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HUMAN RIGHTS in TANZANIA the Role of the Judiciary

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HUMAN RIGHTS in TANZANIA the Role of the Judiciary HUMAN RIGHTS IN TANZANIA The Role of the Judiciary John Eudes Ruhangisa Thesis Submitted to the University of London for the degree of Doctor of Philosophy 1998 Law Department School of Oriental and African Studies ProQuest Number: 10672794 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 10672794 Published by ProQuest LLC(2017). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 Abstract This thesis examines the performance of the Tanzanian judiciary in enforcing human rights both during the colonial period and after independence. The study focuses on the period after the enshrinement of the Bill of Rights in the Constitution, in 1985. The aim of this work is to appraise both the present attitude of the judiciary and the reaction of the government to court decisions relating to human rights issues. In order to achieve this I conducted a six months field study in Tanzania during which I examined more than a hundred cases (the majority unreported) and interviewed a large number of people involved with the administration of justice. The conclusion we draw from this research is that the government's reluctance to amend its laws to bring them into conformity with the Bill of Rights, underscores the need for judicial activism in Tanzania. It is a disservice to human rights for the majority of Tanzanian judges to adopt a positivist approach which prevents meaningful developments of human rights. Paradoxically, despite this conservatism, the government's attitude towards court decisions remains distrustful. Without a change in the attitude of both the courts and the government towards human rights, the Bill of Rights in the Constitution may not serve any meaningful purpose. Thus this thesis serves to remind both the Tanzanian judiciary, and the executive, of their obligation to protect individual fundamental rights. After four chapters dealing with the administration of justice prior to the enshrinement of the Bill of Rights in the Constitution, chapters five and six examine respectively, the relevant courts decisions in criminal and civil matters. Chapter seven considers the government's response to these judicial decisions and chapter eight contains our conclusions and also makes recommendations as to the way forward. Acknowledgements The successful completion of this work is a result of the support I received from many people and various institutions. I would like to express my gratitude to all of them even though due to space constraints I may not he able to mention them all by their names. I wish to express special thanks to Dr, Simon Coldham my primary supervisor who from the very beginning took a keen interest in my work and provided me with solid intellectual guidance. He always made himself available for consultations and offered useful advice and much needed encouragement. He was a great inspiration to me throughout my research. I have come to think of him as more than a mere supervisor; I would like to think of him as a friend. My second supervisor John Hatchard, read through the draft and provided very valuable comments which improved the work. I owe him a great debt. Stefan Hull, a lecturer in Law Department read through various drafts. Besides making numerous corrections he shared with me his knowledge of human rights issues. My fellow PhD candidates, Wen-Chen Shih and Patricia Ng' of SO AS (U.K), Hamud Majamba and Luitfried Mbunda of Boston (USA) were very kind in giving their own valuable research time to discuss my work. During my research I was fortunate to meet John Mole and Nuala Mole. They introduced me to a number of useful contacts through the AIRE Centre and provided accommodation when no other was available to me. Their support in the accomplishment of this work is immeasurable. Thanks are also due to Prof. Chris Maina Peter, Ibrahim Juma both of the University of Dar Es Salaam, and Machumu Essaba of the Court of Appeal Training Department, for updating me about jurisprudential developments in the Tanzanian judiciary. They provided me with transcripts of recent cases and other relevant information, sometimes at short notice. I am especially indebted to the Judiciary, my employer, for granting me a three-year study leave to pursue this research. In particular, I would like to thank Mr. Justice L. Kalegeya (then Registrar of the Court of Appeal) for granting me permission to visit the High Court centres during my field research. This provided me with the opportunity to collect many valuable materials. I would like to thank the Justices of Appeal K. S. K. Lugakingira and B. Samatta, the High Court Judges Mr. Justice A. Msumi (J.K), Mr. Justice D. Mapigano, Mr. Justice B. P. Moshi, Mr. Justice E. Mwipopo, Mr. Justice J. Masanche and Mr. Justice J. Mwalusanya (now retired) for taking out their valuable time to share with me their experience during my field study. The District Registrars Mr. Mushote, Mr. Manento, Mr. Mmilla, Mr. Rugazia and Mr. Safari, provided me with the necessary facilities which made my field research at their respective centres both easy and enjoyable. A word of thanks should go to all court clerks at various High Court centres who assisted me in looking for case files during my research. A number of practising advocates in Tanzania assisted me during the period of field research. In particular, I would like to thank advocates John Kumwembe, Dr. Mvungi Seng’ondo, Dr. Harrison Mwakyembe and Dr. Ringo Tenga. Thanks also to Hon. Kingunge Ngombare Mwiru (MP), Minister of State in the Prime Minister's Office responsible for government policy and information who made himself available for interview. I owe a special debt of gratitude to the SOAS Scholarships Committee for granting me an Additional Award for Field work. I also wish to thank individually Deogratias Muganda, Rajabu Adadi, Saidi Mwema and Julius Caesar John for their moral, material and financial support that made my work easy and enjoyable. Without such support, my research would have been more difficult. My heartfelt thanks go to London Goodenough Trust for providing me with accommodation throughout my stay in London. The quietness of London House and the co-operation I received from the administration and the entire staff generated a conducive environment for my research undertakings. A special word of thanks should go to my grand mother Omumbeija Frolida Mukarugombana Kahigi. It was she who first instilled into me the spirit of hard work and self discipline. Indeed, she laid a foundation for my career both as a student and as a public servant. Finally, and most importantly, my profound thanks must go to my wife Laetitia Kokuhangisa. She always encouraged me in my work, and tolerated my long absence from home. I am sure that the past three years have not been easy for her. My children Moulin Mugonzibwa Dongodongo and David Mwesigwa Badevi-Fcither missed my love but remained patient. My parents, brothers and sisters were a constant source of strength and inspiration. London House, September 1998. Table of Contents Abstract ......... (ii) Acknowledgments ........ (iii) Table of Contents ........ (vi) Table of Statutes ........ (xi) Table of Cases ........ (xix) Abbreviations ........ (xxix) Glossary ......... (xxxii) Introduction ......... 1 PART ONE: THE COLONIAL PERIOD Chapter One: The judiciary and colonial administration of justice 12 1:1 The colonial state ...... 12 1:1 1 The German conquest . 12 1:1 1:1 The German administration and justice . 13 1:1 2 The British colonial government .... 16 1:12:1 Lawmaking ....... 17 1:12:2 The court system ...... 19 1:12:2:1 Native courts / Local courts ..... 19 1:12:2:2 Subordinate courts and High Court 24 1:1 2:3 The law applicable ...... 26 1:2 The colonial legislation ..... 28 1:2:1 Land ownership and peasantry .... 28 1:2:2 Freedom of movement and vagrancy laws . 30 1:2:3 Inhuman and degrading treatment .... 32 1:2:4 Detention and deportation without trial . 33 1:2:5 Arbitrary punishments ..... 33 1:2:6 Government revenue and forced labour . 34 1:2:7 Freedom of association and trade unionism 38 1:3 Interpretation of the law by the colonial judiciary 39 1:4 Conclusions ....... 43 vi PART TWO: THE POST INDEPENDENCE PERIOD (1961 - 1985) Chapter Two: Constitutional Development .... 45 2:1 The Independence Constitution .... 45 2:2 The presidential commission on the establishment of a democratic One-party state ..... 54 2:2:1 The preamble to the Constitution .... 55 2:2:2 The Permanent Commission of Enquiry 58 2:2:3 The leadership code ...... 60 2:3 The judiciary at independence 65 2:3:1 The judicial system ...... 66 2:3:2 The magistrates: appointment and terms of service 70 2:3:3 The judges: background, appointment and tenure . 73 2:4 Conclusions ....... 76 Chapter Three: Human Rights in Practice After Independence 78 31 The position of the government on human rights . 78 3 1 1 Adoption of colonial legislation 80 3 1 2 Enacting new authoritarian laws 81 3 1 2:1 Detention without trial .... 82 312:2 Curtailment of freedom of movement and arbitrary arrest 87 3 1 3 Abolition of political parties and trade unions 92 3 1 4 Arusha Declaration and nationalization 94 3 1 5 Land reform .....
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