Political Handbook & NGO Calendar 2012

Political Handbook & T NGO Calendar 2012 A N Z A N

Legal Reform Processes for I the Promotion of Civil Rights A

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Ed i t O r S Angela K. Ishengoma (Coordinator) pu B l i S H E d B y Andrea Cordes Friedrich-Ebert-Stiftung Jacquelyn Howard P.O. Box 4472 Kawawa Road Plot No. 397 lA y O u t / ty p E S E t t i N G / dE S i G N Dar es Salaam, Tanzania Lars-Christian Treusch Telephone: 255-22 2668575 / 2668786 pr i N t Fax: 255-22 2668669 Mobile: 0754-884485 iPrint Ltd. E-Mail: [email protected] NB: Articles which carry an author´s name do not necessarily reflect the view of FES. All facts and figures in this Calendar are correct to the best of our knowledge. However, FES bears no responsibility for over- sights, mistakes or omissions.

A commercial resale of published brochures, books and general printed matters by the Friedrich-Ebert-Stif- tung are prohibited unless the Friedrich-Ebert-Stiftung gives its explicit and written approval beforehand. The Friedrich-Ebert-Foundation congratula- tes Tanzania Mainland on 50 Years of Independence!

Dear Friends and Partners of the FES Tanzania

Welcome to the FES Political Handbook and NGO Calendar 2012!

To commemorate the monumental occasion of Tanzania Mainland ce- lebrating 50 Years of Independence, this year’s edition of our Political Handbook focuses on the Legal Reform Processes that have taken place within Tanzania over the last 50 years in regards to Civil Rights. The Friedrich-Ebert-Foundation has had the privilege of working with Tan- zania on many levels since 1968. As a political foundation dedicated to the ideas and basic values of social democracy, strengthening the Civil Rights of all citizens is integral to these values and central to our work, both in Tanzania and worldwide.

The contributing authors highlight and critically analyse the legal reform processes that have taken place to improve the civil rights of the citizens of Tanzania, as well as drawing attention to access to these rights. I would personally like to thank all the authors for their stimulating articles and for sharing their expertise, experience and insights with us! I would also like to thank the editorial team for their creative ideas and dedication.

I wish you a thought-provoking read and look forward to many more years of fruitful and constructive cooperation between Tanzania and the Friedrich-Ebert-Foundation!

Dr. Stefan Chrobot Resident Director Tanzania Office Table of Contents

Basic Facts and Figures 6

Year Overview 2012 12

Calendar 2012 16

Articles 71

Strengthening Civil Rights in Tanzania Through Legal Reform Processes: An Overview After Fifty Years of Independence By: Justice Augustino S. L. Ramadhani Retired Chief Justice of Tanzania 72

Can the EAC Integration Process Strengthen the Civil Rights of Tanzanians? By: Dr. Azaveli Feza Lwaitama University of Dar es Salaam 77

Human Rights Protection and Enforcement in Tanzania By: Romuald Haule & Nicodemus Kusenha, Ruaha University College, Iringa 83

Legal Reform Processes and the Recognition of Paralegals in Tanzania By: Angela K. Ishengoma Dar es Salaam 93

The Rights of Women Against Violence in Tanzania By: Nakazael Lukio Tenga Women Legal Aid Centre (WLAC), Dar es Salaam 99

4 Table of Contents

Fifty Years of Advocating for Access to Information: Reflections on progress, challenges and Way Forward in campaigning for a New Right to Information Regime in Tanzania By: Deus M Kibamba Tanzania Citizens’ Information Bureau (TCIB), Dar es Salaam 107

Labour Relations Reform Process in Tanzania By: Nicholas Ernest Mgaya Trade Union Congress of Tanzania, Dar es Salaam 118

5 Basic Facs & Figures

Geography Total Area (incl. Zanzibar, Pem- 947,300 km2 ba, Mafia) Bordering Countries Mozambique, Malawi, Zambia, DR Congo, Rwanda, Uganda, Kenya Coastline 1,424 km Lowest Point 0 metres (Indian Ocean) Highest Point 5,895 m (Mount Kilimanjaro) Source: CIA World Factbook; https://www.cia.gov/library/publications/the-world-factbook/geos/tz.html

Demography Population 42,746,620 Pop. Growth Rate 2.002% Median Age 18.5 years Life Expectancy 52.85 years Birth Rate 32.64 birth / 1,000 population Death Rate 12.09 deaths / 1,000 population Age Structure 0-14 years 42% 15-64 years 55.1% 65 + 2.9% Religion Mainland: Christian 30%, Muslim 35%, Indigenous Beliefs 35% Zanzibar: over 99% Muslim Urbanisation Rate 4.7% Urban Population 26% of total population (2010 est.) Source: CIA World Factbook, all 2011 estimates https://www.cia.gov/library/publications/the-world-factbook/geos/tz.html

Education Literacy Rate (15 +0) 73.2% (2010 est., UNESCO Institute f. Statistics) School Enrolment Rate Prim. School 95.9% (2009); 97.3% (2007) Sec. School 27.8% (2009); 20.6% (2007) Expenditure on Education, % of GDP 1.3% (2010) 1.4% (2009) Expenditure on Education, % of Budget 6.8% (2008 est., World Bank) Student / Teacher Ratio 54:1 (2009 est., Bank), 43:1 Secondary (EAC, 2009) Sources: World Bank: http://data.worldbank.org/indicator/SE.SEC.ENRR, UNESCO Institute for Statistic: http://data.un.org/CountryProfile.aspx?crName=United%20Republic%20of%20Tanzania, EAC Facts and Figures 2011: http://www. eac.int/statistics/index.php?option=com_docman&task=doc _view&gid=131&tmpl=component&format=raw&Itemid=153

6 Basic Facs & Figures

Health Infant Mortality 66.93 deaths / 1,000 live births (2011 est.) Total Fertility Rate 4.16 children born / woman (2011 est.) HIV / AIDS Prevalence 5.6% of adults (2009 est.) People living with HIV 1.4 mil. (2009 est.) HIV /AIDS deaths 86,000 (2009 est.)

Source: CIA World Factbook; https://www.cia.gov/library/publications/the-world-factbook/geos/tz.html

Government Form of Government Multi-party Republic Head of State President Jakaya Mrisho Kikwete (since 2005) Head of Government Prime Minister Mizengo Peter Pinda (since 2008) Capital Dodoma Administrative Provinces 26 regions (5 in Zanzibar / Pemba) subdivided into 117 districts Sources: CIA World Factbook: https://www.cia.gov/library/publications/the-world-factbook/geos/tz.html UNDP: http://www.tz.undp.org/docs/countryinfo1.pdf

Economy GDP Growth Rate 7.1% (IMF projection 2010/11); 6.5% (2010 est.) GDP $58.44 bil. (2010 est.); $54.89 bil. (2009 est.) GDP per capita $1,400 (2010 est.); $1,300 (2009 est.) GDP per sector Agriculture 42% Industry 18% Services 40% (2010 est.) Government Budget Revenues $4.263 bil. Expenditures $5.662 bil. (2010 est.) Inflation Rate 7.2% (2010 est.); 12.1% (2009 est.) Unemployment Rate 6.4% of total labour force (2008 country stat) Population below national 33.4% (2007 est.) Bank poverty line Exports $3.809 bil. (2010 est.) Export Partners India (12.1%), China (9.4%), Japan (6.7%), Netherlands (5.9%), UAE (5.4%), Germany (4.9%) (all 2009 est.) Imports $6.334 bil. (2010 est.) Import Partners China (15.5%), India (15%), South Africa (7.4%), Kenya (6.6%), UAE (4.5%), (all 2009 est.) External Dept $7.576 bil. (2010 est.), $7.07 bil. (2009 est.) Sources: CIA World Factbook: https://www.cia.gov/library/publications/the-world-factbook/geos/tz.html IMF Country Report: http://www.imf.org/external/pubs/ft/scr/2011/cr11105.pdf Country Statistics: http://www.countrystat.org/tza/cont/pages/page/indicators/en

7 Basic Facs & Figures            G L AN C E ‹ 6 84 74 38 90 64 133 100 19.5 14.4 23.3 2015 ** d e ‹ 6 244 c t 79.5 67.6 25.0 18.4 29.8 87.2 59.6 77.1 99.6 e x p 2008 E - c 83 22 38 68 63 2.5 578 112 57.1 97.2 33.64 l a 2008 A t u - - 36 99 153 29.5 58.7 35.8 42 (2002) 85 (2202) 44.4 (1999) 2000 6 51 68 39 191 115 529 28.8 46.6 54.2 43.9 1990 Access To Portable Water: % Of Rural Population Access To Potable Water: % Of Urban Population ** = Computed as % passage time thus 2008 is equivalent to 18 years or 72% that has elapsed Tanzania Mainland MDG Proportion Of Population Below Basic Needs Poverty Line Under-Five Underweight (%) Under-Five Stunted (%) Primary School Net Enrolment Rate Under-Five Mortality Rate (Per 1,000 Live Births) Infant Mortality Rate (Per 100,000 Live Births) Maternal Mortality Rate (Per 100,000 Live Births) Birth Attended By Skilled Health Per - sonnel (%) Hiv Prevalence, 15 – 24 Years Millenium Development Goals Report: Mid-way Evaluation 2000 - 2008

8 Basic Facs & Figures

           GLANCE = Achievable  90 30 84 94 73 67 40 100 ‹ 0.7 20.0 23.9 2015 ** d e 173 105 c t 75.2 ‹ 0.7 38.4 79.5 65.4 14.3 86.3 62.4 30.6 e x p = Likely to Achive 2008 E  - c 47 51 83 59 61 0.6 7.3 473 101 83.4 23.1 l a 2008 A t u - - - 90 46 89 323 25.8 67.0 14.1 = Unlikely to Achieve 35.8 (1999) 2000  68 37 46 60 0.7 377 202 120 39.9 47.9 50.9 1990 Access To Potable Water: % Of Urban Population ** = Computed as % passage time thus 2008 is equivalent to 18 years or 72% that has elapsed Maternal Mortality Rate (Per 100,000 Live Births) Birth Attended By Skilled Health Per - sonnel (%) Hiv Prevalence, 15 – 24 Years Access To Portable Water: % Of Rural Population Zanzibar MDG Proportion Of Population Below Basic Needs Poverty Line Under-Five Underweight (%) Under-Five Stunted (%) Primary School Net Enrolment Rate Under-Five Mortality Rate (Per 1,000 Live Births) Infant Mortality Rate (Per 100,000 Live Births) Source: UNDP MDG Development Rep http://www.tz.undp.org/docs/MDGprogressreport.pdf

9 Basic Facs & Figures

East African Community (EAC) Area in km2 (incl. water) Burundi 27.8 Tanzania 939.3 Uganda 241.6 Kenya 582.7 Rwanda 26.3 EAC 1,817.7 Population in millions Burundi 8.2 Tanzania 41.9 Uganda 30.7 Kenya 38.6 Rwanda 10.0 EAC 129.5

EAC Ecomony and Finance GDP growth rate 3.4% Burundi; 2.6% Kenya; 6.0% Tanzania; 6.1% Rwanda; 5.2% Uganda (2009 est.)

Tanzania Intra EAC Trade (2009) Tanzania to/from Kenya 192.9 / 304.5 million US Dollars Tanzania to/from Uganda 89.1 / 12.1 million US Dollars Tanzania to/from Rwanda 16.4 / 0.0 million US Dollars Tanzania to/from Burundi 15.0 / 25.1 million US DOllars Tanzania to rest of EAC 259.9 US Dollars Tanzania from rest of EAC 323.5 million US Dollars

Education NET Enrolment Primary Secondary Burundi 94 13 Tanzania 96 28 Uganda 108 24 Kenya 93 36 Rwanda 93 13

10 Basic Facs & Figures

Expenditure on Education as % of GDP 2009 est. 2008 est. Burundi 22.1 6.7 Tanzania 1.4 1.3 Uganda 3.1 1.3 Kenya 7.0 7.2 Rwanda 3.6 5.0 Source: EAC Facts and Figures, 2011: http://www.eac.int/statistics/index.php?option=com_ docman&task=doc_view&gid=131&tm pl=component&format =raw&Itemid=153

Germany Total Area 357,022 km2 Bordering Countries Switzerland, France, Luxembourg, Belgium, Netherlands, Denmark, Poland, Czech Republic, Austria Population 81,471,834 (July 2011 est.) Age Structure 0-14 13.3% 15-64 66.1% 65 + 20.6% (2011 est.) Religion Protestant 34%, Roman-Catholic 34%, Muslim 3.7%, Non- denominational or other 28.3% (2011 est.) Human Development Index (HDI) Rank 10 of 169 countries (2010) Shares in parliament, female-male 0.460 ratio Sources: CIA World Factbook: https://www.cia.gov/library/publications/the-world-factbook/geos/gm.html UNDP Human Development Index: http://hdrstats.undp.org/en/countries/profiles/DEU.html

11 Year Overview 2012

January 2012 Febuary 2012 March 2012 S 1 W 1 T 1 M 2 T 2 F 2 T 3 F 3 S 3 W 4 S 4 S 4 T 5 S 5 M 5 F 6 M 6 T 6 S 7 T 7 W 7 S 8 W 8 T 8 M 9 T 9 F 9 T 10 F 10 S 10 W 11 S 11 S 11 T 12 S 12 M 12 F 13 M 13 T 13 S 14 T 14 W 14 S 15 W 15 T 15 M 16 T 16 F 16 T 17 F 17 S 17 W 18 S 18 S 18 T 19 S 19 M 19 F 20 M 20 T 20 S 21 T 21 W 21 S 22 W 22 T 22 M 23 T 23 F 23 T 24 F 24 S 24 W 25 S 25 S 25 T 26 S 26 M 26 F 27 M 27 T 27 S 28 T 28 W 28 S 29 W 29 T 29 M 30 F 30 T 31 S 31

12 Year Overview 2012

April 2012 May 2012 June 2012 S 1 T 1 F 1 M 2 W 2 S 2 T 3 T 3 S 3 W 4 F 4 M 4 T 5 S 5 T 5 F 6 S 6 W 6 S 7 M 7 T 7 S 8 T 8 F 8 M 9 W 9 S 9 T 10 T 10 S 10 W 11 F 1 M 11 T 12 S 12 T 12 F 13 S 13 W 13 S 14 M 14 T 14 S 15 T 15 F 15 M 16 W 16 S 16 T 17 T 17 S 17 W 18 F 18 M 18 T 19 S 19 T 19 F 20 S 20 W 20 S 21 M 21 T 21 S 22 T 22 F 22 M 23 W 23 S 23 T 24 T 24 S 24 W 25 F 25 M 25 T 26 S 26 T 26 F 27 S 27 W 27 S 28 M 28 T 28 S 29 T 29 F 29 M 30 W 30 S 30

T 31

13 Year Overview 2012

July 2012 August 2012 September 2012 S 1 W 1 S 1 M 2 T 2 S 2 T 3 F 3 M 3 W 4 S 4 T 4 T 5 S 5 W 5 F 6 M 6 T 6 S 7 T 7 F 7 S 8 W 8 S 8 M 9 T 9 S 9 T 10 F 10 M 10 W 11 S 11 T 11 T 12 S 12 W 12 F 13 M 13 T 13 S 14 T 14 F 14 S 15 W 15 S 15 M 16 T 16 S 16 T 17 F 17 M 17 W 18 S 18 T 18 T 19 S 19 W 19 F 20 M 20 T 20 S 21 T 21 F 21 S 22 W 22 S 22 M 23 T 23 S 23 T 24 F 24 M 24 W 25 S 25 T 25 T 26 S 26 W 26 F 27 M 27 T 27 S 28 T 28 F 28 S 29 W 29 S 29 M 30 T 30 S 30 T 31 F 31

14 Year Overview 2012

October 2012 November 2012 December 2012 M 1 T 1 S 1 T 2 F 2 S 2 W 3 S 3 M 3 T 4 S 4 T 4 F 5 M 5 W 5 S 6 T 6 T 6 S 7 W 7 F 7 M 8 T 8 S 8 T 9 F 9 S 9 W 10 S 10 M 10 T 11 S 11 T 11 F 12 M 12 W 12 S 13 T 13 T 13 S 14 W 14 F 14 M 15 T 15 S 15 T 16 F 16 S 16 W 17 S 17 M 17 T 18 S 18 T 18 F 19 M 19 W 19 S 20 T 20 T 20 S 21 W 21 F 21 M 22 T 22 S 22 T 23 F 23 S 23 W 24 S 24 M 24 T 25 S 25 T 25 F 26 M 26 W 26 S 27 T 27 T 27 S 28 W 28 F 28 M 29 T 29 S 29 T 30 F 30 S 30 W 31 M 31

15 Calendar 2012 week 52 Dec / Jan 26 - 01

Monday 26 Tuesday 27 Wednesday 28

Thursday 29 Friday 30 Saturday 31

Sunday 1

16 week 01 Calendar 2012 02 - 08 January

Monday 2 Tuesday 3 Wednesday 4

Thursday 5 Friday 6 7 Saturday

8 Sunday

17 Calendar 2012 week 02 January 09 - 15

Monday 9 Tuesday 10 Wednesday 11

Thursday 12 Friday 13 Saturday 14

Sunday 15

18 week 03 Calendar 2012 16 - 22 January

Monday 16 Tuesday 17 Wednesday 18

Thursday 19 Friday 20 Saturday 21

Sunday 22

19 Calendar 2012 week 04 January 23 - 29

Monday 23 Tuesday 24 Wednesday 25

Thursday 26 Friday 27 Saturday 28

Sunday 29

20 week 05 Calendar 2012 30 - 05 Jan / Feb

Monday 30 Tuesday 31 Wednesday 1

Thursday 2 Friday 3 Saturday 4

Sunday 5

21 Calendar 2012 week 06 February 06 - 12

Monday 6 Tuesday 7 Wednesday 8

Thursday 9 Friday 10 Saturday 11

Sunday 12

22 week 07 Calendar 2012 13 - 19 February

Monday 13 Tuesday 14 Wednesday 15

Thursday 16 Friday 17 Saturday 18

Sunday 19

23 Calendar 2012 week 08 February 20 - 26

Monday 20 Tuesday 21 Wednesday 22

Thursday 23 Friday 24 Saturday 25

Sunday 26

24 week 09 Calendar 2012 27 - 04 Feb / Mar

Monday 27 Tuesday 28 Wednesday 29

Thursday 1 Friday 2 Saturday 3

Sunday 4

25 Calendar 2012 week 10 March 05 - 11

Monday 5 Tuesday 6 Wednesday 7

Thursday 8 Friday 9 Saturday 10

Sunday 11

26 week 11 Calendar 2012 12 - 18 March

Monday 12 Tuesday 13 Wednesday 14

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27 Calendar 2012 week 12 March 19 - 25

Monday 19 Tuesday 20 Wednesday 21

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28 week 13 Calendar 2012 26 - 01 Mar / Apr

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Sunday 1

29 Calendar 2012 week 14 April 02 - 08

Monday 2 Tuesday 3 Wednesday 4

Thursday 5 Friday 6 Saturday 7

Sunday 8

30 week 15 Calendar 2012 09 - 15 April

Monday 9 Tuesday 10 Wednesday 11

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Sunday 15

31 Calendar 2012 week 16 April 16 - 22

Monday 16 Tuesday 17 Wednesday 18

Thursday 19 Friday 20 Saturday 21

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32 week 17 Calendar 2012 23 - 29 April

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Sunday 29

33 Calendar 2012 week 18 Apr / May 30 - 06

Monday 30 Tuesday 1 Wednesday 2

Thursday 3 Friday 4 Saturday 5

Sunday 6

34 week 19 Calendar 2012 07 - 13 May

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35 Calendar 2012 week 20 May 14 - 20

Monday 14 Tuesday 15 Wednesday 16

Thursday 17 Friday 18 Saturday 19

Sunday 20

36 week 21 Calendar 2012 21 - 27 May

Monday 21 Tuesday 22 Wednesday 23

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37 Calendar 2012 week 22 May / June 28 - 03

Monday 28 Tuesday 29 Wednesday 30

Thursday 31 Friday 1 Saturday 2

Sunday 3

38 week 23 Calendar 2012 04 - 10 June

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39 Calendar 2012 week 24 June 11 - 17

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40 week 25 Calendar 2012 18 - 24 June

Monday 18 Tuesday 19 Wednesday 20

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41 Calendar 2012 week 26 June / July 25 - 01

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Sunday 1

42 week 27 Calendar 2012 02 - 08 July

Monday 2 Tuesday 3 Wednesday 4

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Sunday 8

43 Calendar 2012 week 28 July 09 - 15

Monday 9 Tuesday 10 Wednesday 11

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44 week 29 Calendar 2012 16 - 22 July

Monday 16 Tuesday 17 Wednesday 18

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45 Calendar 2012 week 30 July 23 - 29

Monday 23 Tuesday 24 Wednesday 25

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46 week 31 Calendar 2012 30 - 05 July / Aug

Monday 30 Tuesday 31 Wednesday 1

Thursday 2 Friday 3 Saturday 4

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47 Calendar 2012 week 32 August 06 - 12

Monday 6 Tuesday 7 Wednesday 8

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Sunday 12

48 week 33 Calendar 2012 13 - 19 August

Monday 13 Tuesday 14 Wednesday 15

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49 Calendar 2012 week 34 August 20 - 26

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50 week 35 Calendar 2012 27 - 02 Aug / Sept

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Sunday 2

51 Calendar 2012 week 36 September 03 - 09

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52 week 37 Calendar 2012 10 - 16 September

Monday 10 Tuesday 11 Wednesday 12

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53 Calendar 2012 week 38 September 17 - 23

Monday 17 Tuesday 18 Wednesday 19

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54 week 39 Calendar 2012 24 - 30 September

Monday 24 Tuesday 25 Wednesday 26

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Sunday 30

55 Calendar 2012 week 40 October 01 - 07

Monday 1 Tuesday 2 Wednesday 3

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56 week 41 Calendar 2012 08 - 14 October

Monday 8 Tuesday 9 Wednesday 10

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57 Calendar 2012 week 42 October 15 - 21

Monday 15 Tuesday 16 Wednesday 17

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58 week 43 Calendar 2012 22 - 28 October

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59 Calendar 2012 week 44 Oct / Nov 29 - 04

Monday 29 Tuesday30 Wednesday 31

Thursday 1 Friday 2 Saturday 3

Sunday 4

60 week 45 Calendar 2012 05 - 11 November

Monday 5 Tuesday 6 Wednesday 7

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61 Calendar 2012 week 46 November 12 - 18

Monday 12 Tuesday 13 Wednesday 14

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62 week 47 Calendar 2012 19 - 25 November

Monday 19 Tuesday 20 Wednesday 21

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63 Calendar 2012 week 48 Nov / Dec 26 - 02

Monday 26 Tuesday 27 Wednesday 28

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Sunday 2

64 week 49 Calendar 2012 03 - 09 December

Monday 3 Tuesday 4 Wednesday 5

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65 Calendar 2012 week 50 December 10 - 16

Monday 10 Tuesday 11 Wednesday 12

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66 week 51 Calendar 2012 17 - 23 December

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67 Calendar 2012 week 52 December 24 - 30

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Thursday 27 Friday 28 Saturday 29

Sunday 30

68 week 01 Calendar 2012 31 - 06 Dec / Jan

Monday 31 Tuesday 1 Wednesday 2

Thursday 3 Friday 4 Saturday 5

Sunday 6

69 70 Articles Strengthening Civil Rights in a British Trusteeship Territory2. The ad- Tanzania Through Legal Reform ministration of justice continued to be Processes: An Overview After segregationist, with ‘the natives’ being Fifty Years of Independence subject to the so-called local courts. Furthermore, the administration of justi- By: Justice Augustino S. L. Ramadhani, ce for the local people also involved the Retired Chief Justice of Tanzania Executive, then titled District Commis- sioners and Provincial Commissioners. Introduction There was no separation of powers, which is one of the basic prerequisites In order to appreciate the achievements for the strengthening of civil rights. in strengthening civil rights through legal reform process in the fifty years of independence of Tanzania Mainland, The New Government’s Intention to there is a need to glance at what was in- Strengthen Civil Rights herited in December 1961. Shortly after independence, Prime Mi- Before colonization there was no such nister Mwalimu Julius K. Nyerere made entity as Tanganyika, but there were a declaration of intent to strengthen ci- a number of tribes, each with its own vil rights in an Independent Tanganyika organization. Some tribes were centra- using the following words: lized, under strong chieftains, but others were not. Overall, there was no room Our judiciary at every level must be for civil rights. The will of the chief was independent of the executive arm of paramount. the state. Real freedom requires that In 1886, Deutsch Ostafrika (German any citizen feels confident that his East Africa) was founded, comprised case will be impartially judged, even of what later became the nations of Bu- if it is a case against the Prime Minis- rundi, Rwanda and Tanganyika. Here ter himself.3 we focus on the situation in Tangany- ika, that is, Tanzania Mainland. The This was immediately followed by legal approach taken in the administration of reforms, brought about by the Magist- justice was to separate ‘natives’ from rates’ Courts Act, 1963, which had two ‘non-natives’. The latter were subjected results: Firstly, the Local Courts were to German law, while the former had a integrated completely into the High mixture of German law, local customs Court, creating a single court system and traditions. throughout the country. Following the end of World War I in 1918, what became Tanganyika Territo- 2 Trusteeship Agreement – Imperial Laws 1920- ry1 was first a British Mandate and then 1957. 3 Nyerere Julius K. Freedom and Unity. Oxford 1 The Tanganyika Order-in-Council of 1920. University Press: Dar es Salaam, p. 131.

72 Secondly, the coupling of executi- 1. Women Property Rights ve and judicial functions by District In the case of Ndewawiosia d/o Nde- Commissioners (Area Commissioners) amtzo vs. Immanuel s/o Malasi6 Justice and Provincial Commissioners (Regi- SAIDI7 declared null and void a Wachag- onal Commissioners) was abolished. ga customary law prohibiting the inheri- The Executive had no judicial function tance of land by daughters. In that case whatsoever, thus strictly observing the a man died, leaving behind a piece of doctrine of the separation of powers. land, which a subordinate court granted However, this separation of powers to Immanuel, his nephew. Ndewawio- must be contrasted with the leaderships’ sia, the youngest of the deceased’s five refusal to include a Bill of Rights in the daughters, appealed the judgment, and Constitution of Tanganyika, 19614 (The the High Court’s response was: Independence Constitution). At the time of independence, the British unsuc- It is quite clear that this traditional cessfully attempted to include a Bill of custom has outlived its usefulness. Rights in the Constitution. At the time The age of discrimination based on of forging the Republican Constitution, sex is long gone and the world is now the Bill of Rights was declared a luxury in the stage of full equality of all hu- that would only invite unnecessary con- man beings irrespective of their sex, flict and constrain the zeal of the new creed, race or colour. On grounds of Government in developing the count- natural justice daughters like sons in ry.5 every part of Tanzania should be allowed to inherit the property of their deceased fathers whatever its kind or Legal Reforms Processes origin, on the basis of equality. There are two kinds of legal reforms processes that have strengthened civil Another landmark case is that of Bi. rights, firstly through judicial decisions, 8 and secondly through legislation. Hawa Mohamed vs. Ally Sefu . The Pri- mary Court of Ilala, Dar es Salaam, an- Judicial Decisions Process nulled the marriage between Bi. Hawa Four judicial decisions, among others, and Ally, but denied Bi. Hawa any share administered civil rights remarkably on in the matrimonial house because she Tanzania Mainland: was a mere housewife and thus had not contributed to its acquisition. Bi. Hawa’s first appeal to the High Court failed,

4 The Constitution of Tanganyika (Order-in- 6 (1968) HCD n. 127. Council) No. 2274. 7 He later became the first Tanzanian to be the 5 Parliamentary Debates (Hansard) the National Chief Justice. Assembly 3rd Meeting, 1088, 28th June 1962. 8 [1983] TLR 32.

73 but she succeeded in her second appeal using the island’s civil procedure, held to the Court of Appeal where it was held that the fiat of the Minister of Justice is that: not required when suing Union Govern- ment departments operating in Zan- Since the welfare of the family is an zibar. The Court of Appeal confirmed essential component of the economic that the requirement of obtaining the activities of a family man or woman, Minister’s fiat before suing the Govern- it is proper to consider contribution ment in Pumbun & Another vs. Attorney 13 by a spouse to the welfare of the fami- General & Another was inappropria- ly as contribution to the acquisition of te. These two judgments resulted in the matrimonial or family assets Government amending the law, as will be explained below. Thus, the Court of Appeal decided that 3. Human Rights in the Absence of a the domestic activities of a housewife Bill of Rights are her contribution to the acquisition of The Presidential Commission for the matrimonial property. Establishment of the Democratic One- 14 2. Proceedings Against the Govern- Party State continued to object to the ment inclusion of a Bill of Rights in the Con- stitution, instead offering two recom- The Government Proceedings Act, mendations. Firstly, the insertion of a 19679, required a person wanting to sue Preamble in the Constitution, to contain the Government to obtain permission fundamental rights and freedoms in a from the Minister responsible for justice. loose form. Secondly, the establishment The High Court in Peter Ng’omango vs. of a Permanent Commission of Enquiry Gerson M. K. Mwangwa and Another10 (PCE), the equivalent of an ombudsman, criticized this provision. Judge Mwalu- was suggested. Both recommendations sanya considered three judgments of the were then incorporated. The High Court High Court of Zanzibar11 in which the relied extensively upon the Preamble in Chief Justice of Zanzibar12, the provision of human and fundamental rights. 9 Act No 16 of 1967. 10 Civil Case No 22 of 1992 (Dodoma High Court Registry) (unreported). Legislation Process 11 Himid Mbaye. The Brigade Commander of There have been some legislative the Nyuki Brigade, Civil Case No 8 of 1981; Sha- bani Khamisi v. Samson Goa and Another, Civil amendments resulting from various Case No. 18 of 1983 and Khalfan Abeid Aman v. The Director of Civil Aviation, Civil Case No 20 of 1986 (all three unreported). 13 Civil Appeal No. 32 of 1992 (Court of Ap- 12 Justice Augustino S. L. Ramadhani was peal). Reported in [1993] 2LRC 317. then the Chief Justice of Zanzibar and he later 14 The Report of the Presidential Commission became Justice of Appeal and the Chief Justice for the Establishment of the Democratic One- of Tanzania. Party State

74 judicial decisions, but other legislative parties of the Tanganyika National Uni- reforms were due to the global ‘wind of on (TANU) and the Afro-Shirazi Party change’. (ASP), which merged in 1977 becoming 1. Legislations due to Court Decisi- Chama cha Mapinduzi (CCM). Howe- ons ver, the Russian perestroika sent waves of political change throughout the globe, Due to the High Court’s judgments in including Tanzania. The Government Peter Ng’omango and those of the Court created a Commission under Chief Ju- of Appeal in Pumbun, the Government stice Francis Lucas Nyalali to seek the enacted the Government Proceedings views of the people on whether or not (Amendment) Act, 199415. This Act to reintroduce a multi-party state. The requires a person wanting to file a suit Government accepted the recommen- against the Government to give the At- dation of the Commission that the ban torney General a notice of no less than on political parties should be lifted, and ninety days, after which the suit may it accordingly amended the Constituti- proceed. Authorization by the Minister on18, enacting the Political Parties Act of Justice is no longer necessary. in 1992. 2. The Enactment of a Bill of Rights The Fifth Amendment of the Constituti- Conclusion on16 incorporated a Bill of Rights, which came into force in March 1985. How- Bi. Hawa and Ndewawiosia as well as ever, the Bill of Rights could only be other cases have helped to strengthen the enacted after the expiry of three years17, rights of Tanzanian women to property, giving the Government the opportunity among other rights. The two legislati- to examine the existing laws and rectify ve reforms, firstly including the Bill of them to avoid conflicts with the Bill of Rights into the Constitution and second- Rights. ly allowing multiple political parties, have made far-reaching contributions in The Re-introduction of Multi-Par- 3. strengthening civil rights in Tanzania in tyism the fifty years of independence. Prior to independence, both Tanganyika Members of Parliament now come from and Zanzibar had many political parties. six different political parties, making Following independence however, these the Parliament extremely effective in were prohibited, leaving only the ruling voicing the civil rights concerns of the people. The Bill of Rights has given the citizens access to courts, and that in itself is a profound civil right. Furthermo- 15 Act No 40 of 1930 of 1994. re, the courts now deal with universally 16 Act No 15 of 1984 recognized human rights. 17 Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984, Act No. 16 of 1984. 18 Section 5 of Act No. 4 of 1992.

75 The rights of women are no longer de- death penalty. A conference on the ab- pendant on court judgments or the de- olition of the death penalty was held in gree of a judge’s progressiveness, rather London from 19th until 20th of Septem- they are declared explicitly in the Con- ber 2011, where more than twenty-five stitution. countries recommended abolition. Se- Lastly, the current resolved political condly, there is the question of allowing will to re-write the Constitution is clear independent candidates to stand for evidence that civil rights are being elections. The Court of Appeal, in The strengthened through legal reform pro- Attorney General vs. Rev. Christopher cesses. Some examples of this have Mtikila, Civil Appeal No. 45 of 2009, been given above. Nonetheless, there expressed the opinion that this issue are still glaring areas of civil rights that must be settled through an amendment require the reform of the Constitution to the Constitution by Parliament, and as the ultimate legislative reform. Three not by the Court. Finally, the indepen- examples will suffice: Firstly, there is dence of the media ought to be included the burning issue of the abolition of the in the Constitution.

76 Can the EAC Integration strengthen the enjoyment of civil rights Process Strengthen the Civil by the majority of Tanzanians. Rights of Tanzanians? The struggle for independence in Tan- ganyika and Zanzibar, united in 1964 By: Dr. Azaveli Feza Lwaitama to give birth to Tanzania, was itself a University of Dar es Salaam process that sought to strengthen the civil rights of Tanzanians through vi- Introduction gorous and persistent participation in Civil rights are often referred to as cons- social, political and economic integra- titutional rights and they are often clear- tion at national levels. Following inde- ly incorporated into a country’s consti- pendence, it was evident that the civil tution as “a bill of rights.” Civil rights rights gained by both Tanganyikans and are universally recognized since mem- Zanzibaris were not adequate, but rather ber states of the United Nations first ridden with pitfalls and in the long term adopted them in 1948 as the Universal deemed reversible. In former colonial Declaration of Human Rights, and la- states in Africa, envisaging the true at- ter as the 1966 International Covenant tainment of civil rights by the majority on Civil and Political Rights (Sieghar of the population outside the context of 1985). The promotion of the civil rights Pan-African unity was difficult, as only of Tanzanians has been at the centre of within such a context could one guaran- all social, economic and political deve- tee economic prosperity for all (Shivji, lopments that have taken place during 1996). As the founding President of Tan- the 50 years of independence (Hellsten zania, late Mwalimu Julius Kambarage & Lwaitama 2004: 61-66). It is impor- Nyerere, is reported by Shivji (1996:8) tant to observe that civil rights include to have observed: the right to vote, as well as the right to stand as a candidate in elections for po- What freedom has our subsistence sitions of authority at various levels of farmer? He scratches a bare living government in ones country. from the soil provided, the rains do The struggle for independence from not fall; his children work at his side colonial rule was a struggle to promote without schooling, medical care, or the civil rights of Tanzanians. Even after even good feeding. Certainly, he has freedom to vote and speak as he wi- gaining independence, and especially shes. But these freedoms are much after the adoption of the multi-party less real to him than his freedom to be system in 1992, it was necessary to con- exploited. Only as his poverty is redu- tinue fighting for these rights through ced will his existing political freedom constitutional amendments (Mukanga- become properly meaningful and his ra 1998-2001). This article argues that right to human dignity becomes a fact a people-centered East African Com- of human dignity. munity integration process can further

77 The struggle for independence was si- cial, political and economic systems multaneously a struggle to consolidate of Tanganyika and Zanzibar could be economic integration within territori- unified, resulting in the establishment al national borders, in order to support and consolidation of the emerging economies of scale at that level and thus supra-national entity of Tanzania. It is tackle the problem of poverty within only such leadership that is capable of such borders. The struggle for greater acknowledging that the way to promo- unity at a regional and continental level te the civil rights of all Tanzanians in is based on the realization that pursuing the 21st century is by safeguarding the the aforementioned integration, at both Union of Tanganyika and Zanzibar. The an economic and political level, is the growing hostile climate of global and only way to reduce poverty in Africa. extreme capitalist-oriented hegemony Indeed, the independence granted to often stifles the true economic libera- Tanganyikans in December 1961, and tion of former colonial states, and thus that granted to Zanzibaris in December the civil rights of most people living in 1963, was inadequate in alleviating the such as post-colonial states as Tanzania. poverty of the majority, and worse still, Only a non-comprador, socialist ori- it seemed to be benefiting a minority in ented and Pan-Africanist leadership both Tanganyika and Zanzibar. As a re- understands what the Arusha Decla- sult, the majority of Zanzibaris, main- ration means when it asserts that the ly belonging to the Afro Shiraz Party people of Africa have been exploited (ASP), participated in the 1964 Revo- and oppressed because Africans have lution and most Tanganyikans, the ma- long lacked unity. For this reason, it is jority belonging to the Tanganyika Af- argued in this article that a people-cen- rican National Union (TANU), marched tered integration process within the East in support of the Arusha Declaration in African Community can strengthen the 1967. This led to the nationalization of attainment of civil rights by the majority the commanding heights of the economy of Tanzanians. It is therefore also being and ushered in the adoption of a people- argued, albeit indirectly, that an East centered development ethos in Tanzania African Community integration process (Lwaitama 2002) that is not people-centered cannot improve the enjoyment of civil rights by The non-comprador socialist oriented, Tanzanians. and thus people-centered Pan-African leadership of TANU and ASP sought Civil Rights and the EAC Vision greater unity and thus brought about the Culturally, Tanzanians are products of Union between Tanganyika and Zanzi- the slave trade and of colonial experi- bar in 1964 as well as the Arusha De- ences. These experiences had the un- claration in 1967. It was only through fortunate outcome of producing Wes- such leadership that the national so- tern educated elite, termed by one of

78 Africa’s greatest sons, Franz Fanon, as elements, a non-comprador socialist ori- Black Masks and White Skins. The anti- ented, and thus people-centered Pan-Af- colonial struggle was partly a struggle ricanist elite, seek to reconnect Africa’s to raise awareness amongst the Western present with its past and glorious culture educated elite, and people elsewhere in of humanism (ubuntu); now bringing the world, be they of African ancestry together people of all colors, races, and or not, that non-African people have not languages, as well as embracing many always ruled Africa. It was a struggle to gods and goddesses from all parts of reassert the civil rights of people of Af- the continent and beyond (Brock-Utne rican origin. &Lwaitama 2010:340-342). Unfortunately, independence was follo- It is these enlightened elements that wed by a period, long in some countries wish to strengthen the civil rights of ci- and short in others, when Africa was tizens in individual EAC member states ruled by irresponsible politicians who- like Tanzania. Leaders who inspired the se black skins were a mere mask hiding scripting of the all-important Article 5 what amounted to no less than racist of the 1999 EAC Treaty, which states white supremacist skins. This relates to the vision of the EAC as follows: the irresponsible and inhumane manner with which they ruled over their fellow 1. The objectives of the Community African people, especially the poor, on shall be to develop policies and pro- behalf of global capitalist forces. Fifty grams aimed at widening and deepe- years after independence, elements of ning co-operation among the Partner such irresponsible leadership can still be States in political, economic, social witnessed in Africa. However, more and and cultural fields, research and tech- more people are accessing the enjoy- nology, defense, security and legal ment of civil rights and such irrespon- and judicial affairs, for their mutual benefit. sible leaders are increasingly removed 2. The Partner States under take to from positions of power. Elements of establish among themselves and in enlightenment, inspired by the dreams accordance with the provisions of this of Pan-African nationalist leaders such Treaty, a Customs Union, a Common as Kwameh Nkrumah and Mwalimu Market, subsequently a Monetary Nyerere, are increasingly taking over the Union and ultimately a Political Fe- reins of economic and political power. deration. These enlightened elements, that have imbibed the vision of regional integra- It is an EAC vision whose ultimate goal tion, include the leadership that is now is enshrined in the same provision of promoting the integration process in the Article 5 of the 1999 EAC Treaty, which East African Community (EAC), as well states in sub-section 2 that: as that of continental integration, in the African Union (AU). These enlightened

79 …in order to strengthen and regulate when Tanzanians can witness “accelera- the industrial, commercial, infrastruc- ted, harmonious and balanced develop- tural, cultural, social, political and ment and sustained expansion of eco- other relations of the Partner States nomic activities, the benefit of which to the end that there shall be accele- shall be equitably shared” in the entire rated, harmonious and balanced de- EAC region, can each and very Tanza- velopment and sustained expansion nian sustain the increasing enjoyment of of economic activities, the benefit of civil rights. Only partial and precarious which shall be equitably shared. enjoyment of civil rights by the majority of Tanzanians can be achieved outside Although bourgeoisie scholarship often of a sustained and accelerated realizati- wishes to characterize civil rights as soon of an EAC as envisaged in the 1995 called “natural rights”, it is important to EAC Treaty quoted above. observe that one can only enjoy them under certain socio-economic condi- Civil Rights Guarantees and the EAC tions. Where human beings are complete Political Federation slaves of blind natural phenomena such The enjoyment of civil rights presup- as severe droughts, floods, earthquakes, poses that citizens receive public ser- hurricanes, tsunamis, and the like, they vices such as hospitals, schools, and are invariably unlikely to be in a posi- public transport and that such services tion to enjoy their civil rights. Military are organized in manner promoting ci- contingencies and natural and human- vility, not militaristic and often chaotic, made disasters of various kinds often inhumane and unprofessional behavior create conditions that are exploited by on the part of service providers and re- some in society to deny civil rights to cipients. The EAC integration process, others. The struggle for the enjoyment taking into account the exploitation on of civil rights ought not to be treated as an economic scale and the comparative a request for a charitable offer by the advantages, is likely to sound attractive powerful to the less advantaged. This is even to social forces least inclined to presumably what was meant by US Pre- promote a people-centered development sident Thomas Jefferson when he obser- in East Africa. For this reason, this ar- ved in his 1774 A Summary View of the ticle argues that the promotion of civil Rights of British America that „a free rights for all Tanzanians requires that people [claim] their rights as derived the political federation of the EAC is from the laws of nature, and not as the envisaged as a step in the EAC integrati- gift of their chief magistrate.“ However, on process, a process that cannot be de- it is equally true that Tanzanians need layed for long. A political federation is to reduce the extent to which they are the best way of ensuring that the enjoy- beholden to the brute forces of nature, ment of civil rights will be made availa- such as extreme heat and lack of rain, if ble for all Tanzanians and East Africans. they are to enjoy their civil rights. Only

80 At the same time, the implementation of democratic city-state counterparts, feel the trade related aspects of the EAC in- that the state of their politics, both at tegration process, such as the customs home and abroad, are bleak. The Tan- union, common market, and common zanian hoi polloi seem to feel that a monetary union, must continue to move minority (Greek hoi oligoi - the few) of forward. The various international legal fellow citizens, who happen to be in po- instruments (See Annex of African Hu- wer and act on their behalf, lead a life man Rights Instruments) available to ci- too good to be true. This small group of tizens of Tanzania and East Africa when Tanzanian hoi oligoi, forming a socio- seeking redress for the violation of their economic and political oligarchy, are civil rights can best be utilized in the so pampered and steeped in hedonistic context of a political federation. The pleasures, preventing them from giving adoption of a protocol on good gover- adequate intellectual attention to the fact nance ought to act as a first step leading that for most Tanzanians poverty reduc- us towards the development of a set of tion can only be achieved in the context commonly agreed principles and values of accelerated economic and political that should guide the process towards an integration, both regionally and conti- EAC political federation. nentally. The hoi oligoi, fail to realize that most Tanzanians and East Africans Conclusion will struggle to survive in the absence of The majority of Tanzanians, 50 years such integration. after they won their independence from These city gentry are blinded by the colonial rule, give the impression that hedonistic consumerism and extrava- the Tanzanian hoi polloi (Greek: the gant opulence in which they now wal- many)1, unlike their legendary Greek low, while those around them, the hoi polloi, equivalent to the ancient Greek 1 In a major ancient Greek work of literature written by Thucydides called History of the city-state’s property-less masses, suffer Peloponnesian War, Book 2.34-46, the claimed in silence. These Tanzanians are hardly term hoi polloi is used positively to mean „the in the position to enjoy their civil rights many“, or „the majority.“ This is illustrated in the sentence “It is true that we are called a as the pressures of life of the wretched democracy, for the administration is in the hands of the earth means that they are con- of the many and not of the few“. However, in later usage of the term in English and French li- the revolutionaries, who took her remark as a terature, hoi polloi refers to “ the masses”, “the confirmation that the French gentry, represented common people”, “multitude”, “plebeians”, by the Queen, were pampered and out of touch “proletariat”, “rank and file”, “riff-raff”, “the with the reality of life for the hoi polloi (i.e. the herd”, “the plebs”, or “the working class”. poor). She did not seem to realize that cake was This alludes to the legend of Queen Marie unlikely to be affordable for the poor who could Antoinette, the wife of the French King Louis not even afford bread. For her impudence, the XVI, who was overthrown during the French revolutionaries are said to have convicted her of Revolution. Queen Marie Antoinette, upon being treason, and had her executed in 1793, months told that her subjects were starving because they after her husband had received the same pu- had no bread, is said to have remarked, „Let nishment. them eat cake!” This is said to have angered

81 demned to being ewers of wood and drawers of water. Only the successful Lwaitama, A.F & Hellsten, S. K. (2004). Civic Ethics Handbook For Development: Ethics and Re- implementation of the EAC vision as flective Civic Skills For Democracy. Oxford Univer- embraced in the 1999 EAC Treaty gi- sity Press: Dar es Salaam. ves hope to these Tanzanian hoi polloi, Lwaitama, A.F. (2002). Presidential Oratory for who now are told that if they cannot find Pan-African Cause: The Nyerere Harangues. In: H. bread for breakfast, why not try cake for Othman (edt.) Reflections on Leadership in Africa; lunch. Nevertheless, the EAC integrati- Forty Years After Independence. Dar es Salaam: Ins- titute of Development Studies, UDSM. on process must be people-centered if it is to promote and strengthen the civil Mukangara, D.R. (1998-2001). Forms and Reforms rights of the majority of Tanzanians, and of Constitution Making with Reference to Tanzania. In: UTAFITI (New Series), Special Issue, Vol. 4, indeed, of East Africans. pp131-150.

References: Shivji, I.G. (1996). Constructing A New Rights Re- gime: Promises, Problems and Prospects In: UTA- Brock-Utne,B.& A.F. Lwaitama (2010). The Pro- FITI (New Series), Vol. 3, No.1, pp.1-46. spects for and Possible Implications of Teaching African Philosophy in Kiswahili in East Africa: A Sieghar, T. Paul (1985). The Lawful Rights of Man- Tanzanian Perspective. In: Desai, Z., M. Qorro & kind: An Introduction to the International Legal B. Brock-Utne (edts.) Educational Challenges in Code of Human Rights. Oxford: Oxford University Multilingual Societies: LOITASA Phase Two. Cape Press. Town: African Minds, pp.333—349.

82 Human Rights Protection and The Independence Constitution and the Enforcement in Tanzania following three Constitutions did not contain a Bill of Rights. Human rights By: Romuald Haule & were protected through laws such as Nicodemus Kusenha criminal laws, which in their very na- Ruaha University College, Iringa ture intend to punish the violators of the rights of others, and therefore curb the Introduction problem of violation of human rights. Many will agree that respect for human Some years later, Tanzania (former Tan- rights and the rule of law is very impor- ganyika), incorporated a Bill of Rights tant if the people in a state are to flourish into its Constitution, restored multi-par- and develop. In recognition of this im- ty democracy, which was abolished soon portance, states must ensure that human after independence, signed and ratified rights receive considerable weight in a number of human rights instruments, legislative, judicial and administrative including becoming one of the few Af- undertakings. This would result in pro- rican states to accept the jurisdiction tection and enforcement mechanisms of the African Court for Human Rights through which an individual could pur- and Peoples Rights to receive individu- sue development. al complaints. Nevertheless, challenges Tanzania, just like any other country are eminent; people are evicted from in the globalised world, faces challen- their homes in the name of investment, ges in protecting and enforcing human discriminatory laws are still in place and rights. These challenges range from his- there is a growing gap between rich and torical background to socio-economic poor. circumstances and cultural diversity This paper would like to examine and among the people in the world. The late analyze how human rights are protected Rashid Mfaume Kawawa once said, “A and enforced in Tanzania and how the Bill of Rights merely invites conflicts. It is Government promotes and protects hu- a luxury which we cannot afford.”1 This man rights, especially in the advanced statement leads to the inception that technological world of today. challenges faced in the protection and enforcement of human rights in Tanza- Protection and Enforcement of Hu- nia is a historical one. However, taking man Rights in Tanzania the Cold War and the time of the state- An effective human rights regime ment into account it becomes clear that should contain tools that feature suitable there was no malicious intent. and effective promotion, protection and enforcement of human rights and basic freedoms. Being the theme of this paper, 1 See http://www.parliamentarystrengtherning. protection and enforcement of human org/humanrightsmodule/pdf/human rightsunit2. rights have been discussed in seriatim. pdf, accessed on 23.09.2011.

83 Starting with protection: In Tanzania, This was contrary to what happened in human rights have been protected by Zanzibar, where the Bill of Rights be- incorporating them into the constitution came operational in the same year in and statutory laws that create bodies re- which it was incorporated.7 There were sponsible for the promotion and protec- no prescribed procedures on how these tion of human rights.2 By incorporating rights would be enforced by the courts. human rights into the Constitution and Despite having the Bill of Rights in the other laws means that human rights are Constitution, the catalogue of the Bill made known to the people and enforced of Rights is very restricted to some ci- through the means provided by the Con- vil and political rights, and hardly two stitution and the statutory laws.3 socio-economic rights.8 This is contrary Incorporating human rights into the to international call that socio-economic Constitution places the duty on the rights be incorporated into the domestic government to take all reasonable and laws of states, to ensure their enforce- necessary administrative, legislative ment.9 Poor incorporation of socio-eco- and judicial measures to ensure that hu- nomic rights into the Constitution is a man rights are respected, protected and result of rigid classification of human enforced, as provided by in the Consti- rights into civil and political rights, so- tution.4 cial, economic and cultural rights. These In Tanzania, the Fifth Constitutional classifications make the socio-economic Amendment Act incorporated the Bill rights beyond the reach of the courts of of Rights into the Constitution in 1984.5 law, thus rendering the principles that However, the Bill of Right only came all human rights are equal, indivisible into operation three years later, when and interdependent meaningless.10 Sta- the government deemed it fit to do so.6 7 See I. Shivji et al (Eds.). 1991. Supra, Note 3. The second post revolution constitution of 1984 2 See inter alia the Commission for Human contained the Bill of Rights, and that it started to Rights and Good Governance Act, The Law Re- operate on the same year 1984. forms Commissions Act, The Non Governmental Organizations Act. 8 See article 22, 23 and 24 of the Constitution of United Republic of Tanzania, 1977 as amen- 3 See I. Shivji et al (Edts.). 2004. Constitutional ded from time to time (articles containing eco- and Legal System of Tanzania: A Civics Source- nomic rights). See also: C. J. Mashamba. 2008. book, Mkuki na Nyota Publishers: Dar es Salaam, Casting the Net Wide: Litigating Socio-economic p. 89. Rights Beyond Bill of Rights in Tanzania. The 4 See J. C. Mubangizi. Constitutionalisation Justice Review 1, p. 50. and Justifiability of Social Rights: Prospects and 9 F. Viljoen. 2007. International Human Rights Challenges in the Protection and Enforcement of Law in Africa, Oxford University Press: Oxford, Socio-Economic Rights: Lessons from the South p. 571. African Experience. A Paper Presented on VII World Congress of the International Association 10 General Comment No. 9 (1998) on Do- of constitutional Law, Athens, and 11th 15 June mestic application of International Covenant 2007. on Economic, Social and Cultural Rights, UN Doc. E/1999/22 paragraph 22. Quoted by C. 5 Act No. 15 of 1984. J. Mashamba, Casting the Net Wide: Litigating 6 See I. Shivji et al (Eds.). 1996. Supra, Note 3. Social Economic Rights Beyond the Bill of Rights

84 tes like Tanzania that have not incor- on.14 Similarly, Article 30 of the Cons- porated, or poorly incorporated, socio- titution, which is a derogation article as economic rights into their domestic far as the Bill of Rights is concerned, instruments, always lean on poverty as does not meet the accepted international the hindering factor.11 standards of limitation clauses.15 How- Moreover, the Bill of Rights has many ever, on Zanzibar the case is different: limitation clauses that hinder the In 2002, Zanzibar’s constitution was enforcement of human rights as pro- amended and the derogation clause, vided by the Bill of Rights. Limitation similar to Article 30 of the Constituti- clauses contained in the Bill of Rights on of the United Republic of Tanzania, of the Tanzanian Constitution make hu- was likewise amended. A more useful man rights unreachable for the people, and meaningful clause, which is neither because they make it difficult for the arbitrary nor disproportional, was adop- people to invoke the jurisdiction of the ted. courts to enforce their rights. Limitation In the constitutional protection of hu- clauses are, however, not entirely pro- man rights, an entrenched Bill of Rights hibited by the international standards may be adopted.16 This restricts the on human rights; it is required that the amendment of the provisions of the limitation clause should not arbitrarily Bill of Rights by setting a special way and/or unreasonably make the rights in to amend the provisions of the Bill of question unreachable to the people.12 Rights. In Tanzania, the provisions of Unfortunately, the limitation clauses the Bill of Rights are amended in the contained in the Bill of Rights of our same way as any other provision of the Constitution do not adhere to the inter- Constitution: In accordance with article national accepted standards of limitation 98 of the Constitution. This has resul- clauses.13 The limitation clause which is ted in unjustifiable amendments to the acceptable should not water down the provisions of the Bill of Rights. For in- meaning of the right itself; meaning the stance, the government quickly filed an limitation imposed should be proportio- appeal against the decision of the court nal to the likely effects of that limitati- in the case of Rev. Christopher Mtiki- la vs. Attorney General17, which held in Tanzania, 7 The Justice Review 1, 2008, pp. that 37-102. 11 Enforcement of socio-economic rights depends on economic situation of the country; however, in case of non-enforcement the state must prove that its resources do not suffice to 14 See M. Bagaric. 2007. Analysis of Limitati- enforce those rights. on Clauses in the Victoria and Act and Human Rights Acts, 3 High Court Quarterly Review 3, 12 See I. Shivji et al (Eds.). 1992. Supra, Note 3. p. 122. 13 See I. Shivji et al (Eds.). Supra, Note 3. Also, 15 See I. Shivji et al (Eds.). 1992. Supra, Note 3. see Art. 30 of the Constitution of United Repub- lic of Tanzania, 1977, as amended from time to 16 See I. Shivji et al (Eds.). 1992. Supra, Note 3. time as an example of arbitrary limitation clause. 17 [1995] TLR 31.

85 …the requirement that participati- Provisions relating to amendments of on shall be through a political party the Bill of Rights need to be considered only is not a procedural matter but a if the state wants to have democracy, substantive condition taking away the and a meaningful Bill of Rights to pro- right to participate for citizens who tect its citizens and their property. do not belong to political parties. Respect and protection of human rights and democracy go hand in hand with the However, the government later with- doctrine of constitutionalism. Tanzania drew the appeal and sent a bill to Parlia- is said to have respected the doctrine ment to legislate in anticipation against of constitutionalism, as its Constitution that decision of the court. The Parlia- contains principles of constitutionalism; ment accepted the bill and legislated however, how these principles will be against the decision of the court, as re- implemented is still a question. quested by the Executive. As a result, a In 1992, a good step was made with re- claw-back clause was added to Articles spect to democracy and human rights 20 and 21 of the Constitution, limiting in Tanzania. This was the restoration of the right to association and the right to multi-party democracy. This was done participate in public affairs respectively. as a response to recommendations made There is a danger of rendering the whole by the Nyalali Commission, which also Bill of Rights meaningless if this kind proposed the removal of 40 repressive of amendment is not controlled, as Ny- legislations from the statute books. The erere reiterates: restoration of multi-party democracy was implemented using the Eighth This is very dangerous. Where can Constitutional Amendment Act.19 The we stop? If one section of the Bill of existence of multiple parties in a count- Rights can be amended, what is to ry widens the venue for participation of stop the whole Bill of Rights being the people in political issues within their made meaningless by qualifications of, and amendments to, all provisi- country, through either voting or asso- ons? I am saying that the basic Rights ciation. As noted by Mwalimu Nyerere, of the Citizens of this country must be participation of the people in the public regarded as sacrosanct. The right to affairs is very important in a democratic 20 participate in Government is essen- society. tial to democracy. The Right to vote With the multi-party system of demo- and the Right to stand for elective of- cracy, free and fair elections are an fice are Rights of Citizenship.18 important aspect. So far, the people of Tanzania have experienced four multi- 18 J.K. Nyerere. 1995. Our Leadership and the party elections since 1995. In all four destiny of Tanzania, African Publishing Group: of these elections, corruption and other Harare, pp. 9-10. Quoted by P. Alluwalia and A Zegeye. 2001. Multiparty Democracy in Tanza- nia: Crises in the Union, African Security Review 19 Act No. 4 of 1994. 3, p. 10. 20 See J.K. Nyerere. Supra, Note 20.

86 malpractices were reported.21 To cure As result of this requirement, people the problem of corruption in elections, who are not in the area of a polling stati- the government enacted a law to govern on are unable to vote. Furthermore, this election expenses, especially during affects citizens who are outside of the campaigns.22 There are some complaints country during elections. The second is regarding the Act, especially regarding the introduction of the Permanent Na- the provision prohibiting the exchange tional Voters Register, which stipulates of promises during campaigns, which that only those with correct information is an essential element of campaigns.23 in the registry be allowed to vote. The- Moreover, the Act was criticized as it se factors led to a tremendous decrease conferred excessive powers to the Re- in the number of people who exercised gistrar of Political parties, allowing the their right to vote in almost all elec- removal of any candidate holding a po- tions. In the 2005 General Election, for litical post, and a recommendation to instance, there were 16,401,694 registe- the party sponsoring him or her to no- red citizens, whereas only 11,875,927 minate another candidate once there is voted. According to these statistics, reason to believe that provisions of the 4,525,667 people failed to vote in that Act have been violated.24 election.27 Moreover, since the 2005 General Elec- In all four elections, an independent can- tions, loss or fall in franchise has been didate was not allowed. The Constituti- experienced. This can be explained by on prohibits an independent candidate.28 various factors. The first factor is the re- Despite struggles by human rights acti- quirement set by the Election Act25 that vists, this provision remains. The Court every voter should appear in person at of Appeal of Tanzania declared that the the polling station during the election.26 power to decide on whether to allow independent candidates is a matter for Parliament, not the Court.29 At the same time, several government 21 http://www.jamiiforums.com/uchaguzi-tan- agencies have been established with the zania-2010/73516-is-democracy-political-com- primary objective of promoting and pro- petition-under-threat-in-tanzania.html. Accessed on 10.02.2011. Also, see LHRC, Tanzania tecting human rights, and in some occa- Human Rights Report, 2006, 39. sions assume powers resembling those 22 See Election Expenses Act, No. 6 of 2010. 23 See http://allafrica.com/sto- 27 See Tanzania Human Rights Report of 2005, ries/201009020037.html. Accessed on issued by Legal and Human Rights Center, Dar 10.02.2011. Also, see section 21 of the Elections es Salaam, 34 Expenses Act, No. 6 of 2010. 28 See articles 39 (1) (c) and 67 (1) (b) and 77(3) 24 See Mwananchi Newspaper of Wednesday (a) of the Constitution of the United Republic of 24 March 2010; also see Section 24 of the Act Tanzania, 1977 (as amended from time to time). No. 6. of 2010 29 See Attorney General vs. Rev. Christopher 25 Act No. 1 of 1985. Mtikila, Court of Appeal of Tanzania, Civil Ap- 26 See Section 17 Supra, Note 27. peal No. 45 of 2009.

87 of the court to receive and entertain al- violated.35 The Commission recommen- legations of violation of human rights. ded that the victims be paid compensa- The Commission for Human Rights and tion for their lost properties, and that Good Governance, which was establis- humanitarian assistance be provided. hed under Article 129 of the Constituti- However, a challenge facing the Com- on of the United Republic of Tanzania30, mission is economic dependence on and the Commission for Human Rights the government. This has affected the and Good Governance Act31, is one functions of the Commission not only such body that promotes and protects in terms of independence, but also in human rights in Tanzania.32 Moreover, terms of accessibility by the people. The Commission has been given the power Commission’s economic dependence to receive allegations of human rights on the government means that on cer- violations, institute proceedings in the tain occasions it sides with the latter in courts of law on behalf of the victims of protecting the so-called public interest human rights violations, among others in investment. This happened in 2007, powers.33 when officials of the Commission per- On 20 June 2002, the Commission re- suaded the Hadzabe people to accept a ceived a complaint34 from Ibrahim government proposal to give a portion Kiroso, 134 others and the Legal and of their land in Yaeda Chini village to an Human Rights Centre (LHRC). The investor.36 In this case, Hadzabe peop- complainants represented the villagers les’ refusal denotes of lack of involve- of Nyamuma, who were evicted from ment of the people in decision-making their land; their houses were burnt un- processes, especially in matters affec- der the command and supervision of ting them directly.37 The Commission the District Commissioner. In this case, for Human Rights and Good Gover- the Commission found that right to own nance must ensure the participation and property, the right to adequate standards involvement of the people in decision- of living, the right to privacy and family making processes, and not side with integrity, the right to fair treatment and the government, thus violating peoples’ protection, the rights to settlement and right to participation in public affairs. citizenship, the rights to equality and Regarding accessibility of the Commis- freedom from discrimination, were all sion by the people, poor resource allo- cation by the government has resulted 30 The Constitution of the United Republic of in a lack of Commission branches in Tanzania, 1977 (as amended from time to time). 31 See Act No. 7 of 2001. the Commission 35 See P. F. Kiwelo., The Human Rights Com- started its operations in 2002. mission in Tanzania: An Idea Takes Shape. East 32 See Article 130 (1) of the Constitution of African Journal of Human Rights and Democra- United Republic of Tanzania, 1977 as amended cy. 2006, p. 54. from time to time 36 See LHRC, Human Rights Report, 2007, p. 33 See Section 6 of the Act No. 7 of 2001. 104. 34 HBUB/S/1032/03/MARA. 37 See Supra, Note 38.

88 many regions and districts. This makes by the commission to be incompatible it difficult for people residing outside of with human rights. Unfortunately, the Dar es Salaam to access the Commissi- government is working slowly in imple- on. Furthermore, the Commission’s re- mentations the recommendations of the commendations are not enforceable as a Commission concerning these laws. court decree.38 The Commission has no In fact, the Judiciary of Tanzania is res- power over the Office of the President ponsible for the enforcement of human of United Republic of Tanzania or the rights. As pointed out earlier, the Bill of Office of the President of the Revolu- Rights was incorporated into the Con- tionary Government of Zanzibar.39 De- stitution without a law stipulating its spite all these limitations, the Commis- enforcement. In 1994, the Basic Rights sion is an important factor in promoting and Duties Enforcement Act42 was int- and protecting human rights and good roduced to provide for the enforcement governance in Tanzania. of the Bill of Rights.43 This Act serves Another government agency that two main roles; firstly, it demands that through its mandates and functions pro- the state respect, protect, promote and motes and protects human rights is the enforce the Bill of Rights, secondly it Law Reform Commission, established enables the enforcement of the Bill of by the Law Reform Commission Act Rights. The latter is achieved through of 1980.40 The Commission was estab- the creation of avenues of redress, by lished to review laws and recommend which complaints can be filed, via a spe- whether they violate principles of hu- cial mechanism set by law, against the man rights and good governance. In state or any other person violating the performing its functions, the Commissi- provisions of the Bill of Rights.44 on must discourage arbitrariness of the It is right of any person45 whose rights law by promoting fairness and respect have been, or are likely to be violated, of human rights in accordance with nati- to apply to the High Court for redress.46 onal and international instruments.41 Still, there many difficulties in enjoying In recent years, the Commission has re- these rights for the majority of the peo- viewed Police, Prisons and Road Traffic ple in Tanzania. The mechanisms set by Laws, which were considered law to enforce human rights in Tanzania are cumbersome: The procedures are

38 See Section 17 of the Commission on Human 42 Act No. 33 of 1994. Rights and Good Governance Act, No. 7 of 43 See Section 3 of the Basic Rights and Duties 2001. Enforcement Act, No. 33 of 1994. 39 See Section 16, Supra, Note 40. 44 See J. C. Mubangizi. Supra, Note 4. 40 See Act No. 11 of 1980. 45 Persons who can petition to the High Court 41 See Section 13 of the Law Reform Commissi- include individuals and/or body of persons whe- on Act of Tanzania, Cap. 171 R.E 2002; also see ther corporate or non corporate A. Mgeyekwa., Participatory Approach in Law 46 See Section 4 of Basic Rights and Duties Reform. Law Reformer Journal 1. 2009, p. 11. Enforcement Act, No. 33 of 1994.

89 very technical and long, the venue is not which is a very important right as far as easily accessible to the people, and it is human rights jurisprudence is concer- very expensive. ned. The High Court is the only court with On another occasion, the judiciary original jurisdiction to receive and de- enforced the right to individual owner- termine human rights petitions.47 Due to ship of property, despite the fact that the nature of the country, particularly re- during that time the country was ruled lating to the locations of the High Court by strong ideas of socialism. This was registries, many people, especially in in the case of Latata Msangawale vs. rural areas, fail to access the Court. Mo- Henry Mwamlima50, where the court reover, being a constitutional issue, the held that determination of human rights matters requires the court to be constituted with In this country, we still respect the law three judges. Due to the fact that there on individual ownership of property are but few judges present in most High and hence the appellant had invested Court Registries, human rights cases are his labour on this piece of land, those delayed, to wait for the coram.48 other people who took it over should On a more positive note, some of the have paid him compensation as right- 51 contributions of the judiciary can be dis- ly decided by the trial court. cussed in extenso. The contribution of the judiciary in enforcing human rights The court reached this decision as the started even before the incorporation of piece of land of the appellant, which the Bill of Rights into the Constitution. was within an Ujamaa village, was During this time, the judiciary spearhea- confiscated without any compensation. ded and proclaimed itself as the temple The reasoning was that the appellant of justice, open to everyone for seeking was also required to live as a socialist legal redress, as provided by law.49 In as per the country’s policy at that time. light of this proclamation by the court, This case was preceded by another case the judiciary was not only telling the of the same nature, where the court held people that it is the final body dispen- that compensation should be paid to an sing justice in the country, but was also individual who was expelled from an enforcing the right to access to court, Ujamaa village.

47 See Section 8, read together with Section 4 of the Basic Rights and Duties Enforcement Act, No. 33 of 1994. 48 See Section 10 of the Basic Rights and Duties 50 High Court of Tanzania at Dodoma, Civil Ap- Enforcement Act; also see I. Shivji, Supra, Note peal No. 99 of 1975; Reported (1979) LRT No. 3. 3, 1996. 51 Quoted by Kijo-Bisimba and C.P. Maina, 49 See Joseph Kivuyo and Others v Regional 2005. Justice and Rule of Law in Tanzania: Police Commander of Arusha and Another, High Selected Judgments and Writngs of Justice J. Court of Tanzania at Arusha, Miscellaneous Civil Mwalusanya and Commentaries. Legal and Hu- Application No. 22 of 1978 (Unreported). man Rights Centre: Dar es Salaam, p. 13.

90 The compensation was for the power and duties contained in the Bill of and labour invested by this individual Rights. on the Ujamaa farm.52 Furthermore, the right to access to court As mentioned earlier, the Bill of Rights was also protected and enforced by the was incorporated into the Constitution courts, despite the absence of procedu- in 1984. The Bill of Rights came into ral law to that effect. This was done in motion three years later, but the law for the case of Peter Ngomango vs. Attor- its enforcement was only introduced ten ney General.55 In this case, the court years later. This means that if the judi- declared that provisions of the Govern- ciary was not eager to enforce the basic ment Proceedings Act56, which required rights, freedoms and duties contained that the consent of the Minister be obtai- in the Bill of Rights, then it would have ned before the government can be sued, waited until the enactment of the law as was unconstitutional as it bars access to required by Article 30(4) of the Consti- court, contrary to Article 13(3) of the tution. Constitution. The mentioned cases serve Showing its concern concerning the as examples that the court did achieve enforcement of the basic rights, free- much in the promotion, protection and doms and duties of the people, in the enforcement of human rights, both be- case of DPP vs. Daudi Pete53, the ju- fore and after the incorporation of the diciary started that “until the parlia- Bill of Rights and before the enactment ment legislates under article 30(4) of the of the Basic Rights and Duties Enforce- Constitution the enforcement of the basic ment Act57, as per article 30(4) of the rights, freedoms and duties may be effec- Constitution. ted under the procedure and practice”. In In the case of Rev. Christopher Mtikila this holding, the Court of Appeal allo- vs. R58, the Court enhanced and protec- wed the High Court to enforce the basic ted the right to freedom of opinion and rights, freedoms and duties by apply- expression of politicians. It held that the ing its original jurisdiction. Moreover, words used by the appellant were me- the principle that a court may suo motu rely political propaganda, meant to win raise the issue of constitutionality of the public and not to breach peace, and an Act of Parliament was raised during therefore did not amount to a criminal this time.54 In this case, the judiciary offence under Section 89(a) of the Penal widened the avenue for protection and Code.59 enforcement of basic rights, freedoms 55 High Court of Tanzania at Dodoma, Civil Case No. 22 of 1992. 52 See Laiton Kigala v Musa Bariti, High Court of Tanzania at Dodoma, High Court (PC), and Civil 56 Act No. 16 of 1996 as amended by Act No. Revision No. 148 of 1975. 40 of 1974 53 High Court of Tanzania at Mwanza, Miscella- 57 Act No. 33 of 1994. neous Criminal Cause No. 80 of 1989. 58 High Court of Tanzania at Dodoma, Criminal 54 See Attorney General v. Marwa s/o Magori, Appeal No. 90 of 1992. Criminal Appeal No. 95 of 1988 (Unreported). 59 Cap. 16 of the Laws of Tanzania.

91 In the case of Francis Ndyanabo vs. homosexuals by the government62. Cor- AG60, the right to access to court for ruption and impunity are issues eating election petitioners was protected by away at the civil, political, social and the court by declaring that the provision economic rights of many Tanzanians. of the Elections Act61, which requires a We may speak of some achievements in petitioner to deposit 5 million TSHS as the field of human rights, but we must a security for costs incurred, is uncons- remember to address these issues and titutional and violates the right to access work on the pitfalls evident in our hu- to court. This decision does not only man rights jurisprudence. protect the right to access to court for This paper concludes by recommen- election petitioners, but it reminded the ding an entrenched Bill of Rights with a parliament that fees to file a case in the wide range of human rights. Firstly, the court of law can be a barrier in acces- Bill of Rights must be taken into con- sing courts for poor people. sideration, the number of human rights increased, giving special consideration Conclusion to socio-economic rights and the rights Having discussed how human rights of special groups, such as disabled per- are protected and enforced in Tanza- sons. Secondly, there should be delibe- nia, and highlighted the pitfalls of the rate intention to remove unnecessary mechanisms used to do the same, this limitation clauses that are unreasonable paper concludes by pin pointing some and disproportional, for instance Artic- challenges facing Tanzania as far as hu- les 20 and 21 in our Bill of Rights, to man rights are concerned. Homosexua- ensure that the rights are both reachable lity, which is prohibited in Tanzania and and meaningful. Lastly, it is believed many African countries, is emerging that this is more attainable if incorpora- rapidly as a human rights issue, as acti- ted into the New Constitution. vists lobby for the respect of the rights of

62 See Edward Qorro, Tanzania: Activists 60 Civil Appeal No. 64 of 2001. Petition UN over Gay’s Rights, AllAfrica.com 61 Act No. 1 of 1985. 15.07.2009

92 Legal Reform Processes and issues and monitors human rights vi- the Recognition of Paralegals olation.3 in Tanzania The Women’s Legal Aid Centre (WLAC) By: Angela K. Ishengoma defines a paralegal as“a person who has Dar es Salaam basic knowledge on legal issues and who can serve the community at his/her own Nature, Context and Scope of Parale- door-steps”4, while the Tanzania Wo- gal Practise in Tanzania men Lawyers Association (TAWLA) The term paralegal in Tanzania has va- defines a paralegal as“a person with ba- rious definitions. However, it is impera- sic knowledge on laws and comes from the tive to adopt a working definition from community which he/she serves”5. The the outset. In plain English, the term Law Reform Commission of Tanzania refers to a “person trained in subsidiary (LRCT) divides paralegals into two legal matters but not fully qualified as a separate categories, based on the legal lawyer”1. However, this definition does assistance they offer: “First is that group not augur well with that used in the le- of individuals who provide legal servi- gal jurisprudence, in which the term re- ces through experience and /or acquired fers to “a person who assists a lawyer in knowledge and they normally charge a fee duties related to the practice of law but for their services”. This group is referred who is not a licensed attorney”.2 to as “professional paralegals”6. The The above two definitions notwithstan- second group is defined as “the one or- ding, in practice paralegals in Tanzania ganized by NGOs and this group is based are defined according to the objectives on the provision of legal aid and so offers of each mentor or user. For instance, the its services free of charge”. This group is Tanganyika Law Society (TLS) defines referred to as “voluntary paralegals”7. a paralegal as:

A non lawyer who has attended trai- nings given by lawyers and acquired the basic knowledge on different legal 3 Tanganyika Law Society (2010) “Concept and human rights issues and who ser- Note” on Stakeholders’ Forum to Discuss the ves in the grassroots areas by provi- Legal Sector Reform Programme Paralegals Base- ding legal advice, raises awareness line Survey Report, Dar es Salaam: Tanganyika Law Society. on different legal and human rights 4 An interview with the Ms. Scollastica Jullu in May 2011 5 An interview with Ms. Grace Mkinga, 2011 6 Law Reform Commission of Tanzania (2004) 1 Concise Oxford Dictionary-Tenth Edition (Soft- Report on the Scheme for Provision of Legal Ser- copy version) vices by Paralegals, Dar es Salaam: Law Reform 2 Garner, B. A. (edt.) (2004) Black’s law Dictio- Commission of Tanzania. December. p12. nary. Thomson West, USA, 8th Ed, p 1143. 7 Ibid

93 Based on the above definitions, as well Establishment as on the categorization made by the In 1992, the Women’s Legal Aid Centre Law Reform Commission of Tanzania, opened its first paralegal unit in Tanga. one can define a voluntary paralegal This pilot project gradually transcended in the Tanzanian context as a person to Mororgoro, Kateshi and Mbeya and based in a community who has gained to date 27 paralegal units have been es- elementary/simple knowledge of basic tablished, monitored by WLAC. laws and procedures governing legal The Legal and Human Rights Centre and human rights. Competent lawyers (LHRC) established nine paralegal units offer the training, and the paralegals in some districts of Tanzania Mainland use this knowledge to educate and to in 1998 as a pilot project of their Mass create awareness among community Education Programme. The focus was members. on districts where land disputes and Voluntary paralegals are therefore trai- violation of human rights, particularly ned in different legal aspects, depending those of women, such as Female Geni- on the mentor organizations’ areas of tal Manipulation (FGM), were frequent- interest. Mentor organizations are com- ly reported. These units have expanded prised mainly of non-government orga- to cover districts such as Maswa, Bari- nizations (NGOs), each with different adi, Geita and Ukerewe, the necessity training durations and no harmonized of paralegal units in these districts due or common curriculum. The capacities mainly to superstitious beliefs, sexual of paralegals differ greatly, as the are- abuse of women and children, as well as taught are determined by the training as human rights violations in the fishing organization. For instance, while some and mining industries. decide to concentrate on land issues, Other organizations involved in the trai- others focus on inheritance and marria- ning of paralegals include ENVIRO- ge laws or provide training on children’s CARE, which has established gender, rights. legal and human rights committees9 in It is an undisputed fact that paralegals 585 villages in the Kilimanjaro region. have a wider scope of geographical Moreover, TAWLA have established reach than mainstream legal professi- paralegal units in Njombe and Bahi onals do. These paralegals work in the districts in an effort to sensitize the grassroots, especially in rural settings, communities on human rights and the and are always very close to those who land rights of women. Paralegal units require their assistance, as they belong also exist in other areas, such as Lindi, to the same community8. Mtwara, Arusha, Shinyanga, Kigoma,

9 The institution did not recognise this cadre as paralegals in the first interventions. Only in 2010 8 An interview with Ms. Loyce Lema of the did they Environment, Human Rights Care, and Gender adopt the term “paralegal units”. Organisation (ENVIROCARE)

94 and are under the umbrella of different There have been some attempts to reco- NGOs. gnize paralegals in the country: Initially, in 2005, WLAC organized a national Legal Framework paralegal symposium with the objective The current system of providing parale- of “sharing experience and identifying gal services in Tanzania is uncoordina- common issues in order to promote the ted and not adequately institutionalized. role of paralegals in Tanzania, as well as The on-going trend is such that activi- to identify important issues for advocacy ties of paralegals are self-regulated, me- towards promotion of their role”13. This aning that they are conducted according symposium was seen as one of the stra- to the wishes of the providers. tegies for the founding organizations of Many Tanzanian laws forbid a parale- paralegal work in Tanzania to advocate gal to assist another person in a court of and influence policy-makers to recogni- law. For instance, the Civil Procedure ze paralegals as part of the legal cadre. Code provides that the party in person, In the same year, WLAC compiled the his recognized agent or an advocate Tanzania Paralegal Profile, which aimed duly appointed to act on his behalf may to provide further information about pa- make appearances in court10. Autho- ralegals in terms of location, opening rized agents include persons holding the hours, and their focus areas. Another powers of attorney11. Accordingly, Sec- symposium followed in 2008, which ul- tion 41 of the Advocate Act, Cap 341 timately managed to form the Tanzania of 2002, Revised Edition, prohibits any Paralegals Network (TAPANET), with unqualified person to act as an advocate, the goal of creating a common voice on and thereby prohibits paralegals institu- issues relating to development of para- ting, defending, or representing another legals in Tanzania14. person, in civil or criminal matters, be- Furthermore, TLS was commissioned fore a court of law. by the Legal Sector Reform Program The non-recognition of paralegals in (LSRP) to conduct a Paralegal Baseline our domestic laws has serious ramifi- Survey. The survey found, among other cations in terms of access to justice, as things, that the majority (65.7%) of pa- well as the attainment of timely justice ralegal units have acquired legal regist- for all. This contradicts the milestones ration, while 32.9% have not. that paralegals have reached so far, and contradicts the fact that paralegals have been hailed as playing a critical role in addressing the National symposium for Parale- complementing legal aid services12. gals held in Movenpick Hotel, 2005. 13 Women’s Legal Aid Centre. (2005) Procee- 10 Order III Rule 1 of the Civil Procedure Code, dings Report on the National Paralegals National Cap 33 of 2002 Revised Edition. symposium for Paralegals held in Movenpick 11 Order III Rule 2 ibid Hotel, 2005. 12 Dr. Asha-Rose Migiro the then minister for 14 See the Tanzania Paralegals’ Network, Me- Community Development Gender and Children morandum and Articles of Association, at p.2.

95 Most paralegal units not registered indi- volunteerism can wither away. With gu- cated plans to register in the future (33 aranteed financial support, paralegals out of 46)15. would reach more clients with legal problems, as they would have the means to Challenges follow-up on cases, as well as the op- Paralegals face two main challenges: portunity to conduct legal sensitization The first challenge is non-recognition. activities in their communities. As shown elsewhere, the law does not empower them to undertake any legal Attempts Made to Recognize Parale- work, even in the lowest courts and tri- gals bunals. The non-recognition is attribut- Apart from the efforts made by NGOs ed to several factors, such as the lack of to support paralegal work in Tanza- a (harmonized) curriculum to train para- nia, the government commissioned the legals, and lack of a common understan- LRCT to undertake a study on the Sche- ding among mentoring organizations as me for Provision of Legal Services by to the type of paralegals needed16. Ano- Paralegals. In this study, it was sugges- ther hindrance is the resistance from ad- ted that “paralegals be allowed to repre- vocates, who regard paralegals as „bare sent parties in Primary Courts presided foot“ or „bush lawyers“ and who thereby any competent magistrate provided fore cannot be trusted to participate in that such paralegals act as agents of the the legal fraternity17. The fact that pa- respective parties and not purporting to ralegals operate either as loose entities be advocates”18. or under the umbrella of other organi- The Government has also introduced zations is considered a factor that could the Legal Sector Reform Programme compromise their legitimacy. Medium Term Strategy (MTS), which The second challenge is that of sustai- prioritizes components that require nability. As stated in this paper, the ma- prompt intervention. The MTS provides jority of paralegals operate on a volun- a strategy for the training of paralegals. tary basis, or alternatively using grants The targeted result is to enhance access from mentoring organizations. As a re- to legal aid for the disadvantaged and sult, no paralegal unit can be sure of its the poor, and to disseminate legal infor- existence; the mentoring organization mation. The rationale is that the govern- can change its course, or the spirit of ment, using a consultative process, will design and implement well-regulated 15 See The Legal Sector Reform Programme and countrywide programs that monitor (2010) Tanzania Paralegal Baseline Survey, Dar and build up a legal network19. es Salaam, p.15. 16 From an interview with Ms. Mafole of LHRC, 18 Ibid at 2.1 and 2.2 2011 19 For further reference, see Mwaimu, M.M. 17 See a Report on the Scheme for Provision of (2005) “Legal Sector Reform Program and the Legal Services by Paralegals, LRCT, 2004 at pp. Position of Paralegals in the Judicial System” 35&36.

96 At the beginning of 2010, committee creditation of training institutions, members of the Inter Ministerial Tech- c) curriculum for paralegal training, nical Committee (IMTC) tabled and and d) establishment of code of discussed a cabinet paper. During this conduct for paralegals”20. discussion, it was noted that the concept Financial support is necessary to of a “Paralegal” was relatively new and 4. ensure that paralegals can focus confusing to the majority of the com- exclusively on paralegal work. Cur- mittee members. For this reason, the is- rently, the majority of paralegals sue at stake was returned to the Ministry need to engage in economic activi- of Constitutional and Legal Affairs with ties to support themselves; therefo- directions for the ministry responsible re, they cannot offer their services to prepare a Concept Paper to enable on a permanent basis. the Committee Members to obtain in- sight into the idea behind paralegals in 5. To counter the decreasing number the legal system. So far, all these pro- of paralegals, and to improve wor- cesses have stalled and at the point of king conditions, further training writing this paper, progress has not been and support is needed. Furthermo- forthcoming. re, the introduction of a motivation scheme may be helpful. Recommendations In order to overcome the predicaments Conclusion mentioned earlier, this paper recom- The legal status of paralegals in Tanza- mends the following: nia leaves much to be desired. This leads to the conclusion that recognizing the services provided by paralegals at com- A legal aid law is needed that will 1. munity and district levels is not enough: recognize paralegals and provide Institutionalization and coordination, the criteria for their admission. along with the introduction of laws to 2. Paralegals should be allowed to re- support the operations of paralegals, are present parties in Primary Courts paramount. The danger is that without and ward tribunals where they can adequate coordination, the well-inten- act as agents of the respective par- ded efforts of paralegals in serving the ties, while not purporting to be ad- poor majority and marginalized groups vocates. of our society might be nullified. Supporting and acknowledging the An independent regulatory body 3. importance of coordinating and insti- for the paralegal cadre is needed to tutionalizing paralegal activities, the oversee the following: a) the estab- Women’s Legal Aid Centre coordinated lishment of a paralegal cadre, b) ac-

A Paper presented at the National Paralegal Symposium. 20 LRCT Ibid p. 44

97 the Tanzania Paralegal Profile in 2005. it calls for a code of conduct regulating This profile combines information on paralegal work. paralegals and NGOs working with pa- In view of the above, and taking into ralegals with the purpose of enhancing consideration the crucial role played by networking and collaboration among paralegals in facilitating access to justi- paralegals and paralegal mentor organi- ce, particularly for poor and disadvan- zations. taged people, there is a need to have a The Baseline Survey, on its part, provi- clear policy on legal aid, a law on legal des essential information on paralegal aid and paralegals, as well as guidelines work in the country. It clearly indicates to govern the activities of paralegals. where, what and with whom the para- The government should therefore play legals render their legal services. The an active role in coordinating the acti- survey calls for the enhancement of vities of paralegals and ensuring that all laws to establish the services that can Tanzanians enjoy equal access to justi- be provided by paralegals. Additionally, ce.

98 The Rights of Women of women against violence. For examp- Against Violence in Tanzania le, in the Pare tribe elders secretively summoned and punished men notorious By: Nakazael Lukio Tenga for beating their wives “unreasonably”2. Women Legal Aid Centre (WLAC) Traditionally, every man had to go Dar es Salaam through an initiation process. Young men were taken to initiation forests, Violence Against Women where elders taught them about adult- The definition of violence against wo- hood, mainly regarding the duties and men includes physical and sexual vio- responsibilities of a grown-up man in lence, as well as economic, psycholo- society. The initiation period lasted for gical and emotional abuse, as outlined approximately one month. During in- below: itiation teachings, love, protection and (a) Violence occurring in the family, caring for both wife and children were in such forms as threats, intimidation, emphasized. Violence was discoura- battery, economic deprivation, marital ged and thus men who beat their wives rape, femicide, female genital mutila- “unreasonably” were punished; it was tion (FGM) and traditional practices against the norm. Hence, in an histori- harmful to women. cal context, the rights of women against (b) Violence occurring in the commu- violence were recognized and protected nity, for instance threats, rape, sexual even at a family level. abuse, sexual harassment or intimidation, trafficking in women and children, The Law forced prostitution as well as violence At the State level, there are laws that against women in armed conflicts. recognize and protect rights of women c) Violence against women perpetrated against violence. The Constitution of or condoned by agents of the state.1 the United Republic of Tanzania3 gu- From this definition, it is clear that vi- arantees the right to personal security, olence against women includes a very generally under the Penal Code,4 and wide spectrum of issues. specifically under the Sexual Offences Special Provisions Act, (SOSPA)5 as Rights of Women Against Violence well as under the International Conven- In Tanzania, all tribal customs, based tions and Instruments, of which Tanza- on their own definition, shun violence nia is party. against women according to their understanding of the definition, and each family, tribe or community has establis- 2 Interview I held with Pastor Aggrey Tenga of hed its own way of protecting the rights Chome- Pare. 3 (art 14, 29), 1 An addendum to the 1997 Declaration on Gender and Development by SADC Heads of 4 Cap 16 R.E 2002 States or Government. 5 Cap 101 R.E 2002

99 When Tanzania became an independent In March 1998, members of State state in 1961, despite the fact that the within the Southern African Develop- Universal Declaration of Human Rights ment Community (SADC), including was already in place, the right to perso- Tanzania, met in Durban, South Africa, nal security could only be enforced un- and reaffirmed their commitment to the der the Penal Code, specifically under prevention and eradication of violence general assaults and offences against against both women and children in the morality, including for instance rape, region. The reason behind the meeting indecent assault and abduction. Subse- was the realization that despite signing quently, SOSPA was enacted in 1998 various UN Conventions, as well as the to specifically address the issue of vio- SADC Declaration on Gender and De- lence against women. In contrast to the velopment in Blantyre, Malawi in Sep- Penal Code, SOSPA criminalizes acts of tember 1997, the cases of various forms violence against women such as Female of violence against women and children Genital Mutilation (FGM), threats, ha- continued to increase. The measures in rassment and intimidation among others, place to protect women and children as well as imposing harsh punishments were inadequate, ineffective and biased upon the perpetrators of such offences. against the victims. The enactment of SOSPA was a big step forward; however, violence against wo- The Practice men thrives in our communities to such Despite Tanzania’s Constitution and an extent, as though it were both con- Law, as well as the Conventions it has doned in our societies and legal. ratified, the question remains if the Concerned with this situation at both a rights of women against violence have national and international level, further improved 50 years after independence. measures have been taken aimed at pre- For lack of official data, it is difficult venting and eradicating violence against to state whether the situation of vio- women. Following the Universal De- lence against women in Tanzania has claration of Human Rights, subsequent • The International Covenant on Civil and Conventions and resolutions, both at Political Rights (ICCPR), ratified on 11 regional and international levels, have September 1976 been passed, all stipulating measures • The International Covenant on Economic, Social and Cultural Rights ( ICESCR), ratified that state parties commit themselves to on 11 September 1976 eradicating violence against women.6 • The African (Banjul) Charter on Human and Peoples Rights (African Charter), ratified on 6 Key among the International instruments to 5 May 1978 and entered into force on 21 which Tanzania has either recognized or ratified October 1986. are: • The Convention on the Rights of the Child • The universal Declaration of Human Rights (CRC), ratified on 10 July 1991 (UDHR) • The African Charter on the Rights and • The Conventions on the Elimination of All Welfare of the Child (ACRWC), signed on forms of Discrimination against Women 23 October 1998 (CEDAW), ratified on 20 August 1985

100 improved or deteriorated. The govern- in the rural areas, where eighty percent ment does not keep official statistics, of women live. According to the inter- but from my own experience, I am viewed doctors, the injuries most com- certain that violence against women is monly treated range from bruises, soft prevalent and widespread in Tanzania. tissue injuries, black eyes, swollen jaws, Data gathered by Non-Governmental lacerations, broken teeth, swollen joints, Organizations (NGOs) and accounts broken bones, internal bleeding, and va- by officials and community leaders ginal lacerations due to forced sexual in- indicate that violence against women is tercourse. These few incidences do not a widespread problem and that it is es- tell everything, but they do provide an calating.7 Doctors in Tanzania indicated indication that violence against women that domestic violence frequently occurs is common despite the legal framework and beaten women suffer from a wide in place. range of injuries. For example, a doctor at a private hospital interviewed on 27 Let me pause here and highlight some March 2002 by a fact-finding team of other common forms of violence against WLAC and Georgetown International women, forms that are rarely discussed Women’s Human Rights Clinic, USA, in Tanzania. I want our society to per- indicated that he sees approximately ceive these issues and to address them. ten to fifteen domestic violence victims When discussing violence against wo- per week who admit that their husbands men, people tend to rush to rape, FGM, or boyfriends injure them. A doctor at common wife battery and abuse, often a public hospital indicated that he sees ignoring other forms of violence against approximately ten to fifteen women per women, such as: month who say that they are victims of domestic violence. Yet, many women Marital Rape do not speak of their abuse, especially According to the Committee on the Elimination of Discrimination against 7 For example, a police report from 2005 to 2007 Women (CEDAW), as well as other indicates that in years 2005, 2006 and 2007, 3997, 4278 and 8894 women respectively were Conventions, forced sexual intercourse raped, and 420, 512 and 597 women respectively amounts to violence against women. were sodomised. In 2008, the World Health Or- In SOSPA, marital rape or domestic ganization (WHO) published a report that indicates that 1820 women in Dar es Salaam and 1450 rape is only an offence if forced sexu- women in Mbeya were interviewed between al intercourse occurs between separated 2000 and 2003, 41% of these women who were couples, if the couple lives together; married or had male partners in Dar es Salaam and 56% in Mbeya, had been sexually abused by marital rape is not an offence. From the their husbands or male partners, 29% sustained interviews with the doctors mentioned bodily injuries. 15% in Dar es Salaam and 23% in above, it is evident that many doctors Mbeya were rendered unconscious by the inflic- ted violence. In a crisis center that sees between treat women who suffer vaginal injuries ten and twenty women a day, about half of those and internal bleeding, resulting from are victims of domestic violence.

101 their husbands forcing them to have by the organs of the state. In many ca- sex, including anal sex. Neither is so- ses, these young girls are abused, some ciety vocal on this issue, nor does the ending up as prostitutes and in other un- law protect women who are victims of acceptably inhumane situations. SOSPA this kind of violence. How long are we could be used to prevent this problem; going to remain silent about this cru- however, the law is underutilized here. elty, how long are we going to tolerate this? Tanzania needs to amend its laws Polygamy to be in line with the Conventions that Despite the fact that the Tanzanian Cons- it has ratified and to ensure that marital titution and International Human Rights rape is criminalized and the perpetrators Laws guarantee the right to dignity8, brought to justice in the same manner as equal protection without gender discri- other rapists. We need to sensitize wo- mination, health and equality in marria- men to speak out about these issues and ge, the Law of Marriage Act, the Islamic to report perpetrators to the police. Law, and the Customary Law all permit polygamous marriages. Not only is this Human Trafficking and Prostitution in violation of these rights, but also the The act of human trafficking is a criminal laws are discriminatory as only the male offence under the Sexual Offences Act. gender has the right to multiple spouses. However, there is no official statistics on The study conducted by the Women Le- this and there are no steps taken by the gal Aid Centre (WLAC) in 2000, as part Government of Tanzania to address the of the Social Watch Programme, reveals trafficking of young girls. For example, that the dignity of women living in a there are unofficial agencies in Dar es polygamous marriage is violated. She Salaam dealing with the “recruitment” is humiliated by her husband, forced to of young girls from rural areas, mainly share her husband with another woman, Iringa. Most of them are primary school in some cases with a younger fema- leavers and secondary school dropouts. le who is favored. It is telling that 93 These young girls are brought to Dar es % of the interviewed women preferred Salaam to work as house-girls or as bar monogamous marriage to polygamous attendants. Girls who have just arrived ones. Furthermore, polygamy exposes from the rural areas can be found and women to health hazards, as the chance negotiated for at Tazara railway station of contracting HIV and other sexually or Ubungo bus terminal, or at the office transmitted diseases increases, hence of an agent, where it possible to choose violating a woman’s right to health. from those who are available. Some of these agents recruit girls for the Arab Apart from the humiliation and health market as well. They organize the logis- hazards, polygamy also negatively af-

tics, including passports and visas. This 8 The Right to Dignity is fundamental. Article common practice thrives unmonitored 12(2) of the Constitution of United Republic of Tanzania.

102 fects women due to reasons such as repealing all laws legalizing polygamy. jealousy, hatred and competition for A leaf can be borrowed from staunch love of a shared husband. This leads to Muslim countries where polygamy has tension, conflict and lack of confidence, been outlawed, countries such as Tuni- directly or indirectly lowering the self- sia with a 98% Muslim population and esteem of women and thus having ne- Turkey with 99%.9 gative impacts in various spheres of her I echo the UN Human Rights Commit- life. For example, in economic deve- tee General Comment No 28 in its 68th lopment, instead of focusing on major Session, which stated, “Polygamy vio- issues that lead to progress, women in 9 For general information, see: polygamous marriages invest time and • Ross, Susan Deller. (2002). Polygamy as a resources to secure their threatened po- Violation of Women’s Right to Equality. In sition in a marriage. Studies conducted Marriage: An Historical Comparative and International Human Rights Overview, 24 by the Organization for Economic Co- Delphi L.Rev.22, pp. 22-27. operation and Development (OECD) • Judaism originally permitted polygamy but reveal that women in monogamous banned it over a thousand years ago, see: • Hyman, Paula E. (1999). On Jewish Funda- societies perform better economically mentalism. In: Howland, Courtney W (edt.). than women in polygamous societies. Religious Fundamentalism and the Human Tanzania cannot achieve meaningful Rights of Women. • Christianity always condemns polygamy, social or economical development un- see: less it promotes the development of all • Krause, Harry D. Family Law Cases, Com- its citizens, including women; this is ments and Questions. • The United States of America successfully the main reason why polygamy must be enforced its general laws criminalizing poly- outlawed. The CEDAW Preamble em- gamy against Mormon polygamists. phasizes the problems that result when • The Russian Empire once allowed Muslims the rights of women to dignity are not to marry polygamous but successfully banned the practice through decrees and laws respected. It “hampers the growth of issued in 1917, 1919 and 1926, see: the prosperity of society and the fa- • Hazard, John N. (1953). Law and Social mily, and makes difficult the full de- Change in the U.S.S.R. • China outlawed polygamy in 1950 and velopment of the potentialities of wo- Vietnam did so in 1960, see Ross, Supra. men in the services of their countries • -India banned polygamy for Hindus in and humanity.” Tanzania’s second and 1955, see: • Singh, Kirt. (1994). Obstacles to Women’s third state reports to CEDAW indicated Rights in India, in Human Rights of Wo- that it is difficult to outlaw polygamy men: National and International Perspec- because it is rooted in both customs and tive. • Overview: polygamy is criminally prohibited the Islamic religion, to which an esti- for all in the Americas, Europe, Australia, mated 50% of the Tanzanian population the countries of the former Soviet Union, belongs. A combination of good politi- China, Vietnam, Nepal, Rwanda, and the majority of Muslim countries such as cal will and an extensive national edu- Tunisia, Turkey, Benin, Cote d‘Ivoire and cation program could pave the way in Mauritius.

103 lates the dignity of women. It is an inad- is crucial as it leads to violence against missible discrimination against women. women and the violation of women’s Consequently, it should be definitely ab- rights. olished wherever it continues to exist.” Customary Law of Inheritance: Bride price The Tanzanian Law of Inheritance is Bride price is a common practice composed of the Customary Law of In- amongst Tanzanian tribes. It requires a heritance, which applies to Native Tan- payment by the groom in form of mo- zanians, the Islamic Law, which applies ney or other items to a bride’s family to Muslims, and the Indian Successi- before marriage, a practice putting a pri- on Act, which applies to Non Natives. ce tag on the bride-to-be. Studies have Under this system of the law, women shown that bride price not only negates do not inherit the property of their de- equality in a marriage by reducing wo- ceased husbands and daughters do not men to personal property, but also en- inherit on an equal basis with their brot- courages domestic violence and marital hers. Furthermore, the system allows rape, as it perpetuates the belief that as the inheritance of women, known as their property, men are free to treat wo- the cleansing of women, which forces men as they please. It gives men justi- widows to engage in sexual intercourse fication for controlling their wives, and with a chosen relative of her deceased often this involves physical, sexual and husband immediately after the burial. emotional violence. The fact that a bride The system also encourages property price must be refunded in the case of a grabbing by male relatives rendering divorce, the system encourages married widows destitute. Aside from material women to remain in abusive marriages.10 loss, these practices lead to humiliati- It is noteworthy that approximately on, physical and emotional violence and 80% of women in Tanzania live in rural loss of dignity, which are all against the areas, where this practice is extremely Constitution of the United Republic of common. Although mistreatment does Tanzania and the Conventions Tanzania not occur in all marriages where a bride has ratified. The Customary Law of In- price has been paid, generally it does re- heritance is responsible for much suffe- inforce the subordination of women and ring of women, and yet is not viewed creates a culture that tolerates domestic as a system that causes violence against violence. This cannot be tolerated and women. Worse still, there is no indi- is against the Tanzanian Constitution cation when this system will change. and the Conventions that Tanzania has In its third and fourth state reports to ratified. The abolishment of bride price CEDAW, Tanzania indicated a willing- ness to repeal this barbaric law, which 10 Local Customary Law (DECLARATION) Order, Government Notice (GN) 279/1963, Schedule is repugnant to both justice and mora- 1, Laws of Persons (Sheria Zinazohusu Hali za lity, but failed to provide a time frame Watu).

104 for implementation of this long-awaited tecting women from domestic violence repeal. Fifty years after independence, is paramount. the majority of women in Tanzania are Another issue is that the existing legal still suffering from this form of violence system is neither understandable nor is inherent in the Customary Law of Inhe- it accessible to the majority of women, ritance. especially those living in rural areas. There are few courts and they are under- Conclusion staffed, while most women are unable The United Republic of Tanzania, to pay court fees and lack legal assis- through its own Constitution and tance. The few legal aid clinics that do through the ratification of the Conven- exist are run by NGOs and receive no tions and Instruments stated above, budget support from the Government. has committed all state authorities and It is recommended that the government agencies to formulate their policies and allocate a budget line that facilitates the programmes in a manner that ensures establishment of legal aid clinics as well that Human Dignity and other Human as supporting legal aid providers. Fur- Rights are respected and cherished. Fur- thermore, the government must address thermore, it guarantees the eradication the trafficking of young girls; it must of all forms of injustice, intimidation, design mechanisms aimed at combating discrimination, violence and oppressi- trafficking, and put in place a -monito on. Additionally, it promises to engage ring framework to track progress on the all appropriate measures, including le- issue. gislation, to modify or abolish existing laws, regulations, customs and practi- Lastly, an amendment to the Constituti- ces that constitute or enhance violence on of the United Republic of Tanzania against women. Fifty years after Inde- has redefined discrimination to include pendence, only one piece of legisla- gender. Although this is a positive step, tion has been passed that specifically the said amendment has not been trans- enhances the rights of women against lated into all legislations, including The violence. I commend the effort made Probate and Administration of Estate by the Government to address violence Act, The Law of Persons, CAP358 R.E against women through the enactment 2002, and The Law of Marriage Act. of SOSPA. However, these efforts are Lack of legal protection for women in minimal and the legislation does not regards to inheritance rights remains a cater for domestic violence, particularly major problem to date. The Customary marital rape, wife battery and non-phy- Law that discriminates in inheritance by sical abuse that continue to affect wo- sanctioning bride price and polygamy men. The Penal Law is inadequate and has not been changed, despite the re- has not been effective in addressing do- commendations by the CEDAW Com- mestic violence; a specific law on pro- mittee in 1996 and the National Plan of

105 Action. These above-mentioned issues • Probate and Administration of Estates Act. are extremely sensitive, in both the pri- • Customary Law Declaration Order (Hali za Watu). vate and public arenas, and are practi- • Sexual Offences Special Provision Act cally taboos, are hardly discussed for (SOSPA) fear of offending a large percentage of • NGO shadow report to the CEDAW Commit- tee in 2008. the population. It should be noted that • Recommendations by CEDAW Committee to Tanzania ratified CEDAW without re- the Tanzanian Report in 1996. servations. • Women’s Legal Aid Centre publications: • The plight of Women in Polygamous Uni- I urge the Government, and recommend ons in Tanzania. to all stakeholders to urge the Govern- • The equality in Marriage: A balance Solu- ment to repeal all gender discrimination to the Harms of Bride Price. • Inheritance Law in Tanzania: The Impo- tory laws and provisions, and to put in verishment of Widows and Daughters. place a timetable for the enactment of • Domestic Violence in Tanzania new laws. The timetable must take into account the urgency of the matter, as women continue to suffer from the existence of these discriminatory laws and the current situation hinders Tanzania’s achievement of the Millennium Deve- lopment Goals. GOD BLESS TANZANIA References: • The Constitution of the United Republic of Tanzania. • The Law of Marriage Act.

106 Fifty Years of Advocating for Access to information is an important Access to Information: aspect in promoting transparency and Reflections on Progress, Challenges accountability in any country. In Africa, and Way Forward in Campaigning where systems for ensuring the accoun- for a New Right to Information Re- tability of leaders and governments are gime in Tanzania pivotal, an access to information law is a necessary landmark. An important By: Deus M Kibamba1 example of citizens advocating for the Tanzania Citizens’ Information Bureau enactment of laws to protect the search (TCIB), Dar es Salaam for and access to information by citizens from public offices is Tanzania’s Right Introduction to Information Coalition. This article As Tanzania commemorates 50 years of seeks to document the lessons learnt independence, much can be said regar- from the work of the Media Council of ding the country’s struggle for freedoms. Tanzania (MCT) led Coalition, who- Extending Jaramagi Oginga Odinga’s2 se work has been recognized by many, concept of Africa’s independence, one both in and outside of Tanzania. I am expert opinion states it clearly: ‘Tanza- glad to have joined and taken active part nia is not yet a Democracy’3! This is es- in the Coalition since 2007. pecially true in regards to the country’s Starting in 2006, the inspiration for the search for an access to information law Right to Information Coalition’s came that would guarantee freer and easier from the media monitoring project in access to publicly held information and the early 2000s, which was successfully entrench freedom of expression, asso- implemented by MCT, the Media Insti- ciation, movement and related rights, tute of Southern Africa-Tanzania (MI- such as press freedom. SA-TAN) and Tanzania Media Women Association (TAMWA), to name but a few. Further momentum came from the government’s call for interested citizens and stakeholders to provide inputs for a 1 The author doubles as Executive Director of the Tanzania Citizens’ Information Bureau (TCIB) draft bill to govern media services and and Chairperson of JUKWAA LA KATIBA TANZA- access to information in Tanzania. The NIA, a Civil Society Forum whose objective is to Coalition expanded its membership to enhance citizen’s Constitutional awareness and Literacy for an improved public participation in include civil society organizations bey- the ongoing Constitution Making Process. Email ond media related institutions. The Co- address: [email protected] Tel. +255 788 75 alition has a two-fold mandate dealing 85 81 with information policy to influence the 2 Odinga, O (1968) Not Yet Uhuru – The Auto- biography of Oginga Odinga, June 1968 creation of an access to information le- 3 Shivji, I.G.S (1998) Not Yet Democracy: Refor- gal framework. ming Land Tenure in Tanzania, IIED (London), 1998.

107 History of Information and Broad- private media ownership was restricted casting Policy and Legislation in to companies whose 51% shares were Tanzania beneficially in the hands of Tanzanians. The change of national policies and laws The coverage of broadcasting was also to accommodate the liberalization of the limited to 25% of the nation.6 This is national economy from 1992 is consi- how we started! dered a key factor behind the demand In 2003, a new Information Broadcas- for change in the media and information ting Policy replaced the 1993 policy, sectors. From the 1990s4 onwards, the incorporating inputs from a number of government passed or amended a num- stakeholders, and the Tanzania Commu- ber of policies and laws, for instance the nications Regulatory Authority (TCRA) privatization of public corporations and Act of 2003 was enacted. The major im- permitting individuals to own media pact of this was the establishment of a houses, enhancing access to informati- single regulatory body for both broad- on and reaching a greater proportion of casting and communication, hence mer- the Tanzanian population. ging the functions of the former Tanza- In 1993, Tanzania passed its first Infor- nia Broadcasting Commission and the mation and Broadcasting Policy. The Po- Tanzania Communications Commissi- licy made directives to promote private on. The TCRA now regulates broadcas- media operations and private ownership ting communication operations, while of broadcasting companies, whereas the print media remains under the control of periodically amended Newspapers Act the Information Services, MAELEZO.7 had governed newspaper ownership Besides the TCRA and MAELEZO, since 1976. The result was the emer- MCT, established by stakeholders in gence of new independent press chal- 1997, is also an independent regulato- lenging the media monopoly, such as ry authority. MCT has handled various IPP Media. The Broadcasting Services cases involving breaches of the code Act and Communication Services Act of ethics and professionalism by jour- were likewise passed in 1993 to enforce nalists and media practitioners, which the above-mentioned policy directives. are reported to MCT by members of the The former established the Tanzania public, including public leaders.8 By the Broadcasting Commission5 as a body end of 2008, the Ethics Committee of corporate with its own seal and perpe- tual succession. Cautious of potential impacts of media liberalization, 6 For better account of media development in Tanzania since 1990s read: Media Council of Tanzania, State of the Media 2007, Dar es Salaam 2007, Ch.1 4 Generally, these years saw an opening up of 7 Supra. Note 7. political economy systems in the world to plura- 8 The author has in a number of cases served as lism. Tanzania was not spared in this! Rapporteur in the Ethics Committee chaired by 5 Section 5, The Broadcasting Services Act 1993 highly experienced retired Judge Mark Bomani.

108 the MCT had successfully resolved 90% from the perspective of Tanzania’s de- of all cases presented before it for me- mocratic development, are reports that diation, in which both parties involved opposition party rallies during and af- complied with the decisions of the ter elections are often interfered with Committee. The MCT has attracted the or banned. In recent years, there have attention of media practitioners from been reports of non-governmental orga- other parts of Africa due to its self-re- nizations (NGOs) and the media being gulation. Governed by its constitution, targeted, with evidence of government the council’s strength is its membership harassment of journalists, causing great and governing board, regularly elected concern among members of the press. by the members. The day-to-day ope- In fact, 2011 began with discouraging rations of MCT are run by an indepen- news regarding government plans to dently established secretariat, led by the enact a law to control and curb rallies Executive Secretary, currently Mr. Ka- and demonstrations!10 jubi Mukajanga.9 A number of human rights observers have raised concerns about the situati- Reforming Information Regimes: on regarding freedom of expression and State of the Art in Tanzania association in Tanzania. A 2006 report “The free press is only in its embryo sta- by the UN Special Representative of ge in Tanzania’’, writes Michael Bech the Secretary General on Human Rights from MS Tanzania. According to him, Defenders, Hina Jilani, drew attention Tanzanians are accustomed to top-down to the uncertain conditions for NGOs socialistic rule and to media control by in Tanzania. While she recognized that the government. In the past, viewpoints the introduction of multi-party demo- communicated were almost exclusively cracy in Tanzania meant that “the envi- those of the government and many peo- ronment for human rights defenders is ple informed themselves via a single becoming increasingly open”, she poin- media only. This indicates how far we ted out that the 2002 NGO legislation have come to date. might be obstructing freedom of asso- Whilst Tanzania’s Constitution and ciation. The 2002 NGOs Act attempts the acceptance of international human to regulate NGOs in a way that creates rights guarantees freedom of assembly “serious obstacles” to exercising free- and association, in practice the govern- dom of association and hence freedom ment often interferes in peaceful gathe- of expression. In particular, the law ob- rings of religious, scholarly and political liges NGOs to register with a state NGO nature. Particularly worrying, Board; the registration may be rejected if the NGO does not act in the “public interest”. 9 Both Mr Kajubi Mukajanga and his predeces- sor, Mr Antony Ngaiza are people of high cali- 10 Neville Meena & Habel Chidawali (2011) She- ber, known especially for their stand to uphold ria ya Kudhibiti Maandamano yaja, Mwananchi, professionalism in Journalism. 29 July 2011

109 Furthermore, the President of Tanzania Registration Act, the Broadcasting Ser- can appoint the director of NGOs, and vices Act and the National Security Act, the government can set policy guideli- which date back to more authoritarian nes within which an NGO may act. Most times, give the government wide pow- of these practices are in contravention to ers to influence and control the media. the principle of self-regulation, an im- In October 2003, the government re- portant pillar for any professional asso- leased and Information and Broadcas- ciation to operate freely and ethically. ting Policy drafted under the auspices As a result, the government has occasi- of the office of the Prime Minister. The onally taken a heavy-handed approach Policy is progressive in outlook and to critical NGOs: in September 2005, seeks to create an environment in which the government banned Haki Elimu, a information and broadcasting sectors local NGO, from publishing any artic- can flourish, in accordance with the gu- les on schools or the education system, arantee of freedom of expression found arguing that the NGO disparaged the in Article 18 of the Constitution of Tan- education system and failed to follow zania and Article 19 of the Universal government policy. Declaration of Human Rights (UDHR). A similar problem exists regarding free- The Policy contains a number of positi- dom of expression in media. While the ve and specific recommendations, inclu- political and constitutional climate for a ding a commitment to bring Tanzanian free, diverse and critical media in Tanza- law and practice in line with internati- nia has undoubtedly improved since the onal and constitutional standards, and introduction of a multi-party democracy, to promote an independent and diverse the specific legislation and regulations media sector. However, the Policy still in place pose threats to journalists’ free- contained a number of features either in dom of expression11. Although Tanzania breach of international standards or rai- has seen an explosion in the number of sing cause for concern12. privately owned and operated publica- Even the greatly welcomed efforts by tions and media houses, journalists have the government to draft a Freedom of been unable to overcome the “hangover Information Bill in 2007 have ended up of state control of the media” in their being a mere illusion. The Freedom of attempts to establish a more favorable Information Bill was supposed to codify and protective legal and regulatory po- the Constitutional right to information sition. Laws such as the Newspaper and freedom of expression, sorely needed in Tanzania. Unfortunately, the Bill included provisions that stifle free 11 Media Institute of Southern Africa (2005) So This Is Democracy?: Report on the State of Media Freedom and Freedom of Expression in 12 Article XIX (2004) Note on the United Repu- Southern Africa available at http://www.misa. blic of Tanzania Information and Broadcasting org/documents/STID2005.pdf, (accessed on Policy, Article 19 Global Campaign for Free August 01, 2011). Expression, London.

110 expression, access to information and authorities banned Zanzibars only and open debate. Perhaps the most egregious last private and independent newspa- aspect of the draft Bill was its section per, Dira, after publishing accusations on sedition. If enacted, the law would against the government15. The mainland criminalize those seen to encourage government’s new media policy does criticism of the government or its poli- not apply to Zanzibar and even some of cies. It was strongly criticized by media the institutional safeguards on the main- and information stakeholders for being land are not applicable. For instance, the draconian and reminiscent of colonial Tanzania Commission on Human Rights times; it suffices to remember that more and Good Governance, despite having than 50 years ago, in 1958, the editor of an office in Zanzibar, has no authority to SAUTI YA TANU, Julius Kambarage investigate on the island16. Even the Af- Nyerere, was charged with sedition and rica Peer Review Mechanism that cur- heavily fined13 under provisions very si- rently assesses the observance of good milar to the contents of the draft Bill. governance is only symbolically appli- The draft Bill defined sedition as an in- cable to Zanzibar. Despite the above, tention to ‘‘excite disaffection against the government of Zanzibar has been the lawful authority of the United Re- responsive to appeals for a less restricti- public of Tanzania or the Government ve regulatory media framework. thereof’’ or to “raise discontent or disaffection among any of the inhabitants of International Standards and Best the United Republic’’. Thus, any person Practice broadcasting, printing, publishing, dis- Article 19 of the UDHR guarantees the tributing or reproducing anything with right to freedom of expression in the seditious intent or content can be found following terms: guilty and may be imprisoned for up to 3 years or receive a fine of up to 1.5 mil- Everyone has the right to freedom of lion14. In my view, this Bill was worse opinion and expression; this right in- than most colonial laws that were appli- cludes the right to hold opinions wit- cable to black Africans in Tanganyika hout interference and to seek, receive fifty years ago! and impart information and ideas In Zanzibar, the media is more restric- through any media and regardless of 17 tive than on the mainland, as the Zan- frontiers. zibar News Act allows the government to withdraw publishing licenses and pu- 15 Freedom House (2005) Freedom of the Press nish journalists. In November 2003, the 2005 New York, NY: Rowman and Littlefield 16 Commission on Human Rights (2006) Report submitted by the Special Representative of the 13 According to Rakesh Rajani and Ruth Carlitz Secretary –General on human rights defenders in The African, 8 January 2007, p.8 (E/CN.4/2006/95/Add.5). 14 According to Section 170 of the Freedom of 17 UN General Assembly Resolution 217A(III), Information Bill, 2007. adopted 10 December 1948.

111 The UDHR, as a UN General Assembly This is stated in a Joint Declaration is- resolution, is not directly binding for sued in December 2003 by the UN, the states. However, parts of it, including Organization for Security and Co-ope- Article 19, are widely regarded as ha- ration in Europe (OSCE) and the Or- ving acquired legal force as customary ganization of American States (OAS). international law since its adoption in International standards of public broad- 1948. The International Covenant on casting dictate that broadcasters should Civil and Political Rights (ICCPR), a be independent and have a mandate to treaty ratified by over 145 States, in- serve the public interest. For instance, a cluding Tanzania, imposes formal legal recommendation by the Council of Eu- obligations on state parties to respect its rope stresses that the “legal framework provisions and elaborates on many of governing public service broadcasting the rights included in the UDHR18. organizations should clearly stipulate Internationally, freedom of expression their editorial independence and insti- is protected in all three regional human tutional autonomy” in all key areas, as rights instruments: Article 9 in the Af- well as introducing measures to ensure rican Charter on Human and Peoples’ that there is no political or other inter- Rights, Article 10 in the European Con- ference. Good international freedom vention on Human Rights and Article 13 of expression practice would ensure in the American Convention on Human that the media operates independently Rights, although Tanzania is only legally of government control, ensuring that bound to the African Charter19. Freedom the media assumes its role as a public of expression assumes a fundamental watchdog and that the public has access role in underpinning democracy and, in to a wide range of opinions, especially its first session in 1946, the UN Gene- on matters of public interest. ral Assembly adopted Resolution 59(I) which states: “Freedom of information Reviewing Tanzania’s Information is a fundamental human right and ... the Broadcasting Policy, 2003 touchstone of all the freedoms to which Tanzania’s Information Policy is ancho- the United Nations is consecrated.” The red towards ensuring that media outlets obligation to promote pluralism implies and/or professionals adhere to professi- that no legal restrictions as to who may onal codes of ethic and seeks to ensu- practice journalism are permitted, and re that media owners employ qualified that licensing or registration systems for professional. The legitimacy of these individual journalists are incompatible provisions in relation to guaranteeing with the right to freedom of expression. freedom of expression depends on the interpretation. While it is true that the

18 UN General Assembly Resolution 2200A(XXI), realization of rights depends on the ac- adopted 16 December 1966, in force 23 March tions of citizens, it is a concern that the 1976. Policy does not recognize the primary 19 Ibid

112 responsibility of the State to ensure re- tions on the print media is difficult to spect for these rights. It is legitimate to justify and its legitimacy is questiona- encourage media outlets to render pub- ble. While no country would like to see lic services and be independent, but to its media industry controlled by foreig- enforce this by law is likely to be high- ners, possibly undermining democratic ly problematic. Similarly, it is certainly processes, foreign investment and in- legitimate for the Policy to encourage volvement often attracts scarce resour- media outlets and professionals to adhe- ces to the sector and provides valuable re to professional codes and to employ expertise and experience. Furthermo- professionals but to oblige them to do so re, a key objective is to promote local is contrary to the very idea of professio- programming, and a far more effective nal ethics, which are norms adopted by a and less restrictive means of doing this profession for its own regulation. Enfor- would be to set minimum local content cing ethics by law is of dubious benefit, quotas. since this is ultimately impossible, and The Policy provides, in section 3.7, that it is contrary to international standards “the Government through authorities es- of freedom of expression. Some of the tablished for that purpose should carry terms used in the Policy imply going the regulation of information and broad- beyond encouragement. International casting sector.” It fails to specify that the best practices prefer self-regulation. regulatory bodies it envisages must be In section 2.5.2, the Policy states that independent. The potential consequen- newspapers and magazines must conti- ces of not doing so are clear: regulato- nue to be registered by the government ry decisions will be based on political of Tanzania. If such a regime is to be considerations rather than respecting maintained, the register should be run as freedom of expression and promoting a purely administrative matter, akin to the free flow of information and ideas to company registration. Furthermore, the the public. The issue of media concen- Policy contains a number of very strin- tration is not adequately addressed, sta- gent restrictions on the participation of ting simply that investors will be allo- foreigners in the Tanzanian media. For- wed to own more than one media outlet. eigners may not run media institutions While this is uncontroversial in itself, and foreign investment in any media it fails to consider the situation where outlet may not exceed 49%, so that the one investor owns many media outlets, local partner will “have a final say at all perhaps cutting across the broadcasting times.” Foreigners may be employed as and print media sectors. Undue concen- technical experts but only if such ex- tration of media ownership leads to expertise is not available locally (sections cessive power vested in one individual 2.3.1 and 2.3.2). It is common to restrict or family and may thus undermine de- foreign investment in and control of mocracy and the right of the public to broadcasters, but imposing such restric- a diverse and vibrant media sector. It is

113 advisable to address media concentrati- it widely for discussion amongst their on issues before they become a serious networks. The purpose of the draft Bill problem, since retroactive rules are dif- was stated as follows: ficult to apply and give rise to - allega tions of political interference. This can An Act to make provisions for the right be addressed in a number of ways, for of access to information, to provide instance through restrictions on broad- for the Promotion and protection of cast ownership, on cross-ownership privacy of individuals, protection of issues or limiting overall control of a reputation, protection of journalists, media sector by an individual. Regard- confidential sources of information less of the preferred approach, it is im- and regulations governing operations portant that media policy and media law of the media, promoting independent, pluralistic broadcasting, protection address this issue immediately. of minors and to provide for other related matters. The Draft Freedom of Information Bill, 2006 Once enacted into law, the Bill was to The draft Bill replicated many short- apply to accredited media practitio- comings in the aforementioned Policy ners, public authorities, private bodies and the MCT Coordinated Civil Society and individual persons in possession Coalition raised most of these issues. In of records and documents in Tanzania April 2006, the Director of MAELEZO mainland. The Bill did not override the appointed a committee of media experts prevention of access to records or do- to prepare a draft bill addressing free- cuments of a public or private body, dom of information issues. The commit- pursuant to any other legislation, policy tee was chaired by Mr. Salva Rweyema- or practice.23 The Act did not apply to mu20 and twelve other members.21 a commission of inquiry formed by the The draft Freedom of Information Bill22 President.24 was published on the government of Tanzania’s website in October 2006 Basic Features of the Draft Freedom and was downloaded by media and in- of Information Bill, 2006 formation stakeholders who circulated The Right to Access Information reitera- 20 Salva Rweyemamu was then the regional tes the rights to seek, receive and impart Chairperson of Media Institute of Southern information regardless of the frontier, Africa (MISA). He is currently the Director of the as recognized by the Constitution of Communication Directorate in the State House. the United Republic of Tanzania 1977 21 Kassim Mpenda, Waraka wa Mashauriano 25 wa Wadau kuhusu Muswada wa Habari na Mus- (amended in 2005) . However, limits wada wa Huduya ya Vyombo vya Habari, Idara ya habari MAELEZO, Dar es Salaam, 21/02/2007, 23 Freedom of Information Bill, 2006, Section Pg. 6. 2(1) and (3) 22 Draft 4 of the Draft Bill for the Freedom of 24 Ibid. Section 2(2) Information, October 2006 25 Article 18, Constitution of the United Repub-

114 on how these rights can be exercised The Protection of Whistleblowers provi- exist within the provisions of the draft des protection of the identity of people Bill (once enacted into law). who disclose information as long as that The Time to Access Information provi- person acted reasonably and in good des that a request to access information faith. It also protects the disclosure of a must “as soon as reasonably possib- journalist’s confidential sources.28 Such le, but in any event within twenty one sources may only be disclosed in com- days after the request is received, either pliance with the lawful order of the High be granted or refused, as the case may Court.29 A party aggrieved by a disclo- be.”26 In case of a refusal, the decision sure order may appeal to the Court of notice should state adequate reasons for Appeal.30 the refusal, according to the provisions The Establishment of New Bodies pro- of the law, and include details about the poses the establishment of new public right to appeal.27 bodies to ensure that the provisions of The Exempt Documents and Discretio- the Bill are met, namely the independent nary Power to Refuse Access to Infor- regulatory Media Standards Board.31 mation acts limits the right to access Complaints that were eligible to be information, giving a public body the brought before the Board include advo- power to refuse access on a number of cacy, incitement to commit genocide, grounds, as stated in Part 3 of the Bill. racial hatred, and religious intolerance, In Section 38, the circumstances under hate speeches, incitement to lawless- which exempt documents or informati- ness and breach of peace, publication of on can be accessed by members of the exempt documents according to the Act, public are outlined. and many more. The Media Develop- The Right to Appeal outlines three steps ment Fund, which was to be established to appeal a case of denied access to re- under section 72(1) of the draft Bill, was cords held by a public or private body: supposed to be managed by the Media firstly, an internal appeal to the desig- Standards Board, disbursing the funding nated public or private body, secondly, for training journalists. However, the an appeal to the Media Standards Board draft Bill has no provisions to ensure ef- and thirdly an appeal to the High Court fective operations of the Fund. Other re- of Tanzania by way of Judicial Review. gulatory bodies include the appointment This is a complicated process, mixing of a privacy commissioner by the Presi- two different procedures of entry into dent, as recommended by a parliament the High Court and the three different committee; media regulation through procedures allow for an even higher le- a licensing requirement for broadcas- vel of confusion. 28 Ibid. Section 52 lic of Tanzania, 1977 (14th amendment of 2005) 29 Ibid. Section 53(1) 26 Ibid. Section 16(1) 30 Ibid. Section 54 27 Ibid. Section 16 (5) 31 Ibid. Sections 57 and 58

115 ters and newspapers, by which exis- information, as is internationally reco- ting laws were reproduced into a new gnized and guaranteed by the Constitu- legislation;32 the Protection of Children tion of the United Republic of Tanzania and Young Persons act sought to protect 1977. the interests of children against certain publications or broadcast contents.33 Conclusion To date, the Right to Information Coa- In conclusion, I wish to remark that the lition is composed of eleven members: Freedom of information and Media Ser- MCT, MISA-TAN, TAMWA, Tangany- vices Acts are long overdue and needed ika Law Society (TLS), Legal and Hu- now. Without these pieces of legislation, man Rights Centre (L&HRC), Tanzania it is useless to have access to informati- Gender Network Programme (TGNP) on, freedom of expression and associati- Tanzania Legal Education Trust (TAN- on as guaranteed in the United Republic LET), Media Owners Association of of Tanzania’s Constitution articles 18, Tanzania (MOAT) and National Orga- 19 and 20. There is a need for Acts to nization for Legal Assistance (NOLA). expand on the articles of the Constitu- Other members are Commonwealth Hu- tion. man Rights Initiatives (CHRI) based in Looking ahead, I see a lot of future in re- India and Article XIX based in the Uni- gard to the right to access of information ted Kingdom. in Tanzania. After some loss of interest A number of events were organized by in the previous phase of the government, and on behalf of the Coalition with some the new Government seems to have the remarkable achievements. The period will to take the enactment of informati- of December 2006 to January 2007 was on laws forward. At this point in time, used to enhance the general knowledge information and media stakeholders of stakeholders as to why the draft Free- will need to work harder to ensure that dom of Information Bill of 2006 was the new Minister for Information is able not accepted by stakeholders. The coali- to honor his promise and ensure that the tion representatives organized and held two pieces of legislation are enacted in stakeholders’ workshops, seminars and the shortest period of time possible. press events in Dar es Salaam, Mwanza, Along with engaging with the Ministry Arusha and Mbeya regions and events and government in general, there is also were organized in Zanzibar. The parti- need for mass awareness on the neces- cipants were brought from crosscutting sity of information laws. This, in my socio-economic sectors in order to ensu- opinion, can best be done now as the re the rights to seek, receive and impart nation embarks on the writing up of a new Constitution for Tanzania. I see the Constitution making process as an huge 32 The Newspapers Act, 1976 and the TCRA opportunity for expanding the base for Act 2003 access to information. Of course, the 33 Ibid. Part XI

116 country will also need to ratify the Af- Odinga, O. (1968). Not Yet Uhuru: The Autobiogra- rica Model Law on Access to Informa- phy of Oginga Odinga. tion which African Union members are Rakesh Rajani and Ruth Carlitz. (2007). When Free- dom becomes Sedition: Colonialism revisited? The agreeing to use as a model for enacting African, 8 January 2007, p.8. freedom of information legislation. Shivji, I.G.S. (1998). Not Yet Democracy: Reforming I call upon the Government to wake up Land Tenure in Tanzania, IIED: London. and revert back to the information Bill process which civil society has conti- United Nations: nued to spearhead. Fifty years after in- • UN General Assembly Resolution 217A (III), adopted 10 December 1948. dependence, Tanzania cannot use such colonial and draconian media and infor- • UN General Assembly Resolution 2200A (XXI), adopted 16 December 1966, in force 23 mation laws, such as the Newspapers March 1976. Act, 1976. It is necessary for the Coali- • UN Human Rights Committee General Com- tion, under the leadership of TCIB and ment 25, issued 12 July 1996. MCT, to meet with the legal drafting United Republic of Tanzania: offices in the Government and discuss the rights to information and to iron out • The Newspapers Act, 1976. differences that have prevented the pro- • Constitution of the United Republic of Tanza- gress of the draft laws in the past! nia, Article 18, 1977 (2005 edition). • The Broadcasting Services Act, Section 5, References 1993. Tanzania Communications Regulatory Autho- Commission on Human Rights. (2006). Report • rity Act, 2003. submitted by the Special Representative of the Se- cretary General on Human Rights Defenders (E/ • Freedom of Information Bill, Section 2(1) and CN.4/2006/95/Add.5). (3), 2006. Freedom House. (2005). Freedom of the Press 2005, • Freedom of Information Bill, Section 170, New York, NY: Rowman and Littlefield. 2007. Global Campaign for Free Expression. (2004). Note on the United Republic of Tanzania Information and Broadcasting Policy, Article 19, London. Kassim, Mpenda (2007). Waraka wa Mashauriano wa Wadau kuhusu Muswada wa Habari na Muswa- da wa Huduma ya Vyombo vya Habari. Idara ya habari MAELEZO: Dar es Salaam, pp. 6. Media Institute of Southern Africa. (2005). So This Is Democracy: Report on the State of Media Free- dom and Freedom of Expression in Southern Afri- ca available at http://www.misa.org/documents/ STID2005.pdf (accessed on August 01, 2011). Neville Meena & Habel Chidawali. (2011). ‘Sheria ya Kudhibiti Maandamano yaja’, Mwananchi, 29 July 2011.

117 Labour Relations Reform Pro- sory arbitration and settlement of labour cess in Tanzania disputes. The second enactment of the above- By: Nicholas Ernest Mgaya mentioned legislation was the Trade Trade Union Congress of Tanzania Union Ordinance (Amendment) Act Dar es Salaam 1962. It stipulated that the continued legislation of any Trade Union would be subject to an affiliation with the Federa- Introduction tion of Labour, as designated by the Sta- The Labour Relations Reform Process in te. The Law empowered the Registrar of Tanzania became a necessity as the old Trade Union to cancel the registration Labour Law Regime consisted of out- of any trade union that failed to become dated laws dating back to the Colonial a member of the designated federation Era. However, with the introduction of within three months of registration. TFL the Employment and Labour Relations was under the supervision and control Act 2004, new laws have been promul- of the state, through the Minister of la- gated that suit the current Labour Rela- bour relations as well as the Registrar of tions requirements. Trade Unions. In 1962, amendments to the Trade Union Ordinance were follo- Historical Background of Trade Uni- wed by the enactment of the Civil Ser- ons in Tanzania vice Negotiating Machinery Act 1962. During the Colonial Era, before Inde- The Act excluded Civil Servants earning pendence, free and independent Trade more than Tshs.702 per annum from be- Unions existed, forming the Tanganyika coming members of Trade Unions. In Federation of Labour (TFL). TFL was a essence, this law was aimed at under- partner of the Tanganyika African Nati- mining the leadership of Trade Unions; onal Union (TANU) in the struggle for the movement’s literate and articulate independence; but ran into disfavor with members and leadership came from the the post-independence Government for Civil Service. In 1964, TFL was abo- attempting, among other things, to as- lished and the National Union of Tan- sert the autonomy of the Trade Union ganyika Workers (NUTA) established. Movement. The Government resorted NUTA became the sole trade union and to the same authoritarian methods of the an affiliation of the ruling political par- colonial state, ensuring that Trade Uni- ty, TANU. This meant that top leaders ons were under the firm grip of the state. of the new Union were Presidential ap- Four pieces of legislation exist that si- pointees for life; and the General Secre- gnificantly influenced the Trade Union tary of the Union was at the same time a Disputes (Settlement) Act, 1962. This Cabinet Minister responsible for labour Act virtually abolished strikes by intro- matters. The so-called workers union ducing a complex procedure of compul-

118 was de facto a government department ternational Labour Organization (ILO). under complete control of TANU. The first, Convention 87, concerns Freedom of Association and the Right The state enacted the Parliament Labour to Organize, while the second, Con- Tribunal Act of 1967, which set up ma- vention 98, concerns the application of chinery for controlling wage increases the Principles of the Right to Organize and provided for arbitration of indust- and Bargain Collectively, both of which rial disputes. The establishment of the were ratified in 1995. The Bill of Rights, Tribunal deprived NUTA, in a subtle as contained in the Constitution, further way, of its last important role as a trade necessitated the implementation of the union responsible for collective bargai- aforementioned Trade Union Act. ning of wage increases and better working conditions. Following the merger Despite such amendments, weaknesses of Tanganyika’s TANU and Zanzibar’s prevail, for instance the fact that the re- Afro Shiraz Party (ASP) in 1977, the gistrar, who is a government employee, Union of Tanzanian Workers or Jumui- still holds considerable power over the ya ya Wafanyakazi Tanzania (JUWATA) trade unions. Furthermore, at least twen- was formed as a trade union on 5 Febru- ty members are needed to form a trade ary 1978. The JUWATA Act, 1979, was union, according to Act No.10 of 1998. introduced and JUWATA made the sole The formation of a Federation requires body representative of all employees in two or more registered trade unions to Tanzania. In 1991, following the disso- merge, as per Section 22 (1) of the same lution of JUWATA, the Organization of Act. Moreover, the registrar has the po- Tanzania Trade Union (OTTU) became wer to cancel a pretext under Section 15 the sole union representative of all wor- (1) The idea behind these stipulations is kers in Tanzania. Again, the registrar, to weaken the solidarity of workers and who was appointed by the President, their unions. Following the dissolution had powers to cancel the registration of of OTTU, the Trade Union Congress of trade unions as stipulated in Section 9 Tanzania (TUCTA) was formed during of the OTTU Act 2, 1991. In 1992, the a Congress from 27 – 28 April 2001, un- eight departments under OTTU were der the Trade Unions Act Number 10 of made fully-fledged trade unions under 1998. TUCTA functions as the common The Tanzania Federation of Free Trade voice of working class and is responsib- Unions (TFTU), however, TFTU had no le for defending the interests of the wor- legal status and so the trade unions under kers against the government. The Natio- it continued to operate officially under nal Centre is also a channel for workers the OTTU Act of 1991. The enactment to express their opinions and make their of the Trade Union Act Number 10 of demands heard. 1998 was an attempt by the government The backbones of the Labour Reform to implement two conventions of the In- Process in Tanzania, initiated by the

119 Parliament of the United Republic of yers. The success of such negotiations Tanzania, include the enactment of the creates improved industrial relations, Employment and Labour Relations Act, enhances employment rights and im- 2004 (Act Number 6), and the Labour proves employment conditions; thereby Institutions Act, 2004. This process was contributing positively to the ILO Agen- divided into two phases, the first co- da of Decent Work. Furthermore, the vering the Workman’s Compensation Acts are sources of guidance regarding Act and the second the Social Security how to deal with various disputes at the Act. workplace, which, upon emergence, can be taken to the Commission for Media- Employment and Labour Relations tion and Arbitration, or if necessary to Act, 2004 the Labour Division of the High Court. The Employment and Labour Relation Act 2004 is geared towards fulfilling The Employment and Labour Rela- the requirements of the socio-economic tions Act, the Labour Institution Act situation prevailing in the country, with and the Public Service Negotiating the following objectives: Firstly to ensu- Machinery Act re economic development, productivity The Employment and Labour Relations and human rights. Secondly, to provide Act (ELRA), 2004, builds the foundati- legal guidance regarding issues such as on of workers’ rights in Tanzania Main- industrial relations, employment rights land. Considering that labour matters and basic conditions of employment. are not Union matters, but rather settled Thirdly, to offer guidance in solving individually for Zanzibar and Tanzania disputes at the workplace through medi- Mainland, ELRA is applicable mainly ation, and arbitration as well as through to workers in the private sector, with the judgments issued by the courts. exception workers in the Maritime Sec- The impact of this Act has been the tor, who are covered by the Merchant improvement of workers’ rights in the Marine Act 2003. The Public Service private sector. The ability to partake in Negotiating Machinery Act of 2003 Collective Bargaining Agreements with deals with remunerations of workers employers regarding the betterment of employed in the public sector. It is our working conditions has improved, thus recommendation that both Acts namely raising the standard of living, and in the the ELRA and the Public Sector Negot- long term contributing towards enhan- iating Machinery Act be harmonized to ced productivity and trade union availa- avoid anomalies, especially when both bility as well as ensuring human rights the former and latter deal with the same are adhered to at the workplace. These issues. Stakeholders need to develop re- Acts also provide reasonable ground for commendations to review the Employ- negotiations between workers, through ment and Labour Relations Act, the Pu- a trade union of their choice, and emplo- blic Service Negotiating Machinery and

120 the Labour Institutions Act in order to whether the employer adheres to the re- improve achievements made so far. quirements of the Labour Laws.

Labour Institutions Act, 2004 The Public Service (Negotiating Ma- The Labour Institutions Act is charged chinery) Act, 2003 with the enforcement of the Employ- The Public Service Act was enacted ment and Labour Relations Act, 2004, in 2003 and repealed the Civil Service as well as providing a platform for so- (Negotiating Machinery Act 1962) and cial dialogue in the area of the Labour the Local Government Negotiating Ma- Economic and Social Council (LESCO). chinery 1982. It was formed to better LESCO serves as a council for discus- provide for the participation of public sions between employers, employees servants in negotiating and rendering and the Government, and is an advisory advice to the government, as well as body to the Minister and the Govern- settling disputes in the public service ment on social and economic issues, sector. The objectives of the Act are including policies. The Labour Institu- firstly to secure cooperation between tions Act also includes the Commission the Government as an employer and for Mediation and Arbitration, dealing public servants, through their respecti- with disputes at the workplace. If ne- ve trade unions. Secondly, to provide a cessary, disputes can then be brought conducive environment for participatory before the Labour Division of the High consultations and negotiations between Court of Tanzania. Furthermore, the Es- the government and public servants sential Services Committee designates on matters affecting the efficiency and services in terms of Section 76 (3) of the well being of public services. Lastly, to Employment and Labour Relations Act, provide machineries that deal with the and determines disputes regarding the grievances of the public services. engagement of an employee or employer in the designated essential services. Contradictions Between Employ- The Wage Board is an institution that in- ment and Labor Relations Act, 2004 vestigates minimum remuneration and and the Public Service Negotiating conditions of employment, promotes Act Machinery, 2003 collective bargaining between registered trade unions, employers and registe- In the Employment and Labour Rela- red employers’ associations and makes tion Act, 2004, the Law provides for recommendations to the Minister on mi- the right of workers to strike in Section nimum wages and employment condi- 75(a), while placing various restrictions tions. The Labour Inspection and Admi- on the same right in Section 76 (1). In nistration is a very important institution Section 85(1), workers rights to partici- inspecting the workplace to determine pate in protest actions are provided for, however, procedures to be followed be-

121 fore a strike or protest action can take rification as to which Law will prevail place are indicated in Section 80(1). when problems relating to strikes and This Act requires a notice period of 30 other issues affecting workers in the days to be given to the Government. In public service arise, especially conside- contradiction, the Public Service Negot- ring the fact that the Public Service Ne- iating Machinery Act, 2003 provides for gotiating Machinery Act was enacted in the right to strike in Section 26(1), but 2003, and the Employment and Labour Section 26 (2) requires sixty day notice Relations Act in 2004. be given to the Government. The contradictions between the two Acts in respect to workers’ rights require cla-

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About FES The Friedrich-Ebert-Stiftung (FES) was founded in 1925 as a political legacy of Germany´s first democratically elected president, Friedrich Ebert. Ebert, a Social Democrat from a humble craftsman background rose to hold the highest political office in his country. In response to his own painful experiences in overcoming social barriers of his time, he proposed the establishment of a foundation to pursue the following aims: • furthering political and social education of individuals from all walks of life in the spirit of democracy and pluralism, • facilitating access to university education and research for gifted young people by providing scholarships, • contributing to international understanding and cooperation. The Friedrich-Ebert-Stiftung, banned by the Nazis in 1933 and re-established in 1947, continues to pursue these aims in all its extensive activities. As an independent, non-profit, political foundation, it is committed to the ideas and basic values of social democracy.

Solidarity, Peace and Social Democracy Global partner – the international work of the Friedrich-Ebert-Stiftung The guiding principles of the international work of the Friedrich-Ebert-Stiftung (FES) are to promote democracy and development worldwide, contribute to peace and security, help shape glo- balization in a socially just way and support the widening and deepening of the European Union. Through projects in over 100 countries the FES has been actively involved in the development and consolidation of civil society and state structures for promoting democracy and social justice, strong and free trade unions, human rights and gender equality. In addition to its core endeavor of promoting democracy in individual countries, the Friedrich- Ebert-Stiftung is increasingly working on global and regional issues. Its focus areas are the widening and deepening of the European integration process, further developing the transatlantic relationship and reforming systems of global governance. The dialogue between different societal actors, between different cultures and social models, between North and South, EU countries and candidate countries and international institutions is indispensable, especially for stabilizing fragile social and state structures and for finding solutions to cross-cutting regional and global issues. With its worldwide network of offices and partners the Friedrich-Ebert-Stiftung has a range of instruments at its disposal that allow it to make a sub- stantial contribution to these debates and to organize and propel this dialogue process at various levels. The global network of the political partners of the FES provides a forum for sharing and lear- ning. The partners include traditional parties and trade unions, non-governmental organizations, academic and policy think tanks as well as governmental institutions (such as parliaments and ministries).

Friedrich-Ebert-Stiftung P.O. Box 4472 North-South Dialogue: Julius Kawawa Road Plot No. 397 Nyerere, former President of Dar es Salaam, Tanzania the United Republic of Tanza- Telephone: 255-22 2668575 / nia and Willy Brandt, former Chancellor of the Federal 2668786 Republic of Germany Fax: 255-22 2668669 Mobile: 0754-884485 Wi l l y Br an d t : E-Mail: [email protected] „International co-operation is http://www.fes-tanzania.org far too important to be left to governments alone.“ ISBN: 978-9987-22-059-5