handle their legal matters. Those in need of legal aid visit the offices of the Centre in both Unguja and Pemba. In addition, some of the staff of the Centre who are admitted into the Roll as Advocates provide legal representation in the courts of law for deserving cases which have satisfied the Centre’s criteria for taking legal matters to court. All the legal aid provided by the Centre – be it purely advisory or litigation, is provided free of charge. The Centre is also actively engaged in the provision of legal education to the public in order to raise people’s awareness on their basic rights and civic responsibilities. As will be elaborated in this report, this is done through various means including seminars, workshops, round-table meetings, and the media mainly through television and radio programmes. The Centre prides itself on the legal research it undertakes through conducting, co-ordinating and commissioning research on legal issues. The results of the research undertaken is disseminated through meetings of all forms in which scholars, politicians and people from all walks of life meet to converse and exchange views. Some of the completed results have been both attractive and appealing to the government thus helping to shape policies and laws on various issues including the issue of the rights of the child in Zanzibar.
The most notable research undertaken by ZLSC is Annual Human Rights Report since 2006.
Prof. Chris Peter Maina Chairperson ZLSC
xv CHAPTER ONE General overview of Zanzibar
1.0 Introduction The name Zanzibar depicts its historic origin. This name is believed to have been derived from Arabic word ‘Zanjibar’ or from the Persian word ‘Zangibar’ which means ‘coast of the blacks.’ The capital of Zanzibar, which is located in the island of Unguja, is known as Stone Town. This historic centre is one of the World Heritage sites. It can lay claim to being the only functioning ancient town in East Africa. The year 2015 was another very important year in the Zanzibar history to assess its development in various sectors including the status of democracy and the promotion of the human rights. It is a year that marks the beginning of the second half of the century from the revolution of 12th January, 1964. To sustain 50 years of its political determination, Zanzibar has encountered various challenges. A lot has been achieved in the context of the development in social, political, legal and economic aspects.1 On 10th December 1963, Zanzibar received its independence from the United Kingdom as a constitutional monarchy under Sultan Jamshid bin Abdullah who was later overthrown during the Zanzibar Revolution of 12th January, 1964. Abeid Amani Karume (4th August 1905 – 7th April 1972), become the first a socialist leader who led Zanzibar after the Sultan’s rule.
Before the Zanzibar Revolution, Zanzibar experienced competitive political parties in the region. In the late 1920’s up to the early 1950’s several racially based associations such as the African Association, the Shirazi Association, the Arab Association and the Comorian Association emerged. These associations were formed basically for communal purposes. In the second half of the 1950’s these associations were superseded by political parties such as the Zanzibar Nationalist Party (ZNP), the Afro-Shirazi Party (ASP) which in 1959 split, with the splinter group forming the Zanzibar and Pemba People’s Party (ZPPP). In like manner, the ZNP also split later on with the splinter group forming the Umma Party (UP). The ZNP was mainly supported by the Arabs and Africans of Zanzibar origin. ZNP did not go unchallenged as the ASP which was a merger of African Association whose supporters were mainly Africans of Mainland origin (Tanganyika) and the Shiraz Association comprised mainly of the indigenous Africa population and some major groups was also founded.
The first election was held in 1957. The suffrage was very restricted. To qualify to be avoter one had to be male 25years or above in age and had to have property. This election was to elect six members of the Legislative Council (LEGCO) where ASP won five seats and the remaining seats were taken by the Muslim Association. In the second election which was held in 1961,three political parties participated namely, ASP, ZNP and ZPPP. ASP got 10 seats, ZNP got 9 and 3 went
1There is abundant literature on history of Zanzibar but the principal works consulted in the preparation of this section is Michael F. Lofchie, (1965), Zanzibar Background To Revolution, Princeton, New Jersey: Princeton University Press, and Esmond B. Martin, (1978), Zanzibar Traditions and Revolution, London: Hamish Hamilton.
1 to ZPPP. In ZPPP there was strife with some members wanting to affiliate with ZNP while others wanting to support ASP. Finally two of those elected from ZPPP joined hands with ZNP and one with ASP. This resulted in a situation where ZNP and ASP had an equal number of seats and as a result neither of them had the majority to form a government alone. This election indicated that Zanzibar was marching towards independence with major racial divisions, which did not augur well for the future.2 A major constitutional conference to discuss the Zanzibar’s independence was held at Lancaster House in London and elections fixed for July 1963 saw the return to power of an Arab coalition government formed from the ZNP and ZPPP parties. The discontentment by the ASP manifested itself in the 1964 Revolution that followed shortly after that and marked another chapter in the history of Zanzibar.
From the 1964 revolution until the mid-1980s, Zanzibar, like Tanzania was a one-party state, with a socialist model of economic development. Beginning mid-1980s, under the administration of President Ali Hassan Mwinyi, the second generation of the political parties in Zanzibar took place in January and February 1992, after a number of political and economic reforms. The government decided to adopt multiparty democracy. Legal and constitutional changes led to the registration of 11 political parties. Two parliamentary by-elections in early 1994, both won by Chama Cha Mapinduzi (CCM), were the first-ever multiparty elections in Tanzanian history.3
In October 2000, Tanzania held its second multi-party general elections. The ruling CCM party’s candidate, Benjamin W. Mkapa, defeated his three main rivals, winning the presidential election with 71% of the votes. In the parliamentary elections, CCM won 202 of the 232 elected seats. In the Zanzibar presidential election, Abeid Amani Karume, the son of former President Abeid Karume, defeated the CUF candidate, Seif Sharif Hamad.
The third Presidential and parliamentary election of Tanzania was held on 14th December 2005. Originally scheduled for 30th October, the elections were postponed due to the death of a vice- presidential candidate. These elections were significant in that the incumbent President Benjamin Mkapa, who had served two consecutive terms, stepped down in accordance with the constitution and Jakaya Kikwete from CCM took over with 80.23% of the total votes. Elections for the Presidency of Zanzibar and its House of Representatives took place on 30th October, as scheduled. President Karume of CCM won again with 53.18% of the total votes.
In 2010, the fourth general elections under the multiparty system, was held in Zanzibar on 31st October 2010. Dr. Ali Mohamed Shein of the CCM won the presidential election with 50.11% of the votes. CCM also won the majority of seats in the House of Representatives. The Union presidential elections was won by the incumbent President Jakaya Kikwete of the Chama Cha Mapinduzi party (CCM), who received 63% of the votes. The parliamentary elections resulted in
2Tanzanian Criminal Court System. Association of Commonwealth Criminal Lawyers, www.acclawyers.org/resouces/ tanzania, last accesses 29th December, 2010. 3Kwahani Constituency.
2 a victory for the CCM, which won 186 of the 239 elected seats. In this year Tanzania was ranked Partly Free by Freedom House. 4
The 2015 general election was the fifth quinquennial elections to be held since the resumption of the multi-party system in 1992. Voters elected the President, Members of Parliament, and local government councillors.5 In accordance with convention, the election was held on the last Sunday of October which was 25th October, 2015. It was supervised by the National Electoral Commission (NEC), for the union elections and the Zanzibar Electoral Commission (ZEC), for Zanzibar elections. In Tanzania, the Minister of Works, John Magufuli was selected as the presidential nominee for the country’s ruling party, the Chama Cha Mapinduzi (CCM) instead of the former Prime Minister Edward Lowassa. After failing to secure the ruling party’s nomination, Lowassa defected to the opposition CHADEMA party despite it once labelling him as “one of the most corrupt figures in Tanzanian society.”6
This year’s election was seen as the most competitive and unpredictable in the nation’s history. The government had warned politicians to refrain from engaging in witchcraft, and a deputy minister told parliament that reports linking politicians with the killings of people with albinism could be true as there was an increase of such cases during the election period.7 A ban on witch doctors was imposed in January 2015, as some of them condone the killings due to superstitious beliefs that the victims’ body parts possess powers that bring luck and prosperity.8 On 29th October, CCM’s John Magufuli was declared the winner ahead of Chadema’s Edward Lowassa, who has yet to concede amid a dispute.
Meanwhile in Zanzibar, on 28th October, 2015 ZEC Chairman, Mr Jecha S. Jecha, was reported to have said that election was not fair and that there were serious violations of the election law. According to a statement, which was later sent to various media institutions, it was announced that the whole election was annulled. The re-run of the elections would be announced at a later date. Until the end of the year 2015 ZEC had not yet announced the date for the re-run of the elections.
4Freedom in the World 2010: Tanzania”. Freedom House. 2010. Archived from the original on 16 August 2012. The 2011 Democracy Index marked Tanzania as a “hybrid regime”, ranking it 90th out of 167, an improvement from 92nd the year before 5Laing, Aislinn (7 April 2015). “Tanzania’s president Jakaya Kikwete says: I can’t wait to step down.” The Daily Telegraph (Johannesburg). Retrieved 18 April 2015 6Mohammed, Omar (30 July 2015). “Tanzania’s ex-PM is running for president with the party that once called him corrupt”. Quartz. Retrieved 17 August 2015. 7Makoye, Kizito (1 June 2015). “Tanzanian politicians warned off witch craft ahead of election”. Reuters. Retrieved 10 July 2015. 8Smith, David (14 January 2015). “Tanzania bans witchdoctors in attempt to end albino killings.” The Guardian (UK). Retrieved 10 July 2015.
3 1.1 History Zanzibar has been home to humans since the beginning of the later Stone Age, a notion supported by numerous bodies of evidence including ancient scriptures. It is believed that the Greco-Roman text, the Periplus of the Erythraean Sea, written between the 1st and 3rd centuries BC, mentioned the island of Menuthias which is probably Unguja.9 The first settlements of Zanzibar are believed to have been established by immigrants from numerous sections of the African Mainland.10 Autonomous African communities have existed in Zanzibar since ancient times. Nevertheless the geographical and strategic location of Zanzibar attracted visitors from many foreign nations, some of whom established their political bases in Zanzibar. Henceforth, the historical print of Zanzibar draws mainly from African settlers, Persians traders and invasion by foreign nations. Persians and Arabs are said to be the first foreigners who settled in Zanzibar prior to the coming of Sultan of Oman. There are of course significant interactions from other countries. These interactions are thought to have derived from the responses of indigenous African development parallel with imported notions from other parts of Africa, the Middle East, especially from Oman and Yemen in Arabia and from Shiraz in Persia.11
During the 16th Century, the first foreign visitors arriving from the south to Zanzibar were the Portuguese. The Portuguese were the first European power to gain control of Zanzibar from 1503 to 1698.12 They established friendly relations with the ruler and introduced Christianity in the Isles.13
9Zanzibar, the Island Metropolls of Eastern Africa, Francis Barrow Pearce, OMG, E P Dutton and Company, New York City, 1920. 10There is abundant literature on history of Zanzibar but the principal works consulted in the preparation of this section is Michael F. Lofchie, Zanzibar Background To Revolution, Princeton, New Jersey: Princeton University Press, 1965, Esmond B. Martin, Zanzibar Traditions and Revolution, London: Hamish Hamilton, 1978 and History of the World, History of Zanzibar,
4 However in the late 17th Century the Christian presence came to an end, after a forceful campaign down the coast by the Muslims of Oman. The Portuguese colonial powers were defeated by the Omani Arabs.14
Whilst Persians, principally Shirazi began to land in Zanzibar from about 10th Century, their impact was restricted only to social aspects. This social impact was so great that the evidence is seen even today. For instance, the vast majority of Zanzibar’s indigenous African population call themselves “Shirazi” as a social identity with the Persians. In contrast, a long political relation was established by Arabs from Oman. In 1690 Saif bin Sultan, the Imam of Oman, pressed down on the East African coast. Though Saif faced a major obstacle at Fort Jesus which housed the garrison of a Portuguese settlement at Mombasa, after a two-year siege, it fell to him in 1698. Zanzibar then became an increasingly important part of the Omani empire due to its value as the main slave market of the East African coast. It was the slave trade which was originally responsible for generating the increased economic interest of the Omanis in the Swahili Coast.15 After his succession from al- Mazrui, Seyyid Said bin Sultan (al-Busaid) began to reassert his authority in East Africa. In 1822 he took Pemba and captured Mombasa in 1827. Despite strong opposition from the local Arab clans of Zanzibar, Seyyid Said in 1830 exercised nominal sovereignty over a number of towns. By 1832, Seyyid Said decided to shift his capital to Zanzibar.16 From this point in time Zanzibar and Oman were both under the rule of Seyyid Said, but the link with Oman was broken after his death in 1856. Zanzibar remained an independent Arab state for sixty years until Great Britain, extending its own empire in East Africa, made Zanzibar its Protectorate.
Britain showed her interest in having links with Zanzibar especially in trade and officially signed extraterritorial jurisdiction treaties namely the Treaty of 1822, 1839 and 1886 under which, the Sultan agreed to the appointment of a British Agent in Zanzibar and to exercise by him, certain rights of jurisdiction over English subjects engaged in trade, and in ships flying the Sultan’s flag outside Sultan’s dominion. The British were increasingly involved in this prosperous offshore Island. After the abrupt redistribution of the Sultan’s inland territories, Britain remained the only colonial power with a well-established political presence in Zanzibar itself. This was brought by the Heligoland–Zanzibar Treaty (German: Helgoland-Sansibar-Vertrag; also known as the Anglo- German Agreement of 1890) which was an agreement signed on 1st July 1890 between Germany and Great Britain. Germany gained the small but strategic island of Heligoland, which its new navy needed for the control of the new Kiel Canal and approaches to Germany’s North Sea ports.
14 By the early eighteenth Century the Omani Yorubi dynasty had, with the encouragement of East Africa’s Shirazi and Swahili coastal rulers displaced the Portuguese. According to Middleton J. and Campbell J., Zanzibar, Its Society and its Polities, Oxford University Press, 1965,page 3 – 4, the local rulers sought help from Sultan Seyyid Said bin Sultan who managed to chase away Portuguese from Zanzibar. 15Nicholls C.S., The Swahili Coast Politics, Diplomacy and Trade on the East African Littoral, 1798 – 1856, London: Allen & Unwin, 1971, page 217. 16In 1745 the Busaidi dynasty replaced the Yorubi as the effective rulers of Oman. The sultan overthrew the Mazrui and decided to defeat and capture Mazrui held Mombasa and then relocated his court to Zanzibar. See Middleton and Campbell, supra note 14on page 42, at pp. 3 – 4.
5 In exchange, Germany gave up its rights in the Zanzibar region in Africa, allowing Zanzibar to provide a key link in the British control of East Africa.17 With the approval of the Sultan, the island and its narrow coastal regions were declared a British protectorate in 1890. However their rule came to an end after the Island got its independence in 1963.
On 10th December, 1963 Zanzibar gained full independence and became a member of the British Commonwealth and a member state of the United Nations on 16th December 1963. A coalition of Arab parties formed the first government, with the Sultan as Head of the State. Its Independence Constitution followed the Westminster model of government. However, in January 1964, a month after independence from Britain, a revolution toppled the regime. The Sultan was deposed and a People Republic of Zanzibar proclaimed.18 Abeid Amani Karume became the president of Zanzibar after the revolution. Political parties were abolished and the State made several changes, some of which are said to be positive and others negative. Within the first year of the revolution, the President introduced several radical changes in the political, economic and social spheres. The liberty of the people was declared, land and other properties were confiscated, mortgages were cancelled, rickshaws publicly burned, all clubs and schools based on religion, race or wealth and were nationalised or banned by the government.19
The first law was the Legislative Power Law which was passed by the Revolutionary Council in 1964 to act as the constitution.20 Other more prominent legislations that had effects similar to that of the constitution were ‘Constitutional Government and the Rule of Law Decree, 1964’21 and, ‘Equality, Reconciliation and Unity of Zanzibar People Decree, 1964’.22 In this arrangement, the legislative and judicial powers were entrusted to the Revolutionary Council where the President was the Chairman.23 In 1969, the Revolutionary Council restructured the court system which was based on British judicial principles.24 Interestingly, on 1st January 1970, the Revolutionary Council abolished the legal system which had been based on British judicial principles to form its own kind of legal system25 Zanzibar was governed by Decrees until sometime in 1979 when the first post-revolution constitution was introduced. One notable development of this constitution was the separation of powers of the legislative from those of the executive. The House of Representative was for the first time established to pass all laws to be applied in Zanzibar. This constitution brought remarkable development towards the strengthening of democracy and the rule of law. The Zanzibar
17 James Stuart Olson; Robert Shadle (1991). Historical Dictionary of European Imperialism. Greenwood. pp. 279–80. 18Esmond B. Martin, Zanzibar Traditions and Revolution, London: Hamish Hamilton, 1978, page 57. 19Martin, supra page 70. 20Ali Uki, The State of Constitutionalism in Zanzibar, 2010 in Morris Odhiambo, Annual State of Constitutionalism in East Africa 2010, (Kampala: Fountain Publishers, 2012), page 187. 21Decree No. 5 of 1964. 22Decree No. 6 of 1964. 23The laws in force prior to the revolution were maintained through the Existing Laws Decree No.1 of 1964. 24Presidential Decree No. 11 of 1969. 25See Martin page 64.
6 government introduced a new constitution, entitled Katiba ya Zanzibar which was enacted by House of Representatives in 1984. Through the introduction of this Constitution the legal sector experienced a number of reforms.
Zanzibar united with Tanganyika to form one sovereign state, the United Republic of Tanzania with Mwalimu Julius Nyerere as president, and Abeid Amani Karume as Vice President.26 A special session of the Tanganyika National Assembly approved the Articles of the Union on 25th April 1964 with no substantive discussion with the Revolutionary Government to ratify the Articles.27 The United Republic of Tanganyika and Zanzibar which was officially proclaimed on 26th April 1964 was renamed the United Republic of Tanzania on 28th October, 1964.28
Since the formation of this union Zanzibar has had her own Executive headed by the President of Zanzibar who is also the Chairman of the Revolutionary Council and who may not serve for more than two consecutive terms of five years each. Based on the 2010 constitutional development, there are two Vice Presidents;29 the First Vice President, the Second Vice President, the ministers and other members the President deems fit to appoint.30 Zanzibar still has its own legislative body, the House of Representatives which consist of two parts, the President of Zanzibar on one part and the House of Representatives on the other.31 It also has an independent High Court of Zanzibar headed by the Chief Justice and other judges of which not less than two are referred to as High Court Judges.32
1.2 Geography Zanzibar covering an area of approximately 565 sq miles (1464 sq km), is mainly a low lying island, with its highest point at about 350 feet. It is located in the Indian Ocean, about 25 miles from the Tanzanian mainland coast, and 6° south of the equator. Zanzibar Island (known locally as Unguja, but as Zanzibar internationally) is 60 miles long and 20 miles wide, occupying a total area of approximately 650 square miles. It is characterised by beautiful sandy beaches with fringing coral reefs, and the magic of the historic Stone Town - said to be the only functioning ancient town in East Africa.
The coral reefs that surround the East Coast are rich in marine diversity, and make Zanzibar an ideal location for snorkelling and scuba diving. Zanzibar experiences ideal holiday weather for most of the year. The heat of summer is often seasonally cooled by windy conditions, resulting in pleasant sea breezes, particularly on the North and East coasts. Being near to the equator, the islands are
26Ibid, Kituo cha Katiba 2003. 27Ali Ubwa Mussa, The Union between Tanganyika and Zanzibar, Legality of Additional Matters outside the Article of Union, 2005, http://www.zanzinet.org/files/legality_union.pdf (accessed 21st October, 2014). 28United Republic Declaration of Name, Act No. 61 of 1964. 29Section 39 of the Constitution of Zanzibar, 1984. 30Ibid, Section 43 (1). 31Ibid, section 63 (1). 32Ibid, Section 93 (2).
7 warm all year round, but officially, summer and winter peak in December and June respectively. Zanzibar is blessed with an average of 12 hours of sunshine daily.
The island of Zanzibar with its array of beaches.
Zanzibar Stone Town - a UNESCO World Heritage Site comprising of interesting coral stone architecture along narrow streets.
Short rains known as Vuli generally occur during October and November and are characterised by showers which do not last long. The long rains popularly known as Masika normally occur between March and May and although this is often referred to as the ‘Green Season’ it typically does not rain
8 every day during that time.33 The climate in Zanzibar is warm and humid (equatorial). The cold season which is termed as Kipupwe is during the months of June to August, while the hot season, locally known as Kaskazi, is experienced from December to February.
Zanzibar’s main industries are spices (which include cloves, nutmeg, cinnamon and pepper), raffia, and tourism. Zanzibar is also the home of the endemic Zanzibar Red Colobus and the elusive Zanzibar Leopard. It is sometimes referred to as the “Spice Islands,” a term that is also associated with the Maluku Islands in Indonesia. Pemba Island is the only island apart from Unguja that still produces cloves on a large scale which is a primary source of income for the islands. Sometimes called “a jewel in the lap of Africa,” the archipelago has become a popular tourist destination.
The Red Colobus of Zanzibar (Procolobus kirkii), taken at Jozani Forest, Zanzibar.
Left: A spice farmer on the island of Zanzibar shaving off bark of the cinnamon tree. (Gregory Warner/NPR). Right: Vanilla is a prima donna spice because its pods have to be hand-pollinated and then boiled and dried in the direct sun for only one hour.
33ZIToD | Zanzibar Institute for Tourism Development at http://www.zitod.org/geography.html# (accessed on 23rd November, 2014).
9 Before May 2015 Zanzibar had five administrative regions and 10 districts. These regions and districts were divided according to the socio-economic demands, though contentions of the division being political also exist. These regions were Kaskazini Unguja (North Unguja), which has two districts namely Kaskazini A (North A) and Kaskazini B (North B). Another region is Kusini Unguja (South Zanzibar), which had two districts namely Kati Unguja (Zanzibar Central) and Kusini Unguja (Zanzibar South). The third region in Unguja is Mjini Magharibi (Urban West) which had two districts, Mjini Unguja (Urban) and Magharibi Unguja (West). The regions in Pemba include Kaskazini Pemba (North Pemba), which has two districts namely Micheweni and Wete and Kusini Pemba (South Pemba), which has two Districts Chake Chake and Mkoani.
In May 2015, President of Zanzibar and Chairman of the Revolutionary Council, Dr. Ali Mohamed Shein made changes to some of the boundaries of the regions and districts and relaunched 384 Shehia of Unguja and Pemba. These changes were made just before the general elections of October 2015. The changes provided the direction of constituency boundaries that were announced by the Zanzibar Electoral Commission (ZEC).
According to the powers conferred on him by the Zanzibar Constitution of 1984, section 2A and part IV of the Local Administration Act, 2014.34 In this division, the President, Dr. Shein consented to reset the boundaries of the wards based on the demographics of the area. In a statement given by the Minister of State in the President’s Office, Regional Administration and the Department of Special SMZ, Haji Omar Kheir, the Minster said that Zanzibar would have five regions, three in Unguja and two in Pemba. He went on to say that the boundaries of the two regions in Pemba would be changed by introducing two Shehias, namely, Ole and Mjini Ole (Ole Town).
Zanzibar hence has eleven districts which is addition of one district from previous setup. The additional district was created after splitting West District into two, namely, West Aand West B. The small districts of Tumbatu (Unguja) and Kojani (Pemba) continue to follow the original boundaries, except for some Shehia which were relocated to other districts. These Shehias which are Kipange, Muwanda and Mchangani have been transferred to North Region A from North Region B, while the Shehia of Kisongoni was transferred to North B from North A. Other Shehias transferred include Michamvi which was relocated to South District from Central District while Shehia of Pete was relocated to Central District from South District. The Shehia of Finya Kinyasini and Magogoni has been transferred from Micheweni from Wete District and Dodo Shehia has been relocated to Mkoani from Chake Chake District, Pemba.
The new divisions of Zanzibar in Districts and Shehias attracted a lot of public attention. Many people complained that these divisions were made intentionally to set a strategy for the ruling party to win as many seats as possible for its members in the House of Representative in the general elections. The allegations however were denied by many government officials including the ZEC Director, Salum Kassim Ali who said that the President of Zanzibar is the one empowered to divide Zanzibar into regions and districts when there is a need to do so.
34Local Administration Act No. 8, 2014.
10 1.3 People Zanzibar is predominantly a conservative, Sunni Muslim society, although there are also pockets of Christian and Hindu followers.
Zanzibaris are an eclectic mixture of ethnic backgrounds, indicative of the islands’ colourful history. Widespread intermarriages between Shirazis and Africans gave rise to a coastal community with distinctive features, and a language derived in part from Arabic. It is the most common language - a highly Arabicized form of Swahili, known as Kiswahili. Use of pure Arabic is generally confined to scholars and recent arrivals from Arab countries. English is also widely used and understood.
There are a lot of divergent views regarding the historical account of the origin of the people of Zanzibar. However, there is common agreement among the writers that the first dominant inhabitants of Zanzibar were the Swahili. Later, in the 7thcentury, the Swahili people began trading with the Arabs and Persians. The merchandise included gold, rhino-horns, leopard skins and slaves, making Zanzibar a very powerful and important commercial centre. Trade continued to flourish for various centuries, and thus generated a variety of contacts with people of diverse origins.35 Intermarriage was part of the lifestyle of the people and they became accustomed to it and gradually came to adopt Arab customs and traditions.36
It is estimated that in the late 11th or 12th Century, a significant number of traders began to settle in Zanzibar and intermarried with the indigenous Africans. Eventually, a hereditary ruler (known as the Mwinyi Mkuu or Jumbe), emerged from among the Hadimu, and a similar ruler, called the Sheha, was set up among the Tumbatu. With the coming of British in Zanzibar, the inhabitants were grouped mainly into Europeans, Arabs and African whereas the natives (Africans) were sub-grouped into Wahadimu, Watumbatu and Wapemba. As Chul (1995) wrote “the inhabitants of Zanzibar are mainly three sub-Swahili groups: Wahadimu, Watumbatu, and other Swahili immigrants from Mainland (including the Shirazi). The Swahili groups formed about eighty per cent of the total population, about ten per cent were Arabs, nine per cent Indo-Pakistanis, and the rest were Somalis, Comorians and Goans.37 The population census carried out on August 2012 indicates that Zanzibar has a population of about 1,303,569 people compared to that of 2002, which was 984,624.This indicates that the growth rate increased from 3.0 per cent in 1988 to 3.1 per cent
35For ages, Zanzibar has attracted the interest of many peoples. These include Assyrians, Egyptians, Phoenicians, and in more recent centuries Portuguese, Dutch and English have all landed on its coasts for trade, adventure and exploration. It is the meet, blend and interaction of all these and other cultures that the history of Zanzibar has been shaped. It is said that among the first visitors to arrive were the Shirazis of Persia, to whom the oldest building of Zanzibar, the Kizimkazi mosque (AD 1107), is owed. Using the seasonal monsoons, Arab and Persian trading ships sailed to its islands carrying various goods, such as beads and cloth, as well as Chinese porcelain, and returned with tortoiseshell, ebony and ivory, and spices. Other Asian people from India, Indonesia and Malaysia had also venture their trade dealings with the people of Zanzibar by accessing the opportunity of the sea navigation to find their way to Zanzibar. 36This mixing had eventually developed a language (which contained many Arabic words) and culture, known as Swahili. 37Kim, C. Chul. (1995). Missiological Understanding of the Swahili Muslim in Zanzibar. (M.A Thesis, Fuller theological Seminary, 1995) page 28.
11 during 2002 and then declined to 2.8 per cent in 2012. The population density of Zanzibar has increased from 400 person/sq. km in 2002 to 530 person/sq. km in 2012. The 2012 census figures confirm the predominance of large households, especially in three regions.
The Zanzibar average household size was 5.1. However the results gave an even sex distribution of the total population, where the sex ratio of Zanzibar was 94, meaning in every 100 females there were 94 males.38 This population is distributed in five regions. The Urban Region dominates the overall population with the highest growth rates of 4.2 percent39 and a population of 593,678 while the region with the least population is South Region (Kusini Unguja) with a population of 115,588. The report further indicates that the proportion of females has marginally increased compared to males.40 The majority of Zanzibaris are Muslims who are estimated to be 95% of the population. The predominant Muslim sect is Sunni. There are also small minority groups of Hindu believers and a number of Christian denominations.
The average household size in Zanzibar declined from 5.3 to 5.1 in the 2002 and 2012 censuses respectively. As shown in table 1, the average household size varies among districts. Five districts in Zanzibar recorded above the Tanzania national average of 4.8 persons per household. Sex ratios also varied among districts in Zanzibar from 91 males per 100 females in West to 102 in Central, with the average sex ratio of 94.
Table 1: Zanzibar Districts Population Profile
Districts Total Male Female Average house size Sex ratio Micheweni 103,816 50,874 52,942 5.3 96 Wete 107,916 52,348 55,568 5.3 94 Chakechake 97,249 46,411 50,838 5.5 91 Mkoani 97,867 47,460 50,407 5.4 94 North A 105,780 51,566 54,214 4.8 95 North B 81,675 40,548 41,127 4.7 99 Central 76,346 38,538 37,808 4.5 102 South 39,242 19,342 19,900 4.2 97 West 370,645 176,979 193,666 5.2 91 Urban 223,033 106,611 116,422 5.3 92 Zanzibar 1,303,569 630,677 672,892 5.1 94
Source: 2012 Population and Housing Census [Volume 1 -2013].
38Zanzibar Statistical Abstract, 2012 page 11. 39http://www.nbs.go.tz/sensa/pdf 40Household Budget Survey 2009/2010 – final report May 2012 – Office of Chief Government Statistician.
12 The country’s national language is Kiswahili. However the official language is both Kiswahili and English.41 The language of the court and all official documents and public recording is either Kiswahili or English.
1.4 The Economy Zanzibar’s economy is based mostly on agriculture and tourism. In agriculture, the main crops grown for export include coconuts, cloves, chillies, copra and seaweed. Zanzibar also uses its wealth of the sea for fishing which is also important to the local economy. The types of economic activities can be classified into four major sectors which are: the agriculture sector, production and construction sector, distribution sector, and services sector. These sectors are climate dependent and a large proportion of Gross Domestic Product (GDP), employment and livelihoods are associated with climate sensitive activities. Higher temperatures, unpredictable rainfall patterns and high tide levels can lead to droughts and floods which are likely to affect the Isles’ economy and the GDP.42
Historically, cloves had, for a long time, been the economic backbone of the island’ economy. It was introduced in Zanzibar by the Omani Arabs in the first half of the 19th Century and has been a major foreign exchange earner in Zanzibar for over a hundred years. At that time, hard labour was not considered to be a violation of the human rights. However, the legal system began to change with the advent of colonialism. British law was predicated on private ownership as opposed to communal system. The process of privatization was believed to be not only progressive but also absolutely necessary in order to ensure that slaves continue to work and contribute to clove economy.43 This continued until the time when the slavery was totally abolished. Even after the revolution of 1964, cloves were the main source of the national income in Zanzibar. Zanzibar took a notable decision to adopt a foreign policy which supported the underdeveloped third world as opposed to capitalism, colonialism, exploitation and neo-colonialism. The economy of Zanzibar however, collapsed in 1970 because of a decline in clove exports.44 Efforts to boost the economy of Zanzibar was made in the late 1970s but was enforced materially by the Revolutionary Government of Zanzibar in the mid-1980s and deepened during the decade of 1995 – 2005. This generated some positive results at the Macro-level.
Several reasons lead to legal and economic reforms in Zanzibar, but the failure of the mission of the Government to adequately provide for basic social services was another driving reason for the legal sector reform.45 It was inevitable to have these reforms as it was the belief of thinkers that 41The African Union (AU), the “united states of Africa,” nurtured the same sentiment of continental unity in July 2004 and adopted Swahili as its official language. For more see John M. Mugane, The Story of Swahili, OHIO UNIVERSITY PRESS ATHENS, OHIO, available at http://www.ohioswallow.com/extras/9780896804890_ chapter_01_and_toc.pdf. 42Sustainable Management of Land and Environments (SMOLE) in its final Mid Term Review (MTR) report of September, 2012 highlights the problems facing coastal areas from climatic change. 43The signing of Abolition Decree in 1897 by Sultan did not guarantee the freedom of slaves. Slaves were not summarily freed but had to apply for it in court in which they had to prove that they had homes and means of subsistence. In case they had to remain in their master’s land they were subjected to payment of rents. 44Martin, supra note at pp. 60 – 67. 45Moshi et al (ed.), Zanzibar: The Challenges of Globalization and Poverty Reduction, Economic Policy Workshops, Ministry of Finance and Economic Affairs and President’s Economic Policy Advisory Unit, 2004.
13 economic development is the result of all forces and energies in a country which collectively raise its per capita output.46 Since law is a process of balancing conflict interest and securing satisfaction of the maximum of wants with minimum of friction,47 it creates inseparable connection with the economic development. Consequently, there are several established rules for guiding economic relationships in many fields such as contract, sales, agency, companies and labour. The legal- economic reforms aimed at boosting the economy of Zanzibar. The government had to do all it could to meet the conditions of securing aid from IMF and WB. These included the Structural Adjustment Program (SAP) and Economic Recovery Programs (ERP) which underlined a market- based economy. These programmes encouraged privatization in the economy.48
Eventually, the core roles of government was to focus on ensuring law and order, formulation of enabling public policies for the private sector and other actors to flourish in economic development and service delivery, promote democratic governance, mobilization of resources for provision of public services and delivery of effective and efficient public services. Positive measures taken by the government to promote private sector development include formulation of the investment policy, programme to promote business entrepreneurship, creation of investment promotion institutions, as well as the establishment and operation of the Zanzibar Business Council (ZBC).
Cloves still contribute largely to the economy of Zanzibar. The government has taken several measures to improve the production of the cloves. From 2012 the government has been distributing, free of charge, clove seedlings in a bid to boost the clove cultivation.49 Efforts were also taken to raise the price of cloves from TZS 5,000 in 2010 to the current price of TZS 14,000/=.50 The Zanzibar government is still not ready to privatize the clove industry in the Isles. Despite wide spread demands coming mostly from farmers and businessmen who want the Zanzibar government to liberalize the cloves, the government still maintains the law prohibiting anyone from transporting cloves without government permission. According to the Agricultural Transformation for Sustainable Development 2010 – 2020 policy, cloves have been a major foreign exchange earner in Zanzibar for the last 150 years. However there has been a significant steady decline over the last decade from an annual average of about 16,000 tons in 1970s to a current average of between 1,500 to 3,500 tons. The decline in production is attributed to climate changes, insecurity of the three acre land tenure system, diseases, poor management and limited replacement and ageing of cloves trees.
46J. D. Nyhart, (1964), The Role of Law In Economic Development, Massachusetts Institute of Technology 50 Memorial Drive, Cambridge 39, page 53 – 64. 47D. Pond, Interpretation of Legal History, 156 quoted in G. W. Paton, A Test of Jurisprudence, 4th edition, Oxford University Press, 2007, page 22. 48Hartmann, J. (1994): The State of Tanzania: Yesterday, Today and Tomorrow In: Himmelstrand et al (Eds.): African Perspectives on Development – Controversies, Dilemmas and Openings, James Curry London, page 218 – 233. 49Legal and Human Rights Centre and Zanzibar Legal Services Centre, Tanzania Human Rights Report, 2012, Page 293. 50Issa Yussuf, “Isles Maintains Higher Clove Prices Despite Global Slump,” Daily News (Tanzania) 22nd December, 2015.
14 In an effort to rehabilitate the clove industry, Zanzibar commissioned a study in 2004 to revive the existing structure of the Zanzibar clove industry and proposed strategies for revamping it. In 2003, the islands’ retired president Mr. Amani Abeid Karume had vowed to liberalize the clove industry however nothing has been done to date. On the other hand, the Zanzibar Minister for Commerce Industry and Marketing Mr. Nassor Ahmad Mazrui was quoted saying that the Zanzibar government cannot let the farming of cloves go into private hands because the commodity is the symbol of Zanzibar.51
Zanzibar has moved from cloves dependency to tourism during the mid-80s following the introduction of tourism industry in the islands. The tourism sector in Zanzibar had been in existence for a long time but was not regarded as a key factor to the economy of Zanzibar. It was not until the mid-eighties when tourism gained impetus. The main changes in the tourism sector in Zanzibar were facilitated by the enactment of Promotion of Tourism Act, 1991. This Act was made to promote and strengthen tourism and to provide for the procedures for better carrying out business in tourism and matters connected with tourism. Eight years later, the Act was repealed by the Promotion of Tourism Act, 199652 which, among other things, established the Commission for Tourism as independent body. Subsequently, this Act was repealed by the Zanzibar Tourism Act, 200953 and Zanzibar Tourism Act (Amendment), 2012.
Tourism is currently promoted as the major sector of Zanzibar’s economy which generates foreign exchange earnings, employment opportunities, stimulates local economy, supports other sectors such as agriculture, small scale handcraft industry, and above all, a way of economic diversification. This move was initiated in 1980’s where the Structural Economic Programme (SEP) among other things proposed a move towards a Free Economic Policy and Trade Liberalization. Thus, from mid-1980’s, Zanzibar adopted liberalized economic policies in relation to the role of Private Sector Investments, Free Trade and liberal exchange rate. The Zanzibar Investment Promotion Authority (ZIPA) established in 1996 is mandated to promote and conduct all procedures for investments. The response to the investment is beyond imagination and tourism related investments dominated the list of ZIPA approved investments in terms of number and capital outlays. Tourism is a fast growing sector in the Zanzibar economy contributing around 80% of foreign exchange earnings and about 27% of the Growth Domestic Product (GDP). Employment generated through the tourism sector is estimated to reach 12,500 out of whom 8,600 people are employed in hotels/guest houses sub- sector alone. The rest are employed in other tourist investments such as tourist shops and tour operators.
The National Growth Strategy (MKUZA II), which is based on both Zanzibar Vision 2020 and Millennium Developments Goals (MDG) had the view that tourism is the driver of economic development for Zanzibar and over 50% of all employment will be generated from tourism by 2015. To achieve this vision, a series of goals and objectives have been devised to optimize the likelihood of achievement. Such goals and objectives embrace Zanzibar’s rich natural assets; developing
51“Zanzibar Says No to Clove Liberalization,” The East African Business Week, Monday, 3rd February, 2014. 52Promotion of Tourism Act No. 9, 1996. 53Zanzibar Tourism Act No. 6 of 2009.
15 integrated coastal experiences; promotion of special interest (niche) markets; targeting the most profitable prospects; applying a collaborative approach to marketing. The Zanzibar Tourism Master Plan is a comprehensive blue print for sustainable promotion of the tourism industry and it is based on the theme of tourism development and deepening benefits. The basis of plan is based on the belief that an invigorated tourism sector will have a wider spill-over effects in terms of growth and linkage with other sectors. It is envisaged that the expedited growth of tourism will lead to (a) higher GDP growth rates (b) increased employment (c) high Government revenue (d) better quality of life for all the people.54
Zanzibar is endowed with a variety of marine attractions such as corals, variety of fish species etc. Marine attractions offer a wide range of activities such as kite surfing, scuba-diving, snorkelling and dolphin-watching geared toward domestic as well as international holiday seekers. Local businesses offer a variety of marine activities to tourists. The Zanzibar Commission for Tourism’s website does a good job in listing and explaining these various attractions so that individuals can easily identify those that best suit their needs. Although marine attractions are well advertised on the ZCT’s website, it does require some effort on the potential tourist’s part to follow the various links and understand what different marine tourism activities are available to the individual. Better marketing and easier access to this information could be provided in order to quickly and easily gain the tourist’s interest in Zanzibar. More advertisements could be directed toward prospective and potential tourists in order to entice them to make return visits, thereby increasing the chances of collecting additional tourism revenue in Zanzibar.55
Chumbe Island Coral Park Ltd. (CHICOP) an award-winning private nature reserve that was developed from 1991 for the conservation and sustainable management of Chumbe Island off Zanzibar, is one of the last pristine coral islands in the region. It has received UN Recognition.
54 Zanzibar Commission for Tourism Zanzibar Destination Five Years Marketing Plan (2015 – 2020), pp. 6 -7. 55Ibid P. 17.
16 Zanzibar’s natural abundance sustains biodiversity worthy of any East African destination, with marine parks for the protection of its natural resources.
Zanzibar has also focused on cultural based tourism activities. Museums, monuments, artisans and their handmade products are a large part of Zanzibar’s culture and heritage. Several artisans in the Zanzibar regularly craft goods and exhibit them at various places, but Zanzibar has yet to make a concerted effort to market its own local arts and crafts, as well as its artisans. Some attempts have been made in the past but were unsuccessful. A major reason for this poor success was due to the fact that local groups rented a facility that they could not afford instead of starting small and working up to a market that could generate enough income to pay for such a facility. Even though efforts have been lacking in the past, many craftspeople have continued in their individual efforts and have made some personal gains.
17 On May 5, 2015, the annual Europe Day celebration in Tanzania was held at the Christ Church Cathedral - Mkunazini, hosted by the EU Head of Delegation, Ambassador Filiberto Ceriani Sebregondi, and attended by guest of honour, Honourable Abubakar Khamis Bakary, Zanzibar Minister of Justice and Constitutional Affairs.56 The construction of the Church which started in 1873 took about ten years to complete.
Natural and scenic beauty is probably Zanzibar’s richest resource. Zanzibar has a wealth of scenery. Ngezi forest, Kiwengwa forest, natural caves and Jozani wilderness are some of the more popular scenic attractions in the area. There are other attractions such as Zanzibar Butterfly Centre that offers a unique view of nature and its various inhabitants. Since Zanzibar has such wealth of natural and scenic resources, steps should be taken to ensure that these attractions are maintained for future tourism and heavily promoted in order to gain a larger impact. Signs need to be placed along the roadways and at the site so that visitors can more easily find the nature reserves.
Jozani Forest is one of Zanzibar National Parks is a unique destination. The forest grew in a small trough in the coral bed between the mangrove bays of Uzi and Chwaka. A high water table and seasonal flooding provide the forest with water and nutrients to survive in the harsh conditions of a coral island. 56Preserving Cultural Heritage in Zanzibar, Tanzania, with the World Monument Fund Britain By World Monument Fund, in coordination with the EU Delegation to Tanzania, European Union at https://europa.eu/eyd2015/en/ european-union/posts/preserving-cultural-heritage-zanzibar-tanzania-world-monument-fund-britainadded 10th June, 2015.
18 Zanzibar currently has a substantial number of tourism offerings. In the retail chain built primarily around tourists, many souvenir shops exist but only a few souvenirs that display a true picture of Zanzibar exist. Restaurants are limited to a very few international restaurants in the island. The other restaurants are primarily for local dining that would not be considered to accommodate first class tourists. Low cost hotels are plentiful when compared to the number of international hotels in the island. There are 378 establishments with accommodation in 10 districts accounting for 8027 rooms. Nearly 60% of the rooms are located in North Region while just over 15% is located in South Region, 17 % are located in Stone Town and its vicinity, and the remaining are located in Pemba. In Pemba, a unique kind of hotel with underwater rooms marked another attraction for tourists. The Manta Resort located 250 metres off the coast of Pemba Island, has underwater rooms that forms part of a holiday retreat of the main island, and comprises a three-storey floating structure with its lowest level positioned four metres beneath the water.
A view of the underwater hotel with bedroom windows that look directly into the ocean giving the sense of an underwater theatre.
Foreign Market of Zanzibar Tourism
Source: Zanzibar Destination Five-Year Marketing Plan (2015 – 2020)
19 Another economic activity which helps to raise livelihood of people is seaweed farming. Seaweed farming is the practice of cultivating and harvesting seaweed. In its simplest form, it consists of the management of naturally found batches. In its most advanced form, it consists of fully controlling the life cycle of the algae. People who live in coastal areas in Zanzibar have in recent years engaged in seaweed production. It is also a substantial source of foreign currency after tourism and cloves and helps to reduce the degradation of the marine environment. Seaweed farming in Zanzibar has been reported to empower women from their long time dependency on their husbands in controlling the family’s socio-economic needs. However, the impact of climatic changes has adverse effects in seaweed production.
Seaweed farming now employs more than 25,000 people, mostly rural women, while about 150,000 people benefit indirectly from the seaweed industry.
The Zanzibar Gross Domestic Product (GDP) grew by 7.0 per cent in 2014 compared with 7.2 per cent in 2013. The Monetary Policy Statement for June 2015 published recently by Bank of Tanzania shows that the main activities which contributed to the growth include services and industry which grew by 9.8 per cent and 6.0 per cent, respectively. Agriculture, fishing and forestry sector declined by 0.4 per cent, mainly due to fall in production of crops.
The statement shows that Zanzibar’s annual headline inflation declined to 1.1 per cent in April 2015 from 5.3 per cent as recorded in April 2014. The decline in inflation was mainly driven by fall in prices of fuel and some food items, notably rice, wheat flour and sugar. Inflation is expected to remain in single digits during 2015/16, due to expected stability in world market prices for food and fuel.
From July 2014 to April 2015, domestic revenue amounted to TZS 305.8 billion, which was sufficient to cover recurrent expenditure. Grants were TZS 33.2 billion; out of which General Budget Support (GBS) was TZS 8.7 billion and programme grants was TZS 24.4 billion. Government expenditure
20 was TZS 385.9 billion. During the period, budgetary operations recorded an overall deficit of TZS 65.0 billion, of which 84.6 per cent was financed by foreign sources.
Zanzibar’s current account balance recorded a surplus of USD 9.5 million between July 2014 and April 2015, compared to a deficit of USD 8.1 million recorded in the corresponding period in 2013/14. The improvement was largely on account of a fall in the value of imports by 26.3 per cent, which outweighed the 9.6 per cent decrease in the value of exports, following slowdown in business activities.57
1.4.1 Fumba Town Development In a bid to improve living conditions for Zanzibaris, the government has in collaboration with investors, embarked on the Fumba Town Development, a vivid example of the promotion of the right to environment and development. The Fumba Town Development combines state-of-the-art residential properties with commercial and recreational areas to create a new, modern lifestyle for Zanzibar. Fumba (meaning close/shut),a sleepy fishing resort with its endless beaches which curve in a great and unbroken arc of white sand, remained a remote village because of bad roads. Different types of bananas and coconuts, beans and maize were grown by the farmers and fishermen of this village who also grew mangos, paw paws, oranges, lemons and vegetables. Today, the village outlook has changed and slowly takes the shape of a small town while its dug-out canoes which were used by the local fishermen are being replaced by big boats with outboard engines.
It took about four decades to convert Fumba into a commercial and industrial centre with a few factories and small and beautiful tourist villas. The village’s first exposure to the rest of Zanzibar and the world was in the mid-1970s when the Isles second Preside Aboud Jumbe Mwinyi (1972 – 84) picked Fumba as the relay and distribution point of the power supply through marine cable from Ras Kilomoni on the Mainland. Later, Zanzibar’s fifth President, Dr Salmin Amour Juma, (1990 – 2000) came out with an ambitious plan of developing Fumba, a free trade zone,58 into a “Star City.” This was a short-lived plan until a government approved project in recent times, planned to make Fumba a Satellite City.59
57http://www.businesstimes.co.tz/index.php?option=com_content&view=article&id=5140:zanzibar-economy-grew- by-7-pc-in-2014&catid=1:latest-news&Itemid=57. (accessed on 4th May, 2015) 58Salim Said Salim, Fumba village looks for transformation, The Citizen June 28th 2015, http://www.thecitizen.co.tz/ oped/-/1840568/2767998/-/item/0/-/5qhklm/-/index.html 59Ibid.
21 At the same time, another housing project “Fumba Town” is now being built with the financial aid of an investor group. 1000 houses, one school, shops, sports areas, parks, mosques and churches are to be created. When the project is completed, the site, divided into individual properties will be sold to Zanzibaris at prices ranging from USD 30,000 to about USD 84,900. The question remains as to how the common people who receive a monthly salary of TZS 150,000 could be able to afford this. If the town was really meant to help the common people, a price of USD 35,000, to start with, is not less than TZS 75 million. If it is going to be given to common people on loan, it may take years to repay the loan which in practice is not possible.
1.4.2 Mapinduzi Memorial Tower Early in September this year, the President of Zanzibar Dr. Ali Mohamed Shein inaugurated the memorial landmark tower at Michenzani Street and appealed to people not to be afraid of development. The eight storey tower, the “Mapinduzi Memorial Tower” was named in commemoration of the revolution of Zanzibar and cost the government TZS 8.5 billion to its completion. This amount was more than four times its original estimation of TZS 2 billion and was funded by Zanzibar Social Security Fund (ZSSF).
The 33 metres high Mapinduzi Memorial Tower.
On the day of the inauguration Dr. Shein commented on the importance of this tower as a symbol that decorates Zanzibar Town. There were several complaints against the construction of the tower on grounds that priority should have been given to needs like medicines and school desks. In response Dr. Shein appealed to the people not be scared of development and progress lest they lag behind in this changing world.
22 The President of Zanzibar Dr. Ali Mohamed Shein officially opens the Tower.
1.4.3 Development of the Airways Services in Zanzibar Major constructions have been made and continue to be made to upgrade and maintain Zanzibar Airport and keep it in good working conditions so as to attract international flights to choose Zanzibar as their destination. In early June 2015, Qatar Airways launched its second new destination of the year, touching down on the Spice Island of Zanzibar. Prior to that, several other international flights land in Zanzibar including Ethiopian Airlines, Oman Air together with several international chartered flights.
In the middle of October 2015, the Trans World Aviation (TWA) based in the United Arab Emirates (UAE) launched its grounds handling services, which for long had been monopolized by the ‘Zanzibar Aviation Services & Travel Limited (ZAT) at the ‘Abeid Amani Karume International Airport (AAKIA) employing 45 local staff with the prospect of employing up to 200 local staff. The TWA Company also has plans to open other services like spare support, repair and overhaul, upgrades and modification of aircraft systems, consumables, tools, testers and ground handling equipment thereby boosting employment. The ‘Zanzibar Airports Authority (ZAA)’ Director Mr. Said Ndumbogani has commended the admirable development at its airport, anticipating an increase in international flights in the near future.
1.4.4 Launching of the MV-Mapinduzi II The launching of Zanzibar’s new passenger/Cargo ship named ‘Mapinduzi II’ in December 2015 marked another remarkable development to facilitate transportation and opportunities for the economic development of the people of Zanzibar. The new ship is regarded as an advantage to the people of Zanzibar and neighbouring countries.
23 The government spent about USD 30.85 million to buy a modern ship with safety facilities ready to serve Zanzibaris and other travellers in the region. MV Mapinduzi II has capacity to carry 1,200 passengers, 80 small cars, and 200 tonne of cargo. Negligence, laxity in implementing marine safety laws, corruption, allowing second hand vessels to carry passengers and overloading, was blamed for the two marine accidents which killed more than one thousand people in 2011 and 2012. The purchase of Mapinduzi II was clear evidence in making sure that people are connected through reliable communication and an indication of the government’s commitment to improving sea transport for the development. There were a number of speculations that Mapinduzi II was not a new ship but just embezzlement of the government money, allegations which were strongly denied by the government.
Mapinduzi II is clear manifestation of reliable transport linking economic activities between islands (mainly Unguja and Pemba). In addition to transportation, the vessel will play a crucial role in fisheries and tourism. In 1974 Zanzibar government bought its first MV Mapinduzi, followed by purchase of MV Maendeleo in 1980 and then oil tankers- MT Ukombozi and MT Uhuru.
The view of MV Mapinduzi II at night.
ZLSC is of the view that the purchasing of the ship is one thing but maintaining it is another thing. There has been a tendency for public property to be sabotaged or used without proper maintenance and as a result they are damaged and become totally un-functioning. We urge the government to take steps to reform its Shipping Corporation, and the ‘Zanzibar Maritime Authority (ZMA). Major reforms in ‘Shipping Corporation (ZSC)’ and ‘Ports Corporation (ZPC)’ are necessary as government efforts to get rid-of underperforming parastatals.
1.5 Political System Zanzibar was one amongst a few African countries that had embarked very early in organised governance including political decentralization.60 On this note, Zanzibar politics goes a long way
60For other African experience see Ghana in Callistus Mahama, Local Government and Traditional Authorities in Ghana: Towards a More Productive Relationship, Commonwealth Journal of Local Governance, Issue No. 4, November 2009, page 7 – 25. See also Samoa experience in M. Meleisea, The Making of Modern Samoa: Traditional
24 back, starting from what is called a period of confusion. Zanzibar was officially declared a British protectorate in 1890. The sultan was retained for ceremonial purpose but most major decisions were made by the British Resident. During this time, the formation of different associations was established based on ethnic groups which later were changed into political parties. The ethnic based associations categorised people as Shirazis, Arabs, Indians and other African tribes and created ethnic tensions that have plagued Zanzibar.61 Zanzibar has witnessed the formation of political parties fighting for independence from British which included the Zanzibar Nationalist Party (ZNP), Afro Shirazi Party (ASP) and the Zanzibar and Pemba Peoples Party (ZPPP) – these were all the products of ethnic associations.62
The ethnic based political parties were the core of dirty politics in the islands and led to many conflicts which continued even after independence, the revolution and the union. Zanzibar attained its independence on 10th December, 1963 with the first government formed by a coalition of ZNP and ZPPP. However, independence only survived for one month and was followed by bloody revolution led by John Okello on 12th January, 1964. Zanzibar united with Tanganyika soon after the revolution to form the United Republic of Tanzania on 26th April, 1964.63
The ruling party CCM remained the only political party until the multiparty system was re- introduced in Zanzibar in 1992.64 CCM was formed when the then existing parties, namely Tanganyika African National Union (TANU) merged with the Afro-Shirazi Party (ASP) on 5th February 1977. The first multi-party general election which was held in 1995 was marked with irregularities where the ruling party (CCM) was accused of having rigged the election for its own benefit. Since then, problems of political unfairness were reported election after election with one that was followed by the destruction of property and loss of life.
Political rights in Zanzibar has been a result of the long struggle from the time of native arrangement where the administration was under the realm of local rulers to the colonial Zanzibar where the foreign powers interfered with the existing regimes to operate on a dual system and up to the time of the self-determination where struggle for better and satisfactory provision of the welfare of the people intensified.
People have lived in Zanzibar for over 20,000 years. Zanzibar had its own political identification but the history proper starts when the islands became a base for traders voyaging between the African Great Lakes, the Arabian Peninsula, and the Indian subcontinent. Unguja, particularly offered a protected and defensible harbour and even though the archipelago had few products of value, Omanis and Yemenis settled in what became Zanzibar City (Stone Town) as a convenient
authority and Colonial Administration in the history of Western Samoa, Institute of Pacific Studies, University of the South Pacific, Suva, Fiji, 1987. All mot all of the features mentioned in this work reflect the real feature of Zanzibar governance. 61http://www.zanzinet.org/zanzibar/history/ (accessed 9th March, 2014). 62Ibid, Zanzinet. 63Esmond B. Martin, Zanzibar Traditions and Revolution, London: Hamish Hamilton, 1978 and History of the World, History of Zanzibar, page 57. 64Legal and Human Rights Centre & Zanzibar Legal Services Centre, Tanzania Human Rights Reports 2012.
25 point from which to trade with towns on the Swahili Coast. They established garrisons on the islands and built the first mosques in the African Great Lakes.65
During the Age of exploration, the Portuguese were the first European power to gain control of Zanzibar, and kept it in their possession for nearly 200 years. In 1698, Zanzibar came under the control of the Sultanate of Oman, which developed an economy of trade and cash crops, with a ruling Arab elite and a Bantu general population. Plantations were developed to grow spices but the slave trade contributed significantly to economic gain, which gave Zanzibar an important place in the Arab slave trade and the Indian Ocean, equivalent of the better-known Triangular Trade. The Omani Sultan of Zanzibar controlled a substantial portion of the African Great Lakes coast, known as Zanj, as well as extensive inland trading routes.
However, sometime later, Zanzibar came into the hands of the British Empire. Part of the political impetus for this was the movement for the abolition of the slave trade. In 1890, Zanzibar became a British protectorate. The death of one sultan and the succession of another of whom the British did not approve later led to the Anglo-Zanzibar War, also known as the shortest war in history. The islands gained independence from Britain in December 1963 as a constitutional monarchy. A month later, the bloody Zanzibar Revolution, in which several thousand Arabs and Indians were killed and thousands more expelled and expropriated, led to the formation of Republic of Zanzibar and Pemba. In April of the same year, the republic merged with mainland Tanganyika, or more accurately, was subsumed into Tanzania, of which Zanzibar remains a semi-autonomous region. Since then, Zanzibar has still been engaged in a struggle to retain its autonomy and to have full determination of its political powers. In 2010, an agreement intended to solve the problem was reached after the discussions between the then Zanzibar President Amani Abeid Karume of the ruling party (CCM) and Seif Sharif Hamad, the Secretary General of the opposition party (CUF) to have power sharing. The Constitution of Zanzibar was amended after a referendum held in July 2010.66
The tenth constitutional amendment has introduced a power sharing government between the party that emerges the winner and the opposition parties during every election. Power-sharing has become a common strategy to resolve political conflicts in Africa. However, it has rarely survived for very long, and much of the scholarship on power-sharing remains largely negative. Yet Zanzibar’s power-sharing approach, points to a more positive democratic possibility. It explores the background to this development, notes some of the issues behind the move to power-sharing, and looks briefly at its implementation following the 2010 elections. The tenth amendment has introduced two positions which are the first Vice President and the Second Vice President. The President comes from the party that wins the election while the First Vice President is appointed by the President in consultation with the party that holds second position during election.67 The second vice President who is nominated from the party from which the President is elected is also
65http://en.wikipedia.org/wiki/History_of_Zanzibar (accessed 8th November, 2014). 66Ibid, Human Rights Report 2012. 67Constitution of Zanzibar, 1984 Section 39 (3).
26 the head of government in the House of Representatives. 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.68
Therefore, even with the existence of union, Zanzibar remains a semi-autonomous part of Tanzania. It has its own government, known as the Revolutionary Government of Zanzibar. It is made up of the Revolutionary Council and House of Representatives. Zanzibar has a Government of National Unity (GNU), and Dr. Ali Mohamed Shein is the current President of Zanzibar and Chairman of the Revolutionary Council from 1st November 2010. Through an agreement, the GNU was instituted when the Referendum Act No. 6, 2010 was passed by the House of Representatives, giving an opportunity to Zanzibaris to first decide on the GNU. 66.4 per cent of voters accepted the GNU. Subsequently, the tenth amendment of the Constitution of Zanzibar of 1984, which among other things, included the formation of the GNU was passed. The formation of a government of national unity between Zanzibar’s two leading parties succeeded in minimizing electoral tension in 2010. In the Zanzibar context, a GNU is defined as a government which incorporates representatives of political parties winning a seat or seats in the Zanzibar House of Representatives. A GNU is a power sharing system of political parties winning seats in the legislature. A political party which does not win a seat in the legislature cannot enjoy a share of the cake. In the spirit of good governance, and in recognition of the existence of other political parties and appreciation of the country politics, the president can invoke his constitutional powers to nominate representatives of these parties to join the House. The constitution gives the president the power to nominate ten members who qualify to be members of the House.
Currently, there is a three tier system of administration functional in Zanzibar, which is supervised by the government at the centre. This includes regional, districts municipal and town councils. As been has stated, Zanzibar is divided into five regions, three in Unguja and two in Pemba. Each region has a Regional Commissioner appointed by the President.69 Each Region is divided into two Districts that form a total of ten Districts; six Districts in Unguja and four in Pemba.70 Also there are two (2) sub-districts, one in Unguja (Tumbatu) and one in Pemba (Kojani). The head of each District administration is a District Commissioner appointed by the President.71 The Districts are subdivided into 50 constituencies, 32 in Unguja and 18 in Pemba. Below the Districts, there are in total 141 Wards. Furthermore, Wards are sub-divided into Shehia according to the geographic
68Ibid, Section 39. 69The Functions of Regional Commissioner includes;(a) monitoring, supervising, and assisting in the execution of the functions of the government in his region; (b) assuring that the policies, plans and directives of the government are observed; (c) maintaining law and order in the region in collaboration with law enforcement agencies; and (d) assuring that resources, both material and manpower are used for development in the economy to enhance welfare. Regional Commissioner is also the one who appoints Sheha after the consultation with the District Commissioner. 70According to section 7 of The Regional Administration Authority Act No.1 of 1998, The staffing and functions of the districts are similar to that of the regions thus every District Commissioner within his District exercises duties and functions exercised by the Regional commissioner as specified in paragraphs (a) (b) (c) and (d) of section 5 of this Act. 71There is also a District Administrative Officer in charge of the District administration. In addition, every District has a planning officer, a community development officer, as well as officers from sectorial ministries assigned to the District.
27 conditions and population density of the area. Under the central government governance structure, the Shehia is the lowest level headed by a Sheha who is appointed by the Regional Commissioner upon receiving advice from District Commissioner. To date there are 332 Shehias that are established under Act number 1 of 1998.72
1.6 Judiciary Historically, the Zanzibar Court System can briefly be recounted from 1964. Soon after the 1964 revolution, the Zanzibar Government abolished the former Court System which was a two tier High Court namely His Highness’ Court and Her Majesty’s High Court. His Highness Court was for the Sultan’s subjects while Her Majesty’s Court dealt with British subjects. The two tier Higher Court systems were abolished and a single uniform High court was established for all subjects which is now called the High Court of Zanzibar. Subordinate Courts were also abolished and new Subordinate Courts were established called the People’s Court of Zanzibar (Mahakama za Wananchi). However, the People’s Court existed till 1985 when it was abolished and in its place the present subordinate Courts were established under the Magistrate Courts Act 1985.
Currently, the Judiciary system of Zanzibar comprises of High Court and Subordinate Courts including Kadhis Court. The High Court is the top most court in the hierarchy and has been established under Article 93(1) of the Constitution of Zanzibar, 1984 as amended. Subordinate Courts are established by the Kadhis court Act, 1985 73 and Magistrate Court Act, 1985.74 The Kadhis court Act, 1985, established the District Kadhis which are the court of first instance and the Appellate Kadhis court which is an appellate court. The Magistrate Court Act established Primary Magistrate court, District Magistrate court and Regional court while Children Act, 201175 established the Children’s Court which is presided by the Regional Magistrate, who is considered as the Chairperson. In addition, there is also the Industrial Court which is a division of the High Court. It has been established under section 80(1) of the Labour Relations Act, 2005.The Industrial Court has jurisdiction to hear and to determine labour disputes.
Section 4 of Act No.9 of 201376 established the Zanzibar Commercial Court as one of the divisions of the High Court Zanzibar. This court was officially launched in May, 2015. In his remarks on the launching of the Zanzibar Commercial Court, the Chief Justice, Hon. Omar Othman Makungu, said the introduction of the Commercial Court will provide a great relief for the resolution of disputes relating to business matters and adjudication within a short time, where such proceedings would normally take a long time in the Court of Common. Though the Court has not been operational because of some technical difficulties including finance according to the High Court Registrar Hon. George Kazi, the Judge and the Registrar of the Zanzibar Commercial Court have already been appointed.
72Zanzibar Local Government Policy, 2014 page 4. 73Kadhis Court Act No. 3, 1985. 74Magistrate Court Act No. 6, 1985. 75Children Act No. 6 of 2011. 76Zanzibar Commercial Court (High Court Division Act) No. 9, 2013.
28 The Chief Justice of Zanzibar, Hon. Othman Makungu Othman cuts the tape to inaugurate the Zanzibar Commercial Court.
The role of the Judiciary is the interpretation of laws, adjudication of cases and administration and dispensation of justice in accordance with the country’s laws. The Judiciary is the only organ vested with authority to decide civil as well as criminal cases. Despite being part of the United Republic of Tanzania, Zanzibar enjoys full judicial autonomy from Primary Courts to the High Court because constitutionally they are not a Union matter.77 It also has a separate and distinct legal system from Tanzania Mainland even though; constitutionally they share the Court of Appeal of Tanzania.
With the introduction of Kadhis court, Zanzibar has a dual court system. Historically, Zanzibar was under the dual legal system at the time of British protectorate. Firstly, the King of Britain had authority to legislate for British subjects, by Order in Council. At this same time, he had authority to impose any Act of Parliament declared by Imperial Enactment (Application) Decree 1939, to be applicable to subjects of Sultan. These laws were more or less Common Law and Equity.78 Thus, by the Zanzibar Order in Council 1897, His Majesty’s criminal and civil jurisdiction was introduced.79 Secondly, the Sultan retained legislative powers over his own subjects which were exercised by Decrees passed by Legislative Council. Alongside, Islamic law, was applied under his courts (Kadhis’ Court – an exclusively Muslim Court), though with a number of limitations.80 Apart
77Section 114 of the Constitution of United Republic of Tanzania, 1977. 78For more elaboration on the complexity of dual application of law in Zanzibar during this period see Sidney Abrahams, “The Conflict of Laws in Zanzibar” 3rd Series, 23 Journal of Comparative Legislation and International Law 4, (1941), page 169 – 215. 79Among the law introduced by this order are India Lunacy Act; so much of the India Post Office Acts relates to offence against the Post Office; the India Divorce Act except so much as relate to Divorce and nullity of marriage; Bombay Civil Court Act; the Indian Evidence Act; The Indian Contract Act; The India Limitation Act 603, Penal Decree, Criminal Procedure Decree, Evidence Decree and others. 80The 1917 Evidence Decree, as adopted from the Indian Evidence Act, replaced the Sharī‘ah Law of Evidence in favour of English Law of Evidence. As noted above, Imperial Orders in Council and Acts of Parliament applicable to Zanzibar formed part of the laws administered in all courts.
29 from Zanzibar Decree and Imperial legislation, the corpus juris in the British Court consisted of Common Law and doctrines of equity (Zanzibar Order in Council, Article 14) whereas the Sultan’s Courts the remainder of corpus juris consisted of Sharī‘ah as understood in Zanzibar.81 The dual system was maintained until 1963 when it was terminated by the 1963 constitution and the court decree of the same year. In the changes that followed throughout the legal history of Zanzibar, the Kadhis court system was maintained.
The Chief Kadhi of Zanzibar, Sheikh Khamis Haji (centre), and his Deputy, (left)with the other Kadhis on Law Day in February, 2015 Zanzibar.
The Court hierarchy in Zanzibar has a High Court, Kadhis Courts and the Magistrates Courts in accordance with the Constitution of Zanzibar of 1984. Matters of Islamic law which are dealt in Kadhi’s Courts are final and conclusive to the High Court of Zanzibar. In addition, all matters in Chapter Three of the Constitution of Zanzibar of 1984 ends at the High Court of Zanzibar.82
The hierarchy of common law courts is the Court of Appeal of Tanzania,83 followed by the High Court of Zanzibar, the Regional Magistrate Courts, the District Magistrate Courts84 and Primary Magistrate Courts.85 The hierarchy of Kadhis Courts includes District Kadhis Court which is the lowest court, the Appellate Kadhis Court, and the High Court of Zanzibar where a Judge sits with a panel of Ulamaa.86
81J. E. R. Stephens, “The Laws of Zanzibar” Vol. 13, No. 3 Journal of the Society of Comparative Legislation New Series, (1913), page 603 – 611. 82Section 24 of the Constitution of Zanzibar. 83Section 117 of the Constitution of the United Republic of Tanzania of 1977. 84Magistrates’ Court Act No. 6 of 1985. 85Section 93 of the Constitution of Zanzibar, 1984; see also High Court Act No. 2, 1985. 86These are Islamic scholars well-versed in Islamic matters.
30 The Zanzibar judiciary is headed by the Chief Justice appointed by the President of Zanzibar. 87 High Court Judges are appointed by the President upon recommendation by Judicial Services Commission (JSC)88 while the Subordinate Courts are presided over by Magistrates who are appointed by the JSC.89 Quasi-judicial organswhich deals with specific legal matters exist in the form of tribunals.
The Zanzibar judiciary has gone through a number of developments and changesat different points of times in recent times. However, despite the improvements observed in the recent yearsthe judicial sector still faces a number of challenges and numerous shortcomings. The challenges include inadequate institutions and operational capacity, low public awareness on basic justice process and rights, poor infrastructure, delays in delivery of justice, and poor legal practice and procedure. Studies reveal that the majority of people are ignorant of laws and legal procedure which pose a major obstacle in the access to justice.
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 Constitution of Zanzibar,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.90
However, that Constitution survived only for one month following the January 12th Revolution of 1964 which overthrew the government of 1963. Immediately after the Revolution the constitution was abrogated and Zanzibar began to be ruled under Presidential Decrees.91 This meant the end of the Bill of Rights as enshrined under 1963 Constitution. The most prominent of these decrees was Decree No. 5, 1964 entitled Constitutional Government and the Rule of Law92 entitled Equality, Reconciliation and Unity of Zanzibar People.93 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.
The main reason for the banning of human rights in Zanzibar soon after the revolution of 1964 stems from the fact that human rights provisions had been incorporated in the 1963 Constitution to safeguard the interests of colonialists who among them had interest of staying further in Zanzibar.
In the period from 1964 – 1979 the Revolutionary Council acted as the legislative, the main decision and policy making body and heralded 15 years of autocratic leadership with neither a
87Section 94 of the Constitution of Zanzibar, 1984. 88Ibid, Section 94(1). 89Section 10(1), Magistrate Courts Act, No. 6, 1985. 90Zanzibar unlike Tanganyika has opted to have a Bill of Rights enshrined in her Constitution while receiving independent instruments from the British. 91Presidential Decree No 1 of 1964. 92 (No. 6 of 1964) 93Peter, Chris Maina, The Protectors: Human Rights Commission and Accountability in East Africa (2008), Page 193.
31 written Constitution nor elections. Following the merger of Afro Shirazi Party with the Tanganyika African National Union on 5th February 1977 to give rise to a new party known as Chama Cha Mapinduzi (CCM), CCM was the sole political party in Tanzania and declared to be supreme over all institutions of state.94 It was in the same year of 1977 that the permanent Constitution of United Republic of Tanzania was adopted to replace the Interim constitution of 1965.
The first post revolution Constitution of Zanzibar was adopted in 1979 which laid the foundations for the establishment of the Legislative body, Executive and the Judiciary. 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 Constitution of United Republic of Tanzania relating to Zanzibar, with only modest modifications where appropriate. The 1979 Constitution of Zanzibar was then repealed95 and replaced by new Constitution adopted under one party system entitled the Constitution of Zanzibar, 1984.96 The Constitution of Zanzibar of 1984 came into operation on the 12th January, 1985.97 The difference between the 1979 one and that of 1984 is that, the 1984 Constitution had incorporated a Bill of Rights.98
As the history of Human Rights in Zanzibar indicates in its long process, the practical operation of Bill of Rights has been problematic for a while. This has been caused by many reasons among them being the availability of national instruments to monitor and supervise the violation of human rights on the Islands as the Tanzania Commission for Human Rights and Good Governance (CHRAGG) only started its operation in Zanzibar on 30th April 200799 There was also no reporting organization, since, for a long period of time, no organization could report on the violation in Zanzibar.
Hence the first report on the Human Rights situation in Zanzibar was reported by Zanzibar Legal Services Centre in 2006.100
1.8 Conclusion Zanzibar for long time was reported to have a high degree of human rights violations. People in various capacities are reported to have contributed to the violation of human rights from time to time. The government, particularly special departments, were accused of curtaining human rights not only to the ordinary people but also among their own. This is mostly intensified during political rallies. However, the legal framework of the protection of the human rights is relatively good. Violations seem to be connected mostly with social and economic instabilities. These include the persistent and increasing burden of poverty for both men and women; inequalities in arrangements for productive activities and in access to resources; inequalities in the sharing of power and
94Oda van Cranenburgh (1995), Page 536. 95Section 134A of the Constitution of Zanzibar, 1984. 96Ibid, Section 135 (1). 97Ibid, Section 135 (2). 98Chapter three of the Constitution of Zanzibar. 99Legal and Human Rights Centre & Zanzibar Legal Services Centre; Tanzania Human Rights Report, 2007, page 182. 100Ibid page 142.
32 decision-making; lack of respect for and inadequate promotion and protection of the human rights of women; and inequalities in managing natural resources and safeguarding the environment. In this report the status of the human rights in both promotion and violation for the year 2015 is traced. Unlike the past, increased awareness of human rights and violations of human rights by various NGOs has resulted in some cases in a decline of human rights violations. More still needs to be done with regard to raising people’s awareness on this issue.
33 CHAPTER TWO Civil Rights and Liberties
2.0 Introduction It has been well established that civil liberties are personal guarantees and freedoms that the government cannot abridge, either by law or by judicial interpretation without due process. Though the scope of the term differs amongst various countries, some examples of civil liberties include the freedom from torture, freedom from forced disappearance, freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, the right to security and liberty, freedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life. Other civil liberties include the right to own property, the right to defend oneself, and the right to bodily integrity. Within the distinctions between civil liberties and other types of liberty, distinctions exist between positive liberty or positive rights and negative liberty or negative rights. All of these have direct connection with the personal rights in enjoyment of the basic civil rights.
As such, it might be important to note the difference between “civil rights” and “civil liberties.” Though civil rights and civil liberties represent two different areas of focus, there is no distinct line between the two. Although there is a certain underlying logic to the distinction between these two terms, the civil rights-civil liberties divide is actually the product of the unique constellation of circumstances that arose at a particular moment in history.101 The legal area known as “civil rights” has traditionally revolved around the basic right to be free from unequal treatment based on certain protected characteristics (race, gender, disability, etc.) in settings such as employment and housing. On the other hand, “civil liberties” concern basic rights and freedoms that are guaranteed - either explicitly identified in the Bill of Rights and the Constitution, or interpreted through the years by courts and lawmakers. Interpretations of the constitutional rights guaranteed by the Bill of Rights and federal civil rights statutes have varied widely through time and as the law evolves. While many groups view themselves as civil rights and civil liberties advocates, they use their advocacy resources in different ways. These include freedom of speech, the right to privacy, the right to be free from unreasonable searches of one’s home, the right to a fair court trial, the right to marry, the list is long.
Civil rights and liberties are the actual determinant of human personality, humanity and respect without which no one in this universe shall have the guts to raise and claim that he is a human being. The claim that, being an actual person, every individual needs to be regarded as such in the same condition as the other. The importance of these had been recognized even before the formal protection of the human rights to all. Looking at the sensitivity of this category of rights, the States party to the present covenant on civil and political rights, considered that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. They also recognize that these rights derive from the
101Christopher W. Schmidt, The Civil Rights-Civil Liberties Divide, Stanford Journal of Civil Rights and Civil Liberties, Vol. 12, 2016, Forthcoming Chicago-Kent College of Law Research Paper No. 2015 – 11.
34 inherent dignity of the human person, and in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights. This is the reason behind the obligation of states under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms.
The guarantee and protection of these rights become inevitable to the State and its agents because people are beneficiaries of civil rights and liberties and deserve protection. The State can only limit the civil rights when there is justifiable cause to do so. The rule under consideration, taken in connection with another principle of justice effectively prevents the national courts from maintaining the rights of citizens against the encroachment of the states, so far as those rights are affected by positive restrictions. A concern is also given to the individuals who are kept behind bars with regards to their civil rights. In some jurisdictions, for instance in England, it was held as late as 1982, by Lord Wilberforce that under the English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which were not taken away expressly or by necessary implication by the fact of his imprisonment.102
In that respect civil rights can be regarded as rights which are guaranteed to protect an individual’s rights against violation by states’ government or individuals. Its importance has been connected with the role they play. Civil rights play a major role to ensure to all citizens, equal protection by law and enjoy all rights and freedoms without discrimination of any type. In order to maintain the standard of the protection, different global and regional human rights instruments have been put in place. These include the Universal Declaration of Human Rights (UDHR), 1948, the International Convention on Civil and Political Rights (ICCPR), 1966, the African Charter on Human and Peoples Rights (ACHPR), 1981 and the International Convention of the Rights and Dignity of Persons with Disability (ICRDPD),2006. Many other such instruments had been created and states have also been taking individual and collective measures to ensure that the rights are not violated. Civil rights and liberties are the attributes of the enjoyment of life. Human life becomes meaningless if civil rights and liberties are not protected. Their protection is perhaps the most fundamental political value in Zanzibar society. Civil liberties are protection against government actions and they have significant support for every human being as indicated below.
2.1 Right to Life The right to life is a universally recognized right for all human beings. It is a fundamental right which governs all other existing rights. In its absence, all other fundamental rights have no reason to exist. The basis of all human rights and fundamental freedoms are the right to life because it is mother of all other rights including right to work, freedom of expression, freedom of media, right to privacy and personal security, right to freedom of movement and right to freedom of religion. In other words the rest of the fundamental rights and freedom are subordinate to the right to life without which life has no meaning. Every human being has the inherent right to life and this right must be protected by law. 102Raymond v Honey (1982) 1 All ER 756; there is a similar decision in the South African case of Minister of Justice v. Hofineyer (1993) 3 SA 131 (AD).
35 The right to life is the cornerstone of all rights with the other rights trailing after it and without the right to life all the other rights are insignificant. The right to life is a fundamental human right, central to the enjoyment of all other human rights. International human rights law recognizes this basic right as accruing at birth, and international and regional human rights bodies, as well as courts worldwide, have clearly established that any prenatal protection must be consistent with women’s rights. Different international human rights instruments have provide the protection of the right to life. In the European Convention for Human Rights, 1950, physical survival is considered as a prerequisite for benefiting from various rights and liberties. The American Convention on Human Rights (ACHR), 1969 and the African Charter on Human and Peoples Rights (ACHPR), 1981 also provided special attention to the this right.
For this reason, those framing the Universal Declaration of Human Rights gave primary emphasis to the protection of human life and made direct reference to everyone’s right to life. The United Nations adopted the Universal Declaration of Human Rights in 1948 and the International Convention on Personal and Political Rights, which reaffirmed the same idea, in 1966. Article 3 of the Universal Declaration of Human Rights of 1948, provides that: “Everyone has the rights to life, liberty and security of person”
The importance of the right to life is also identified by proclamation of the International Covenant on Civil and Political Rights (ICCPR) 1966, under article 6 (1) when it says: “every human being has the right to life, the rights shall be protected by law and no one shall be arbitrarily deprived of his life”.
In technical terms, the right to life is an inherent right. It exists by the existence of the human being. The ICCPR recognized the nature of this right and used the word ‘inherent’ denoting that, the rights is not conferred by the covenant but the covenant recognizes its existence.103 People have the right to enjoy this right not because it is the establishment of international human rights instruments but because it is the inherent right. Therefore, it is fundamental to all human beings.
Tanzania being signatory to both ACHPR and ICCPR has incorporated the right to life in the 1977 Constitution article 14 which provides that, “everyone has the right to life and equal protection of his or her life.” Zanzibar as part of United Republic of Tanzania has captured the same right in her Constitution of 1984.104
At the national level, the right to life is protected by the Constitution of the United Republic of Tanzania, 1977105 which says that; “Every person has the right to live and to the protection of his life by the society in accordance with the law.” In Zanzibar, the right to life is safeguarded by the Constitution of Zanzibar of 1984 in the section says that “every person has the right to the preservation of his life.”106 In addition to that, the Constitution gives further protection as stated
103Legal and Human Rights Centre & Zanzibar Legal Services Centre, Tanzania Human Rights Report, 2010, Page 301. 104Section 3 of Constitution of Zanzibar, 1984. 105Article 14 of the Constitution of the United Republic of Tanzania of 1977. 106Section 13 (1) of the Constitution of Zanzibar, 1984.
36 by section 13(2), where the Constitution states that every person has the right to live and to the protection of his life by the society in accordance with the law.107 This is also considered as a fundamental right.
However, there are a number of situations where the right to life is challenged. Depending on the circumstances a state may deprive persons of their lives without being held responsible for breaching international human rights law. Examples include the imposition of death penalty as a result of a judicial process and does not contravene certain minimum safeguards imposed by human rights law. Individual can also be excused even when taking the life of another person. In some cases, these exceptions are based on the premise that violence is used in self-defence. Other incidences are contributed by people themselves, where on several occasions; they are involved in activities that literally result in the causation of death, either of themselves or of another person. There might be a number of cases where a human being is deprived of life. However, for the purpose of this report, these factors are categorized in groups making it clearer to follow. The following are common factors that have contributed to the violations of the rights to life in Zanzibar in 2015.
2.1.1 Road Accidents Road accidents have been one of the main causes of the loss of the rights to life in Zanzibar. In several reports, it has been shown that road accidents have claimed a number of lives. In addition, road accidents also leave people maimed for life, unable to work and fend for themselves and their families. Records indicate that, this year road accidents have caused more deaths than in the last three years. Compared with previous reports, deaths caused by road accident have nearly doubled when compared to the previous year. Our records indicate that from 2014 to 2015 deaths caused by road accidents significantly increased from 88 deaths in 2014 to 150 deaths in 2015.
Table 2: Statistics of road accidents in Zanzibar from 2012 to December, 2015
YEAR Number of Accidents Deaths Injuries 2012 486 39 344 2013 534 29 503 2014 845 88 547 2015 26832 150 791
Source:The Zanzibar Traffic Office, Malindi.
The table below indicates the seriousness of the impact of road accidents on the lives of people involved in those accidents. In the year 2015, a total of 26,832 accidents were recorded by the Police Traffic Headquarters at Malindi. This indicates that the number of the road accidents in this year increased by over 100%. What is interesting however, at this juncture, is to look at the effects of the road accidents. Statistics show that of the total of 150 deaths in 2015 which were caused by road accidents, the majority of the people who lost their lives are male (131 deaths equal to
107Ibid, Section 13 (2).
37 87.33%) and the rest (6 deaths equal to 12.67%) are female. The difference in the number indicates that males are more involved in accidents than females. Comments from various people living in Zanzibar suggested that males are more active in socio-economic activities in Zanzibar than females and they are main users of the roads than females who most of the times stay at home. The impact of such deaths cannot be overlooked as often times, women are left widowed and helpless and with children to care for.
The records also indicate that slightly above 40% (61 out of 150) of deaths occurred in Urban West Region and the least of 10% (15 out of 150) occurred in Northern Region of Unguja and the same rate in South Region of Pemba. People who commented on the differences between the regions, established that the Urban West region is the hub for trade, business and administrative for almost all the regions. Apart from serious congestions, the infrastructure including roads signs and the traffic lights which are often not in good working conditions, ignoring traffic lights, signs boards and traffic laws, speeding and faulty vehicles together with increasing numbers of road users especially in the Urban Region, have all in turn contributed to the increasing number of the accidents.
Table 3. Road Accidents and the Deaths from January – December 2015
TOTAL SERIOUS DEATH INJURIES ACCUSED REGION MINOR FATAL ACCIDENTS ACCIDENTS ACCIDENTS ACCIDENTS MALE FEMALE MALE FEMALE MALE FEMALE U/WEST 10681 10335 346 61 59 04 327 75 10681 - SOUTH (U) 5615 5525 90 31 37 03 98 22 5615 -
NORTH 18 (U) 3650 3565 85 21 05 174 48 3650 - SOUTH (P) 4082 4056 26 15 16 01 18 - 4082 - NORTH (P) 2804 2771 33 15 13 06 29 - 2804 -
26832 TOTAL 26832 26252 580 143 131 19 646 145 -
GRAND 26832 26252 580 143 150 791 26832 TOTAL
Source the Zanzibar Traffic Office, Malindi.
We believe that the Zanzibar Road Transport Act108 that was enacted to provide for the regulation of traffic on roads and of motor vehicles and for other matters related thereto, has either not been fully implemented or otherwise it does not suit the needs. A number of road users have expressed their concern on the implementation of the Zanzibar Road Transport Act, where some of them shift the blame to the traffic police for their laxity and not being committed or loyal in performing their duties.
108The Road Transport Act, Act No. 7, 2003.
38
A vehicle as it appeared after a speeding accident in, the Central District of South Unguja region on 1st November, 2015.
ZLSC has observed that since 2014road accidents have been on the increase because of the poor road conditions, improper and reckless driving, overloading, the use of the mobile phones while driving, improper inspection of vehicles, a mix of vehicles between motorcars, motor cycles, bicycles and together with pedestrians all using the same roads and the poor designs of some roads. The increase of vehicles such as cars and motor cycles which are not in proportion to the increase or expansion of the roads has also contributed to the increasing number of the accidents and deaths. Serious measures need to be taken to redress the situation otherwise road carnage will be the top contributor to loss of life.
One of the few traffic light in Zanzibar municipality under construction.
39 Early in 2015, technicians of the Zanzibar Municipal Council in one of the exercise of maintenance of the solar powered street lights at Mlandege
No aggressive efforts are being taken by the state to reduce the number of road accidents in Zanzibar. The assignment seems to be left to police traffic alone against which complaints have been raised for being involved in corruption. In March 2015, the National Road Safety Council organized a special training for drivers, particularly for buses and daladalas, as a way of improving knowledge on proper driving and safe use of roads in Zanzibar. The training was coordinated by the National Road Safety Council in collaboration with the Police in Zanzibar and Vodacom Tanzania as part of its campaign “wait to send” that encourages drivers to avoid using mobile phones while driving. This kind of training can be very helpful in reducing the number of accidents that in turn can save lives. There is also a need to offer road safety programmes and raise public awareness on safety on the roads while traffic offenders should be dealt with severely.
The chairman of the committee on training of the national council of road safety and an officer from Malindi Police Station, Zanzibar, together give on a special message “wait to send” to a daladala driver during an exercise to provide education to different drivers. The ring prompts the driver not to use the mobile phones while driving.
40 2.1.2 Marine Accidents Cases Protection of the right to life has taken another look with regard to marine accidents, particularly the case of MV Spice Islanders I. It can be remembered the capsizing of a passenger ferry boat, Spice Islander I, travelling from Zanzibar to Pemba on 9th September, 2011, resulted in the loss of life of more than a 1,000 passengers. In 2012 a criminal case was filed against the ones who were suspected to have caused the death of the passengers.109 The prosecutions preferred two hundred and twenty nine (229) counts against twelve people were charged with the offence of manslaughter contrary to section 195 and 198 of Penal Act, No. 6 of 2014.
Ever since there has been a fair amount of legal wrangling involving the case with it being dismissed and heard again in what was seen as a tactful delaying ploy denying both sides of their rights.
The decisions taken appeared to be controversial and raised concerns among the public and even a number of lawyers in Zanzibar.110 Some family members of those who lost their lives in the disaster cried foul and blamed the court for what they regarded as a painful decision.111 The families of victims expressed concerns about the High Court of Zanzibar’s decision to dismiss the case even before it was given a fair hearing to reach a verdict.112 In 2015, the office of DPP in Zanzibar filed an appeal against the decision of the High Court before the Court of Appeal of Tanzania (CAT). The court however did not deliberate the appeal as it was claimed that the procedures for filing the appeal were not complied accordingly. The CAT then ordered the case to be re-appealed by conforming with the procedure.
Marine transport problems have not been well addressed in Zanzibar. There are several cases of mishaps and insecurity reported each year with regard to the failure of the boats or the bad weather. The Spice Islander disaster was followed a few months later by another marine tragedy again resulting in the loss of several lives. In January this year, at least 345 passengers from Unguja who were to travelling to Pemba were stranded at Malindi Port after extreme bad weather in the Indian Ocean cut short their journey. The passengers who were on board included 61 children were told to go home until alternative arrangements could be made. The quick thinking and right decision by the captain averted what could have been another marine disaster.113 What was surprising though is that Zanzibar Marine Transport Authority was aware of the bad weather and that the information was shared to all boat captains but yet the boat was allowed to sail with a bad weather alert in place.
109Minister of Justice v. Hofineyer (1993) 3 SA 131 (AD). 110Mwinyi Sadallah, Mwananchi, Wanasheria wapinga kufutwa kesi Z’bar, Mwananchi, Monday 7th July 2014, http:// www.mwananchi.co.tz/habari/Kitaifa/Wanasheria-wapinga-kufutwa-kesi-Z-bar/-/1597296/2374704/-/11yvlmsz/-/ index.html, (Accessed on 11th October, 2014). 111The Citizens, Ferry Disaster Case Verdict Calls For Judicial System Shake-Up, Sunday, 13th July 2014, http://www. thecitizen.co.tz/oped/Ferry-disaster-case-verdict-calls-for-judicial-system-shake-up/-/1840568/2382304/-/ehv40x/-/ index.html (Accessed on 11th October, 2014). 112Mwinyi Sadallah, Correspondent, Zanzibaris Cry Foul Over Boat Case, The Citizen, Friday, 4th July, 2014, http:// www.thecitizen.co.tz/News/Zanzibaris-cry-foul-over-boat-case-/-/1840392/2371588/-/13k52tcz/-/index.html, (Accessed on 11th October, 2014). 113Abdul Omar Maalim , Zanzibar Marine Transport Authority.
41 2.1.3 Murder In literary connotation, murder is a violation of the right to life. Since, the right to life is considered so fundamental it can never lawfully be restricted, even in times of war or emergency. The absolute nature of this right does not, however, mean that it is never lawful for the state or individual to kill. In killing, what is prohibited is the arbitrary or unlawful deprivation of the life of another person. This means that there might be some few exceptions to the presumption that the state and individual must not kill. These include the death penalty provided it complies with certain safeguards, though is objective; certain killings are seen as necessary measures of law enforcement or certain killings committed in armed conflict.
The right to life may thus be viewed as a continuing duty of the state to create general conditions and systems protecting the right to life, and as a specific duty, to fulfil those conditions and use the systems in each individual case. It is essential, when submitting an allegation of violation of the right to life, to remember to consider all aspects of the potential violation in order to maintain the right to life and deal with the ones who caused the death of another. The central focus of any allegation is establishing the responsibility of the state for the breach of one of the obligations flowing from the right to life, making a link between the state and the circumstances surrounding the death. Since the right to life encompasses positive obligations to prevent killings, to conduct an effective investigation where a suspicious death has occurred and to provide an effective remedy where a death has occurred at the hands of state officials, it may be enough to provide evidence of, for example, the state’s failure to act, or of the inadequate nature of the investigation, in order to establish the responsibility of the state.
The obligation on the state to guarantee the right to life goes well beyond the mere obligation to refrain from killing. It is composed of other four major elements namely; the prohibition of arbitrary killing, the obligation to protect the right to life, the obligation to conduct an effective investigation, and the obligation to provide an effective remedy. This has been a reason for enacting a provision for murder. In principle, murder is the unlawful killing of another human accompanied by the malice aforethought. In Zanzibar laws based on the Penal Act No. 6 of 2004, murder is a serious offence which attracts the harshest punishment of death penalty. Generally, the killing of this kind is considered to be associated with the premeditated state of mind which is in all cases distinguishes murder from other forms of unlawful homicide. Despite all of these prohibition, there still some cases reported in this year which involved the act of killing another human being.
In the year 2015 there was a total of eight murder cases filed before the High Court. All of these cases are pending and no record of the judgment was reported in this year.
2.1.4 Suicide Suicide (Latin suicidium, from sui caedere, “to kill oneself”) is the act of intentionally causing one’s own death. In most cases suicide is reported to have often carried out as a result of despair, the cause of which is frequently attributed to a mental disorder such as depression, bipolar disorder,
42 schizophrenia, borderline personality disorder,114 alcoholism, or drug abuse.115 Stress factors such as poverty or troubles with interpersonal relationships often play a role. Suicide is very rampant is some jurisdictions, though there are few cases of suicide in Zanzibar. In United States, for example, suicide ranks as the 10th leading cause of death. Globally, an estimated 700,000 people take their own lives annually.116
Different studies have revealed that there are different factors that affect the risk of suicide including psychiatric disorders, drug misuse, psychological states, cultural, family and social situations, and genetics.117 Mental illness and substance misuse contribute to suicide and frequently co-exists.118 Other risk factors include having previously attempted suicide,119 the ready availability of a means to take one’s own life, a family history of suicide, or the presence of traumatic brain injury.120 Socio-economic problems such as unemployment, poverty, homelessness, and discrimination may trigger suicidal thoughts.121
2.1.5 Mob Violence Mob violence or sometimes known as mob justice is the practice whereby a mob, usually several dozens or several hundred persons take the law into their hands in order to injure and kill a person accused of wrongdoing because they feel that the police are not doing enough. The issue of the victim’s life is usually secondary, since the mob serves as prosecutor, judge, jury and executioner. Mob violence has been practiced in many societies in the world for a very long time.122
In most of the cases it is contended that when the legal system cannot be trusted due either to feeling of social inequalities or corruption, angry and disenfranchised people resort to mob violence when frustrated. Many law enforcers in Tanzania have failed to deliver and people have to live with the fear that they are not well protected. Corruption has affected the police department, the courts and other government agencies. Therefore, when a suspected criminal is apprehended and is handed over to the police, many are able to either negotiate their way out using the intricacies of the law or through corruption. This further alienates the public who think that the police and
114Paris, J (June 2002). “Chronic suicidality among patients with borderline personality disorder.” Psychiatric Services (Washington, D.C.) 53 (6): pages 738–42. 115Hawton K, van Heeringen K (April 2009). “Suicide”. Lancet 373 (9672): 1372–81. 116Comer, .RJ., Suicide: Abnormal Psychology (6th ed.) New York, NY: Worth Publishers; 2007. 278-307. 117Hawton, K; Saunders, KE; O’Connor, RC (Jun 23, 2012). “Self-harm and suicide in adolescents”. Lancet 379 (9834): 2373–82. 118Vijayakumar, L; Kumar, MS; Vijayakumar, V (May 2011). “Substance use and suicide”. Current opinion in psychiatry 24 (3): 197–202. 119Chang, B; Gitlin, D; Patel, R (September 2011). “The depressed patient and suicidal patient in the emergency department: evidence-based management and treatment strategies”. Emergency medicine practice 13 (9): 1–23 120Simpson, G; Tate, R (December 2007). “Suicidality in people surviving a traumatic brain injury: prevalence, risk factors and implications for clinical management”. Brain injury : [BI] 21 (13–14): 1335–51. 121Qin P, Agerbo E, Mortensen PB (April 2003). “Suicide risk in relation to socioeconomic, demographic, psychiatric, and familial factors: a national register-based study of all suicides in Denmark, 1981–1997”. Am J Psychiatry 160 (4): 765–72. 122Milton M. A History of the American Negro 1865–1916. New York: ThomasY. Crowell Company; 1964.
43 courts are favouring criminals. The public therefore thinks that it is counter-productive to handover such criminals to the system of justice and instead take the law into their own hands. Another reason for the apparent increase in crimes such as robbery and stealing is the increasing level of unemployment due to retrenchments or lack of job opportunities. The gap between the rich and poor is also widening. It can be said therefore, that mob violence is a manifestation of a failing judicial system and unequal economic system that favours those who are already rich. This leads to certain social groups deciding to develop and dispense out their own system of social justice.
This is what happened to one unidentified young man who was suspected to be a thief and was beaten to death by angry villagers of Kibele. It was reported that people were heard to have said that this person had been involved in many cases of theft around the area. These thefts were reported to Fuoni Police station but no action was taken. On a given day, while in the process of attempting to steal, the young man was alleged to have been caught breaking into a house and the occupant called for help. Soon after that, the villagers surrounded the house and the suspect was taken out and they started beating him. His body was found by the roadside in the morning.
Mob violence is a social, economic and legal problem and constitutes about 13% of all the forensic autopsy cases performed at the Department of forensic medicine. According to Paul Ng’walali and James Kitinya, mob violence is considered a social, legal and public health problem in Tanzania that needs immediate attention. The causes are deep rooted – the unemployment of youth and perceived economic inequalities and a judicial system which is not seen to work with cases of corruption not being punished. As a result people will continue to organize their own trials and judge their suspects in the street. These problems must be tackled in order to reduce the growing incidences of mob violence, hence saving lives. It must be ensured that criminals do not violate the freedom, dignity and respect of each and every human or member of the society.123
On 23rd January, 2015, two men who were suspected to be armed robbers were reportedly killed by being beaten by citizens and special police anti-robbery department. They both died while being rushed to Mnazi Mmoja referral Hospital, Zanzibar for treatment. The Head of Criminal Investigation of Urban West Region Unguja, Mr. Simon, said that one of them was Khamis Othman Elder (45), a resident of Matale, Chake Chake small town of Pemba and the other deceased was simply known by the name of Khamis Mabunduki who was accused of various cases of robbery, has not been officially identified.
123Paul M Ng’walali and James N Kitinya, Mob violence in Tanzania: a medico-social problem, Afr. Health Sci. 2006 March; 6 (1): 36–38.
44
Anti-Armed Robbery Police officers with firearms at Darajani.
It was said that the police received information that a Tigo-Pesa agent had a bag containing six Tecno phones stolen at Mnazimmoja by unidentified people who immediately fled by car. After receiving the information, the police opened a police case file and then began a search for the suspects. The robbers were arrested at 2.00pm when they were trying to escape but were hampered by civilians at Darajani. The suspects were caught after an exchange of fire with Police while trying to escape. In that incident a number of civilians were injured and three bystanders were killed when they were run over by the car used by the suspects. The suspects were also found with a rifle and 33 bullets and seven remnants of used bullets, two swords and mobile phones.
The car believed to have been used in the robbery in front of the Darajani School.
45 ZLSC is of the view that mob violence is reported as a human rights violation every year. Properly coordinated efforts by law enforcement officers need to be put in place and it would be advisable that the prosecuting attorney arranges for meetings with them to outline procedures before any need arises. At such meetings, instructions should be given to ensure an orderly and effective modus operandi on preventing and responding to mob violence. A tactical plan should be arranged so that all law enforcement officials and officers are well acquainted with transportation facilities and routes, communication procedures and command headquarters.
In addition, particularly in mob involved organized groups, the police should be instructed in the use of Polaroid cameras (which should be made available to them) to photograph arrestees and arresting officers at the time of the arrest. Law enforcement officers should be equipped with tape recorders and bull horns. This can be of great value in preserving and recording warnings given at the scene and for future use in courts as evidence.
2.1.6 Death Penalty The Death Penalty means taking away the life of a convicted person in the course of the execution of the order by the court. It is also referred as a capital punishment that denotes a legal process whereby a person is put to death by the state as punishment for a crime. The judicial decree which orders someone to be punished to death is known as a death sentence while the actual process of killing the person is referred as an execution, and the crimes resulting into death penalty are known as capital crimes.124
Though the Constitution of Zanzibar recognises the right to life as one of the fundamental rights and freedoms, it should, however, be noted from the outset that the safeguard accorded to this right, which has been regarded as the most important of all human rights,125 ‘the mother of all human rights’ and a foundation for other rights, is not absolute. Its enjoyment and protection is subject to the laws. Interestingly, two consequences arise from this. One, no human life can be taken unless the law so provides and it is so ordered by a competent authority, here being the Judiciary. Secondly, human life can be lawfully taken where it is so sanctioned by law as it is commonly known as capital punishment.
Capital punishment has been practiced by many societies in the past, and they are still, about 58 nations, which are actively practicing it. It was reported in 2014 human rights report that about 97 countries have abolished it, and the remaining have not applied it for ten years or allow it only in exceptional circumstances such as a war crime. The methods used for executing death penalties vary from state to state, but the most common methods are; hanging by the neck, using gas chamber, use of lethal injection, using electric chair and stoning to death.126
124Capital crime, one for the punishment of which death is inflicted, http://legal-dictionary.thefreedictionary.com. 125Helen Kijo-bisimba and Chris Maina Peter, 2005: Justice and Rule of law in Tanzania; Selected Judgments and Writings of Justice James L. Mwalusanya and Commentaries. 126Legal and Human Rights Centre and Zanzibar Legal Services Centre, Tanzania Human Rights Report 2012.
46 The death penalty has for a long time been in the minds of many human rights activists who consider it as inhuman and maintain that it goes again the standards of the human right to life. In that regard there has been worldwide campaign to call for the abolition of the death penalty. International instruments have introduced various prohibitions as the way of combating capital punishment. Article 3 of the Universal Declaration of Human Rights provides that; everyone has the right to life, liberty and security of person.127 Another international instrument that prohibits the death penalty is the International Covenant on Civil and Political Rights of 1966, which also condemns the penalty as it provides under Article 6 (2)128 that; “…for the countries which have not abolished death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime…”
The second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) 1989 requires all signatory states to abolish death penalty in their jurisdiction.129 The execution of the death penalty is also condemned by UN Resolution No. 50/1984. The resolution urges states not to execute the death penalty to groups of people below the age of 18, pregnant women or insane people and the punishment only be carried out after legal process with all possible safeguard of fair trial including legal assistance.130
Efforts of campaigning for the abolition of the death penalty have been remarkable in a number of the jurisdictions. International and regional organizations fighting for human rights throughout the globe are working closer to ensure that the right to life is protected. The Protocol to the American Convention on Human Rights to Abolish the Death Penalty, adopted by the General Assembly of the Organization of American States in 1990, provides for the total abolition of the death penalty but allows states parties to retain the death penalty in wartime if they make a reservation to that effect at the time of ratifying or acceding to the Protocol. Any state party to the American Convention on Human Rights can become a party to the Protocol. Similarly, the Canadian Charter of Rights and Freedom 1982 provides in article 17 that: “Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The phrase “principles of fundamental justice” is lacking in specificity and is imprecise.
The Council of Europe played a leading role in the battle for abolition, believing that the death penalty has no place in democratic societies. So far, all countries in Europe have abolished the death penalty or instituted a moratorium on execution. This can be reflected in Protocol No. 6 to the European Convention on Human Rights. It followed an initiative from the Parliamentary Assembly to abolish the death penalty in peacetime and was adopted in April 1983. In 2002, another important step was taken with the adoption of Protocol No. 13 on the abolition of capital punishment in all circumstances, even for acts committed in time of war. The Council has made abolition of the death
127http://www.un.org/en/documents/udhr/index.shtr (accessed on September 15th 2014. 128The International Covenant on Civil and Political Rights of 1966. 129Optional Protocol of ICCPR, Article 1 of 1989. 130http://www.unodc.org/pdf/compendium/compen “Safeguards Guaranteeing Protection of Rights of Those Facing Death Penalty 2006.
47 penalty a prerequisite for membership. As a result, no execution has taken place on the territory of the organization’s member states since 1997.
With regard to Africa, the African Charter on Human and Peoples Rights, 1991, under Article 4 recognizes that no person may be arbitrarily deprived of his life. Many countries, including Tanzania, ratified the ICCPR, but they are yet to ratify the Second Optional Protocol to the ICCPR which provides for the total abolition of the death penalty; but allows States parties to retain death penalty in time of war if they make a reservation to that effect at the time of ratifying or acceding to the Protocol. Though we are celebrating 51 years of the independence we still cannot find any official reason why Tanzania did not ratify the protocol in spite of its ratification of the African Charter. On several occasions, Amnesty International argues that death penalty in Tanzania constitutes a violation of fundamental human rights that is, the right to life and the right not to be subjected to cruel, inhuman and degrading treatment. Much as it is legal to execute a person under sentence of death, in some jurisdiction it has been established that it is clearly a breach of the right to life to execute a convict before his appeal is determined.131
During 2015 ZLSC has been involved in a new project funded by DFID called UHAKIKI. This project is helping to strengthen the tracking, analysis, reporting and advocacy on key civil and political rights – including the Death Penalty. A trend analysis by the UHAKIKI project indicates that the number of sentences on the death penalty in Tanzania has risen over the past four years, indicating that 91 sentences were issued in 2014. Data from 2010 to 2014 has been placed on a graph to visualize this trend.
Death Penalty Sentences and Executions From 2010-2014132
131Nosiru Bello v Attorney-General Oyo State (1985) 5 NWLR (Pt 45) 825. 132Amnesty International (2015). ‘Death Sentences and Executions 2014.’
48 This data reveals a significant increase in the number of recorded death sentences in 2014. Amnesty International indicates that the rise is partly due to authorities providing more complete data.133 Interestingly, while 91 people were sentenced to death in 2014, 59 death row prisoners were exonerated (freed from blame or acquitted of criminal charge) in 2014. What is unclear is what proportion these 59 people were exonerated from sentences in 2014 and other years.
The UHAKIKI project has piloted a human right index which involves getting perceptions from Human Rights Monitors and Paralegals in Zanzibar and Tanzania Mainland around key indicators on the death penalty, namely to gauge their views on whether community members support the death penalty (low score – out of 5) or supporting alternative means of reconciliation and justice (high score – out of 5). Overall, it appears from the pilot survey that the death penalty receives less support in Zanzibar (where there is an average score of4.32 out of 5) compared to the country average score of 3.63.
Table 4: Right to Life-Death Penalty Average Values for Each Region Regions Average scores Pemba Kaskazini 4.6 Pemba Kusini 4 Unguja Kaskazini 4.4 Unguja Magharibi 4.2 Zanzibar Kati/Kusini 4.4
The campaign and efforts for abolishing the death penalty faces a lot of challenges. Not only because there is a reluctance on the part of the government to take the initiative in changing or reviewing the law, though it allows the discussion on the matter, but there is also the sentiment that the harder the punishment, the less are the crimes are committed. In our observations ZLSC has found that there is a feeling that death penalty is a retributive. If it is going to be applied for other offences such as rape, it will help to reduce the increasing number of rape cases in Zanzibar. This feeling raises a doubt on the combined efforts of fighting against death penalty.
On the other hand the political will and judicial readiness is not affirmed with the change of the traditional approach on the perception of the death penalty. From judicial processes, the attempt to have this penalty abolished was through the bold decision of Justice Mwalusanya in the High Court case of R. v. Mbushuu and Dominick Mnyaroje and Another134 in which he declared the death penalty an inherently cruel, inhuman and degrading form of punishment and therefore violates the Constitution. However, this declaration was soon rendered ineffective by the Court of Appeal which, despite sharing the position that the death penalty and the mode of execution
133Ibid p. 6 134High Court (Dodoma) Criminal Sessions Case No. 44 of 1991 reported in [1994] 2 LRC 335.
49 used in Tanzania is inherently inhuman, cruel, degrading and offends the right to dignity, declined to declare it unconstitutional, holding that the imposition of death penalty is lawful, not arbitrary and hence constitutional as is stated by Article 30(2).135 It is therefore evident that our supreme court has the same perception that death punishment is meant to reform a criminal. But a difficult question that emerges is whether the imposition of the death penalty can reform anyone let alone deter crime if those convicted to die are not given time to contemplate on their crime.
It can be observed therefore there are a number of international frameworks which call for the total abolition of the death penalty but allow states to retain and practice it in time of war if they make a reservation to that effect at the time of ratifying or acceding to a Protocol. This could be one among the factors that has made Tanzania; reference is made to Zanzibar, not to take a call of abolition of the death penalty very serious. Therefore, despite various campaigns against the death penalty, Zanzibar still upholds and issues death sentences. The death penalty is provided under Zanzibar law. For instance, part VI of the Penal Act136 provides for various penalties which courts in Zanzibar can issue including the death penalty. The types of offences for which death penalty may be inflicted are; entering Zanzibar with intent to organize a counter revolution,137 treason,138 instigating invasion,139 murder and child destruction.140
In Zanzibar the death penalty is executed through hanging to death.141 Limitations however are imposed, without prejudice to any law, with pregnant women and children below the age of 18 being exempted from given the death penalty.142 In addition, the execution of the death penalty cannot be implemented without the approval of the President.143 Generally the execution of death penalty has been problematic in Zanzibar and has for a long time been condemned by the general public for not being executed according to the religious belief of the majority of the population
The Constitution of Zanzibar of 1984 states “every person has the right to the preservation of his life.”144 The provision is short, apt and clear, that no one should be deprived of life. But section 13(2), the same Constitution states that every person has the right to live and to the protection of his life by the society in accordance with the law.145 This provision provides an exception on such grounds as are established by law and are consistent with the principles of fundamental justice. Thus, if the death penalty is imposed by a constitution under certain circumstances as derogation from the right to life, it will not be correct to say that it violates the right to life.
135Mbushuu and Dominick Mnyaroje and Kalai Sangula v. Republic, Court of Appeal of Tanzania (Dar es Salaam) Appeal No. 142 of 1994 Reported in [1995] 1 LRC 216. 136 Penal Act No. 6 of 2006. 137Section 29 of the Penal Act, 2004. 138Section 28, of the Penal Act, 2004. 139Ibid, Section 30. 140Ibid, Section 217 (1). 141Section 305 (1) of Zanzibar Criminal Procedures Act, 2004. 142Ibid Section 305 (2). 143Ibid, Section 310. 144Section 13 (1) of the Constitution of Zanzibar, 1984. 145Ibid, Section 13 (2).
50 There is still a continuous campaign aimed towards the government and judiciary for the abolition of the death penalty. The campaign however is challenged by a number of people and some religious groups. Though the abolition of the death penalty has nothing to do with religion, it is secular, there are those religious leaders who support it and it is therefore associated in particular with Islam. For the public majority it is considered that a killer needs to be killed. From the government, no effort, talks, campaigns to psychological preparation of that, is something that will change.
For several decades the question of whether or not capital punishment should be retained has been a topical and controversial issue in Zanzibar. There has been much debate on this matter. Human rights defenders and organizations – such as ZLSC and LHRC - which are opposed to the punishment have branded judicial death sentences as brutal, inhuman and degrading. They vehemently argue that it is morally wrong for the state to kill people, no matter how terrible the murders are that they have committed; that the whole process of dealing with prisoners condemned to death and finally executing them is an extremely sordid one, which debases state institutions, that the death penalty has no greater deterrent effect than life imprisonment, that no system of criminal justice is infallible and innocent persons could end up being hanged by mistake.
Many people ardently support the retention of the death sentence for murder. The main basis for supporting the use of the death penalty is perceived as an effective deterrent, but even more stems from the deep conviction that the death sentence is a just retribution; murderers have seen fit to kill people and therefore they too deserve to die.
Unsurprisingly then, the vast majority shows no sympathy for the abolition. However, people do not really get to understand the suffering as a result of death penalty. Those who feel it, are those on death row. ZLSC officials who visited “Kinua Miguu” – prison – found a number of prisoners who are on death row. An interaction with these people indicated that they have been sentenced to execution, some of them several years back, but they are not executed.146 This keeps them waiting hopelessly and under mental torture and torment because of the fear that one day they will be executed.
The death penalty is still applied in Zanzibar particularly for a conviction of murder. The judiciary is left with no option as the law was not changed. ZLSC is leading a campaign for change and has been joined by ZAFELA (Zanzibar Female lawyers association), TAMWA and other NGOs and civil organizations.
At the moment there is no shift in interventions. Death penalty is still considered to be a difficult issue. At one time, the Zanzibar President Ali Mohamed Shein has described the death penalty as “a very difficult issue” because it concerns “all the people and is attached to some people’s ideologies and religions.” Dr. Shein told the meeting of East African Judges and Magistrates meeting being held on the Isles in August 2013, that as per the Constitution and the Universal Human Rights, the right to life is for all without discrimination.
146The records indicate that the execution of this sentence has nonetheless not taken place since 1994.
51 Efforts to campaign the abolition of the death penalty are still ongoing in Zanzibar. This year the Death Penalty Day, marked worldwide on 10th October every year,147 was commemorated at Chake-chake - Pemba. ZLSC joined other national and international campaigners against the death penalty.
Commemorating the international day against the death penalty in Pemba are Mr. Khalfan Mohamed Amour (standing), Siti Salim Habib (right), the Officer in Charge of the Ministry of Justice and Constitutional Affairs, Omar Khamis and the ZLSC Coordinator, Fatma Hemed Khamis (extreme left) (Photo by Haji Nassor, Pemba).
ZLSC marked Death Penalty Day by inviting people to discuss and give their views concerning death penalty. The stance taken by Centre is to abolish death penalty because it is against the right to life and it contributes to infringing human rights. Many expressed their concern as the death penalty is seen ultimately as being a cruel, inhuman and degrading punishment that violates the right to life. It was also added that the death penalty is irrevocable and can be inflicted on the innocent.
2.1.7 Extrajudicial Killings An extrajudicial killing is the killing of a person by government authorities without the sanction of any judicial proceeding or legal process. This is normally characterized by excessive use of force by security forces at roadblocks, during patrols, at police stations, in the course of violence, disturbances and pro-democracy rallies, when combating crimes or dealing with detained persons. The killings are by their nature unlawful since they bypass the due process of the legal jurisdiction in which they occur. They often target leading political figures, trade unionists, dissidents, religious and social figures and activists who sometimes include journalists, and may be carried out by the state authorities such as the armed forces or police.
Extra judicial killings are a clear violation of human rights. Under international law, governments are obliged to bring to justice people who have been identified as having participated in extrajudicial executions and other unlawful killings. Moreover, this applies not just to those who commit killings, but also to those superior officers who knew or should have known that their subordinates “are resorting or have resorted to the unlawful use of force and firearms, and they did not take measures in
147The first World Day against the Death Penalty took place in 2003. This event was launched by the World Coalition against the Death Penalty, which gathers international non-governmental organizations (NGOs), bar associations, unions and local governments from all over the world.
52 their power to prevent, suppress or report such use.”148 Similarly, Principle 19 of the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions states: “Superiors, officers or other public officials may be held responsible for acts committed by officials under their authority if they had a reasonable opportunity to prevent such acts.”
In some of these types of incidents, the police often claim that suspects were shot while trying to escape custody. Such claims are often highly implausible as it is unlikely that suspects indeed attempt to escape. Either way, such claims are irrelevant. The lethal use of force to prevent escape is prohibited under international standards unless there is an imminent threat to life.
Many reports of extra judicial killings in Zanzibar are recorded as being caused by unnecessary and unlawful use of firearms by the police or auxiliaries including KMKM, and JKU. This has been not a question of a few isolated cases, but of a widespread phenomenon. Many unlawful killings happen during police operations. In other cases, the police shoot and kill suspects who may have failed to surrender. Some are killed in the street because, as the police later claim, they are “armed robbers”; others are killed after arrest, allegedly for attempting to escape. Many disappear in police custody – and are alleged to have been extra judicially executed. This year, however, has not seen any report of killings of this kind.
2.2 Freedom from Torture Torture is the act of deliberately inflicting physical or psychological pain on an organism in order to fulfil some desire of the torturer or compel some action from the victim. By definition, torture is a knowing and intentional act which inflicts pain or harm; any deed which unknowingly or negligently inflicts pain without a specific intent to do so is not typically considered torture. In practice any act which is carried out or sanctioned by individuals, groups, and states so as to inflict pain on another, is considered to be torture. It can be inflicted for reasons of punishment, revenge, political re-education, deterrence, interrogation or coercion of the victim or a third party, or simply the sadistic gratification of those carrying out or observing the torture. The torturer may or may not intend to kill or injure the victim, but sometimes torture is deliberately fatal and can precede a murder or serve as a form of capital punishment. In other cases, the torturer may be indifferent to the condition of the victim.
The most widely accepted definition of torture internationally is that set out by Article 1 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT): ...’torture’ means 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 is suspected of having 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 an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
148Principle 24 of the Basic Principles on the Use of Force andFirearms by Law Enforcement Officials.
53 From this definition, it can be said that torture is the intentional infliction of severe mentalor physical pain or suffering by or with the consent of the state authorities for a specific purpose. It is often used to punish, to obtain information or a confession, to take revenge on a person or persons or create terror and fear within a population. Some of the most common methods of physical torture include beating, electric shocks, stretching, submersion, suffocation, burns, rape and sexual assault. It can also include psychological forms of torture and ill-treatment, which very often have the most long-lasting consequences for victims and commonly include isolation, threats, humiliation, mock executions, mock amputations, and witnessing the torture of others.149
For this reason, the IRCT places a great emphasis on collective action aimed at the universal ratification of the Convention. Persons who reside in countries that have not ratified ithavea very important role in lobbying within their own society. Persons who live in countries that have already ratified the Convention may also contribute to the cause through education and awareness raising activities promoting the cause of universal ratification of the Convention. Ratification of the Convention obligates governments to assert responsibility for the prevention of torture and the redress for victims of torture. While the global fight requires the active support of all people, the government of a given territory is ultimately responsible for any torture that occurs within its boundaries. Individual governments, therefore, must take it upon themselves to take part in the struggle against torture. Ratification of the Convention is often a necessary first step in this process. At the international level, Article 5 of the UDHR and Article 7 of the ICCPR condemns the act of torture, inhuman or degrading treatment of human beings. Tanzania has ratified the convention and state agents are required to respect UN ambition to respect people’s rights. Based on this, there are several domestically enacted to protect the suspects’ rights in Zanzibar. The first and the most important is the Constitution of Zanzibar (1984), Criminal Procedure Act No 7 of 2004. Under the Act, the procedure provides a mechanism for the handling of the suspect before arrest during arrest and after arrest. Also Police Force and Auxiliary Service Act (1958) R: E 2002. Cape 322, explains the police powers and its limitations over the suspects and arrestees.150 However, despite all of these, acts of torture in Zanzibar have been reported several times.
Freedom from torture is amongst the most important rights to life. Ensuring better enjoyment of the life, Section 13(3) of the Constitution of Zanzibar provides for the right to dignity of human persons. It provides that “it is prohibited for a person to be tortured, inhumanly punished or to be given punishments which are degrading and humiliating.”151 This provision guarantees the protection against all forms of torture.
Many countries including Zanzibar prohibit torture. Under International Law, it is regarded to be a violation of human rights and is declared to be unacceptable by Article 5 of UDHR,152 “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” In
149http://www.irct.org/what-is-torture/defining-torture.aspx, (accessed on 7th May, 2015). 150Police Force And Auxiliary Service Act 1958 Cap 322 Section 27. 15113(3) of the Constitution of Zanzibar. 152http://www.un.org/en/documents/udhr/index.shtr, (accessed on 7th May, 2015).
54 article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,153 “torture’’ is defined 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 confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or 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 an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
There have however been allegations of torture in Zanzibar especially during the end of the year where the police and some of the Special Departments of the Revolutionary Government of Zanzibar are said to be involved. Various acts of terror that cause people suffering whether physical or psychological have also been reported in the year 2015.
2.2.1 Street Tortures In the year 2015, there have been several reports on groups of people - believed to be members of the Auxiliary Police from the Revolutionary Government of Zanzibar combined with disadvantaged youth and soldiers in training, commonly known as “Zombies,”- invading political party gathering places, popularly known as maskani, offices, public places and even some individual homes and beating, harassing, torturing civilians. In most cases, it has been reported that these groups generally invade areas where members of the opposition parties are mostly found.
The above two pictures show Zombies alleged to be members of Police force and the Revolutionary Government of Zanzibar during one of their operations.
153One thing to note however that, Tanzania is has not ratified Convention against Torture, 1984 though both Constitutions condemn all kinds of torture.
55 These cases were increasingly reported between September 2015, and December, 2015. In November, 2015 one of the leaders of CUF reported that the soldiers, popularly known as “Zombies,” and carried fire arms, attempted to invade Vuga, area in the middle of the stone town. A day before that, the same group of people, tried to invade the CUF Headquarters at Mtendeni.154 The information given by the Office of the Director of Information and Communication of the CUF, said many ‘soldiers’ arrived at Mtendeni at midnight overwhelming the guards who were outside the office. The ‘zombies’ then tried to force open the door but failed to do so because of resistance from the guards. The exchange continued for some time before riot police force (FFU) arrived at the scene. There is speculation that the FFU were sent by the IGP, Ernest Mangu, who received a call from one of the spectators.
The masked “zombies,” who in most cases are alleged to be associated with the CCM zealots, have destroyed meeting places and properties of people and terrorized them. These groups of masked men have been terrorizing Zanzibar Town with impunity since the election process started back in September 2015. Their activities have been reported to the Zanzibar Police headquarters on several occasions but the police have chosen to turn a blind eye or said they are not aware of the existence of these groups.
The picture shows the destruction done by zombies at the CUF maskan known as ‘Commonwealth Michenzani’.
2.2.2 UAMSHO and Terrorism The over-reported case of members of UAMSHO has been raised again this year though now in a different form in which the members of UAMSHO are taken to be suspects of terrorism. In May 2015, the government of the United Republic of Tanzania was alleged to have carried out inhuman acts on some 23 leaders of the Association for Islamic Mobilisation and Propagation
154Jabir Idrissa, Mazombi wahangaika kuvamia CUF, Mwanahalisi Online, of 2nd November, 2015, http:// mwanahalisionline.com/mazombi-wahangaika-kuvamia-cufhttp://mwanahalisionline.com/mazombi-wahangaika- kuvamia-cuf/ (Accessed on 2nd December, 2015).
56 (UAMSHO). The allegation was raised at Parliament by Mr. Muhammad Ibrahim Sanya (Member of the Parliament Mji Mkongwe – CUF) who asked the Prime Minister to act on the allegation. He was reported to have said “We have information that these people (UAMSHO leaders) are being subjected to inhuman acts that I cannot mention openly before this Parliament…why don’t you allow Parliament to form a probe committee to investigate these claims?” 155
In response, the Prime Minister Mizengo Pinda, said he did not have adequate information on the alleged inhuman acts and directed the Ministry of Home Affairs to investigate the matter and present their findings to him.
The UAMSHO leaders are currently in remand prison and facing terrorism related charges. Previously there were public queries ass to how people from Zanzibar are to be charged and prosecuted in Tanzania Mainland while Zanzibar has its laws and the court. In response to the question raised by a member of the House of Representative – Mtambwe, Pemba, Salim Abdalla Hamad, the Minister in the Office of the Second Vice President, Mohammed Aboud, was reported to have said that there is no harm in prosecuting members of UAMSHO in mainland courts because the procedure allows so.156
In our view the UAMSHO case is still a mystery. Though a number of justifications have been given by the government authority, there are number of questions that still remain unanswered. We do not object to the due process of the law, but on how manifestly the process is considered to be just. There is the concern of many people from Zanzibar as to why the suspects were taken to the mainland as if Zanzibar does not have due and proper process of the law. ZLSC calls for a proper solution of this issue and clear administration of justice. If UAMSHO members were involved in any criminal offence, the law has to take its due course and prosecute them and if found guilty they have to be given due punishment. But again if they have no case to answer, they should not continuing suffering.
In addition, early this year Zanzibar was on the front pages of the newspapers of having produced what was believed to be terrorists. In Toronto, March 2015 there had been reports of Ummul Khayr Sadir, a 19 year old Tanzanian girl who had been recruited to join the terrorist group ISIS. This news not only shocked Zanzibaris and Tanzanians at large, but opened the lid to an underlying problem of youth radicalisation in the wider East Africa region.
When arrested, it was alleged that Ummul was on route to Somalia, and eventually to Syria where she planned to settle as a Jihadi-bride and suicide bomber in-waiting which revealed fresh dynamics of terrorism within the East African region. Ummul Khayr was arrested alongside two Kenyan girls of her age as they looked to reach Al-Shabaab, the terror group blamed for the deadly attack on Garissa University in northern Kenya that killed 148 people, 142 of them young Christian students.
155Samuel Kamndaya, The Citizen Reporter, Govt to probe ‘inhuman acts’ allegation by Uamsho leaders, 22nd May, 2015 (Accessed on 18th June, 2015). 156Mwinyi Sadallah, Hakuna ubaya Wazanzibari kushtakiwa Tanzania Bara’Mwananchi, 29th January, 2015 (accessed on 13 May, 2015).
57
Left: Ummul Khayr and two other girls of Kenyan nationality who were arrested.
Based on these events, we are of the view that there is evidence that many people had been victims of torture - children as well as adults, young as well as old, religious as well as atheists, intellectuals and the uneducated alike. Nobody is considered immune, although being a member of a particular political, religious, ethnic group or minority can very often set individuals aside as targets for government endorsed violence. Frequent victims include politicians, union leaders, journalists, and students. We believe that victims of torture do not suffer alone. Victims’ families and friends are also greatly affected. Local society is damaged both through the trauma inflicted on its members but also through an instilled awareness that basic human rights are neither guaranteed nor respected. The use of torture sends a strong warning not only to those within a political, social, or religious position, but also to normal citizens who cannot rightly claim to live in a free or safe society. ZLSC therefore urges the government and all of its agents to take an effective measure in dealing with these groups.
2.3 Equality before the Law-Equal Access to Justice for All Equal access to justice is the basis for equality before the law but this right cannot be enjoyed if there is no guarantee of equal access to justice. The term access to justice can be described as an active participation coupled with effective utilization of affordable and available resources in the course of approaching and obtaining justice for all.157 The administration and dispensation of justice is supposed to be made without fear, ill will, or affection towards certain people in the society. Therefore, the right to access to justice forms an inseparable aspect of fundamental rights and freedom that play an important role in nourishing justice and preventing oppression of the people. The right to equality of access to justice has been a result of the equality before the law. This is the right of all human beings to be equal in dignity, to be treated with respect and consideration
157Peter, Chris Maina & Othman, Haroub, 2003, Perspective on Legal Aid and Access to Justice in Zanzibar, Zanzibar Legal Services Centre Series 10th Anniversary Publication, Zanzibar, Zanzibar Legal Services Centre, page. 81.
58 and to participate on an equal basis with others in any area of economic, social, political, cultural or civil life. All human beings are equal before the law and have the right to equal protection and benefit of the law. This principle is therefore enshrined in the Universal Declaration of Human Rights to the effect that: All people are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.158
At the domestic level, the Constitution of Zanzibar of 1984 guarantees the equality before the law under section 12. This section provides that “All people are born free and equal before the law.” Access to justice enables individuals to make use of the laws in the protection of their rights. However, this can only be enjoyed if there is an established sound institution and legal framework that would guarantee all people access to the law and a judicial which is free. Zanzibar like other countries faces problems in the access to justice which in one way or another hinders people’s enjoyment of their rights.
It is well established in Zanzibar that the right to legal representation before the court of law is provided via two arms, namely, constitutional rights and statutory rights. A trial becomes a nullified one in the circumstance where the constitutional and statutory rights of the appellant were denied legal representation. There is still a problem of the legal representation as a move to get people closer to access to justice. The government offers legal representation support to those accused of the serious crimes only but does not do the same for the less serious offences or even for people found to be needing help.
People with mental illness and psychiatric disabilities face similar issues of lack of legal representation within the criminal justice system as people with intellectual disabilities, whether suspects or victims. Most people would appreciate if people with disabilities are, to a much higher degree, given the right to access of justice and legal representation like other groups such as victims of crime. This is often because they are vulnerable and find themselves in situations that are dangerous and violent. In addition, the law still imposes fees for indigent civil litigants even if they are poor unless a special procedure to file a case on the basis on the incapacities is applied. There is also the challenge of sign language at the court and other offices when dealing with the administration of justice. It can therefore be submitted that the lack of legal representation and legal aid contribute to the denial of the right to justice.
2.4. Proximity, Availability and Infrastructure of Courts The structure of the court system in Zanzibar is greatly influenced by the history of the Zanzibar people. Indications point to a transformation of the court system from time to time based on the
158Article 7 of the UDHR.
59 interest of the people and the political powers which were interacted by outside influences on one part and inside reorganizations on other side. As a result, the Zanzibar court system compromises two different legal systems operating within the same legal system. This is referred as a dual court system namely the Common Law Court System which is governed by secular laws on one side and the Kadhis Court System which is governed by Islamic laws on the other side.
The Courts falling under the common law system include the Court of Appeal of Tanzania,159 for all matters which are not restricted by the Constitution of Zanzibar, as this is a Union matter. The Constitution of Zanzibar of 1984 has limited the powers and functions of the Court of Appeal of Tanzania. In particular, it cannot entertain cases originating from Kadhi’s Court and other matters as mentioned in the Constitution of Zanzibar or other laws enacted by the House of Representatives.160 The powers and functions of the Court of Appeal of Tanzania are to hear and determine appeals brought before it from the High Court or Magistrate Courts.161 Below the Court of Appeal of Tanzania is High Court of Zanzibar,162 the Regional Magistrate Courts,163 the District Magistrate Courts and Primary Courts.164 The Children’s Court, as established by Act No. 6 of 2011 is to be presided over by a Regional Magistrate, as chairperson, to entertain matters relating to child affairs.165 Though the Act creates the Children’s court in every region, at the moment there in only one Children’s court located in the Urban West Region which receives child disputes from all regions. However, based on the information given by the High Court Registrar, Hon. George Kazi, the judiciary is in the process of constructing a modern building at Mahonda, about 20 miles from Zanzibar Stone Town, for a children’s court.
The second arm of the Zanzibar court system is in compliance with Islamic Law. It starts from Primary and District Kadhis Court in every Administrative District of Zanzibar. Zanzibar has ten Districts six in Unguja and four in Pemba, where the number of Kadhis Courts is the same as the number of districts.
2.4.1 Infrastructure of Courts Both common and law courts and Kadhis courts are located in every five administrative regions in Zanzibar. These are two regions in Pemba Island and three regions in Unguja Island. This had been made with the view of keeping the courts closer to the people wherever they are. Since many of the court buildings were built several years ago, some being built even before the revolution, the judiciary has for the past five years now, been in a process of renovating and even constructing newer buildings. In the year 2015, major renovations were made to the District court of Makunduchi, Chake Chake and the District Kadhi’s Court at Mwanakwerekwe. Many of these buildings, however, are not environmentally friendly especially for with the people with disabilities.
159Article 117(1) of the Constitution of the United Republic of Tanzania, 1977 says that there shall be a Court of Appeal of the United Republic of Tanzania. 160Legal and Human Rights Centre & Zanzibar Legal Services Centre, Tanzania Human rights Reports 2012 Page 319. 161Article 117 (3) Constitution of the United Republic of Tanzania, Op.cit. 162 High Court Act, No. 2, 1985. 163Magistrate Courts Act, No. 6, 1985. 164Ibid. 165Section 18 of the Children’s Act.
60 2.4.1.1 Human Resources In a bid to improve human resources, the judiciary has also promoted about sixteen officers from different lower levels to higher levels. These were five legal officers who were promoted to Primary Magistrates, five Primary Magistrates who were promoted to District Magistrates and six District Magistrates who were promoted to Regional Magistrates. The promotion was based on merit and the capacity and qualification of the officers concerned.
Table 5: Promotion of Judicial Officers 2015
Judicial Officers Promotion
Primary Magistrate District Magistrate Regional Magistrate
Legal Officer 5 x x
Primary Magistrate x 5 x
District Magistrate x x 6
2.4.1.2 Paralegals Paralegals, despite the challenges they are face, play a major role in providing legal assistance or legal first aid to a large section of the population. Challenges facing paralegals include among others, the size of the constituency, isolation, animosity, a large number of cases, cultural factors, political ideology, financial resources and communication facilities. Acceptance of paralegals by the community they serve has also been mentioned to be another challenge paralegals are facing. Some of the community members are reluctant to accord them with any form of cooperation or recognition, a situation also found with some government institutions.
In 2015, the ZLSC recruited a total of 82 paralegals166 from each of the 54 electoral constituencies in Unguja and Pemba and also from the Special Departments of the Revolutionary Government of Zanzibar. This new recruitment came after the completion of studies of the previous group of paralegals who were under the funding support of Legal Services Facility (LSF).
The paralegals are given proper training, especially in legal matters for two years. This is to impart to them legal knowledge which in turn would enable them to train and assist others in understanding the law and its weaknesses and thus advocate for change. To this effect, the Centre conducts a monthly two-day training followed by exams at the end of the year. This intensive training held in Kiswahili, involves lectures and group discussions.
166These paralegals were recruited from the Fire and Rescue (Zima Moto na Uokozi), the Anti-Smuggling Unit (Kikosi Maalumu Cha Kuzuia Magendo KMKM), The Prisons (Chuo Cha Mafunzo), Volunteers (Valantia), and National Service (Jeshi la Kujenga Uchumi).
61 The chart below shows clients served by paralegals in 2015 compared with 2014.
2.4.2 Legal Aid Legal aid is the provision of assistance people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, right to counsel and right to a fair trial. There are a number of delivery modes for legal aid, including daily lawyers, community legal clinics and payment of lawyers to deal with cases for individuals who are entitled to legal aid.167 Legal aid has a close relationship with the welfare state, and the provision of legal aid by a state is influenced by attitudes towards welfare. Since legal aid guarantees equal access to justice for all, some nations have developed special schemes for the provision of legal aid. For example the European Union Convention on Human Rights regarding criminal law cases guarantees the assistance of legal aid including the use of an interpreter if a suspect cannot understand the language used in court.168 Legal aid has become necessary in Zanzibar to help people get access to justice but the government has not given due attention to the provision of legal aid to the needy. Instead, there are a few non-governmental organizations (NGOs) who have taken the lead in the provision of legal aid to save the situation.
Zanzibar Legal Services Centre has dedicated itself to providing legal aid to the poor, marginalized and vulnerable people in Zanzibar. This is in line with its vision of access to justice for all. Currently, ZLSC has 14 full time lawyers working in the Centre, of which 6 are advocates. Lawyers of the Centre provide free legal aid and counselling to the Centre’s clients who visit the centre directly to access this service. The advocates prepare legal documents and sometimes, when clients cannot stand on their own or afford to hire an advocate, they represent these clients in court.
167http://.en.wikipedia.org/wiki/legal_aid. 168Article 6(3) of the European Convention on Human Rights.
62 Between January and December, 2015, the Centre provided legal assistance to a total of 1,113 clients in Unguja (446 of them were men, 440 were women and 33 children). In Pemba the total number of clients was 194 (100 men, 94 women and 0 children). The Table below provides an accurate picture of the Centre’s clients in 2015.
The figure below indicates the increase of the claim between 2014 and 2015 at the ZLSC main office.
The legal aid provided in 2015 is classified in various categories. As in previous years, the number of land disputes in 2015 topped the list compared to other disputes such as criminal cases and insurance claims, as indicated below.
Types of cases received by ZLSC Office in Unguja, 2015. Types of cases received by ZLSC Office in Pemba, 2015.
Source: ZLSC
Zanzibar Legal Services Centre also commemorated the International Legal Aid on 13th December, 2015 by hosting two special events, mainly legal aid clinics, one in Unguja and one in Pemba. The purpose of this event is to provide legal aid and legal counselling to Zanzibaris, especially those who, for one reason or another, are unable to visit the ZLSC offices. Legal Aid Day also serves as a tool to publicise the work of the Centre and to draw awareness of the services and aid that is
63 available to Zanzibaris at both the ZLSC offices. All Zanzibaris with legal problems or questions are invited to come and seek the help of ZLSC’s lawyers and advocates. To best ensure a large turnout and participation on Legal Aid Day, every year, the Centre advertises the event in newspapers, over the air and TV stations.
This year, ZLSC in cooperation with Zanzibar Female Lawyers Association and paralegals organised an event in Unguja at Muyuni District. 70 clients (42 male and 27 female) were given legal aid and awareness on legal issues by representatives from ZLSC and ZAFELA. The event in Pemba which was held at Fundo attracted a total of 35 different clients (15 male and 20 female) who were provided with legal aid by Programme Officers and given awareness on legal issues. Legal Aid Day in both Pemba and Unguja turned out to be a successful event since there was a growing sense of awareness of human rights, particularly with regard to the issue of violence against women and children
In addition to that, in the effort to disseminate legal aid and legal knowledge to a wider number of people, ZLSC, had, on 28th December 2013, launched its first volume of the Zanzibar Year Book of Law (ZYBL). The first book was launched to commemorate the life of the founder, the first Chairman and member of the Board of Trustee of the ZLSC, the late Professor Haroub Miraji Othman. The third volume of the ZYBL was launched during the celebrations of Zanzibar Law Day in February, 2015. The issue of the ZYBL has been a welcome addition to the Centre’s publications. The book covers academic publications from all around the world where issues of different dimensions in law from domestic to international law are presented.
Dr. Ali Mohamed Shein, the President of Zanzibar and Chairman of the Revolutionary Council launching the 3rd volume of the Zanzibar Year Book of Law on Zanzibar Law Day in February 2015.
2.5 Legal Representation It is always clear from the examination of the procedural challenges in the enforcement of human rights, especially in adversarial system, that the challenges are technical in nature. To that extent, it requires a legal practitioner to be articulate and file an action pursuant to the rules to enforce
64 human rights in Zanzibar Courts. The inability of a victim of human rights violations to have legal representation will negatively impact on the right to enforce human rights. Where, therefore, a victim of human rights violations does not have the capacity to brief a lawyer to prosecute his cause in court, he/she is likely to be without a remedy. The right to legal representation is therefore a crucial factor in the enforcement of human rights.
Legal representation is very important in the administration of justice, both criminal and civil. However in practice, more emphasis in representation is given to criminal cases and even then, the representation of the accused before the court has been problematic in many countries. There are some decisions of cases where the judge had acquitted or ruled otherwise because of the failure of the accused to be represented. It was argued that, under the nature of the fair trial, the indigent defendant (defendant who cannot afford legal representation) should be provided with legal aid by the state.169
In Zanzibar the right to legal representation is provided in the Constitution,170 where the right to fair hearing includes the right to every person who is charged with a criminal offence to defend himself in person or by legal practitioners of his choice. Every litigant has the right to file proceedings to enforce his/her legal rights in a court of law. There are still inadequate formal procedures established for legal representation. The shortage of practicing lawyers and poverty are among the contributing factors.
Legal representation has improved though not significantly. However, the number of the advocates enrolled is increasing. In the year 2015, a total of 52 lawyers were enrolled to become advocates of the High court. This number makes a total of 404 advocates enrolled in Zanzibar. In addition to that there is still an unbalanced distribution of advocates between Unguja and Pemba and even in Unguja itself, where the majority of advocates are located, some regions do not have a single advocate.
The provision of legal services is still a problem all over the region. The economic capacity of the people who need legal services is beyond their capacity to cover the costs. Lawyers and advocates charge their clients quite a reasonable amount of fees for each service while at the same time the judiciary also charges fees though minimal for people who need such services. In recent times, the judiciary has been reviewing the court fees and streamlining the mechanism for the collection and the control of fees. The idea is to use the bank for all cash deposits.
169Dietrich v. The Queen[1992] High Court of Australia. 170Section 12 of the Constitution of Zanzibar, 1984.
65 The following is the proposed sample for the cash deposit slip.
2.5.1 Delay of Cases A speedy hearing of cases is one among the constitutional guarantees in Zanzibar. Section 12(6) of the Constitution maintains that whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time. The accused is entitled to a quick hearing of the criminal case and delivery of a judgment.171 Bearing in mind Zanzibar’s unedifying record of long pre-trial detentions and inordinate delays in trials, this provision has generated a great deal of controversy in criminal trials. The relevant subsection which provides for the right to be tried in court with speed does not define the time “speed” within the context of the provision. It is then left to the Zanzibar courts to interpret the phrase.
171Section 12(6)(e) of the Constitution of Zanzibar.
66 The table below indicates the status of the cases instituted in 2015 in Unguja. Out of 7542 criminal cases instituted in different courts in Zanzibar, 6771cases, which is equivalent to 89.78%, have been heard and decided and 771 cases, equivalent to 10.22%, are still in proceeding. At the same time, a total of 1431 civil cases were filed in 2015 out of which 863 cases, equivalent to 60.31% were heard and decided and 567, which is equivalent to 39.62%, are still in proceeding. It can be observed from this analysis that the higher percentage of the cases pending is of civil nature, where parties themselves are responsible for the speedy motion of their cases.
Table 6: Case Flow and Management in 2015 - Unguja
COURT CRIMINAL CASES CIVIL CASES
Instituted Decided Proceeding Instituted Decided Proceeding
Urban West Region Unguja
High Court (Vuga) 9 0 9 68 8 60
RMC (Vuga) 75 15 60 15 2 13
Appellate Kadhi (Vuga) 0 0 0 0 0 0
Kadhi (Mw/kwerekwe) 0 0 0 807 561 246 Child Court (Vuga) 18 6 12 0 0 0
DMC (Mw/kwerekwe) 1653 1465 188 29 6 23
PMC (Mw/kwerekwe) 4121 4041 80 141 29 112
Sub Total 5876 5527 394 1060 606 454
North Region Unguja
RMC (Mfenesini) 32 8 24 4 1 3
DMC (Mfenesini) 267 101 166 0 0 0
PMC (Mfenesini) 457 443 14 2 2 0
Kadhi (Mfenesini) 0 0 0 84 59 25
RMC (Mwera) 33 7 26 5 0 5
DMC (Mwera) 51 21 30 6 3 3
PMC (Mwera) 24 16 8 24 6 18
Kadhi (Mwera) 0 0 0 109 94 14
DMC (Mkokotoni) 159 90 69 0 0 0
PMC (Mkokotoni) 88 75 13 12 12 0
Kadhi (Mkokotoni) 0 0 0 70 45 25
Sub Total 1111 761 350 316 222 93
South Region Unguja DMC (Makunduchi) 142 94 48 0 0 0
PMC (Makunduchi) 89 71 18 21 19 2 67 Kadhi (Makunduchi) 0 0 0 14 14 0
PCM (Chwaka) 93 87 6 1 1 0
Kadhi (Chwaka) 0 0 0 0 0 0
PCM Municipal Court 231 231 0 0 0 0
Industrial Court (Vuga) 0 0 0 19 1 18
Sub Total 555 483 72 55 35 20
GRAND TOTAL 7542 6771 771 1431 863 567
COURT CRIMINAL CASES CIVIL CASES
Instituted Decided Proceeding Instituted Decided Proceeding
Urban West Region Unguja
High Court (Vuga) 9 0 9 68 8 60
RMC (Vuga) 75 15 60 15 2 13
Appellate Kadhi (Vuga) 0 0 0 0 0 0
Kadhi (Mw/kwerekwe) 0 0 0 807 561 246 Child Court (Vuga) 18 6 12 0 0 0
DMC (Mw/kwerekwe) 1653 1465 188 29 6 23
PMC (Mw/kwerekwe) 4121 4041 80 141 29 112
Sub Total 5876 5527 394 1060 606 454
North Region Unguja
RMC (Mfenesini) 32 8 24 4 1 3
DMC (Mfenesini) 267 101 166 0 0 0
PMC (Mfenesini) 457 443 14 2 2 0
Kadhi (Mfenesini) 0 0 0 84 59 25
RMC (Mwera) 33 7 26 5 0 5
DMC (Mwera) 51 21 30 6 3 3
PMC (Mwera) 24 16 8 24 6 18
Kadhi (Mwera) 0 0 0 109 94 14
DMC (Mkokotoni) 159 90 69 0 0 0
PMC (Mkokotoni) 88 75 13 12 12 0
Kadhi (Mkokotoni) 0 0 0 70 45 25
Sub Total 1111 761 350 316 222 93
South Region Unguja DMC (Makunduchi) 142 94 48 0 0 0
PMC (Makunduchi) 89 71 18 21 19 2
Kadhi (Makunduchi) 0 0 0 14 14 0
PCM (Chwaka) 93 87 6 1 1 0
Kadhi (Chwaka) 0 0 0 0 0 0
PCM Municipal Court 231 231 0 0 0 0
Industrial Court (Vuga) 0 0 0 19 1 18
Sub Total 555 483 72 55 35 20
GRAND TOTAL 7542 6771 771 1431 863 567
Source High Court – Vuga
The table below indicates the number and status of the cases instituted in 2015 in Pemba. A total of 950 criminal cases were instituted in different court in Pemba, out of which 738 cases, which is equivalent to 77.68%, have been heard and decided and 212 cases, equivalent to 22.31%, are still in proceeding. At the same time, a total of 453 civil cases were filed in 2015 out of which 188 cases, equivalent to 41.50% were heard and decided and 265, which is equivalent to 58.49%, are still in proceeding. It can be observed from this analysis that the higher percentage of pending cases are civil cases, where more than half of all civil cases in Pemba are still in courts.
In general, when a comparison is made, between Unguja and Pemba the delay of cases is still more intensified in Pemba than in Unguja, despite the fact that Unguja has more cases than Pemba.
Table 7: Case Flow and Management in 2015 – Pemba.
COURT CRIMINAL CASES CIVIL CASES
Instituted Decided Proceeding Instituted Decided Proceeding
High Court 1 0 1 2 0 2 RMC (Chake) 23 12 11 6 1 5 RMC (Wete) 34 18 16 0 0 0 DMC (Chake) 88 45 43 42 2 DMC (Wete) 77 61 16 6 2 4 DMC (Mkoani) 171 131 40 10 1 DMC (Konde) 50 41 9 0 0 0 PMC (Chake) 192 160 32 16 3 13 PMC (Wete) 89 74 15 10 37 PCM (Konde) 133 131 2 5 1 4 PMC (Kengeja) 20 11 9 1 1 0 PMC (Mkoani) 67 49 18 20 12 8
Appellate Kadhi 0 0 0 0 0 0 District Kadhi (Chake) 0 0 0 153 84 69 District Kadhi (Wete) 00 0 103 29 74 District Kadhi (Konde) 00 68 06 52 14 4 District Kadhi (Kengeja) 0 0 0 6 5 1
District Kadhi (Mkoani) 0 0 0 55 24 31 Children Court (Chake ) 44 0 00 0 Children Court (Wete ) 11 00 00 TOTAL 950 738 212 453 188 265 COURT CRIMINAL CASES CIVIL CASES
Instituted Decided Proceeding Instituted Decided Proceeding
High Court 1 0 1 2 0 2 RMC (Chake) 23 12 11 6 1 5 RMC (Wete) 34 18 16 0 0 0 DMC (Chake) 88 45 43 42 2 DMC (Wete) 77 61 16 6 2 4 DMC (Mkoani) 171 131 40 10 1 DMC (Konde) 50 41 9 0 0 0 PMC (Chake) 192 160 32 16 3 13 PMC (Wete) 89 74 15 10 37 PCM (Konde) 133 131 2 5 1 4 PMC (Kengeja) 20 11 9 1 1 0 PMC (Mkoani) 67 49 18 20 12 8
Appellate Kadhi 0 0 0 0 0 0 District Kadhi (Chake) 0 0 0 153 84 69
District Kadhi (Wete) 00 0 103 29 74 District Kadhi (Konde) 00 06 52 14 4 District Kadhi (Kengeja) 0 0 0 6 5 1
District Kadhi (Mkoani) 0 0 0 55 24 31 Children Court (Chake ) 44 0 00 0 Children Court (Wete ) 11 00 00 TOTAL 950 738 212 453 188 265
Source High Court – Vuga
Apart from that, Pemba has recorded a delay of cases lasting more than two years for the cases filed since 2013. These are as indicated below:
Table 8: Over Two Years Delay Pemba Cases
Court Number of Cases
High Court – Criminal Cases 6
High Court – Civil Cases 8
High Court - Appeal Criminal cases 4
High Court – Appeal Civil cases 68
Appellate Kadhi’s Court 1
Regional Magistrate Court - Chake 51
Regional Land Tribunal - Chake 109 Regio nal Magistrate Court - Wete 30
Regional Land Tribunal – Wete 43
District Magistrate Court – Chake 146
District Magistrate Court – Wete 102
Prinary Magistrate Court – South 89
Primary Magistrate Court - North 74
Total 731
Source High Court – Vuga
69 The delay of cases somehow calls for proper action and measures even temporary, as there are still times, particularly during police operations, when the courts become overcrowded and the flow of the cases becomes congested. Other reasons associated with the matter are insufficient budgets for the judiciary, failure of the witnesses to adduce the evidence and the profile of the investigation mechanism.
2.5.2 Independence and Impartiality of Judiciary The independence and impartiality of the judiciary has its origins from the doctrine of separation of powers, which basically states that the three arms of the government, that is the Executive, Legislature and the Judiciary must be independent of each other and separate from one another. The doctrine was most famously expounded by a French Jurist, Montesquieu whose idea was aimed at dividing the functions of the state and giving powers to the judiciary to exercise their duties without any interference. It has therefore been well established that a modern concept of the independence of judiciary cannot be confined to the individual judge and to his substantive and personal independence, but must include collective independence of judiciary as a whole.172 The independence of the judiciary should not be mistaken as the freedom of the judges and magistrates to do as they please but to adhere to accepted legal values, substantive and procedural rules of law applicable in the country.173 The concept requires that the judiciary be kept away from other branches of the government. It wants courts not to be subject to improper influence from the other branches of states or private or partisan interest.
The independence of the judiciary is internationally protected. Article 1 of the Basic Principles on the Independence of Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crimes and the Treatment of Offenders 1985, provides that, The independence of judiciary shall be guaranteed by the state and enshrined in the constitution or law of the countries. It is the duty of all governments and other institutions to respect and observe the independence of judiciary.174
This implies that the judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law. The principle of independence of the judiciary requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected and it is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
At the local level, independence of the judiciary forms part of the Constitution of Zanzibar. The constitution declares explicitly that Zanzibar shall follow the system of separation of power
172Ibid, Wikipedia. 173Chris Maina Peter, Independence of Judiciary in Tanzania: Many Rivers to Cross, 2012 Page 1, Extracted from http:// kituochakatiba.org 174http://www.ohchr.org/EN/ProfessionInterest/Pages/InternationalLaw.aspx, (accessed on 15th October, 2013).
70 between three authorities and no authority shall interfere with the other’s authority except in the manner provided by the constitution. 175 The constitution also guarantees security of tenure for the judges of High Court.176
Impartiality is one of the most fundamental requirements in the determination of cases in courts. It is a tool towards the dispensing of justice. Every judge should be free and cautious on the proceeding of the case. Considering four things, said Socrates, that belong to a Judge are to hear courteously, to answer wisely, to consider soberly, and to decide impartially. With this, justice will not only be done, but manifestly and undoubtedly be seen to be done. The famous dictum by Lord Hewart, C.J, in R v. Sussex Justices ex parte McCarthy177 succinctly expresses one of the key requirements for accountability of the Judiciary. The requirement that justice must not only be done, but must be seen to be done, encompasses the requirement for impartiality of judges and the need for trials to be held in open court.
Despite being ensured in the Constitution, independence of judiciary poses a great challenge as to whether it is a reality or a myth due to the prevailing circumstances in the judicial system in relation to their freedom in the exercise of dispensing of justice. The doctrine is impeded in various ways, among those impediments being the supremacy of government over the judiciary such as in the appointment of the Chief Justice and judges of the High Court by the president. Another challenge which undermines the doctrine of the independence of judiciary in practice is the use of ouster clauses in legislation. There is some legislation which excludes the courts from exercising the power of administration of justice by denying the court of law jurisdiction to determine disputes. For example, court of Zanzibar is restricted from having jurisdiction to inquire into anything done by Zanzibar Electoral Commission in the performance of its functions in accordance with the provisions of this Constitution.178 Some of these clauses may appear to violate the independence of judiciary.
2.6 The Right to Freedom of Thought, Conscience and Religion The right to freedom of thought, conscience and religion is constitutionally protected as one of the basic human rights. Every person is entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance. Freedom from worship and religion is a principle that supports the freedom of an individual or community in public or private to manifest religion or belief in teachings, practice, worship and advance. It also recognizes and includes the freedom to change religion or not to follow any religion.179
175Section 5 A (1) (3) of the Constitution of Zanzibar, 1984. 176Ibid, Section 95 (1). 177(1924) 1 KB 256 page 259. 178Section 119 (13) of Constitution of Zanzibar 1984. 179Universal Declaration of Human Rights Article 18.
71 At the domestic level the Constitution of the United Republic of Tanzania, 1977 article 19(1) and the Constitution of Zanzibar of 1984 under section 19(1) have recognized and ensured the protection of the freedom of worship. The Constitution of Zanzibar specifically says “Every person has the right to freedom of thought or conscience, belief or faith and choice in matters of religion, including the freedom to change his religion or faith.”180
The Constitution of Zanzibar of 1984 goes further to declare that without prejudice to the relevant laws the profession of religion, worship and propagation of religion shall be free and a private affair of an individual; and the affairs and management of religious bodies shall not be part of the activities of the state authority. In this provision reference to the word “religion” is meant to include religious denominations and cognate expressions.181 The provision therefore implies that the government of Zanzibar shall not adopt any religion as State religion. This provision is plain and simple enough to admit no controversy. It guarantees religious neutrality on the part of the government. Literal interpretation of section 19 would mean that neither the legislative nor the executive power may in any way be used to aid, advance, foster, promote or sponsor a religion. However, the government is responsible for the registration of entities or organization some of which pertain to religious belief.182
It can be observed that since the majority of the Zanzibar population is Muslim, the government of Zanzibar supports and promotes the Islamic religion in various aspects. This however will still remain a point of concern though covered within an ambit of the historical existence and development of the people of Zanzibar. Historically, Zanzibar had its own kind of native administration with a kind of the legal system that was predominately Islamic, following Shariah183 where the local rulers known as Mwinyi Mkuu appeared as the local kings and maintain the administration of the governing bodies by their own systems.184 Even after the introduction of the foreign rules, Islamic law was applied in Zanzibar especially in Kadhis’ Court, an exclusively Muslim Court, though with some limitations.185 This has made the legal system of Zanzibar to be much influenced by unofficial indigenous arrangements, which are believed to be customarily based, and largely Islamic influenced, and the interactions of indigenous African development parallel with imported notions from other parts of Africa and the Middle East, especially from Oman and Yemen in Arabia and from Shiraz in Persia.186
180Section 19(1) of Constitution of Zanzibar, 1984. 181Section 19(2) and (3) of the Constitution of Zanzibar. 182Section 4 of the Mufti Act No. 9, 2001. 183Before the institutionalization of the British rule, there was in practice an intact and coherent system of Shariah law that held Zanzibar’s disparate groups and classes in peaceful coexistence. 184Moh’d Makame Haji, Zanzibar Local Governments and Sheha: A Historical Retrospect, (Zanzibar: University College Printing Press, 2014), pages 28 – 36. 185The 1917 Evidence Decree, as adopted from the Indian Evidence Act, replaced the Sharī‘ah Law of Evidence in favour of English Law of Evidence. As noted above, Imperial Orders in Council and Acts of Parliament applicable to Zanzibar formed part of the laws administered in all courts. 186M. Reda Bhacker, (2003), Trade and Empire in Muscat and Zanzibar: Roots of British Domination, New Fetter Lane, London: Routledge, First published in 1994, this edition by Taylor & Francis e-Library, at pp. 5 – 6.
72 Muslims receive a lot of support from government from the legal framework to the institution of Islamic law which is given official consideration and control by the government office.187 The Constitution of Zanzibar also vests power to the House of Representatives to establish other Courts subordinate to the High Court and without prejudice to the provisions of this Constitution. Those Courts so established are vested with power and jurisdiction as provided by law.188 The current Kadhis’ Courts in Zanzibar have been established in pursuance of this Article. Therefore, it is empowered to exercise jurisdiction in the determination of questions of Muslim personal status in a proceedings in which all the parties profess the Islamic religion.189 Significantly, the law allowed to be applied in these Courts is Sharī‘ah.
2.7 Freedom of Expression Freedom of expression is defined as a right to communicate one’s opinions and ideas to anyone who is willing or entitled to receive them. It includes any act of seeking, receiving and imparting information or ideas regardless of the medium used.190 The Universal Declaration of Human Rights has recognized freedom of expression as a human right in international human rights law in the International Covenant on Civil and Political Rights (ICCPR) Article 19 which states:
Everyone shall have right to hold opinions without interference and everyone shall have right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds regardless of frontiers either orally, in writing or in print …191
In our national context Article 18 of the Constitution of United Republic of Tanzania, 1977 also talks about the right of expression as it states:
Every person has a freedom of opinion and expression of his ideas; has outright to seek, receive and or disseminate information regardless of national boundaries; has the freedom to communicate and a freedom with protection from interference from his communication … In Zanzibar, freedom of expression is outlined in section 18 (1) of the Constitution of Zanzibar, 1984: Every person shall have the enjoyment of his freedom of expression, freedom to hold opinion without interference with his correspondence; it further states that, every citizen shall be entitled to receive information at any time in respect of national and international events which are important to the lives and functions of the peoples and also on matters of public interest.192
187Chris Maina Peter, Mufti of Zanzibar: The Fundamental Rights and Freedom of Muslim on the Isles, ZLSC Publication Series Book 6, 2008, page 1 – 5. 188Article 100 of the Constitution of Zanzibar [R.E. 2006] as amended by section 32 of Act No. 2 of 2002. 189Section 6 (1) of Kadhis Court. 190http://en.wikipedia.org/wiki/Freedom_of_speech (Accessed on 7th September, 2015). 191Ibid, Freedom of expression Wikipedia. 192Section 18 (1) of the Constitution of Zanzibar, 1984 as extracted from; http://www.article19.org/data/files/pdfs/ publication.
73 This apparent step forward has however been undermined by the retention of a host of restrictive constitutional and legal provisions where the Constitution states, “subject to any law for the time being in force.” 193
Many constitutions and international laws allow for some restrictions on freedom of expression but only where they meet strict conditions. Those restrictions must be prescribed under the authority of law and must also serve either one of the limited list of legitimate objectives of sufficient importance to warrant overriding constitutionally protected rights. Restrictions must be accessible and foreseeable so that citizens know in advance what is prohibited and may regulate conduct accordingly. In international law, Article 19 of the ICCP194, permits restrictions - necessity, adequacy & proportionality - on the freedom of expression only as necessary to protect the rights and reputation of others, national security or public order, health or morals.
As such, one of the cornerstones of human rights law provides the principle that any interference with a qualified right such as the right to privacy or freedom of expression must be “necessary in a democratic society.” In general, it means that a state must not only demonstrate that its interference with a person’s right meets a “pressing social need” but also that it is proportionate - or to some jurisprudence adequate - to the legitimate aim pursued.195
However, the Constitution of Zanzibar (1984) fails to satisfy the three restrictive measures provided under international law, mentioned above, with regard to the right to freedom of expression so accordingly ZLSC recommends that it should be amended or those claw back clauses196 should be removed. Although the Constitution of Zanzibar provides for freedom of expression several other laws enacted seem to limit the ability of the media to function effectively. These laws include the registration of News Agent, Newspaper and Books Act of 1988. Section 30(1) of the Act provides that when the Minister is of the opinion that it is the publication of the newspaper named in the order then such a newspaper shall cease publication from that date and in the interest of peace and good order he may order or direct the suspension of the newspaper. In this Act there are some sections which limit the ability of the media to function effectively. The registration of the Newsagent, Newspaper and Books Act, 1988 provides discretionary power to the minister concerned, to ban or close down any newspaper.
It can be observed that due to the key issues and incidents in 2015, it is apparent that specific incidents affecting freedom of expression in Zanzibar were not widely cited. This does not mean that freedom of expression is any less of a concern of the human rights defenders or activists. The
193The phrase Subject to any law being in force means in effect that the Constitutional guarantee of the right to freedom of expression is trumped by laws which may violate that guarantee. 194As noted above, article 19(3) of the ICCPR permits limitations on the rights recognised in article 19(2), but those limitations must be:(1) provided by law and(2) necessary for respect of the rights or reputations of others, for the protection of national security, public order, or public health or morals. 195Handyside v. the United Kingdom, no. 5493/72, 7 December 1976, paras 48 and 49. 196Zanzibar: Democracy on Shaky Foundations, April 2000 page 23, as extracted from (http://www.article19.org/data/ files/pdfs/publications)
74 findings by the UHAKIKI perception index for the Unguja West District for example, indicate that freedom of expression (which received a score of 2.6 out of 5) was much lower than on other parts of the main island and in Pemba. This may be the result of greater political interference for some groups to raise their voice without restrictions or harassment. At the same time, there is a more vibrant media in comparison, say, to Pemba where freedom of expression is scored more favourably (scores 4.1 and 3.25 in the two regions – see figure below).
Figure. Freedom of Expression Scores by Regions (National Average Score is 3.46)
Regional average scores for freedom of expression
Geita Iringa Kagera Dar es Salaam Arusha Kigoma Kilimanjaro Lindi Manyara Mara Mbeya Morogoro Mwanza Njombe North Pemba Regions South Pemba Pwani Rukwa Ruvuma Simiyu Singida Tanga North Unguja West Unguja Central/South Unguja 0 1 2 3 4 5
Average scores
ZLSC has raised a concern about arbitrary measures to prevent freedom of expression around the discussion of the proposed constitution. During 2015 some civil society organisations and other actors in Zanzibar were prevented from being openly critical of the proposed constitution. In several cases, the government of Zanzibar did not approve permits for meetings and gatherings for civil society and others who were seen to oppose to the proposed constitution. This impinges on two rights – freedom of expression and freedom of assembly. On a number of occasions ZLSC was denied the opportunity to hold meetings– sometimes temporarily – on the proposed Constitution, 2014 by the local community leaders (Shehas). This is in spite of ZLSC having the mandate and permission to hold public meetings.
Regarding the freedom of the media, there were several incidents involving media outlets. In December, 2015 the studio of, Hit FM radio station, was burned down in what was suspected to be an arson attack just after the elections (see photographs below which depicts the aftermath of the arson attack)
75 The remnants of the burnt Hits FM radio station at Migombani, Zanzibar.
In an earlier incident, in June 2015, the radio Coconut FM presenter, Ali Mohammed, was harassed and attacked by unidentified group of about 20 people, the so-called “zombies.” These people carried weapons and “msumeno wa moto” (electrical saws) with the aim of intimidating and threatening the journalist. This incident happened after Ali Mohammed was organizing a radio programme to debate the ongoing enrolment in the Permanent Register of Voters Zanzibar. The discussion involved prominent figures including Deogratuse Balile, Ali Saleh, Salim Said Salim, and two members of House of Representatives namely,Hamza Hassan Juma (CCM) and Representative Hassan Haji. The presenter was finally warned to not air any public debate programmes in the mornings.
While these incidents took place, another incident took place, involving a photographer, Omar Ali Juma, who was ambushed, attacked and badly beaten when he left his home on his way to his work place.
76 Omar Ali Juma who was brutally beaten by unidentified men who covered their faces.
Another incident that happened in the midst of the announcement of the election results in October 2015 was the banning of the Radio Station. While freedom of speech was generally respected during the election period and under the expansion of democracy in Zanzibar, an emergent Swahili Language Radio Station, Swahiba FM, was banned on 26th October, 2015 as it was accused of allegedly broadcasting the press conference called by CUF Presidential Candidates Hon. Seif Sharif Hamad claiming that the tendency of ZEC in publishing the Zanzibar Presidential Results was very slow speed and declaring his win against the CCM candidate Hon. Ali Mohammed Shein. This action attracted much criticism from media stakeholders and the general public as they described the episode as a serious infringement to press freedom.
The ZLSC considers such actions against the media as an attempt to limit the freedom of expression as enshrined in Article 18 of both Constitutions of Zanzibar and of the United Republic of Tanzania as well as in the international treaties and principles protecting freedom of expression.197
2.7.1 Abuse of Freedom of Expression We can point incidents which indicate an irrational exercise in abuse of the right to freedom of expression. The improper use of the internet and social media have increasingly lead to the expansion of the enjoyment of the freedom of expression on one side but it also increases the abuse of the same right on other side. Also, it has been a tendency for some people or groups of people to frequently use blackboards or fliers to express their views which are usually biased. A good example that shows how freedom of expression is being abused and inflammatory in nature
197The International Treaties and Principles include of International Covenant on Civil and Political Rights, the African Charter on Human and People’s Rights, and the SADC Principles and Guidelines Governing Democratic Elections.
77 is that of “Maskani.”For example the Maskani Kaka (Kisonge) displayed several messages on a blackboard which come across as derogatory and inflammatory against opposition, people from Pemba, liberal supporters of ruling party and other groups and individuals – without there being any attempt by the authorities to prevent such messages being publically displayed. Another sign board, ‘Sauti ya Kisonge’, which was seen outside a CCM maskani situated in Michenzani, in Zanzibar has been severely condemned for having the tendency to display racist comments aimed at Arabs and people of mixed race and, of course, people from Pemba (see photographic evidence below).
The above message says “Exhaust all prayers and slaughter even cats, we shall not let our country go”.
There have also been reports that some of the “maskani” believed to be of the opposition party particularly CUF to have a similar blackboard called “Kauli ya Mkwajuni” which is seems to respond or react to any message displayed by “Sauti ya Kisonge” in nearly the same style and tone. In our view, both of these groups are abusing their freedom of expression by using derogatory and discriminatory language.
The trend indicates also that these incidents above are illustrative of a slight decline in the freedom of the press in the year 2015 as depicted in the Freedom House report (2015) although it is possibly more reflective of events on the mainland as it relates to the whole of Tanzania including Zanzibar. The score shows an improvement in the freedom of the press from 2011 to 2014 and then a marginal decline in 2015. The current political context in Zanzibar is suspected to attribute to this decline.
78 Figure. UHAKIKI Trend Analysis
Based on the above trend and the incidences in 2015, we are of the view that the overall the legal framework for freedom of expression is considered to be adequate but the main human rights concern is over how it can be abused or suppressed.
In relation to freedom of expression, people are not restricted from exercising their freedom of expression but there are restrictions arbitrarily imposed upon people by government or powerful individuals (like the Shehas). It has be revealed that freedom of expression is also abused by certain individuals or groups of people (such as Sauti ya Kisonge and Kauli ya Mkwajuni) who go beyond the rights and responsibilities allowed for them under the constitution – and use it to abuse others who are not as powerful or who do not have an access to public platforms.
Based on the above findings, ZLSC urges to recommend the following: 1. The government of Zanzibar should amend the Constitution of Zanzibar of 1984 as it continues to fail to satisfy the three restrictive measures provided under international law with regard to the right to freedom of expression so accordingly it should be amended or those claw back clauses198 should be removed. Given the fundamental nature of this right, international human rights bodies have scrutinised with great care any limitations on freedom of expression, including the introduction of regulatory schemes for media. They have insisted that states should demonstrate convincingly the need for measures which prevent or restrict the operation of a free and independent media, and have been especially concerned about content-based restrictions and restrictions which might inhibit the expression of views that contribute to public and political debate.
198Zanzibar: Democracy on Shaky Foundations, April 2000 page 23, as extracted from (http://www.article19.org/data/ files/pdfs/publications )
79 2. The government of Zanzibar has an extensive bill of rights and the government could be encouraged to implement and enforce the provisions including those on freedom of expression.
3. Freedom of expression should be an explicit part of the training in human rights which is provided to people in power (e.g. police force) and vulnerable people (e.g. people with disabilities).
2.8 Conclusion Generally civil rights and liberties are among fundamental principles of human rights because they touch on most of the important rights which human beings are entitled to. Understanding the importance of these rights, different instruments have been passed at the international and domestic level, and legislation has been enacted with the same view of incorporating the standards established by international covenants. As has been noted most of these rights are incorporated in both constitutions; the Constitution of the United Republic of Tanzania, 1977 and the Constitution of Zanzibar, 1984. However, there still remain some state interference or claw back clauses that hinder the full enjoyment of the rights and make those instruments that establish the rights meaningless.
80 CHAPTER THREE Political Rights
3.0 Introduction Civil and political rights represent the first generation of rights and socio-economic and cultural rights represent the second generation of rights. It is well known that the subject of human rights is an equally wide as it is an evolving one. The division of various categories of rights is made essential to make a clear examination of these rights. They are categorized into civil and political rights; and social, economic and cultural rights. The choice of this categorization is informed by the fact that the two groups of rights represent a broad division of human rights. Having seen the status of civil rights and liberties in the above chapter, it becomes appropriate to divulge the status of political rights in Zanzibar in this chapter of the report.
Article 12, paragraph 3, of the International Covenant on Civil and Political Rights (ICCPR) clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instruments amongst those, which might achieve the desired result; and they must be proportionate to the interest to be protected. The same principles apply to the interpretation of Articles 17 and 19 of the ICCPR.
Giving the interpretation of this principle, the European Court of Human Rights has clarified that the term “necessary” is not synonymous with “indispensable” nor is it as flexible as the terms “admissible,” “ordinary,” “useful,” “reasonable,” or “desirable.” Subject to the “margin of appreciation” doctrine, the European Court makes its assessment of the necessity and proportionality of a measure “in the light of all the circumstances.” Nonetheless, certain measures, such as powers of secret surveillance, are more closely scrutinized.
On the other hand, other courts in several states have clarified that substantively, “adequacy” or “appropriateness” does not mean that the measures at issue have to be entirely successful. Instead, they impose a requirement analogous to the Canadian concept of “rationally connected,” although “appropriateness” is applied more rigorously. The measure must not just have some logical link to its intended objective, but should also be “effective” at achieving it. A measure which is inherently incapable of achieving the stated objective, or which is demonstrably grossly ineffective in achieving it, cannot ever be said to be “appropriate,” “necessary,” or “proportionate.”
Similarly, as noted above, the Inter-American Court of Human Rights sometimes refers to the concept of “adequacy.” In particular, the Court has considered whether the measure at issue would be capable of contributing to the realization of the objective invoked for limiting the right at issue.199
199Inter-American Court of Human Rights, Case of Fontevecchiay D`Amico v. Argentina, Merits, Reparations and Costs. Judgment of November 29, 2011. Series C No. 238.
81 Since the core values of Zanzibar are derived from the principles of democracy, with regard to the politics, it is paramount to examine the situation of the political rights for 2015. The Constitution of Zanzibar declares that people of Zanzibar are conscious of the fact that revolutionary teaching and thoughts are protected, fostered and sustained through and by democratic principles; and whereas, those principles can only be realized in a democratic society in which the executive is accountable to a House of Representative composed of elected members and representatives of the people and also a judiciary which is independent and dispenses justice without fear or favour thereby ensuring that all human rights are preserved and protected and that the duties of every person are faithfully discharged.
Therefore, even Section 24(1) of the Constitution of Zanzibar, 1984 accepts the interference of the human rights and freedoms of a person if that limitation is necessary and agreeable in the democratic system. The difficulty however is whether any restriction is compatible with the accepted standards of international law. There can be, at any point the time, interference of the state with the freedom of association for example. The principles of necessity, adequacy and proportionality are not well articulated as mentioned at the Articles of ICCPR.
3.1 Right to Participate in Governance The right to participate in governance is one of the most important rights entitled to all citizens. Since, participation is essential to every political part of every political system it entails that everyone has a right to take part in the government of their nation particularly through the election of representatives to their government.This involves engagement by the public in conducting their public affairs, which can range from political, social, economic or cultural affairs, through policy and decision making processes as individuals or through their representatives. Whilst governance can be described to mean the act of governing200 or how a nation is run, citizens should be able to participate in the development of policy and decision making, elections and other democratic processes that affect them and the future of their children. Participation is at the core of human rights-based approaches in development.201
The right to participate in governance can also be referred as “public participation.” This is, again, a political principle or practice, which may be used interchangeably with the concept or practice of stakeholder engagement and/or popular participation. Generally public participation seeks and facilitates the involvement of those potentially affected by or interested in a decision. The principle of public participation holds that those who are affected by a decision have a right to be involved in the decision-making process. Public participation implies that the public’s contribution will influence the decision.
The right to take part in governance has been guaranteed to all people without discriminations in the Constitution of Zanzibar of 1984. In particular we would like to focus on persons with disabilities who are entitled to enjoy equal rights as other members of the community. The question of persons
200Governance-Wikipedia. 201Persons with Disabilities Right and Privileges Act No. 9 See also Human Right Bulletin, No 58 English, Zimbabwe Human Rights NGO Forum, January 2011, page 1.
82 with disabilities and the right to take part in governance needs a special impetus to ensure that vulnerable groups are treated fairly in the society. In order to ensure the enjoyment of this right by people with disabilities, the Zanzibar government has taken many steps to make it successful.
The Zanzibar Disability Policy was adopted in 2004, and in 2006 the Persons with Disabilities Right and Privileges Act, was approved.202 According to the Act, the Chief Minister’s Office has been made responsible for disability issues since 2004, but now it falls under the First Vice President’s office following the 2010 constitutional amendment and change of the form of government to the Government of National Unity, though mainstreaming of disability in policy and programmes is practically delegated to the different ministries.
Meanwhile, the Proposed Constitution of Tanzania has acknowledged the rights of people with disabilities and also has provided five special seats for people with disabilities.203 The new proposed bill provides special treatment for people with disabilities by providing special care and promotion. Article 4 (4) of the proposed Constitution provides for the creation of the alternative means of communication which are conducive for people with disabilities. In addition, Article 52 of the Proposed Constitution establishes six categories of rights particularly given to people with disabilities. Moreover Article 124(2) (b) proposes to have 5 seats to be appointed by the president, from people with disabilities, to become members of the parliament.
The logic behind the right to participate is to involve the people in the governance processes. It is the people who should govern. Therefore, the constitution should guarantee a legislative system for democracy with the aim of allowing people to fully participate in governance.204 It is fair to comment that Zanzibar’s constitutional democracy is representative and participatory in its nature. The representative aspect embraces multi-party democracy, achieved through regular elections based on a common voters’ roll and proportional representation; the participatory aspect goes further than regular elections every five years in that it guarantees involvement of each citizen in public life in between elections. These two aspects should not be seen as conflicting with each other but as complementary. To this extent public participation is linked to the right to political participation. The right to political participation in terms of international law205 has expressly recognised the right to participate in public life. In other words, public participation in the legislative process is an integral part of any democracy.
202Shia & Nilson, Disability Rights in Tanzania, revised in 2011 (extracted from, www.msc.st/docs/HRBA-Disability- Tanznia-revised-2011-07-30.doc ). 203Section 124(2) (b), of the proposed Constitution, 2014 204Linda Nyati, Public Participation: What has the Constitutional Court given the public? Merafong Demarcation Forum and Others v. President of Republic of South Africa and Others [2008] ZACC 10 205International Covenant on Civil and Political Rights under Article 25 reads as follows: Every citizen shall have the right and the 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 freely chosen representatives; (b) to vote and to be elected at genuine periodic elections 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.”
83 The right to take part in governance has been established in Article 21 of the UDHR206 expounded in sub article 1 where: (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives; (2) Everyone has the right to equal access to public service in his country; and (3) The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which be held by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
The International Covenant on Civil and Political Rights expounds in Article 25 that,207 Every citizen shall have the right and opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions; to take part in the conduct of public affairs directly or through chosen representatives; to vote and to be elected at genuine periodic election which shall be by the Universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; and to have access on general terms of equality to public service in his country.
Regionally, the right has been introduced in the African Charter on Human and Peoples Rights, 1981. The Charter gives rights to all citizens to participate freely in the governance of his/her country either directly or freely chose representatives according to the law of the country.208
3.2 Right to Participate in Governance in Zanzibar The right to participate in governance in Zanzibar is given its due attention and therefore constitutionally guaranteed. In the Constitution of Zanzibar 1984, the right to participate in governance is fundamentally protected by section 7 that gives the right to all Zanzibaris, who have attained the age of eighteen years, to have the right to vote in elections taking place in Zanzibar. The Constitution also specifies that the House of Representatives, which is elected by the people, must ensure a government by the people under the Constitution by providing legislation to regulate the election processes.
Moreover, the Constitution of Zanzibar, 1984 and the Constitution of the United Republic of Tanzania, 1977 confer a right to the people to take part in the country’s elections. The elections for Zanzibar are organized by the Zanzibar Election Laws while the elections for the Union fall under the Election Laws.209 Article 21 of the Constitution of Zanzibar, 1984 provides for the right to take part in the conduct of the government for all Zanzibaris either directly or indirectly through representatives. The national voting exercise is conducted after every five years unless for the special circumstances as stipulated in the constitution and the election Act of 1984. Every
206Article 21 of the United Declaration of Human Rights, 1948. 207Article 25 of the International Covenant on Civil and Political Rights, 1966, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49. 208Article 13 (1), African Charter on Human and Peoples Rights, 1981. 209Elections Act, No. 1, 1985.
84 Zanzibari, of the age of majority, is entitled to take part in the Zanzibar presidential elections, members of the House of Representatives and councillors elections. The elections are exercised pursuant to several laws of the land.
Based on these constitutional principles, Zanzibar has been holding national elections periodically after every five years. Eligible voters enrolled in the Permanent Voters Register (PVR) get the opportunity to exercise their constitutional right to elect leaders of their own choice. However, in some cases there have been allegations of some problems in the enjoyment of the right to participate in governance, which is claimed to be against democratic principles. There have been a number of the developments in recent years. The details of the status of the political rights are explained in the following sections.
3.2.1 Right to Vote It is believed that one of the most critical ways that individuals can influence governmental decision- making is through voting. Voting is a formal expression of preference for a candidate for office or for a proposed resolution of an issue. It generally takes place in the context of a large-scale national (general election) or regional election (by-election). However, these elections can be just as critical to individual participation in government.
In giving it its due, the Universal Declaration of Human Rights, adopted unanimously by the United Nations General Assembly in 1948, recognizes the integral role that transparent and open elections play in ensuring the fundamental right to participatory government. The Universal Declaration of Human Rights in Article 21 states:
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.
The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
The role that periodic, free elections play in ensuring respect for political rights is also enshrined in the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights, the Charter of the Organization of American States, the African (Banjul) Charter on Human and Peoples’ Rights and many other international human rights documents.
While the right to vote is widely recognized as a fundamental human right, this right is not fully enforced for millions of individuals around the world because of various reasons. Consistently disenfranchised groups include non-citizens, young people, minorities, those who commit crimes, the homeless, disabled persons, and many others lack access to the vote for a variety of reasons including poverty, illiteracy, intimidation, or unfair election processes. An important force in combating disenfranchisement is the growth of organizations engaged in election monitoring.
85 Around the world, governments struggle to meet the challenge of the Universal Declaration related to free and fair elections.210
In the African Charter on Human and Peoples’ Rights the right to vote is also contained in Article 13 that: Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. Every citizen shall have the right of equal access to the public service of his country. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.
Looking at the local jurisdiction on the provision of the right to vote, the Constitution of Zanzibar, 1984 (Section 7 and 21) provides that every Zanzibari who has attained the age of 18 is entitled to vote in any public election. The Constitution provides a strong legal basis for citizens to exercise their Right to Vote.
Section of the Constitution of Zanzibar says: 7(1) “Any Zanzibari who has attained the age of eighteen years shall have the right to vote in the election taking place in Zanzibar. And this right shall be exercised in accordance with the provision of sub-section (2) of this Section together with other provisions of this Constitution and law applicable in Zanzibar on election matters…” The Election Act, 1984 and its amendments provide details of the process of the conduct of the election in Zanzibar.
It has been well established that for citizens to effectively exercise their right to vote, they require better civic and voter education, equal access to registration and voting, security at polling stations and impartiality of the election supervisory bodies. Civic education needs a long-term perspective, different from voter education, which in Zanzibar starts during an election campaign. Civic and voter education is implemented by a wide variety of organisations and individuals. In every election, voter and civic education is necessary to ensure that all constituents – men and women alike – understand their rights, their political system, the contests they are being asked to decide, and how and where to vote. Distinction needs to be made between voter information, voter education, and civic education. Certainly, each falls along a continuum of educational activities in support of elections and democracy and is mutually reinforcing. And it would be correct to assume that voter education, for example, should be one component of a broader civic education programme.
3.2.2 The October 2015 General Election Zanzibar had it fifth general election since the re-introduction of the multiparty system after the independence. The election in October 2015 was a critical moment in the democracy of Zanzibar. It was an opportunity for the citizens to exercise their right to vote after the previous elections
210The same had been enshrined in The right to vote is also enshrined in Article 25 of the International Covenant on Civil and Political Rights, Articles 7, 8 and 11 of the Convention on the Elimination of All Forms of Discrimination against Women, Article 29 of the Convention on the Rights of Persons with Disabilities.
86 of 2010. The situation of 2015 was however worrying in a context where developing political systems required the active engagement of citizens in democratic processes to ensure ownership and legitimacy of leadership. In Zanzibar, people voted in two different elections on the same day. The first one was that of Zanzibar, which involved the election of the President of Zanzibar and members of the House of Representatives along with Ward Councillors. The second election was that of the Union, which involved the election of the President of the United Republic of Tanzania and Members of Parliament. These two elections were held on the same date and in the same place. People had the opportunity to elect leaders of various posts, as mentioned above, to hold the office for the next five years.
Of the 14 political parties registered for the 2015 general elections, only two in fact had a substantial and countrywide support and audience; the CCM and CUF. Other parties that submitted presidential candidates for the Zanzibar Election included the Africa Democratic Alliance Party (ADA-TADEA), Alliance for Tanzania Farmers Party (AFP), Chama cha Ukombozi wa Umma (CHAUMA), Alliance for Democratic Change (ADC), Jahazi Asili (JA), Democratic Party (DP), Sauti ya Umma (SAU), Chama cha Demokrasia Makini (DM), alliance for Change and Transparency (ACT-Wazalendo), National Reconstruction Alliance (NRA), Chama cha Kijamii (CCK) and Tanzania Labour Party (TLP). Other parties including Chama cha Demokrasia na Maendeleo (CHADEMA) were presented by the CUF under the umbrella of UKAWA.211 Individual or independent candidates were not allowed to stand for the elections but only those affiliated to a registered political organization were eligible for candidacy.
3.2.2.1 Voter’s Registration Basically civic education deals with broader concepts underpinning a democratic society such as the respective roles and responsibilities of citizens, government, political and special interests, the mass media, and the business and non-profit sectors, as well as the significance of periodic and competitive elections. It emphasizes not only citizen awareness but citizen participation in all aspects of democratic society. Civic education is a continual process, not tied to the electoral cycle. Voter information and voter education, however, may be part of larger civic education endeavours. Civic education may be carried out through the school and university system, through civil society organisations, and perhaps by some state agencies, although not necessarily the election authority. Civic education is basically supported and sponsored by election administrators; democratically elected governments through various state agencies and/or offices; constitutionally established bodies such as human rights commissions; and international, regional, and domestic civil society organisations. Such education became increasingly important during the wave of democratisation that resulted in founding and transitional elections. This upsurge in democracy also evoked reconsideration of the importance of organised initiatives to protect and stimulate democracy in more-settled democracies.
211UKAWA is a swahili acronym Umoja wa Katiba ya Wananchi which means the coalition of the people’s constitution. The coalition emerged during the special parliament of reforming constitution period as the way of enforcing the constitution that reflects the opinion of the citizens as proposed by the Committee of the Constitutional reforms under the Chairperson Judge Joseph Sinde Warioba.
87 All these efforts made use of the best available insights into communication, information, and education technologies and methodologies. Practice rather than prescription became the norm. As a result, the field is driven by a commitment to an informed and invigorated electorate rather than to a set of readily discernible principles. This has made it possible for each national election enterprise to reconsider the important themes, methods, educational practice, available resources, and domestic limitations that govern not only the general voter and civic education programmes that might repeat from one year to the next, but also the specific programme necessary for each election, referendum, or plebiscite.
On the other hand, voter education takes place to assist the election administration in its task of delivering a free, fair, efficient, and cost-effective election. It encompasses the basic voter information that every voter must have in order to arrive prepared at the voting station and vote on the set voting day(s). Voter education sensitises the electorate on the importance of participating in elections. It also provides the background, attitudes, behaviour, and knowledge amongst citizens that stimulate and consolidate democracy. During an election, this education ensures effective organisation and activism by citizens in support of parties and/or causes, behaviour by citizens that is appropriate to a peaceful election, acceptance of the results, and tolerance of competition and opposition.
Voter Education typically addresses voters’ motivation and preparedness to participate fully in elections. It pertains to relatively more complex types of information about voting and the electoral process and is concerned with concepts such as the link between basic human rights and voting rights; the role, responsibilities and rights of voters; the relationship between elections and democracy and the conditions necessary for democratic elections; secrecy of the ballot; why each vote is important and its impact on public accountability; and how votes translate into seats. Such concepts involve explanation, not just a statement of facts. Voter education requires more lead time for implementation than voter information and, ideally, should be undertaken on an on-going basis. This type of information is most often provided by election authorities and civil society organisations.
Registration was conducted in two rounds across all regions of Zanzibar as required by law in order to allow for newly qualified voters to register, including those who turned 18 years of age before Election Day. The registration for the new voters and updating of the Permanent Voter Registration (PVR) were conducted in 2013 and 2015 respectively. After the closure of the register total of 503,860 were registered.
The trend analysis – using data from IDEA (see below) – indicates that the number of registered voters in 2015 significantly increased for the whole of Tanzania. However this increase is still more than 10% lower compared to the registration for the 2000 election.
88 Source: Data was taken from the International Institute for Democracy and Electoral Assistance (IDEA, 2015)
The data above gives the picture for the whole of Tanzania, including Zanzibar, and suggests that there has been a slight reduction in voter turnout since 2000 with a significant drop in 2010. The graph is also a reflection of the trend of voting in Zanzibar. In 2015 however the voter turnout increased significantly but – despite the introduction of PVR – remained lower than the2005 election and before.
Freedom House’s Freedom in the World Index also offers additional insights into the Right to Vote. This indicator has however remained strikingly stable over the last five years suggesting that little progress has been made in improving access to voting and electoral transparency.
Tanzania’s scores related to elections from Freedom House
Year Electoral Process Political Pluralism and Participation
2006 6 10
2010 6 9
2015 9 12
Information from the table above indicates that there have been no major changes pertaining to elections in Tanzania since 2011. This can be partially attributed to the fact that there was no general election during this period. Another trend can be demonstrated in data from the Economist Intelligence (EI) Unit’s Democracy Index (see below).
89 Economist Intelligence Unit Democracy Index Tanzania, 2011-2014
Year Electoral process & pluralism Political participation
2011 7.42 5.56
2012 7.42 6.11
2013 7.42 5.56
2014 7.42 5.56
EI’s Democracy Index claims that no major progress was made toward democracy in Tanzania during the period of 2011 to 2014. The EI unit’s Democracy Index (2011) ranked Tanzania at 7.42 out of 10 for Electoral Process and Pluralism, whilst scoring 5.56 for Political Participation. This is based on the ratings for 60 indicators grouped into five categories including: electoral process and pluralism; civil liberties; the functioning of government; political participation; and political culture. The overall index is based on an average of the five factors. By the EI’s categories, 7.4 places Tanzania as a ‘flawed democracy’, and 5.6 places the country among ‘hybrid regimes’. There were no major changes in this figure in recent years as shown in the table above.
Elections in Tanzania in 2015 were considered to be ‘free and fair’ by international observers but civil society started observations during registration while the majority of international observers came in very late, mostly just a week before the elections. In Zanzibar the outcome of the elections cannot be considered as ‘free and fair’ after having been annulled a few days after the vote.
The UHAKIKI index demonstrates some marked differences in the Right to Vote between different regions in Tanzania including Zanzibar. The index collates a number of scores on how strong or weak the right to vote is perceived by human rights experts in different regions. The scores are based on a cumulative figure of scores (1 = weak, 5 = strong) against a number of indicators, the key indicators being:
NEC/ZEC effectively provide information / instructions about registration and elections, Media and Journalists are free to report /provide information on election, Media outlets and journalists are free to cover all politicians and political parties, Public media reports on elections are objective and balanced, Women are free to vote without interference from their family (including husband), People with disabilities are free to vote without interference from their family, Participation as a candidate in electoral contests (and the activities surrounding them) is open regardless of religious or political affiliation, Electoral processes are handled by the appropriate government department without interference from others, Public authorities (such as religious leaders, elders, community leaders, politicians, civil society) encourage (rather than discourage) people to vote, Processes surrounding elections are free from bribery or corruption, Processes surrounding elections are free from intimidation, harassment or violence, electoral processes are conducted in a transparent and
90 free manner. Electoral processes are accessible to all community members. All candidates are free to carry out their political activities across the community. People within the community are free to choose who they want to support, and political party brigades do not undermine the electoral process.
Results from the UHAKIKI Index 2015
Regional average scores for freedom of expression
Geita Iringa Kagera Dar es Salaam Arusha Kigoma Kilimanjaro Lindi Manyara Mara Mbeya Morogoro Mwanza Njombe North Pemba South Pemba Pwani
Regions Rukwa Ruvuma Simiyu Singida Tanga North Unguja West Unguja Central/South Unguja 0 1 2 3 4 5
Average scores
It is observed from the average of cumulative scores that the Right to Vote is considered to be stronger in Pemba than in Unguja. The lowest score is for West Unguja. There are different reasons for the high scores in each region – access to vote, media reporting, people’s awareness, transparent electoral processes etc. The low score in West Unguja could be because of weaker processes or, it could be reverse in that people are aware and therefore more critical of any limitations on access to vote or weaknesses in the electoral process.
3.2.2.2 Update of the Voters’ Registry While in Mainland, the BVR was just initiated, in Zanzibar, the BVR had started since 2008 and was complete before the elections in 2010. In June 2015, the registry was just updated, where voters had an opportunity to verify their entries and to those whose names were not in the register this update provided another opportunity for new registration. This was a smooth process, and conducted well on time. There were very few cases of corrections or missing names.
There was however, a very vocal protests from some people that some youth were denied the right to be registered for ZanID by the Sheha; therefore they were also restricted to be registered in voter registry since they did not have ZanID. Based on the statements taken from people who complained of being deprived of their rights it appears that some of them were denied for political reasons as they were objected by Shehas. However, the statements given by the Director from the department issuing ZanID affirmed that there were a number of IDs waiting to be collected but werenot collected by their owners. These two kinds of statements show that there is unsolved contradiction between the office responsible and the people.
91 The exercise of the reviewing the PVR went smoothly although there were a few cases of irregularities. Some voters claimed that their names were missing and a few claimed that they were not allowed to register because they did not have ZanID. Apart from that there was also evidence of the double entry and ghost voters.
This picture shows the double entry of Thureya in a PVR.
The Voter with registration number 710047062 is believed to have died some years ago.
3.2.2.3 Campaign Period Voters education was conducted throughout the campaign period. The Zanzibar Electoral Commission (ZEC) had the Legal Mandate to provide Voter Education, to supervise and coordinate other individuals and institutions that provide voter and civic education. With regard to the 2015 Zanzibar general Election, the Zanzibar Electoral Commission prepared Voter Education Strategic Plan and guidelines which was provided to various election stakeholders. It provided awareness messages with regard to civil and voting procedures. The message was accomplished through the mass media including TV, Radio and Newspaper. ZEC has a mandate in monitoring Non-Government Organizations in providing civic and voter education. The Commission in collaboration with the United Nation Development Program (UNDP) under Democratic Empowerment Project printed and distributes posters and leaflets across all regions of isles.
92 Civic and voter education was also conducted by the non-governmental organizations (NGO) on the Isles. A lot of registered civil society organization organized and conducted Voter and Civic education under the mandate of the Zanzibar Electoral Commission (ZEC). Among of these Organizations included, Tanzania Media Women Association (TAMWA), Zanzibar Female Lawyers Association (ZAFELA), Pamoja Youth Initiative (PYI), Zanzibar Legal Services Center (ZLSC), Umoja wa Walemavu Zanzibar (UWZ), ZAPDD etc.
ZLSC was mandated to conduct voter education, air TV and radio programmes, distribute brochures and stickers (Piga kurakwa amani – vote peacefully) to encourage people to use their right to vote. ZLSC also conducted sensitization training for marginalized groups such as youth and people with disabilities. People with disabilities included people with vision imparity and mental disability. People with mental disability were, for the first time registered for the elections in Zanzibar in 2015.
The campaign rallies for Political Parties towards 2015 Zanzibar General Elections commenced on September 7, 2015. According to the electoral laws, all Election Campaign rallies had to be coordinated by the Zanzibar Electoral Commission. ZEC in collaboration with other stakeholders prepared joint campaign programmes. ZEC arranged the time for the political meetings to be held from 08:00am to 06:00pm but most of the parties chose to conduct their rallies from 02:00pm to 0 6:00pm. Generally, the campaign conduct by the political parties was mostly governed by the Election Act No. 11 of 1984, Guidelines for Political Parties Code of Ethics for 2015 Election and the Zanzibar Constitution of 1984.
In Zanzibar in general, the election campaign went satisfactorily well. CCM and CUF were the most visible parties during the campaign period. Their candidates participated in orderly and lively discussions with members of the public through a televised broadcasting and campaign rallies. Their posters were seen over a large coverage and their presidential flag bearers managed to reach and campaign in almost all regions in Unguja and Pemba.
CCM supporters in campaign rally at Mnazimmoja Zanzibar
93
CUF supporters in campaign at Maisara Mnazimmoja Zanzibar
Although there were some exchanges of sentiments from one party to another, there was no violence. There were also some complaints of changing the schedule. Only two political parties, namely CUF and CCM conducted campaigns. The other parties had booked for venues and arranged for their campaign but did not show up. One of the reasons attributed to this could be financial challenges. These parties did not have money for the campaign and therefore cancelled the events at last minute. There was only one serious event of the violation reported during the campaign period. On the way back to Zanzibar town from a campaign meeting in Makunduchi, members of CUF were ambushed by two or three cars throwing stones at them around Fuoni.
TEMCO observers did not report any incident where a candidate or a political party was deliberately denied the opportunity to conduct campaigns. Thus, in the light of this it seems plausible to conclude that the campaigns were peaceful apart from a few shortcomings which could not adversely affect the quality of elections. It was observed that there was a campaign timetable for presidential campaign rallies that all political parties largely adhered to, although there were incidents where changes had to be made. However, it was only three political parties CCM, CHADEMA/UKAWA and ACT- Wazalendo that managed to launch election campaigns at the national level alongside their political party manifestos. On the other hand, only two political parties CCM and CHADEMA/UKAWA attracted huge campaign rallies which were very well attended and were generally peaceful.
3.2.2.4 October 25th – Election Day In 2015, Tanzania held its fifth general election after the country had reverted to political pluralism, which culminated into a multiparty political system. From 1965 to1990, only one party (TANU and then CCM from 1977) participated in the union general elections and Zanzibar elections. After the re-introduction of a multiparty political system, the general elections have attracted the participation of many political parties.
History indicates that in 1995, four political parties had candidates for the presidential elections and thirteen political parties in parliamentary elections. While in 2000, four political parties had
94 candidates for the presidential elections and 13 parties in parliamentary elections. In 2005, 10 political parties had candidates for the presidential elections and 18 parties in parliamentary elections. In 2010, seven political parties had candidates for the presidential elections and 18 parties in parliamentary elections. In 2015, eight political parties had candidates for the presidential elections and 22 parties in parliamentary elections. However, four political parties - CHADEMA, CUF, NCCR Mageuzi and NLD - had created a coalition (UKAWA) and agreed on a formula of nominating a single candidate to stand for the coalition for the union presidential elections, Zanzibar presidential race, members of parliament, members of the house of representatives and councillors.
ZEC operated a total of 1582 polling stations with an average of 350 voters per station. The polling stations aggregated in 380 polling centers and manned by over 3 polling staff per polling station. Almost all of polling stations were located in public buildings and remained open from 07:00 hours to 16:00 hours. A hotline was made available for voters to confirm their assigned polling station on Election Day. Security forces were present at all polling stations. Basically, in Zanzibar two elections were conducted in the same room. One of which was for Zanzibar and the other one was for the United Republic of Tanzania. The modality was arranged accordingly in which one booth was reserved for the Zanzibar Election and the other one for Union election. In some cases the placement of the polling booths lacked privacy while the agents of the parties wanted people to vote in that same space which lacked privacy, which is in conflict with Human Rights of confidentiality. There were therefore, complaints from voters that they were being watched. At times, election observers intervened and argued that the direction of the booths should be changed.
Table 9: Types of Election in 2015
Union Zanzibar Local Government Type of election Government Government
Union President & Zanzibar President Local Local Candidate Elected Members of & Members of the Councillors on Councillors on Parliament House of Mainland Zanzibar (Bunge) Representatives Tanzanians
Eligible voter All Tanzanians Zanzibaris residing on Zanzibaris
the Mainland
Election Administer NEC ZEC NEC ZEC
Voter Registry PNVR PVR PNVR PVR Source: National Democratic Institute, 2005 Zanzibar Elections Final Report
3.2.2.5 Annulment of Zanzibar Election and Its Consequence Three days after the election, on Wednesday, 28th October, 2016 the Chairman of the Zanzibar Electoral Commission (ZEC), Jecha Salim Jecha, had announced via ZBC-TV and radio that the
95 Zanzibar elections had been annulled. ZEC stated that there had been irregularities with the voting for the president of Zanzibar and House of representatives. Mr. Jecha is reported to have said that the Pemba election was controversial and claimed that there were more voters than actually registered. A new date for a rerun of the elections was set to be announced in due time. However, the Union results from Zanzibar were accepted, that is, the results for the election of the President for the United Republic of Tanzania, as well as the election of Members of Parliament. There were 50 MPs elected from Zanzibar. ZEC were the agents of NEC during the election. After the announcement, everything came to a standstill. People stayed indoors for the first two days apprehensive of the outcome of this statement. Until the close of the year when this year’s Tanzania Human Rights report was to be submitted, the date for a rerun of the elections in Zanzibar had not yet been announced.
The decision by the ZEC Chairman seems to be controversial and led to comments and criticisms from a number of people and organizations. Accordingly, the Tanzania Election Monitoring Committee (TEMCO) noted with concern and surprise the decision by the ZEC Chairman to annul Zanzibar elections because of what was claimed to be “irregularities and gross violation of laws and election regulations.” The specific incidents that were cited by the ZEC Chairman include incidents of intimidation of voters in political party strongholds, usurping of ZEC’s mandate over the announcement of presidential election results, differences which degenerated into fighting among ZEC members, and the number of voters at some polling stations exceeding that of the voters in the register, particularly in Pemba.212
TEMCO was also shocked by the unsigned statement issued to the public by CUF on 26th October, 2015 carrying the title “The Civic United Front Wins Historic Victory in Zanzibar Election”. Part of the statement read as follows:
As of 9.30 this morning, Maalim Seif Hamad, the presidential candidate of the Civic United Front in Zanzibar, had secured 200,077 votes against his rival Dr. Ali Mohamed Shein of CCM with 178,363 votes. This constitutes a majority for CUF of 21,714 votes -52.87% against47.13%. …The people of Zanzibar have spoken. …There is now no question that Maalim Seif has won the presidential election in Zanzibar and that the ruling party has been defeated for the first time since1977.
Again, on Friday 30th October, 2016, the opposition party issued an ultimatum to Zanzibar’s government, in front of a crowd of supporters, to release the election results by Sunday evening. Ally Saleh, a parliamentary candidate from opposition party CUF, was reported to have said of the opposition “The government expires tomorrow night. We should be handed over the government.”213 It was unclear what the consequences would be if that did not happen.
212Interim Statement On Tanzania 2015 General Election, By TEMCO Election Observation Mission, October, 2015 page 16. 213Ibid.
96 In the light of the preceding account, ZEC’s decision and CUF’s statement leave a lot to be desired. They have generated heated debates and serious concerns among election stakeholders in Zanzibar including political parties, presidential contestants and domestic and international observers. TEMCO election observation mission remains concerned about the situation in Zanzibar.
ZLSC perceives that incident to have had damaged the image of Zanzibar and recommends that proper security actions to be taken to detect these kinds of incidents and to identify those who were involved and taken to task according to the due process of the law.
3.2.2.6 Bomb Explosions in Town Areas For the past two years now we have been reporting on incidents of explosions within the Zanzibar municipality. On various occasions people living in these surrounding have been experiencing fear, anxiety and insecurity with the trend of bomb explosions in their surroundings. The feeling of insecurity is not only a worry to the people living around but to the whole Zanzibar. For most of the week following the annulment of the election results, people living in Zanzibar town municipalities experienced fear, terror and a sense of insecurity. The whole place from Kariakoo to Stone Town – the busiest place in Zanzibar – was taken over by police and auxiliary police and even on some occasions by the Tanzanian Armed Forces. This was brought about because of bomb blasts in two different places on different days in late October 2015. The whole area was very silent and filled people with fear. Questions were raised about who was involved and why it happened.
Michenzani roundabout was completely covered with police officers carrying firearms soon after the bomb blast. No civilians were allowed at the location.
Two bomb explosions occurred on two consecutive days, on 30th October and 31th October, 2015 in Zanzibar town terrorising people living around the area and throughout the whole country. The first bomb explosion occurred at Mkunazini – Darajani areas on 30th October, 2015. Although
97 there were no causalities there was total chaos and panic in this very busy area. No substantive damage was reported. No report was given as to who was behind this explosion.
The night of the explosion at Mkunazini area, 30th October, 2015.
The site of another bomb explosion around the church building at Mkunazini Anglican Church.
On the morning of 31th October, 2015, two bomb blasts went off and were confirmed by a Regional Police Commander, Mkadam Khamis Mkadam. These bombs went off within ten minutes of each other. Fortunately no one was killed or injured.214 Mkadam said these bombs were “home-made”
214http://uk.reuters.com/article/uk-tanzania-election-idUKKCN0SP0LJ20151031.
98 devices and said a mobile phone used to detonate one had been found. Another explosive device was found on Friday, but was destroyed in a controlled explosion, he added.
Another explosion occurred at Michenzani roundabout and again created terror for the people living around the area. This was again connected with the first explosion since the modus operandi looked similar. A very loud blast was heard all over and it was suspected the target was a place used by opposition supporters as their baraza.
Investigators from Tanzania Armed Forces looking for evidence at the site of an explosion in Zanzibar on Saturday 31st October, 2015.
Another device was reportedly found near the maskani of the Civic United Front (CUF), the main opposition party. The device was detonated by a bomb disposal unit that carried out controlled explosions.
It can be recalled that in previous years’ human rights reports, a number of cases of acid attacks targeting on both local and foreign citizens were reported. The reasons behind those attacks were not known but people suffered severe pain and loss of some of their body parts. There was no proof as to who was behind the attacks or who the target was and for what reasons. The only speculation was that those attacks were politically or religiously inclined. No person had been prosecuted but three suspects have reportedly been arrested. There was however speculation that the incidents were connected to the political situation of Zanzibar because they occurred soon after the disputed election.
3.2.3 Conclusions and Recommendations On the Right to Vote in 2015, ZLSC has made the following key observations:
99 1. Limited Civic Education This can lead to eligible voters not knowing or understanding their right to vote. In recent years, low voter turnout indicates that there may be a high level of apathy among voters (national turnout was 42.8% in 2010 – although higher in Zanzibar). This is attributed to limited understanding and knowledge of the voting process but also to perceptions among voters that their vote will not make a meaningful difference. This indicates that there is a widespread desire for Tanzanians to be able to act on their right to vote (see TEMCO’s report of 15 Aug 2015). However, it does not necessarily indicate that there is a widespread desire to go out and vote on Election Day. A possible incentive to the registration process is that registered voters are provided with identity cards. As such, while the high number of registered voters is positive, it may not be a good indicator in itself of the number of people who will actually exercise their right to vote.
2. Vote Management Irregularities While some observers considered the 2015 election to be free and legitimate there have been a whole series of irregularities reported on the management of the vote during the election. These included the supply of election materials, counting of votes and delays in declaring results. LHRC/ ZLSC/TACCEO’s field monitors observed in 2015 in the more remote areas there were concerns about the number and location of polling stations, how they are resourced and whether people will find their name on the register at the polling station. Irregularities with the management of polling stations can prolong the voting process for voters and may also contribute to voters’ lack of trust in the system.
3. Lack of Equal Access to Vote The Constitution of Zanzibar, 1984 and the Constitution of the United Republic of Tanzania stipulate that people have the right to vote. The Elections Act, however, does not provide for any method of voting apart from appearing at a polling station. There are particular concerns therefore about the lack of access to voting for (a) people who are hospitalised, (b) prisoners, and (c) those living abroad. The Act does lay down procedures to allow for voters who are incapacitated to call on the presiding officer or a companion to assist him or her to vote. This is upheld in the Persons with Disabilities Act of 2010 where one can be escorted and can be assisted to vote. In practice these measures do not guarantee the secrecy and independence of the vote for a person with disability.
4. Women’s Participation As Representatives In The Elections Women’s participation as representatives in the 2015 elections is the evidence that the readiness of involving more women in governance has not materialized. Even if the Constitution of the United Republic of Tanzania, 1977 stipulates that 30% of the representatives in parliament have to be women but the majority are nominated not elected. However the overall nomination by NEC indicates that in the nomination process, women who were nominated by NEC were very few and this raises questions of efficacy of interventions geared at emancipating women to participate in elections as contestants.
A remarkable attempt however was seen by few women who involve themselves in contesting presidential posts. ZLSC congratulates the women particularly ACT-Wazalendo presidential candidate and CCM’s presidential running mate for their participation. In addition, a big number of
100 women who stood for parliamentary and councillorship elections proved their prowess by winning in the constituencies that were hitherto dominated by men.
5. Fear of Intimidation and Violence One of the pressing issues in 2015 is the presence of youth brigades attached to political parties who are present during the election process and will be on any voting day. This raises concerns about potential insecurity, intimidation and violence to voters during elections as has previously been reported in LHRC’s and ZLSC’s Annual Human Rights reports.
6. Impartiality and Capability of The Supervisory Body It was perceived that the National Electoral Commission (NEC) and ZEC were not impartial and do not have the capability to deliver the election in all levels. Without trust and confidence in the supervisory commissions, there is a feeling among people that their vote will not make an impact, as it will not be properly managed in the process. This perception has been shaped by key factors such as the irregularities reported during the local government elections in December 2014, for the union election, has the same cadre of officials appointed as returning officers in the coming general elections. It is noted however that the Tanzanian government rightly acted on investigating and removing officials who oversaw and mismanaged the local government elections. There was also feeling that the results that were announced and what was reported at the polling stations differed and some of them were not even announced. Again based on the law there is no possibility to complain (for presidency and for other components) in the court of law.
7. Use of Government Resources for Campaigning Election campaigning regulations specify that no political party is allowed to use government resources for their campaigning. But there is evidence that CCM as a party used government resource, such as vehicles and presidential jet etc. for this purpose.
A government vehicle used to post CCM campaign posters during campaigns in Pemba
101 3.2.3.1 Recommendations Based on the above shortcomings on the process of election, ZLSC argues that a lot of improvements need to be done for the proper and smooth running of the election in Zanzibar. This will regain the confidence of the people and increase political stability in the Isles. In addition, for citizens to exercise effectively their right to vote they require better civic and voter education, equal access to registration and voting, security at polling stations and impartiality of the election supervisory bodies. The following are key recommendations and messaging for stakeholders to encourage civic awareness and understanding: -
There is a need of improving civic education because civic education has been identified as an important factor to further developing civic awareness and understanding amongst eligible voters. NEC and ZEC need to prioritise resources in providing civic and voter education around the country. The focus of this education should be on raising awareness on citizens’ right to vote, election process, understanding what happens on the day of the election and how to vote.
Donor support to the election is currently focused predominantly on election monitoring and strengthening of election management bodies, but there is also a need to increase opportunities for civic education before elections and after that. It is important that civil society organisations continue to be supported by donors and government to conduct election observations and monitoring of how the vote is managed for improvement of protection to the right to vote.
As a way of managing the vote, there is a need for distribution and allocation of sufficient polling stations and materials to cater for the number of registered voters by returning officers, providing secrecy of ballot, adequate ballot papers, boxes and availability of ink. Returning officers need to be held accountable for the mismanagement of polling stations and non-adherence to the polling stations opening time.
To ensure equal access to voting, the Zanzibar Elections Act should be amended to provide for special ballots to allow people who are unable to attend polling station to vote. This will enable people with special needs to have equal access and not to be assisted by other people a situation that do not guarantee their privacy and choice.
The establishment of an independent Electoral Commission: In principle NEC - and its counterpart ZEC – should be champions of the right to vote. They should be funded direct from the treasury and their commissioners, and though appointed by president, they should be vetted and approved by Parliament.
3.3 Freedom of Association and Assembly Freedom of association and assembly is the one of the human rights protected by all states. It has been introduced by the Universal Declaration of Human Rights (1948). A resolution was passed by UN General Assembly article 20, 23, which in itself is not formally binding. However, the UDHR established important principles and values which were later elaborated in legally binding UN treaties, Articles 20 and 23 protect the right to freedom of assembly and association and the right
102 to form and join trade unions.215 Later, the International Covenant on Civil and Political Rights (1966) elaborated the principles laid out in the UDHR and is legally binding on all states who have signed and ratified its provisions. Article 21 asserts;
The right to peaceful assembly shall be recognized, no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society … While Article 22 stipulates that, “Everyone shall have right to form and join trade unions for the protection of his interests.” 216 In practice, this can be categorized in two ways, freedom of association in a political way like joining a political party,217 and conducting rallies, and freedom of association to join a trade union.218 The status of freedom of association is another remarkable feature in the topic of human rights. This again marks another layer of the development of Constitution of Zanzibar. As in many democratic countries, in Zanzibar, freedom of association and assembly has taken a shape similar to that introduced by the Universal Declaration of Human Rights (1948)219 and the International Covenant on Civil and Political Rights of 1966. However, as in many constitutions in the world, these rights are not absolute but given with some restrictions. For Zanzibar the apparent provision has been undermined by the retention of a host of claw back constitutional provisions where the Constitution states:
Nothing provided for by or carried out in accordance with any law of the land shall be construed as being in conflict with or in contravention of this Article to the extent that principal legislation provides.220
Despite the explicit restrictions on the protection of freedom of assembly and association, Zanzibaris still enjoy the freedom to engage in politics and join or disjoin from any political party.
On the other hand, the enjoyment of the freedom of association and assembly has not been without limitations in Zanzibar. The recent expulsion from CCM of a veteran Zanzibar politician, Mr. Hassan Nasssor Moyo, who served in different ministerial portfolios for nearly four decades both in the Isles and Union governments is another testimony of blurring of the line which differentiates between criticism and ‘treason’ in the political parties.
215http://www.hrea.org/index.php?doc_id=406#instruments (accessed on October, 2013). 216Ibid. 217Section 20(1) of the Constitution of Zanzibar, 1984 provides Every person is entitled to freedom, subject to one’s free choice to freely and peaceably assemble, associate and co-operate with other persons, and more specially to form or join associations or organisations formed for workers human rights organisations or other organisations for his benefit and which are established in accordance with the laws of the land. 218Section 6 (1)(a)(b) of the Labour Relation Act, 2005 219The UDHR established important principles and values which were later elaborated in legally binding UN treaties. Articles 20 and 23 protect the right to freedom of assembly and association and the right to form and join trade unions. 220This phrase implies with the effect that the Constitutional guarantee of the protection of freedom of expression is trumped by laws which may violate that guarantee. Article 20(2) of the constitution allows enterferece of this right in (a) matters related to the interests of defence and security of the citizens, health aspects and those of society; (b) matters related to the preservation of rights and freedoms of other persons; (c) matters related to certain limitations for Government officials, military personnel or any other persons appointed on their free will.
103 These kinds of incidents symbolize that freedom of expression might ‘go on leave’ once you have an opinion which is different from ones of those who seem to have a stronger voice within the party. The expulsions of those considered “party rebels” has a long history, both in the Mainland and in Zanzibar.
Mzee Hassan Nassor Moyo quoted saying “They can take me out of the CCM. But they cannot take out my love for my motherland, Zanzibar.”
A high profile example of restrictions on freedom of association is that of Mzee Hassan Nassor Moyo. Moyo who gained recent popularity after working tirelessly to end the political animosity that has cost Zanzibar hundreds of lives since the introduction of multi-party politics two decades and which resulted with the formation of a government of national unity in Zanzibar. He has repeatedly campaigned for more autonomy for Zanzibar within union and views the move to expel him from CCM as “vengeful and fruitless” and vowed that he would not revert in his campaign for Zanzibar to get a fair deal in the union and would continue to fight racist, homophobic and discriminatory links that some CCM conservatives in the Isles propagate.221
3.4 Freedom of Association in Trade Union The fundamental principle of freedom of association and the right to collective bargaining is a reflection of human dignity. It guarantees the ability of workers, and employers, to joinand act together to defend not only their economic interests but also civil liberties such as the right to life, security, integrity and personal and collective freedom. It guarantees protection against discrimination, interference and harassment. As an integral part of democracy, it is also key to realising the fundamental rights set in the International Labour Organisation (ILO) Declaration.
Research and analysis have demonstrated that respect for freedom of association and the right to collective bargaining also plays an important part in sound economic development. It has a
221Ibid
104 positive effect on economic development by ensuring that the benefits of growth are shared, and promote productivity, adjustment measures and industrial peace. In a globalised economy, freedom of association and the right to collective bargaining in particular provide a connecting mechanism between social goals and the demands of the market place. Consequently, the real debate cannot and should not be on whether to respect these principles and rights, but on how best to respect and make use of them.” 222
Internationally speaking, the Freedom of Association and Protection of the Rights to Organise Convention was one of the first international conventions of the International Labour Organisation (ILO); it forms part of the ILO core labour standards and is to be found under Convention No. 87 of 1948. It provides a set of rules for freedom of association and rights of organisation. Together with the Right to organise and collective bargaining Convention, it forms the basis for the ability of employees the world over to organise themselves in trade unions and thus negotiate with employers as equals. However, year after year, the International Trade Union Confederation (ITUC) states in its annual survey of violations of trade union rights that these rights are not being observed in their entirety, unions are prevented from carrying out their work and unionists threatened or even killed in many countries in all continents of the world. The ITUC and other international organisations are committed to ensuring that freedom of association and trade union rights are respected throughout the world.
The right of workers to join a trade union of their choice is a key principle for the ILO and is enshrined in the key conventions that include Freedom of Association and Protection of the Right to Organise Convention. This convention guarantees the right to freedom of association to include the right to independence from government and employer interference and the right for trade unions to elect officials and organise their own affairs. Freedom of association has also been held to cover (with some exceptions for the public sector and emergency situations) the right to strike.223 Another important convention is that of Right to Organise and Collective Bargaining Convention. This Convention provides for protection against anti-union discrimination, for protection of workers’ and employers’ organisations against acts of interference by each other, and for measures to promote and encourage collective bargaining.224 Other key convections, such as Workers’ Representatives Convention, 1971225 and Collective Bargaining Convention, 1981226 also Workers’ Representatives Recommendation, 1971,227 play very important role.
Trade union rights and freedom of association are the basis for decent work and social dialogue because they are the foundation on which decent work is built. They are also a fundamental right. In its Universal Declaration of human rights of 1948, the United Nations (UN) states, “Everyone
222Introduction to the 2004 Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, “Organising for social justice.” 223C87 - Freedom of Association and Protection of the Right to Organise Convention, 1948. 224C98 - Right to Organise and Collective Bargaining Convention, 1949. 225ILO Convention No.135. 226ILO Convention No.154. 227Recommendation No.143.
105 has the right to freedom of peaceful assembly and association,” adding “No one may be compelled to belong to an association.” When applied to the world of work, this means that everyone has the right to found or join employee organisations and trade unions. Furthermore, no persons may be forced to join a trade union organised by the state, or one that is in collusion with their employers.
In Zanzibar the protection of trade unions against interference is stated in the Labour Relations Act of 2005.228 This law provides that “Every employee shall have the right to: (a) take part in the formation of a trade union or federation of trade union,”229 provided that a union or organisation shall not join or from part of a trade union movement and shall be independent from political affiliation with any political party.230 The law further provides for the protection of the employees’ and employers’ basic rights by emphasizing that any person who is eligible under the constitution of a trade union or organization has a right to be a member of that trade union or organization on the payment of the required dues and remain a member as long as he or she complies with the constitution of the trade union or organization.231 The law provides for the enjoyment of the right to form an association in terms of trade unions and restricts the interference by making it clear that employer or employers’ organisation and or any person acting on behalf of an employer or employers’ organisation, is not allowed to promote the establishment of an employees’ organisation under the domination of an employer or employers’ organisation, or shall support an employees’ trade union by financial or other means with the object of placing such trade union underthe control of an employer or employers’ organization.232
Independent trade unions that are exclusively duty-bound to represent the interests of employees are the best safeguard against issues such as poor pay, bad working conditions and arbitrary dismissal. Trade unions have rights too; otherwise they would be unable to do this work. It can be submitted that freedom of association is of no great value if there are no strong and independent trade unions. The unions need rights that will, for instance, enable them to negotiate with employers and conclude collective bargaining agreements and other collective agreements, in the certainty that they are free from interference on the part of the state. Such negotiations and agreements enable the unions to achieve improvements in the situation of the employees, provided the agreements are honoured. Another basic in trade union work is the right of labour to negotiate as the equal of industry. And the unions must be able to monitor the agreements that have been made and, if necessary, ensure that they are enforced either through strike action or in the law courts.
ZLSC believes that independent and effective organisation in the workplace, in trade unions that link workers throughout companies or sectors, is the most efficient mechanism for identifying violations
228The Labour Relations Act No.1 2005 [R.E. 2006].Trade Union has been defined to mean an association of employees, whether registered or not, having among its objects the representation and promotion of the interests of employees and the regulation of relations between employees and employers and includes a federation of trade unions unless it is clear from the context that only the first level association is meant, but does not include an association that is dominated by an employer and shall not include employers’ association. 229Section 4(1) of Act No.1 2005. 230Section 8(2) ibid. 231Section 7 ibid. 232Section 8 ibid.
106 and achieving practical, sustainable solutions. With the necessary conditions and resources – which such trade unions are best placed to provide - organised workers can address, and in collective dialogue with receptive employers, resolve labour standards issues themselves. Emphasising on the functions of the trade unions within a country shall create a much better position than external social auditors to identify labour standards problems and can do so without the cost, disruption and distortions generated by repetitive social audits. Moreover, unlike social auditors, trade unions can negotiate with employers sustainable agreements for improvement that do not rely on temporary business arrangements between retailers and suppliers.
3.5 Conclusion Being the first generation of human rights civil and political rights represent wider aspect of the basic rights civil and political concerned. It is well known that the subject of human rights is equally wide and it is an evolving one. The year 2015, this right has the main concentrations of many people since the year was the centre of the enjoyment of political rights, being a year of the general election. Everyone was involved in exercising the right to participate in governance as this was and most important right entitled to all citizens. Since, participation is essential, many political parties in Tanzania and Zanzibar in particular used this opportunity to participate in the general elections though different levels. On the whole the general election went well though a few irregularities were reported.
Apart from those, political rights also involve freedom of association and assembly. This is a mandatory requirement for any person wishing to take part in the governance and the Constitution of Zanzibar 1984 has guaranteed this right. However, the rights have been curtailed by some laws so that their implementations create room to deny other people the chance to take part in governance. Looking at the functions and importance of the right to participate and form an association, it can be submitted that a special program is needed to raise the awareness and knowledge of the rights of employers’ and workers’ organizations to freely organize and engage in voluntary collective bargaining and to enhance the capacity of governments, employers’ and workers’ organisations to implement and put into practice the standards and principles on freedom of association and collective bargaining.
107 CHAPTER FOUR Social Rights
4.0 Introduction The realization of economic and social related rights such as right to education, right to work, right to own property, right to education, right to health services, and others, is paramount for the attainment of other rights, including the right to life and the right to development. Like other categories of human rights, which are recognized worldwide in particular human rights instruments, the economic and social rights are also guaranteed in various instruments.233
Internationally, a social right has been established in the international Covenant on Economic, Social and Cultural Rights, (ICESCR), 1966. The rights that are propagated to be guaranteed by states by this covenant include, right to education, right to health, right to clean and safe water, right to work and right to property. Tanzania being a party of International Covenant on Economic Social and Cultural Rights (ICESCR) has not ratified the Optional Protocol of the Convention however but has full responsibilities to observe these rights.234
Though these rights are difficult to be enforced and have proved to be a challenge tomany governments particularly in Africa, the Zanzibar Constitution 1984 has incorporated these rights which have been categorized into groups. The first group includes the right to education, health and other social services; the second group includes the right to work and the right to property. This chapter assesses the level of implementation of some of the stated rights with a view of suggesting for a better change.
4.1 Right to Education Education is recognized by various human rights instruments as one of the basic rights for everyone.235 It is the key for the fight and protection of one’s right because it gives people ability to be aware of their rights. However, it is unfortunate that the Zanzibar Constitution does not include the right to education as one of the enforceable rights. It is rather enshrined under Article 10 (6) as one of the political objectives of the government. The right to education is provided for under the Education Act, 1982236 which provides for free and compulsory education.237 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 the basic education. Basic education is defined to mean basic primary and junior secondary which every child in Zanzibar is entitled to be provided.238
4.1.1 Zanzibar Education Policy The policy of education is guided by the declaration of compulsory and free basic education for all that was promulgated on 23rd September1964. The policy ensures that all eligible children are
233Human Rights Report 2009. 234Human Rights Report 2014. 235Example Article 13(1) of the International Covenant on Economic, Social and Cultural Rights of 1966. 236Act No. 6 of 1982. 237Section 19 of Act No. 6 of 1982. 238Ibid, Section 20 (1-2).
108 enrolled in and attending school, provided with good quality and relevant education and equal educational opportunities. The Zanzibar education system presently offers 12 years of compulsory education.239 This means that, two years of nursery education, six years of primary education and four years of secondary schooling.240
4.1.2 General Achievements of Education Sector from 2010 to 2015 The year 2015, marks five years of the seventh phase of the Revolutionary Government of Zanzibar. During this period many achievements were made by the government. Just to mention few, student enrolment increased for compulsory education (Nursery, Primary and Secondary) from 317,278 in 2010 to 390,464 in year 2015; inauguration of a new campus at Tunguu of the State University of Zanzibar which raised the student enrolment from 1,205 in 2010 to 2,538 in year 2015. The university also expanded its academic programmes offering different programmes in Bachelor’s Degree, Master Degree and PhDs; the construction of nineteen new schools in different areas of Unguja and Pemba; translating the Zanzibar Education Policy into Kiswahili to help people to understand the policy; the establishment of Zanzibar Higher Education Loan Board through the Higher Education Loans Board Act, no.3/2011, a board which provides loans to eligible students to pursue higher education; the establishment of Zanzibar Examination Council, a council which deals with examination up to form two through the Zanzibar Examination Council, 2012.241
4.1.3 Challenges Facing Education Sector The Education sector in Zanzibar faces a number of challenges. Most of the challenges are linked to a very limited budget and poor administration and management within the ministry. The chapter addresses some of the challenges facing the education sector in Zanzibar.
4.1.3.1 Budgetary Allocation The impact of education sector budget allocation has been a focal point in issues related to development in education. The problem was reported in the 2014 Human Rights report though a slight improvement has been noticed. It is an indisputable fact that education development requires an adequate and timely budget so that planned projects can be implemented. The tendency shows that the proposed budget though slight is not given as proposed. For instance, up to May 2015, a total of TZS 1,000,000,000 was dispensed to the MoEVT for development works from the government. This is equal to 30.3% of the proposed budget of 2014/15. For recurrent budget, a total of TZS 60,540,859,677 was obtained which is equal to 70.23% of the proposed budget.242 This shows that the ministry will fail to implement its development plan due to the lack of funds or timely disbursement of funds.
239Free education in Zanzibar begins from nursery school to form II. In Zanzibar 63% of both men and women have at least attained secondary education (THMIS Report 2011/12 and Tanzania in Review 2013/14) 240See Chapter 3 and 4 of the Education Policy 2006. 241Zanzibar Examination Council Act, No.6, 2012 242MoEVT Budget Speech 2015/2016.
109 A total of TZS120,726,400,000 was requested for the financial year 2015/2016 year. The amount was to cover all departments within the Ministry of Education and Vocational Training. The amount seems to be higher than that of the previous year which was 103, 633,950,000. However the dependency of the budget is another area where contribution from donor funds is about TZS 20,998,500,000 almost seven times the amount contributed by SMZ which is TZS 2,900,000,000.243
It has been the recommendation of the centre that, the government should finds alternatives to the high dependency on donors for its budget. Since the donors’ funds generally go hand in glove with their interests and foreign policy if these are severed, deteriorated or not adhered to, then there will be serious repercussions.
4.1.3.2 Registration of Nursery Schools Education system in Zanzibar starts from nursery school to university. Nursery schooling has a long history in Zanzibar. The aim of nursery schooling is to prepare children for enrolment in primary schools. Nursery school education is provided by both government and private initiatives but all are registered by the government through the Registrar of Education.
Up to May 2015, the number of nursery schools in Zanzibar was 270. Among those schools 239 are under private ownership with a total of 22,801 students and 31 are owned by the government with a total of 18,930 students.244 The data shows that the number of kindergarten schools in Zanzibar has decreased when compared to 2014 where the number were 279245 and 2013 the number were 278.246
The total number of pupils in nursery schools until 2015 was 41,731.This number is less when compared to 46,880 of 2014. Despite low numbers, the government and private sectors have been involved in the training of 350 nursery school teachers and constructing of recreation centres for more than 30 nursery schools both Unguja and Pemba.247 One major issue that needs serious consideration is whether the number of nursery schools can cope with the demand for universal nursery education as stipulated in the Zanzibar Education policy 2006. It can clearly be seen that most students begin their schooling deprived of two years of their basic education right since two years nursery education is compulsory for all children. To fully implement the Education Policy the MOEVT needs to make serious and concerted efforts to ensure that all children access nursery education.
243MoEVT Budget Speech 2015/2016. 244MoEVT Budget Speech 2015/2016. 245MoEVT Budget Speech 2014/2015. 246MoEVT Budget Speech 2013/2014. 247MoEVT Budget Speech 2015/2016 page 16.
110
Community pre-school children in play at Kilimahewa, Urban District Unguja.
4.1.3.3 Registration of Primary and Secondary Schools There are about 370 primary school in Zanzibar which have been registered to provide primary education.248 Among those, 273 are government school and 97 are privately owned with a total of 261,212 student enrolled. The data indicates that enrolment in primary education has improved to 98.4 per cent compared to 252,938 which is equal to 102.5 per cent as reported in 2014/2015.249
Government primary schools have successfully enrolled 36,608 for standard one, among this number enrolled students 17,742are girls and 18,866boys.250 Boys still outnumber girls in primary education and no pupil had been left out.251
The government has also provided health training to twenty four (24) teachers, twenty five students and Regional Education Officer on how to control the spread of malaria. Again the government has provided the training on handling Health Clubs in each School.
In an effort to curb the problem of poor school turn out, the government with the help of Partnership for Child Development (PCD) has introduced free food programme for nine schools. The beneficiaries of the programmes are Mfurumatonga, Kijini, Kidagoni, Kigunda and Mbuyutende in north “A”, Unguja and Makangale, Mgogoni, Mkia Ng’ombe and Kinowe at Micheweni District in Pemba.252
248Ibid page 18. 249Ibid page 18. 250Ibid page 18. 251Ibid page 18. 252Ibid page 18.
111 At the secondary education level a total of 263 schools were used to provide education to students both in Unguja and Pemba in the year 2014/2015. Among them, 55 schools are privately owned and 208 owned by the government.253 The numbers of students from form one to form six were 86,969 where 40,176 students are boys and 46,793 are girls.254 The number of students at Compulsory Basic Lower Secondary Schools, from form one to form two is 55,523 which is equivalent to 76.3 per cent of students aged 14-15 and the number of students in Upper Secondary Schools from Form Three to Form Six and Technical schools is 21,658.This number is lower compared to the previous year where the number was 29,696.255
To encourage the students to learn ICT, the government has purchased fifty computers for its special secondary school of commerce and ICT. Again, the government has bought laboratory apparatus for more than 145 schools in both Unguja and Pemba.256 It is our observation that, empowering students with ICT knowledge is a good step towards the promotion of human rights in the country therefore, the government should do its best to encourage students to study ICT and introduce it in all secondary schools.
4.1.3.4 Alternative Education In Zanzibar, basic education is a right which the state is duty bound to make accessible to all children. Nevertheless, some pupils for some reason or other have missed out on basic education or are unable to complete basic education through normal schooling. The main reasons for this are the shortage of places, distance from home to school, poor quality of education, irrelevant curriculum, lack of parents’ awareness on the importance of education, early marriages and pregnancy and opportunity costs.257 To solve this problem, the government has provided an alternative learning programme for them to complete their basic education.
The alternative learning programme is still at infancy and has not spread throughout the country. Currently there are forty classes in forty schools with an enrolment of 734 students.258 These children attend alternative learning for one year which is organized in regular schools but in different classes and then mainstreamed in normal school classes. However, the programme has not yet reached the remote and underserved rural communities where a great number of children are not in school or are early dropouts of school.259
4.1.3.5 Overcrowding Classes Despite efforts of the Revolutionary Government of Zanzibar to construct many schools and classes in Zanzibar, the problem of the large number of students in classes in Zanzibar still persists. The problem was also acknowledged by the Ministry of Education in its budget speeches over the
253Ibid page 19. 254Ibid, Hotuba ya Waziri, page 39. 255MoEVT Budget Speech 2015/2016. 256Ibid page 19. 257Alternative Education http://www.moez.go.tz/?cq=syst&sys=9 (accessed on 24th November, 2015). 258MoEVT Budget Speech 2015/2016 page 19. 259Alternative Education http://www.moez.go.tz/?cq=syst&sys=9 accessed on 24th November, 2015.
112 years including 2015/16.260 The ministry in its budget speech promised to solve the problem by constructing many schools and classes in different parts of the country.
It has been observed that in most of the primary school classes more than 100 pupils are crowded in one class. One example of such a school is Kijito Upele Primary School, where the class observed had more than 120 pupils at par; the same was also the case at Bububu Primary School. This situation may lead to poor understanding, poor writing capability, inattentiveness, indiscipline and health problem for the pupils, with the end result that the pupils will get nothing from their teachers. Therefore we strongly recommend that, the government should make every effort to solve this problem people by increasing the number of schools and classrooms or by introducing alternative teaching methods for large class sizes.
Picture shows overcrowded class and pupils sitting on the floor at Kijitoupele Primary School inWest District.
4.1.3.6 Shortage of Secondary School Science Teachers The shortage of qualified science teachers in secondary school in Zanzibar remains a big problem despite different efforts taken by the government.261 It is our observation that, many students dislike science subjects. If this problem is not amicably addressed it will undermine many sectors in Zanzibar which require specialists who have a background of science subjects including the health sector.
However, the centre acknowledges the efforts taken by the government in 2015 to overcome the problem of science teachers. This included hiring science teachers from Nigeria, publication of science books from primary to secondary level,262 preparing a research on relocation of art teachers to science teachers after in service training,263 employing 77 science teachers out of 202 employees 260MoEVT budget Speech page 57. 261Ibid page 32 262Ibid page 9. 263Ibid page 11.
113 in 2015.264 Furthermore, the government has bought laboratory apparatus for different schools.265 There is also collaboration between MoEVT and Strengthening of Mathematics and Science Education in Africa (SMASE Africa) for providing training of trainer (ToT) for science teachers in Zanzibar. Four teachers have attended the course in Kenya.266 Five hundred (500) teachers (male 145 and female 155) have attended training course on teaching science and mathematics.
Universities in Zanzibar are also helping to solve the problem of shortage of science teachers. The State University of Zanzibar (SUZA) in 2015 has produced a number of science teachers at different levels of education from diploma to undergraduate to postgraduate at master level. Moreover, the University has established two science secondary schools mostly at ‘A’ level; SUZA Secondary School (Nkrumah Campus) in Unguja and SUZA Secondary School (Benjamin Mkapa Campus) in Pemba designed to be feeder schools for the university’s science programmes.
Another University which also provides science teachers is SUMAIT University which is the first private owned university and has been training and providing science teachers every year since its inception in 1998.
Zanzibar University also provides science education and the university is currently offering science degree program in Engineering and Health and Allied Sciences.
To have a large number of graduates in science is one thing but this must go with retention of those science graduates in the country, since there is a practice for graduates to find jobs in mainland Tanzania where they receive lucrative salaries compared to their Zanzibar counterparts. It is now time now for the government to improve salaries and other incentives for science teachers and science specialists so as to encourage them to stay and work in Zanzibar.
4.1.3.7 No Cost Contribution in Education Although Education is not constitutionally guaranteed, Zanzibar has pursued the policy of free education for all since 1964. Free education begins at nursery school but compulsory education includes twelve years of quality basic education from primary level to the end of secondary (ordinary level). This free education has enabled Zanzibar to have more than 63% of both men and women who have at least attained secondary education.267
The policy of free education was also cemented on 12th January 2015 by the President of Zanzibar when commemorating 51years of the Zanzibar revolution.268 The Hon. President was reported to have said that, there should be no contribution at public school whatsoever, from standard one up to form IV. However, in practice the parents still contribute to education. This can be verified by the government issuing a contribution guideline which is to be followed by heads of schools. This means that, financial contribution in public schools still persists in some form or the other. 264Ibid page 13. 265Ibid page 20. 266Ibid page 28. 267THMIS Report 2011/12 and Tanzania in Review 2013/14. 268Speech of the Zanzibar President in commemoration of 51 years Anniversary of Zanzibar Revolution.
114 The government should be praised for its efforts in making education free, but again it is our recommendation that, the government should improve the quality of education in public schools since the current situation does not convince people to take their children to public schools; they do that as a last resort.
4.1.3.8 Unwanted Pregnancies and Early Marriages Zanzibar like any other country of the African continent is faced with the problem of early pregnancies and early marriages. There are many young female students in primary and secondary schools who drop out of school each year because of early marriage and pregnancy.269 In the year 2015, nine (9) female students were reported to be pregnant while they were still in school. However, after counselling and guidance they resumed their schooling.270 Nine (9) other students were reported to be married and hence expelled from school as per the section 20(3) of Education Act, 1982.
Data from the MoEVT, Registration unit indicate that for a period of 2014/2015 a total of 52 early marriages were reported and 59 early pregnancies.
Table 10: Number of reported cases of Early Pregnancies and Marriages
Unguja Pemba Total
Early marriage 20 32 52
Early pregnancy 36 23 59
Source Ministry of Education Zanzibar.
The provision with regard to suspension from school after marriage has however not been reviewed. Thus while the education policy says one thing the law has not been brought into conformity with the policy intent. We therefore ask the government to review this provision so as to avail to married students, the opportunity to attend school and continue with their education.
4.1.3.9 Teacher’s Problems Teaching is the noblest among all the professions since all professionals underwent education with a teacher. It is also a process to prepare the next generation of skilled professionals and workers like politicians, engineers, doctors, policemen, priests, educators, legislators and good citizens. However, teachers have always been taken for granted, despite doing the most important work in the country. The teaching profession in Zanzibar used to be regarded as a ‘noble’ profession. It was a profession that most people wished to be associated with and happily joined after completing their studies. However the situation on the ground currently points to the possible ‘extinction’ of
269Hotuba ya Waziri wa Uwezeshaji, Ustawi wa Jamii, Vijana na Maendeleo ya Wanawake na Watoto kuhusu Taarifa ya Utekelezaji wa Haki na Ustawi wa Watoto kwa mwaka 2013/2014. 270MoEVT budget Speech page 54.
115 the profession, as there appears no one is willing to join the profession and those who have joined did it as a ‘last resort’ and are always looking elsewhere for ‘greener pastures.’271
Teachers of both public and private schools in Zanzibar face many challenges. According to the Secretary of Zanzibar Teachers Union, these problems include low salaries, lack of transport for teachers, lack of housing for teachers who teach in remote areas, lack of teaching materials, promotions, congestions and the lack of health insurance.272 The Union has proposed for the establishment of the Teachers Service Commission, in order to supervise teachers’ interests in the country. This was also stated in the Education Policy of 2006 section 6.2.2.273
We therefore recommend that this is the right time for the government to establish the Teachers Service Commission to meet teachers’ demand. Some neighbouring countries do have a Teachers Service Commission and we think Zanzibar should follow suit.
4.1.3.10 Lack of Facilities in Schools Though the government keeps on increasing the number of classes and schools, these schools face the problem of insufficient facilities. These facilities, among other things, are desks, classrooms, toilets, waters services and other amenities. In 2015, the government has constructed toilets and water tanks at Mwanakwerekwe “G” and “H”, Chukwani, Kibweni, Kiembesamaki and Pale.274 However, many schools still lack toilets and water. For instance, at Chwaka School there are new toilets but these toilets have no water and therefore are not used as planned.
More than 125 classes were built 79 Unguja and 46 Pemba, 35 classes were renovated, 7 at Unguja and 24 Pemba have been finished. More than 3,187 chairs and tables and 3,490 desks were distributed into different schools in both Unguja and Pemba. To support the government’s efforts, National Microfinance Bank has donated more than 100 desks for primary schools of Mwanakwerekwe “E” and Bububu “A”, Jambo Plastic Company has contributed 45 chairs and tables for primary school of Kiembesamaki “A”. The government of United Republic of Tanzania has signed a loan agreement with Organization of the Petroleum Exporting Countries (OPEC) for the constructions of ten (10) schools in Unguja and Pemba.275
271Ngoni Makuvaza and Ruth B. Gora, What is happening to the ‘noble’ profession? Concerns about and threats to the teaching profession in high school in Zimbabwe – The Way forward International J. Soc. Sci. & Education 2014 Vol.4 Issue 2. 272Mwanajuma Mmanga, Zanzibar Leo 21/12/2015. 273Ibid. 274MoEVT budget Speech 2015/2016 page 7. 275Ibid.
116 Lack of desk at Kijitoupele Primary Schools at West District in Zanzibar
These efforts by the government to solve the problem of insufficient facilities need to be commended. However it is our recommendation that the government should do more to solve the problem in its totality for the betterment of its people.
Students sharing books and laboratory apparatus at a Secondary School in Zanzibar.
4.1.3.11 Shortage of Qualified Lecturers in Higher Learning Institutions For an academic institution to prosper and get international recognition it requires the full commitment of its management to have qualified lectures, who can perform the three important functions of academic institutions namely; teaching, research and consultancy. It has been observed that, most of the higher learning Institutions in Zanzibar lack qualified lectures in their institutions. This problem can be associated with low level of salaries and allowances for university lecturers. Currently, most Ph.D holders receive less than USD 2000 per month as salary. This and other factors
117 have resulted into the poor quality of education. Most students from higher learning institutions are unable to articulate even simple issues in their fields. As result none of the Zanzibar higher learning institutions are ranked in the 100 best universities in Africa.
To solve this problem, many higher learning Institutions provide their staff with further education. For example in 2014/2015 the State University of Zanzibar has continued to train 54 of its staff members at different levels from diploma to PhD. These include 33 for PhD, 13 for masters, 4 for undergraduate and 4 for diploma.276
We recommend that the Tanzania Commission for Universities (TCU) should help the quality assurance assessment and accreditation for all public and private universities to avoid the obvious risk of universities producing incompetent graduates due to lack of qualified lecturers.
4.1.3.12 Insufficient Budget for Higher Education Fund Apart from problems surrounding primary and secondary schools, high learning institutions were also unsettled because of students’ demonstrations and complaints attributed to various reasons. The major issue has been the granting of loans to the government sponsored students. The higher education students’ loans scheme is administered by the Zanzibar Higher Education Loan Board (ZHELB). The Board is charged with coordinating, giving and receiving loans to and from the students pursuing degrees in Zanzibar, Tanzania and abroad. This body is faced with many problems including delays in disbursing processed loans and uncertainties of the criteria set for eligibility to get a loan.
The priority for issuing the loans is for those students studying science subjects and economics. This situation has left those who wish to study other fields without any loan. Again, it has been observed that the board doesn’t provide the same amount of loans for students who study in Zanzibar and those who study in mainland Tanzania, though they may be studying the same course. The latter are given higher stipends compared to the former.
We have observed that, some students were not paid their stipends or tuition fees. This was reported in many higher learning institutions. For instance we interviewed some loan recipients of ZHELB who studied at University of Dar es Salam. They have said that their academic certificates were withheld because the board did not pay tuition fees to the university.277 This is not an acceptable situation by any means, because these graduates cannot apply for the jobs anywhere since they do not have academic certificates which are a requisite for job applications.
The Centre stands its ground in saying that their right to work has been curtailed by the government.278 We therefore, recommend the government to increase its budget to the board so as to pay the students and academic institution on time and also that the Board sponsors students regardless of their choice of study. We are eagerly waiting for the promise of the President Dr. Shein made during
276MoEVT budget speech 2015/2016 page 39. 277Interview with recipients of loan from ZHELB. 278Article 21 and 22 of the Constitution of Zanzibar relate to the right to participate in gainful work.
118 one of his presidential campaign at Chokocho - Pemba that he would increase the budget of the higher learning institute’s fund so as to increase the number of students from the current 2,658 to 22,404 in five years. In his promise he also emphasised that girls would be given priority especially those taking science subjects. Various efforts have been made by the government of Zanzibar in education as part of human rights but it needs to be incorporated in the constitution.
4.2 Right to Health The right to the highest attainable standard of health, commonly referred to as the right to health, is guaranteed in a number of international human rights instruments. However, the first mention of this right was contained in the preamble to the Constitution of the World Health Organisation where it is provided as follows; “health is a state of complete physical, mental and social well-being, not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of all human beings without distinction as to race, colour, and religion”.
Subsequently, the right to health has been guaranteed in Article 25 of the Universal Declaration of Human Rights where it was provided that; “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services” 279
Furthermore, article 12(1) of ICESCR recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Article 12(2) also lays down broad guidelines regarding the necessary steps to be taken by the member states in order to achieve the full realisation of this right. Other UN treaties that directly address the right to health include the Convention on the Rights of the Child (CRC),280 the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)281 and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).282 In addition to these, there are other instruments whose provisions indirectly or implicitly impact on the right to health. A good example is the International Covenant on Civil and Political Rights (ICCPR), article 6(1) of which guarantees the right to life and Article 7 of which prohibits medical or scientific experimentation on anyone without his free consent.
The African Charter on Human and People’s Rights imposes an obligation on states parties to provide health care to their nationals.283 Article 16(1) of the African Charter provides, “every individual has the right to enjoy the highest attainable state of physical and mental health.” Article16 (2) obliges state parties to the African Charter to take “the necessary measures to protect the health of their people and to ensure that they receive medical treatment when they are sick.”
279Universal Declaration of Human Rights, GA Res 217 A (III), UN Doc A/810 (10 December 1948). 280Article 24. 281Article 12. 282Article 5(e)(iv). 283African Charter on Human and People’s Rights, adopted 27 June1981, OAUDoc.CABILEG/6713.Rev.,5enteredin forceon21October1986,reprintedin211LM 59(1982)59availableathttp://wwwl.umn.edu/humanrtslinstree/z1afchar.htm (accessed 05/12/2015).
119 Article16 (1) and (2) of the African Charter suggest that state parties to the African Charter are obliged to provide health care services to their people at all times. Under the African Charter, state parties are obliged to provide health care to their nationals at all times without any limitations.
The right to health does not mean the right to be healthy as such, but embodies an obligation on the part of the government to create the conditions necessary for individuals to achieve their optimal health status. In 2000 the United Nations Committee on Economic, Social and Cultural Rights adopted a General Comment explicating the substance of government obligations relating to the right to health (UNCESCR General Comment No 14).284 In addition to clarifying governmental responsibility for policies, programmes and practices influencing the conditions necessary for health, it sets out requirements for the delivery of health services, including their availability, acceptability, accessibility and quality. It lays out directions for the practical application of Article 12 and proposes a monitoring framework indicating the ways in which the State’s responsibility can be implemented through national law. Currently, over 100 national Constitutions have recognised a right to health and this number continues to increase as Constitutions are rewritten or updated.285 However, the Zanzibar Constitution does not provide for the right to health, though in Zanzibar there are free health services.
4.2.1 Improvement of Health Services in Zanzibar Enjoyment of the right to health requires that the government makes an effort to ensure that health services are functional and are available in sufficient quantity. That is, there should be, for instance, enough well motivated human resources and that health care facilities, goods and services are accessible to everyone.286
The Government has been putting efforts to improve health services through budgetary approach and improvement of health facilities together with working conditions of medical practitioners. Currently a doctor in Zanzibar attends to 9,000 patients compared to the ratio of 30,000 patients per doctor in the past five years.287 As for the budget for instance, there was an increased total medicines sector budget proposed for from TZS 50,954,097,000 in year 2014/2015 to 84,980,100,000 in year 2015/2016. We can note that there has been an increase of 60% of the budget allocation to health sector.288 These improvements have increased the availability of medicines in different hospital and health centres.
Furthermore, the government has controlled the HIV/AIDS and Malaria transmission to be below 1%. The number of pregnant mother who give birth in hospitals has increased from 56.1 in 2013 to 68.3 in 2015. The government has successfully administered the Rubella vaccine to children below
284Tarantola, D. and others (2008) Human Rights, Health and Development Australian Journal of Human Rights 13(2):1 – 32. 285Kinney E (2001) ‘The international human right to health: What does this mean for our nation and world?’ 34 Indiana Law Review pp 1457-1475. 286Ibid. 287President Dr. Shein made in one of his presidential campaign at Chokocho – Pemba. 288MHSW Budget speech 2015/2016 page 56.
120 the age of 15 years to more than 96.8% of the proposed children.289 Moreover, the government has taken a number of measures for child life protection by raising the public’s awareness on immunization against diseases such as measles, polio, tetanus, tuberculosis and now pre and post HIV checking to ensure the life of the child.290
The construction of a new building for neurosurgical services has been completed as has the construction of ICU ward at Mnazi Mmoja Hospital and laboratories at Wete, Chake Chake and Micheweni. The government is in the process of rehabilitating Abdalah Mzee Hospital, Mkoani Pemba and Binguni Hospital in South Unguja.291 However, the issue of an ICU at Pemba hospitals needs to be given serious consideration.
In year 2015, the government in collaboration with Zanzibar Outreach Programme (ZOP) conducted eye tests for more than 5,964 students (male 2,901 and female 3,063). The results of the test indicate that 52 students were found with eye problems and hence received the necessary treatment.292
The government through the Ministry of Health has treated more than 23 people affected by rabies from the affected areas of Fuoni, Maungani, Kianga, Bomani, Mkunazini, Mwembeladu, Kwahajitumbo, Kijangwani, Hurumzi, Shangani, Nungwi, Mwera and Chuini.
The government had used more than TZS 3,231,526,142.40 to sponsor 156 patients to be treated abroad.293 To solve the problem of sending patients abroad, the government has sent three doctors for PhD’s studies and seven for Master studies. These doctors will be specialists in different fields on their return.
The right to health is also determined by the food which people consume. The government has always been keen to ensure that the food consumed by its people is safe and poses no health risk. If found to be unsafe the food is destroyed by the government. In 2015, more than 88.9 tons of foods were destroyed after it was declared to be harmful and unfit for human consumption.294
We acclaim this effort of the government. However we recommend that the government do more to improve the health services in the country so as to avoid spending huge sums of money for treating people abroad.
4.2.2 Challenges Facing Health Sector The health sector is faced with many challenges. The challenges include shortage of human resources for health which severely constrains implementation of health activities at all levels. Lack of accommodation at rural health facilities hinders equitable distribution of staff especially in remote areas. Lack of proper incentive packages for medical staff assigned on special responsibilities
289Ibid. 290Budget Speech Ministry of Health 2015/2015, page 44. 291Ibid page 5. 292Ibid page 5. 293MHSW Budget speech 2015/16 page 19. 294Ibid page 33.
121 or sent to difficult stations is another problem which in turn affects staff retention. Government funding continues to be inadequate, inconsistently disbursed, and actual releases fall short of budget expectations as has already been noted above. Shortage of communication equipment including transport compounds the problems facing the health sector.295
4.2.2.1 Private Sector Since the passing of the Private Hospital (Regulation) Act of 1994, Zanzibar has seen a mushrooming in the number of private clinics. The number of private pharmacies and drugshops has also grown rapidly since the Pharmaceuticals and Dangerous Drugs Act of 1986came into force. Recent estimates suggest that there are 59 Part I and 203 Part II drug salespoints in Zanzibar, the majority of which are located in the towns.296 The private sector also provides health services in Zanzibar through hospitals, dispensaries, health centres and pharmacies. However, the government through the Private Hospital and Pharmacy Boards governs private health services in Zanzibar.
4.2.2.2 Availability of Drugs In 1980s, Zanzibar used to produce basic drugs but currently all drugs and reagents are imported.297 The availability of drugs in Zanzibar is still a major challenge thereby forcing people to buy drugs for themselves. The Ministry of Health planned to use TZS 2,800,000,000 for drugs. However, only TZS1, 368,325,561 (49%) was provided by the government for the purchase of drugs. As a result, the ministry relies heavily on developing partners to assist in the purchase and provision of drugs. For instance, in 2015 the ministry has received drugs and medicine tools costing more than TZS2,603,135,438 from developing partners.298
Though the government has made a lot of improvements in the health sector, much more still needs to be done on availability of medicine in Zanzibar so as to help the poor and needy people suffering because of lack of drugs. The government should facilitate the establishment of internal drug production by encouraging the private sector to view it as part of developmental investment.
4.2.2.3 Availability of Doctors A recent comprehensive review of the health workforce in Zanzibar (Training Plan for health facilities 2011/2021) indicates that 74 Zanzibari Medical Doctors (minimum qualification degree in medicine) are currently working in Zanzibar (Unguja and Pemba). Of these 11 Medical Doctors are in Administrative positions that provide support to patients on an ad-hoc basis. With the observed growing population (1.3 mil. people in 2011), the doctor population ratio for Zanzibar ranges from 1:15,165 (all doctors) to 1:48,994 (active doctors). The result is that the traditional role of the Medical Doctor in diagnosing and treating patients is shifted to Assistant Medical Officers, Clinical Officers and nurses in the primary care facilities.299
295Ministry of Health and Social Welfare, Zanzibar Health Sector Strategic Plan Iii 2013/14-2018/19. 296Ministry of Health and Social Welfare, Zanzibar Health Sector Strategic Plan Iii 2013/14-2018/19 page 55. 297Ibid page 106. 298MHSW Budget speech 2015/16 page 24. 299Ibid page 82.
122 Zanzibar needs more than two hundreds doctors to solve the problem of doctor shortages. However, the government has already taken measures to solve the problem. Some of the measures include the training of a number of medical students in Zanzibar and abroad and the establishment of a medical school under the umbrella of the State University of Zanzibar [SUZA] so as to increase the number of medical doctors.
4.3 HIV/AIDS and Human Rights Acquired Immunodeficiency Syndrome (AIDS) is a disease caused by infection with the Human Immunodeficiency Virus (HIV). The HIV is spread only when infected body fluids enter the bloodstream of a non-infected person. The dominant modes of transmission of the HIV are unprotected penetrative or oral sexual intercourse where the exchange of bodily fluids takes place, through the accidental or deliberate shared use of HIV-contaminated needles or skin cutting instruments (in and out of health care settings), from infected mothers to infants and through transfusion of infected blood or blood products.300
Sexual health rights are integral elements of the right to health, which is recognized and enshrined by United Nations (UN) human rights instruments such as the Universal Declaration on Human Rights (Universal Declaration), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC). It is also enshrined in the African regional and sub-regional human rights instruments including the African Charter on Human and Peoples’ Rights.301
HIV has become one of the largest public health problems, especially in developing countries, and women are particularly vulnerable to infection. A joint United Nations Programme on HIV/AIDS (UNAIDS) report indicates Sub-Saharan Africa accounts for 67% of the 33 million people living with HIV globally in 2007. In Southern Africa, the prevalence of HIV is between 15% and 28% of the adult population, or as otherwise stated, around 22 million. Sixty per cent of these adults are women. Among young people between the ages of 15 and 24, HIV prevalence tends to be notably higher among women than among men. The number of children younger than 15 living with HIV is estimated at 2.0 million, 90% of which live in Sub-Saharan Africa.302
In Zanzibar, the first case of HIV was reported in 1986. From that time onwards, the country has continued to witness a growth in the cumulative number of HIV and the HIV epidemic has spread to all districts in Zanzibar but at unequal pace, levels and magnitude.303
300University of Cape Town (2006) Policy on HIV Infection and AIDS. 301Karen Stefiszyn and others (2009), Realising the right to health in the Universal Declaration of Human Rights after 60 years: addressing the reproductive health rights of women living with HIV in Southern Africa, University of Pretoria. 302Ibid. 303HIV Status in Zanzibar http://192.185.148.241/~zacor/index.php/about-zac/current-status/hiv-in-zanzibar. htmlvisited 13th November 2015.
123 4.3.1 HIV/ AIDS Legal Framework The Zanzibar government has realized the problem of HIV/AIDS and hence passed the Zanzibar HIV and AIDS Prevention and Management Act, 2014. The Act provides for the prevention and management of HIV and AIDS in Zanzibar and for the protection and promotion of the human rights of persons living with or affected by HIV and AIDS. The Act prohibits any kind of discrimination directly or indirectly against people living with HIV.304
4.3.2 Institutional Framework The government of Zanzibar has established a separate organ to deal with this pandemic. The Zanzibar AIDS Commission is one of the major players for HIV/AIDS in Zanzibar. This commission is under the office of the First Vice President of Zanzibar whose main responsibility is to coordinate the national multi-sectoral response to this pandemic. However, the Ministry of Health has the greater responsibility of dealing with the disease. For this reason, within the ministry there is a unit, the Zanzibar Aids Control Programme which is responsible for dealing with HIV/AIDS. Besides, the Commission there are some non-governmental organizations dealing with HIV/AIDS in an attempt to contain the disease from further spreading into the society. Zanzibar Association of People with HIV/Aids+ (ZAPHA+), the Zanzibar NGO Cluster for HIV and AIDS Prevention and Control (ZANGOC) is an umbrella organization comprising of forty five HIV and AIDS related NGOs, Community Based Organizations (CBOs) and Faith Based Organizations (FBOs) in Zanzibar (41 in Unguja and 4 in Pemba).305
As noted above, the issue of HIV/AIDS is treated as a cross cutting issue so it is not the issue of one entity of the government. Through the Ministry of Education and Vocational Training, the government has also introduced Guidance and Counselling from primary school standard six to lower secondary classes with the aim of nurturing the youth. The programme has introduced training materials for students and promoted MEES clubs in schools which deal with issues related to HIV/AIDS, environment and population. The programme has also been introduced in teacher training colleges. Life skills education is also pursued via the provision of guidance and counselling services and the initiation of peer education programmes.306
4.3.3 HIV/AIDS Situation in Zanzibar Despite a number of programme to control the spread of HIV/AIDs in Zanzibar, the number of people who have been affected by AIDS has increased. For instance, from July 2014 to March 2015 there were 7,820 people found with HIV.307 Sexual intercourse, especially heterosexual sex, accounts for more than 90% of HIV transmission in Zanzibar. HIV transmission through body fluids and blood products in hospital settings is controlled through standard screening and sterilization procedures of invasive equipment. HIV transmission through piercing and other surgical invasive
304The Zanzibar HIV and AIDS Prevention and Management Act No. 2013. 305The Revolutionary Government Of Zanzibar, The 7th And 8th Periodic Reports On The Implementation Of The Convention On The Elimination Of Discrimination Against Women (CEDAW) 2008 – 2014. 306The Revolutionary Government Of Zanzibar, The 7th And 8th Periodic Reports On The Implementation Of The Convention On The Elimination Of Discrimination Against Women (CEDAW) 2008-2014. 307MHSW Budget speech 2015/16 page 42.
124 equipment accounts for approximately 6% of all HIV transmission. Guidelines and directives to ensure aseptic techniques are now in use in all health facilities. Data from Zanzibar AIDS Control Programme (ZACP) estimates that about 4% of HIV transmission is of vertical nature [mother to child transmission] inclusive of breast-feeding period. It is further reported that the HIV transmission among the injecting drug users counts 15.1%.308
There is a fear that, this number may increase due to the lack of funds for sensitization of HIV in Zanzibar. This was cautioned by Dr. Abdalla Omar, who is the project manager of ZACP.309 Dr. Abdalla has said most of the NGOs who work with HIV depend on their funds from external donors so when donors remove their support the NGO cannot stand on their own.
4.3.4 Violation of the Rights of People living with HIV/AIDS in Zanzibar People living with HIV and AIDS are victims of human rights violation and they are easily discriminated particularly by society with insufficient knowledge on rights of those people.310 The Universal Declaration proclaims that ‘all human beings are born free and equal in dignity and rights.’ Therefore, human rights belong to all without discrimination, a principle that has been enshrined in all major human rights treaties.311
4.3.4.1 The Stigmatization and Discrimination against People Living with HIV/AIDS The Universal Declaration proclaims that ‘all human beings are born free and equal in dignity and rights.’ Therefore, human rights belong to all without discrimination, a principle that has been enshrined in all major human rights treaties. After over two decades of the AIDS epidemic and 17 international AIDS conferences, stigma and discrimination based on misperceptions of HIV and AIDS is still pervasive, and even, at times, perpetuated by the very health care workers to whom those vulnerable to infection and those infected turn to for help. Individuals, including health professionals, tend to stigmatize HIV-positive women, in particular, those seeking services related to reproductive decision-making.312
Despite the international, regional and domestic instruments to eliminate all forms of discrimination, in Zanzibar the violation of the rights of people living with HIV/AIDS is still a problem. People are not ready to accept the reality that there is nothing wrong in mixing with people who live with HIV/AIDS.
However, the extent of stigmatization for people living with HIV has been reduced compared to two decade ago.313 This was also upheld by Tanzania HIV/AIDS and Malaria Indicator Survey
308ZAC Annual HIV &AIDS Monitoring and Evaluation Report, 2008. 209Khatibu Mjaja 82 Wagundulika na VVU Pemba, Zanzibar Leo 02/12/2015. 310Tanzania Human Right Report 2014. 311Karen Stefiszyn, Mmatsie Mooki and Yohannes Tesfagabir (2009) Universal Declaration of Human Rights After 60 Years: Addressing The Reproductive Health Rights of Women Living With HIV in Southern Africa. 312Karen Stefiszyn and others (2009), Realising the right to health in the Universal Declaration of Human Rights after 60 years: addressing the reproductive health rights of women living with HIV in Southern Africa, University of Pretoria. 313Budget Speech of the Office of the First Vice President 2015/2016 page 11.
125 2011-12 which has shown that women and men in Zanzibar report less HIV/AIDS related stigma compared with those in Mainland Tanzania: 43 per cent of women and 55 per cent of men from Zanzibar express accepting attitudes on all four standard indicators compared with 25 per cent of women and 40 per cent of men in Mainland Tanzania.314 Despite this improvement, stigmatisation is not eliminated completely. There are still cases of stigmatisation in Zanzibar that has caused people living with HIV/AIDS to abscond from testing and attending centres to pick up ARV fearing to be recognised by other people.315 We therefore, recommend for more national advocacy campaigns to promote broadmindedness on stigmatisation.
4.3.4.2 Right to Privacy The constitution of Zanzibar guarantees the right to privacy.316 However, this right is not enjoyed in Zanzibar as far as people living with HIV is concerned. Failure to observe confidentiality in hospitals has caused many people to fear taking the test in Zanzibar. People opt to go the mainland Tanzania or abroad to for testing knowing that their HIV status will not be revealed.317 For example, 7,820 people with HIV have been registered in Zanzibar at eleven HIV clinics and 5,375 (68.7%) of them have starting using ARVs. However, it is only 3,587 people who continue using ARV, the rest 1,788 (33.3%) having abandoned the use of the medicine.318
The centre strongly recommends that medical personnel in public and private hospitals adhere to the professional code of conduct especially on confidentially of medical information.
4.3.4.3 Lack of Essential Medicine and Drugs A shortage of the essential medicine and drugs for HIV patients still persists in Zanzibar despite government efforts to solve the problem. Addressing a meeting evaluating the performance of the Government of National Unity (GNU), the First Vice President proclaimed that, “people living with HIV/AIDs had been living under difficult circumstances due to lack of medicines and essential drugs”319
An insufficient budget for the Ministry of Health in Zanzibar persists to be a big problem; hence it affects the ministry’s ability to carry out its programs including efficient distribution of ARVs to the people living with HIV.320
4.3.4.4 Narcotic Drugs/ HIV/AIDs and Related Challenges Narcotic drugs have a direct effect on the spread of HIV in Zanzibar. It was reported that HIV
314Tanzania HIV/AIDS and Malaria Indicator Survey 2011-12. 315Zanzibar Legal Services Centre, Tanzania Human Rights Report 2013 page 402. 316Article 15 of the Constitution of Zanzibar. 317Eileen Moyer (2012) Faidha gani? What’s the point: HIV and the logics of (non)-disclosure among young activists in Zanzibar, Culture, Health & Sexuality, 14:sup1, S67-S79, DOI: available http://dx.doi.org/10.1080/13691058.2012 .662524 accessed on 26 November 2015. 318Budget speech Ministry of Health 2015/2016 page 42. 319http://www.ibn-tv.com/2011/12/maalim-seif-says-zanzibars-hivaids-prevalence-rising, (accessed on 13th November 2015). 320Budget speech Ministry of Health 2015/2016 page 48.
126 prevalence was 16 per cent among the injection drug users (IDUs).321 Despite the government’s several efforts to combat narcotic drugs in Zanzibar the problem still remains the same.322 The Government has passed the Drugs and Prevention of Illicit Trafficking in Drugs Act, 1995 to deal with imposition and transferring of narcotic drugs. Manufacturing of narcotics which is prohibited under such law includes all kinds of cocaine derivatives, medicinal cannabis, opium, derivatives, and poppy straw concentrate.323 This law was among the efforts of the government to align with international organisations in the fight against illicit drugs. Internationally, narcotic drugs have been condemned by different conventions including the Single Convention Narcotic Drugs, 1961, adopted by United Nations Conference at New York, the Convention on Psychotropic Substances, 1971, adopted by United Nations Conference in Vienna, and the United Nations Convention against Illicit Traffic in Narcotic Drugs, 1988.
Moreover, the government has made other efforts to combat narcotic drugs in Zanzibar. The government is in the process of constructing its own treatment and rehabilitation centre for helping those who have been affected by drugs.324 However, the government has allowed the establishment of sober houses for intravenous drug users, peer support, overdose management, and behavioural interventions.325 Sober Houses have been supported by government financially and strategically. Ten houses were given funds of TZS 1,500,00 each to support their activities. The centre recommends that the government should provide more funds which will be sufficient to set up a special budget to support the houses. Among the recipients of these funds from the government are; Limbani Sober House (Pemba), Kifoe Sober House (Pemba), Mtofaani Sober House (Unguja) Free At Last Recovery Home (Unguja), Tawabiina Sober House (Unguja) Detroit Sober House (Unguja), Trent Sober House (Unguja), Zanzibar Youth Forum (Unguja), Nyarugusu Sober House (Unguja) and Mkoroshoni Sober House (Pemba).326 This effort of the government to financially support Sober houses is a commendable act which other stakeholders in the fight against illicit drugs should support.
4.4 Right to Clean Water Access to clean water has become a problem in many nations with a number of people lacking access to safe drinking water. In March 1977 there was the UN Water Conference at Mar del Plata. The Action Plan from this Conference recognised water as a right for the first time declaring that “All peoples, whatever their stage of development and social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs”.327
321Integrated Biological and Behaviour Surveillance Survey 2012. 322Budget speech the Office of the First President 2015/2016 page 12. 323Section 2 (a) and (b), Drugs and Prevention of Illicit Drugs Act, 1995. 324Ibid page 17. 325The Revolutionary Government Of Zanzibar, The 7th And 8th Periodic Reports On The Implementation Of The Convention On The Elimination Of Discrimination Against Women (CEDAW) 2008 – 2014. 326Budget speech the Office of the First President 2015/2016 page 35. 327The Human Right to Water and Sanitation Milestones http://www.un.org/waterforlifedecade/pdf/human _right_to_ water_and_sanitation_milestones.pdf (accessed on 13th September, 2015).
127 There are numerous international instruments which ensure that a human being has a right to clean water. These include; the 1979 Convention on the Elimination of Discrimination against Women (CEDAW) and the 1989 Convention on the Rights of the Child (CRC). Earlier legally binding international conventions to explicitly document the right to water include the Convention on the Elimination of Discrimination Against Women, 1979 (CEDAW), and the Convention on the Rights of the Child, 1989 (CRC). For example, Article 24(2) of the CRC provides that state parties shall implement the right of the child: “to the enjoyment of the highest attainable standard of health and, in doing so, shall take appropriate measures to supply adequate nutritious foods and clean drinking water”, General Comment No. 15 (2002),the right to water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights). On 16 December 1966, the United Nations Committee on Economic, Social and Cultural Rights (the “CESCR”) adopted the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”). In force from 3 January 1976, the ICESCR forms a multilateral treaty which commits its parties to work towards the granting of economic, social and cultural rights to individuals, in particular Article 11; the right to an adequate standard of living that also requires the right to adequate food and water.328
It was not until 2002 that a comprehensive definition of the right to water was made by the CESCR in assessing the implementation of the ICESCR. Documented in the General Comment No. 15: The Right to Water (the “GC 15”), the CESCR defines the right as follows: “the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.” According to the CESCR, while the General Comment may not be binding in a strictly legal sense, they carry considerable weight as tools for guidance and interpretation. Following the publication of GC 15, a number of states formally recognised the right to water as part of their treaty obligations under the ICESCR. UN Human Rights Council: Resolution A/HRC/15/L.14 on 28 July 2010, formally acknowledged the right to drinking water and sanitation as a human right by the General Assembly (the “GA”) Resolution (Ref. A/64/L.63/Rev.1) (the “GA Resolution”). The GA called upon UN member states and international organisations to provide funding and further resources to aid poorer countries in their efforts to supply clean drinking water. It also suggested that a UN Independent expert report to the GA on an annual basis setting out the progress towards the target of halving the number of people without safe drinking water by 2015, as set out within the Millennium Development Goals.329
Significantly, on 30th September 2010, the UN Human Rights Council confirmed in its first UN Human Rights resolution, Resolution A/HRC/15/L.14 (the “UN Resolution”), that the right to water and sanitation is legally binding: “The human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and inextricably related to the right to the highest attainable standard of physical and mental health, as well as the right to life and human dignity.” The UN Resolution affirms the UN Human Rights Council’s recognition that the right to water derives from Article 11(1) of the ICESCR, the right to an adequate standard of living, and
328Ibid. 329Alex Gordon and Others (2011) RIGHT TO WATER http://www.a4id.org/sites/default/files/user/[A4ID] %20 Right%20to%20Water.pdf, (accessed on 20th May 2015).
128 by so doing ensures that the right to water is legally binding and therefore enforceable.330 There is a total absence of any mention of the right to water under the African Charter. However, the African Charter on the Rights and Welfare of the Child (African Children’s Charter)331 provides that state parties are required to take measures to ‘ensure the provision of adequate nutrition and safe drinking water’.332 The ambit of the provision in the African Children’s Charter is so limited that it merely regulates the quality (safety) of available water and applies only to children.
Unlike other countries like South Africa where by the right to water is enshrined in their constitution,333 right to water is not provided in the Zanzibar Constitution. However the Revolutionary Government of Zanzibar has taken various measures to ensure that all people in Zanzibar enjoy this right. Different policies, strategies, plans, programmes and projects were formulated to address issue of water in Zanzibar. These included the Water policy (RGoZ, 2004), Forest policy (1996), Education policy (RGoZ, 2006), Tourism policy (RGoZ, 2005), and Environmental policy (RGoZ, 1992, 2013).
4.4.1 Current Situation of Provision of Right to Water In Zanzibar, the provision of clean and safe water falls under the government executive agent, the Zanzibar Water Authority (ZAWA).334 The authority is responsible for formulating water policies, supply of clean water and collection of nominal charges from water recipients. ZAWA has a duty to contact international organizations on improvement of water.335 The authority provides water services in both urban and rural areas. Currently those who enjoy the right to water are more 76 per cent of Zanzibaris, the vast majority of whom live in rural areas and who now have access to safe water.336 The target of the authority is to supply water services to not less than 250 meters from where people are living in rural area.337 However, the water supply in urban area is a problem. Most of the inhabitants of the town area use privately owned wells as their source of water and in most cases, the water not really pure, clean and is usually salty.
Reports from the water authority suggest that water production has dropped dramatically. For example, statistics indicated that the required amount of water is 214 Million litres of water, but
330International Bank for Reconstruction and Development (IBRD), World Bank. The Human Right to Water. Legal and Policy Dimensions. 2004. www.wds.worldbank.org/external/default/WDSContentServer/ WDSP/IB/2004/10/18/000 090341_20041018135134/Rendered/PDF/302290PAPER0Human0right0to0H20.pdf (accessed on 20th May 2015). 331SC McCaffrey ‘The basic right to water’ in EB Weiss et al (eds) Fresh Water and International Economic Law (2005) 93 94. 332M Craven ‘Some thoughts on the emergent right to water’ in E Riedel & P Rothen (eds) The human right to water (2006) 37 39. 333Section 27(1) of the Constitution of South Africa 1996. 334Zanzibar Water Authority Act No. 4 of 2006. 335Ibid. 336Zanzibar Celebrates Safe Rural Water with the African Development Bank http://allafrica.com/stories/201509070779. html accessed on 23rd December 2015. 337Budget speech of Ministry of Lands, Housing, Water and Energy 2015/2016.
129 the production was only 163 million litres (about 76 per cent).338 Climate changes, decrease of underground water, the rise in sea water and ignorance on conservation of the environment have been attributed to be the main cause of the problem.339
Addressing the House of Representatives during his budget speech in 2015, the Minister responsible for water had claimed that in the financial year 2015-2016 the Ministry had implemented different projects which included projects for the supplying of water to both Zanzibar Town and the rural areas.340 However the projects were not fully implemented in 22 villages. These villages include, Mtende, Muyuni, Kinduni, Kibuteni, Makunduchi, Kidoti, Bumbwini Maji Mekundu, Moga- Mwembe Mkali, Uroa, Ndijani, Bambi, Chaani Bandamajifrom Unguja,Matuleni, Muambe, Shumba Viamboni, Wingwi Mtemani, Wingwi, Mjananza, Mgogoni, Masipa, Mtambile and Mtambwe Kaskazini from Pemba.341 The residents of these areas still have to walk long distances in search of clean water.
The government has been working closely with several development partners including China, Japan, ADB, BADEA, UN-Habitant, and some private local institutions to make sure that safe water is available to the people by constructing bore halls and water wells.342 For instance a ruler of Ras al Khaiman has sponsored a project of drilling 50 deep wells in the urban areas.343
4.4.2 Challenges Facing Water Supply Water supply in Zanzibar faces many challenges. Among those are the watersheds in Zanzibar which now face frequent drought especially during the dry season.344 This has caused some groundwater wells to be abandoned due to drought.345 Climate change in the form of rising temperature and decreasing rainfall trends over the years have led to dwindling ground water supply in Zanzibar.346 In addition, people invading areas near water reservoirs, old water infrastructures that lead to shortage of water in some areas; failure of people to pay their bills, climate change and variability declining water situation in Zanzibar all contribute to the water problems facing the Isles.347 In addition, water
338The speech of Zanzibar President to commemorate 51th Anniversary of Zanzibar Revolution of 1964 http:// www.ikuluzanzibar.go.tz/publications/view/hutuba-ya-rais-wa-zanzibar-na-mblm-dk.ali-shein-katika-sherehe-za- maadhimis, (accessed on 14th December, 2015). 339Human Rights Report 2014. 340Speech of the Minister of Land 2015/2016, page 15. 341Speech of the Minister of Land 2015/2016, page 17. 342How Zanzibar is overcoming water scarcityhttp://www.dailynews.co.tz/index.php/features/40890-how-zanzibar-is- overcoming-water-scarcity, (accessed on 14th February, 2015). 343Ibid page 18. 344Revolutionary Government of Zanzibar (RGoZ). (2004). National Water Policy 2004. Ministry of Water, Construction, Energy and Lands, Zanzibar. 345Bates, B. C. Kundzewicz, Z. W., Wu, S., and Palutikof, J. P. (eds) (2008). Climate Change and Water: Technical Paper of the Intergovernmental Panel on Climate Change. IPCC; Secretariat, Geneva. 346Kombo A. Kombo and Ahmad Kanyama, Effect of Climate Change and Variability on Water Supply in Zanzibar Int. J. Mar. Atmos. & Earth Sci. 2015, 3(1): 1 – 16. 347Ibid.
130 control is still a big problem in Zanzibar where the Authority has claimed to have lost thousands of litres of water through old leaking pipes, unattended water or broken taps, unattended water tanks, and storage of too much water than what is actually needed.348
The centre recommends that the government fulfils its promise to supply water services to more than 85 per cent of Zanzibaris by the end of 2015.349 It is our hope that, this promise will be fulfilled for the benefit of Zanzibaris, hence save a lot of money for people who have had to buy water thereby adding another burden over and above the persistent poverty facing people.
4.5 The Youth and Society The youth does not occupy a special perch outside its social environment. It is very much part of society. In Zanzibar, the definition of the youth is more expansive and includes individuals aged between 15 to 35 years.350 Zanzibar has more than 471,634 youths which equal to 36.2% of all people in Zanzibar.351
Despite being more than 36.2% of population, the youth in Zanzibar face many challenges. Unemployment in Zanzibar is a widespread and persistent challenge especially amongst the youth due to rapid increase of the youth population. According to the Zanzibar Integrated labour Force Survey of 2006, youth unemployment rate for those aged 15-35 is 19.6 per cent. The findings show that unemployment rate for young women are higher representing 23.5 per cent compared with young men which accounted for 15.2 per cent. The same situation is revealed in Tanzania Demographic Health Survey (2010) where 65 per cent of young women in Zanzibar are currently unemployed.
In addition Household Budget Survey (2010) revealed that the general unemployment rate for youth aged 15 – 24 in Zanzibar is 17.1 per cent an increase in comparison to 14.6 per cent recorded in HBS of 2004/05. The reported data reveal that in rural area the rate is 11 per cent and in urban area is 31.2 per cent. Therefore youth unemployment ends up as a critical challenge which needs special attention in the Zanzibar.
In addition, the youth in Zanzibar face other challenges like high school dropout rates, poor reproductive health choices, high prevalence of HIV/AIDs, poor maternal and child health services and high maternal mortality rates over time.
348Ibid. 349How Zanzibar is overcoming water scarcityhttp://www.dailynews.co.tz/index.php/features/40890-how-zanzibar-is- overcoming-water-scarcity, (accessed on 14th February, 2015). 350Zanzibar Youth Policy, 2007. 351The speech of the Minister of President Office, State House a Good Governance on commemorate Population Day 2014.
131 4.6 Conclusion In Africa and Zanzibar particularly, socio-economic rights are making slow progress compared to civil and political rights. The slow progress of this right may include the economic standard of the country like Zanzibar which has not really grown economically. However, Zanzibar has made successful strides in areas like education, water and health. However, in relation to the right to work, despite it being introduced in the constitution it is not an enforceable right where individuals cannot claim against the government for losing out on jobs. Many people are jobless and those who have jobs claim of low salaries. Though our economy is not a large one, we need to ensure legal mechanisms are put in place to enable the people to have an equitable enjoyment of these rights.
132 CHAPTER FIVE Economic and Cultural Rights
5.0 Introduction Economic and Cultural Rights are classified as the second generation of human rights. It comprises economic rights, such as the right to education, the right to health and the right to work. These rights are social, cultural and economic in content and orientation. The first and second generations of rights are focused on individuals. Globally, two separate covenants that followed the Declaration gave impetus to the declaration of human rights. They are the International Covenant on Civil and Political Rights (ICCPR), 1966 and the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 According to Mary Robinson, the former UN High Commissioner for Human Rights:
“These Treaties and the UN Declaration, known collectively as the International Bill of Rights, are the cornerstone of the remarkable body of international and regional instruments, well over seventy in number, which form the basis of international human rights law, and regulate the fundamental rights and freedoms of all individuals.” 352
In spite of the categorization of human rights into civil and political rights, and social, economic and cultural rights, there is no water-tight division between them. They complement each other in the sense that the enjoyment of political rights cannot be isolated from that of socio–economic rights. They are interconnected and interdependent and they cannot be graduated in order of importance. The right to life means nothing in the absence of the right to food. A person who has nothing to eat or who is faced with acute starvation can hardly enjoy the right to life.
In 1993, the World Conference on Human Rights declared and affirmed that ‘‘…all human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”353 The Covenant recognizes:
The ideal of free human beings enjoying civil and political freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.354
Looking at the New Delhi Statement on the justifiability of economic, social and cultural rights in South Asia, it recognized that human rights are indivisible and interdependent and that the rights entrenched in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and, where relevant, the Directive/Fundamental Principles of State Policy contained in some national
352Robinson M ‘‘ Protecting Human Rights: the Role and Responsibilities of the Independent Bar’’ being a keynote address delivered at the inaugural World Conference of Barristers and Advocates, Edinburgh 28 June 2002. 353The Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna 14-25 June 1993, UN Doc. A / Conf. 157/23, of 12 July 1993, para 5. See also para 1. 354See its Preamble. ICESCR has an almost identical paragraph in its preamble too.
133 constitutions represent statements of clear legal obligation for the States concerned. It further proclaims that the principles anticipated in those documents give direction to the States concerned in addition to giving content and meaning to fundamental rights enshrined in those constitutions.355
In New Patriotic Party v Inspector–General of Police Accra,356 it was stated by the Supreme Court of Ghana that:
All human rights and fundamental freedom are indivisible and interdependent: equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights. In the last resort, they are all-exercisable within a societal context and impose obligations on the state and its agencies as well as on the individual not to derogate from these rights and freedom.
On the other hand, the Harare Declaration on Human Rights notes that ‘‘there is a close inter-linkage between civil and political rights and economic and social rights; neither category of human rights can be fully realized without the enjoyment of the other.’’357 The Supreme Court of India said that both are complementary, ‘‘neither part being superior to the other.’’ 358
Some writers have also recognized the interconnectivity, interdependence and indivisibility of human rights. Keller argued that civil and political rights and economic, social and cultural rights ‘‘are inextricably intertwined.’’359 Amartya Sen, for example, emphasizes the ‘‘extensive interconnections between freedoms and the understanding and fulfilment of economic needs.’’360 Directive Principles of State Policy have direct relationship with economic, social and cultural rights specified in the ICESCR.361 They also enjoy interconnectivity and interdependence with political rights.
The African Charter on Human and Peoples’ Rights, 1991 in its preamble, inter alia states: “… that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights”. Notwithstanding that various international instruments, declarations and statements have not only recognized but proclaimed that
355Statement of Conclusions, Workshop organised by the UN Office of the High Commissioner for Human Rights on the Justiciability of Economic, Social and Cultural Rights in South Asia New Delhi 17-18 November 2001, para 10. 356(2000) 2 HRLRA 1 at 79, para A-B. The Supreme Court thereby adopted the Statement by the Committee of Experts in the Report on the Proposals for a Draft Constitution of Ghana at page 62 para 128. 357Harare Declaration on Human Rights, being the Concluding Statement of the Judicial Colloquium on the domestic application of international human rights norms held in Harare, Zimbabwe, 19-22 April, 1989. 358State of Kerala v N.M. Thomas 1976 2 SCC 310 at 367. 359Keller L. M ‘The Indivisibility of Economic and Political Rights’’ (July 2001) (Vol 1:3) Human Rights and Human Welfare Vol 1:3–July 2001, 2001, 13; see also Kothazi J. ‘‘Social Rights and the Indian Constitution’’ 2004(2) Law, Social Justice & Global Development Journal (LGD) http://www.go.warwick.ac.uk/elj/lgd/2004_2/kothari [visited on 13 February 2006]. 360Sen A, Development as Freedom (1999), page.147 361See Final Report of the Committee on Review of Indian Constitution. Chapter 3.
134 civil and political rights and economic, social and cultural rights are interconnected, interdependent, interrelated and indivisible, they still accord primacy to political rights over economic rights.
Article 2(1) of ICESCR enjoins each state party ‘‘to take steps… to the maximum of its available resources, with a view of achieving progressively the full realization of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”362 Alston and Quinn noted that the provisions should not be seen ‘‘as an escape hatch for states whose performance failed to match their abilities or as a lessening of state obligations. It (should be) viewed and defended simply as a necessary accommodation to the vagaries of economic circumstances.”363
Economic and cultural rights includes right to property, education, water services, health services, right to work and other rights that enable a human being to enjoy and control his/her life. In practice, States use the provision as an ‘‘escape hatch’’ to create a dichotomy between political and economic rights; subordinating the latter to the former and escaping from their obligations under the Covenant. The Covenant qualified their obligations and they take advantage of same. Arambulo rightly states that ‘‘…despite its prominence in many human rights documents as a permanent fixture in preamble paragraphs, the general understanding of the notion of indivisibility has remained superficial and vague, and in practice, the divisions between human rights continue to be sustained in the UN organs, including the treaty bodies themselves.”364 Even in Zanzibar, economic and cultural rights are not given due attention compared with civil and political rights. Though there is some degree of protection of cultural rights, civil and political rights are at the peak of the state priorities. Not enough concern has been given to promote economic and cultural rights as are given to the civil and political rights.
5.1 Right to Property The right to own property relates to ownership of property by an individual to the exclusion of others. This ownership of property ‘is not a relation between a person and a thing. It is a relation
362Alston P. & Quinn G., ‘‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’’ (1987)(9) Human Rights Quarterly 156-229. 363Ibid. 364Arambulo, K., “Giving meaning to Economic, Social and Cultural rights: A Continuing Struggle” Vol. 3, Human Rights and Human Welfare, 2003, page 117. Sandra Liebenberg similarly argues that the normative separation of the two groups of rights has been reinforced by the provision of different enforcement mechanisms. Consequently, an independent, expert body was created under ICCPR called the Human Rights Committee, and which has the mandate to supervise States parties obligations under the covenant. This is further to a periodic reporting procedure, an optional protocol was adopted to the ICCPR which allowed the Human Rights Commission to consider communications of individuals claiming to be victims of the rights violations contained in the Covenant. According to her, this supervision of States parties obligations under the ICESCR was left to a working Group appointed by the UN Economic and Social Council. The result of this institutional differentiation, the two groups of rights, Civil and Political rights continue to benefit from the experience and evolving jurisprudence generated by an adjudicative procedure, when the supervision system for socio- economic rights was weak and ineffective: Liebenberg S ‘‘Judicial and Civil Society” initiatives in the Development of Economic and Social Rights in the Commonwealth http://www.communitylawcentre.org.za/ser/ docs_2002/CHR_Millennium_Report.doc [accessed on 13 February 2006 but currently the web is not accessible].
135 between a person and a person.’365 Ownership of (property) means that the owner can exclude others from access to it. My right to own a piece of land means my right to exclude you from it. And when the State guarantees my right to own (property), it undertakes to exclude others from it by law, meaning disguised force.366
The concept of property has been changing with time. At first property was only that what is tangible, but now property rights include even intangible acquisitions.367 Also, the value of property in relation to other matters differs from society to society.368 In some societies property is valued even more than life itself.369
The right to property, also known as the right to protection of property, is a human right and is understood to establish an entitlement to private property.370 International instruments do not provide for the right to property. Rather, they provide for protection of property which means one has to earn the property first and then get protection and or the right to peaceful enjoyment of that property. The legal instruments do not provide the individual with property but with protection of already earned or acquired property.371
Despite the fact that the right to property is not absolute, states have a wide degree of discretion to limit the right. This has been enshrined in a number of International instruments like the UDHR but is not recognized in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.372
The right to property in the Constitution of Zanzibar is constructed in a manner that does not impose positive duty on the State to ensure that there is a conducive environment put in place to ensure that every citizen is capable of acquiring property.373 Section 17 of the Constitution of Zanzibar, 1984 gives protection from deprivation of property. The Article provides that no person shall be deprived of his property interest or right in that property except and upon compliance with the following conditions: 365Shivji, Issa G., Lawyers in Neoliberalism: Authority’s Professional Supplicants or Society’s Amateurish Conscience, Dar es Salaam: Faculty of Law, University of Dar es Salaam, 2006, p. 8. 366Ibid. 367For example, in Shah v. Attorney-General [1970] 543, the High Court of Uganda interpreted the word “property” in the then Ugandan Constitution to include a contract. This case is referred to in Peter, Chris Maina, Human Rights in Tanzania: Selected Cases and Materials, ibid, footnote 3, at p. 249. 368Pejovich, Svetozar, The Economics of Property Rights: Towards a Theory of Comparative Systems, Dordrecht/ Boston/London: Kluwer Academic Publishers, 1990, referred in PETER, C.M., ibid, footnote 4, at p. 249. 369Peter, Chris Maina, Human Rights in Tanzania: Selected Cases and Materials, Köln: Rudiger Koppe Verlag, 1997 370Kijo-Bisimba, Helen, and Peter, Chris Maina, 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, pp. 150- 154. 371Ibid. 372Pejovich, Svetozar, The Economics of Property Rights: Towards a Theory of Comparative Systems, Dordrecht/ Boston/London: Kluwer Academic Publishers, 1990, referred in PETER, C.M., ibid, footnote 4, at p. 249. 373J. Clement Mashamba , the Right to Property without Adequate Legal Protection in Tanzania 2007 Volume 1 No. 2 OULJ page15 – 28.
136 a) that the acquisition and occupancy of the property is of utmost importance for defence and security of the people, health requirement, town planning and any other development in the public interest; b) that the need to acquire the property in question is absolutely necessary to the extent that it legalizes its acquisition even if it is detrimental to its owner; c) that there exists a law in respect of which acquisition or occupation of the property provides for fair and adequate compensation.
Despite the fact that the right to property has been protected by the constitution, the resulting situation is not all the simple. The right to own private property has been subject of constant interference by both state and non-state actors who have been infringing the right to own private property without any justifiable or legitimate cause.
The right to property is technically referred to as the right to protection of property. It is a very important aspect of human rights and is understood to establish an entitlement to private property.374 The right to property is not absolute and states have discretion to limit the rights.
Property rights are human rights. The definition, allocation, and protection of property rights comprise one of the most complex and difficult sets of issues that any society has to resolve, but one that must be resolved in some fashion. For the most part, social critics of property rights do not want to abolish those rights. Rather, they want to transfer them from private ownership to government ownership. Some transfers to public ownership (or control, which is similar) make an economy more effective.375
It is contended that a property right is the exclusive authority to determine how a resource is used, whether that resource is owned by government or by individuals. Society approves the uses selected by the holder of the property right with governmental administered force and with social ostracism. If the resource is owned by the government, the agent who determines its use has to operate under a set of rules determined, by the House of Representatives or by executive agencies charged with that role.
Internationally, the rights have been enshrined in Article 17 of the Universal Declaration of Human Rights. However it is not recognized in the International Covenant on Economic Social and Cultural Rights, 1966.376 Admittedly, the right to protection of property is enshrined in the regional human rights instruments of Europe, Africa and the Americas.377
Domestically, the right to property is provided in the Constitution of Zanzibar of 1984 section 17 which maintains the protection against the deprivation of property except upon the compliance of the prescribed conditions.
374http://en.wikipedia.org/wiki/Right_to_property visited on December 3rd, 2013. 375Alchian, Armen. “Some Economics of Property Rights.” Il Politico 30 (1965): 816–829. 376Doebber Curtis (2006). Introduction to International Human Rights Law, CD Publishing, page 141-142 377See Articles of the covenants see also Alfredsson, Gundmur, (1999). The Universal Declaration of Human Rights: A Common Standard of Achievement, page. 364.
137 In the year 2015, the enjoyment of the right to property has been one of the issues discussed by many Zanzibaris particularly during the last quarter of the year. This is the time where there had been a major destruction of property for the expansion of the main road from Mwanakwerekwe to Fuoni.
5.1.1 Right to Acquire and Own Immovable Property The “property rights” too often take precedence over “human rights,” with the result that people are treated unequally and have unequal opportunities to own property. Though inequality may exist in any society, the purported conflict between property rights and human rights is a mirage. Ownership of the property can be private or of a group including the community as what may be referred as communal property.
Private property rights have two other attributes in addition to determining the use of a resource. One is the exclusive right to the services of the resource. Thus, for example, the owner of an apartment with complete property rights to the apartment has the right to determine whether to rent it out and, if so, which tenant to rent to; to live in it himself; or to use it in any other lawful way. That is the right to determine the use. If the owner rents out the apartment, he also has the right to all the rental income from the property. That is the right to the services of the resources in term of the rent.378
Section 17 of the Constitution of Zanzibar guarantees the right of every citizen of Zanzibar to acquire and own property. It says no person shall be deprived of his property interest or right in that property except and upon compliance with some conditions.
Moreover, Section 15 of the Constitution of Zanzibar also protects the private ownership of the property:
15(1) Every person is entitled to respect and protection of his person, the privacy of his own person, his family and of his matrimonial life, and respect and protection of his residence and private communication.
(2) For the purpose of preserving the person’s right in accordance with this Article, the state authority shall lay down legal procedures regarding the circumstances, manner and extent to which the right to privacy, security of his person, his property and residence may be encroached upon without prejudice to the provisions of this Article.
This implies that the constitution guarantees the private property right that includes the right to delegate, rent, or sell any portion of the rights by exchange or gift at whatever price the owner determines (provided someone is willing to pay that price). But at the same time, this right has not been made absolute. There are some circumstances where the enjoyment of this right is limited. The state shall still have power to interfere with the property of another under the following conditions:379
378Ibid. 379Section 17 of the Constitution of Zanzibar.
138 (a) that the acquisition and occupancy of the property is of utmost importance for defence and security of the people health requirement, town planning and any other development in the public interest; (b) that the need to acquire the property in question is absolutely important to the extent that it legalises its acquisition even if it be to the detriment of its owner; (c) that there exists a law in respect of which acquisition or occupation of the property provides for fair and adequate compensation.
The right to acquire and own property at this point is diminished. Thus, the three basic elements of private property are (1) exclusivity of rights to choose the use of a resource, (2) exclusivity of rights to the services of a resource, and (3) rights to exchange the resource at mutually agreeable terms are not absolutely provided.
On the other hand, there are also some other properties which are specifically owned by the government though the government may give the right to occupy and use to individual persons or institutions.
Zanzibar to some extent promotes and encourage indigenous to own and invest in a number of projects. This is done with a view of helping people to fight against poverty, on one side and expanding the scope of the development on the other side. During the celebration to mark Revolution Day in Zanzibar, the Zanzibar President Dr. Ali Mohamed Shein has reiterated the government’s commitment to construct modern fish markets so as to develop fisheries and create jobs. He made this pledge after officially opening a new fish market at Tumbe, Micheweni District in North Pemba Region.380 The function was among those held to mark the 51stanniversary of the Zanzibar Revolution of January 12, 1964.
According to him, the fish market is the largest modern fish market in Zanzibar, which has installed important infrastructure, including stoves, cafeteria and deep freezers. The market was constructed for TZS 712.5m/- with financial assistance from the World Bank as well as the Marine and Coastal Environment Management Project (MACEMP). This market is expected to boost revenue collection in the Isles. Dr. Shein said every citizen has a right to use the market, advising fishermen to unite and work together so as to realize good profits. Apart from the market, he explained, the government has also improved social services. In this connection, he said, it has constructed a school and supplied electricity as well as water infrastructures.
The Fisheries sector in Zanzibar is an important sectors that contributes to the economy of Zanzibar. According to the Deputy Minister for Livestock and Fisheries, Mohammed Said Mohammed, the government recognises and values the contribution of the fisheries sector to Tanzania’s economy. Earlier, the Principal Secretary in the Ministry of Livestock and Fisheries, Dr. Kassim Gharib Juma, said the sector has grown to 4.4% in 2013 from 2.3 per cent in 2012.He said in 2013 it contributed 7.2% to the national income and employed 40,000 people.381
380According to the statement given by the President, Tumbe alone has more than 2,000 fishermen. 381Guardian Reporter, Dr Shein: Govt firm on construction of modern fish markets in Zanzibar, http://www.ippmedia. com/frontend/index.php?l=75998.
139
ZanChick Operations Manager Andre De Lange (L) inspects quality of chicken produced by his company at the factory’s production unit in Zanzibar recently.
The private sector however faces a number of limitations in supporting the government’s efforts in promoting economic activities. A number of private investors have been given opportunities to own their own properties which in turn contribute to the country’s economy. A leading Zanzibar poultry firm has been fighting its way to get a foothold in Tanzania Mainland for the past sixmonths to help other Tanzanians get into the business that contributes 16% to the country’s GNP from livestock, but to no avail. Zanchik Company, which was established in Zanzibar in 2011 with the aim of producing poultry and boosting individual, corporate and community farmers into poultry development, was determined to cross over to the Mainland about six months ago, but failed to get an operation permit from the Mainland authorities.
The project was intended to be two-phased project to support local small chicken farmers by setting up educational program, providing subsidies, free vaccines and chicken feed to small farmers and communities participating in the program, according to Zanchick Operations Manager Christopher Kontanisios. The second phase would include a contract between Zanchik and the poultry farmers who take part in the program in which the later will be given facilities to raise chicken for processing and marketing by the former. Kontanisios considers his project a breakthrough in the poultry industry in a country that banned the importation of poultry products eight years ago to give way for the development of the local industry. He said that he has had to fight in vain the numerous bureaucratic bottlenecks and ever since has decided to shift to a wider market on Mainland Tanzania. 382
382AISIA RWEYEMAMU, Bureaucracy bars Z’bar poultry firm, 3rd January 2015, http://www.ippmedia.com/frontend/ index.php?l=75913.
140 5.1.2 Limitation to the Right of Property Zanzibar is yet to have a fully developed jurisprudence on socio-economic and cultural rights. Its development is still at a rudimentary or perhaps primary stage. Though the African Charter, which has been domesticated in Zanzibar, through Tanzania, has some elaborative provisions on some socio-economic or collective rights, there are still problem on the enjoyment of the right to property caused by a number of limitations. To underscore that fact, the only economic right guaranteed under fundamental rights provision of the 1984 Constitution, is in section 17 and that is, protection from deprivation of property. The critical issue is whether the inadequate constitutional provisions on socio-economic rights could be redressed through the enforcement of the provisions of the African Charter.
Generally, property rights include both ownership rights and control rights. Ownership and control can be two different matters. It is possible to own but not able to control and to be able to control but not to own. Zanzibar put all land under the state control by Decree No. 13/1965. From that time all land was declared public property and the government took responsibility to redistribute land among the landless in the rural area. Later on, the land Tenure Act, 1992 provided rights to occupancy of the land only to Zanzibaris over the age of eighteen years. This meant that non Zanzibaris have no rights to own land in Zanzibar.383 However, a non-Zanzibari can be given the right to occupy and use the land on a given terms. The Act prohibits the transfer of land to non- Zanzibari and once proved somebody has transferred his rights, the Minister responsible for land shall terminate the transfer.
Nonetheless there are allegations of land changing hands and passing to non Zanzibaris. Land disputes have been common where it is argued that local administrators like Shehas, and Councillors are believed to be involved. Unauthorized confiscation of land has been common where local administrators like Shehas and officers of local government use their positions to sell the land.
5.1.3 Poor Regulation of Prices Zanzibar has been experience the rocketing of prices of different commodities including some basic services. There has been a tendency for many traders and business companies to raise prices of their products without of any fear of the existing bodies mandated to regulate prices or even care about the common people.
For several months, from early 2015, there has been a continuous decline in crude oil prices in the world market. As a result pump prices all over the world have fallen, in some places by as much as 50% and has to some extent led to cheaper transport and a substantial price reduction for commodities. However, the situation was different in Zanzibar where the tsles’ oil importers appear to have the right to control and decide on the price. This is such that when they bring it down they do so by a very small percentage that does not reflect the general fall in the world market. The
383Land Tenure Act No. 12, 1992. However, The Minister may lease any public land which does not comprise a right of occupancy to any person, Zanzibari or non Zanzibari. See section 46 of the Act.
141 price of crude oil had fallen to its lowest in the past few months where it hovered around 50 USD a barrel, compared to over 100 USD a few years back. While consumers throughout East Africa are experiencing a relief those in Zanzibar are still buying petrol as if the world market price is around 60 USD a barrel.
Many people hoped that the recent price fall would have given them a relief at pumping stations just as they expected to see a decline in transport fares as well as in prices of goods and services. Unfortunately, the common people know of the existence of a price regulating authority for petroleum products but which it seems to have not paid any attention to the on-going global trends in oil price. Some compared the traders of this essential and precious liquid in Zanzibar to daylight robbers.
By early February, 2015, buyers in Zanzibar were paying TZS 1,920 per litre of premium oil compared to around TZS 1,750 charged at various petrol stations in Dar es Salaam. Before the recent reduction in the oil price on the Mainland six months ago, it took two months for the Isles’ oil companies to follow suit, and by a smaller portion than that experienced by consumers on the Mainland. It is very interesting to note that the prices at filling stations have always been going up within a week to 10 days once the world market price shoots up but when it comes to a drop in prices, it takes ages for filling stations to reduce it.
It is high time that the government wakes up and take steps to put to a halt this trend of irregular prices and exercise proper control of prices. There is a body which has been given powers to do so, what it needs now is to exercise its authority efficiently.
5.2 Challenges related to Property Ownership Property ownership has a number of challenges in Zanzibar even though it is one among the very important rights and has been well established in Constitution and other laws. Despite the fact that the Revolutionary Government of Zanzibar has since 1964 been proposing various socio-economic reform initiatives aiming at poverty reduction and ultimately the overall growth of the economy, land issues were considered pertinent in the reduction of poverty in Zanzibar. This has been proved by the statements from high offices of the government with regard to land ownership. For instance, the first President of the islands Hon. A. A.Karume in 1965 declared all land as publicly owned through the Public Land Decree No. 13 of 1965, stipulating that any land owned in the Islands in whatever form is to be under the guardianship of the government, and the government retains the power to acquire and distribute land at will. The Presidential Decree number 13 came after the declaration of Presidential Decree no. 8 of 1964 (The Confiscation of Immovable Properties Decree No. 8 of 1964) The Decree enabled the government to acquire any real property on condition that it is in the national interest of the Republic. Compensation was in principle to be paid, but conditional on the social needs of the former owner.
Later, in 1966, The Land (Distribution) Decree no. 5 of 1966 was passed. This Decree enabled, first of all, the Government to amalgamate all immovable properties acquired under the Confiscation of Immovable Property Decree, 1964. The law empowered the President to distribute land, the major limitation on his power being that the land could be distributed as three acre plots to all
142 landless Zanzibaris only for agricultural purposes. From 1989 Zanzibar formulated several pieces of legislation designed to facilitate proper land administration that included the land registration process.
Major problems related to the ownership of property include insecure land tenure, uncontrolled urban development, lack of proper mechanisms of administering real property transactions, uncoordinated institutional development and pervasive poverty. Some of these challenges are grouped as follows:
5.2.1 Destruction of Property Destruction of properties is another issue which alarms the minds of many in the islands. The government has been accused of demolishing residential houses and commercial buildings around Fuoni Road for the purpose of expanding the road. The victims of this destruction were left without any compensation from the government. Demolition of residential houses and destruction of property generally is a violation of rights and is against the rights to own property which is internationally recognized under Universal Declaration of Human Rights, 1945 and the Zanzibar Constitution, 1984. The centre strongly supports the right to property advocates for fair compensation where the property of persons is affected.
The information gathered has revealed that, although there is constitutional protection of the right to own property in Zanzibar, this protection is not absolute; and, as such, there is no adequate legal protection of this right. This situation has rendered the right to acquire and own property prone to constant abuses by certain government officials. In order to effectively protect the right to property, there is a need to undertake a fundamental constitutional and legislative review with a view to effecting amendment that would first, elevate the right to property to be an absolute one; and, secondly, legally protect it against any unjustifiable encroachment on it.384
Destruction of a building at Fuoni for the expansion of the main road 384J. Clement Mashamba , the Right to Property without Adequate Legal Protection in Tanzania 2007 Volume 1 No. 2 OULJ page15 - 28
143 5.2.2 Distribution of Property after Marriage Matrimonial property is a problem that is extremely difficult and complicated to resolve by any party especially the Kadhi and High Court when both spouses divorce or when a spouse dies and no agreement on the property can be reached amicably and willingly between both parties including the heirs. For couples who do not earn wages for example working together as farmers, operating a business and the like, and for couples where only the husband works, either earning a wage or other occupation, while the wife stays at home taking care of the children and doing housework such as cooking, washing clothes and other chores, normally after several years of married life, the couple will accumulate property such as land, vehicles and the like by cash purchase by taking bank or government loans, and the property so acquired will be under the name of one of the spouses and very rarely under joint ownership.
In Islamic Law, a Muslim woman who marries a man, still possesses the power of ownership on any property and may continue to own the property she acquired before her marriage and may still do so after her marriage either receiving it as inherited property, (1) as a gift from the living (hibah), through her own efforts (2) and the likes and consequently she is responsible for the property where she can lay a claim in Court or have one staked against her. This becomes a big problem when the parties to Muslim marriage dissolve their marriage by any means. There are no clear cut rules on how matrimonial properties are going to be distributed. The situation leaves the women at a disadvantage.
5.2.3 Change of Ownership after Transfer Another common challenge in term of property ownership in Zanzibar associated with the documentation and change of the property ownership needs. It has been a norm in Zanzibar that people do not bother to change the ownership deeds after the transfer. This has been witnessed a great deal in transfer of land and other item like vehicles where many times the issues have to be resolved in court.
5.3 Right to Work The right to work is among the important aspects of the economic rights. In Zanzibar, the right to work is provided under Article 21 (3) and (4) of Constitution of Zanzibar of 1984 which states that all people have the right to work and are entitled to equal rights and privileges, and can hold any position in employment under jurisdiction of Zanzibar. The constitution further assures that the right should be enjoyed without discrimination of any kind, where remuneration should be granted according to one’s work and all persons work in accordance with their competencies.
Adhering to the Constitution, Zanzibar has passed different laws and policies.385 The most prominent legislation is the enactment of Employment Act, 2005386 which includes fundamental rights and protection for workers. The protection includes the prohibition of forced labour,
385Those laws and policies include Employment Act No. 11 of 2005, the Occupation Safety and Health Act, 2005, the Workers compensation Act, 1986, Labour Relations Act, 2005, and Social Security Fund Act, 2005. The Policies are, the Zanzibar Youth Employment Action Plan, 2007 and the Protection of the Childs Workers Policy and Regulation. 386The Zanzibar Employment Act, 2005
144 prohibition on employment of children,387 prohibition of worst form of child’s labour, prohibition on discrimination.388 In the course of reducing child labour in Zanzibar, a total of 631 children were rescued from hard and child labour and taken to school.389 The government also transferred civil servants records and Pay Roll system to a Data Centre.390
In ensuring a better environment for the enjoyment of the right to work, the government of Zanzibar introduced a special Ministry to facilitate the provisions of the right to work by coordinating all necessary steps in promoting jobs and employment domestic and international. The President’s Office, Labour and Public Service is a relatively new office established after the rearrangement of some Government Ministries which lead to the establishment of the Office in August 2013. Among the main functions of the office, are, to coordinate performance of public servants, continue playing its core role of coordinating the implementation of labour laws, employment policy, youth employment action plan and job creation programmes.391 The Ministry is commissioned to provide policy directions in public service management and development, through advice on appropriate organizational structures, initiating and coordinating human resource management reforms, enhancing transparency, accountability, adherence to human rights and the use of ICT to improve service delivery for sustainable socio-economic development.
5.3.1 State of Employment of Zanzibar Employment opportunities in Zanzibar are highly government-dependent that is, most people look for government employment. Most of the youth, particularly those who graduated from universities or colleges have big ambitions that they will be employed by the one of the government offices though there are a number of informal sectors that provide various job opportunities. Zanzibar has a standard legal framework for labour relations. Looking at it from the laws, Zanzibar regulates employment relations by setting hours at work, wages, leave, vacation, penalties, termination of employment and establishes the labour advisory board and conciliation boards. It also allows the Zanzibar Trade Union Congress, ZATUC, to exercise its function for the protection of the employees rights and creating good relationship with the government and other employers. ZATUC has been increasingly recognised by the government and has regular formal and informal meetings with the President as well as all relevant ministries.
Labour issues in Zanzibar have historically not been accommodated in union matters. Consequently, the Zanzibar House of Representatives was compelled to enact the Zanzibar Trade Union Act No. 4 of 2001, which allowed registration of trade unions in Zanzibar. Subsequently, the national trade union centre – Zanzibar Trade Union Congress (ZATUC) - was established in 2003 and also deals
387Section 8 of the Employment Act, 2005 388Ibid, section 10 389Speech of the Minister of State in the Office Of President Labour and Civil Servants, Hon. Haroun Ali Suleiman on the estimates of revenue and expenditure for the financial year 2014/2015 in the House of Representatives - Zanzibar, May, 2014. 390Ibid 391This is in line with the Zanzibar Vision 2020 and the second generation of the Zanzibar Strategy for Growth and Reduction of Poverty (ZSGRP II), popularly known as MKUZA II in its Kiswahili acronym which affirm the responsibility of the Office to boost economic development and social welfare in the Country.
145 with private sectors – process and procedure, opportunities, contracts, harassments, minimum wage and corruption.
It is believed that the Zanzibar labour force has been growing rapidly, outstripping employment opportunities. Thus, employment remains a major concern of the Revolutionary Government of Zanzibar. Labour force statistics show that the labour force is predominantly engaged in traditional agriculture and the informal sector. Labour productivity is the efficiency of labour at workplaces with relation to development of the nation and is concerned with the quality of service delivery and quality and amount of goods produced or manufactured, in relation to the inputs invested. According to the Research Agenda of 2015 – 2020 the aim is to improve labour productivity by 2020 in order to push Zanzibar’s development. Specifically, there should be emphasis placed on analyzing and researching the optimal productive working hours, quality of services and goods, labour relations as well as labour efficiency with regard to community development.392
5.3.2 Salaries and Incentives Packages A salary is a form of periodic payment from an employer to an employee, which may be specified in an employment contract. It is contrasted with piece wages, where each job, hour or other unit is paid separately, rather than on a periodic basis. From the point of view of running a business, salary can also be viewed as the cost of acquiring and retaining human resources for running operations, and is then termed personnel expense or salary expense. In accounting, salaries are recorded in payroll accounts. It is a fixed amount of money or compensation paid to an employee by an employer in return for work performed. Salary is commonly paid at fixed intervals, for example, monthly payments of one-twelfth of the annual salary.
Salary is typically determined by comparing market pay rates for people performing similar work in similar industries in the same region. Salary is also determined by levelling the pay rates and salary ranges established by an individual employer. Salary is also affected by the number of people available to perform the specific job in the employer’s employment locale. Article 71 ICESCR wants states to provide favourable conditions at work, fair wages, and equal remuneration for work with equal value without discrimination of any kind.
As reported in last year human rights report, salaries, particularly of the government employees are still extremely low. In its general outlook, salaries paid to public and private employees are still poor and could not be guarantee a minimum expenditure of half a month. The frequent increase in the prices of basic commodities that are caused, sometimes, by the fluctuation of the currency has made the life of the ordinary people become extremely difficult. It is almost impracticable for a civil servant who receives minimum salary to survive with only that salary and no additional income.
There has however been an increase of salary for Judicial officers and State Attorneys though there are still claims that the Judicial Officers are given preference in increases compared to State
392Zanzibar Research Agenda, Page 80.
146 Attorneys. An investigation of the claims by some of the State Attorneys who refused to be named allege that in some offices, mentioning the Attorney General Office, the change of the salary took very long to be implemented even by the time this report was prepared the new salary schemes were not affected.
5.3.3 Shortage of Employment Opportunities The problem of unemployment has still not yet been resolved. There are still allegations that a large number of university leavers and institutions of higher learning fail to get employment. Some university graduates move outside of Zanzibar in search of employment. It appears that the public and private sectors cannot absorb the increased number of job seekers. Favouritism and nepotism seems to be the order of the day in getting employment especially in the public sector. It is believed that interviews are a mere formality but not a determining factor in getting a job. Furthermore, the introduction of the General Security Office (GSO) was intended to scrutinize the suitability of people who sought for employment in public services. However, there are allegations that this office is used for political purposes.
A report released suggests the unemployment among youth in Zanzibar to be at 34% in 2013 with a much higher real rate of jobless and unemployed youth.Young women are most vulnerable,393 the reason for their vulnerability being the lack of education and skills, cultural attitude and practices, discriminations and limited job opportunity. The tourism industry is said to contribute about 27 per cent of the revenue, yet local Zanzibaris are said to be sidelined from employment. Responding to the un-employment problem, members of the House of Representatives urged the Minister responsible for Livestock, Tourisms, Economic Empowerment and Information to investigate and find the ratio of Zanzibaris employed in the tourism sector compared to non-Zanzibaris and foreigners.
We have evidence that more than one-thousand foreigners including Kenyans have dominated jobs in most tourist hotels, some are staying illegally and some even in possession of Tanzanian passports.394
In an effort to facilitate and finance small communities and groups, the government has been looking for easier mechanism of helping communities in their fight against poverty and to empower them. The greatest disadvantage of bank loans is that they are very difficult to obtain unless a small business has a substantial track record or valuable collateral such as real estate. Banks have been very careful to lend only to businesses that can clearly repay their loans, and they also make sure that they are able to cover losses in the event of default. Business borrowers can be required to provide personal guarantees, which mean the borrower’s personal assets can be seized in the event the business fails and is unable to repay all or part of a loan. Many people now turn to economic empowerment funds to help them with some form of financial capacity through loans. During the period between July 2014 and June 2015 about 9,236 beneficiaries were give loans of different amounts as indicated in the table:
393Ibid, Tanzania and Zanzibar Labour Market Profile, page 12. 394Mr. Makame Mshimba Mbarouk, (CCM-Kitope), http://dirayetu.blogspot.com/2013/09/good-bye-zanzibar-ni- njema-atakae-aje.html visited on 10th December 2013.
147 Table 11. Provision of Loan by Economic Empowerment Fund from July 2014 – June 2015
No. Beneficiaries Total of Group Private Benefited Amount of Benefi
NA DISTRICT Loan Loans Loans Shehias Money F M ciaries
CHAKE 1 CHAKE 44 14 30 26 72,050,000.00 433 377 810
2 MKOANI 32 10 17 31 61,150,000.00 372 298 670
3 WETE 44 13 36 31 74,650,000.00 612 571 1183
4 MICHEWENI 42 14 28 24 53,800,000.00 697 502 1199
Sub Total (Pemba) 162 51 111 112 261,650,000.00 2114 1748 3862
5 URBAN 72 4 68 42 108,204,000.00 403 298 701
6 WEST 110 13 97 36 213,515,000.00 397 619 1016
KASKAZINI 7 "A" 78 6 72 33 81,504,000.00 624 649 1273
KASKAZINI 8 "B" 50 8 42 26 71,364,000.00 537 515 1052
9 CENTRAL 31 19 12 41 89,980,000.00 814 403 1217
10 SOUTH 28 6 22 20 53,125,000.00 62 53 115
Sub Total (Unguja) 369 56 313 198 617,692,000.00 2837 2537 5374
Grand Total 531 107 424 310 879,342,000.00 4951 4285 9236
148 A ZLSC survey indicates large numbers of young people who are without job spends most of their time at “vijiwe”. The situation is frightening and it sometimes encourages youth to engage in criminal acts and use narcotic drugs. It is time for government to take responsibility to rescue this young generation from collapsing by introducing centres where young people can employ themselves. Zanzibar is surrounded by sea but the fishing industry has not been considered by government as a sector that can create jobs.
While urging the government to take a major role in carrying out its responsibilities by creating job opportunities, it is also important that the youth from Zanzibar be urged to change their job attitudes by paying greater heed to the informal sector. Many people especially youth, who are capable of working, make no attempt to engage in private and entrepreneurial projects where they can create their own job or become self-employed. Zanzibar has a lot of opportunities for jobs that have not been well exploited. The majority of youth would like to be employed by the government or at least having white collar jobs. It is very rare for Zanzibari youth, save only those who live in rural areas, to engage themselves in farming or fishing. Those who have attempted to engage in some business or the other do not have many complaints apart from the challenges they face in the course of their businesses.
5.3.4 Poor System of Social Protection Social protection, as defined by the United Nations Research Institute for Social Development, is concerned with preventing, managing, and overcoming situations that adversely affect people’s wellbeing.395 Social protection consists of policies and programmes designed to reduce poverty and vulnerability by promoting efficient labour markets, diminishing people’s exposure to risks, and enhancing their capacity to manage economic and social risks, such as unemployment, exclusion, sickness, disability and old age.396
Historically, research has revealed that traditionally, social protection has been used in the European welfare state and other parts of the developed world to maintain a certain living standard, and address transient poverty.397 One of the first examples of state-provided social protection can be tracked to the Roman Emperor Trajan, who expanded a program for free grain to include more poor citizens of the empire. In addition, he instituted public funds to support poor children.398 Organized welfare protection was not a priority of many states until the late 19thand early 20thcenturies. It was during this period that in both Germany and Great Britain, welfare systems were established to target the working classes including introduction of National Insurance Schemes. The United States followed several years later, during the Great Depression, with emergency relief for those struck the hardest.
395United Nations Research Institute for Social Development (UNRISD). 2010. Combating Poverty and Inequality: Structural Change, Social Policy and Politics. 396World Bank. 2001. Social Protection Sector Strategy Paper: From Safety Net to Springboard. Washington DC, USA. 397United Nations Research Institute for Social Development (UNRISD). 2010. Combating Poverty and Inequality: Structural Change, Social Policy and Politics. 398Hammond, Mason. “Trajan”. Encyclopædia Britannica. http://www.britannica.com/EBchecked/topic/602150/Traja n#tab=active~checked%2Citems~checked&title=Trajan%20--%20Britannica%20Online%20Encyclopedia.
149 Social protection is an integral component of any strategic effort to reduce the incidence and severity of poverty. As such, it relates to a large body of literature on the definition, explanation and identification of the poor; and, conversely, to decades of theoretical and empirical work on what contributes to sustainable poverty-reduction. The modern social protection has grown to envelop a much broader range of issues and purposes; it is now being used as a policy approach in developing nations, to address issues of persistent poverty and target structural causes. Moreover, it is designed to lift recipients out of poverty, rather than exclusively providing passive protection against contingencies. Social protection has rapidly been used in trying to reduce and ultimately eliminate poverty and suffering in developing countries (mostly in Africa), so as to enhance and promote economic and social growth.
In Zanzibar which is mainly a Muslim majority country, the idea of social protection is enshrined in the Quran and Sunnah and could be a proper way of the social protection scheme if that is promising. Social protection is an essential part of Islam, in doctrine and practice. This is highlighted by the importance in Islamic teachings placed on family and neighbourly relations. Also, the giving of charity to the poor and needy is a religious responsibility, intimately bound up with the nature and maintenance of the ummah, the community of believers.
A more comprehensive view of social protection includes the right and responsibilities of the individual in his or her relationships with immediate family and other relatives, neighbours and community and the state. It is also important to note that Islam also does not differentiate between Muslims and non-Muslims, in terms of meeting human needs and respecting neighbours’ rights.
The current growth in interest in development agencies in the issue of social protection derives, to a large extent, from the global reaction to various forms of economic or financial crisis over the1990s. These have been seen to be associated with contemporary processes of globalisation, and specifically with the growing integration of trade systems and capital markets, which are generally seen to present two contrasting faces. On the one hand, they are seen as increasing opportunities for all (including poorer people and poorer countries), while on the other hand they are seen as increasing insecurity on a global scale.399
Zanzibar Social Security Fund (ZSSF) is the only insurance scheme in Zanzibar. The fund provides old age pension, life insurance, and gratuity, invalid and maternity benefits. The contributory system is 10 per cent of salary paid by employer and 5 per cent deduction from the employee.400 The government also provides pensions to retired civil servants but the Zanzibar pension is said to be considerably lower than that of Mainland Tanzania. Old age pension and gratuity are paid as a monthly and a lump sum.401 There are two types of pension, one provided by Ministry of Finance and the other from ZSSF. It was observed that most of the retired officers face extreme
399AndyNorton, Tim Conway and Mick Foster, Social Protection Concepts And Approaches: Implications For Policy And Practice In International Development, Centre for Aid and Public Expenditure, February, 2001, Overseas Development Institute 111 Westminster Bridge Road, London SE1 7JD UK , page 7. 400Section 17 (1) of the ZSSF, 2005. 401Tanzania and Zanzibar labour market profile, page 18.
150 hardship during retirement. ZSSF is so far faring well and there are not so many complaints from the beneficiaries. However, the ZSSF does not cover members of the Zanzibar Special Departments (Isles Security Forces) where there retirement is handled by different laws. Contribution from non- formal employed is also covered by ZSSF.
In a bid to lighten the burden and hardships encountered by the elderly, during his election campaign, the ruling party’s (CCM) presidential candidate Dr. Ali Mohamed Shein announced on 17th September 2015 he would offer free medical services to the Island residents in the first two years of his term and a monthly pension of TZS 20,000/- to elders aged 70 years and above. He said the pension will be offered to elders effective April of the coming year.
5.3.5 The Handling of Labour Disputes The Employment Act, 2005402 provides for the existence of dialogue between employer and employees. As per the Employment Act, 2005 and Labour Relations Act 2005,403 the structure of the handling of labour disputes is established through having the Industrial Court, the Labour Commission with offices almost in every District of Zanzibar.404
All labour disputes whether existing or apprehended shall at the first instance be filed before the dispute handling unit.405 The Unit shall deal with the filing of disputes, notification of parties, summons, fixing of proceedings and other matters necessary for handling of such disputes in a manner provided by regulation. The mediator is required to resolve the dispute through mediation inside 30 days unless the parties agree to a longer period. If mediation fails, either party may further refer to the arbitrator or labour complaint to the High Court, Labour Division commonly known as the Industrial Court. Both the arbitrator and the Industrial Court are required to take evidence, hear both parties’ legal submissions before rendering a decision on the merits of the case.
5.4 Cultural Rights Cultural Rights are rights related to art and culture. The objective of these rights is to guarantee that people and communities have an access to culture and can participate in the culture of their choice. Cultural rights therefore become human rights that aim at assuring the enjoyment of culture and its components in conditions of equality, human dignity and non-discrimination. They are rights related to themes such as language; cultural and artistic production; participation in cultural life; cultural heritage; intellectual property rights (IPR); author’s rights; minorities and access to culture, among others.
On the other side, cultural rights of groups focus on such things as religious and ethnic minorities and indigenous societies that are in danger of disappearing. Cultural rights include a group’s ability to preserve its way of life, such as child rearing, continuation of language, and security of its economic base in the nation in which it is located. The related notion of indigenous IPR has arisen in attempt to conserve each society’s culture base and essentially prevent ethnocide.
402Act No 11 of 2005. 403Act No 1 of 2005. 404The Labour Relation Act No. 1, 2005. 405Section 73(1) ibid.
151 Cultural anthropologists formed an opinion that culture is transmitted through a highly complex pro¬cess comprising a mixture of material and nonmaterial components. Culture can be re¬flected and expressed through the type of housing we choose to live in and the people with whom we share the housing; the type of food we grow or eat, and how we grow or eat it; the type of music we play or listen to, and how we play or listen to it; the religion we identify with; and the land- holding patterns in our society. Culture is reflected in and expressed through our re¬lationships with parents, children, relatives, friends and strangers as well as with other cul¬tures and with the physical world around us.
Traditional Zanzibar House made of mud, timber and coconut thatch.
During colonial times many upgrading projects were attempted in the Ng’ambo, and house types based on the traditional but with reinforced construction materials and small improvements, were introduced.406 406https://macuti.wordpress.com/2011/08/02/15-ostalgie-on-the-other-side-zanzibar-part-2/
152 All of these material and nonmaterial aspects of a culture are infused with values that are transmitted to succeeding generations. Addressing cultural rights can be contentious in part because cultural rights are intimately related to these values to what we believe is important and what is unimportant, what is good and what is bad. Furthermore, in order to understand cultural values in a specific context (and it is difficult to consider cultural values outside of a specific context), it is essential to understand the often subtle differences between cultural values and religious ideas. There is often considerable confusion in determining if an abuse arises from an impingement on cultural rights or on religious rights; the lack of clarity often leads to problems in addressing specific issues.
Internationally Cultural rights as human rights is advocated by the Declaration on the Principles of International Culture Cooperation; the Declaration on the Rights Belonging to National or Ethnic, Religious and Linguistic Minorities; the Declaration on the Rights to Development; the International Convention on the Protection of the Rights of Migrant Workers; and the ILO Convention No. 169 on the Rights of Indigenous and Tribal People. The following legal provisions address culture in general terms; provisions relevant to spe¬cific groups are detailed below.
Although later provisions in international law reflect a broader understanding, the direct ref-erences to cultural rights in the 1948 Universal Declaration of Human Rights are rather nar¬row. Article 27 says:
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. Everyone has the right to the protection of the moral and material interests re¬sulting from any scientific, literary or artistic production of which he is the author.
Article 15 of the ICESCR, adopted in 1966, is not much more expansive. It says in part:
The States Parties to the present Covenant recognize the right of everyone: To take part in cultural life; To enjoy the benefits of scientific progress and its applications; To benefit from the protection of the moral and material interests resulting fromany scientific, literary or artistic production of which he is the author.
The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
Other relevant international principles or declarations include the Convention on the Prevention and Punishment of the Crime of Genocide (Article 2), which is interpreted to forbid the deliberate destruction of a people’s culture.407
407Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) was adopted by the United Nations General Assembly on 9 December 1948 as General Assembly Resolution 260.
153 UNESCO Principles on International Cultural Co-operation (Article 1): Each culture has a dignity and value which must be respected and preserved. Every people has the right and the duty to develop its culture. In their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind.408
The UN Declaration on the Right to Development (Article 1): The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.409
The Mexico City Declaration on Cultural Policies (Principle 2), which states, “The assertion of cultural identity . . . contributes to the liberation of peoples. Conversely, any form of domination constitutes a denial or an impairment of that identity.”410
The Vienna Declaration and Programme of Action, which in the context of addressing the duty of states to promote and protect human rights, states that “the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind.”411 In addition, Part II(3)(38), on the equal status and human rights of women, says:
The World Conference stresses the importance of working towards…the eradication of any conflicts which may arise between the rights of women and the harmful effects of certain traditional or customary practices, cultural prejudices and religious extremism …
In addition to that Regional legal provision also provides similar protection of the cultural rights in various aspects. Article 17 of the African Charter on Human and Peoples’ Rights412 guarantees the right of in¬di¬viduals to take part in the cultural life of their community. It also provides that the promotion and protection of morals and traditional values recognized by the community shall be the duty of the State. Article 22 provides for the right to cultural development of peoples and the equal enjoyment of the common heritage of mankind.
408Declaration of the Principles of International Cultural Co-operation. Proclaimed by the General Conference of the United Nations Educational, Scientific and Cultural Organization at its fourteenth session on 4 November 1966. 409Declaration on the Right to Development. Adopted by GA Res. on 41/128 of 4 December 1986. 410UNESCO, The Mexico City Declaration on Cultural Policies, adopted by the World Conference on Cultural Policies, Mexico City, 26 July-6 August 1982. 411Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, 14-25 June 1993, UN Doc. A/CONF.157/24 (Part I) at 20 (1993). 412African Charter on Human and Peoples’ Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3/Rev.5, reprinted in 21 ILM 58 (1981), entered into force 21 Oct. 1986.
154 Furthermore, Article 13 of the American Declaration of the Rights and Duties of Man states: Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, espe-cially scientific discoveries. 413…
Having this in mind, the drafter of the Constitution of Zanzibar included cultural right to be guaranteed. The Constitution of Zanzibar under section 10(f) includes the protection, preservation and the promotion of the Zanzibar culture as the responsibility of the government of Zanzibar. Some aspects of culture have been included.414 Administratively cultural issues are administered by the Ministry of Information Culture, Tourism and Sports, where, for a long time the Ministry has been responsible for cultural development.
Zanzibar has an agitating culture and tradition. This tradition is evident in celebrations and numerous annual festivals along with all other social activities. The different festivities in Zanzibar are a result of cultural diversity. This festivals range from Islamic Idd el Fitr, Idd el Hajj, Mauled, Christian celebrations of Christmas and Easter to the Persian New Year (Mwaka Kogwa) and the Hindu Diwali. The diverse culture is also evident in the beautiful and colourful women dresses, kanga, henna painting. Men also have their own traditional wear such as Kanzu and Kikoi. The diversity of the people in Zanzibar hugely enriches concentration of the number of cultural identities.
The reason for protection of the cultural rights is to guarantee that people and communities have an access to culture and can participate in the culture of their own. Cultural rights are human rights that aim at assuring the enjoyment of unique culture and its components in conditions of equality, human dignity and non-discrimination. For a country like Zanzibar with a diversity of communities, protection of cultural rights is necessary to ensure enjoyment of cultures and stability of its people.
5.4.1 Stone Town As World Cultural Heritage Stone Town, also known as Mji Mkongwe (Swahili for “old town”), is the old part of Zanzibar City, the main city of Zanzibar, in Tanzania. (The newer portion of the city is known as Ng’ambo, Swahili for ‘the other side’). Stone Town is located on the western coast of Unguja, the main island of the Zanzibar Archipelago. The former capital of the Zanzibar Sultanate, and a flourishing centre of the spice as well as the slave trade in the 19th Century, it retained its importance as the main city of Zanzibar during the period of the British protectorate. When Tanganyika and Zanzibar joined each other to form the United Republic of Tanzania, Zanzibar kept a semi-autonomous status, with Stone Town as its local government seat.
Stone Town is a city of prominent historical and artistic importance in East Africa. Its architecture, mostly dating back to the 19th Century, reflects the diverse influences underlying the Swahili culture, with the East African culture being preeminent. There is a unique mixture of Arab, Persian,
413American Declaration of the Rights and Duties of Man, OAS Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992). Article 13. 414Freedom of Religious beliefs, Section 19(1) Constitution of Zanzibar, 1984.
155 Indian and European elements. For this reason, the town was designated as a UNESCO World Heritage Site in 2000.
Stone Town’s architecture has a number of distinctive features, as a result of Arab, Persian, Indian, European, and African traditions mingling together. The name “Stone Town” comes from the ubiquitous use of coral stone as the main construction material. This stone gives the town a characteristic, reddish warm colour. Traditional buildings have a baraza, a long stone bench along the outside walls. This is used as an elevated sidewalk if heavy rains make the streets impracticable, or otherwise as benches to sit down, rest, socialize. Another key feature of most buildings is large verandas protected by carved wooden balustrades. The most well-known feature of Zanzibari houses are the finely decorated wooden doors, with rich carvings and bas-reliefs, sometimes with big brass studs of Indian tradition.[5] Two main types of doors can be distinguished: those of Indian style have rounded tops, while those in the Omani Arab style are rectangular. Carvings are often Islamic in content (for example, many consist of verses of the Qur’an), but other symbolism is occasionally used, e.g., Indian lotus flowers as emblems of prosperity.
5.4.2 Zanzibar Doors People of Zanzibar are identified by many cultural features which give a unique attraction to many people including those living within. The “Zanzibar Door” is one among those features that has been a significant symbol of Zanzibar history and cultural heritage. The “Arab Door” is wrapped in an intricately carved frame. The outermost strips are symbolic of the enslavement of evil spirits trying to force entry into the residence. The inner frames were often carved into almonds, lotus, and palm leaves and fish. Above the panels on the door is a frieze, which often contained the name of the owner and is usually carved with rosettes. These are most popular types of doors, particularly in Zanzibar Stone Town. It is estimated that in Stone Town alone, there were 806 wooden doors dating from the era of Sultan Barghash (1870 – 1880). Designs emanate from Arabic and Indian influences. The rectangular Arab door is encased in an intricately carved frame with the outermost strip of the frame carved into chains symbolic of the enslavement of evil spirits trying to enter the residence.415
Around every corner turn in the Stone Town you are bound to come across these giant wooden masterpieces, the doors of Zanzibar. Traditionally, the door was the first structure to be erected when a house was being built and in the past, they served as a valuable glimpse into the home- owner’s place of origin, profession and economic status. Some have elaborate carvings and are a reminder of Zanzibar’s affluent past.
The tradition of carved doors was originally borrowed from immigrant Indian trading communities, and later transformed into an eclectic, home-grown Swahili aesthetic. They form two major types of styles, Gujarati and Omani. The former are simpler with square coffered panels and folding shutters, and usually conceal shop fronts with residential quarters on the floor above much like the trader’s houses of the early nineteenth Century back in Gujarat.
415http://www.artarena.co.za/zanzibar/history.html.
156
The picture shows an example of Gujarati style of Zanzibar Door in Stone Town.
The Zanzibar/Omani doors are grander, with ornate square lintels with Quranic inscriptions, and are usually studded with decorative metal studs and spikes mimicking the defensive spikes on Indian fortress doors. Elaborate curved lintels top a third distinctly hybrid style.
Arab Omani style of Zanzibar Door.
157 Many of the doors have decorative metal studs or spikes on them. The large brass studs have their origins in India, where they were said to be a defence against elephants. However, in Stone Town they have been no elephants and these are mainly decorative pieces and in the past have been symbolic markers of wealth.
The lavish entrance to the mansion of notorious slave trader Tippu Tip – named after the sound of his guns! – is a testament to his wealth and influence. Chains carved into the bottom portion of the door frame and threshold are said to indicate the passage way used to transport slaves.
Zanzibar Doors were deemed cultural heritage in 1980 and are protected by the Stone Town Conservation and Development Authority.416 Protection and preservation of these doors is very significant. There are a lot of reasons attached to their protection. Mostly, Zanzibar doors signify the aspirations of their original owners, their socio-economic status, their ethnicity and customs. The greater the wealth and social position of the house owner, the larger and more elaborately carved their front door would be. Many of the Zanzibar doors have been carved with Arabic influences.
416Photo Essay – The Doors Of Zanzibar Posted by Madhu on March 10, 2015 in Africa, Tanzania, Travel | 97 Comments, The Urge to Wonder, http://theurgetowander.com/2015/03/10/zanzibar-doors/
158 5.4.3 Traditional Healing and Medicine Another intersection of health and cultural rights is in the area of traditional healing and traditional medicine. Tradi¬tional healing practices are an important aspect of many cul¬tures, and in the 1978 Declaration of Alma-Ata, WHO recognized the importance of tradi¬tional health practices as a component of primary health care.417
On the other hand, some traditional practices, such as female genital mutilation, are a grow¬ing concern, because they endanger the physical and psychological health of individuals. Under article 24(3) of the CRC, states must adopt measures to end those practices that affect children’s health. Even though not explicitly mentioned in either the ICESCR or CEDAW, the respective committees both deal with the matter in their reporting practice. In the Alma - Ata Declaration of 1978 recognition was given to the role of traditional medicine and its practitioners in achieving health for all. The WHO Regional Committee for Africa by its resolution AFR/RC34/R8 of 1984, urged Member States to prepare specific legislation to govern the practise of traditional medicine as part of national health legislation and ensure an adequate budget allocation that will make for effective development of traditional medicine.
Zanzibar experiences tropical marine climate and thus is covered with a variety of plants and spices both natural and cultivated. Some of these plants and spices have been used for generations for the treatment of common ailments found in the islands. According to WHO, in Africa up to 80% of the population uses traditional medicines to help meet their health care needs. Many people in Zanzibar also use traditional medicines and with the increased shortages of drugs in the public sector and their high prices in the private sector, the demand for traditional medicine has been increasing within the population. Traditional medicine is used in the maintenance of health as well as in the prevention, diagnosis, improvement or treatment of physical and mental illnesses.
For several years, Traditional and Alternative Medicine (TAM) has been practised in Zanzibar without official guidelines to assist Traditional medicine practitioners in performing their activities in accordance to legislation and regulation. Nevertheless, there has been some public awareness on the potential opportunities that could be tapped from the use of TAM and its benefits to the health sector. Currently, traditional medicine is to a certain extent, a kind of institutionalized practice. In Zanzibar, traditional medicine is formally regulated by the Zanzibar Traditional and Alternative Medicine Council (ZTAMC),a board legally created by the government. The Traditional and Alternative Medicine Council was established by the Government under the Ministry of Health on the Act No. 8 of 2008 in recognition of the traditional healers. This Council has a mandate to authorize or restrict any person or institution involved in traditional medicine. The integration of Traditional and Alternative medicines into national health care system has the potential to supplement, strengthen and promote better health care for all, in line with the national vision.418
417Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, USSR, 6-12 September 1978, Section 6, para. 7. 418Zanzibar Traditional and Alternative Medicine Policy, 2008 page iv.
159 Therefore the Ministry of Health and Social Welfare (MOHSW) recognizes and advocates for the use of traditional medicine and supports the idea of incorporating it into the national health system with the objective of ensuring that traditional medicine treatment is done scientifically, rationally and with safety to the Zanzibaris Community. As reported by the registrar of the Traditional Medicine and Alternative Care Unit, approximately 205 healers, 158 Kilinges and 40 medicinal plants have been registered up to now. Kilinge are the offices where healers meet patients, though they are smaller than clinics.419
For the purpose of human rights issues, in Zanzibar the traditional healing can be categorized into two major parts; the one that specifically uses physical traditionally made medicines that includes fruits, roots of trees and others and the other part that uses spiritual healings as described below:
5.4.3.1 Traditional Medicine from Zanzibar Herbalist According to the WHO, traditional medicine is “the total combination of knowledge and practices, whether explicable or not, used in diagnosing, preventing or eliminating physical, mental or social diseases and which may rely exclusively on past experience and observations handed down from generation to generation, verbally or in writing” The terms “complementary medicine” or “alternative medicine” are used inter-changeably with traditional medicine in some countries. They refer to a broad set of health care practices that are not part of that country’s own tradition and are not integrated into the dominant health care system.
“Dawa za asili” (traditional medicine) is very common in Zanzibar. Many people have been using traditional medicines from birth. These are medicines which are frequently used by the people living in Zanzibar for curing number of diseases including spiritual ones. The professional or traditional healer who produce medicine from traditional herbs, plants and spices, are commonly known as “mganga wa jadi” (traditional healer(s)), “mtaalam” or “fundi” (specialist). These people are locally regarded as equivalent in practice to western doctors as in public hospitals. In fact, doctors of normal hospitals send a lot of patients, who show no signs of improvement with western treatment methods to the waganga wa jadi (in plural). For those patients, the waganga wa jadi often means “the last chance.”
419Jessica Baylor, Analysis of Traditional Medicine in Zanzibar, Tanzania, Spring 2015, Independent Study Project (ISP) Collection, page 5.
160 Different traditional medicines at Madawa’s collection.
There are various medicines traditionally used in Zanzibar. A research by Jessica420 indicated that there seven common types of medicines used in in Zanzibar as indicated from the figure of her results bellow
Source: Jessica Baylor, Analysis of Traditional Medicine in Zanzibar, Tanzania, Spring 2015, Independent Study Project (ISP) Collection
5.4.3.2 Traditional Healing (Uganga wa Kienyeji) There are however some traditional healers, Waganga wa Kienyeji, who offer some services secretly. They are other famous traditional healers at work, performing all the acts and tricks that are used to bring the so called “patient” back into normal condition - Swahili Maladies and Medicaments Healing of Spirits. Maladies are mainly of two types that affect each other, spiritually and physically, that is to say, healers use the Holy Quran for the former and Spirits loyal to them
420Jessica Baylor, Analysis of Traditional Medicine in Zanzibar, Tanzania, Spring 2015, Independent Study Project (ISP) Collection, page 11.
161 for the latter. The activities are numerous and age-old in Pemba. Most healers use torture for the offensive spirits by the use of the Holy Quran or by using their loyal spirits.
Some of them are believed to have power of warding off the bad spirits by sacrificing the blood of animals and requesting it to leave a patient. There are some rumours that on some occasions evil healers would ask their patients to sacrifice the lives of their family members if the patient wishes to get wealthy. On some occasions, they tortured human beings who were considered enemies.
We are of the view that Article 15(1)(b) of the ICESCR recognizes the right of everyone “to enjoy the benefits of scientific progress and its applications.” While this guarantee sounds relatively straightforward, it is, in reality, fraught with complexities. Once again, the relationship of power to culture comes into play. Access to technology and the products of scientific progress may be constrained for large numbers of people, because they cannot afford to buy them. In addition, economic power can monopolize the products of scientific progress in a way that is detrimental to the cultural and other rights of people around the world.
While almost no one doubts the benefits that can accrue to the quality of life from scientific progress, problems that should be of concern to cultural rights activists arise from the fact that the concept of “scientific progress” is grounded in the Western liberal tradition. The belief in “scientific progress” has been termed an ideology, and as with all ideologies, it can serve as a blinder to experiences and perspectives that might be in conflict with it. Since different cultures embody different perspectives, such a blinder potentially threatens to shut out other cultural experiences and beliefs. The safeguarding of the cultural rights of people without depriving them of the fruits of technological advance and scientific progress implies that new paradigms of social transformation have to be evolved where without any sacrifice of their cultural moorings and creative potential, populations and communities can achieve sustainable development.
In February, 2015 ZTAMC and a traditional healer from Rufiji, Mr. Omar Ali Mpendu clashed over a ban on working rights on the islands. According to Mr. Haji Juma Kundi – Secretary of ZTAMC with mandate to regulate traditional medicines, Mr. Mpendu was prohibited from working in the Isles, since his licence does not allow him to operate on the islands. The widely covered news by the local media quoted Mr. Kundi as saying the ban on the traditional healer from Rufiji was in response to the increasing number of traditional healers operating without ZTAMC permit. Mr. Kundi was quoted as saying “There is an influx of traditional healers, particularly in villages where they easily find customers, and provide substandard services.”
Mpendu came to the Isles three months ago and was well received by the people of Makunduchi village, about 70 kilometres from the Stone Town. The community leaders (Shehas) of Mtende, Nganani, and Kijini said Mr. Mpendu the traditional healer from Rufiji was good at what he did since his arrival in the village, winning praise from the local villagers. Some of the regular patients of Mr. Mpendu are reported to have agreed with the ZTAMC’s decision to ban Mpendu’s services in Isles. She said “we welcomed him; he has already registered many people. But since his license
162 is not recognized by ZTAMC, he has to leave or follow the procedures to apply and register with the council,” 421
ZLSC is of the view that traditional healing and medicines is a cultural heritage that is worthy of protection and preservation as an approach to protecting human rights. It has to be promoted, encouraged, learnt for transferring knowledge. Professional research and local expertise and exploration of the resources need to be carried out.
The intervention of ZTAMC in these activities is considered to be a proper step as a way of keeping the standards of the provision of the services and regulating the ethical behaviour. There have been reports that a number of the traditional healers use their profession to engage in unethical conducts including sexual activities with their clients. There have been records of a criminal case where a traditional healer has been prosecuted for having un-consented sexual intercourse with his client and the mother of the said client at the same period. Thus, if no action is taken, this will distort the good character of the Zanzibar people and result in an increase of sexual transmitted deceases (STI) and traditional healers taking advantage of their clients
Research is needed to ascertain the efficacy and safety of several other practices and medicinal plants. Unregulated or inappropriate use of traditional medicines and practices can have negative or dangerous effects. Research findings will provide the proof of safety and efficacy of herbal medicines. Information may appear in authoritative national documents (such as pharmacopoeias or official guidelines of national authority) or scientific publications. In conducting research and evaluating ZTAM, knowledge and experience obtained through the long history of established practices should be respected.
5.5 Preservation of Cultural Heritage Cultural Heritage is an expression of the ways of living developed by a community and passed on from generation to generation, including customs, practices, places, objects, artistic expressions and values. Cultural Heritage is often expressed as either intangible or tangible Cultural Heritage (ICOMO).422 As part of human activity Cultural Heritage produces tangible representations of the value systems, beliefs, traditions and lifestyles as an essential part of culture as a whole, Cultural Heritage, contains these visible and tangible traces from antiquity to the recent past.
Cultural Heritage is a wide concept. We prefer to concentrate on the similarities between the various heritages sectors, instead of their differences. Having at one time referred exclusively to the monumental remains of cultures, cultural heritage as a concept has gradually come to include new categories. Today heritage is not only manifested through tangible forms such as artefacts, buildings or landscapes but also through intangible forms. Intangible heritage includes voices, values, traditions, oral history. Popularly this is perceived through cuisine, clothing, forms of shelter, traditional skills and technologies, religious ceremonies, performing arts, storytelling. Today, we
421Issa Yussuf, Why Traditional Healers Must Be Registered, Tanzania Daily News (Dar es Salaam), 1th February, 2015. 422COMOS, International Cultural Tourism Charter. Principles And Guidelines For Managing Tourism At Places Of Cultural And Heritage Significance. ICOMOS International Cultural Tourism Committee. 2002.
163 consider the tangible heritage inextricably bound up with the intangible heritage. In conservation projects we aim to preserve both the tangible as well as the intangible heritage.
Protection and preservation of the cultural heritage has become one of the state functions. To ensure that the records of today are preserved for future generations various steps are taken by the governments, including the establishment of the National Archives, which are given power to provide for the preservation of public records and for other matters connected therewith and incidental thereto. In the case of Zanzibar this function is statutorily given by the National Archives Act, No. 7, 1988. Through the National Archives, people can make use of the records to study and understand the life, ideas and thoughts of their original creators, linking the past, present and future. Archives ensure that historically significant records are systematically described and, wherever possible, available for a variety of research uses, including teaching purposes, building plans, publications, television and radio programs, plays, and legal proceedings. It serves as society’s collective memory. They provide evidence of the past and promote accountability and transparency of past actions. In that regard, the archives is a public cultural property as it is there to serve the whole nation.
Apart from that the government has also established. The Stone Town Conservation and Development Authority423 which is empowered to make such rules as may be required for the purpose of ensuring orderly and fair development of the Stone Town and in particular rules to ensure agent security within the Stone Town. The Authority can use its statutory power under the law to make comprehensive rules with standards and guidance that can ensure security for tourists who visit the stone town area. The main reason was to protect the Zanzibar Stone Town.
Stone Town is the main city on Zanzibar. It is a city of prominent historical and artistic importance in East Africa. Its architecture, mostly dating back to the 19th Century, reflects the diverse influences underlying the Swahili culture, with a unique mixture of Moorish, Arab, Persian, Indian and European elements. For this reason, the town has been included in UNESCO’s World Heritage Sites in 2000.
On 10th/11th November, 2015 Zanzibar and the whole world at large witnessed the partial collapse of a land mark building in Zanzibar Stone Town, known as House of Wonders (in Arabic: Beit- al-Ajaib). The House of Wonders or Palace of Wonders is the largest and tallest building of Stone Town and occupies a prominent place facing the Forodhani Gardens along the old town’s seafront, in Mizingani Road. It is located between the Old Fort and the Palace Museum (former Sultan’s Palace). It is one of six palaces built by Barghash bin Said, second Sultan of Zanzibar, and it is said to be located on the site of the 17th Century palace of Zanzibari Queen Fatuma. The House of Wonders currently houses the Museum of History & Culture of Zanzibar & the Swahili Coast.
423The Stone Town Conservation and Development Authority Act of 1994.
164
The front view of the House of Wonders some years before the destruction
It was meant to be a ceremonial palace and official reception hall, celebrating modernity, and it was named “House of Wonders” because it was the first building in Zanzibar to have electricity, and also the first building in East Africa to have an elevator. The design of the palace is attributed to a British marine engineer and indeed its form introduced new architectural elements into the Zanzibar repertoire, including the wide external verandas supported by cast-iron columns, which allowed for uniquely high ceilings. The construction materials consisted of an original combination of coral rag, concrete slabs, mangrove shoots or boriti, and steel beams.
Two views of the damaged parts of the House of Wonders
165 The collapse of part of the House of Wonders left many people questioning why the building keeps on falling and no protective measures are taken to preserve the cultural heritage of Zanzibar. Many questions were addressed to the Zanzibar Stone Town Conservation Department Authority for failing to provide proper care and maintenance for the House of Wonders.
Early in December, 2012 the same building partly collapsed and caused damage not only to the building but also the personal property around. At this point in time, it is not clear how the building is going to be preserved.
The interest of the human right in this issue is connected to the rights of people to understand their history and the role of particular organizations, individuals and movements in shaping that past. Knowledge of the past creates a better future and helps to foster and promote a sense of community and identity. This loss has caused the violation of these rights. ZLSC is therefore urging for proper action to be taken against those who were involved and in creating a better environment for the preservation of the records and Zanzibar’s historic and cultural past.
5.6 Conclusion Cultural rights should take a central place in the consideration of rights issues and the striving towards a more just world order. Such an order would encompass not only distributive jus¬tice, but also an inclu¬sive vision that would take cognizance of the many varied expressions of culture as well as an understanding of the interdependence of cultural rights in tandem with other human rights. Yet cultural rights are the least understood and developed of the rights that have been guar- anteed under international law. This seeming paradox is due to the complexity of the area and the fact that attention has been given only recently to ESC rights as a whole.
It can be observed from above that in Zanzibar, the socio-economic rights jurisprudence is still at a rudimentary stage of development in the country. Civil and political rights enjoy better protection than socio-economic rights. Generally economic and cultural rights are hardly implemented. The right to work despite being introduced in the constitution is not an enforceable right where individuals cannot launch any claim if he/she misses a job. Many workers particularly those employed under private sector claim illegal dismissal from their jobs, and when they send their claims to the Ministry of Labour some dishonest staff collaborate with the employers to subjugate the employee’s rights. Lack of enforcement of the labour laws is an additional problem and many employees lack knowledge of laws that adds fuel to their infringement. There is the need to ensure legal mechanisms are put in place to enable the people to enjoy these rights. ZLSC calls for the tripartite discussion between employers, employee’s organizations and government to discuss the best application of the rights. Hence effort is needed to iron out discriminations of any kind at the work place and through employment.
On the other hand, the history and culture of Zanzibari people is unique. It comprises of a mixture of mixtures where no group of people can claim to be more indigenous or having more rights than others. It has been there for number of centuries. The need to assure preservation is of significant importance. It has been indicated that there are some people who by the act of their hands try to distort this heritage. The government is therefore urged to take proper measures in protecting historical identities.
166 CHAPTER SIX The Rights of Vulnerable Groups
6.0 Introduction The meaning of vulnerable is highly evasive and relative. However, in general, people who are easily susceptible to physical or emotional injury, or subject to unnecessary criticism, or in a less advantageous position in any society may be defined as vulnerable people. Accordingly, vulnerable groups are those groups of people who may find it difficult to lead a comfortable life, and lack developmental opportunities due to their disadvantageous positions. Further, due to adverse socio- economical, cultural, and other practices present in each society, they find it difficult many a times to exercise their human rights fully. In the language of human rights, vulnerable groups may be defined as, certain groups of population who often encounter discriminatory treatment, or need some kind of special attention for protection from the State to avoid exploitation or from a harmful environment.
According to the European Foundation for the improvement of living working conditions, vulnerable people means : “Groups that experience a higher risk of poverty and social exclusion than the general population, ethnic minorities, migrants, disabled people, the homeless, those struggling with substance abuse, isolated elderly people and children all often face difficulties that can lead to further social exclusion, such as low levels of education and unemployment or underemployment. Refugees, stateless persons, victims of war are described as vulnerable groups.”
According to the general perspective of International Law of Human Rights, disadvantaged groups are the people who are denied free access to the guaranteed rights in their free exercise. Based on socio-economic and cultural perspectives, the classification of these groups varies from country to country. In general, women, children, socially, economically, culturally deprived sections, disabled, minorities etc. form part of disadvantaged groups. Poverty is the main contributing factor towards degradation of the status of these people who are classified as disadvantaged groups. The above definitions are only illustrative in nature. Despite the commitment of International Law of Human Rights towards the promotion and protection of the rights of these groups, there is no agreed standard definition, concept, or standard classification of the list of people who are to be classified as vulnerable and disadvantaged groups.424
International law and human rights have set different instruments to protect people who are vulnerable. The groups in Zanzibar’s society that are considered vulnerable and/or disadvantaged include women, children, people living with disabilities and the elderly. Each of these groups has different reasons for vulnerability, but as a whole, they are incapable of fully asserting their rights in society, hence their need for protection. International instruments to protect people who are vulnerable include the Convention on the Elimination of all Form of Discrimination Against Women, 1979, Convention on the Rights of the Child, 1989, United Nations Convention of the Refugees, 1951, International Convention on the Protection of the Rights of all Migrant Workers,
424T. S. N. Sastry, Human Rights of Vulnerable & Disadvantaged Groups, Course Book – II, University of Pune, Ganeshkhind Pune, 201, page 11- 12.
167 1990 – 2003, United Nations Declaration on the Rights of Disabled Persons, 1978, Declaration of October 1 to be celebrated as the international aged peoples day,425 African Charter on Human and Peoples Rights on the Rights of Women in Africa, 2000 and Maputo Protocol, 2003. In Zanzibar, the Zanzibar Poverty Reduction Strategy MKUZA II (2010 – 2015) includes as one of its goals “improve safety net and social protection for poor and vulnerable groups.”
6.1 Women Rights In Zanzibar, women are given special consideration with regard to the protection of their rights. A number of programmes empowering women have been undertaken to empower women to have an equal opportunities with men.
6.1.1 Legal Framework for Women Protection in Zanzibar The 1984 Zanzibar Constitution guarantees equal rights for all the people without regard to their different social, economic and cultural backgrounds. In addition to the Zanzibar Constitution of 1984, a number of legislations both criminal and civil have given protection to women. Examples of the legislation include the Penal Act No 6 of 2004,426 the Criminal Procedure Act No 7 of 2004, the Employment Act No 11 of 2005 and the Spinster and Single Parents Children Protection No 4 of 2005. All of these laws give protection to women in their respective jurisdictions.
In particular, Section 10(2) (a) of the Employment Act obliges public employers to promote equal opportunity in workplaces and eliminate discrimination in employment policy or practice. The Zanzibar Employment Policy on its part, requires that specific measures be taken to the increase level of education and skills of women in order to enable them to compete equally with their male counterparts in the labour market.
6.1.2 Institutional Framework for Protecting Women The establishment of the Ministry of Social Welfare, Children and Women Development as a focal point on women affairs and protection has facilitated the development of women’s rights and children in Zanzibar. In addition to the Ministry responsible for Women’s Affairs, there are a number of non-governmental organizations that also deal with women’s protection in Zanzibar. These organization include ZLSC, ZAFELA and TAMWA.
Zanzibar respects the rights of women by joining with others world-wide to mark International Women’s Day which celebrated every year on 8th March. The main purpose of this celebration is to draw the public’s awareness to issues relating to women’s rights enabling communities to assess the performance of resolutions, declarations, conventions and various protocols, international, regional and national and to examine development issues relating to gender and women in ensuring that the rights of women economically, socially and politically are available and protected. To implement this purpose, the Centre holds major sensitization seminars on International Women’s Day every year. In 2015 the ZLSC organised women’s rights seminars in both Unguja and Pemba.
425Ibid page 18. 426Section 125, 128,130,161, of the Penal Act 2004.
168 On 8th March 2015 the Centre joined the rest of the world in the commemoration of International Woman’s Day. In Unguja, ZLSC in collaboration with Tanzania Youth Icon (TAYI) organized a seminar on March 8th 2015 at Eacrotanal conference hall. 111 people participated in this event of which 64 were females and 47 males. Three topics were presented for discussion focussing on the theme of the 2015 celebrations, which was “Fulfil promises. Take steps in development of Women uplifts.” The Executive Director of ZLSC who highlighted the legal aspect of the slogan talked about women’s rights as stipulated in various laws like National Employment Services Act (1999); Employment and Labour Relation Act; Employment Act No 11 of 2005; Public Services Act No 2 of 2011; Zanzibar Constitution and CEDA convention.
Women participating in a seminar to mark International Women’s Day Event in Unguja at Ecrotanal.
ZLSC-Pemba office marked the event in like manner on the same day at ZLSC conference hall. The function was attended by 44 participants (30 females and 14 males). The large turnout especially in Unguja clearly manifested the advantage and success of the events. The large number of contributions and different case studies on violation against women were a clear indicator that women are now in the front line in understanding their rights and to fight for them. Time limitation was the major setback as it did not avail to many participants the opportunity to contribute to issues pertaining to them.
6.1.3 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. In Zanzibar GBV is not defined under Zanzibar laws. However as shown above, laws address various forms of sexual violence which is a kind of GBV.427
427Human Right Report 2009.
169 The Constitution of Zanzibar, 1984 has not expressly provided for the rights of women and children. However women and GBV issues had been addressed by different policies, directives and several laws including the Penal Act, 2004, Children Act No. 6 of 2011, Spinsters and Single Parent’s Children Protection Act of 2005, Employment Act, 2005, and Kadhi’s Court Act, 1985.428 The current existing policies are, Women Protection and Development Policy, 2001, and the Child Survival, Protection and Development, 2001. The Zanzibar Vision 2020 has, in one of its directives, clearly stated the need to integrate the disadvantageous groups of the society through the eradication of abject poverty with the women empowerment being the main goal.429 Although there is no national gender policy,430 the policy of the Protection and Development of Women in Zanzibar (2002) is used to protect women’s rights. The Ministry of Empowerment Youth Development Women and Children has been entrusted with the responsibility of promoting gender and women development issues.431
6.1.3.1 Current Situation on GBV in Zanzibar According to the Ministry of Empowerment Youth Development Women and Children, GBV remains a serious problem in Zanzibar since there are a number of GBV cases. In Zanzibar there were a total of 132 GBV cases, 50 in Unguja and 82 in Pemba. Out of these, 80 were rape cases, 14 unnatural sex, 15 molestation and 23 abduction. All these cases were taken to the court.432
Table 12: Reported GBV Cases in Zanzibar
Number of Cases Percentage
Unguja 50 37.88
Pemba 82 62.12
Total 182 100
The table shows that more than half (62.12%) of all reported GBV cases occurred in Pemba while Unguja reported less than half (37.81).
428Human Right Report 2014. 429Human Right Report 2013. 430URT, Multi-sectoral Country Gender Profile, 2005, http://www.afdb.org/fileadmin/uploads/afdb/Documents/ Project-and -operations/ADB-BD-IF-2005-EN-TANZANIA-MULTISECTORAL-COUNTRY-GENDER-PROFILE VISITED ON 18THE December 2013, page 10. 431Ibid 432Budget Speech The Ministry of Empowerment Youth Development Women and Children 2015/2016 page 24.
170
Source: Budget Speech the Ministry of Empowerment Youth Development Women and Children 2015/2016.
6.1.3.2 Prosecution of Sexual Violence Cases Despite the existence of many laws against GBV, its execution has been a major challenge. It has been claimed that a number of cases are reported to the Police but the majority of them are dropped for lack of evidence to win a conviction in a court of law. Studies conducted since 2010 show that many cases reported to police and then brought to court are subsequently removed due to incomplete evidence or procedure.433 There are problems which hinder the efforts of fighting gender based violence in Zanzibar and these can be evidenced in different areas. Firstly, there are loop holes in the laws which protect violence. For instance, all laws protect violence but have failed to provide the standard to prove what constitutes violence and the number of offences essentially making it difficult to charge anyone with the crime.434 Secondly, the investigation process in sexual violence cases is far from the satisfactory. Criminal law requires attorneys to prove beyond reasonable doubt for conviction. For that there must be solid evidence to prove a case. State attorneys with the Office of the Director of Public Prosecutions blame the police for failure to collect strong evidence and as a result they stand in an awkward position to win a conviction especially when the accused are represented by competent advocates. Thirdly, Zanzibar has for a long time lacked DNA equipment, a problem that exists to date. The result of this is that where there is a need for DNA testing, those who need the service should travel to Dar es Salaam where majority fail to do so because of the high costs involved. DNA is only available in Dar es Salaam. It is expensive and it takes time thus frustrating those who want proof for their cases.435 Lastly, there is a shortage of medical doctors to investigate sexual harassment issues and this is still a big challenge for Zanzibar.
It is time for the government to embark on serious measures such as providing all necessary means and assistance to solve these problems which make it difficult to handle cases of GBV in Zanzibar.
433Legal and Human Rights Centre and Zanzibar Leal Services Centre, Tanzania Human Rights Report, 2013 434Zanzibar GBV advocacy: Important Lessons for Future Legal Reform Strategies, Salma Maoulidi, 2009 435Tanzania Human Rights Report, 2013 Ibid.
171 6.1.4 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.436 It normally occurs between spouses but may also include cohabitants and unmarried intimate partners.
Domestic violence has many negative consequences to both the victims and the community in general. It has been a world problem that transcends cultural boundaries and more. It is a tool used to violate and diminish women rights in the society. In Zanzibar, domestic violence has been increasing day after day, even though there are no proper records kept by the relevant institutions.437
6.1.4.1 Legal Framework in Combating Domestic Violence in Zanzibar Domestic violence cases in Zanzibar are regulated by various laws including Penal Act No 6, 2004; Employment Act, 2005, and Kadhi’s Court Act, 1985. However there is no specific legislation regarding domestic violence besides those laws. Other acts condemned by the Penal Law, include all acts tantamount to murder, manslaughter and infanticide and actions like causing grievous harm, assaulting a person, kidnapping, and wrongful confinement.438
6.1.4.2 Prosecution of Domestic Violence Cases The enforcement of Domestic Violence Cases falls under the normal criminal cases and procedures. The laws applicable are the Penal Act No 6 of 2004, the Criminal Procedure Act No 7 of 2004 and the Evidence Law. The prosecution has to provide sufficient evidence before the court to win a conviction otherwise the case is dismissed. There is no special court dealing with the Domestic Violence Cases and these are generally not given priority. Cases of such nature are subject to the normal court procedure.439
6.1.5 Specific Problems of Girl Child Numerous studies indicate that violence against women and children in Zanzibar is on the increase. In year 2015 more than 132 (Unguja 50 and Pemba 82) cases of Gender Based Violence have been reported. Among this 80 were rape cases, 14 unnatural sex intercourse, 15 molestation and 23 abduction.440 The data indicates that the girl child in Zanzibar is exposed to incidents of sexual abuses of different forms not only by the local inhabitants but also by foreigners. Being a cosmopolitan community and Island state many visitors are attracted to Zanzibar. Young people in particular from the other regions come to Zanzibar in search of jobs in its tourist industry. Unfortunately, it has been reported that tourism has resulted in the rise of sexual exploitation of young women as well as young men and it is suspected that even children may be involved.441
436Ibid. 437Ibid. 438Ibid. 439Ibid. 440Budget speech of the Minister of Empowerment Social Welfare, Youth, Women and Children Development, 2015/2016, page 24. 441The Revolutionary Government Of Zanzibar, The 7th And 8th Periodic Reports On The Implementation Of The Convention On The Elimination Of Discrimination Against Women (CEDAW) 2008 – 2014.
172 On the other hand, local girls are increasingly lured to work in the Gulf States but many of them live and work in deplorable conditions. There are many cases whereby the authorities in Zanzibar have identified children en route to Gulf State for domestic work. Currently, there is no Anti Trafficking in Person’s law in Zanzibar in place. There is only a law on kidnapping. The reference point for sensitization remains the 2008 Anti-Trafficking in Persons Act passed by the Union Parliament. Local officials in Zanzibar have conducted a public awareness campaign on this issue across the islands using printed brochures and radio announcements.442
6.1.6 Women Participation in Decision Making The right to take part in decision making is a constitutional right. The Constitution of Zanzibar 1984 has provided the right regardless of gender. Section 21 (1) provides:
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.
Reports indicate that women participation in the decision making process still remains low. The main reason being attributed to the low participation of women is lack of education, cultural and historical factors including the religious beliefs and lack of exposure.443
Participation of women for political posts is through contesting in the general elections, after being appointed by the president444 or after being elected or nominated to special seats for women in Parliament or House of Representatives. However despite the many chances established for women participation, their number is still not satisfactory.445
Currently there is one Regional Commissioner and 2 women holding the post of District Commissioner in Zanzibar out of ten existing Districts. Both Districts and Regional Commissioners are presidential posts constitutionally.446
At the Ministerial level there was no change at all since General Election was nullified. Studies reveal that, until October 2015, there were only 4 female Ministers out of nineteen Ministers and 4 Deputy Ministers from eight. This imbalance also exists for the other top notch posts like, Principal Secretary, and Directors in the Ministries. There were fifty elected members of the House of Representatives of whom 47 are males and three are females while the total number in the House was 82, out of whom only 26 are female.447
442Ibid. 443Human Rights Report 2014. 444Section 61 (2) of the Constitution of Zanzibar, 1984. 445Human Right Report 2014. 446Ibid. 447Human Rights Report 2014.
173 Though recommendations have been made that women participation in the governance should be increased to give them a chance to participate in the decision making process, that was not the case in the 2015 General Elections. Despite another major review conducted by the Zanzibar Electoral Commission and increasing the number of constituencies from 50 to 54 (36 in Unguja and 18 in Pemba Island), only a very few women contested for these posts. The table below provides a picture of the number of women participants.
Table 13: Number of Female Candidates for 2015 Zanzibar General Elections
PARTY PARLIAMENTARY HOUSE OF REPRESENTATIVES
CCM 1 9
CUF/CHADEMA 4
CHAUMA 1
ACT -WAZALENDO 4
ADC 9
ADA -TADEA 1
DM 3
OTHER 0
6.2 Children Rights In Zanzibar children are protected by different international and domestic legal instruments. The Convention of the Rights of the Child (CRC) 1989, the African Charter on the Rights and Welfare of the Child, 1990, the Optional Protocol on the Involvement of Children in Armed Conflicts of 2000, Optional Protocol on the Safety of Children, 2000, the Child Prostitution and Child Pornography, 2000, the Constitution of the United Republic of Tanzania, 1977, the Constitution of Zanzibar, 1984 and the Children’s Act No 6, 2011.
6.2.1 Legal Framework The Constitution of Zanzibar, 1984 provides the frame work for the right to life. It should be borne in mind that the human rights enshrined the Constitution are also Children’s rights. It is not possible to draw a line of distinction between human rights and children rights. Both International and regional instruments as well as the Children’s Act No 6, 2011 aim to give more enforcement to children rights.
However, the protection of the interest of children and their welfare has not been well addressed. Many children suffer economically and therefore are socially disadvantaged. It is an undeniable fact that at the moment, Zanzibar has a very promising and conducive legal framework for the protection of children’s welfare. The Zanzibar child’s rights law has actually been the winner of the 2015 Future Policy Award on securing children’s rights, beating 29 other nominated policies to the prize. The Award will be presented at a ceremony in Geneva by the World Future Council, the Inter-Parliamentary Union (IPU) and UNICEF during the 133rd IPU Assembly.
174 The “Children’s Act” is an outstanding piece of legislation. It earned the 2015 Award for its balanced coverage of child abuse and violence against children and for its promotion of child rights – two important topics for children worldwide. Since the enactment of the law Zanzibar has seen a favourable and significant shift of social attitudes towards children.
The Act lays the foundation for the establishment of a comprehensive national child protection system to deal with cases of children in need of care and protection and already notable achievements have been recorded in its execution. These include the establishment of district child protection committees, the establishment of Children’s Courts, the designation of Police Gender and Children’s Desks in every Police Station in Zanzibar and the roll out of training social welfare and frontline justice professionals. An exciting feature of this legislation was the child consultation process which provides young people with an understanding of the law and their rights. It gave children a voice in the development of the legislation and resulted in the establishment of over 200 Children’s Councils in the Isles.
This however does not mean that the welfare of children in Zanzibar is given to satisfactory standards. We cannot ignore the efforts taken by the government and the people in the proper maintenance of the welfare of the children, but a lot still needs to be done. Different reasons have attributed to the breakdown of children’s welfare but the most significant one is divorce. The Minister of Empowerment, Social Welfare, Youth, Women and Children, Zainab Omar Mohammed when presenting her budget speech on the estimates and expenditure of the Ministry for the financial year 2015/2016 in House of Representative, was quoted as saying “marriage breakdown causes many families to live in difficult conditions.”
6.2.2 Institutional Framework The Revolutionary Government of Zanzibar has formed a Child Protection Unit at the Ministry of Empowerment, Social Welfare, Youth, Women and Children. The Ministry is the focal point for all matters relating to children at the national and international levels.448
448Human Rights Report 2014.
175 Apart from the Government there are different NGOs and various projects aimed at promoting the rights of the child. These include the child’s Criminal Justice Project under the Zanzibar Legal Reform sector.449 There is a special Juvenile Court room at Vuga High Court. This a big step forward for juvenile justice. However, there is a need to have more juvenile court rooms for all five regions of Zanzibar.450
Besides the establishment of these various institutions, Zanzibar also promotes children rights in a number of the ways. In the year 2015, the ZLSC as one of the NGOs in Zanzibar in collaboration with Save the Children International (SCI) marked the Day of the African Child on 14th June 2015 at SOS village. The message for this year’s celebration was “stand up for children and against child marriage”. A total of 350 children from Tuseme Club, Children councils at ten shehia (project area and non project area) participated in the event. Others participants were teachers, shehia coordinators, theatre groups, journalists, the Director and Programme Officers of Zanzibar Legal Service Centre (ZLSC), Programme Officers and Coordinators from Tanzania Media Women’s Association (TAMWA), Action Aid, Zanzibar Female Lawyers Association (ZAFELA), SAVE THE CHILDREN and SOS Children’s Village.
Children from Tuseme Club and children’s council from North A district Unguja taking part in a rally carrying a banner portraying a message against child abuse particularly early marriage.
6.2.3 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 right by criminalizing infanticide, murder, child destruction, and cruelty to children.451 To protect the life of the child the government has taken a number of steps. One of those efforts is improving nutrition and immunisation. Statistics show that there is an improvement in the number of mothers taking their children to health centres to check their children’s nutrition, diet and general well-being.452
449Ibid. 450Ibid. 451Sections 196, 205, 217 and 168 of the Penal Act, 2004. 452Budget Speech Ministry of Health and Social welfare 2015/2016 page 40.
176 6.2.3.1 Children Homes After the 1964 revolution, the government of Zanzibar established the first orphanage for abandoned children in the Stone Town at Forodhani. The large number of orphans could not be accommodated at the Forodhani orphanage and so, a two-storey building was constructed by ZAYEDESA at Mazizini with help of various stakeholders. There are a number of other orphanages including Integral Assistance to Vulnerable Children (IAVC), Zanzibar Orphan Support Project (ZASO), Zanzibar Children’s Fund at Chake Chake Pemba and SOS Village.
The objective of most of these orphanages is to see the Zanzibar community free from poverty and disease, provide educational development, child care and social welfare to orphans and disabled persons. The number of children who are under the government support at the Mazizini orphanage has dropped from 38 last year to 30 this year.453
6.2.3.2 Children an d Religious Institution (Madrassa) An Islamic school or Madrasa is an institution which usually offers different courses of Islamic study. These include citation and memorization of the Qur’an Arabic, Qur’anic interpretation, Islamic law, recorded sayings and deeds of Prophet Muhammad (PBUH), logic and Muslim history.454
Madrasa have existed in Zanzibar long before the advent of the colonialists. Throughout history, Islamic religion was taught at local village by elderly persons and sheikhs who were the main organizers of the studies. Children attended these schools so as to understand the teaching of the Koran. Students normally commence studies from as young as 4 to 5 years in age , where they learn Arabic words and phrases of the Qur’an.
According to the Ministry of Education and Vocational Training, there are more than 2,296 Madrasa in Zanzibar. Despite being an important institution for development of children, some of the teachers in the Madrasa are not given due recognition and are not provided with opportunities in the training and teaching profession. It is recommended that they should be treated fairly and given attractive and realistic remunerations.
What is disturbing to note however, is the indecent actions and molestations by some of the teachers in Madrasa entrusted with the religious upbringing of the children. These sexual acts or assaults can be deemed as a violation against children and human rights. We recommend to the government to work together with this very important institution to avoid such malpractices.
6.2.4 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 cared for and educated. The Penal Act, 2004 provides for special treatment to
453Budget Speech ministry of Women Children 2015/2016 page 25. 454ADEA (2012) Triennale on Education and Training in Africa Qur’anic Schooling and Education for Sustainable Development in Africa: the case of Kenya.
177 the child by criminalizing cruelty to children, desertion of children, neglecting to provide food, clothes, bedding and other essentials and child kidnaping The basic purpose of the right to grow and develop is given seriousness in the growth of intellectual capacity of the child.
6.2.4.1 Right to Education for the Child The right to Education for the child is highly considered a basic human right and the foundation for society. It is a fundamental human right for all,455 men, women and children including children with disabilities. The right to education is universal,456 and importantly, education is also treated as a basic need.457
Article 28 of the CRC provides for education as a basic right, and for free and compulsory primary education as a matter of urgent priority. It encourages the development of different forms of secondary education, including general and vocational education, stating that they should be available and accessible to all children (article 28(1)(b)).
The Zanzibar Education Act No 6, 1982 provides for the right to education for the child. Universal primary and middle secondary school is a compulsory. All parents are required by law to send their children to schools. However, to advance to the next education stage is not compulsory. It depends upon the intellectual capacity of the child. Some parents send their children to private schools in the hope that they get quality education giving the impression that children in public schools are of low income earners.
6.2.4.2 Right to Play There are a few designated places for children to play in Unguja and Pemba. For a long time Zanzibar used to have recognised Child Amusement Parks at Kariakoo in Unguja and Tibirinzi in Pemba. The parks had undergone major renovations and were reopened shortly before the elections. However, following to the annulment of the elections of 2015, these government-owned play grounds for children have been closed in Zanzibar and are under the military guard depriving children of a place where they can enjoy and play.
The private sector has also provided places for children to play. These include Jamhuri Garden Forodhani and Zanzibar Park. All these privately-owned places have their weaknesses, putting children’s lives at stake. To start with, Jamhuri Garden was not initially constructed as recreation centre. Our observation here is that, in case of emergency the area does not provide a safe escape for the children and this may result causalities. Zanzibar Park is also used as a depot for ORYX gas, which can be very dangerous in case of an explosion. There are also doubts and concerns about the supervision of the centres since there was a drowning incident involving a young child some time in October 2014. More regulations and better safety measure need to be put in place for
455Article 26 of the UDHR (1948) recognizes education along with other necessities such as food, shelter and water as a fundamental human right. The CRC affirms the right of all children to free, relevant and quality education. In addition to that, at the World Education Forum in Dakar (2000) participants from 164 countries pledged to provide education for all by 2015. 456Asquith S, & Hill M, ‘Justice for Children’, Boston/London, 1994, page 87. 457Freeman M, ‘Children Rights. A Comparative Perspective’, University College, London 1996, page 33.
178 the smooth operation of children play centres.458 One should also bear in mind that some of these parks charge an admission fee together with other charges for use of equipment etc. This renders the parks inaccessible to many children who cannot afford the fees charged. Lack of playgrounds forces many children to convert streets and alleys frequented by bicycles and motor cycles users into playgrounds thereby endangering their lives and that of the road users. Besides these official centres, there are also unofficial centres which used to accommodate children but are no longer used due to poor land planning.459
Kariakoo Amusement Park at night.
6.2.4.3 Violence against Children Violence against children has been a long time problem. There are different forms of violence to children including sexual violence and physical violence from family members and the society at large. There has been an attempt to check the violence against children through the Ministry responsible for Children.
A number of non-governmental organizations at national and international levels have offered assistance to check this vice. An aggressive awareness campaign is being conducted to change the mind-set of the people to value the rights of children and to do away with violence to children. It was alleged in 2013 that one female child died after being beaten by her colleague.
6.2.4.4 Current Situation on Child Abuse Notwithstanding the efforts taken by Zanzibar Revolutionary Government to improve the conditions of children, it is reported that children are being sexually abused. According to reports, 132 complaints relating to children sexual abuse both Unguja and Pemba have been reported.460 The Ministry has directed that all complaints be referred to courts of laws for action.
458“Mtoto Afariki akiogolea Zanzibar Park,” ZanziNews, 13th October, 2014. 459Kibanda Maiti, Uwanja wa Farasi and Jangombe. 460Budget Speech Ministry of Women Children 2015/2016 page 24.
179 6.2.5 Child Labour In Zanzibar there is no direct prohibition for children to work but what is prohibited is the type of work to be done by children. Children should not be exposed to any harmful situation that will affect their health, education, mental, physical or moral development, according to the Children Act No. 6, 2011.461
Despite this prohibition, children are still made to work in different tasks which are dangerous to their health and development. In Pemba for instance, children are seen working in stone quarries, breaking stones into pebbles and blocks fabrication. Areas affected with this kind of child labour are Micheweni, Mwambe, and Wambaa. In Unguja, areas include Charawe, Kijini, and Matemwe where children engage in fishing, looking out for firewood and livestock keeping.
6.2.6 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. However experience shows that claims first have to be lodged at the Ministry responsible for children before being taken to the court. In adressing the House of Representatives, the Minister responsible for children has said that her office has received more than 140 maintenance cases, 95 from Unguja which is equivalent to 67.86 per cent and 45 from Pemba, which is equivalent to 32.14 per cent.462
Table 14. Reported Maintenance cases 2015
Maintenance Cases Percentage
Unguja 95 67.86 Pemba 45 32.14
Total 1000 100
461Section 98 (1) of the Children’s Act No 6 of 2011. 462Budget Speech Ministry of Women Children 2015/2016, page 24.
180 6.3 Children in Conflict with the Law The term “children in conflict with the law” refers to the situation whereby a person defined by the relevant law as a child has come in contact with the justice system as a result of committing a crime or being suspected of committing a crime. Often prejudice, stereotyping and discrimination brings children into conflict with the law without a crime being committed.
It is estimated that there are over one million children worldwide in detention. The detention of children who have been accused of a crime but are awaiting trial (remand) continues to be the norm in a majority of countries and in some cases this accounts for over 90 per cent of children being held in detention. Notably everyday thousands of children around the world get caught up in formal justice systems. Most of these children arrested have committed petty crimes or minor offences such as vagrancy, truancy, begging or alcohol use. However some of them have committed more serious offenses. They are then usually arrested and detained by police, tried by magistrates, and sent to institutions including prisons. There are various reasons why children end up committing crimes.
According to Articles 37 and 40 of the Convention on the Rights of the Child (1989), children in conflict with the law have the right to treatment that promotes their sense of dignity and worth, takes into account their age and aims at their reintegration into society.
Article 17 of 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.
The Child Act, 2011 is the main law in relation to children in Zanzibar. The Act defines a person below the age of 18 as a child. In relation to Children in Conflict with law, the Act works in the best interest of the child. For example, the Act explains about arrests of the child, the diversion by police, cautioning and bail of children apprehended by the police, the custody of children not discharged on bail after apprehension, the assessment of Child Offenders and procedure in the Children’s Court.
In Zanzibar there are special court for children which is commendable. However the problem is there is no special reformatory school for children in Zanzibar. Children and adults share the same buildings, facilities and even the same prison cells. This situation is not at all pleasing because it accentuates or increases their vulnerability to abuse, violence, exploitation and health related risks such as injury and HIV/ AIDS infection. Moreover, children in the company of adult prisoners and sharing the same cell with them may pick up some of the criminal ways from these cell mates. If children are to be detained, they must be separated from adults. Failure to do so is a gross violation of their rights.
6.4 Rights of the Elderly The principal Universal International Human Rights instruments do not contain any specific provisions for the elderly, except perhaps for the International Covenant on Economic and Social
181 Rights’ with reference to the right to “social insurance” which is sometimes understood to cover pension rights.463 It is at the regional level that one finds a few scattered references. For example, article 25 of the Charter of Fundamental Rights of the European Union “recognizes and respects the rights of the elderly to live a life of dignity and independence and to participate in social and cultural life”. Article 18(4) of the African Charter stipulates that the aged shall “have the right to special measures of protection in keeping with their physical and moral needs”. The rights of older persons internationally were first considered in the Vienna International Plan of Action on Ageing, 1982464 and later on in the Madrid International Plan of Action on Ageing, 2002 (Madrid Plan).465 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.466
The last population census that took place in 2012 recorded that there were 48,511 people aged 60 and over in Zanzibar making this 4.5 % of the total population. Older people face many challenges including health problems, disability and poor mobility, which continue to push them into poverty. The recent old people registration exercise in Zanzibar shows that most are obliged to work sometimes in very difficult conditions, in some cases right into their seventies.467 The study has also found that out of 48,511 elderly people in Zanzibar only 7,800 people receive a pension from Zanzibar Social Security Fund.
Despite these challenges, the Revolutionary Government of Zanzibar has made several efforts to protect the welfare of elderly people. These include, setting aside special homes for the elderly in Unguja and Pemba. There are 148 elders who live under government support at Sebleni (46) and Welezo (37) for Unguja, Limbani (8) and Makundeni (57) for Pemba.468 The Centre argues that it is time now for the government to implement its plan of providing a universal pension scheme and other amenities and facilities for elderly people aged 70 and above as it has promised.469
6.5 Rights of Persons with Disabilities The definition of disability is a very contentious issue within disability discourse. As a result of this, proffering an acceptable definition of ‘disability’ could be problematic. Indeed, the CRPD acknowledges that ‘disability is an evolving concept’ and so does not explicitly define disability but merely elucidates who a disable is. According to the Convention, ‘persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an
463Frédéric Mégret, The Human Rights of the Elderly: An Emerging Challenge 464Adopted by the world Assembly on Ageing held in Vienna, Austria from 26th July - 6th August, 1982, endorsed by UN General Assembly 37/51. 465Adopted at the 10th Plenary meeting of the Second Assembly on Ageing 12th April, 2002. 466Human Rights Report 2009. 467Smart Daniel, Introduction of a universal pension scheme by the Government of Zanzibar, United Republic of Tanzania SOCIEUX in Action Newsletter Number 3, June 2015. 468The budget speech of 2015/2016 of Minister of Social Welfare, Children and Women Development, page 25. 469Ibid.
182 equal basis with others’.470 There are a number of International and regional instruments taking care of the rights of people 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 Disability, 2006 in which Tanzania is a signatory. Zanzibar being a part of Tanzania is also bound by that instrument.471 In 2003, the African Union initiated a process of developing a protocol on the protection of the rights of persons with disabilities and the elderly, though in the process of the development of the Protocol a number of challenges were encountered.472 The Commission’s Working Group on the Rights of Older Persons and Persons with Disabilities presented a draft Protocol for public comment in April 2014.473 The draft Protocol calls for effective implementation of the right to health including ‘ensuring that health-care services are provided using accessible formats and that communication between service providers and persons with disabilities is effective’.474
6.5.1 Legal Framework Zanzibar has enacted the Persons with Disabilities (Rights and Privileges) Act, 2006475 which provides for the rights and privileges of people with disabilities. This includes the right to employment, access to education, and entitlement to medical care, accessibility and mobility.476 The Act apart from providing such rights and privileges, also imposes obligations on the government and every person to provide for the rights and privileges to those people. Other laws that define the rights of people with disabilities in Zanzibar are, Labour Relations Act, 2005,477 Zanzibar Education Policy, 2006, focusing in on improving access to education for children with disabilities together with the Zanzibar Strategy for Growth and Reduction of Poverty, 2006-2020.
There are more than 16,533 people with different types of disabilities throughout Zanzibar. 10,088 of the people with disabilities live in Unguja (5,089 females and 4,999 males) and 6,445 live in Pemba (2,878 females and 3,567 males).478
In ensuring the dissemination of the human rights knowledge to the peoples with disabilities, ZLSC conducted two separate trainings in Unguja and in Pemba. The trainings were aimed at raising the awareness on their human rights and current Zanzibari laws concerning people with disabilities. In Unguja a two-day training for people with disabilities was organized on 8th and 9th August 2015 at the conference hall of UWZ Umoja wa Walemavu Zanzibar. A total of 44 participants (20 male
470Anwuli Irene Ofuani The right to economic empowerment of persons with disabilities in Nigeria: How enabled? AHRLJ-2011-2. 471Human Rights Report 2009. 472Anwuli Irene Ofuani The right to economic empowerment of persons with disabilities in Nigeria: How enabled? AHRLJ, 2011 – 2. 473Ibid. 474Ibid. 475Act No. 2 of 2006. 476Sections 3 – 12 of the Act. 477The Act Bars Discrimination based on Disability in the context of trade Union. 478Department of Disabilities Affairs, the First Vice President’s Office, August 2014.
183 and 24 female) attended. The Centre also provided interpreters who knew sign language to enable deaf participants follow the training and its activities.
In Pemba, the office also organized a two-day training on Human Rights for People with Disabilities on 23rd and 24th May, 2015 at the ZLSC-Pemba office. A total of 40 participants (16 female and 26 male) with various types of disabilities were invited and attended the training. These included people from the albinism community, and people from UWZ (Union of People with Disabilities in Zanzibar), ZANAB (Community Braille Zanzibar), CHAVIZA (Association of the Deaf Zanzibar), JUWAUZA (Community of Women with Disabilities in Zanzibar), and ZAPDD (Community for People with Intellectual Disabilities Zanzibar).
The topics covered in both training sessions included, Interpretation of the Zanzibar Constitution of 1984, Human Rights, International Convention of people with disabilities, the concept of disability, advocacy strategies and inclusion of people with disabilities, Interpretation of the law of people with disabilities Act No. 9 of 2006, participation of people with disabilities in elections, challenges faced by people with disabilities and accessibility of services for people with disabilities.
The training was successful since it provided a platform for people with disabilities to voice their concerns and challenges facing them. It became very obvious during the event that people with disabilities do not receive adequate support from the community and government institutions, including the Department of Disabilities.
6.5.2 Institutional Framework The Revolution Government of Zanzibar has set a special department which is under the Office of First Vice President of Zanzibar to be responsible for dealing with matters relating to people with disabilities. Apart from government institutions there are a number of non-governmental organizations dealing with the promotion of interests of people with disabilities of different types.
184 There are more than ten non-governmental organizations dealing with people of different disabilities. Among them there is the Zanzibar Association of the Blind (ZANAB), Zanzibar Association for People with Developmental Disabilities (ZAPDD), the Organization of People with Disabilities in Zanzibar (UWZ), Zanzibar Centre for Disability and Inclusive Development (ZACEDID) and others.
6.5.3 Challenging Facing People with Disabilities It is estimated that the number of people with disabilities in Zanzibar is more than 15,000 people out of the total Zanzibar’s population of about 1.3 million. People with disabilities in Zanzibar are faced with many challenges. These can be explained as follows. Though the Act stresses that public buildings and services should be accessible to all people including persons with disabilities the situation is actually different. A large number of public buildings are not accessible to people with disabilities. Most of the families with people with disabilities live below the poverty line and hardly meet the basic needs of life. There is also the problem of some families of people with disabilities trying to hide them and keeping information about them a secret. Discrimination in employment is another serious problem that cannot be overlooked.
People with mental disabilities are subjected to sexual violence and some of them are raped and impregnated.479 In Zanzibar, out of the estimated number of children and youth with disabilities only 2% of them have access to education of any kind. Some of the main challenges for providing education to children with disabilities are: shortage of trained teachers; shortage of appropriate teaching-learning materials; inadequate supply of teaching tools and equipment for learners with disabilities, inaccessible school buildings (no ramps, narrow corridors and doors, poorly designed toilets); distances from home to the nearest school; negative community attitude towards people with disabilities and low awareness and sensitivity to disability issues by government policy makers and other stakeholders.480
To overcome those challenges, the government has undertaken several efforts including the preparation of a policy for people with disabilities which is in its final stage, conducting a census to know the number of people with disabilities in all five regions of Zanzibar. The government has established a special fund for people with disability and 281 people with disability (Unguja 150 and Pemba 131) were given special equipment and other accessories to help in their life.481
479Budget Speech of the Office of the First Vice President 2015/2016, page 11. 480The Revolutionary Government Of Zanzibar, The 7th And 8th Periodic Reports On The Implementation Of The Convention On The Elimination of Discrimination Against Women (CEDAW) 2008 – 2014. 481Budget Speech of the Office of the First Vice President 2015/2016, page 10.
185 6.6 Conclusion It has been observed that in a human rights sense, certain population groups often encounter discriminatory treatment or need special attention to avoid potential exploitation. This population makes up what can be referred to as vulnerable groups. This has been the reason for protecting their rights through different human rights instruments. The aim of human rights instruments is the protection of those vulnerable to violations of their fundamental human rights. As was described in this chapter, there are particular groups who, for various reasons, are weak and vulnerable or have traditionally been victims of violations and consequently require special protection for the equal and effective enjoyment of their human rights. Often human rights instruments set out additional guarantees for persons belonging to these groups.The Committee on Economic, Social and Cultural Rights, for example, has repeatedly stressed that the ICESCR is a vehicle for the protection of vulnerable groups within society, requiring states to extend special protective measures to them and ensure some degree of priority consideration, even in the face of severe resource constraints. The information gathered in this report suggests that there is a negative story of development for people with vulnerabilities. However these negative stories should not veil the positive efforts which have been taken by the government to improve the status of these people. Nevertheless, the ZLSC hopes that both the governmental and non- governmental organisations will continue to work hard to promote the rights of vulnerable groups.
186 CHAPTER SEVEN Collective Rights
7.0 Introduction Collective rights which are sometimes called solidarity rights or group rights given to communities or societies at large. These group rights are what are referred to as the third generation of human rights.482 They are rights which the individual enjoys as part of group or the community. The rights include environmental rights, the right to peace and security, right to development, right to separate identity and the right to self-determination. The African Charter on Human and Peoples Rights, 1981 made significant contributions to the development of these “solidarity rights” by making provisions for them.483 Apart from the classification of the rights as civil and political rights, economic, social and cultural rights, there are rights that are classified not necessarily as individual but group rights. They include children’s rights, refugee rights, women’s rights, minority rights, the rights of indigenous peoples, among others. These group of rights, it must be pointed out, do not detract from the basic concept of human rights and they are not additional or superior to those belonging to the rest of the society. The group rights are the expression of basic rights, tailor-made to adequately protect the group concerned. There is also a further classification of human rights into substantive human rights and procedural human rights. The former are protected by the substantive law while the later are the procedural provisions for the enforcement of the substantive rights.
A right becomes a group right only if it is borne by the group qua group. If the individuals who form a group hold rights as separate individuals, their several individual rights do not add up to a group right. For example, scientologists constitute a group whose members might be said to have a right to conduct their lives according to their beliefs (provided that, in doing so, they do not violate the rights of others). In saying that, however, it does not mean that we need not be ascribing a group right to scientologists. Rather, we may be saying only that individuals, including scientologists, have the right to conduct their lives as they choose. Thus, the relevant right is one held by each individual scientologist rather than by scientologists as a collectively.484
In the same view, a right may have a content that relates to collectively without its being a group right. An individual can have a right to join a group, such as a trade union, only if there is a group for him to join. Having joined the group, that individual may have rights that he possesses only as a member of the group. In both instances, however, these typically will be rights held in an individual capacity rather than rights that belong to the group. If someone prevents another person from joining the group or prevents an individual from exercising his rights as a member of the group, the rights he violates are typically the individual’s rights rather than the group’s rights. We might, of
482The first generation of rights involves civil and political rights the second generation involves socio-economic and cultural rights. 483Robinson M ‘‘ Protecting Human Rights: the Role and Responsibilities of the Independent Bar’’ being a keynote address delivered at the inaugural World Conference of Barristers and Advocates, Edinburgh 28 June 2002. 484Peter Jones, Human Rights, Group Rights, and Peoples’ Rights, Human Rights Quarterly, Vol. 21, No. 1 (Feb., 1999), The Johns Hopkins University Press, pp. 80 – 107, page 82.
187 course, hold that if someone prevents individuals from joining a group such as a trade union, such action violates not only rights held by the would-be joiners, but also a right held by the trade union as a group. In that case a genuine group right would be at stake. Simply put not every right that is associated with group membership or group activity need to be a group right. What distinguishes a right as a group right is its subject rather than its object, which it is that that holds the right rather than what the right is a right to.
The first conception of group rights is the collective conception. Joseph Raz sets it out most clearly. Raz subscribes to an interest theory of rights, and he defines what it is to possess a right as follows: “X has a right if and only if X can have rights, and, other things being equal, an aspect of X’s well- being (his interest) is a sufficient reason for holding some other person(s) to be under a duty.”485
Thus, according to Raz, to have a right to something is to have an interest in that something. Merely having an interest, though, is not by itself enough to create a right. An interest translates into a right only if it is an interest of sufficient moment, all things considered, to justify imposing a duty upon another. Therefore a right, for Raz, is conceptually tied to a duty. That relation, however, is more than one of mere correlation: a right grounds a duty in that the right provides the reason for the duty.
The second conception of group rights is the “corporate” conception of group rights. The principal difference between these conceptions is that, while the collective conception ascribes moral standing only to the individuals who jointly hold the group right, the corporate conception ascribes moral standing to the group as such.486 Thus, under the corporate conception, the holder of the right is the group conceived as a single, integral entity. Morally, the group might be said to constitute a right-bearing “individual.” The right is held not jointly by the several individuals who make up the group, but by the group as a unitary entity; the right is its right rather than their right.
Typically, when people ask whether a group can bear rights, they are envisioning this corporate conception of group rights.487 They ask that question of groups in the same way that they might ask it of foetuses, animals, or future generations: is a group the sort of entity that is capable of bearing rights? To ask that question is to ask whether one should ascribe moral standing to groups in the way that we ascribe moral standing to individual persons. If the answer is yes, then it can be concluded that a group, as we can conceive an individual, as an irreducible right-bearing entity. Similarly, when people deny that groups can have rights, they usually mean to reject group rights corporately conceived. They deny that groups can bear rights precisely because they deny that we can properly ascribe to groups the sort of irreducible moral standing that we ascribe to individuals. There has been a debate going on between the collective rights and individual rights. Some people use to say that there is no line of distinction between the two. However, collective rights protect
485Joseph Raz, The Morality of Freedom (1986). 486Larrym Ay, The Morality of Groups: Collective Responsibility, Group Based Harm and Corporate Rights (1987); See also Michael McDonald, Should Communities Have Rights?: Reflections on Liberal Individualism, 4 CAN. J.L. & JURIS. 21 7 487Petera. French, Collective and Corporate Responsibility (1984);
188 a group of people while individual rights protect the individual. The international and regional human rights instruments explain about the collective rights. The Revolutionary Government of Zanzibar has been trying to meet the needs of collective or group rights.
7.1 Right to Development There is a symbiotic relationship between the right to self-determination, the right to development or right to natural wealth or resources. Under articles 1(1) respectively of ICCPR and ICESCR,488 the right to self-determination encompasses the right of the people not only to freely determine their political status but to freely pursue their economic, social and cultural development. A similar provision is contained in article 20(1) of the African Charter.489 Further to the foregoing provisions, the General Assembly of the United Nations on 4 December 1986 adopted the Declaration on the right to development.490
The Declaration in its preamble states, inter alia:
Recalling the right of peoples to self-determination by virtue of which they have the right freely to determine their political status and to pursue their economic, social and cultural development.
It also recalls the right of peoples to exercise, subject to the relevant provisions of both international Covenants on Human Rights, full and complete sovereignty over all their natural wealth and resources.
Article (1)(1) of the Declaration provides as follows:
The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.
Article 2(1) of the Declaration provides that “The human person is the central subject of development and should be the active participant and beneficiary of the right to development.” From the above provisions, it is clear that right to development is embedded in the right of the people and their entitlement to participate, contribute and enjoy economic, social, cultural and political development. Again, the full realization of the right to self-determination is dependent on the human right to development wherein the human person remains the fulcrum, the subject and the beneficiary of the development.
The right to development was first recognized in 1981 in Article 22 of the African Charter on Human and People’s Rights as a definitive individual and collective right.491 488The provisions are set similar. 489The provision is similar to article 1(1) of ICCPR and ICESCR. 490UNGA Resolution 41/128 of December 1986. 491Collective Right, Wikipedia
189 Article 22 (1) provides that: All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
The right to development was subsequently proclaimed by the United Nations in 1986 in the Declaration on the Right to Development which was adopted by the United Nations General Assembly resolution 41/128.492 The right to development is a group right of peoples as opposed to an individual right and was reaffirmed by the 1993 Vienna Declaration Program of Action.493
Like most economic rights other than the right to property, the right to development is hardly asserted in Zanzibar. Legally, the right to Development in Zanzibar is not covered under the Constitution but has been included in the fundamental objectives and directive principles and policies of the Revolutionary Government of Zanzibar.494 The right to Development as part of the collective right is made part of the annual Zanzibar Government Plan which is tabled in the House of Representatives for deliberation and approval. Through the representative democracy of their respective legislators in the House of Representatives, the people of Zanzibar are given a chance to discuss what is in the government Annual Plan including all projects such as the Zanzibar Strategy for Growth and Reduction of Poverty commonly known “MKUZA II.”
The economy of Zanzibar is still at the revised stage. The change of income generation has become out dated if not old fashion. The main source of the national income generation has now become less competitive than other countries but has growing potential in it. The decline of Zanzibar clove exports by TZS 52 billion is evidence that the economy of Zanzibar is not stable. The Zanzibar economy has been depending on cloves for the last 150 years. Prof. Damian Gabagambi of agricultural economics at the Sokoine University of Agriculture commented that the starting point for identifying the causes of continuing decline in clove output should be the weak link of value chain that ruins competitive advantages of Zanzibar’s cloves in the global market. It was also said that the quality of Zanzibar cloves cannot compete with others in Indonesia and other new comers in the global market. The value chain of Zanzibar cloves in terms of farming practices, processing, storage and marketing activities must be improved.495
7.2 Rights to the Environment and Sustainable Development Environment is the sum total of what is around something or someone. It includes living things and natural forces. The environment of living things provides conditions for development and growth, as well as for danger and damage. Living things do not simply exist in their environment. They constantly interact with it. Organisms change in response to conditions in their environment. The environment consists of the interactions among plants, animals, soil, water, temperature, light, and other living and non-living things.496 492Ibid. 493Ibid. 494See Zanzibar. (2005). Sera ya maendeleo ya vijana. Zanzibar: Serikali ya Mapinduzi ya Zanzibar, Wizara ya Vijana, Ajira, Maendeleo ya Wanawake na Watoto. 495Ludger Kasumuni, The Citizen Reporter, Z’bar clove exports decline by Sh52bn, says BoT report, 6th May, 2015. 496http://simple.wikipedia.org/wiki/Environment (accessed on 17th November, 2014).
190 The idea of ‘Environmental Human Rights’ is not a new one. Many international agreements since the 1972 UN Stockholm Conference have talked about it. Some states have constitutions or legislation intended to ensure this right. The Rio Summit sought to resolve them through Agenda 21 and the UNCED Conventions. However, attempts to implement these agreements have largely failed to influence national policies and activities that lead to unsustainable growth. Laws and strategies intended to support the ‘mainstreaming’ of sustainable development have had little impact in most countries, while perverse resource use is still widespread and often unchecked. These failures have led to calls for a new approach. Further pressure for change comes from the impacts of economic and social globalisation. Non-mandatory treaties such as the Rio agreements are an inadequate basis for effective control of these processes.497
Environmental human rights encompass three main areas: Firstly, the right to a clean and safe environment: This is a substantive, basic right but is hard to define.498 Many support the idea that safe water and food security are basic human rights. Secondly, the right to act to protect the environment: This is inherent in the UN Declaration and associated Conventions, through the right to organise and to free assembly, but is under threat in many nations. Thirdly, the right to information, to access to justice, and to participate in environmental decision-making: These enable citizens to play an active part in creating a healthy environment, and are linked to several UN Conventions and Declarations.499
7.3 Improving Transportation Efficient transport is a critical component of economic development, globally and nationally. Transport availability affects global development patterns and can be a boost or a barrier to economic growth within individual nations.500 Transportation investments link factors of production together in a web of relationships between producers and consumers to create a more efficient division of production, leverage geographical comparative advantage, and provide the means to expand economies of scale and scope.
Transport has affected economic development from the beginning of human civilization. Economic development focused on the confluence of transport systems — early cities grew up on natural bays and ports, and on rivers and lakes where transport was available. Romans built roads to unify and provide access to their far-flung empire. Geographic characteristics such as proximity to oceans, seas, and waterways, plains, mountains and the location of oases defined early transport systems (e.g., the “Silk Road” went from oasis to oasis, and city to city, where there were no reliable water or road routes).
497The UNCHR ‘Draft Principles for a Declaration on Human Rights and Environment’ from 1994 suggest how these might be defined. 498Ibid 499Maria Adebowale at al, Environment and Human Rights: A New Approach to Sustainable Development, World Summit on Sustainable DevelopmentOpinion, International Institute for Environment and Development (IIED), May 2001. 500See Paul Krugman on New Trade Theory, Journal of International Economics, 1979; and New Economic Geography, Journal of Political Economy, 1991.
191 The interface between transportation investment and economic development has broad ramifications that go beyond transportation’s basic purpose of moving goods and people from one place to another. Whereas there is no doubt that transportation is essential in the operation of a market economy, much still needs to be understood about ways in which an efficient transportation system can improve the productivity of the economy. Transportation also has a broader role in shaping development and the environment.501
Keeping this in mind, the government of Zanzibar in marking 51st anniversary of the revolution has its ambition to become an alternative economic zone in the East African region is gaining momentum smoothly due to the on-going expansion of the “Abeid Amani Karume International Airport (AAKIA).” The government has taken steps to develop the International Airport by lengthening its runway to more 3,022 metres in length and 45 metres in width.
The airport can now accommodate all types of aircraft. Construction of a new taxiway and apron has been completed, and work on the new terminal building (terminal 2) is progressing, and was expected to be completed in October this year, 2015.The USD 74 million facility on the main airport in Unguja is a milestone in the infrastructure project expected to change the landscape of Zanzibar. The Zanzibar government has vowed to upgrade the airport to international status by end of this year. The Beijing Construction Engineering Group Ltd (BCEG) from China is constructing the new terminal building for the Airport. The Chinese Government provided a 30 - year preferential loan of 480 million Yuan (USD73.85 million) for the work.502
Similar development and improvement plans also shifted to Karume airport in Pemba where the installation of lights, fencing, and improving security were the focus of improvement.
7.4 Right to Clean Environment in Zanzibar The protection of human rights and environment are treated seriously. The Revolutionary Government of Zanzibar had taken measures to conserve the environment to enable the people to live comfortably. Unlike in the past, the Zanzibar Stone Town is now kept clean. Land Development Projects are carried out in line with the environment. For example, there are projects of National Spatial Development Strategy and Sustainable Urban Development and Management. Special areas outside the Zanzibar Municipality have been set aside for refuse collection purposes. Under the supervision of the Zanzibar Municipal Council, garbage is collected from different points in town and taken to these special areas for disposal.
The Constitution of Zanzibar of 1984 has not included a direct or specific provision for the environment. However, Section 10(6) of the Constitution provides some indications on the environment from the Government. The Section says that the government shall direct its policy
501Randall Eberts, Understanding the Impact of Transportation on Economic Development, A1A06: Committee on Transportation and Economic Development Chairman: Norman Foster, Minnesota Department of Transportation, page 1. 502Issa Yussuf, Tanzania: Isles’ Airport Expansion for All Types of Aircraft, Tanzania Daily News 12th January, 2015, http://allafrica.com/stories/201501121617.html.
192 towards ensuring that every person has access to adequate health care, equal opportunity to adequate education for all and that Zanzibar culture is protected, enhanced and promoted.
The Ministry responsible for environment is taking measures to create awareness and educating communities on the importance of environmental conservation. In order to reduce pressure on the unplanned use of natural resources the government is introducing and promoting alternative income generation activities such as ecotourism, beekeeping and crafting. Coastal communities are educated on conservation of marine resources and associated environment, while the fishermen are provided with fishing gear and fishing skills.
The law governing environmental issues including the Zanzibar Environmental Management for Sustainable Development Act, 1996 reflects the principle of state sovereignty of environmental recourses. The Act protects the Island’s environmental resources against Bio-piracy. Section 33(1) of the Act provides:
The institution responsible for the environment through the Director shall prepare a local environmental action plan when environmental problems which require special localized planning are identified, especially those which threaten likely harm to:-
(a) Zanzibar’s biological diversity; or (b) an ecosystem such as a coastal area or water catchment. (2) Any person has the right to petition the Director, identifying a problem which requires the preparation of a local environmental action plan. (3) A local environmental action plan shall be approved by the Minister.
The Act provides right to a clean and healthy environment and a duty to maintain it. As given under Section 6(1) Every person has a right to a clean and healthy environment. (2) Every person has a duty to maintain and .enhance that environment.
It also provides the right to legal proceedings to any stake holder. Section 109(1) states that any person, whether or not assisted by an advocate or wakil, shall have the right to petition the appropriate enforcing institution or any court of law, subject to that court’s rules, to enforce any provision of this Act. (2) Any person who institutes a proceeding under this section and who prevails in court shall have the right to recover the costs of the legal proceeding from the other party. (3) At the request of the prevailing party, the court acting upon a proceeding instituted under this section shall include in the judgment any costs of the prevailing party. (4) For the avoidance of doubt, “person” specifically includes any individual or group of individuals whether formally registered for environmental purposes or not and any community which has prepared a community environmental management plan under section 35 of this Act.
The environment is where people live. Many people consider the “environment” to be primarily concerned with natural things such as plants and animals, forests and coral reefs. The environment is certainly made up of such things, but it also includes a much wider spectrum of life and society.
193 It is a broad term which describes the space around us in natural, social, economic as well as technological ways. Education, urbanization, waste, population, housing and energy are all part of our environment. The law therefore is there to protect the life of people through protection of the environment. To maintain and improve our environment, it is necessary to keep track of its health and progress. Information based on continuous monitoring provides the basis for decision-making.
The right to clean environment is among the concerns of the Revolutionary Government of Zanzibar. It has taken various initiatives to create and improve a clean environment in Zanzibar. For instance, the Department of Environment (DoE), Zanzibar is the institution responsible for overseeing the integrity of Zanzibar’s environment for sustainable development. This Department was established in 1989 and is in charge of environmental affairs in Zanzibar. At that time, the department was under the Commission for Land and Environment (COLE) of the Ministry of Water, Energy, Land and Environment. However from 2006, the Department has been under the Ministry of Agriculture, livestock and Environment (MALE). Since 2010 the DoE is moved to office of the First President of Zanzibar. The process is now underway to develop DoE to be a full Authority.
Despite all of the efforts taken, the state of cleanliness of the environment in Zanzibar is still not satisfactory. Planning, cleanliness, and control of the waste material is still a big burden for the government to handle. Individuals, who are the number one perpetrators of the environmental destruction, contribute to a large extent to the violation of environmental rights.
7.4.1 Noise Pollution Noise pollution is a bad experience and a nuisance and many Zanzibari do not even bother about it even though they are affected by it. The government itself has not done much in protecting citizens from these nuisances.503 The most commonly used practice is the use of public address systems, also known as speakers or “gari bomba” used by political parties, cell phone companies, religious leaders, entertainment groups, shopkeepers and even street vendors. The whole town is actually enveloped in noise. There is noise basically everywhere, going around the markets, bars, public and private cars, taxis, streets and even near schools, hospitals and residential areas where traders and companies pollute the areas with noise. Even fish mongers, people who sell dates, juice, mouse traps and poison use public address systems to advertise their commodities.
While the situation is critical all over the Zanzibar Municipality, it has also spread to villages and beaches which are very popular tourist resorts. In villages particularly in the north region and east coast, there is regular loud noise of music from discotheques with no sound proofing, disturbing people living around nearby places until shortly before dawn.
The pride of Zanzibar, which was until few years back a place characterised by quiet and peaceful environments is currently flooded with noise pollution. The trend is growing worse as many people after realising that their long cherished dreams of getting employed have failed to materialise, move to town with the view that they will have trade or business opportunities. In the process, they tend to behave badly, the result of which there is more noise everywhere than ever before.
503Salim Said Salim, Save Zanzibar from Pollution, March 21 2015, http://www.thecitizen.co.tz/oped/SALIM--Save- Zanzibar-from-pollution/-/1840568/2661126/-/wstglgz/-/index.html.
194 The silence on this issue implies that authorities do not care and have decided to turn a blind eye to it. We, as human rights activists, cannot afford ignore the fact that noise is not only a nuisance, but a health hazard to the human beings. It is believed that too much noise may result in deafness and heart attacks. We strongly advice that action to be taken to ensure that since noise pollution affects people, it must be controlled at any cost. At the national level we may think of a Noise Pollution Policy which will, among other restrictions, lay down rules on the use of public address systems.
7.5 Right to Peace and Security The right to peace and security is covered in international and regional instruments. The adoption of the Charter of the United Nations in San Francisco on 26 June, 1945 laid the foundation for a new international legal order. The Charter left no one in doubt regarding its intention when it, inter alia, clearly reaffirmed in its preamble, the faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. The purposes of the United Nations as set out in the Charter include as follows:
To maintain international peace and security, and to that end; to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.504
International law becomes a vehicle in the realization of the objectives of the Charter. In other words, international law laid the foundation for the internationalization of human rights and international human rights regime. Indeed, the development of international human rights was strengthened following the adoption by the United Nations General Assembly of the Universal Declaration of Human Rights (UDHR) on 10 December 1948. As a result of sustained pressure from the international community, the safeguard and enforcement of human rights became a major objective of international law.505 It also stated the determination of the peoples of the United Nations “to employ international machinery for the promotion of the economic and social advancement of all peoples.” It is up to government to provide for the right to peace and security to its people as a prerequisite for the nation’s economic, political, social and cultural interests.
Section 9 (2) (b) of the Constitution of Zanzibar of 1984 says that Security for people and their welfare shall be the primary objective of the Government.
Previous reports indicate that the situation of peace and security in Zanzibar had been improved significantly although there were sporadic cases of violence and skirmishes catapulted politically or religiously. The introduction of the Government of National Unity was said to have helped to develop stability and peace in Zanzibar. For the first time in history of Zanzibar since the introduction of the multiparty system, Zanzibar experienced a peaceful atmosphere. However,
504Article 1 of the Charter of the United Nations. Several provisions of the Charter made specific references to human rights. They include articles 55(c), 62(2) and 76(C). 505Dugard, J., International law: A South African Perspective (2000), Chapter 13.
195 this peaceful situation declined in 2015. There have been reports of violations, particularly those connected with the general elections. Involvement of mazombi and other groups causing fear and terror has, to a great extent, contributed to a deterioration of peace and security though the local people have addressed the issue of fighting this terror and fear by organising and strengthening the Polisi Jamii or neighbourhood watch. The well trained groups of mazombi who are sometimes seen in the company of the police have become a source of great fear during the year.
The year 2015, saw many cases of house breaking like never seen before and occasionally firearms are known to have been used. The table below indicates the real situation of the peace and security in Zanzibar. These records however, do not include those cases which had been reported to police and were not sent to court. A number of the cases reported to police were either settled or did not have enough evidence were not reported in this record. If one would wish to peruse the Report Books of every police station the situation would be alarming.
Table 15. Records of the Serious Criminal Cases from January 2015 – December 2015
OFFENCES OFFENCES OFFENCES
REGION AGAINST AGAINST AGAINST TOTAL
PERSON PROPERTY MORAALITY URBAN DISTRICT 17 12 5 34 WEST (A) 13 45 14 72 WEST (B) 18 23 2 43 Total Urban West Region 48 80 21 149 NORTH (A) 26 24 12 62 NORTH (B) 21 16 31 68 Total North Region (U ) 47 40 43 130 CENTRAL (U) 21 30 12 63 SOUTH (U) 12 31 23 66 Total South Region (U ) 33 61 25 129 WETE PEMBA 1 7 14 22 MICHEWENI 10 7 - 17 Total North Region (P ) 11 14 14 39 CHAKE CHAKE (P) 20 20 15 64 MKOANI PEMBA 29 27 3 59 Total South Region (P ) 49 47 18 123 Grand Total 188 282 131 570
Source: Zanzibar Police Headquarters - Ziwani
196 Table 16: Records of the Less Serious Cases from January 2015 – December 2015
OFFENCES OFFENCES OFFENCES REGION AGAIN ST AGAINST AGAINST TOTAL PERSON PROPERTY MORALITY
URBAN DISTRICT 24 29 18 71 WEST (A) 29 74 6 109 WEST (B) 47 42 59 4
Total Urban West Region 100 145 29 274
NORTH (A) 14 89 69 172 NORTH (B) 69 03 3 129
Total North Region (U) 20 179 102 301 CENTRAL (U) 19 70 13 102 SOUTH (U) 66 39 25 130
Total South Region (U) 85 109 38 232 WETE PEMBA 81 44 16 3 MICHEWENI 16 29 4 49
Total North Region (P) 24 43 45 112
CHAKE CHAKE (P) 26 27 65 9 MKOANI PEMBA 34 59 19 4
Total South Region (P) 60 86 7 153 Grand Total 289 548 221 1072
Source: Zanzibar Police Headquarters – Ziwani.
There is still a need to emphasize the need to ensure that the security of Zanzibar is of paramount importance to Zanzibar and Zanzibaris and no stone should be left unturned to ensure and re ensure peace. This is because it will not only maintain peace, security and stability in the Isles but also because it is vital to the economy. Zanzibar expects much from the tourism sector after the decline of the clove economy and peace and security are key ingredients in this process.
7.5.1 Stone Town Security Peace and security in Zanzibar’s Stone town was set to be strengthened by installing CCTV cameras in June 2015. The project was funded by ZTE Corporation,506 a Chinese government owned company that came to Zanzibar in response to a visit by Zanzibar Second Vice-President, Ambassador Seif Ali Iddi to the People’s Republic of China late last year.
506 ZTE is a leading global telecommunication equipment and solutions provider; owned by the Chinese Government and public in Shenzhen and Hong Kong
197 Zanzibar is one of the ZTE corporate social responsibility projects where about USD 3.5 million (TZS 7.8 billion) was used for the CCTV system installation. This was a deliberate effort taken by the government of Zanzibar in cubing the increase in crime on the Isles. In recent years ordinary people and tourists have been victims of violence and robbery from criminals and yet economy of the Islands relies heavily on tourism. During his visit to the project’s Commanding Centre situated at Malindi in Zanzibar, the Second vice President Ambassador Seif Ali Idi said the completion of this project is expected to contribute towards the growth of tourism due to strengthened security.
The Second Vice President, Ambassador Seif Ali Iddi on visit to the project’s Commanding Centre situated at Malindi. Right: Consular of the People Republic of China in Zanzibar Mr. Xie Yun Liang.
The project aims to install 300 full high definition cameras (FHD) on the main roads of the Stone Town and a command centre with screens, video wall and a control centre. The video surveillance system has a Geographic Information System (GIS), Case library, and intelligent analysis tools. According to the engineer, with routine management, this system can facilitate sharing information among different administrative departments, utilising security resources and improving efficiency of controlling or responding rapidly to major accidents.
198 The technician installing CCTV cameras at the main road.
The engineer said the video system uses the highest technology in the world and will utilize the government’s optical fibre resource deployed in the Stone Town area to ensure the quality and efficiency of online information transmission.
Secretary of the Experts’ Control Committee Mr. Jabir Haji Abdulla displays various pictures captured by CCTV cameras installed in various places in Stone Town.
199 The security situation of the Stone Town was deplorable such that some events, especially attacks on people including foreigners, are too horrible and too shocking to describe. The attack and robbery against two Cuban female doctors, in January this year, has triggered a red flag which was already in existence but which the authorities paid no heed to. Probably complaints from embassy officials will open their eyes to the reality and gravity of the situation. The Stone Town is the navel of Zanzibar and it can be safely said it is the corner stone of Zanzibar’s administration and economy.
ZLSC does acknowledge the efforts taken by the Police as well as the neighbourhood watch groups (Polisi Jamii) by offering them training in human rights issues. In September this year ZLSF organised a two day human rights training in Pemba for Zanzibar Special Units and Polisi Jamii (Community Police/Neighbourhood Watch).
Regional Police Commander of southern Pemba RPC Juma Yussuf Ali, opening a two-day training on human rights for SMZ Special Departments and Community Police Pemba organised by the ZLSC branch of Pemba.
Together with all of these efforts, ZLSC still calls upon all security forces and the local police communities to work professionally and scientifically. Normally, people involved in criminal activities have a pattern and certain connections and we believe that if efforts are taken this could be solved. It is amazing to note how the same style of committing a crime by someone on motorbike or a van be applied time and time again without being tracked and caught. With all the experience within the Police Force and their record of handling crime, this should not be difficult. These stories send fear to potential visitors and some naturally would prefer to cancel their schedules and choose to go somewhere where their security can be better guaranteed.
It is time to make a resolve that we want the town to be safe for every one young and old, local and foreigners alike. Zanzibar wants to continue to be a crucible of culture and at the same time
200 maintaining the old saying that “Zanzibar is good, everyone is welcomed” (Zanzibar ni njema atakae aje). Apart from installing CCTV cameras, we therefore urge the authorities and common people to give the issue of security of the state the highest priority.
7.6 Conclusion Much has been reported on the positive achievements in collective rights in Zanzibar in recent years. However much still has to be done to make these more fruitful, meaningful and enjoyable to the people. The government is advised to make changes in laws and policies particularly in the right to development, work, fair remuneration and environment so as to ensure its protection and enjoyment. In spite of the country’s various efforts in promotion of collective rights, none could be said to have satisfied the demand. Following the examination of the functionality of the mechanism for the protection of human rights, it becomes obvious that the system was fundamentally defective and could lead to the difficulties. Also noticeable is the fact that civil and political rights enjoy better protection than socio-economic and cultural rights. This ought not to be so as human rights are interdependent, interconnected and indivisible. Again, the country’s jurisprudence on collective rights is far from being developed.
Despite the achievements, there are still numerous challenges to be addressed. These include, further promotion of transparency and a sense of accountability that needs to be inculcated in all, the need for removing the apparent conflict of interest between personal prioritiesvis a vis those of the society, is seriously needed as currently shown by some members of House of Representative when exercising their powers, and further involvement of local communities in the House of Representative, particularly on gender issues should be ensured.
201 CHAPTER EIGHT SMZ Special Departments and Human Rights
8.0 Introduction Though Zanzibar is part of the United Republic of Tanzania, its Constitution allows for the formation its own forces, which are regarded as special departments of the government.507 These departments have been established under special Acts of the House of Representative. The Special Departments established under that article include, Jeshi la Kujenga Uchumi – JKU (Economic Building Brigade),508 Kikosi Maalum cha Kuzuia Magendo – KMKM (Special Force for Prevention of Smuggling)509 and Chuo cha Mafunzo (Educational Centre for Offenders).510 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 department. Invoking that provision, the President of Zanzibar has established other special departments apart from those established under the Constitution. These departments are Zima Moto (Fire Brigade)511 and Kikosi cha Valantia (Volunteers).
8.1 SMZ Special Departments and Human Rights There are a serious accusations against these five special departments on violation of human rights in Zanzibar. They include allegations of beating of innocent people, especially before and after the elections as these forces are not trained to carry out police work, such as dealing with mobs and are definitely not trained on human rights. It is very common for members of these forces to act in violation of basic human rights. The departments have also been accused of being used in politics by the ruling party and so serve as agents of the ruling party and not the nation.
This can be said as a result of politicization of the military in 1987 of the Party (CCM) in the armed forces. During the single-party political regime, the armed forces constituting Mkoa wa Majeshi comprised the four districts of the Tanzanian People’s Defence Force, the Police, the Prisons Services and the armed units of the Revolutionary Government of Zanzibar (Chuo Cha Mafunzo, JKU and (KMKM). Mkoa wa Majeshi and the four constituent districts had political commissars.512 The Nyalali Commission recommended the dissolution of Mkoa wa Majeshi. Participation in active politics by members of the armed forces was disallowed. Political commissars were required either to remain in the military establishment or return to their former posts.513
507Article 121 of the Constitution of Zanzibar. 508Act No. 6 of 2003. 509Act No. 1 of 2003. 510Act No. 1 of 1980. 511Act No 7 of 1999. 512Nestor, Luanda (2006) ‘a Historical Perspective on Civil-Military Relations: 1964-1990s’, in M, Rupiya; J, Lwehabura and L, Roux Edited Civil-Military Relations in Tanzania: Investigating the Relationships between the State, Security Services and Civil Society, Pretoria: Institute for Security Studies Monograph Series, No. 128, December. 513Jamhuri ya Muungano wa Tanzania, Tume ya Rais ya Mfumo wa Chama kimoja au vyama vingi vya siasa, kitabu cha kwanza: Taarifa na Mapendekezo ya Tume Kuhusu Mfumo ya Siasa Nchini Tanzania.
202 8.2 KMKM (Special Force for Prevention of Smuggling) The KMKM has been established by Act no. 1 of 2003 with the following duties; to ensure the security of the territorial waters of Zanzibar, to protect and defend marine natural resources, to protect and defend the security of the country from spies and saboteurs coming by the sea, to prevent smuggling activities in the country by all means, to protect convoys of Government vessels transporting members of public, national leaders or valuable goods in the event of war or public emergency, to transport troops when called upon to do so, to cooperate with the Tanzania People’s Defence Forces, when mobilized in the defence of the United Republic of Tanzania, to counter crimes committed at sea including illicit drugs trafficking and pirates to undertake search and rescue operations at sea and protection of Marine Environment, to come to the aid of the Government during public emergencies and to undertake any assignment given by the President, taking into consideration the duties, expertise and resources of KMKM.
In December 2015, the marine force had managed to intercept the transportation of 40 sacks of cloves to Kenya.514
8.3 Offenders Educational Centres (Prison Centres) The Educational Centres has been established by Act515 with the main purposes of reforming inmates. Though no serious violation of human rights were reported in 2015, the situation at these centre is not very satisfactory. Reports suggest that there were still a large number of detainees in Zanzibar central prison overburdening the centre’s budget. Some remandees had bailable cases but were denied bail intentionally to punish them.516
In year 2015 the centres continued to provide basic need of prisoners by issuing food, clean water, soaps, and health services and uniforms.517
8.4 The Jeshi la Kujenga Uchumi (JKU) (Economic Building Brigade) ”Jeshi la Kujenga Uchumi (JKU)” was established by Act518 with the purpose of training young men and women in economic, agriculture, small scale industries, fisheries and vocational training. In the early years of its introduction JKU was fully engaged in economic activities. In year 2015, the department has provided productive skills to more than 1,620 youth. Through these youth, more than fifteen tons of rice were produced and given to people in Zanzibar through the ministry responsible for agriculture.519
There are serious accusations though that, the department has been engaged in beating up people and destroying property in Zanzibar especially in the period around general election October 2015.
514Mwananchi 15 December 2015. 515Act No 1, 1980 as Amended by Act 3 of 2007. 516Legal and Human Rights Centre and Zanzibar Legal Services Centre, “Tanzania Human Rights Report 2014. 517Budget speech President Office local government and special department 2015/2016, page 51. 518Act No. 6, 2003. 519Budget speech President Office local government and special department 2015/2016 page 51.
203 8.5 Kikosi cha Zimamoto na Uokozi - KZU - (Fire and Rescue Services) The KZU has been established by Act No 7 1999520 for the purpose of fire fighting activities and rescue services. The brigade has engaged in 355 rescue events and saved properties worth 5.7 billion from destruction. Seven people had their lives saved although, on the other hand, it had failed to rescue the lives of 12 people during one of its rescue missions.521 The failure of the Brigade to perform it functions efficiently is associated with a scarcity in its budget that deteriorates its operation.
8.6 Conclusion The Constitution of Zanzibar has allowed for the establishment of the five departments of government that were established according to the law that introduced their functions and limitations. For many years now, the revolutionary government of Zanzibar lays claims to the legality and constitutionality and existence of the special departments. The implication is that application and operation of the provisions of Section 121(1),(2) and (3) of the Constitution of Zanzibar are said to have violated Article 147(2) of the Constitution of the United Republic of Tanzania. It is challenged that the provision exclusively empowers the United Republic of Tanzania government to establish and maintain forces of various types. However, by the Zanzibar Constitution, raising and maintaining these special department is against the union matter. It is true that the security agencies fall under the ambit of the Union Government and the Zanzibar government. The police, the Tanzania People’s Defence Forces (TPDF) fall under the Union Government, while the KMKM, the Zanzibar Prisons, the National Intelligence Services fall under the Zanzibar government. The report does not dwell in depth on this discussion but just highlights the common claims of the general public that though the main functions of these departments to work on behalf of the government, there are allegations these departments display political bias in the execution of their duties especial during elections.
520Act No. 7, 1999. 521Budget speech President Office local government and special department 2015/2016 page 51.
204 CHAPTER NINE Corruption, Abuse of Power and Human Rights
9.0 Introduction Corruption has always existed in different forms, and is not determined by politics or geography. It exists in rich and poor countries alike, it involves both individual States and international organizations and its costs are borne by the citizens. It affects the proper running of governments, distorts the correct functioning of economic and political institutions and hampers transparency, exploits the human person for selfish interests, renders respect for rules obsolete and is a manifestation of structural sin.522 Corruption is presently one of the major challenges facing the human race.523 The world over, corruption is increasingly being seen as a threat to human existence to the extent that some commentators have called for it to be recognised as a ‘crime against humanity.’524 Indeed, corruption has been identified as the main obstacle to the realisation of good governance, sustainable development and Millennium Development Goals.525 It has monumental effects on the political, economic, social and cultural well-being of societies. In Africa, for instance, the Commission for Africa identified corruption as a central concern which negatively affects governance and development on the continent.526
9.1 Meaning of Corruption The meaning of corruption differs from place to place, country to country and even culture to culture hence corruption takes different forms. The term “corruption” comes from the Latin word corruptio which means “moral decay, wicked behaviour, putridity or rottenness”.527 The concept may have a physical reference, as in “the destruction or spoiling of anything, especially by disintegration or by decomposition with its attendant unwholesomeness and loathsomeness; putrefaction;” or moral significance, as in “moral deterioration or decay… the perversion or destruction of integrity in the discharge of public duties by bribery or favour…”528
Therefore we can say that, corruption is the abuse of public office for private gain or a misuse of entrusted power for private gain.529 It happens when co-operations, organizations, companies or individual profit inappropriately from their position in their operations and thereby cause damage or
522Elizabeth Nduku and John Tenamwenye (2014) Corruption in Africa: A Threat to Justice and Sustainable Peace Globethics.net Focus 14. 523Ibid. 524B IIias (2006): “Corruption as an international crime and crime against humanity: An outline of supplementary criminal justice policies”, Journal of International Criminal Justice, Vol. 4 Issue 3, 466 – 486. 525See Transparency International: Millennium Development Goals are unreachable without commitment to fighting corruption, Berlin, Germany, 14th September 2005. 526Our common interest, Report of the Commission for Africa, 2005, London: Commission for Africa, 28. 527Milovanovic, Milic. Endogenous Corruption in Privatized Companies. Collegium, Budapest, 2001. www.cerge.cuni. cz/pdf/gdn/RRCI_17_paper_01.pdf (accessed on 25th December 2015). 528Oxford English Dictionary, 1978, pp. 1024-1025. 529Danish International Development Agency, at http://www.cisu.dk/Default.aspx?0=23469, (accessed on 23rd January, 2015).
205 loss. This includes giving and receiving bribes, extortion, favouritism and nepotism, embezzlement, fraud, conflict of interest and illegal monetary contributions.530
In the legal field, the term corruption is usually used to group certain criminal acts which correspond to the general notion of an abuse of entrusted power. International conventions against corruption reflect this, since they do not define and criminalise corruption but instead enumerate criminal acts that amount to corruption.531 These acts can take the form of secret inducement for advice; deceiving principal; failure to disclose conflict of interests; improper benefits to trustees for appointment; bid rigging, misappropriation of property and revenue; misappropriation of assets; tax evasion; smuggling, hoarding, anti-trust and syndication, wrongful use of official information, money laundering, drug trafficking, counterfeiting goods and currency, schemes intended to unlawfully manipulate exchange rate, abuse of office, transfer of proceeds of corruption, corruption in election; bribery of foreign officials; sexual favours and abetment.532
9.2 International Instruments in Combating Corruption The United Nations has taken efforts to combat corruption. In its resolution 55/61 of 4th December 2000, the General Assembly recognized that an effective international legal instrument against corruption, independent of the United Nations Convention against Transnational Organized (resolution 55/25 Annex 1) was desirable and decided to establish an ad hoc committee for the negotiation of such an instrument in Vienna at the headquarters of the United Nations Office on Drugs and Crime.533
The Convention approved by the Ad hoc Committee was adopted by the General Assembly by resolution 58/4 of 31st October 2003.534 The General Assembly, in its resolution 57/169 of 18th December 2002, accepted the offer of the Government of Mexico to host a high level signing conference in Merida for the purpose of signing the United Nations Convention against Corruption.535 In accordance with Article 68(1) of resolution 58/4, the United Nations Convention against corruption entered into force on 14th December 2005.536
Several anti-corruption initiatives have seen the light on the African continent, but their effectiveness is yet to be proven. The African Union Convention on Preventing and Combating Corruption (AU Convention) was adopted in Maputo, Mozambique on 11 July 2003 and entered into force around three years later.537 As of 1st July 2012, 45 States have signed the Convention and 31 have ratified it.
530Swedish International Development Agency, at http://www.cisu.dk/Default.aspx?023469, (accessed on 23rd January 2015. 531Corruption and Human Rights: Making the Connection, 2009. International Council on Human Rights Policy. Versoix, Switzerland 532ZLSC, Tanzania Human Rights Report, 2014. 533International Instruments on Corruption – Google Search. 534Ibid. 535Ibid. 536Ibid. 537The AU Convention entered into force on August 5, 2006.
206 The Southern African Development Community Protocol against Corruption (SADC Protocol) was enacted on 14 August 2001 and was enforced four years later. The Protocol aims to align member States’ definitions of corruption in order to facilitate cross-border cooperation. It covers a wide range of corrupt practices, both in the private and public sector, and provides a broad list of preventive measures, which State Parties “undertake” to adopt.538
9.3 Corruption and Human Rights A human rights approach may help to minimize opportunities for corrupt behaviour and make it more likely that those who are corrupt are caught and appropriately sanctioned.539 A human rights approach also focuses attention on people who are particularly at risk, provides a gender perspective, and offers elements of guidance for the design and implementation of anti-corruption policies.540 If corruption is shown to violate human rights, this will influence public attitudes. Corruption is a critical factor that contributes to the violation of rights by facilitating, serving or creating an environment in which the violation takes place.541
The fundamental rights which member states of the International Convention on Economic, Social and Cultural Rights are obligated are likely to be violated when people are constrained to pay bribes to get their children admitted to schools, to access medical services or to gain employment. Grand corruption on the other hand diverts resources which would otherwise have been used towards the realization of these subject to their capacity to incrementally achieve the full realization of among others, the rights to education, health and work. Corruption impairs the realization of these rights in several ways.542
Corruption, no doubt denies people the fundamental rights guaranteed under the international human rights instruments, among them the United Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the African Charter on Human and Peoples’ Rights (ACHPR).543
In addition, the ICPR in Article 26 guarantees equality and equal protection by the law. At the national level domestic law, in most cases the constitution, provides for equality. Corruption however negates these rights. When a person gives a bribe to a public servant and the bribe is accepted, such a person acquires a privileged status vis a vis other persons similarly placed, but have not offered bribes.544 Such a person will receive preferential treatment which has no reasonable or objective justification. Such treatment is plainly discriminative and does not serve any legitimate purpose.545
538Human Rights Report 2014. 539Ibid. 540Kannokkan Anukansai, “Corruption: The Catalyst for Violation of Human Rights”. 541Ibid. 542Ibid. 543Human Rights Report 2014. 544Transparency International Report (2007). 545Ibid.
207 9.3.1 Corruption in Politics Political corruption provides opportunities for violation of human rights. When the outcome of elections is determined by vote buying, the electorate are then deprived of the right to political participation and their rights to vote by universal and equal suffrage is compromised. Corruption in politics results in weak leadership, sycophancy, patronage and undermines democratic ideals. Irregular political appointments and plunder of public resources to finance elections are some of the manifestations of corruption in politics. Low political participation creates conditions for impunity and corruption. The effective exercise of political rights on the other hand counterbalances the use of state power and abuse, including corruption.
9.4 Laws Combating Corruption in Zanzibar The legislation that combats corruption is the Zanzibar Anti-Corruption and Economic Crimes Act, 2012.546 Prior to this, the Constitution of Zanzibar, 1984, had introduced offences related to corruption and abuse of office against any person holding public office.547
According to the ZACECA, the functions of the Anti-Corruption Institutions include investigation of the complaints concerning corrupt practices, breach of ethics or economic crimes against any public or private body.
In addition, ZACECA advises any public or private entity on corruption occurrence issues and assists any law enforcement agency of the government in the investigation of the corruption or economic crime offences, examines the practices and procedures of public or private bodies in order to facilitate discovery of corruption practices and secure mechanisms for reversing the situation and educate the public on the dangers of corruption and economic crimes.548
9.5 Institutional Framework According to the laws of Zanzibar, anti-corruption institutions are Zanzibar Anti-Corruption and Economic Crimes Authority (ZAECA), the office of Controller and Auditor General (CAG), the Office of DPP, the Ministry of Justice and Constitutional Affairs, the Judiciary, the Police, the KMKM and mechanisms under the Money Laundering Act.
The President of Zanzibar has recently appointed the Director General of Zanzibar Anti-Corruption Authority. Unlike Mainland Tanzania, ZAECA has no prosecutorial powers and the right to authorize prosecution is vested in the Office of the DPP. At the same time, the Commission is government funded so the budget for implementation of activities has been problematic.549
9.6 Current Situation on Corruption in Zanzibar The current situation on corruption in Zanzibar is quite disheartening. The fight against corruption has not been taken as a serious matter. The situation indicates that corruption in Zanzibar stretches
546Act No. 1, 2012. 547Section 10 (b) of the 1984 Zanzibar Constitution. 548Human Rights report 2014. 549Legal and Human Rights Centre and Zanzibar Legal Services Centre, Tanzania Human Rights Report, 2014.
208 across different dimensions including politics, sports, judiciary, abuse of government money and abuse of power. In 2015, Zanzibar the Anti-Corruption and Economic Crimes Authority received 56 complaints, 37 of which were under investigation.
9.6.1 Corruption and Politics In 2015, we witnessed a huge number of cases involving political corruption in Zanzibar. It was reported that during the pre-election period, when politicians seek to be nominated by their parties to contest for general election most of them used corruption to curry favour of the voters. According to ZAECA most of CCM members used bribes to get voted. They were found distributing money, caps and Khangas. The Director of ZAECA has mentioned some of the cases of political corruption as follows: - one of the contestants for the Magomeni Parliamentary Seat was caught distributing money, caps and khangas to forty CCM branch secretaries at Magomeni Constituency. A contestant of Paje Constituency was caught distributing TZS 5,000 to each CCM members of the Paje constituency. Another contestant for Mpendae Parliamentary Seat was found distributing TZS 5,000 to forty members of CCM at Msolopa Madrassa and TZS 10,000 for leaders of ten houses (mabalozi). The contestant also distributed jerseys for Kilimani City and Kilimani Star football teams of Mpendae Constituency. At Malindi Constituency a contestant for the Parliamentary seat was caught givimg TZS 5,000 to CCM members of Malindi Constituency while the Tumbatu contestant for the Parliamentary Seat was caught distributing electricity poles.550
9.6.2 Corruption in Sports Corruption in sports did not affect the World Federation of Football only but also here in Zanzibar there was a case of corruption. This case involved the Secretary of Zanzibar Football Association (ZFA) in Urban District Yahya Juma Ali and referees Mzee Nuhu Ali, Abdulrahman Mahfoudh and Mohammed Ali Mohammed who were alleged to have received a bribe of TZS 110,000 in order to favour a football team of the Institute of Public Administration during Zanzibar Higher Learning competition games.551
9.6.3 Corruption in the Administration of Justice Though there are no reported cases of corruption in judiciary, we believe that Judiciary in Zanzibar is not free from corruption.552 Corruption in court may be perceived or actual: a delayed ruling, or hearing a case in closed chambers, for example, may or may not be an indicator of corruption. A lost or misplaced file may also generate such perception. A dismissed application may be because of unmet requirements, rules broken, or procedures not followed, but may be perceived as a disguise of corruption.553
9.6.4 Abuse of Government Money and Embezzlement Abuse of government money in Zanzibar has become a chronic problem in the Civil Service. Many reports from the Auditor General have revealed financial irregularities in all ministries. The
550http://www.zanzinews.com/2015/08/rushwa-tupu-ccm-majimboni-visiwani.html, (assessed on 25th October 2015). 551http://www.zaeca.go.tz/?crr=about&cr=bcgd accessed on 25th December 2015 552Human Right Report 2013. 553Warioba Commission on Corruption.
209 irregularities included abuse of petty cash, unauthorized or wasteful expenditures, overpayments, and revenue that had not been properly accounted for. Government controls over public funds and property were often inadequate. Some contracts were sole-sourced, in violation of tender procedures.554 This indicates that many government entities involve themselves in malpractices.555
9.6.5 Abuse of Power A number of government officials have been linked to the abuse of power including in the special departments of SMZ. Special Departments of SMZ are alleged to have been leading in the abuse of power for the interests of the executive.
9.7 Conclusion In this chapter we have observed that people do not take the question of corruption, abuse of power and human rights seriously. There is need for the executive and other people in general to change their mind-set and team up to improve good governance in Zanzibar as part of democratic demands. However, there is evidence from various institutions and individuals who are well aware of the impact of corruption and abuse of powers and who are in the front line to campaign and fight against it. The interdependence of states, globalization of business, expansion of the scope and authority of multilateral organizations, and a rapid increase of the number of nongovernmental organizations (NGOs) have heightened concerns about the way power is used and abused on the world stage. Controversy about globalization pivots around the twin issues of accountability and democracy. ZLSC is of the opinion that if governance above the level of the nation-state is to be legitimate in a democratic era, mechanisms for appropriate accountability need to be institutionalized.
554Ripoti ya Ukaguzi wa Hesabu kwa Mawizara,Mashirika na Taasisi za Serikali ya Mapinduzi ya Zanzibar Kwa Mwaka wa Fedha 2012/2013. 555Human Right Report 2013.
210 CHAPTER TEN Domestic Initiative in Human Rights Protection
10.0 Introduction Pursuant to the International and Regional instruments of human rights, Tanzania has adopted measures to show respect for and the protection of human rights. In this context, there were measures were taken by Tanzania as a whole (Zanzibar included) and there were measures that were taken by Zanzibar as semi-autonomous state and not as part of the United Republic of Tanzania. This Chapter focuses on Zanzibar’s efforts to respect, protect and promote human rights.
10.1 Incorporation of Bill of Rights in the Constitution of Zanzibar, 1984 In the first place, Zanzibar had its first Constitution of 1963 that came in force on December 10, 1963. This supreme law was short-lived and survived hardly a month before the January 12th Revolution of 1964 when it was abolished. It had incorporated a Bill of Rights.
Zanzibar existed without a Constitution for 15 years and there was nothing about the Bill of Rights. Zanzibar was ruled by the Presidential Decrees through the Revolutionary Council. The first-post revolution constitution of 1979 contained no Bill of Rights. The Constitution of Zanzibar of 1984 incorporated a Bill of Rights. The Constitution devotes Chapter Three as Protection of Fundamental Rights and Individual Freedoms. All fundamental rights are covered in this Chapter.
Sadly, Chapter Three of the Constitution of Zanzibar of 1984 had a shaky experience. The Tenth Amendment of the Constitution of Zanzibar of 1984 that was carried out in 2010 had two main issues that directly touched the interest of Bill of Rights. Firstly, Section 24 (3) had been amended and that the Court of Appeal of Tanzania has no appellate jurisdiction in relation to the Bill of Rights. The High Court of Zanzibar is final and conclusive.
The research team is not sure whether or not the Court of Appeal of Tanzania or the Union government was consulted before the amendment and whether there was such a law binding Zanzibar to consult the Union authorities in the amendment of the Constitution of Zanzibar.
Prior to the amendment, the Section 24 (3) read that:
The application against the decision of the High Court in the suit instituted against the provisions of this Chapter of the Constitution shall be heard by the High Court before three judges without including the judge who has decided the question on the first occasion. Those three judges shall be appointed by the Chief Justice.
After the amendment, the Section 24 (3) reads that:
Appeal against the decision of the High Court in the suit instituted against the provisions of this Chapter of the Constitution shall be heard by the High Court before three judges without including the judge who has decided the question in the first occasion. Those three judges shall be appointed by the Chief Justice and their decision shall be final and
211 conclusive and shall not be appealable to the Court of Appeal of Tanzania. (This is not an official translation).556
Secondly, the Tenth Constitutional Amendment had entrenched a new Section 80A which among other things said that the House of Representatives shall have no power to amend, inter alia; all provisions of Chapter Three (Bill of Rights) unless that amendment(s) is first accepted by the people through a referendum.
10.2 The Commission for Human Rights and Good Governance The Commission for Human Rights and Good Governance (CHRAGG) is an independent government department, established as the national focal point institution for the promotion and protection of human rights and duties as well as good governance in Tanzania.557 CHRAGG was established under Article 129 (1) of the Constitution of the United Republic of Tanzania, 1977 as amended by Act No. 3 of 2000.
The Commission became operational on the 1st July 2001558 after the coming into force of the Commission the Human Rights and Good Governance Act No7 of 2001 as amended by Act No 16 of 2001 and Government Notice No. 311 of 8th June 2001. The Commission was officially inaugurated in March 2002 following the appointment of Commissioners by the President of the United Republic of Tanzania.559
CHRAGG plays the dual role of an ombudsman and a human rights commission.560 Although this legislation authorized it to operate in both the mainland and Zanzibar, Zanzibar authorities prevented it from doing so until a parliamentary amendment was enacted.551 In May 2006, the Union government authorities and Zanzibar officials agreed that the quasi-governmental CHRAGG would be permitted to operate in Zanzibar.562 It is understood that human rights falls under the list of the union matters. CHRAGG extended its function to Zanzibar since 2007 and recently it opened its office in Pemba Island.
On 8th January, 2015, the President of the United Republic of Tanzania, Dr. Jakaya Mrisho Kikwete appointed Hon. Bahame Tom Mukirya Nyanduga the new Chairman of the Tanzania Commission for Human Rights and Good Governance (CHRAGG). The President also appointed Hon. Iddi Ramadhani Mapuri as the Vice-Chairman and four other officials as Commissioners. They are
556For avoidance of doubt, the Swahili version, which is the controlling version -- Section 24 (3) reads that: Rufaa dhidi ya uamuzi wa Mahkama Kuu katika shauri lililofunguliwa dhidi ya masharti ya Sura hii ya Katiba yatasikilizwa na Mahkama Kuu mbele ya Majaji watatu bila ya kumjumisha Jaji aliyeamua shauri hilo mara ya kwanza. Majaji hao watatu watateuliwa na Jaji Mkuu na uamuzi wao utakuwa ni wa mwisho na hautokatiwa rufaa kwenye Mahkama ya Rufaa ya Tanzania. 557http://chragg.go.tz/ 558Ibid.. 559Ibid. 560EISA Tanzania Commission. 561Ibid. 562Ibid.
212 Hon. Mohamed Khamis Hamad, Hon. Dr. Kevin Mandopi, Hon. Rehema Msabila Ntimizi and Hon. Salma Ali Hassan. Their appointments started effectively from January 6, 2015, according to a statement issued by the Directorate of Presidential Communication.
The newly appointed CHRAGG Chairman, Hon. Bahame Tom Nyanduga (centre), poses for a group photograph with his team. On his left are: The Commission’s Vice-Chairman, Hon. Iddi Ramadhani Mapuri and Hon. Commissioner Rehema Msabila Ntimizi. And on his right are: Hon. Commissioner Kevin Mandopi and Hon. Commissioner Salma Ali Hassan. Standing (L-R) are: Hon. Commissioner Mohamed Khamis Hamad, Hon. Commissioner Ali Hassan Rajab and CHRAGG’s Executive Secretary, Mrs. Mary Massay.
10.2.1 Independence of the Commission The independence of CHRAGG remains questionable. The public perception is that the commission should operate independently without government interference.563 However, several members of the public argue that the commission has weaknesses, including the violation of the Paris principles on the independence of national human rights institutions. Firstly, CHRAGG is barred from investigating the President. Secondly, the President can direct the commission to discontinue an investigation, although he must provide a reason, “if he considers that there is a real and substantial risk that the investigation would prejudice matters of national defence or security”. However, the President has so far, not interfered with the work of the commission.
Thirdly, the commission has not yet developed its capacity to serve the whole country.564 There is a need to ensure closer coordination between the commission’s operations and other related organs, such as the Good Governance Coordination Unit in the President’s office, the Prevention of Corruption Bureau, the police, and civil society (Bureau of Democracy, Human Rights and Labour 2007). 563Ibid. 564Ibid.
213 Generally, the agency did not respond to citizen complaints within a reasonable period of time, and the response period depended on the importance and nature of the case and the status of the complaint.565 The law does not spell out whether reports of the agency should be accessible but in practice they are reasonably accessible.566 The reports have to be tabled before the National Assembly before the public can access them.567
10.2.2 Performance of the Commission This report concentrates on the performance of the Commission for Zanzibar Office only. The Commission’s performance in Tanzania Mainland has been covered in the Tanzania Mainland report.
The performance of the Commission in Zanzibar is not satisfactory. There have been several issues reported to be behind incompetency on the Commission in Zanzibar. The budget allocated to the Zanzibar Office is extremely insufficient to perform the activities.568 Further a shortage of manpower adds to the problem of the CHRAGG Zanzibar office. It was reported that the small number of the staff are forced to research and document, run the Human rights Department, manage the Good Governance Department, offer legal services and to raise public awareness.
The Commission has drawn a list of recommendations for the improvement of human rights in Zanzibar. Since land disputes have increased as a result of non-adherence to the laid down procedure by some land officers, lack of transparency, some government officials ignorance of the laws and procedure, the recommendations put forward by the Commission include the need for the Revolutionary Government of Zanzibar to take appropriate actions to iron out corrupt practices in the Isles Judiciary, delay of cases and issuance of receipts to all those who had paid fines.
In addition to the Commission has recommended that the government through the Ministry of Health popularize the Health Policy, the Education Policy and that stakeholders should cooperate with the Commission.
10.3 Law Review Commission of Zanzibar The Law Review Commission of Zanzibar (LRCZ) was established as the result of the Msekwa Commission which recommended among other things the establishment of a permanent law review commission to conduct a wide range review of the legal system and recommend changes in the administration of justice.569
565Ibid. 566Ibid. 567Ibid. 568CHRAGG officers in Zanzibar Office said in an interview with the research team. 569Zero Draft Report, Capacity and Needs Assessment of Legal Sector Actors in Zanzibar funded by the United Nations Development Programme, Tanzania, page 36
214 Taking advantage of the Msekwa Commission’s recommendations, the government enacted the LRCZ of Zanzibar Act No. 16 of 1986. The Law Review Commission, Zanzibar (LRCZ) was for a long time, neglected, underfunded and with inadequate staff.
In the recent past, the government has reactivated the LRCZ. It is the first time since the commission’s establishment that it has five part time commissioners to work closely with the chairman and the secretary. The LRCZ is now performing though at a slow pace. It is still faced with a number of challenges.570 including underfunding, lack of a permanent office, insufficient working facilities, lack of transport and an organizational structure that is not fully developed.571
To date, the Law Review Commission has completed reviewing some out-dated laws in Zanzibar. Until 2013 four different laws had been reviewed including the Law of Evidence No. 5 of 1917, Law of Liquor No. 149, of 1922, Law of animal No. 11 1999, and Law of the law review No. 16 1986. All reviewed laws are with Principal Secretaries or Ministers awaiting approval.
Meanwhile, 16 laws have been enacted by the House of Representatives of Zanzibar since 2013572 . Enactment of laws in Zanzibar has been vested in the House of Representative,573 where the Constitution of Zanzibar, 184 reads as:
Nguvu za kutunga Sheria kwa mambo yote yasiyokuwa ya Muungano katika Zanzibar yatakuwa mikononi mwa Baraza la Wawakilishi. [Powers to enact laws for non-union matters in Zanzibar shall be in the hands of the House of Representatives.]
Among the enacted laws are; the laws to establish Zanzibar Ports Authority No. 3, 2013, law to Review Marine Transportation law No.2, 2013, the law to Establish Zanzibar Broadcasting Corporation No. 4, 2013, the law to establish the Office of the Attorney General No. 6, 2013, the law to establish Youth Council No. 15, 2013, the Law to establish Business Tribunal No. 9, 2013 and others.
10.4 The Office of the Director of Public Prosecution The report of the Reforms of Legal Sector prepared by Judge Mark Bomani and the 8th Constitutional Amendment resulted in the establishment of the Office of Director of Public Prosecutions (DPP) in Zanzibar. The DPP has the constitutional powers and will hold the office for a term of five years. The DPP has the power to decide on prosecution matters and shall not be interfered with by any person or organ. The DPP has taken over all criminal cases in the High Court, Regional Courts and some District Courts. There still remain eight districts in Unguja and Pemba where the DPP has yet to take over the prosecution services. It is understood that in the absence of the DPP, the police take charge of prosecution services.
570Ibid, 38. 571Ibid. 572Shahidi, Jarida la Ofisi ya Mkurugenzi wa Mashtaka, Toleo No. 011, October December 2013, page 4. 573Section 78 (1) Zanzibar Constitution, 1984.
215 The DPP’s office is faced with several challenges. The office is underfunded and cannot meet the financial demands of criminal justice system. The budget allocation is extremely insufficient to meet the demands.
Lack of staff to handle criminal cases is another problem facing the office of the DPP. Numerous requests have been made to the Central Establishment to allow the DPP to recruit more personnel but it appears that the government seems reluctant to heed to the demands of the DPP thus affecting prosecution services.
The general awareness of the public on the criminal justice system is low. Production of evidence has been paralyzed. The environment for evidence production is hostile. Witnesses are treated like accused persons and there is no witness protection.
10.5 Police Force and Human Rights in Zanzibar The police are essentially an armed and usually uniformed contingent of people who operate one of the repressive apparatuses of the state. Despite these “uncivil” characteristics, the police force is part of the civil service in Tanzania. In any country in the contemporary world, the state is the managing institution for the rulers. It has both ideological and repressive functions. Within its territory, the state has to maintain what is called “law and order” according to the outlook of the powers that be. All forms of violence are formally monopolized by the state, and its commands, generally known as laws, are backed by threats of violence.
The immediate genealogy of the Tanzanian police force is in the country’s colonial history. The German colonial power introduced the force in (the then) Tanganyika in the 1890s. The notorious “Askari” served both the functions of soldier and policeman. The Germans did not establish a too formalized a force. After the defeat of the Germans in the (so-called) First World War, a formal police force was established by the British colonial administration in Tanganyika. Interestingly, the nucleus of the first thirty-one troopers in the force came from the South African Mounted Rifles under the command of Major S.T. Davies, who had been seconded from the South African Armed Forces.This contingent of troopers was stationed at Wilhemstal (now known as Lushoto in Tanga Region of Tanzania), where it is recorded that the Germans had carried out massive land alienation. The presence of the force in the location was presumably intended to have a steadying effect on the dispossessed peasants.574
At the time of independence, Tanzania inherited the police force as it was and removed only the racial bias in its content. The motorized company of the force, then styled the Field Force Unit (F.F.U.), was retained. In the account of Dr. Tenga referred to above, this feature is illustrated as utterly paradoxical, given the fact that F.F.U. had been used by the colonial administration mainly against the organizational potential of the social classes that supported the nationalist movement. The nationalist leaders themselves are known to have suffered from the attentions of the motorized company of the force. It can be argued that the unit has been retained by the new leadership to
574Kapinga, Wilbert B.L. (1990) “The Police Force and Human Rights in Tanzania,” Third World Legal Studies: Vol. 9, Article 2. Available at: http://scholar.valpo.edu/twls/vol9/iss1/2
216 serve a similar repression, of the so-called recalcitrant elements or against any possible political opposition or civil protest.575
It is agreed that the police have myriad powers under law. These include the powers of arrest, search, restraint and the power to investigate the commission of crime. In Tanzania, the law which vests these powers on the police is the Criminal Procedure Act. While investigating crimes, the police are empowered under the Act to proceed to any place where they have reasonable suspicion that a crime has been committed, and then to conduct investigations. It should be understood however that, although the state enacts the law, state institutions themselves are obliged to comply with the law. A state which acts in disregard of this invites social unrest and breaches of peace. While the duty of the police force is to ensure that citizens comply with the law in discharging their duties, the police themselves have to abide by the law.576
Therefore, the Police Force becomes an important institution for protection of the fundamental human rights. It carries out a very crucial responsibility to the society which extends to personal and property protection. The Police Force is responsible for the execution of the law and maintenance of social order. But this can be realized through a good legal system, a system that embraces the fundamental human rights. The legal system has to deter abuse of the fundamental rights. Statutory or institutional approach plays a significant role in checking abuse of the fundamental rights. In this chapter various institutions responsible with human rights and other legal precepts are covered. It is claimed that the Police are responsible for a number of abuses of human rights. Though there has been some improvement in the respect of the human rights by the Police Force, there were common incidents in 2015 connected to general elections including the procedures and formalities of police approval for all assemblies and critical political demonstrations.
10.6 Zanzibar Human Rights Guidelines (Muongozo wa Haki za Binadamu Zanzibar) The Ministry of Justice and Constitutional Affairs had distributed Human Rights Guidelines in an effort to raise the public awareness on human rights issues. Informed report indicates that there has been a follow up of the Guidelines to get feedback from the people. There is a need for monitoring to see the level of understanding of the people and practice of human rights. It is almost four years since the distribution of the Guidelines but there has been no updating of information contained therein.
10.7 Human Rights Day Human Rights Day is observed every year on 10 December. It marks the day when, in 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. In 1950, the Assembly passed resolution 423 (V), inviting all States and interested organizations to observe 10th December of each year as Human Rights Day. The 2015 Human Rights Day was devoted to the launch of a year-long campaign for the 50th anniversary of the two International Covenants on Human Rights: the International Covenant on Economic, Social and Cultural Rights and the
575Ibid. 576Ibid.
217 International Covenant on Civil and Political Rights, which were adopted by the United Nations General Assembly on 16th December, 1966. The two Covenants, together with the Universal Declaration of Human Rights, form the International Bill of Human Rights, setting out the civil, political, cultural, economic, and social rights that are the birth right of all human beings.
The celebration of human rights day for the year 2015 had the slogan “Our Rights. Our Freedoms, Always.” and aimed at promoting and raising awareness of the two Covenants on their 50th anniversary. The year-long campaign revolves around the theme of rights and freedoms; freedom of speech, freedom of worship, freedom from want, and freedom from fear, which underpin the International Bill of Human rights, are as relevant today as they were when the Covenants were adopted 50 years ago.
Therefore, on 10th December, 2015, ZLSC joined the rest of the world in commemorating Human Rights Day at Eacrotanal Hall in Unguja with the objective of supporting the UN declaration on human rights, and promote equality and dignity by respecting each other’s rights. A total of 130 participants attended that event (66 female and 64 male).
The guest of honour, the Director of Public Prosecutions, Mr. Ibrahim Mzee in a picture with ZLSC Director, Board members, Chairman of the Law Review Commission, and other participants during the human rights day organized in Unguja
Human Rights Day was also celebrated by the Centre’s office in Pemba on December 10th at the conference hall of Madungu primary school. The celebration started with a procession led by a Youth band from Chake Chake, Pemba. The procession started from the Centre’s office towards the conference hall and was received by the Guest of honour, Mr. Suleiman Hamad. A total of 100 participants attended the Human Rights Day event in Pemba (68 male and 32 female). These participants included community members, government officials, reporters and facilitators from ZLSC. The guest of honour, Mr. Suleiman Hamad from the Commission on Human Rights and Good Governance Pemba office, gave a brief history of human rights and explained the challenges of implementing human rights in Zanzibar. The event included discussion on topics including the meaning and history of human rights, human rights in both the Tanzanian and Zanzibar Constitution and the tools used to implement human rights.
218 Band leading the Human Rights Day’s march during Human Rights Day in Pemba.
10.8 Conclusion The road to domestic initiative in Human Rights Protection is still a very bumpy one. There are administrative and technical hitches frustrating the initiative in human rights protection. In fact, the human rights protection initiatives need the government’s commitment and political will. What the government promises does not correspond to the reality. A lot of good promises are made while implementation leaves much to be desired.
219 SELECTED BIBLIOGRAPHY BOOKS Alfredsson, Gundmur, Declaration of Human Rights: A Common Standard of Achievement, 1999. Arambulo, K., Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects (1999). Asherry Magalla & Emmanuel Robert, Independence of Judiciary and Administration of Justice, Tumaini University, 2012. Bakar, A. Khamis, Zanzibar and the Union Question, 2006. Bhacker, M. Reda, (2003), Trade and Empire in Muscat and Zanzibar: Roots of British Domination, New Fetter Lane, London: Routledge, First published in 1994, this edition by Taylor & Francis e-Library. Chul, Kim, C., Missiological Understanding of the Swahili Muslim in Zanzibar. (M.A Thesis, Fuller theological Seminary, 1995). Doebber, Curtis, Introduction to International Human Rights Law, 2006. Haji, Moh’d Makame, Zanzibar Local Governments and Sheha: A Historical Retrospect, (Zanzibar: University College Printing Press, 2014). Hartmann, J. (1994): The State of Tanzania: Yesterday, Today and Tomorrow In: Himmelstrand et al (Eds.): African Perspectives on Development – Controversies, Dilemmas and Openings, James Curry London. Hassan, Iddi Pandu, Uzanzibari na Ukaazi, Msingi wake Kikatiba na Kisheria: Mtazamo wa Ndani, Zanzibar Tuitakayo: Ujenzi Wa Uvumilivu Wa Kisiasa, Mpango wa Utafiti na Elimu ya Demokrasia Tanzania (REDET) 2011. Ingrams, W.H., Zanzibar its History and its People, Frank Cass & Company LTD, , Abingdon, United Kingdom, 1931. Lofchie, Michael F. (1965), Zanzibar Background To Revolution, Princeton, New Jersey: Princeton University Press, Mahama, Callistus, Local Government and Traditional Authorities in Ghana: Towards a More Productive Relationship, Commonwealth Journal of Local Governance, Issue No. 4, November 2009. Martin, Esmond B., (1978), Zanzibar Traditions and Revolution, London: Hamish Hamilton. Meleisea, M., The Making of Modern Samoa: Traditional authority and Colonial Administration in the history of Western Samoa, Institute of Pacific Studies, University of the South Pacific, Suva, Fiji, 1987. Middleton, J. and Campbell, J., Zanzibar, Its Society and its Polities, Oxford University Press, 1965. Moshi, H., et al (ed.), Zanzibar: The Challenges of Globalization and Poverty Reduction, Economic Policy Workshops, Ministry of Finance and Economic Affairs and President’s Economic Policy Advisory Unit, 2004. Nicholls, C.S., The Swahili Coast Politics, Diplomacy and Trade on the East African Littoral, 1798 – 1856, London: Allen & Unwin, 1971. Nyhart, J.D., (1964), The Role of Law In Economic Development, Massachusetts Institute Of Technology 50 Memorial Drive, Cambridge 39. Pearce, Francis Barrow, OMG, EP Dutton and Company, Zanzibar: the Island Metropolis of East Africa, 1920.
220 Peter, Chris Maina & Othman, Haroub, 2003, Perspective on Legal Aid and Access to Justice in Zanzibar, Zanzibar Legal Services Centre Series 10th Anniversary Publication, Zanzibar, Zanzibar Legal Services Centre. Peter, Chris Maina, the Protectors Human Rights Commission and Accountability in East Africa, (Fountain Publishers Kampala), 2008. Pomeroy, John Norton, An Introduction To The Constitutional Law, Boston And New York: the Kimberside Press, 1886. Uki, A and Hassan, F., Baseline Survey for Monitoring of the Paralegal Project: A Report of the Needs Assessment Study, Zanzibar Legal Services Centre, 2011. Zanzibar Legal Services Centre, the Paralegal Manual, Zanzibar: ZLSC, 2009.
ARTICLES AND CHAPTERS Abrahams, Sidney, ‘Conflict of Law in Zanzibar, Journal of Comparative Legislation and International Law, Vol. 3 No. 4, 1941. Anwuli Irene Ofuani The right to economic empowerment of persons with disabilities in Nigeria: How enabled? AHRLJ, 2011 – 2012. Arambulo, K., “Giving meaning to Economic, Social and Cultural rights: A Continuing Struggle” Vol. 3, Human Rights and Human Welfare, 2003. Bauer, Joanne (2004), “Why Cultural Rights Now”? Human Rights Initiative Program, a Paper by Elisa Stamatopoulou. Christopher W. Schmidt, The Civil Rights-Civil Liberties Divide, Stanford Journal of Civil Rights and Civil Liberties, Vol. 12, 2016 IIias, B., (2006): “Corruption as an international crime and crime against humanity: An outline of supplementary criminal justice policies”, Journal of International Criminal Justice, Vol. 4 Issue 3, 466 – 486. Jones, Peter, “Human Rights, Group Rights, and Peoples’ Rights,” Human Rights Quarterly, Vol. 21, No. 1 (Feb., 1999), The Johns Hopkins University Press Keller, L.M., ‘‘the Indivisibility of Economic and Political Rights’’ (July 2001) (1:3) Human Rights and Human Welfare 10. Makuvaza, Ngoni and Ruth B. Gora, What is happening to the ‘noble’ profession? Concerns about and threats to the teaching profession in high school in Zimbabwe – The Way forward International J. Soc. Sci. & Education 2014 Vol.4 Issue 2. Maoulid, Salma, Zanzibar GBV Advocacy, Important Lessons for Future Legal Reform Strategies, 2009. Peter Jones, “Human Rights, Group Rights, and Peoples’ Rights,” Human Rights Quarterly, Vol. 21, No. 1 (Feb., 1999), The Johns Hopkins University Press, pp. 80 – 107, page 82. Pond, D., Interpretation of Legal History, 156 quoted in G. W. Paton, A Test of Jurisprudence, 4th edition, Oxford University Press, 2007. Robinson M ‘‘ Protecting Human Rights: the Role and Responsibilities of the Independent Bar’’ being a keynote address delivered at the inaugural World Conference of Barristers and Advocates, Edinburgh 28 June 2002. Sastry, T.S.N., Human Rights of Vulnerable & Disadvantaged Groups, Course Book – II, University of Pune, Ganeshkhind Pune, 201, page 11- 12.
221 Sidney Abrahams, “The Conflict of Laws in Zanzibar” 3rd Series, 23 Journal of Comparative Legislation and International Law 4, (1941). Stark B “Urban Despair, and Nietzsche’s Eternal Return: From the Municipal Rhetoric of Economic Justice to International law Economic Rights” (1995) 28 Vand. J. transnat’IL 185, 220. Stephens, J.E.R., “The Laws of Zanzibar” Vol. 13, No. 3 Journal of the Society of Comparative Legislation New Series, (1913). Uki, Ali, The State of Constitutionalism in Zanzibar, 2010 in Morris Odhiambo, Annual State of Constitutionalism in East Africa 2010, (Kampala: Fountain Publishers, 2012).
REPORTS Household Budget Survey 2009/2010 – final report May 2012 – Office of Chief Government Statistician. Legal and Human Rights Centre and Zanzibar Legal Services Centre, Tanzania Human Rights Report, 2012. Legal and Human Rights Centre and Zanzibar Legal Services Centre, Tanzania Human Rights Report, 2013. Legal and Human Rights Centre and Zanzibar Legal Services Centre, Tanzania Human Rights Report, 2014. Revolutionary Government Of Zanzibar, The 7th And 8th Periodic Reports On The Implementation Of The Convention On The Elimination Of Discrimination Against Women (CEDAW) 2008 – 2014 Sustainable Management of Land and Environments (SMOLE) in its final Mid Term Review (MTR) report of September, 2012 highlights the problems facing coastal areas from climatic change. ZAC Annual HIV &AIDS Monitoring and Evaluation Report, 2008
SPEECHES Budget speech Ministry of Health 2015/2016. Budget Speech of 2015/2016 of Minister of Social Welfare, Children and Women Development. Budget speech of Ministry of Lands, Housing, Water and Energy 2015/2016. Budget Speech of the Office of the First Vice President 2015/2016. Budget Speech of the Office of the First Vice President 2015/2016. Budget speech President Office local government and special department 2015/2016. Budget Speech the Ministry of Empowerment Youth Development Women and Children 2015/2016. Hotuba ya Waziri wa Uwezeshaji, Ustawi wa Jamii, Vijana na Maendeleo ya Wanawake na Watoto kuhusu Taarifa ya Utekelezaji wa Haki na Ustawi wa Watoto kwa mwaka 2013/2014. Hotuba ya Waziri wa Uwezeshaji, Ustawi wa Jamii, Vijana na Maendeleo ya Wanawake na Watoto kuhusu Taarifa ya Utekelezaji wa Haki na Ustawi wa Watoto kwa mwaka 2013/2014. Speech of the Minister of President Office, State House a Good Governance on commemorate Population Day 2014. Speech of the Minister of State in the Office of President Labour and Public Service, Haroun Ali Suleiman about estimates of revenue and expenditure for the financial year 2014/2015 In the House of Representatives - Zanzibar, May 2014. Speech of the Zanzibar President in commemoration of 51 years Anniversary of Zanzibar Revolution.
222 WEBSITES http://www.a4id.org/sites/default/files/user/[A4ID] %20Right%20to%20Water.pdf http://www.cisu.dk/Default.aspx?023469 www.acclawyers.org/resouces/tanzania www.artarena.co.za/zanzibar/history.html www.cerge.cuni.cz/pdf/gdn/RRCI_17_paper_01.pdf www.cisu.dk/Default.aspx?0=23469 www.dailynews.co.tz/index.php/features/40890-how-zanzibar-is-overcoming-water-scarcity www.hrea.org/index.php?doc_id=406#instruments www.ibn-tv.com/2011/12/maalim-seif-says-zanzibars-hivaids-prevalence-rising www.ikuluzanzibar.go.tz/publications/view/hutuba-ya-rais-wa-zanzibar-na-mblm-dk.ali-shein- katika-sherehe-za-maadhimis www.ippmedia.com/frontend/index.php?l=75998 www.irct.org/what-is-torture/defining-torture.aspx www.moez.go.tz/?cq=syst&sys=9 www.mwananchi.co.tz/habari/Kitaifa/Wanasheria-wapinga-kufutwa-kesi-Z-bar/- /1597296/2374704/-/11yvlmsz/-/index.html www.nbs.go.tz/sensa/pdf www.ohchr.org/EN/ProfessionInterest/Pages/InternationalLaw.aspx www.ohioswallow.com/extras/9780896804890_chapter_01_and_toc.pdf www.thecitizen.co.tz/News/Zanzibaris-cry-foul-over-boat-case-/-/1840392/2371588/-/13k52tcz/-/ index.html www.thecitizen.co.tz/oped/-/1840568/2767998/-/item/0/-/5qhklm/-/index.html www.thecitizen.co.tz/oped/Ferry-disaster-case-verdict-calls-for-judicial-system-shake- up/-/1840568/2382304/-/ehv40x/-/index.html www.un.org/en/documents/udhr/index.shtr www.un.org/en/documents/udhr/index.shtr www.un.org/waterforlifedecade/pdf/human _right_to_water_and_sanitation_milestones.pdf www.unodc.org/pdf/compendium/compen www.wds.worldbank.org/external/default/WDSContentServer/ WDSP/IB/2004/10/18/000090341 _20041018135134/Rendered/PDF/302290PAPER0Human0right0to0H20.pdf www.zanzibarhistory.org/zanzibar_christians.htm www.zanzinet.org/files/legality_union.pdf www.zanzinet.org/zanzibar/history/ www.zanzinet.org/zanzibar/people/people.html www.zanzinews.com/2015/08/rushwa-tupu-ccm-majimboni-visiwani.html
223