MZUMBE UNIVERSITY

FACULTY OF LAW

RESEARCH REPORT

ON

THIRTY FIVE YEARS OF THE BILL OF RIGHTS IN MAINLAND

TANZANIA: CRITICAL ANALYSIS ON THE EFFECTIVENESS OF THE
ENFORCEMENT OF THE BASIC RIGHTS THROUGH COURT

By
KIMARIO, ALOYCE RUBIAN
REG. NO: 11301720/T.17
SUPERVISOR: MR. I. PUNGE

A COMPULSORY RESEARCH REPORT SUBMMITED IN PARTIAL FULL

FILMENT OF THE REQUIREMENT FOR THE AWARD OF THE
BACHELOR OF LAWS (LL.B) DEGREE OF MZUMBE UNIVERSITY
2020
 CERTIFICATION

I the undersigned, do hereby certify that I have read and hereby recommend for
acceptance by Mzumbe University a Research Report titled Thirty Five Years of
the Bill of Rights in Mainland Tanzania: Critical Analysis on the Effectiveness
of the Enforcement of the Basic Rights Through Court in partial fulfillment of the
requirements for the Bachelor of Laws Degree of Mzumbe University.

_____________________________
Ignas Seti Punge
(Supervisor)

_________________________
Date

i
 DECLARATION AND COPYRIGHT

I, KIMARIO, ALOYCE RUBIAN, do hereby declare that this research report is a

work of my hands and a result of my own efforts and it has never been submitted to
any learning institution, and wherever other people’s works have been used, they
have been acknowledged accordingly.

Signature________________________

Date__________________________

©
This research report is a copyright material protected under the Berne Convention for
the Protection of Literary and Artistic Works, 1971 (Berne Convention), the
Copyright and Neighboring Rights Act, [CAP 218 R.E.2002] and other international
and national enactments on protection of intellectual property. It may not be
reproduced by any means in full or in part, except for short extracts in fair dealings,
for research or private study, critical scholarly review or discourse with an
acknowledgement, without the written permission of Mzumbe University, on behalf
of the author.

ii
 ACKNOWLEDGEMENT

The successful completion of this work is a result of the support I received from
many people and various institutions. I would like to express my gratitude to all of
them even though due to space constraints I may not be able to mention them all by
their names.

First and most importantly, I am so grateful to the Almighty God for His blessings
and grace and for keeping me in good health throughout the period of conducting this
study. Without God’s blessings nothing would have been possible.

I wish to express special thanks to Mr. Ignas Seti Punge my supervisor, for his keen
supervision and guidance throughout the preparation and writing of this report. He
always made himself available for consultations and offered useful advice and much
needed encouragement. He read through the draft and provided very valuable
comments which improved the work. I owe him a great debt.

Thanks, are also due to my Lecturers on Human Rights Law Mr. Benjamin Jonas and
Ms. Esther Kayamba of Mzumbe University for imparting Human Rights knowledge
which helped me a lot in the completion of this study.

I also take this opportunity to send my appreciations to the Staff of the Faculty of
Law Mzumbe University and the Management of Mzumbe University at large for
seeing the importance of Students to conduct research; this is what made me to
conduct this research and further more to develop my passion in writing.

Special thanks must go to my colleagues Dickson Sabbath Kwilenga, Bakari Omari

and Richard Stima for their moral and material contributions to this work. We have
journeyed the path of research together and it is unlikely that I would have succeeded
without their inspiration and encouragement. Their intelligence, perception and
thoughtful comments on every draft have made this report so much easier.

Lastly, I appreciate the contributions of all other persons who have contributed in
one way or another in making this study successful.

iii
 DEDICATION

This work is dedicated to my beloved Mother Rosada Kimario, my brothers France

Rubian, Roman Rubian and to all Human Rights Defenders.

iv
 LIST OF INTERNATIONAL AND REGIONAL INSTRUMENTS,
CONSTITUTIONS AND STATUTES

INTERNATIONAL INSTRUMENTS
Charter of the United Nations, 1945
Convention on the Elimination of All Forms of Dicrimination against Women, 1979
Convention on the Rights of the Child, 1989
The First Optional Protocol to the International Covenant on Civil and Political
Rights, 1966
The Second Optional Protocol to the International Covenant on Civil and Political
Rights, 1989
The International Covenant on Civil and Political Rights, 1966
The International Covenant on Economic, Social and Cultural Rights, 1966
The Universal Declaration of Human Rights, 1948
The Vienna Declaration and Programme of Action, 1993
REGIONAL INSTRUMENTS
African charter on Democracy, Election and Governance, 2007
African Charter on Human and Peoples’ Rights, 1981
African charter on Human and Peoples’ Rights on the Rights and Welfare of the
Child, 1990
Protocol to the African charter on Human and Peoples’ Rights on the Rights of
Women, 2004
Protocol to the African charter on Human and Peoples’ Rights on the Establishment
of the African Court on Human and Peoples’ Rights
CONSTITUTIONS
The Constitution of the United Republic of Tanzania, [CAP 2 R E 2002]
The Constitution of Zanzibar, 2010
The Constitution Kenya, 2010
The Constitution of the Republic of South Africa, 1996
STATUTES
The Basic Rights and Duties Enforcement Act, [CAP 3 R E 2019]
The Basic Rights and Duties Enforcement (Practice and Procedure) Rules, 2014

v
The Commission for Human Rights and Good Governance Act [CAP 391 R. E.
2002]
The Constitution (Consequential, Transitional and Temporary Provisions) Act No.16
of 1984
The Fifth Constitutional Amendment Act, 1984, Act No.15 of 1984
The Law of Marriage Act [CAP 29 RE 2002]
The Law of the Child Act, 2009
The Written Laws (Miscellaneous Amendments) Act No. 3 of 2020 (Bill
Supplement)

LIST OF CASES
Ally Rajabu and Others v. United Republic of Tanzania Application no. 007/2015
Bob Chacha Wangwe v. Attorney General and 2 Others Misc. Cause No. 17 of 2018
High Court of Tanzania at Dar Es Salaam (Unreported)
Chumchua s/o Marwa v. Officer in Charge of Musoma Prisons and the Attorney
General, Civil Case No. 5 of 1993 High Court of Tanzania at Mwanza
(Unreported)
Director of Public Prosecution v. Daudi Pete [1993] TLR 22
Francis Ishengoma Ndyanabo v. Attorney General Civil Appeal No 64 of 2001 Court
of Appeal of Tanzania, (unreported)
Government of the Republic of Namibia and Another v. Cultura 2000 and another
(1994) 1 SA 407
Prof. Ricky Costa Mahalu and Grace Martin v. Attorney General Misc. Civil Cause
No. 35 of 2007, High Court of Tanzania at Dar es Salaam (Unreported)
Rebeca Gyumi v. Attorney General, Miscellaneous Civil Cause No. 5 of 2019 High
Court DSM (Unreported)
Rev. Christopher Mtikila v. Attorney General [1995] TLR 31
Zitto Zuberi Kabwe and Others v. The Attorney General, Misc. Civil Cause No. 31
of 2018, High Court of Tanzania at Dar es Salaam (unreported).
Zitto Zuberi Kabwe v. The President of the United Republic of Tanzania, and 3
others Misc. Civil Cause No. 1 of 2020 High Court of Tanzania at Dar Es
Salaam (Unreported)

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 ABBREVIATIONS AND ACRONYMS

ACHPR - African Charter on Human and Peoples Rights

AfCHPR - African Court on Human and Peoples’ Rights
AG - Attorney General
BRDEA - Basic Rights and Duties Enforcement Act
CAP - Chapter
CAT - Court of Appeal of Tanzania
CCM - Chama Cha Mapinduzi
CEDAW - Committee on the Elimination of all forms of Discrimination
against Women
CHRGG - Commission for Human Rights and Good Governance
CRC - Convention on the Rights of the Child
DPP - Director of Public Prosecution
EACJ - East African Court of Justice
Ed - Editor / Edition
Eds. - Editors
HCD - High Court Digests
Ibid - Ibidem
ICCPR - International Covenant on Civil and Political Rights
ICESCR - International Covenant on Economic Social and Cultural
Rights
L.LB - Legum Baccalaureus / Bachelor of Laws
LHRC - Legal and Human Rights Center
Misc. - Miscellaneous
NGO’s - Non-Government Organizations
No. - Number
OIC - The Organization of the Islamic Conference
p - Page
pp - Pages
R. E. - Revised Edition
TLR - Tanzania Law Report

vii
TPFNet - Tanzanian Police Female Network
UDHR - Universal Declaration of Human Rights
Vol. - Volume

viii
 ABSTRACT
The purpose of this study was to examine the effectiveness of the enforcement of the
basic rights as enshrined in the Constitution of United Republic of Tanzania in 1984.
This study was necessary because despite the inclusion of the bill of rights in the
constitution and enactment of the procedural law in enforcing such rights, people
have not satisfied with the enforcement of the said rights. It was due to this fact that
this study was conducted so as to expound what is the problem with the enforcement
of the Basic Rights especially through court.
The study was limited only to Tanzania mainland due to the fact that the issue of
Human Rights is not a union matter and the very fact that Zanzibar has its own legal
framework pertaining human rights.
The study involved three methods of data collection i.e. documentary review
interviews and questionnaire whereby the researcher undergone field research and
gathered relevant information from different legal practitioners and ordinary citizens.
The study involved a sample of 34 respondents and random sampling was employed.
The data obtained exposed that there is a serious problem as far as the question of
enforcement of the basic rights is concerned, respondents were of the view that the
difficulty contained in the Basic Rights and Duties Enforcement Act posed a serious
problem in the enforcement of the rights, also the study illustrates that the
Constitution contains a lot of restriction clauses which take away the whole essence
of the Bill of Rights. Inadequate education, unwillingness of the government and
politicization of human rights matters were also demonstrated as another challenges,
among the others.
The study recommends that the Constitution of the United Republic of Tanzania be
amended so as to remove those restrictions and since human rights are subject to
some restriction then to include in the same, restriction(s) which are proportional and
acceptable in any democratic nation, also the study recommends for the amendment
of the Basic Rights and Duties Enforcement Act so as all problems as shown in
chapter four be resolved. Provision of education to the public and the encouragement
of judicial activism of the judges also appeared to some of the recommendations of
this study.

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 TABLE OF CONTENTS

CERTIFICATION ...................................................................................................... i
DECLARATION AND COPYRIGHT .................................................................... ii
ACKNOWLEDGEMENT ........................................................................................ iii
DEDICATION........................................................................................................... iv
LIST OF INTERNATIONAL AND REGIONAL INSTRUMENTS,
CONSTITUTIONS AND STATUTES ..................................................................... v
LIST OF CASES ....................................................................................................... vi
ABBREVIATIONS AND ACRONYMS ................................................................ vii
ABSTRACT ............................................................................................................... ix
TABLE OF CONTENTS .......................................................................................... x
CHAPTER ONE ........................................................................................................ 1
GENERAL INTRODUCTION ................................................................................. 1
1.1 Introduction ........................................................................................................... 1
1.2 Background of the problem................................................................................... 2
1.3 Statement of the problem ...................................................................................... 5
1.4 Literature review ................................................................................................... 6
1.5 Justification for the Study ................................................................................... 10
1.6 Scope of the Study .............................................................................................. 10
1.7 Objectives of the Study ........................................................................................ 11
1.7.1 General objective .............................................................................................. 11
1.7 2 Specific objectives ............................................................................................ 11
1.8 Significance of the Study ..................................................................................... 11
1.9 Limitation of the Study ........................................................................................ 12
1.10 Research Questions ............................................................................................ 12
1.11 Research Methodology ...................................................................................... 12
1.11.1 Population and Sampling Design .................................................................... 13
1.11.2 Data Collection Methods ................................................................................ 13
1.11.2.1 Documentary review .................................................................................... 13
1.11.2.2 Interview ...................................................................................................... 13
1.11.2.3 Questionnaire ............................................................................................... 14
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1.11.3 Data Processing and Analysis ......................................................................... 14
1.12 Chapter Scheme ................................................................................................. 14
CHAPTER TWO ..................................................................................................... 16
CONCEPTUAL FRAMEWORK OF THE HUMAN RIGHTS
ENFORCEMENT MECHANISM IN TANZANIA MAINLAND ...................... 16
2.1 Introduction .......................................................................................................... 16
2.2. The Concept of Human rights ............................................................................. 16
2.2.1 Categories of Human Rights ............................................................................. 17
2.2.1.1Civil and Political Rights / Negative Rights ................................................... 18
2.2.1.2 Economic Social and Cultural Rights / Positive Rights................................. 18
2.2.1.3 Collective Rights ............................................................................................ 19
2.2.2 Principles of Human Rights .............................................................................. 19
2.2.2 The controversial on the Universality of human rights .................................... 20
2.3. The concept of Bill of Rights .............................................................................. 23
2.3.1 Entrenched Bill of Rights.................................................................................. 23
2.3.2 Un-entrenched Bill of Rights ............................................................................ 23
2.3.3 International Bill of Rights ............................................................................... 24
2.4. The concept of Human Rights Enforcement Mechanisms in Tanzania .............. 24
2.5. Conclusion .......................................................................................................... 24
CHAPTER THREE ................................................................................................. 25
LEGAL AND INSTITUTIONAL FRAMEWORK OF HUMAN RIGHTS
ENFORCEMENT IN TANZANIA MAINLAND ................................................. 25
3.1. Introduction ......................................................................................................... 25
3.2. International legal and Institutional Framework ................................................. 25
3.2.1 International Legal Framework on the Enforcement of Human Rights ........... 25
3.2.1.1 The International Covenant on Civil and Political Rights ............................. 25
3.2.1.2 The Convention on the Elimination of All Forms of Discrimination against
Women ....................................................................................................................... 26
3.2.1.3 The Convention on the Rights of Child (CRC) ............................................. 26
3.2.2 The Institutional Framework............................................................................. 27
3.2.2.1 The Committee on the Rights of the Child .................................................... 27
3.2.2.2 Human Rights Committee.............................................................................. 28
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3.2.2.3 Committee on the Elimination of Discrimination against Women (CEDAW)
.................................................................................................................................... 28
3.3. Regional Legal and Institutional Framework...................................................... 29
3.3.1 Regional Legal Framework ............................................................................... 29
3.3.1.1 The African Charter on Human and Peoples’ Rights .................................... 29
3.3.1.2 Protocol to the African charter on Human and Peoples’ Rights on the Rights
of Women (Malabo Protocol) .................................................................................... 30
3.3.1.3 African Charter on the Rights and Welfare of the Child ............................... 30
3.3.1.4 African Charter on Democracy, Elections and Governance .......................... 31
3.3.2 Regional Institutional Framework .................................................................... 31
3.3.2.1 The African Commission on Human and Peoples Rights ............................. 31
3.3.2.2 The African Court on Human and Peoples Rights (AfCHPR) ...................... 32
3.3.2.3 The Committee on the Rights and Welfare of the Child (CRWC) ................ 33
3.4. Domestic legal and Institutional Framework ...................................................... 34
3.4.1 Domestic legal framework ................................................................................ 34
3.4.1.1 The Constitution of the United Republic of Tanzania, 1977 ......................... 34
3.4.1.2 The Basic Rights and Duties Enforcement Act (BRDEA) ............................ 34
3.4.2. Domestic Institutional Framework................................................................... 35
3.4.2.1 The High Court of Tanzania .......................................................................... 35
3.5 The Commission for Human Rights and Good Governance (CHRGG).............. 36
3.6 Police Gender and Children’s Desk (PGCD) ....................................................... 36
3.7 Conclusion ........................................................................................................... 37
CHAPTER FOUR .................................................................................................... 38
DATA PRESENTATION, ANALYSIS AND DISCUSSION OF FINDINGS ... 38
4.1. Introduction ......................................................................................................... 38
4.2. Data Presentation and Findings ......................................................................... 38
4.2.1 Challenges facing the enforcement of the Basic Rights through court in
mainland Tanzania ..................................................................................................... 38
4.2.1.1 Cumbersome procedures ................................................................................ 38
4.2.1.2 Limitation Clauses ......................................................................................... 40
4.2.1.3 The Government ............................................................................................ 41
4.2.1.4 Inadequate Education ..................................................................................... 42
xii
4.2.1.5 Politicization of Human Rights ...................................................................... 43
4.2.1.6 The Question of the Independence of the Judiciary....................................... 44
4.3. The achievement of the enforcement of the Basic Rights through Court ........... 44
4.3.1 Judicial activism................................................................................................ 44
4.3.2 Experience from other Jurisdictions ................................................................. 46
4.3.2.1 Experience from the Constitution of Kenya, 2010 ........................................ 46
4.3.2.2 Experience from the Constitution of South Africa, 1996 .............................. 47
4.3.3.3 Experience from the Constitution of Zanzibar, 2010..................................... 48
4.4. Conclusion .......................................................................................................... 48
CHAPTER FIVE ..................................................................................................... 49
CONCLUSION AND RECOMMENDATIONS ................................................... 49
5.1 Introduction ......................................................................................................... 49
5.2. General Conclusion ............................................................................................. 49
5.3 Recommendations ................................................................................................ 50
5.3.1 Law Reform ...................................................................................................... 50
5.3.2 Provision of Education ...................................................................................... 55
5.3.4 Judicial Activism of the Judges ........................................................................ 56
5.3.5 Obliteration of politics in human rights matters ............................................... 58
5.3.6 Ratification, Compliance and Domestication of international instruments ...... 59
5.3.7 Compliance with Judicial and Extra-Judicial Decisions ................................... 59
REFERENCE AND BIBLIOGRAPHY ................................................................. 61
APPENDIXES .......................................................................................................... 65
APPENDIX .I: Questionnaires................................................................................... 65
APPENDIXES .II: Interview guide ........................................................................... 68

xiii
 CHAPTER ONE
GENERAL INTRODUCTION
Fundamental rights are not gifts from the state but they inhere
in a person by virtue of birth, and they are prior to the state and
the law; the enactment of those rights in the Constitution is
mere evidence of their recognition and the intention that they
should be enforceable in a court of law, and an intention that
those rights should not be arbitrarily restricted by the state -
Lugakingira J, in Rev. Christopher Mtikila v. Attorney
General 1

1.1 Introduction
Basic Rights enshrined in the Constitution of United Republic of Tanzania, 1977 by
the Fifth Constitutional Amendment Act 2 are of important since they were in demand
for more than twenty years since we regain our independence from British
Protectorate in 1961. Before the inclusion of the Bill of Rights in the Constitution
people were highly demand them, after the inclusion of them people were and are
still blaming the government and different enforcement machineries for the failure to
protect and or enforce basic rights which cause serious violations of human rights in
the country. The Bill of Rights is not worth the paper it is written if they cannot be
enforced by competent institutions. As clearly noted by His Lordship Lugakingira J,
in the case of Rev. Christopher Mtikila v. Attorney General 3 that When the
framers of the Constitution declared the fundamental rights in Part III of Chapter
One thereof, did not do so in vain, it must have been with intention that these rights
should be exercisable. It is therefore the sluggish of the enforcement of the Basic
Rights that has prompted the researcher to conduct this research for the purpose of
knowing what is behind the failure of the enforcement of the Basic Rights.

1
[1995] TLR 31
2
Act No. 15 of 1984
3
[1995] TLR 31

1
1.2 Background of the problem
The Bill of Rights was incorporated in the Constitution of United Republic of
Tanzania 4 in 1984 by the Fifth Amendment of the Constitution there in. The bill of
rights was not part of our laws since independence due to various reasons, such
reasons includes; the possibility of conflict between the Judiciary and the Parliament,
this reason was provided by the Commission for One Party State which provides
among the other things that, “If a Bill of Rights were written into the Constitution, it
would have overriding legislative effect. This means that the Courts could be asked
to declare invalid any laws passed by parliament if it were inconsistent with a
provision contained in the Bill of Rights. By requiring the courts to stand in
judgment on the legislature the Commission feels that the judiciary would be drawn
into the area of political controversy.” 5 The developmentalism theory , this was
another reason it implies that as a nation we were economically very backward and
we need to develop very fast, in this task of development we cannot afford the luxury
of politics. 6 Therefore human rights were considered to be a matter of politics and
therefore such politics were not considered to be a priority in those early days of
independence while developments become the first priority of the country. Another
reason which comprise of also the above reasons was that, a transition period was
necessary to enable the young independent nation to mature, consolidate its national
unity, develope national ethics and firm democratic tradition through practice to
avoid internal disorder, curtailment of government desirability for rapid socio-
economic changes and development, and avoidance of conflicts between the
executive arm of the government and the judiciary. 7 Julius Nyerere, the first
president of Tanzania and the then Tanganyika had the following to say on the
incorporation of bill of rights;
“How can a peasant from the bush appreciate freedom of
expression, when possibility of having modern fertilizers at
4
[CAP 2 R.E 2002]
5
Amankwah, A., Constitutions and Bills of Rights in Third World Nations: Issues of Form and
Content The Comparative and International Law Journal of Southern Africa, Vol. 21, No. 2 (1988), p.
208
6
Shivji, I.G., (Ed.), (1985), The State and Working People in Tanzania, Codesria Book Series, Dakar,
p.3
7
Lubuva D. Z (1987) Reflection on Tanzania’s Bill of Rights, an address to the faculty of Law ,
University of Dar-Es- Salaam on 16 October 1987

2
 his disposal would be much more valuable. What freedom
has our subsistence farmer? He scratches a bare living from
the soil provided the rains do not fail. His children work at
his side without schooling, medical care or even good
feeding. Certainly he has freedom to vote and to speak as he
wishes. But these freedoms are much to him than his freedom
to be exploited. Only as his poverty is reduced will his
political freedoms become properly meaningful and his right
to human dignity becomes a fact of human dignity.” 8

Despite the fact that bill of rights was incorporated in the Constitution of United
Republic of Tanzania in 1984, it was not justiciable until 1988, this was because the
government claim that time was too short to amend all violative laws before the bill
of rights was incorporated in the Constitution hence the government proposed for the
suspension of justiciability for three years so as to make the house in order. The
parliament enacted the Constitution (Consequential, Transition and Temporary
Provision) Act 9 which provided under Section 5(2) that “No existing law or any
provision in any existing law may, until after three years from the date of the
commencement of the Act, be construed by any court in the United Republic as
being unconstitutional or otherwise inconsistence with any provision of the
Constitution.” It was after the passing of the transition period that the Courts started
exercising their jurisdiction.

The inclusion of the Bill of Rights in the Constitution itself did not be a basis of
safeguarding rights of the people, the problem was the enforcement of the said rights,
the provisions of the Constitution did not provide procedures which will be followed
by High Court in enforcing basic rights of the people, this lacunae lead the courts to
apply common procedures of the court, this can be seen in the case of Director of
Public Prosecution v. Daudi Pete 10 where the court held that;

8
Nyerere, J.K., “Stability and Change in Africa”, African Contemporary Record, 2(1969-1970) C 30-
31.
9
Act No. 16 of 1984
10
[1993] TLR 22

3
 The Constitution confers upon the High Court original
jurisdiction to entertain proceedings in respect of actual or
threatened violations of the basic rights and freedoms and, until
Parliament enacts the procedure for the enforcement of those
rights and freedoms, the same may be enforced using the
procedure available in the High Court in the exercise of its
original jurisdiction…

The same view was taken in Chumchua s/o Marwa v. Officer in charge of
Musoma Prisons and The Attorney General 11 where the question was whether the
Bill of Rights could be enforced, when the procedure and rules of the High Court for
the conduct of such cases were yet to be enacted by the government as indicated by
article 30(4) of the constitution, the Court held that;
In my judgment the High Court may enforce the Bill of Rights without
the requisite rules of the court because that Article provides that the
government “may” enact such rules of the Court, so it is not a must
(not mandatory) that such rules are enacted prior to the enforcement
of the Bill of Rights… So, our High Court should not feel shy to
enforce the fundamental rights notwithstanding the fact that the
government has yet to enact rules of procedure for the enforcement of
the same.

It is through the judicial activism of the judges that the two decisions were made. In
1994 the Basic Rights and Duties Enforcement Act 12 was passed to give legal
effect Article 30(4) of the Constitution, in spite of the Act providing procedures, it
has been lamented for offending the Constitution and for providing too many
restrictions which make the enforcement of the basic rights difficult as it shall been
seen later.

11
Civil Case No. 5 of 1993 High Court of Tanzania at Mwanza (Unreported)
12
[CAP 3 R E 2019]

4
1.3 Statement of the problem
The question of effectiveness of the enforcement of Human Rights does not start
from the court or other enforcement machineries it start far from that, it starts from
the very beginning, from the provisions of the Bill of Rights itself, and from the
procedural laws, when there are unjustifiable restrictions for example claw back
clauses and derogation clauses that are not justifiable the enforcement become
difficult and even impossible in some situations, also when the procedures are
cumbersome the enforcement become difficult or even impossible. It was the
purpose of this research therefore to examine the problem behind the difficulties in
the enforcement of the said rights. For example, the constitution of the United
Republic of Tanzania under Article 30 (1) provides among the other things that;
The human rights and freedoms, the principles of
which are set out in this Constitution, shall not be
exercised by a person in a manner that causes
interference with or curtailment of the rights and
freedoms of other persons or of the public interest.

From the provision above one may ask what constitute public interests, sub article 2
(b) provides for particular situations of public interest to include; the interests of
defence, public safety, public order, public morality, public health, rural and urban
development planning; the development and utilization of mineral resources; and the
development or utilization of any other property in such manner as to promote the
public benefit. Certainly, it can be said that this provision exempt laws related to all
public activities of both the central and local government which, logically, are
closely linked with sensitive private interests, thus eroding the whole essence of the
enforcement of the Bill of Rights.

Another problem with the Constitution is the option vested to the court that instead
of declaring the Act to be unconstitutional the court may direct the government to
amend that law, this discretion vested to the court is, I think strange because when
you direct the very same government that makes that law to amend it is like to give
hyena a task of taking care of goats, the government will do it in a way that feels its

5
political, social and economic interests will be preserved, or not do it at all, or may
do it better later while the Rights of the people are still undermined.
In the other hand the institutionalization of the Basic Rights and Duties Enforcement
Act 13 is another problem and an obstacle towards effective enforcement of the Basic
Rights by the High Court, this is due to various bars that the Act contains, for
example, the requirement of panel of three judges to decide the matter is very
questionable since not every High Court Registry has three Judges, this cause
unnecessary delay in disposing-off cases, not only human rights cases but also other
cases which the High Court has to decide, the delay which will likely to render
justice, not only to the applicant but also to the other people.

Also the provision that an application may be refused by the court on the ground that
it is frivolous or vexatious, it is strange because it is one way of avoiding the hearing
of human rights cases on merit. None challenging of bills also posed a big problem in
the enforcement of thee rights and even contravenes the provisions of the
Constitution which requires any person whose right is likely or has been infringed to
seek redress in the High Court.

With these problems from the Constitution and from the Basic Rights and Duties
Enforcement Act it is clear that there is a serious problem as far as enforcement of
human rights are concerned especially enforcement through the High Court, it is
therefore the purpose of this research to examine and come with a significant
answers as to the problem.

1.4 Literature review

The study concerning the Bill of Rights has not been a new subject in Tanzania,
different people especially writers, human rights activists, judges, leaders have at
different times wrote or otherwise orally express their perspectives on the question of
the enforcement of Bill of Rights. The following are the review of some literatures
on this study.

13
[CAP 3 R E 2019]

6
Wambali M, 14 is of the view that the Basic Rights and Duties Enforcement Act 15
has contributed a lot in the difficulties of the enforcement of the basic rights
enshrined in the constitution, he argued that this law is counterproductive to the
smooth operation of the Bill of Rights and the general promotion of human rights in
this country, which must be discouraged and halted, Wambali is of that view because
of the difficulties contained in the Act, for example he pointed out subsection 8(2)
and (3) as they contravening Article 30 (3) of The Constitution since this article
expressly provides that a person so aggrieved may institute proceedings in the High
Court, he argued that the provisions of sub-section 8(2) of the Basic Rights and
Duties Enforcement Act bring about a serious problem of mixing public with private
law remedies. The act was supposed to provide for public law since it is through such
remedies that a victim of an unconstitutional or action can effectively be vindicated.
Section 8(3) in the view of Wambali is also unconstitutional as it ban applications is
intended to prevent the passing by the National Assembly of a potentially
unconstitutional bill, he suggests the sub section to be unconstitutional for offending
Article 30(3) of the Constitution where the phrase “any person” in the Article should
include the government and all its organ including the National Assembly itself. 16
On the other hand, Wambali is of the view that the provision which gives the power
to reject an application on the sole basis that the application is frivolous or vexatious
is strange in the enforcement of the basic rights, he said that;
“…it is strange to provide this as a criterion for the preliminary
ouster of some matter from full consideration by the court. This
is one way of avoiding the hearing of human rights cases on
merit, which is detrimental to the promotion and development of
the human rights discourse in this country. It may be difficult to
foresee a situation whereby an individual will be vexatious of
the state!”

14
Wambali, M. The Enforcement of Basic Rights and Freedoms and the State of Judicial Activism in
Tanzania: Journal of African Law, Vol. 53, No. 1 pp. 34-58
15
[CAP 3 R E 2019]
16
Op cit. Wambali citing The Constitution of the United Republic of Tanzania, 1977 as amended from
time to time.

7
Due to the problems observed, Wambali concludes that for the smooth and effective
enforcement of the basic rights the law should be amended to so as to encompasses
what the Constitution provides. If the Act continues it will be hard to enforce the
rights enshrined in the constitution and indeed it requires a very activist judiciary in
Tanzania effectively to combat the negative effects of this law.

Luoga F. D 17 on his part argues that the failure of the enforcement of the Bill of
Rights is due to deficiency in the contents of the Bill of Rights itself and that there
are too many restrictions imposed on fundamental rights and freedoms. He goes on
to argue that the Bill of Rights in Tanzania has earned itself the name of Bill of
exception because of excessive circumscription of the rights, claws such as “without
prejudice to law,” “subject to law,” “in accordance with law,” “not contrary to the
procedure provided,” permitted the restriction of guaranteed rights ab initio
according to the domestic law without specifying the circumstances or criteria to
such limitation. He then proposes in a vague way that those restrictions should be
removed and catalogue be increased. He is not straight forward on how and who
should do this. If he thinks the government might do it that is impossible for the
reasons already given.

Ruhangisa J. E 18 Is of the view that there is a shortage of Judges as well as High

Courts in the country, due to this situation the enforcement of the basic rights of the
people cannot be to its fullest as far as it is only the High Court that has jurisdiction
on such matters and as far as it is the requirement of the law that in deciding matters
pertaining to the basic rights there must be panel of three Judges. He suggests that
the requirement that there must be quorum of three judges so as to determine the
matter should be removed so as to easier enforcement of such cases. Also, he
suggests that senior Magistrates with Extended Jurisdiction should be given the
jurisdiction to entertain such matters due to the aforementioned reasons. Ruhangisa
joins Peter Maina and Mbunda X, in suggesting the issue of providing human rights
education concerning human rights to the people. Ruhangisa failed to suggest on the

17
Luoga F.D., (1991) “Human Rights Enforcement Mechanism in Africa”, Masters in International
Law Dissertation, University of Lund, , p.8
18
Ruhangisa J, (1998) Human Rights in Tanzania: The Role of the Judiciary, Thesis Submitted to the
University of London for the Degree of Doctor of Philosophy

8
increase of Judges and High Court registries since he put the problem to be the
shortage of Judges and High Courts, his view is to give access to Magistrates with
Extended jurisdiction to entertain the matters notwithstanding the effects of pointing
Magistrates to entertain these matters.

Shivji I.G., Majamba H., Makaramba R. V. & Maina C. M. 19 observe that

fundamental rights and freedom are not worth the paper they are written on if they
are incapable of being enforced by those affected by their violations. ... [I]n 1994 the
procedure for the enforcement of the bill of Rights was put in place through the Basic
Rights and Duties Enforcement Act. This process-part of which is also incorporated
in the constitution through the 11th Amendments complicates rather than facilitate
the enforcement of the rights.
Shivji and his colleagues pointed out the requirement of panel of three Judges of the
High Court so as to determine the matter as a serious problem which causes
enormous delay since not every High Court Registry in Tanzania has three judges.
They also pointed out that provision that “instead of declaring offending provision of
the law or directives unconstitutional, the High Court may advise the government to
rectify the situation” is strange since while the government of the day while is in the
process of considering the advice from the High Court, the unconstitutional law or
action continues to operate. They further stated clearly that, this type of legislation
does not assist in the promotion and protection of human rights.
Shivji and his Colleagues clearly posed the problem being the provisions contained
in the Basic Rights and Duties Enforcement Act, 1994, but they didn’t provide
suggestions and or recommendations as to their criticisms, this is, I think not a good
way of criticizing, a good way of doing so is by pointing out the problems and give
out suggestions to end or curtail the problems, in this Shivji and his colleagues has
failed. Furthermore Shivji and his colleagues stated that “Clearly, this type of
legislation does not assist in the promotion and protection of human rights.” in this
they have failed to appreciate even a little the presence of this legislation by showing

19
Shivji I. at al. (2004) Constitutional and Legal System of Tanzania: A Civics Sourcebook. Mkuki
na Nyota Publishers – Dar Es Salaam

9
its positive side, it doesn’t make sense that the whole Act didn’t come with a positive
provisions to help the people.

Chris Peter Maina 20 for example observes that the Bill of Rights is not successful in
Tanzania in promoting and protecting the rights and freedoms in Tanzania. On the
reason why the Bill of Rights has failed, he argues that it is because many
Tanzanians are ignorant on matters pertaining to Bill of Rights, hence need for their
education. This idea is shared by Mbunda L.21 who suggests that in order to solve
this problem it is essential for the government, the bar, the law society, the press and
academic institutions to take steps to educate the public about the contents of those
human rights norms as enshrined in the Constitution.

1.5 Justification for the Study

The study is worth due to the fact that the issue of enforcement of human rights is of
paramount importance and it is what makes the real essence of bill of rights well and
alive, if this issue not carefully and effectively carried out, people will continue
suffering from violation of their rights by their fellow members of the society or
government machineries with no way they can seek redress, this study is also worth
studying since currently people of Tanzania has been blaming the government and
state machineries for infringing people’s rights, so by conducting this study the real
enemy against the enforcement has been exposed and solution thereof has been
provided. This I think will help people to know their real enemy and have courage to
fight the same for a better present and future adherence of the basic rights enshrined
in our constitution.

1.6 Scope of the Study

The scope of the study in geographical matter is specifically in Tanzania mainland
due to the fact that Zanzibar has its own framework on human rights and also the fact
human rights is not among the union matters. Also this study centered on mainland

20
Peter, C.M., (1997) Human Rights in Tanzania: Selected Cases and Materials, Rudiger Koppe
Verlag, Koeln, p.655.
21
Mbunda, L. X., “The Bill of Rights in Tanzania: Strategies for the Protection and Promotion of
Fundamental Rights and Freedoms in a Multi-Party Tanzania” in Mtaki, C.K., and Okema, M.,
(Eds.,) (1994) “Constitutional Reforms and Democratic Governance in Tanzania”, p.148.

10
Tanzania since recent trends of Human Rights in Tanzania mainland shows that there
are serious violations of Human Rights associated with ineffective enforcement.
Legal scope of this study falls under Part Three of the Constitution of United
Republic of Tanzania and The Basic Rights and Duties Enforcement Act [CAP 3 R E
2002] and The Basic Rights and Duties Enforcement (Practice and Procedure) Rules,
2014 because it is through these two instruments that Human Rights are enshrined
and enforced.

1.7 Objectives of the Study

1.7.1 General objective
General objective of this research was to assess and make analysis of the
enforcement of the Basic Rights through the court. What have been the reasons
behind its failure and the recommendations thereof.

1.7 2 Specific objectives

• To examine what has been the challenges to the effective enforcement of
the basic rights in Tanzania mainland.
• To examine how far the High Court has tried to deal with challenges
during the enforcement of the basic rights.
• To seek experience of the enforcement of the Bill of Rights enshrined in
of constitution of other countries especially those of the commonwealth

1.8 Significance of the Study

The issue of the enforcement of human rights is of greater importance to every
person in the society is it democratic or dictatorial one, people’s rights must observe,
protected and enforced. This study is so significant since it puts in the limelight what
is behind the scene in respect to the enforcement of Bill of Rights in Mainland
Tanzania especially enforcement through the court. Assessment has been made, and
it is well known on what was achieved over the period since the Bill of right was
included in the Constitution of the United Republic of Tanzania and what is the
reason behind the failure of the enforcement mechanism for the time since its
incorporation.

11
1.9 Limitation of the Study
Since this study has covered large geographical area, there has been a serious
limitation which affected this study. The first is financial constraints where it highly
affected the study since this study require one to travel different parts of Tanzania
mainland so as to collect data and other useful materials concerning the study.
Another limitation was insufficient time, this has also be a serious one, due to the
vast coverage of the study there was a need of enough time to collect data, travel
different parts (to mention a few), the given time was very limited and has affected
the completion of the study. Despite the challenges posed above, the scope of the
study remained the same since in having a look on the enforcement of the Bill of
Rights one cannot have a look on only one geographical area of the country and
pretend to have a concrete conclusion that is for the same, this should be the study
that concern the whole country so as after the study one can come up with solutions
to the problem.

1.10 Research Questions

1. What has been the challenges facing the enforcement of the Basic Rights as
contemplated in the constitution of united Republic of Tanzania.
2. What has been the success of the enforcement of the Basic Rights in its
thirty-five years since it was incorporated in the constitution of United
Republic of Tanzania (if any)
3. What is or has been the experience of the enforcement of the Basic of Rights
from other countries especially those of the commonwealth

1.11 Research Methodology

This study has been both doctrinal and empirical. The approach and choice of
methods used in this study depended on the nature of the study and the type of data
collected. Doctrinal research involved review of legal texts and other public and
scholarly documents. Empirical research involved the collection of data from field
respondents through interviews and questionnaires. This is what has been the
research methodology of this study.

12
1.11.1 Population and Sampling Design
a) Population
For the completion of this study views from human rights activists were necessary,
also the study has not been well completed without obtain data from different
organizations established for the purposes of human rights or aspects related to
human rights. Also this study has comprise data from Advocates and judicial
officers, law students so as to get crucial conclusion of the analysis. It was not easy
to get all what I need from the above mentioned persons, so the following sample
design illustrates on how data were obtained from the population.
b) Sampling Design
The selection of respondents involves purposive and simple random sampling
techniques so as to get the data required.

1.11.2 Data Collection Methods

The methods of data collection in this study were documentary review,
questionnaires and interviews; the detailed application of these methods in this study
is well explained hereunder.

1.11.2.1 Documentary review

Documentary review has been used at large extent, this involve the review of the
Constitution of the United Republic of Tanzania, 1977 and of other countries,
Principal and Subsidiary legislations, remarkable judicial decisions, and review of
scholarly works like books, journal articles and research reports which seem useful in
obtaining secondary data. This method was preferred because the question of human
rights has not been a new subject in Tanzania, different scholars have tried to put into
writings their views about the enforcement of the Fundamental or Basic Rights.

1.11.2.2 Interview
In this study interviews has also been used, interview used involve face to face and
telephone interviews, conducting interviews was necessary in order to get original
and realistic view of the people especially those with knowledge about enforcement
of the Basic of Rights. This method was necessary since through documentary
review one cannot get accurate and current data concerning the study, different

13
people with knowledge about the study were yet to put their ideas in writing so
interview and questionnaire(as explained below) used to cure the gap that
documentary review has posed as a method of data collection.

1.11.2.3 Questionnaire
In some circumstances the methods stated above that is documentary review and
interview were not used due to different circumstances, for example when one
decides to use only documentary review he or she cannot be able to get current or
even previous data which are/were not put in to writings yet, also the use of
interview cannot be conclusive since through interview people may not be free to
answer questions, also certain types of respondents such as important officials may
not be easily approachable under these methods and to that extent the data may prove
inadequate, to cure such mischief it was also necessary to use questionnaire method
so as get more reliable, current and appropriate data.

1.11.3 Data Processing and Analysis

Both secondary and primary data were analyzed and interpreted qualitatively.
Analysis of documentary data has been analyzed on the basis of their content. In
analyzing primary data obtained through interview, the responses taken in form of
notes and phone calls were afterwards converted into writings and comprehensive
notes against every question in the interview guide. After analyzing both primary and
secondary data, the same was assessed and interpreted according to the research
objectives and research questions so that the research questions and objectives can be
reflected for research to be well conducted.

1.12 Chapter Scheme

The research is organized in five Chapters. Chapter one gives the general
introduction of the study and the background to the research problem. Other
important aspects which are covered in this chapter include: statement of the
problem, literature review, objectives and significance of the study, research
questions and the research methodology which was applied in this study.

14
Chapter two of this research is going to show the conceptual framework of the study,
in this chapter different concept used in the title, research objectives and research
questions are to be defined in operational terms as opposed to descriptive meaning.
Chapter three, discusses on the legal and institutional framework of the enforcement
of the Basic Rights in Tanzania through court, in one hand it covers different
institutions vested with powers to enforce Human Rights and in another hand this
chapter is meant to address municipal laws (principal and subsidiary legislation) and
International as well as Regional instruments concerning enforcement of Human
Rights that Tanzania has ratified and how they are bind.
Chapter Four, Presentation and Discussion of the Research Findings, this chapter
presents the findings both from the field and library, later critical discussions of the
same will be made. Relevant questions that remain unanswered and new questions
rose in the study which need further research will also be shown.
Chapter Five, Conclusions and recommendations, this chapter provides for the
conclusion and recommendations of the study, observations of the researcher and
suggestions that are considered important for the improvements of the enforcement
of basic rights enshrined in the constitution of United Republic of Tanzania as
amended from time to time.

15
 CHAPTER TWO
CONCEPTUAL FRAMEWORK OF THE HUMAN RIGHTS
ENFORCEMENT MECHANISM IN TANZANIA MAINLAND

2.1 Introduction
This chapter grasps important concepts related to this study. Concepts used in the
title, research objectives and research questions are to be identified and defined in
operational terms, the structure of their relationship are also to be shown in terms of
specific measuring or criteria testing. Concepts such as human rights, bill of rights
and enforcement mechanisms are going to be defined in this chapter.
Understanding of these concepts at this very beginning stage of the study is of
paramount significance since without such understanding the study will be
meaningless especially to the people without or with little knowledge on human
rights enforcement.

2.2. The Concept of Human rights

Human rights has not got a single acceptable definition, but they can be defined as
fundamental rights, which a person has by virtual of being a human being. They are
not dependent on being provided for in a particular legal document. It is said that
these rights are inherent and therefore should be recognized, respected, and
enforced. 22
Human rights are rights inherent to all human beings, whatever our nationality, place
of residence, sex, national or ethnic origin, colour, religion, language, or any other
status. We are all equally entitled to our human rights without discrimination. These
rights are all interrelated, interdependent and indivisible. 23
Human rights are derived from the principle of Natural Law. They are neither
derived from the social order nor conferred upon the individual by the society. They
reside inherently in the individual human beings independent of and even prior to his
participation in the society. Consequently, they are the result of recognition by the

22
Shivji, I. G. at all (eds) (2004) “Constitutional and Legal System of Tanzania: A Civics
Sourcebook” p. 75
23
https://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx accessed on 31st January, 2020
at 22:16

16
state but they are logically independent of the legal system for their existence. Their
origin may be sought in the natural law and not in the positive law. 24
Human rights started to gain its momentum and shine during the aftermath of the
second world war, this was due to the fact that the second world war characterized
with many gross violations of human rights, especially what was then done by NAZI
regime under the leadership of Adolf Hitler. The aftermath of that war resulted to the
establishment of the United Nations the successor of the League of Nation which
failed to maintain peace after the First World War. The United Nations Charter
comes with a lot of provisions relating to promotion of human rights, this led to the
adoption of the Universal Declaration of Human Rights (UDHR) in 1948 The UDHR
didn’t come with separate rights.
After the acceptance of the Universal Declaration the necessity of transforming
human rights into legally binding obligations was arose. In order to adopt a binding
treaty for the protection of human rights, it was considered that a single treaty could
not be sufficient to cover all issues of different characteristics. The ideological
division between the former communist systems and the liberal democratic countries
was impossible to connect because each was insisting on rights focusing over
specific issues. This division can be obviously observed in the acceptance of two
separate covenants in 1966: The International Covenant on Economic Social and
Cultural Rights and the International Covenant on Civil and Political Rights. 25

2.2.1 Categories of Human Rights

Human Rights are indivisible and interdependent, and therefore precisely there
cannot be different kinds of human rights. All Human Rights are equal in importance
and are inherent in all human beings. 26 Even the Universal Declaration of Human
Rights did not categorize kinds of human rights it simply emancipated them in
different Articles. However due to the development of human rights context,

24
Anand, V. K (2005) “Human Rights” p. 1,
25
ÇAMUR, E. G., (2017) “Civil and Political Rights vs. Social and Economic Rights: A Brief
Overview” Journal of Bitlis Eren University Institute of Social Sciences Volume 6 Number 1 p. 205-
214
26
Jesse, J., (2015). Basic principles of Human Rights and Selected Cases. p.5

17
especially the adoption of the two Covenants 27 and other Regional treaties like
African Charter on Human and Peoples Rights 28 make it clear that human rights are
of three kinds namely;

2.2.1.1Civil and Political Rights / Negative Rights

These are the rights fall under the first generation of human rights; these can be
categorized into two, civil rights and political rights. Civil Rights refer to those rights
which are related to the protection of the right to life and personal liberty. They are
essential for a person so that he may live a dignified life. Such rights include right to
life, liberty and security of persons, rights to privacy... freedom from torture,
inhuman and degrading treatments, freedom of thoughts, conscience and religion and
freedom of movement. 29
Political Rights in the other hand refer to those rights, which allow a person to
participate in the government of a state. Thus, right to vote, right to be elected at
genuine periodic election, right to take part in conducting public affairs, directly or
through representatives are instances of political rights. 30 These rights maybe
different but they are interrelated and inter-woven and therefore it does not appear
logical to differentiate them. They are also known as negative rights because the
government is required to abstain from doing those activities that would violate
them.

2.2.1.2 Economic Social and Cultural Rights / Positive Rights

These are the rights fall under the second generation of human rights they are the
rights related to the guarantee of minimum necessities of life to human beings. In the
absence of those rights the existence of human being is likely to be endangered.
Right to adequate food, clothing, housing and adequate standard of living and
freedom from hunger, right to education are included in this category of rights. 31

27
The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant
on Economic, Social and Cultural Rights (ICESCR) both adopted by The United Nations General
Assembly (UN-GA) on December 1966
28
Adopted on 27 June 1981 by The Organization of African Union (OAU), and entered into force on
21 October 1986
29
Jese, J., (2015). Basic principles of Human Rights and Selected Cases. p.5
30
Ibid,
31
Op cit. p. 6

18
Economic and Social cultural rights are also known as positive rights since they
require active intervention, not abstentions on the part of the states. What the state
has to do is to ensure progressive realization of these rights to the maximum of its
available resources, as provided under Article 1(1) of the ICESCR 32

2.2.1.3 Collective Rights

These are rights enjoyed by individual collectively such as the right to self-
determination or the physical protection of the group such as through prohibition of
genocide. Such rights are referred to as collective rights which are sometimes called
the third generation of human rights.

2.2.2 Principles of Human Rights

Principles of human rights, which can also be taken as characteristics of human
rights are four, these four principles can be used to describe nature of human rights
as they are inherent to every person. The following are these principles;
a) The Principle of Universality; human rights are said to be universal in the
sense that they are equal to every person despite of his or her nationality,
race, colour, sex, or any rank of whatever kind. All people everywhere in the
world are entitled to them
b) The Principle of Alienability; this means that human rights are inhered in a
person by the virtual of being a human being. Human rights are not conferred
by state nor can they be taken away by any one.
c) The Principle of Indivisibility; this connotes that, human rights whether
they relate to civil, cultural, economic, political, or social issues have equal
status, and cannot be positioned in a hierarchical order. Denial of one right
invariably impedes enjoyment of other rights. 33
d) The Principle of Interdependence and interrelatedness; human rights as
they are interdependent and interrelated, this means that, each rights
contributes to the realization of a person’s human dignity through the

32
International Covenant on Economic, Social and Cultural Rights, 1966
33
Jesse, J., (2015). Basic principles of Human Rights and Selected Cases p. 5

19
 satisfaction of his or her development. The satisfaction of one right often
depends, wholly or in part, upon the fulfillment of others 34

2.2.2 The controversial on the Universality of human rights

Even before the Universal Declaration of Human Rights in 1948 there were some
debates as to the universality of Human rights, this debate was highly influenced by
the debate on the universality of law. There were those naturalists/ natural law
theorists who viewed law as something universal, For example Marcus Cicero once
proclaimed that;
Nor will it be one law at home and a different one at Athens,
nor otherwise tomorrow than it is today; but one and the
same law, eternal and unchangeable, binding all peoples and
all ages; and God, its designer, expounder and enactor, will
be, as it were, the sole and universal ruler and governor of
all things.35
Many people condemn the universality of Human Rights basin on their own findings,
some of them are;
Edmund Burke (a Liberal member of the House of Commons) who was highly
celebrated and believe in natural rights disputed the notion that human rights are
universal, he said that, Rights can never be created artificially on the basis of
universal equality, but must be cherished as a particular historical legacy within a
particular nation. To him HR’s are not universal since every nation has its own
history, and human rights have to be cherished from that history. This view by Burke
fall under the Historical school of Jurisprudence who believes that law comes from
the history of the society.
The American Anthropological Association (AAA), In 1947 the AAA published a
critical statement arguing that proclamation of Universal Human Rights will
undermine cultural diversity. To them every nation has its own culture, so an attempt
to declare Human Rights as universal will undermine these deferent cultures.

34
Jesse, J., (2015). Basic principles of Human Rights and Selected Cases p. 5
35
Curzon, L. B. (1995) “Jurisprudence” 2nd Ed p. 19

20
 The problem faced by the Commission on Human Rights of the United
Nations in preparing its Declaration on the Rights of Man must be
approached from two points of view. The first, in terms of which the
Declaration is ordinarily conceived, concerns the respect for the
personality of the individual as such, and his right to its fullest
development as a member of his society. In a world order, however,
respect for the cultures of differing human groups is equally
important.36[Emphasis is mine]
The AAA did disputed the drafting of the Universal Declaration of Human Rights
because they believe that it will not be possible for the Commission for Human
Rights to take into full account the individual personality since individual realize his
personality through his culture. 37
Claude Levi-Strauss once stated that “the idea of universal rights is mere abstracts,
artificial construction irreconcilable with the plurality of existing cultures. To Strauss
humans are part of nature, and can only be disassociated from it in an artificial and
illusory way. Strauss also believes that cultural diversity is the source of all creation
and progress. In Myth and Meaning Strauss said that “I don’t see how mankind can
really live without some internal diversity”. 38 Strauss pinned his ideas on cultural
diversity the world has experienced and he was not ready to see any attempt to
destruct such diversity because according to him they were the source of all progress
he was cited saying “Differences are extremely fecund. It is only through difference
that progress has been made” 39
In 1990, the Organization of the Islamic Conference OIC met in Cairo – Egypt
and issued what they call a Declaration of Human Rights in Islam, what this
conference did was to interpret their own Rights according to Islamic Shariah. This
declaration also disputed the universality of HR because the act of interpreting their
Islamic Rights confirms that Human Rights are not universal, Islam can have their
own. Despite this notion on Human Rights Day, 10 December, 2008, Ambassador
36
American Anthropologist, “Statement on Human Rights” New Series, Vol. 49, No. 4, Part 1 (Oct. -
Dec., 1947), pp.539-543
37
Ibid, p.541
38
Terray, E., “Claude Lévi-Strauss’s World View” La vision du monde de Claude Lévi-Strauss,
L'Homme 2010/1 (No 193), p. 23-44.
39
Ibid, p.3

21
Masood Khan, speaking on behalf of the OIC, claimed that the 1990 Cairo
Declaration of Human Rights in Islam “...is not an alternative, competing worldview
on human rights. It complements the Universal Declaration as it addresses religious
and cultural specificity of the Muslim countries” 40 though this proposition was also
disputed by many people.
End of controversial!
The controversial come to be settled in 1993 when the World Conference on Human
Rights held in Vienna – Austria. The conference was attended by different NGO’s
from both the South and the North. The conference settled the debate on the
universality of Human Rights when the agreed and hold that;
“The World Conference on Human Rights reaffirms the
solemn commitment of all States to fulfil their obligations to
promote universal respect for, and observance and
protection of, all human rights and fundamental freedoms for
all in accordance with the Charter of the United Nations,
other instruments relating to human rights, and international
law. The universal nature of these rights and freedoms is
beyond question 41 [Emphasis is of Researcher]
Article 1(5) further stated inter alia that “All human rights are universal, indivisible
and interdependent and interrelated. The international community must treat human
rights globally in a fair and equal manner, on the same footing, and with the same
emphasis.” 42
From the above cited provisions, it is clear that human rights are universal and every
state must treat them globally, in a fair and equal manner, whether they relate to civil
political, economic, social or cultural rights.

40
https://humanists.international/2008/01/universality-human-rights-under-attack-un/ accessed on
February 15, 2020 at 13:53
41
Article 1 (1) of The Vienna Declaration and Programme of Action, adopted by the World
Conference on Human Rights in Vienna on 25 June 1993.
42
Ibid, Art. 1 (5)

22
2.3. The concept of Bill of Rights
Bill of rights is the part of the constitution which provides for, guarantee and protects
rights and freedoms, irrespective of the description used. 43 These are the fundamental
rights and freedoms enforceable in the High Court by any person who thinks that his
constitutional rights have been violated or are about to be violated. They include the
rights of equality, the right to life, freedom of conscience, and freedom of work. 44 It
is sometimes called a “declaration of rights” or a “charter of rights”; it is a list of the
most important rights to the citizens of a country. The purpose of listing such rights
is to protect those rights against infringement from public officials and private
citizens. Bill of rights can be categorized into two categories these are;

2.3.1 Entrenched Bill of Rights

An entrenched bill of rights is the one which cannot be amended or repealed through
regular legislative procedure, instead requiring a supermajority or referendum; it
denotes a body of law which is supreme not only in the sense that it has an overriding
effect on other law, but supreme in the sense that it cannot be altered or repealed
through the ordinary legislative process. 45 This kind of bill of rights can only be
altered through special procedures applicable to constitutional amendments because
often it is part of a country's constitution.

2.3.2 Un-entrenched Bill of Rights

This is the one which can be amended or repealed through regular legislative
procedure; it is because they are provided in instruments other than the constitution,
especially statutes. Compare to entrenched bill of rights, his category of bill of rights
is of less important since when the state machineries wants to take them from
individuals they can simply do so by amending or repealing the statute that provides
them.

43
Luoga, F. D. (1998) “The Tanzanian Bill of Rights” in Maina, C. P & Juma, I. H (ed) Fundamental
Rights and Freedom in Tanzania p. 37 Mkuki na Nyota Publishers Ltd, Dar Es Salaam
44
Ruhangisa J. E., “Human Rights in Tanzania: The Role of the Judiciary” p. 136 Thesis Submitted
to the University of London for the Degree of Doctor of Philosophy, 1998
45
Arenson K. J., (2014) “An Entrenched Bill of Rights: A Protection for the Rights f Minorities”
Deakin University, School of Law p. 30

23
2.3.3 International Bill of Rights
This is the leading human rights instruments in the world of more important being
The Universal Declaration of Human Rights, 46 other instruments which together
form the international Bill of Rights are The International Covenant on Civil and
Political Rights (ICCPR) 47 and the International Covenant on Economic, Social and
Cultural Rights (ICESCR) 48 these two Covenants contain more detailed provisions of
Human Rights. International Bill of Rights is the summary statement of the minimum
social and political guarantees internationally recognized as necessary for a life of
dignity in the contemporary world. 49

2.4. The concept of Human Rights Enforcement Mechanisms in Tanzania

Human rights enforcement mechanisms refers to the means employed by the state for
the purposes of making sure that the basic rights enriched in the Constitution and
other laws are protected and enforced. At the international and regional level there
are also some mechanisms established for the purpose of enforcing human rights in
the global or region.
In Tanzania there are different mechanisms established for the purpose of
enforcement of human rights as enriched in the constitution these are the High Court
of the United Republic of Tanzania, the Commission for Human Rights and Good
Governance and the Police Gender Desk as they are to be well discussed in chapter
three of this study.

2.5. Conclusion
This chapter has highlighted basic concepts, principles and theories regarding the
enforcement mechanisms of human rights in Tanzania Mainland. It is with no doubt
that this chapter has put some light on the subject matter of this study; it is therefore
going to be useful and much helpful in understanding the subject of the research in
the subsequent Chapters. The concept of human rights enforcement mechanisms in
Tanzania mainland has not well elaborated as it will be well discussed in the
following chapter.

46
Adopted by the United Nations General Assembly on December 10, 1948
47
Adopted by the United Nations General Assembly on December 1966
48
Ibid
49
Jesse, J., (2015). Basic principles of Human Rights and Selected Cases citing Donnelly 1998.

24
 CHAPTER THREE
LEGAL AND INSTITUTIONAL FRAMEWORK OF HUMAN RIGHTS
ENFORCEMENT IN TANZANIA MAINLAND

3.1. Introduction
This chapter focuses on the legal and institutional framework of human rights
enforcement in Tanzania mainland, since Human Rights is international issue the
focus will therefore be from international legal and institutional framework, regional
legal and institutional framework and lastly the look will be on domestic legal and
institutional framework on Human Rights enforcement. While assessing the
international legal and institutional framework the emphasis will also be on how
Tanzania is bound by such International and or Regional legal and institutional
framework.

3.2. International legal and Institutional Framework

3.2.1 International Legal Framework on the Enforcement of Human Rights
Under international level there are different legal instruments adopted for the
purposes of promoting and protecting human rights at the global level. At this level
there are instruments such as the Universal Declaration of Human Rights 1948, the
International Covenant on Civil and Political Rights 1966, The International
Covenant on Economic, Social and Cultural Rights 1966 which together form the
International Bill of Rights. There are also other instruments which specifically deal
with Rights of Women, Children and other vulnerable groups in the society. They are
explained in detail below.

3.2.1.1 The International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights was adopted in 1966 and
come in to force a decade later, in 1976. The Covenant provides for rights relating to
civil that is individual rights, and political rights which includes right to vote, right to
be elected, and right to take part in conducting public affairs, to mention a few.
Tanzania is also a member to that Covenant. The Covenant comes with two optional
Protocols, one dealing with recognizing the competence of the Human Rights

25
Committee to receive and consider individual complaints 50, and the second dealing
with abolition of death penalty. 51 Tanzania is not a part to the two optional protocols
hence Tanzanians cannot file complaints to the Human Rights Committee as a treaty
based mechanism of Human Rights Enforcement at global level. Tanzania remained
to be bound by the obligations under the Covenant.

3.2.1.2 The Convention on the Elimination of All Forms of Discrimination

against Women
This covenant is special for the protection of rights of women. It was adopted and
opened for signature, ratification and accession by the General Assembly of the
United Nations in 1979. The Convention require member states to adopt appropriate
legislative and other measures, including sanctions where appropriate, prohibiting all
discrimination against women, to establish legal protection of the rights of women on
an equal basis with men and to ensure through competent national tribunals and other
public institutions the effective protection of women against any act of
discrimination, this is as per Article 2 (b) and (c). This obligation to member states
requires them to enact legislations which will provide sanctions (where appropriate),
prohibit all forms of discrimination and establish tribunals for the enforcement of
their rights. The general Assembly also adopted Optional Protocol to the Convention
on the Elimination of Discrimination against Women on 1999 and come into force on
2000, Tanzania also has ratified to protocol. The Protocol require member states to
recognizes the competence of the Committee on the Elimination of Discrimination
against Women (CEDAW) to receive and consider communications submitted by or
on behalf of individuals or groups of individuals, under the jurisdiction of a State
Party, claiming to be victims of a violation of any of the rights set forth in the
Convention by that State Party.

3.2.1.3 The Convention on the Rights of Child (CRC)

This was adopted and opened for signature, ratification and accession by resolution
44/25 of 20 November 1989; it later comes into force in 1990. The convention is

50
The First Optional Protocol to the International Covenant on Civil and Political Rights Adopted on
1966 and entered into force on 1976
51
The Second Optional Protocol to the International Covenant on Civil and Political Rights Adopted
and proclaimed by the UN General Assembly on 1989

26
special in dealing with children’s rights around the global. The United Republic of
Tanzania1ratified the Convention on the Rights of the Child in1991. It acceded to the
Optional Protocol to the Convention on the involvement of children in armed conflict
in November 2004 and the Optional Protocol on the sale of children, child
prostitution and child pornography in April 2003. 52 State party to the Convention are
required to take, among the other measures, to take legislative, administrative and
institutional measures so as to ensure that rights recognized in the Convention are
protected. Tanzania has to great extent complied to the convention since in 2009 it
enacted the Law of the Child Act, 2009 which to great extent complied with the
Convention. Also the Court, in the case of Rebeca Z. Gyumi v. The Attorney
General 53 declared Section 13 and 17 of The Law of Marriage Act 54 which gives
preferential treatment between boys and girls in terms of the age of getting marriage
to be unconstitutional, the court further gives the Government a period of one year to
rectify the impugned provisions but it more than a year now the government yet to
rectify the same.

3.2.2 The Institutional Framework

3.2.2.1 The Committee on the Rights of the Child
This Committee comes as a result of the Convention on the Rights of Child, the
Convention provides under Article 43 (1) that for the purpose of examining the
progress made by States Parties in achieving the realization of the obligations
undertaken in the present Convention, there shall be established a Committee on the
Rights of the Child. The Committee has the function among the others to receive
reports on the measures they have adopted which give effect to the rights recognized
in the Convention and on the progress made on the enjoyment of those rights. The
Committee has also the power to request from member states further information
relevant to the implementation of the Convention. All this concern the enforcement
of Children’s rights at international level, this also is a binding obligation to
Tanzania since she is a party to the convention.

52
Report by the United Republic of Tanzania pursuant to article 8 of the Optional Protocol to the
Convention on the Rights of the Child on the involvement of children in armed conflict, Submitted to
the Committee on the Rights of the Child in 2007.
53
Miscellaneous Civil Cause No. 5 of 2019 High Court DSM (Unreported)
54
The Law of Marriage Act [CAP 29 RE 2002]

27
3.2.2.2 Human Rights Committee
This is the committee established under Article 28 (1) of the International Covenant
on Civil and Political Rights. 55 The States Parties to the Covenant are obliged to
submit reports on the measures they have adopted to give effect to the rights
recognized under the Covenant and the progress made in the enjoyment of those
rights within one year of the entry into force of the present Covenant for the States
Parties concerned and whenever the Committee so requests.
The Committee also is vested with powers to receive and consider complaints from
individuals on the violation of the rights protected by the Covenant, this bind only
those states which has ratified to the to the First Optional Protocol to the
International Covenant on Civil and Political Rights which come into force on 1976.
Tanzania is a part to the Covenant but it is not a party to the Protocol, this means that
individuals from Tanzania cannot file complaints to the Committee, this is a serious
problem as far as the enforcement of Human Rights in Tanzania since this operate as
a bar to the enforcement of individual rights especially when the local remedies are
not sufficient.

3.2.2.3 Committee on the Elimination of Discrimination against Women

(CEDAW)
This committee is established by Convention on the Elimination of Discrimination
against Women for the purposes of implementation of the rights contained in the
Convention. 56 Just like other Committees, CEDAW has also a power to receive
reports for consideration, on the legislative, judicial, administrative or other measures
which have been adopted by States to take effect to the provisions of the
Convention. 57
There is also the adoption of the Optional Protocol to the Convention on the
Elimination of Discrimination against Women, 2000 which require member states to
recognizes the competence of the Committee on the Elimination of Discrimination
against Women (CEDAW) to receive and consider communications submitted by or
on behalf of individuals or groups of individuals claiming to be victims of a violation

55
The International Covenant on Civil and Political Rights, 1966
56
Article 17 (1) of the convention
57
Convention on the Elimination of All Forms of Discrimination against Women, 1981

28
of any of the rights under the Convention. There is a requirement that before an
individual decide to file a complaint in the Committee; he should have exhausted all
other local remedies which is within the jurisdiction of the state concerned.

3.3. Regional Legal and Institutional Framework

3.3.1 Regional Legal Framework
3.3.1.1 The African Charter on Human and Peoples’ Rights
It was adopted on 1981 by the 18th Assembly of the Heads of State and Government
and entered into force on 1986. The Charter come as a result of the continuing
violation of human and peoples’ rights in Africa especially colonialism that was still
in parts of Africa, the continuing apartheid policy in South Africa and the advent of
neo colonialism. The Charter contained unique features compared to Human Rights
instruments of the world and of some other regions. This is due to the fact that it
includes human rights and peoples’ rights, there may be seems no different between
the two but there is, human rights, as we refer to the Charter it includes only those
individual rights, but when we talk of Peoples’ rights we includes those rights which
are shared by all. When one reads provisions of the Charter from Article 2 to Article
18 one will notice that they intentionally talk of individual rights or “human rights”
just as the provisions denotes “Every Individual” but from Article 20 to 24 the
Charter provides for “Peoples’ rights” as the provisions are full of the words “All
Peoples”. 58 The Charter requires member state to recognize the rights, duties and
freedom enshrined in the Charter and to take necessary legislative and other to give
effect to them measures. 59 Tanzania is a member to this treaty and therefore all
obligations that states vested under this treaty include that of protection of the
people’s rights are therefore binding. Tanzania has a long walk to do with this charter
since there are a lot of provision which Tanzania do not uphold, for example the
charter prohibits death penalty under Article 4 and 5 but Tanzania still holds on this
penalty.

58
See provisions of Article 2 to 18 and 20 to 24 of the African Charter on Human and Peoples’
Rights, 1981
59
Article 1 of the African Charter on Human and Peoples’ Rights, 1981

29
3.3.1.2 Protocol to the African charter on Human and Peoples’ Rights on the
Rights of Women (Malabo Protocol)
This is a protocol to the African Charter on Human and Peoples’ Rights established
in accordance to Article 66 of African Charter 60 for the purpose of supplementing the
provisions of the Charter. It was adopted by the Ordinary Session of the Assembly of
the Union in 2003. The Protocol was adopted for the purpose of recognizing,
promoting and protecting rights of women and largely to free women from all forms
of discriminations. Tanzania ratified the Protocol on March, 2007.
The Protocol require state parties to provide for appropriate remedies to any woman
whose rights or freedoms, have been violated, and to ensure that such remedies are
determined by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by law. 61 Also in accordance with Article 62
of African Charter, the Protocol require states to indicate in their periodic reports,
measures they have taken to in ensuring full realization of the Rights contained in the
Charter. 62 Since Tanzania is a member to that protocol then she is also bound by all
obligations thereof.

3.3.1.3 African Charter on the Rights and Welfare of the Child

This was adopted and opened for ratification in 1990 by the then Organization of
African Union (OAU). This Charter was adopted for the very aim of protecting and
promoting rights of the children since at the time the situation of the African children
at the time was critical due to unique factors of their socio-economic, cultural,
traditional and developmental circumstances, natural disasters, and armed conflicts,
exploitation and hunger. 63 Tanzania ratified to the Charter on 2003 hence its
obligations are binding to Tanzania also. The Charter under Article 32 provides for
the establishment of committee to be known as the African Committee of Experts on
the Rights and Welfare of the Child. The Committee is entrusted with the functions,
among the others to, promote and protect the rights enshrined in the Charter,
including formulating and laying down principles and rules aimed protecting the

60
African Charter on Human and Peoples’ Rights, 1981
61
Article 25 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of
Women in Africa, 2003
62
Ibid, Article 26
63
Paragraph 4 of the Preamble to the African Charter on the Rights and Welfare of the Child, 1990

30
rights and welfare of the Children of Africa. Tanzania has domesticated some of the
provision of this Charter to her domestic legislation through the enactment of the
Law of the Child Act. 64

3.3.1.4 African Charter on Democracy, Elections and Governance

This Charter was adopted by the 8th Ordinary Session of the Assembly, held in
Addis Ababa, Ethiopia on 30 January 2007 and it entered into force on 2012 after
ratification by 15 states. Up to December 2019 the Charter has been ratified by 34
States and signed by 46 states.
Tanzania has not yet ratify the Charter and reasons has been given by the Deputy
Minister of Foreign Affairs and International Relations Damas Ndumbaro during the
question-and-answer session that Tanzania has delayed to sign and ratify to the
Charter because some of the Sections of the Charter are against our constitution,65
but he did not mention those section and how they are against our constitution. This
has made Tanzania to be back especially in the recent times in matters of
Democracy, election and good governance.

3.3.2 Regional Institutional Framework

3.3.2.1 The African Commission on Human and Peoples Rights
This is the Commission established by the African Charter on Human and Peoples’
Rights under Article 30 of the Charter with the very aim of promoting human and
peoples’ rights in Africa and ensures their protection. The Commission consist of
eleven members chosen from amongst African personalities of the highest reputation,
known for their high morality, integrity, impartiality and competence in matters of
human and peoples' rights; particular consideration being given to persons having
legal experience. 66 The Commission is vested with dual main function that is to
promote human rights in Africa which include inter alia collecting documents,
undertaking studies and researches on African problems in the field of human and
peoples' rights organize seminars, symposia and conferences and disseminate
information. The second function is to ensure protection of Human Rights in

64
Act No. 21 of 2009
65
Alex Malanga, The Citizen: “Minister reveals why Tanzania delayed signing of African democracy
Charter, Tuesday November 13, 2918
66
Article 31 (1) of the African Charter on Human and Peoples’ Rights, 1986

31
Africa. 67 The Commission considers only communication made by one state which
is a party to the Charter and which has good reasons that another state which is also a
party to the Charter has violated the provisions of the Charter. But the Commission
will only deal with the matter as long as local remedies have been exhausted unless it
is obvious to the Commission that the procedures of achieving these remedies will be
unduly prolonged. 68 The Commission is also cooperate with the African Court since
the African Court come to supplement the Commission, For example, under Article 6
of the Protocol to the African Charter on the Establishment of an African Court on
Human and Peoples’ Rights provides among the other things that the Court when
deciding the admissibility of a case may request the opinion of the Commission
which shall give it as soon as possible. The Court may also consider cases or transfer
them to the Commission, so there is a close cooperation between the two.

3.3.2.2 The African Court on Human and Peoples Rights (AfCHPR)

This Court is established by the Protocol to the African Charter on the Establishment
of an African Court on Human and Peoples’ Rights to complement the and reinforce
the functions of the Commission on Human and Peoples’ Rights as provided under
Paragraph 8 and Article 2 of the Protocol. 69 Persons eligible to access the court are
provided under Article 5 (1) and they includes, the commission on Human and
Peoples’ Rights, state parties, African Intergovernmental organizations, also
individuals and NGOs with observer status before the Commission are entitled under
Sub Article 3 of Article 5 to institute cases to the Court in accordance with Article 34
(6) of the Protocol. 70
Since Tanzania is a member state to the African Charter Human and Peoples' Rights
it has also ratified to the Protocol so the obligation are also bind. But recently the
Tanzania through the Minister for Foreign Affairs and East African Cooperation
Prof. Palamagamba A. Kabudi has announced to withdraw their Declaration made
under Article 34 (6) of the Protocol for the reason that the Declaration has been

67
Article 45 (1) & (2) of the African Charter on Human and Peoples Rights, 1986
68
Article 47 and 150 of the African Charter on Human and Peoples Rights, 1986
69
Protocol to the African Charter on Human and Peoples' Rights on the Rights on the Establishment
of an African Court on Human and Peoples Rights adopted on June 1998 in Ouagadougou Burkina
Faso and entered in to force in 2004
70
Ibid, Article 5

32
implemented contrary to the reservation submitted when making the Declaration.
People and different Organizations have condemned Tanzania for the decision but
nothing has been done.
Up to date Tanzania is a country with the highest number of cases in the AfCHPR, of
the 76 finalized cases published on the Courts website, 33 cases which is equal to
40% are against Tanzania. Tanzania is also a state with the most cases filed against it
by individuals and NGOs, with the majority alleging violations of the right to fair
trial 71

3.3.2.3 The Committee on the Rights and Welfare of the Child (CRWC)
This is the Committee established by the African Charter on the Rights and Welfare
of the Child under Article 72 . It is mandated with the functions inter alia to promote
and protect the rights enshrined in the Charter, including formulating and laying
down principles and rules aimed protecting the rights and welfare of the Children of
Africa, cooperate with other African, international and regional institutions and
organizations in promoting and protection rights and welfare of the child.
State Parties to the charter are obliged under Article 43 of the Charter 73 to submit to
the Committee through the General Secretary of the African Union reports on the
measures they have taken to give effect to the rights recognized in the charter.
Reports are to be submitted within two years after the entry into force of the Charter
in State concerned and in every three years.
The Committee has also mandated to receive complaints from individuals, groups
and or Non-Governmental Organizations recognized by the AU, member state or the
United Nations. The Committee shall therefore conduct investigations concerning the
matter and the Committee shall after investigations submit to the Ordinary Session of
the Heads of State and Government in every two years. After submission to the
Assembly the Committee shall have to publish the report on the overall activities
within the two years. 74

71
http://jrcenter.org/2019/12/05as-african-court-release-new-judgements-tanzania-withdraws-
individual-access/ accessed on March 19, 2020 at 21:00
72
Article 32 of the Charter
73
African Charter on the Rights and Welfare of the Child, 1990
74
Ibid Article 44 and 45

33
Since Tanzania is also a member state to the Charter, she is also obliged to all the
provisions relating to protection of the rights and welfare of the child hence it is one
of the mechanisms of enforcing such rights as long as an individual has exhaust local
remedies unsatisfied.

3.4. Domestic legal and Institutional Framework

3.4.1 Domestic legal framework
3.4.1.1 The Constitution of the United Republic of Tanzania, 1977
This is the mother law of the country; the permanent constitution was passed in 1977
and since then it has undergone amendments from time to time. One of the crucial
amendments was those made in 1984 by the Fifth Constitutional Amendment Act of
1984 75 which incorporated among the other things, the Bill of Rights in the
Constitution. The Constitution contained under part III (Article 12 to 30) rights,
duties as well as the mode of enforcing the rights. Bill of Rights contained in the
constitution are more civil and political rather than social and economic since rights
to work and to education which are provided under Article 11 are not enforceable.
Though the constitution recognizes and protects the rights of the people it is still
blamed for putting much restriction in terms of Claw-Back Clauses and derogation
clauses which makes the enforcement difficult as we shall see in Chapter four. As
noted by Lugakingira J, in Rev. Christopher Mtikila v. Attorney General 76 that,
“The enactment of those rights in the Constitution is mere evidence of their
recognition and the intention that they should be enforceable in a court of law, and
an intention that those rights should not be arbitrarily restricted by the state.” The
Constitution did not provide for procedures to enforce the said rights but leave the
task to the Parliament to enact the procedures.

3.4.1.2 The Basic Rights and Duties Enforcement Act 77 (BRDEA)

Since the incorporation of the Bill of Rights in 1984, there were no rules of
procedures of enforcing the rights, but this does not mean that the courts were not
enforcing these rights, after the expiration of the three years of suspension of the

75
Act No. 15 of 1984
76
[1995] TLR 31
77
[CAP 3 R. E 2019]

34
enforceability of the basic rights in 1988 the High Court applies the normal High
Court procedures. 78 Since the institutionalization of the of the BRDEA there has
been a serious critics of the Act as it provides for complicated procedures of
enforcing the rights contained in the constitution. For example, the determination of
the vexatious or frivolous of a matter tends to be wastage of time and continuation of
the violation. Also the need of three Judges to determine a matter is a problem since
there is shortage of Judges in different High Court Registries. Also non-challenging
of bills is problematic because in my very own opinion Bills should be challenged if
they are likely to infringe rights, this is for the purpose of preventing passing of laws
that are likely to take away the rights of the people. All these problems are well to be
shown in the following chapters.

3.4.2. Domestic Institutional Framework

3.4.2.1 The High Court of Tanzania
The High Court of Tanzania as established under Article 107 of the Constitution79 is
given a mandate to hear and determine allegations concerning human rights abuse or
likelihood of human rights abuse by Article 30 of the Constitution. The court
procedures are given by the BRDEA. The victim or the applicant after filling the
complaint the complaint shall be determined by a single judge in order to satisfy that
there is triable issue(s) in the matter, if not then the matter is declared vexatious and
or frivolous. If the Judge satisfied that there is triable issue then he shall sent the
matter to panel of three judges for full determination. The Court is empowered to
declare any law, or act to be invalid or unconstitutional, but the Court is also given a
discretion that instead of declaring the law or an act to be invalid or unconstitutional
it may directs the parliament, government or authority concerned to correct the defect
in a given time. 80

78
This is evidenced by the two decisions by Mwalusanya J. in Director of Public Prosecution v. Daudi
Pete [1993] TLR 22 and in in Chumchua s/o Marwa v. Officer in charge of Musoma Prisons and The
Attorney General Civil Case No. 5 of 1993 High Court of Tanzania at Mwanza (Unreported)
79
The Constitution of the United Republic of Tanzania [CAP 2 R E 2002] as amended from time to
time
80
Section 13 (2) of the Basic Rights and Duties Enforcement Act [CAP 3 R E 2019]

35
3.5 The Commission for Human Rights and Good Governance (CHRGG)
This is the Constitutional commission established under Article 129 (1) of the
Constitution.81 The Commission is governed by its own Act i.e. the Commission for
Human Rights and Good Governance Act 82 in spite of being a commission for
Human rights in Tanzania, it also acted as an Ombudsman. As under Article 130(1)
of the Constitution CHRGG is an independent department which is not bound to
follow any directives or orders of any person or any department of government, or
any opinion of any political party or of any public or private sector institution except
the President under Article 130 (3) of the Constitution who may giving directive or
orders to the Commission if he is satisfied that in respect of any matter or any state of
affair, public interest so requires.
This commission has among the other duties; to receive complaints in relation to
violation of human rights in general, to conduct inquiry on matters relating to
infringement of human rights and violation of principles of good governance and
many more. 83 These functions are in the ambit of enforcing human rights in the
country.

3.6 Police Gender and Children’s Desk (PGCD)

This is the department established in police stations in Tanzania for the purpose of
receiving complaints of individuals concerning gender-based violence as well as
violence against children. The gender desk initiative was first proposed in 2009 by
the Tanzanian Police Female Network (TPFNet), a professional association formed
in 2007 that aims to improve the way the police relate to women in the community.
The initiative gained financial and operational support from UNICEF and the
European Union. The ultimate goal is to establish the desks in every police station
and to train thousands of police officers, particularly women, to staff them. 84 The
Government in 2013 through the then Minister of Home Affairs Dr. Emmanuel
Nchimbi launched the Tanzania Police’s Action Plan for Police Gender and
Children’s Desks 2013-2016 something which demonstrate the Tanzania Police

81
The Constitution of the United Republic of Tanzania [CAP 2 R E 2002]
82
[CAP 391 R E 2002]
83
Ibid Article 130 (1)
84
https://www.npr.org/sections/goatsandsoda/2018/08/15/638872938/how-to-get-women-to-trust-the-
police-gender-desks accessed on Wednesday, April 01, 2020 at 16:29

36
Force’s commitment to ensuring an effective response to all cases of Gender Based
Violence and violence against children. Resident Coordinator of United Nations
noted saying during the launch that;
“Gender Based Violence and violence against children are
violations of human rights. We all have a responsibility to take
steps to eliminate them. The UN commends the Police for its
commitment to ensure that there are fully equipped Desks in every
police station across the country. The UN is a proud supporter of
the Police in realising this vision.” 85 [Emphasis added].
These Gender desks are therefore important especially in making sure that the rights
of the Women as well as Children are well enjoyed by everyone and that wherever
they are infringed then there is necessary measures in enforcing them.

3.7 Conclusion
This chapter has highlighted legal and institutional framework of the enforcement of
the rights in Tanzania, it has shown the international legal framework that bind
Tanzania and the institutions that can be used to enforce the said rights under that
level. The chapter has also highlighted the Regional legal framework that Tanzania
has ratified to and the mechanism that can be used to enforce the said rights at that
level. Lastly the chapter has highlighted the domestic legal framework of the basic
rights and the mechanisms that can be used to enforce the said rights. The
competence of the legal and institutional framework at all levels will be further
discussed in Chapter Four of this study.

85
https://unictz.org/2013/11/26/launch-of-the-gender-and-childrens-desk-and-3-year-action-plan-
demonstrate-police-commitment-to-strengthen-its-response-to-gender-based-violence-and-violence-
against-children-un-says/ accessed on Wednesday, April 1,2020 at 16:46

37
 CHAPTER FOUR
DATA PRESENTATION, ANALYSIS AND DISCUSSION OF FINDINGS

4.1. Introduction
This chapter discusses the findings of this study on effectiveness of the enforcement
of the basic rights through Court in mainland Tanzania. The study was guided by
three research questions to wit; What has been the challenges facing the enforcement
of the Basic Rights through court in mainland Tanzania, What has been the
achievement of the enforcement of the Basic Rights through Court since its
incorporation in the constitution of United Republic of Tanzania and what is or has
been the experience of the enforcement of Human Rights from other countries
especially those of the commonwealth.
This chapter embraces therefore presentation and analysis of data collected through
interview, questionnaires and those obtained through documentary review, which
answers the research questions made for the study. The responses are well discussed
herein below.

4.2. Data Presentation and Findings

Data and information (findings) collected through documentary review; interview
and questionnaire are hereby presented in consultation with the research questions
and research objectives.

4.2.1 Challenges facing the enforcement of the Basic Rights through court in
mainland Tanzania
This was one of the research questions; in answering this question the data obtained
through interview, questionnaire as well as documentary review suggests the
following responses;

4.2.1.1 Cumbersome procedures

Most of the data obtained through documentary review, interview and questionnaire
reveals that the procedures for the enforcement of the basic rights are cumbersome
and in some way they can be used to deny determination of important human rights
cases in effect something which takes away the whole essence of the purpose of Bill
of Rights.
38
One of the respondent in an Interview conducted in September 2019 confirms that
the Basic Rights and Duties Enforcement Act 86 imposes too much difficulties in
enforcing human rights in the courts of law, he pointed out for example, the
requirement of the determination of the vexatiousness and or frivolousness of a
matter by a single judge then to the panel of three Hugh Court Judges for full
determination is problematic since it is wastage of time of the victim while the
violation alleged continues to affect the victim. 87
Other respondents whose data were obtained through questionnaire were also
insisting on the difficulty of the procedures of enforcing rights, they suggested that
the requirement of the panel of three high court judges in determining a petition is
tricky since still there is a shortage of High Court judges in Tanzania and that
requirement means that some judges from some registries will have to leave their
duties in some days in order to form a panel to hear one human right matter. This to
their opinion would and have led delay of important cases and during that delay the
victim in some ways continue to suffer. 88 This view has also been taken by
Ruhangisa J. E who suggested that since there is shortage of judges and the law
require panel of three judges, Magistrates with extended Jurisdiction should also
been given the power to hear and determine Human rights cases so as to curb such
shortage. 89
There is also a proposition that the discretion vested to the court under section 13 (3)
of the BRDEA can be used arbitrary since it gives the Judge a power of, instead of
declaring an act, Act or action to be unconstitutional or invalid it may direct the
legislature, or authority concerned to correct the defect. If the Judge is not bold
enough, he can be persuaded to not declare the act unconstitutional and to that effect
means the act, Act or action will continue to be valid until the lapse of time.

86
[CAP 3 R E 2019]
87
Data obtained through an interview conducted to one Advocate during Field Attachment period at
Rombo District Court in Rombo District.
88
Data obtained trough Questionnaire from LL.B III Students who were taking Human Rights Law as
their optional subject between January and February 2020.
89
Ruhangisa J. E. (1998) Human Rights in Tanzania: The Role of the Judiciary, Thesis Submitted to
the University of London for the Degree of Doctor of Philosophy pp.145-147

39
4.2.1.2 Limitation Clauses
Most of the respondents by interview and questionnaire were of the view that
provisions of the Bill of Rights are themselves problematic since they are full of
limitation clauses. Also Luoga F. D has once noticed that the failure of the
enforcement of the Bill of Rights is due to deficiency in the contents of the Bill of
Rights itself and that there are too many restrictions imposed on fundamental rights
and freedoms. He goes on to argue that the Bill of Rights in
Tanzania has earned itself the name of Bill of exception because of excessive
circumscription of the rights. 90 Some of the clauses are “without prejudice to law,”
“subject to law,” “in accordance with law,” to mention a few. For Example the
constitution under Article 14 provides that [E]very person has the right to live and to
the protection of his life by the society in accordance with the law. 91 [Emphasis is
mine], also article 16 (1) provides for the right to respect and protection of person,
the privacy of person, family and matrimonial life, and respect and protection of
residence and private communications but under sub article 2 it gives the power to
the state authority to lay down legal procedures regarding the circumstances, manner
and extent to which the rights in sub article 1 can be encroached. These are examples
but the Bill of Rights contained a lot of restrictions which make the enforcement very
difficult. Prof. Palamagamba Kabudi. in one of his Article also noted that “It is a fact
that the Tanzanian Bill of Rights is laden with a lot of limitation clauses of a "claw-
back" nature to the extent that, if they are not strictly interpreted, little of substance
is left. 92
Also one of the respondent to an interview who was also an Advocate, suggested that
Article 30 (1) and (2) which provides for “Limitations upon, and enforcement and
preservation of basic rights, freedoms and duties” is also a problem since it provides
among the other things that shall not be exercised by a person in a manner that
causes interference with or curtailment of the rights and freedoms of other persons or
of the public interest, the respondent argued that this Article takes the whole meaning
90
Luoga F.D., Human Rights Enforcement Mechanism in Africa, Masters in International Law
Dissertation, University of Lund,1991, p.8
91
The Constitution of the United Republic of Tanzania, 1977 as amended from time to time.
92
Kabudi, P. J, (1991) “The Judiciary and Human Rights in Tanzania: Domestic Application of
International Human Rights Norms: Law and Politics in Africa, Asia and Latin America, Vol. 24, No.
3 pp. 271 – 281

40
of Bill of Rights since what may constitute ‘public interest’ may be ambiguous and
hence be used to infringe rights of the people on the defence that it is for public
interests. 93 This idea is shared from Wambali when he noted that provisions of
Article 30 exclude the whole meaning of the essence of the enforcement of the Bill
of Rights since the definition of what constitute public interest under Sub Article (2)
is problematic since public interests includes all public activities of both the central
and local government, which, logically are closely linked with sensitive private
interests. 94

4.2.1.3 The Government

Some of the respondents to questionnaire done through WhatsApp Social Network
condemn the government for failing to protect human rights to its citizen. Three of
them were of the view that since it is the duty of the government to protect rights of
the people, then the government must be responsible for the ongoing human rights
violations. One of them put an example that the incidence of the attacking of
opposition leader, Tundu Lissu, and the killing and disappearance of other people
with neither statement nor effort by the government to deal with these incidents
proves the notion that the government has failed to protect the rights of its citizens.95
This can be evidenced by the statement by the president of the United Republic of
Tanzania, His Excellence John Pombe Magufuli to the Press that “I would like to tell
media owners - be careful, watch it. If you think you have that kind of freedom, (it
is) not to that extent,” 96[Emphasis supplied], such statements has led to more
violations of the rights of journalists including enactment of different Laws which
tend to restrict the freedom of press, banning of different media like newspapers For
Example the suspension of Raia Mwema Newspaper, Kwanza Tv and more others
which got banned due to their contents which criticize the government.

93
Data obtained through an interview conducted to one Advocate during Field Attachment period in
Rombo District Court at Rombo.
94
Wambali M,, “The Bill of Rights in the Context of Constitutional Developments and the History of
Institutions of Governance” :Thesis Submitted to the University of Warwick for the Degree of
Doctor of Philosophy (Ph.D), March, 1996 and 1997 pp. 184 - 185
95
Data Obtain through an interview via mobile phone to one of the famous Tanzania Activist on
Human Rights on January 24, 2020.
96
https://www.reuters.com/article/us-tanzania-media/tanzanias-president-warns-journalists-that-press-
freedom-has-limits-idUSKBN16V25S

41
One of the respondent was of the view that, the government has been also reluctant
to enforce and comply with the judgments delivered by domestic and regional courts
such as the African Court on Human and Peoples’ Rights (AfCHPR) and the East
African Court of Justice (EACJ) this is due to the fact that many judgments and
ruling are delivered against the government it takes no measures to enforce such
decisions. 97 This view has also been taken by Ruhangisa J, when citing Attorney-
General v. Lesinoi Ndeinai and Others 98 said just one day before the High Court
delivered a ruling invalidating the detention of the applicants, the government swiftly
detained them under the provisions of the Deportation Ordinance, they were initially
detained under the Preventive Detention Act, 1962. The government appealed
against the decision of the High Court while the applicants were still in detention
pending deportation. Even when the Court of Appeal upheld the High Court decision
the detainees were not released. The government had opted for what can be described
as guerrilla tactics against the court decision. 99
So since the inclusion of the Bill of Rights in the Constitution of the United Republic
of Tanzania the government has been seen very reluctant in matters of human rights,
such as enactment of violative laws, non-compliance with decision of courts,
enactment of cumbersome procedures to enforce the basic rights and many more, for
Example currently there is a Bill in the Parliament which tends to impose mandatory
condition that for a person to apply to the High Court for redress in case of
contravention of Articles 12 to 29 of the Constitution to show the extent to which the
contravention has affected such person personally. 100 This is very strange since it
tends to stop people who wish to defend the rights of public at large.

4.2.1.4 Inadequate Education

Some other respondents also argued that citizens are still not aware of their rights
and worse they are not aware of the procedures they can use to get redress when their
rights are infringed or there is a likelihood of being infringed. This is contributed by
the fact that those with the task of promotion of human rights are not or have not

97
Ibid
98
[1980] T. L. R 214
99
Ruhangisa J. E. (1998) Human Rights in Tanzania: The Role of the Judiciary, Thesis Submitted to
the University of London for the Degree of Doctor of Philosophy p. 240
100
The Written Laws (Miscellaneous Amendments) Act No. 3 of 2020

42
done it to its fullest.101 For example the Commission for Human Rights and Good
Governance (CHRGG) has given a mandate to promote within the country protection
of human rights 102 but it is of no doubt that such function is not well performed
especially to the poor rural Tanzanians. Respondents argued further that media,
NGOs and different social organizations despite they are doing well in promoting
human rights within the country but they face a lot of difficulties such as inadequate
funds to reach more people especially in the rural areas.

4.2.1.5 Politicization of Human Rights

One of the respondents was of the view that, since the institutionalization of bill of
rights in 1984, Human Rights was politicized by those in power and anyone who
stands to defend Human rights was taken as people who oppose the government. He
further argued that in the current regime where Human Rights has become a concern
of the day, human rights are highly taken to be a political issue, whoever stand for
what is right or justice he is taken as political enemy of the ruling party. The
respondent gives an example of those who stand for pregnant school girls to return
back to school and the way they are taken by the government as traitors. 103
I also agree with the views by the respondent in the sense that, in Tanzania and
especially Tanzania mainland compare to other countries Human Rights has become
a serious political issue, whoever stands for human rights is seem as a traitor to the
government, this has also ensue in the parliament where wherever a member of the
parliament from the ruling party stands for what is in favour of the people but in
opposing the government is taken as traitor. This can be evidenced by the Cashew-
Nut Saga where some of the members of the parliament of CCM from Southern
Zone including Nape Nnauye and Hawa Ghasia while stands for the rights of their
citizen, the president (as a Chairman of the Ruling Party-CCM) said he was of the
decision to sack them from the party and automatically lost their position as a
member of the parliament. This is an example where human rights are politicized.

101
Data obtained trough Questionnaire from LL.B III Students (Mzumbe University) who were taking
Human Rights Law as their optional subject between January and February 2020.
102
Section 6 (1) (a) of The Commission for Human Rights and Good Governance Act [CAP 391 R E
2002]
103
Data obtained through Interview by Phone call to one of Legal Officer at Legal and Human Rights
Center (LHRC) in March, 2020

43
Politicization of Human Rights goes to the root of the failure to enforce human rights
since when Human Rights taken as a luxury, even when violations occur or where
there is a likelihood of occurrence the government will not bother, even when
Human Rights Defenders decide to stand for, the government can take them as
traitors of the government.

4.2.1.6 The Question of the Independence of the Judiciary

Eleven of the respondents to the questionnaire conducted through Google-Forms
were of the view that the independence of the judiciary is at stake since the system
makes it to be interfered by other arm of the government and especially the executive
arm of government. They agreed that since the President of the United Republic of
Tanzania is the one who is vested with the power of appointing Judges of the High
Court, Justices of Appeal, the Chief Justice and some other judicial officers of the
court then there is a likelihood of the to put his arm president in the functions of
those officers. This, in their view affects the enforcement of the basic rights since
when the action, law or provision of the law in question is in one way or the other in
favour of the interest of the government or president the court may pursued to stop
declaring the action or law not invalid or unconstitutional. 104
There is a point here, a very important point indeed because when the judiciary is not
independent then there is a huge chance of being used by certain individuals, or
authorities so as to protect their interests, these interests may not be in the welfare of
the public at large and hence people’s rights are likely to be infringed in the sake of
protecting the individual or the authority. So independence of the judiciary is very
important in the effective enforcement of the basic rights.

4.3. The achievement of the enforcement of the Basic Rights through Court
4.3.1 Judicial activism
In spite of the challenges posed by the provisions of the constitution as well as those
posed by the Basic Rights and Duties Enforcement Act and other legislations, the
judiciary has to some extent become very bold especially in the early days when the
Bill of Rights become enforceable when Justice Mwalusanya declared a lot of

104
Data obtained through questionnaire, from Law Students, including lawyers of different levels of
education through WhatsApp Social Network between January and March 2020.

44
provisions to be unconstitutional. In the case of Chumchua s/o Marwa vs. Officer
I/C of Musoma Prison and the Attorney General 105 Mwalusanya J, urges the
courts when interpreting laws to apply creatively the principle of Rule of Law as a
standard measure in determining the constitutional acceptability of such pieces of
legislation. 106 He holds that;
Rule of Law should extend to the examination of the contents of the
law to see whether the letter conforms to the ideal; and that the
law does not give the Government too much power. The Rule of
Law is opposed to the rule of arbitrary power. The Rule of Law
requires that the Government should be subject to the law rather
than the law subject to the Government. If the law is wide enough
to justify a dictatorship, then there is no Rule of Law. Therefore, if
all the Rule of Law means is that the Government will operate in
accordance with the "law", then the doctrine of Rule of Law
betrayal of the individual, if the laws themselves are not fair but
are oppressive and degrading. The courts have to bridge the
yawning gap between the letter of the law and reality in the field of
Rule of Law
As to the words of Mwalusanya above, when courts deciding whether the contents of
the laws are in conformity with the constitution then courts should apply the rule of
law so as to test if they are arbitrary or otherwise since rule of law means that the
government should be subject to the law rather than the government to be above the
law.

Mlacha J, in Zitto Zuberi Kabwe v. The President of the United Republic of

Tanzania, and 3 others 107 while citing other cases was of the view that the court is
called upon to construe the constitution by looking at it as one document and avoid
technicality or giving it a narrow spirit. This is how the courts are supposed to act

105
Misc. Criminal Cause No. 2 of 1988, High Court of Tanzania at Mwanza (unreported)
106
Kabudi, P. J, (1991) The Judiciary and Human Rights in Tanzania: Domestic Application of
International Human Rights Norms: Law and Politics in Africa, Asia and Latin America, Vol. 24, No.
3 p. 274
107
Misc. Civil Cause No. 1 of 2020 High Court of Tanzania at Dar Es Salaam (Unreported)

45
especially in interpreting the provisions of the bill of rights, the constitution and
other laws.
The achievements in the enforcement of the Basic Rights enshrined in the
constitution of the United Republic of Tanzania cannot be seen out of the Courts
since the government has not do so much to ensure so, it is therefore the activist
nature of some judges of the High Court of Tanzania and the Court of Appeal that
makes the achievements of the enforcement of the Human Rights seem.

4.3.2 Experience from other Jurisdictions

This sub chapter makes a comparative study between the Bill of Rights in our
constitution and that of other countries especially that of commonwealth, the aim is
to gain experience from other countries so that working recommendations can be
made.

4.3.2.1 Experience from the Constitution of Kenya, 2010

According to Article 24 108 rights provided in the constitution shall not be limited
except by law, and then only to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity, equality and
freedom. This is very different from our constitution which provides for a lot of
general restrictions and derogation clauses under Article 30 and 31 respectively
which can be used to hamper effective enforcement of the fundamental rights.
The Constitution of Kenya is also far away from ours since, compare to ours their
constitution has recognized all economic, social and cultural rights and they can be
enforced in the court of law. Our Constitution only recognized the right to work and
the right to own property as the rights that can be enforced in the court 109. The
constitution of our counterpart Kenya under Article 43 provides for the following
rights; the right to health care services, accessible and adequate housing, right to be
free from hunger, and to have adequate food of acceptable quality; right to clean and
safe water in adequate quantities, right to social security and the right to education,
also under Article 42 people of Kenya has the right to have protected environment 110

108
The Constitution of Kenya, 2010
109
Article 22 and 24 of the Constitution of the United Republic of Tanzania [CAP 2 R.E. 2002]
110
Article 43, 42 of The Constitution of Kenya, 2010

46
The High Court hearing a case under BRDEA cannot issue prerogative orders
(mandamus, certiorari, prohibition) as remedies. 111 This is different in Kenya, for
example, where prerogative orders form part of remedies that the Court may grant
upon hearing a matter on violation of human rights enshrined in the Constitution of
Kenya. 112
As noted above, the Constitution of Kenya is far better than ours especially on the
bill of rights and its enforcement, these are something important to learn for better
future of human rights in our country.

4.3.2.2 Experience from the Constitution of South Africa, 1996

Compare to ours, the constitution of the Peoples of South Africa recognize and
protect different economic, social and cultural rights, for example; Article 24 113
provides for the right to environment that is not harmful to the health or wellbeing
people and also to have the environment protected, for the benefit of present and
future generations. Article 26 (1) provides for the right to have access to adequate
housing, also the right to have access to health care services, sufficient food and
water and social security this is as per section 27. Also, the Right to education is
protected under Article 29 (1), also people have the right to use Language and to
participate in the cultural life of their choice as provided under Article 30. 114
The restriction of the bill of rights in the constitution of Republic of South Africa is
also different and more convenient than ours. It is also very similar to the one found
in the Constitution of Kenya. Under Article 36 (1) The rights in the Bill of Rights
may be limited only in terms of law of general application to the extent that the
limitation is reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom, taking into account all relevant factors,
including the nature of the right, the importance of the purpose of the limitation, the
nature and extent of the limitation, the relation between the limitation and its purpose
and less restrictive means to achieve the purpose. 115 This is very comparable to the
general restriction and derogation clause provided in our constitution which takes

111
Section 8(4) of Basic Rights and Duties Enforcement Act [CAP 3 R. E. 2019]
112
Article 23(2) of the Constitution of Kenya, 2010
113
Of the Constitution of South Africa, 1996
114
The Constitution of the Republic of South Africa, 1996
115
Ibid

47
away the whole meaning of the bill of rights, and we should cite them as an example
when it comes to the amendment of the constitution or process of having a new
constitution.

4.3.3.3 Experience from the Constitution of Zanzibar, 2010

Human rights are not a union matter so Zanzibar has its own system of Human
Rights. In the Constitution of Zanzibar as adopted in 2010 bill of rights is provided
under part Three (Article 11 to 25A). Compare to the Constitution of the United
Republic of Tanzania, the constitution of Zanzibar does not constitute too much
restriction on the rights, even in general clause it does not do so. In Article 24 it
provides circumstances where rights can be restricted, where it has to be restricted
only to the extent is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom. 116 Such provision is very clear and
essential to the protection of human rights, as it adopts the approach taken by Kenya
and South Africa.

4.4. Conclusion
This chapter has presented and discussed data and findings of the study that were
collected and gathered by the researcher through interview, questionnaire and
documentary review from different people. The data and information collected aimed
at responding to the questions set forth in relation to the enforcement of the basic
rights enshrined in our constitution. The findings reveal the inadequacy of the
provisions of the constitution regarding enforcement of such rights, also the
challenging provisions of the Basic Rights and Duties Enforcement Act which also
hinder the smooth enforcement of the basic rights; the findings further reveal the role
by the government in unsmooth enforcement of the rights. The chapter also reveals
the role of judicial activism in interpreting the provisions of the laws. Despite all, the
chapter shows the experience from other jurisdictions such as Kenya, South Africa
and our counterpart Zanzibar.

116
The Constitution of Zanzibar, 2010

48
 CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS

5.1 Introduction
This chapter covers conclusion and recommendations in respect of the findings of the
study. It is the belief of researcher that if the recommendations provided herein
below are carried out effectively by the concerned authorities, the issue of
enforcement of Human Rights in Tanzania mainland will be at safety, people will be
able to face the courts of law easily and at a precise time when their right is infringed
are infringed or are likely to be infringed by any authority. Also courts of law will be
able to determine the matters before it properly without undue delay, tied up with
technicalities and without any interference from anybody or authority.

5.2. General Conclusion

Human Rights are of paramount importance in every aspect of human being, when
an individual or the society at large denied their rights even social, economic and
cultural activities slow down. It is this view that led to the concept of enforcement of
the rights in the courts of law or some tribunal. It is the significance of the
enforcement that gives Human Rights its glow. It is therefore clear that for the
society to live freely in peace, harmony and concord the enforcement mechanisms
need to be as simple as possible so as to allow every individual to seek redress
wherever his or her rights are infringed, have been infringed or are likely to be
infringed.

The research has demonstrated that there are a lot of problems as far as the issue of
human rights enforcement is concerned, and this has either make the enforcement
difficult or takes the whole essence of the Bill of Rights in the constitution. The
research comes with the findings that, the provisions of the Bill of Rights itself is a
problem since it contains a lot of restrictions which makes the enforcement difficult
and sometimes takes the whole essence of having Bill of Rights, another is the
restrictions posed by the Basic Rights and Duties Enforcement Act, which contain
provisions which some of them offend the provisions of the constitutions, others tend
to cause unnecessary delay in the cause of the enforcement of the basic rights.

49
The other noted problem is lack of education among the citizen on their rights and
how they can seek redress in case of breach, this has been caused highly by the
government and other bodies responsible for educating the public on matters of
human rights, such bodies include the CHRGG.
Due to the above problems the researcher wishes now, for the better future of human
rights to give the recommendations which he thinks necessary to be done for smooth
enforcement of the people’s rights.

5.3 Recommendations
5.3.1 Law Reform
The huge problem regarding the enforcement of human rights has been demonstrated
to be the law, starting from the provisions of the bill of rights in the constitution and
the Basic Rights and Duties Enforcement Act. The following two important reforms
need to be well undertaken;
• The Constitution
New Constitution or Amendment of the Constitution: What we need
Whether Tanzania needs a new constitution or no is matter of debate and I will stand
neither of the two sides since it is not subject of this research. What I can point out
here is that Tanzania whether adopts a new constitution or amend the current one
need to review the bill of rights contained under part III of the constitution. The
proposed recommendations in the constitution are highly centered on three points of
concern;
On Limitation clauses
The first being reducing the limitation clauses contained in the provisions of the
basic rights. It is true that human rights are subject to limitations, but such limitations
need not to be excessive, so the provisions of the bill of rights should contain some
limitations that are not too excessive, I therefore suggest that those limitations have
to be acceptable in any democratic nations.
Also the general and derogation clauses, Article 30 and 31 of the Constitution
provides for some restrictions which hinder healthier enforcement of basic rights, in
my very own opinion we should learn from the bill of rights of other countries, even
from our Brothers Kenyans we can learn a lot from them. There is no need of too

50
many limitations, the Constitution of Kenya, for example provides under Article 24
that the “Bill of Rights shall not be limited except by law, and then only to the extent
that the limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom. 117” [Emphasis added] the same is
provided under the constitution of our counterpart Zanzibar in their constitution
which was amended in 2010. It is high time now that we reduce the restriction
contained in the Bill of Rights so as they can conform to democratic country.
Constitutionalization and Justiciability of Social and Economic Rights
There is a need for recognition of Social and economic rights in the bill of rights, it is
clear that it is the only rights to work and right to fair remuneration that are provided
in the bill of rights, other rights such as the right to education and right to work are
provided under Article 11 which is not enforceable. Since Tanzania is a signatory to
different International and Regional instruments which calls for recognition of social
and economic rights such as the International Covenant on Economic, Social and
Cultural Rights (ICESCR) and The African (Banjul) Charter on Human and Peoples’
Rights it is therefore rights time now that these rights be recognized under the
enforceable part of the constitution (Bill of Rights). Kenya for example, have
recognized all social economic and cultural rights, under Article 43 the Constitution
provides that.
Every person has the right to the highest attainable standard of
health, which includes the right to health care services, including
reproductive health care; to accessible and adequate housing, and to
reasonable standards of sanitation; to be free from hunger, and to
have adequate food of acceptable quality; to clean and safe water in
adequate quantities; to social security; and to education 118[Emphasis
added]
So it is high time now social and economic rights be included in the bill of rights so
as Tanzanian citizens can enjoy their social and economic rights just as the
obligations under international and Regional instruments require the state parties to
act.

117
The Constitution of Kenya, 2010
118
The Constitution of Kenya, 2010

51
On the Appointment of Judges and the Chief Justice
There is a need to look again at the power to appoint judges and the procedure
thereof, according to Article 109 of the Constitution Judges of the High Court in
Tanzania are appointed by the President after consultation with the Judicial Service
Commission also The President consults the Chief Justice before appointing judges
of the Court of Appeal. 119 The Law does not state whether the president is bound by
the recommendations by the Commission, this gap therefore can be used by the
president to make his own proposal to the commission and ignore any
recommendation by the commission, this is dangerous since the president can use the
said gap to bring into the judiciary Judges who he believes would serve his her
interests hence defeat the independence of the judiciary and its role in protecting the
rights of the people.
It is recommended therefore that the Constitution be amended or when it is a new
constitution then it should reduce the power of the president regarding the
appointment of the judges and Chief Justice to the effect that either the President
being deprived to the totality the power of appointing such officers and that task be
vested to the Judicial Service Commission, the other option is that if there is no way
the president can be away from such appointments then he should be bound by the
recommendations by the Judicial Service Commission and the Chief Justice when
seeking consultation from them on appointment.
• The Basic Rights and Duties Enforcement Act 120
This is the law which gives procedures to follow when one wants to seek redress in
the High Court on the violation or likelihood of the violations of the basic rights.
This law needs also to be amended, especially in the following areas;
On Non-Challenging of Bills
Section 8 (3) requires the court to dismiss every suit which is brought by the
grounds that one’s rights are likely to be contravened by reasons of proposals
contained in any Bill which at the time of application has not become a law. This is
strange, it is strange because it gives effect to the coming into force some laws which

119
Article 109 (2) and Article 118(3) of The Constitution of the United Republic of Tanzania [CAP 2
R E 2002]
120
[CAP 3 R E 2019]

52
are contrary to the constitution and which takes away the rights of the people and
until they are challenged in the court they will have affect the public at large extent.
This provision also stand in contradiction with the Provision of Article 30 (3) of the
Constitution which require any person who claims that the provisions of the bill of
rights has been, is being or is likely to be violated by any person may institute
proceedings in the High Court for redress. 121 [Emphasis is mine]. As I said earlier,
the provisions of Section 8 (3) of the BRDEA offends the provisions of Article 30 (3)
paraphrased above since, the words likely to be violated may include a bill, if the
provisions of a bill seem to violate rights of the people or individuals then it falls
under the ambit of term “likely to violate”. So it has to be amended so as to enable
the challenging of bills which have not yet become laws. In the case of Zitto Zuberi
Kabwe and others v. the Attorney General 122 where the applicant was challenging
the Bill on the enactment of the Political Parties (Amendment) Act, 2018 and at the
same times challenging section 8 (3) of the BRDEA the HC was of the view that the
two prayers may not easily connect and/or follow one another and cannot therefore
be properly lumped together. The court therefore struck out the application.
On the requirement of panel of three High Court Judges
Section 10 (1) gives direction that in determining the matter the Court shall
compose of the Panel of three High Court Judges save for determination of whether
the matter is frivolous or vexatious where a single judge shall determine the matter.
This need to be amended since this proposition by the government come as a
response to the role played by single judges specially Mwalusanya J. Also it tends to
waste time because there is still shortage of judges in many registries so three judges
to sit and determine a single application maybe strange. What has been the practice
of court to raise the constitutionality suo motu cannot be applicable here since when
the Court rise a constitutionality of a certain law or act it will have to refer them to
the panel of three Judges for determination, this tends to cause unnecessary delay
which cause more suffering to the victim.
One may wonder how a single Judge can be entrusted to determine more serious
matter which on conviction takes a life of someone like murder cases but it requires

121
The Constitution of the United Republic of Tanzania [CAP 2 R E 2002]
122
Misc. Civil Cause No. 31 of 2018, High Court of Tanzania at Dar es Salaam (unreported).

53
more two Judges to determine human rights matter. It is therefore recommended that
it is right time for the law to be amended so that a single judge can hear and
determine a matter.
On the Determination of the Vexatious and or Frivolousness of the matter
Also the issue of first determination of the frivolous and vexatious of the matter is no
longer a good law since, it tends to waste time of the court as well as of the victim
since during the determination the infringement of the right ma have continued to
affect the victim. It is also strange to provide this fact as criterion for the preliminary
ouster of some matter from the full consideration of the court since, as noted by
Wambali M, it may be difficult to foresee a situation when an individual will be
vexatious of the state. This is an unnecessary introduction into public law of purely
private law procedural limitations. Of course, for an over-zealous public official
prone to the unhampered trespass into personal liberties of individuals allegedly in
the public interest, many such complaints would seem frivolous if not vexatious of
the government's genuine efforts to work for the good of the people in general. 123
So this needs to be totally repealed so as to allow court to directly determine the
matter.
On the Discretion of the Court
Provisions of Section 13 (2) of the Act 124 gives discretion to the court to, instead of
declaring the action or Law to be unconstitutional it may direct the government, the
parliament or the authority concerned to correct the effect in the impugned law or
action within a specific time. This is strange since when the law that is to be
unconstitutional remain in practice for a certain time, whichever shorter it is obvious
that the rights of the people will continue to be at stake. This provision also hampers
the doctrine of Separation of Power which requires major three institutions of the
state to be independent. Peter C M wrote that the principle [separation of power]
does not envisage one ordering the other... this is rather absurd to say the least.125

123
Wambali M, “The Bill of Rights in the Context of Constitutional Developments and the History of
Institutions of Governance” :Thesis Submitted to the University of Warwick for the Degree of
Doctor of Philosophy (Ph.D), March, 1996 and 1997 p. 258
124
The Basic Rights and Duties Enforcement Act [CAP 3 R E 2019]
125
Maina, C P, (1998) “The Enforcement of Fundamental Rights and Freedoms in Tanzania:
Matching Theory and Practice” in, Maina, C. P & Juma, I. H (Eds.) (1998) “Fundamental Rights and
Freedoms in Tanzania” Mkuki na Nyota Publishers – Dar Es Salaam

54
This discretion needs therefore to be repealed and the only remedy the court can do is
to declare the action or law to be unconstitutional if the court founds so this will be
appropriate remedy since it works appropriately, it will also be for the purpose of
strengthening the doctrine of separation of power in the country.

5.3.2 Provision of Education

Lack of education concerning human rights among Tanzanians have been perceived
as one of the challenges in the enforcement of the basic rights enshrined in the
constitution, in fact this is a big problem and it is the view of the researcher that
something has to be done so as to cure such a problem, the researcher therefore
recommend the following to be done so as people become aware of their rights and
enforcement of the same;
Non-Government Organizations (NGOs) and Civil Societies with the role
concerning human rights must do extra efforts to reach more people and provide
them with education pertaining human rights in general, let me use this juncture to
recognize and appreciate the role that has been played by different NGOs and Civil
Societies in giving education to the people on human rights, but it is not enough, as I
said earlier, something extra need to be done, these organizations and societies has
not yet reach the rural areas, and it is rural areas where human rights cases are not so
much happen and this does not mean that there is no violations happen there, there is,
but lack of knowledge has make them fail to seek redress in the avenue available. So
it is high time now that they go to the rural areas to educate the people.
The Government and the CHRGG also has a role regarding this aspect, the
government has a role of making sure that people are aware of the rights enshrined in
the constitution and the procedures to enforce the same. In different levels of legal
education the Government has include the Human rights law as a subject, but this is
not enough since it is a very low number of Tanzanians who are taking law as their
professional. The governments have to introduce in different levels of education the
syllabus which will include the human rights subject; this will make more people
aware of their rights and how to seek redress in case of breach of likelihood of
breach. The CHRGG is mandated to educate the public pertaining matters of human

55
rights 126 but it has not seen to do so. It is right time now that the Commission to
educate the public so as to make sure that the public is aware of their rights and the
way they can enforce the same.
We in the legal professional must also feel ourselves concerned with providing
human rights education to the people so as to rise the spirit of the nation with the
adherence to human rights principles, since when everyone, or oven the majority of
the citizen are aware of human rights issues then we can be assured that when
something that is against human rights happen then the public can rise and demand in
one voice the authority or individual concerned to stop the action. It behooves us
therefore to raise our voices wherever there is a need so as to make sure that the
public is aware of human rights matters, the way they are designed and how they can
seek remedies in case of breach or likelihood of breach.

5.3.4 Judicial Activism of the Judges

Judicial activism is also of paramount importance when it comes to the fulfillment of
the duties of the judges. Judicial activism makes the judges to decide the matters
before them without fear or favour of anybody. Judicial activism of the judges is
measured by their interpretation when construing provisions of the constitution and
other laws of the land; it is through the judicial activism of a Judge that laws that
takes away or limits the rights of the people can be declared invalid and or
unconstitutional. For example Mwalusanya J, in Chumchua’s case hold among the
other things that;
Rule of Law should extend to the examination of the contents of the law
to see whether the letter conforms to the ideal; and that the law does not
give the Government too much power. The Rule of Law is opposed to the
rule of arbitrary power. The Rule of Law requires that the Government
should be subject to the law rather than the law subject to the
Government. If the law is wide enough to justify a dictatorship, then
there is no Rule of Law.

126
Section 6 (1) (d) of The Commission for Human Rights and Good Governance Act [CAP 391 R. E.
2002]

56
As to the holding of Mwalusanya J, above he was insisting of measuring the
Constitutionality of the provisions of the law by ascertaining whether it conforms to
the rule of law, if it does nit then the law or provision is entitled to be declared
unconstitutional or invalid. This is a liberal view.
Also the holding by Lugakingira J, (deceased) in Rev. Christopher Mtikila v.
Attorney General 127 where while construing on the provisions which contradict
each other especially the constitution stated inter alia that;
In interpreting the Constitution when a constitutional provision
enacting a fundamental right appears to conflict with another
constitutional provision, the Court is enjoined to incline to the
realisation of the fundamental rights and may disregard the other
provision if its application would result in injustice; it is the
fundamental rights, and not the restrictions on them which are
fundamental, and it is the fundamental rights which the Court is
enjoined to guard jealously, not the restrictions.

The Judge clearly pointed out that when provisions contradict each other than the
court is called to construe them in a manner that fundamental rights of the people
will be realized, he further pointed out that when there is restrictions then the court
has to disregard the restriction since it is not the restriction that is intended to be
protected but the rights.
Also the view has been stated by Samatta CJ (as he then was), in Julius
Ishengoma Francis Ndyanabo v. Attorney General 128 where he stated
among the other things that;
The Constitution is a living document with a soul and
consciousness as reflected in the Preamble and Fundamental
Objectives and Directive Principles of State Policy. It should not
be crippled by technical or narrow interpretation... Provisions
touching on fundamental rights have to be interpreted in a broad,

127
[1995] TLR 31
128
Civil Appeal No 64 of 2001 Court of Appeal of Tanzania, (unreported).

57
 liberal and strict manner to jealously guard those rights.
[Emphasis is mine]
The holding of the Supreme Court of Namibia in Government of the Republic of
Namibia and Another v. Cultura 2000 and Another 129 demonstrated how
constitutional provisions should be interpreted and the reasons of doing so, the Court
hold inter alia that;
“A Constitution is an organic instrument...It must broadly,
liberally and purposively be interpreted so as to avoid the
‘austerity of tabulated legalism’ and so as to enable it to continue
to play a creative and dynamic role in the expression and
achievement of the ideals and aspirations of the nation, in the
articulation of the values bonding its peoples and in disciplining its
government.” [Emphasis added]
The researcher is therefore calling for an urgent shift from the traditional positivist
attitude that has for long time dominated the Tanzanian judiciary, to a liberal and
activist approach so as to give effect to the provisions of the Bill of Rights enshrined
in the constitution so that individuals can be assured of remedies wherever their
rights are violated, have been violated or are likely to be affected. This is what the
court and Judges can do to rescue what the government has been done for long to
restrict the rights of the people especially by enacting laws which deny fundamental
rights to the people as well as too many restrictions in the Bill of rights.

5.3.5 Obliteration of politics in human rights matters

Politics in human rights as noted in the previous chapter has a lot to do with the
ineffective enforcement of the basic rights, this is because when you politicise
something then it is obvious that its significance gone astray. This is due to the fact
that in politics there are opposing sides, and in every two or more opposing sides
there is likelihood of stratum and therefore division of people, in issues of human
rights, we need to be one so as to speak in one voice and be heard. So it is of
paramount importance that politics be obliterated so as to deal with these issues as
one, without blocks.

129
(1994) 1 SA 407.

58
5.3.6 Ratification, Compliance and Domestication of international instruments
For better future of the enforcement of Human Rights in Tanzania, it is also
recommended that Tanzania has to ratify to all regional and international instruments
on Human Rights and to domesticate the same for the purpose of promoting and
importantly to protect rights of the people in the country. For example Tanzania has
not yet ratified to the two Optional Protocols to the ICCPR 130, Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity, Convention against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment, the African Charter on Democracy and Governance (to
mention a few), these are some of the very important instruments as far as the
question of human rights is concerned but Tanzania has not yet ratified, it is high
time now that Tanzanian government see the important of ratifying to these
instruments. But ratification alone is not enough domestication and compliance is
necessary, for example Tanzania is a party to many treaties as well as human rights
enforcement mechanisms but it has not domesticate them and also compliance to
them is still not satisfactory, this can be evidenced by its current decision of
withdrawing the declaration she made under Article 34 (6) of the Protocol to the
Establishment of an African Court on Human and Peoples’ Rights (AfCHPR) which
confers individual and NGOs to institute cases directly to the court.

5.3.7 Compliance with Judicial and Extra-Judicial Decisions

There are a lot of enforcement mechanisms in different levels, starting from
domestic, regional to international level these machineries especially domestic and
regional has in many instances decide matters which touch the URT in one way or
the other, but such decision are not complied with for long time. Any democratic
government cherishing the rule of law should show great respect for the decisions of
the court. It is in such an environment that the court can fairly and freely dispense

130
Optional Protocol to die International Covenant on Civil and Political Rights, Second Optional
Protocol to the International Covenant on Civil and Political Rights aiming at die abolition of death
penalty, Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes
against Humanity, Convention against Torture and Other Cruel Inhuman or Degrading Treatment or
Punishment.

59
justice without fear of backlash from the executive. 131 It is seen that when court
declare certain provision of the law to be unconstitutional the government take no
steps to correct the defect in a reasonable time or not do it at all
For example in Ally Rajabu and Others v. United Republic of Tanzania 132 the
AfCHPR ordered the Respondent State (Tanzania) to undertakes necessary measures
to repeal from its Penal Code, the provision for the mandatory imposition of the
death penalty in cases of murder within one year, to replace the punishment of the
applicant with other punishment and also to report to the court within 30 days on the
measure they have taken but the time given is about to lapse with no any measure to
comply with the decision.
The researcher therefore is of the view that the government should as quick as
possible comply with the decision of different courts, this will not only give rights to
the individual but also the court will be will be glad to see their decision working so
as justice not only has been done but seems to be done.
Also, in Prof. Ricky Costa Mahalu and Grace Martin v. Attorney General 133, for
example, the High Court declared section 36(4)(e) of the Economic and Organized
Crimes Control Act (CAP 200) unconstitutional for violating the principles of
presumption of innocence and equality before the law. The provision required a
person charged with an economic offence involving property worth 10 million
shillings or more to pay cash deposit equivalent to half the value of such property
and secure the rest of the value as bond in order to be admitted to bail. The High
Court gave the Parliament one year to rectify the provision so as to remove its
discriminative aspect, failure of which will render the provision null and void.
However, the provision has not been amended to date.
There are a lot of cases decided by courts requiring the government to do amend
different laws and or other orders incidental thereto but the government has been
reluctant to do so, this has made the government to be seen as a gear towards
inefficiency in the enforcement of human rights.

131
Ruhangisa J. E. (1998) Human Rights in Tanzania: The Role of the Judiciary, Thesis Submitted to
the University of London for the Degree of Doctor of Philosophy p. 298
132
Application No. 007/2015
133
Misc. Civil Cause No. 35 of 2007, High Court of Tanzania at Dar es salaam (Unreported)

60
 REFERENCE AND BIBLIOGRAPHY

BOOKS
Anand, V. K (2005) “Human Rights”, Asian Offset Printers – Faridabad
Curzon, L. B. (1995) “Jurisprudence” 2nd Edition, Cavendish Publishing Limited -
London, Sydney.
Jesse, J., (2015). Basic principles of Human Rights and Selected Cases. Theophlus
Enterprises - Dar Es Salaam
Luoga, F. D. (1998) “The Tanzanian Bill of Rights” in Maina, C. P & Juma, I. H
(eds) “Fundamental Rights and Freedom in Tanzania” Mkuki na Nyota
Publishers Ltd, Dar Es Salaam
Peter, C. M., (1998) “The Enforcement of Fundamental Rights and Freedoms in
Tanzania: Matching Theory and Practice” in, Maina, C. P & Juma, I. H
(Eds.) (1998) “Fundamental Rights and Freedoms in Tanzania” Mkuki na
Nyota Publishers – Dar Es Salaam
Peter, C.M., (1997) “Human Rights in Tanzania: Selected Cases and Materials”
Rudiger Koppe Verlag, Koeln,
Shivji, I. G., et al, (2004) Constitutional and Legal System of Tanzania: A Civics
Sourcebook. Mkuki na Nyota Publishers - Dar Es Salaam

JOURNAL ARTICLES
Amankwah, A. (1988) “Constitutions and Bills of Rights in Third World Nations:
Issues of Form and Content”: The Comparative and International Law
Journal of Southern Africa, Vol. 21, No. 2
Arenson K. J., (2014) “An Entrenched Bill of Rights: A Protection for the Rights of
Minorities” Deakin University, School of Law
Çamur, G. E., (2017) “Civil and Political Rights vs. Social and Economic Rights: A
Brief Overview” Journal of Bitlis Eren University Institute of Social Sciences
Volume 6 Number 1
Kabudi, P. J, (1991) The Judiciary and Human Rights in Tanzania: Domestic
Application of International Human Rights Norms: Law and Politics in
Africa, Asia and Latin America, Vol. 24, No. 3.

61
Lubuva D. Z (1987) “Reflection on Tanzania’s Bill of Rights” An Address to the
Faculty of Law, University of Dar-Es- Salaam,
Mbunda, L. X., (1994) “The Bill of Rights in Tanzania: Strategies for the Protection
and Promotion of Fundamental Rights and Freedoms in a Multi-Party
Tanzania” in Mtaki, C.K., and Okema, M., Eds., Constitutional Reforms and
Democratic Governance in Tanzania.
Nyerere, J.K., (1969-1970) “Stability and Change in Africa”, African Contemporary
Record, Vol. 2 (1969-1970) C 30-31.
Shivji, I.G., (ed.) (1985). “The State and Working People in Tanzania” Codesria
Book Series, Dakar,
Terray, E., (2010) “Claude Lévi-Strauss’s World View” La vision du monde de
Claude Lévi Strauss, L'Homme Vol. 1 (No 193),
Wambali, M. (2009). “The Enforcement of Basic Rights and Freedoms and the State
of Judicial Activism in Tanzania: Journal of African Law, Vol. 53, No. 1
REPORTS
Amnesty International (2019) “The Price We Pay. Targeted for Dissent by the
Tanzanian State” Amnesty International Ltd, Easton Street
LHRC, (2017) “Unknown Assailants”: A Threat to Human Rights. Human Rights
Report by Legal and Human Rights Centre (LHRC)
Report by the United Republic of Tanzania pursuant to article 8 of the Optional
Protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict, Submitted to the Committee on the Rights of the
Child in 2007.

RESEARCH REPORTS, UNPUBLISHED MATERIALS AND STATEMENTS

American Anthropologist, “Statement on Human Rights” New Series, Vol. 49, No. 4,
Part 1 (Oct. - Dec., 1947),
Luoga F.D., “Human Rights Enforcement Mechanism in Africa” Masters in
International Law Dissertation, University of Lund, 1991.
Mnyasenga T. “Legal Framework of Central-Local Government Administrative
Relationship and its Implication on the Autonomy of Local Government
Authorities in Mainland Tanzania”: A Thesis Submitted in Fulfillment of the
62
 Requirements for the Degree of Doctor of Philosophy of Mzumbe University
2017
Ruhangisa J. E., “Human Rights in Tanzania: The Role of the Judiciary” Thesis
Submitted to the University of London for the Degree of Doctor of
Philosophy, 1998
Wambali M. The Bill of Rights in the Context of Constitutional Developments and
the History of Institutions of Governance: Thesis Submitted to the University
of Warwick for the Degree of Doctor of Philosophy (Ph. D.), March, 1996
and resubmitted in 1997.

NEWSPAPER ARTICLES
Alex Malanga, The Citizen: “Minister reveals why Tanzania delayed signing of
African Democracy Charter, Tuesday November 13, 2018

ONLINE SOURCES
United Nations Human Rights Office of the High Commissioner: “What are Human
Rights” Retrieved from the World Wide Web:
https://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx accessed
on 31st January, 2020 at 22:16
Grant R. (2018) “How to Get Women to Trust the Police 'Gender' Desks?” Retrieved
from the World Wide Web:
https://www.npr.org/sections/goatsandsoda/2018/08/15/638872938/how-to-
get-women-to-trust-the-police-gender-desks accessed on Wednesday, April
01, 2020 at 16:29
Humanists International (2008) “Universality of Human Rights under attack at the
UN” Retrieved from the World Wide Web:
https://humanists.international/2008/01/universality-human-rights-under-
attack-un/ accessed on February 15, 2020 at 13:53
United Nations (Tanzania) (2013) “Tanzania Police’s Action Plan for Police Gender
and Children’s Desks” https://unictz.org/2013/11/26/launch-of-the-gender-
and-childrens-desk-and-3-year-action-plan-demonstrate-police-commitment-
to-strengthen-its-response-to-gender-based-violence-and-violence-against-
children-un-says/ accessed on Wednesday, April 1, 2020 at 16:46

63
The International Justice Resource Center (2019) “As African Court Releases New
Judgments, Tanzania Withdraws Individual Access” Retrieved from the
World Wide Web: http://jrcenter.org/2019/12/05as-african-court-release-
new-judgements-tanzania-withdraws-individual-access/ accessed on March
19, 2020 at 21:00
Thomson Reuters (2017) “Tanzania's President Warns Journalists that Press
Freedom has Limit” Retrieved from the World Wide Web:
https://www.reuters.com/article/us-tanzania-media/tanzanias-president-
warns-journalists-that-press-freedom-has-limits-idUSKBN16V25S accessed
on June 14, 2020

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 APPENDIXES
APPENDIX I
QUESTIONNAIRES
I, Aloyce Rubian Kimario LL.B Student at Mzumbe University do hereby present
to you this research questionnaire for responses, this is a questionnaire for a
compulsory research on the attainment of Bachelor of Laws at Mzumbe University,
the research topic titled “THIRTY FIVE YEARS OF THE BILL OF RIGHTS IN
MAINLAND TANZANIA: CRITICAL ANALYSIS ON THE
EFFECTIVENESS OF THE ENFORCEMENT OF THE BASIC RIGHTS
THROUGH COURT.” The researcher is kindly urging you to clearly read and
respond to the questions for the better future of Human Rights Enforcement in
Tanzania.
(*) Required
A. RAESPONDENTS’S DETAILS
1. Name: ...............................................................
2. Age: ……………………………………..........
3. Occupation: ...…………………………………
4. Phone: ..............................................................
B. SURVEY QUESTIONS *
1. Do you have any knowledge on the Bill of Rights (Basic Rights)
enriched under Part iii (Article 13 – 29) of the Constitution of United
Republic of Tanzania? YES NO
2. If the answer in 1 above is “NO”, What do you consider To be the
reason for the such responses
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
3. Who has the duty to give you knowledge on human rights, and topics
of the like? Is such duty fulfilled ? give reasons
…………………………………………………………………………
………………………………………………..………………………
65
 …………………………………………………………………………
…………………………………………………………………………
What is your response as to the enforcement of the Basic Rights
enriched in the Constitution of the United Republic of Tanzania
through Court?
(i) Insufficient (ii) Sufficient (iii) very sufficient
4. What do you consider to be the reasons for the response in 4 above?
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
5. What do you consider to be success of the enforcement of the basic
rights through court for the 35 years since it become justiciable in
1988?
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
6. What are your responses as to the provisions of the Bill of Rights
enshrined in the Constitution of United Republic of Tanzania? (i)
Complicated (ii) simple (iii) very simple
7. What are the reasons for the response above?
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
8. What are your comments as to the procedures for the enforcement of
the Basic Rights in Tanzania as provided in the Basic Rights and
Duties Enforcement Act and its Regulations?
…………………………………………………………………………
…………………………………………………………………………

66
 …………………………………………………………………………
…………………………………………………………………………
9. What do you consider to be the general challenges of the enforcement
of the basic rights through Court?
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
10. What do you consider to be experiences of the enforcement of the
Basic of Rights from other countries which can be set as an example
to Tanzania?
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
11. What are your recommendations / conclusive remarks/ or any other
you could wish the researcher to know? (if any)
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………
…………………………………………………………………………

Thank you for your participation

God Bless You

67
 APPENDIXES II
INTERVIEW GUIDE
1. Do you have any knowledge on the Bill of Rights (Basic Rights) enriched
under Part iii (Article 13 – 29) of the Constitution of United Republic of
Tanzania?
2. If the answer in 1 above is “NO”, What do you consider to be the reason for
the such responses
3. Who has the duty to educate you on human rights matters, and topics of the
like? Is such duty fulfilled ? give reasons
4. What is your response as to the enforcement of the Basic Rights enriched in
the Constitution of the United Republic of Tanzania through Court?
5. What do you consider to be the reasons for the response in 4 above?
6. What do you consider to be success of the enforcement of the basic rights
through court for the 35 years since it become justiciable in 1988?
7. What are your responses as to the provisions of the Bill of Rights enshrined
in the Constitution of United Republic of Tanzania?
8. What are your comments as to the procedures for the enforcement of the
Basic Rights in Tanzania as provided in the Basic Rights and Duties
Enforcement Act and its Regulations?
9. What do you consider to be the general challenges of the enforcement of the
basic rights through Court?
10. What do you consider to be experiences of the enforcement of the Basic of
Rights from other countries which can be set as an example to Tanzania?
11. What are your recommendations / conclusive remarks/ or anything you could
wish the researcher to know? (if any)

Thank you for your response

God Bless You

68