MZUMBE UNIVERSITY

DAR ES SALAAM CAMPUS COLLEGE

(MORNING SESSION)

INDIVIDUAL ASSIGNMENT: TERM PAPER

Question:

Critically examine and determine ways in which democracy can enhance and ensure
the protection of Human Rights in a country. Use relevant examples to support your
discussion.

COURSE NO: PUB 630;

COURSE NAME: PUBLIC SECTOR GOVERNANCE

STUDENT NAME: MSANDO, ALBERT GASPER.

REGISTRATION. NO: 230050060/T.18.
COURSE INSTRUCTOR: DR. ANDREW SULLE
SUBMISSION DATE: 3RD JUNE 2019.
1.0 Introduction:

Democracy is one of the universal core values and principles of the United
Nations.1 Respect for human rights and fundamental freedoms and the principle of
holding periodic and genuine elections by universal suffrage are essential elements of
democracy. 2 These values are embodied in the Universal Declaration of Human
Rights and further developed in the International Covenant on Civil and Political
Rights, which enshrines a host of political rights and civil liberties underpinning
meaningful democracies.3

The rights enshrined in the International Covenant on Economic, Social and Cultural
Rights and subsequent human rights instruments covering group rights (e.g.
indigenous peoples, minorities, persons with disabilities), are equally essential for
democracy as they ensure an equitable distribution of wealth, and equality and equity
in respect of access to civil and political rights.4

It should be noted that human rights and democracy go hand in hand as democracy is
the political system, which embodies the autonomy of the individual inherent within
the idea and concept of human rights.5 The relationship between Democracy and
Human Rights has been well explained by Peter G. Kirschschlaeger. It is his argument
that human rights cannot be fully implemented if the political and legal system is not
democratic as every human being’s participation in opinion-building and decision-
making processes is protected by human rights.6

Democracy in any of its meanings requires the existence and free exercise of certain
basic individual and group rights without which no democracy, however perceived
can exist. These rights and freedoms have been stated or codified in the Universal
Declaration of Human Rights, 1948. Some of the rights and freedoms are the right to
life, liberty, property, due process of the law, equality, non-discrimination, freedom of
expression and assembly and judicial access.
                                                                                                               
1
United Nations Human Rights, Office of the High Commissioner, Rule of Law – Democracy and
Human Rights available at https://www.ohchr.org, accessed on 24/05/2019.
2
Ibid.
3
Ibid.
4
Ibid.
5
Ibid.
6
Ibid.

 
1.1 An Overview of Democracy:
The ‘definition of democracy’ is a dead horse, which may be offered annually to students for
remorseless flogging in examinations but is otherwise not worth serious academic consideration. With
this sentiment I am in partial sympathy. The word ‘democracy’ is so vague, democracies are so varied,
that there is little chance of substantial agreement.7

The word democracy is familiar and commonly used both in academic and political
circles to denote the existence of a government by the people in which the supreme
power is vested in the people and exercised either directly by the people through their
elected representatives under a free electoral system. The definition has been
summarized in a phrase of the famous American President, Abraham Lincoln, that,
“democracy is a government of the people, by the people, and for the people."

The Constitution of the Republic of Tanzania, 1977 in its Preamble starts with a
statement on the principles on which the country is founded. Those principles are
freedom, justice, fraternity and concord. Realization of the said principles is
dependent on “the existence of a democratic society in which the Executive is
accountable to a Legislature composed of elected members and representatives of the
people, and also a Judiciary, which is independent and dispenses justice without fear
or favour, thereby ensuring that all human rights are preserved and protected…..”.8

From the said statement in our Constitution it is clear that for us to exist as a society
that freedom, justice, fraternity and accord are guaranteed we must have the
following, (i) an accountable Executive, (ii) a democratically elected Legislature, and
(iii) an independent Judiciary that dispenses justice without fear of favor. This is the
foundation of democracy. Its existence guarantees the preservation and protection of
human rights.

Defining democracy has always been a subject of discussion with various

conclusions, which are not all in agreement. The discussions are polarized for a
number of reasons but mainly because each society has its values and principles that
are dependent upon its history, culture, beliefs and generally, ways of life.

                                                                                                               
7
Mulgan, R. G., “Defining Democracy”, Political Science, Vol. 20, No. 2, Dec. 1968, pp. 3-9,
available at https://www.journals.sagepub.com, accessed on 23/05/2019.
8
See paragraph two of the Preamble of the Constitution of the United Republic of Tanzania, 1977 at
page 14.

 
In Tanzania for example, Tambila, K. I (1995) writing on transition to a multiparty
state argued that during the one party state, democracy and human rights were
curtailed. He writes, “This [is] the context in which the very leadership which had
been heading the movement for freedom – personal and institutional – democracy and
self determination was able to argue for the limitations to, and proscription of the
freedoms they had been in the forefront to demand from colonizers. Trade union
freedom was limited and later abolished, cooperatives were controlled and later
abolished, political parties other than the ruling party were legislated out of
existence, parliament was muzzled and other civic organizations were intimidated
into self censorship, all within the first five years of independence”.9

But this is not how the revered Father of the Nation, Mwl. Julius Kambarage Nyerere
saw it. He has been quoted as arguing, “where there is one party, and that party is
identified with a nation as a whole, the foundations of democracy are firmer than they
can ever be where you have two or more parties, each representing only a section of
the community”10 A country that limits the number of political parties for whatever
reason or justification is considered undemocratic. The political space necessary for
the people to participate in the governance of their country either directly or through
duly elected representatives is very narrow. Even within the party members find their
voice gagged because naturally they have no option that toeing the line if they have to
escape sanctions by the party in the event of dissent of opinion.

This argument however can be deflated when one asks whether having more than one
political party necessarily means the country is democratic. The answer to that
question is not in the affirmative. If there is no an even playing ground for all political
parties to parties participate in political activities then it can not be said that
democracy exists. For example, if the party in power uses its democratically elected
majority to pass laws or to make decisions that in turn pushes the other political
parties on the fringes of non existence or to conform to what the party in power is
riding as its agenda that is not democracy.

                                                                                                               
9
K. I. Tambila, “The Transition to Multiparty Democracy in Tanzania: Some History and Missed
Opportunities.” Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin
America, vol. 28, no. 4, 1995, pp. 468–488. JSTOR, www.jstor.org/stable/43110617 accessed on 27th
May 2019.
10
J. K. Nyerere, Freedom and Unity, OUP (1966), pp. 312 -313 reproduced by K. I. Tambila (supra
note 9) at p. 472.  

 
Reflecting on this argument a consideration on how, in practice, can democracy truly
enhance and ensure the protection of human rights in Tanzania is the question that
underlies the main focus of this paper. It will be argued herein that the Constitution
provides sufficient guarantees and safeguards of human rights and unembroidered
pronouncements on the principles of democracy despite some limitations. The said
constitutional guarantees are not wholly implemented or protected in practice. And
this has remained a serious concern in Tanzania.

1.2 An Overview of Human Rights:

The term human rights denotes all those rights, which are inherent in our nature and
without which we cannot live as human beings.11 In other words, human rights refers
to the basic rights and freedoms to which all persons are entitled as human beings,
and often held to include the rights to life and liberty, freedom of thought and
expression, and equality before the law. Human rights are not dependent on being
provided for in a particular legal document. These rights are inherent and therefore
should be recognized, respected, and enforced.12

The Judiciary in Tanzania, through some of its decisions, has held that fundamental
rights are not gifts from the state, but inhere in person by reason of his birth and are
therefore prior to the state and law. 13 Human rights are sometimes called as
fundamental rights or basic rights or natural rights. As fundamental rights they are the
rights, which cannot, rather must not be taken away by any legislature or any act of
the government and which are often set out in the constitution. As natural rights they
are seen as belonging to men and women by their nature. The enactment of those
rights in the Constitution is mere evidence of their recognition and the intention that
they should be enforced in court of law and an intention that those rights should not
be arbitrarily restricted by state.14

                                                                                                               
11
United Nations, Teaching Human Rights, New York, 1989, p. 5.
12
Shivji, I. G., et al, Constitutional and Legal System of Tanzania: A Civics Sourcebook, Mkuki and
Nyota Dar Es Salaam, 2004, p. 77.
13
Rev. Christopher Mtikila v. Attorney General [1995] T.L.R 31, p.49, decision by Hon. Mr. Justice
Lugakingira (as he then was).
14
Ibid., p. 49.

 
1.3 Nature and Characteristics of Human Rights

Human rights are always universal, inalienable, indivisible, and interdependent and
interrelated to each other such as.15 The term inalienable rights or an unalienable right
refers to a set of human rights that are fundamental, are not awarded by human power,
and cannot be surrendered. Human rights are inalienable in the sense that a holder of
these rights cannot divest himself of them.16

Human rights are universal because everyone is born with and possesses the same
rights, regardless of where they live, their gender or race, or their religious, cultural or
ethnic background, Human rights are indivisible and interdependent means that you
cannot be denied a right because it is "less important" or "non-essential because all
rights political, civil, social, cultural and economic are equal in importance and none
can be fully enjoyed without the others.17

Further, human rights are those basic standards without which people cannot live in
dignity. To violate someone’s human rights is to treat that person as if she or he was
not a human being. To advocate for human rights is to demand that the human dignity
of all people be respected. In claiming these human rights, everyone also accepts the
responsibility not to violate the rights of others and to support those whose rights are
abused or denied.18

2.0 Can Democracy Guarantee the Protection of Human Right?

The question worth consideration is whether democracy can at all times guarantee the
protection of human rights. The answer to such a question is in the affirmative even
though with some exceptions or qualifications. This is because, first, human rights are
not absolute. They are protected subject to and in accordance with the law. The law
sometimes is couched in a way that enjoyment of rights and freedoms is limited.

                                                                                                               
15
E., Posner, The Twilight of Human Rights Law, New York. Oxford University Press, 2014, pp. 9–12.
16
Ibid.
17
What Are Human Rights? Available at http://hrlibrary.umn.edu/edumat/hreduseries/hereandnow/Part-
1/whatare.htm, accessed on May 24th, 2019.
18
Ibid.

 
Second, in some cases democracy may be used to defeat or violate the rights of the
minorities. In democratic states decisions are reached by the vote of the majority. I
wish to make a strong case by using the Tanzanian situation to support my argument
that democracy does not always guarantee the protection of human rights.

In 1992 Tanzania became a multiparty state after banning political parties in the late
1960’s during the times of Mwl. Julius Kambarage Nyerere as the President and the
country’s embracement of socialism. To reach this decision a Presidential
Commission was formed under the leadership of the-then Chief Justice Francis
Nyalali (commonly known as the Nyalali Commission). The views of the masses
were ‘democratically’ collected but most were not in favor of a multiparty state. If
this decision was upheld and followed, democracy would have prevailed but the right
for individuals to participate in election and exercise their human right to elect
someone of their choice would have suffered a serious blow.

Again the people have a right to participate in the matters of governance directly or
through representatives. This is a human right guaranteed by Article 8(1) of the
Constitution and the Article 21 of the Universal Declaration of Human Rights, 1948.
Today, the most common form of democracy is representative democracy, in which
citizens elect officials to make political decisions, formulate laws, and administer
programs for the public good. In the name of the people, such officials can deliberate
on complex public issues in a thoughtful and systematic manner that requires an
investment of time and energy that is often impractical for the vast majority of private
citizens. Once selected, public officials in a representative democracy are presumed to
hold office in the name of the people and remain accountable to the people for their
actions.

In Tanzania the ruling party has the majority of members in the house. The laws and
other important decisions are passed or rejected by the parliament based on voting.
This is a democratic process. But in many instances party inclination overrides the
objectivity of the members of parliament. The voting or support to a particular
decision is mainly based on ‘the opposition-ruling party’ membership than substance.
In such a situation some laws may be democratically passed by the parliament but the
law violates human rights.

 
When the majority passes a law that does not preserve or protect human rights what
happens? In a democratic state the Judiciary must step in and protect human rights
without fear or favor. The most recent decision by the High Court of Tanzania in the
case of Bob Chacha Wangwe versus The Attorney General, The National
Electoral Commission and the Director of Election, Miscellaneous Civil Cause
No. 17 of 2018 (unreported) cements the importance of democracy in safeguarding
human rights. In any democratic society worth the name rule of law is paramount.
The High Court has made a decision on the constitutionality of some of the sections
of the National Elections Act, (Cap. 343 R.E. 2015) on election supervisors.

In brief, the Court was tasked to consider and make a decision whether “there is a
constitutional validity of the contested sections 6(1), 7(1), 7(2) and 7(3) of the
National Elections Act. In other words, whether the impugned provisions contravene
the provisions of Article 21(1), 21(2) and 26(1) of the Constitution which concern the
right to take part in matters pertaining the governance of the country either directly
or through representatives freely elected by the people, the right and freedom
participate fully in process leading to decision on matters affecting the petitioner…”

After considering the relevant provisions of the law the High Court held that section
7(1) and 7(3) of the National Elections Act, which empower the City and
Municipal/District Directors to act as elections supervisors are unconstitutional and
accordingly struck them out. The human right to participate in free and fair elections
has been guaranteed. This is only possible in a democratic country. If there is no
democracy the Judiciary could not declare the said provisions as unconstitutional.

However, this should not in any measure be used to suggest that Tanzania is so
democratic that the Judiciary is independent always. We still have to ensure that the
Judiciary always remains independent instead acting independently only on a few
selected cases or situations. It can only be possible if the civil society is not denied to
freely operate without the fear of being sanctioned by the Executive. Individual and
group rights and freedoms such as the freedom of speech, freedom of assembly, the
right to demonstrate peacefully and freedom of conscience should not be curtailed by
law or Executive orders. A good example is the right of political parties to hold public
meetings. This right cannot be curtailed by an order of the President and the Judiciary
should not fail to pronounce such order as unconstitutional.

 
3.0 How Can Democracy Enhance the Protection of Human Rights in
Tanzania

As it has already been stated in any democratic state the three pillars of the
Government, that is, the Executive, the Legislature and the Judiciary must ensure that
the democratic principles and human rights enshrined in the Constitution are
preserved, respected, fulfilled and protected. Democracy can enhance the protection
of human rights in a number of ways. Some few examples are given hereunder;

3.1 Free and Fair Elections

The citizens must be given a chance to participate directly in elections or elect their
representatives in a free and fair manner. Any development efforts will succeed if
there is in place a legitimate and democratically elected government that is responsive
and accountable to the people. Political liberalization and democratization can be
advanced through fair and free elections. For an election to be free and fair, certain
human rights such as the freedoms of speech, association and assembly, are
required. These rights will guarantee political participation, encourage political
debates, which will help to shape the national agenda and other policy decisions.

3.2 Independent Judiciary

As already shown, an independent judiciary will ensure that laws or Executive orders
that violate human rights can successfully be challenged in Court. Article 26(2) of the
Constitution provides that every person has the right to take legal action to ensure that
the protection of the constitution and the laws of Tanzania. Article 30(3) gives any
person claiming that a provision of the constitution or any law concerning his right is
being or is likely to be violated by any person (including the State) a right to institute
legal proceedings for redress in the High Court of Tanzania.19 Democracy guarantees
the independence of Judiciary.

                                                                                                               
19
Individuals and civil organizations in Tanzania have exercised this right in many occasions. The
results have been mixed. The Judiciary sometimes has entered decisions in favor of the claimants and
protected human rights. In some other cases the Judiciary has used technicalities to refuse or avoid
making orders that would ensure that human rights are protected. And also the delay in making
decisions, which touch issues of human rights violations, is a factor that causes some displeasure and
concerns to the general public.

 
3.3 Rule of Law and Good Governance

The underlying premise of rule of law implies that every citizen is subject to and
accountable under the law, including lawmakers and those in government
positions. In this sense, the rule of law seems to encourage governance through
democracy created for and by the people, as much as it stands in stark contrast to the
concepts of dictatorship, autocracy and oligarchy where those in positions of power
and governance conduct their affairs outside and above of the purview of the law.20

Democracy and rule of law are closely interlinked. When rule of law is observed in a
democratic society then human rights will be respected and protected. No one will be
above the law. Whenever there are violations of human rights the perpetrators will
swiftly be brought before the law regardless of their political positions. Domestic
judicial bodies and or organs will impartially treat all those responsible for the
violations of human rights. The sanctions imposed if found guilty will deter others
from committing such crimes or violations.

3.4 An accountable parliament

The parliament must be able to keep in check the Executive. It is almost impossible to
have a parliament that is accountable to those who elected it if there is no democracy.
The obvious result of this is that the parliament may enact laws that violate human
rights simply because the members cannot be held accountable by the electorates.
Partisanship may be another reason for lack of accountability. Members of parliament
are more loyal to the party that has given them the chance to contest for their
positions instead of the citizens they represent. This dilutes the powers of the
parliament to hold the Executive accountable. Any violations of human rights by the
State cannot be questioned by the Parliament in some cases. In Tanzania during the
“Operesheni Tokomeza Ujangiri” the Parliament held the Executive responsible for
the violations of human rights committed by the police and other military personnel
during the operation. Some Ministers were forced to resign as a result. This evidences
the importance of democracy is enhancing human rights.

                                                                                                               
20
See an online Article on Impact of Rule of Law: Rule of Law & Democracy available
http://rolalliance.org/rol-alliance-impact/rule-of-law-democracy accessed on 29th May 2019.

 
4.0 Conclusion:

Democracy enhances the preservation, respect, fulfillment and protection of human

rights in any society. Without democracy the human rights cannot be guaranteed or
protected. The Executive will violate human rights at will to remain in power or to
push their agenda. The Judiciary will have no power or ability to hold the perpetrators
accountable. The people’s right to govern their country through the elected
representatives will be abrogated. The Government must implement the principles of
democracy in practice. Human rights are widely accepted domestically and
internationally. It is the duty of the State to ensure that they are preserved, respected
and protected. A democratic state ensures that this is achieved. It is the opposite in
non-democratic, authoritarian, dictatorial state.