RUAHA LAW REVIEW

(RLR)

Vol. 1, No.1, 2013

Faculty of Law, Ruaha Catholic University

RLR, Vol. 1, No. 1, 2013

ii

RUAHA LAW REVIEW

The Ruaha Law Review (RLR) is published two times per year. The RLR
publishes articles which deal with Public and Private Law, International
and Municipal Law with a special focus on legal issues relating to Africa.

It is hoped that the RLR will promote debate on current African legal
problems and it will, consequently, open new areas of research and enable
new questions to be asked so that the awareness of the role of justice in
human development may always grow.

The Ruaha Law Review welcomes the submission of contributions for

consideration by the editors with a view to publication. The RLR considers
contributions of varying lengths and styles. Authors must provide original
analysis and avoid summarizing previous research efforts. Articles should
be timely, readable to one who is unfamiliar with the topic, and contain
responsive and authoritative footnotes.

Thus, all contributions, correspondence, books for review and other

communications should be e-mailed to: [email protected]

But may also be posted to:

The Editors of the Ruaha Law Review,

Faculty of Law,
Ruaha Catholic University,
P.O. Box 774,
Iringa
Tanzania

Contributions to the Ruaha Law Review express the view of their

authors and not necessarily the views of the Board of Editors or Faculty of
Law, Ruaha Catholic University.

All rights reserved. No part of this publication may be reproduced,

translated, stored in a retrieval system, or transmitted in any form or by
any means, electronic, mechanical, photocopying, recording or otherwise,
without prior written permission of the publisher.

©2013
Faculty of Law, Ruaha University College

The Ruaha Law Review [ISSN 1821 – 7524] is published twice a year by the Faculty of Law
Ruaha University College, P. O. Box 774, Iringa.

RLR, Vol. 1, No. 1, 2013

 MESSAGE FROM THE DEAN

The Ruaha University Law Review Journal picks from the vision,
mission, functions and core values of the college; to cover the
objectives of the University College; which are among other things,
to carry out research and publications so as to provide quality legal
knowledge to readers and the society at large; as one of the outreach
services. This journal comes out as a second issue since its inaugural
edition of 2010.
The journal entails a number of comprehensive articles analysing
various legal issues; with the intent of imparting legal knowledge to
legal and non-legal practitioners. Readers are expected to be
enriched with legal knowledge and skills to address various
challenges facing them and the society at large.
Everyone is encouraged to contribute by way of writing
intensively on legal matters in the coming issues. This will enable
regular circulation of this journal and achievement of our objectives.
The Dean wishes to extend her sincere gratitude to the team of
reviewers for working timely on manuscripts assigned them. They
were committed to meeting the publication deadline; we commend
them for a job well done.

Lastly we wish you all an enjoyable reading.

Dr. Mary Caroline Levira

Ag. Dean, Faculty of Law

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iv

ADMINISTRATIVE STRUCTURE OF THE FACULTY OF LAW,

RUAHA CATHOLIC UNIVERSITY

Dean
Dr. Mary C. Levira
Associate Dean
Judge Raymond Mwaikasu
Head of Department, Private Law
Ms. Lillian Mongella
Head of Department, Public Law
Mr. Proches Tegamaisho

ACADEMIC PROGRAMMES OFFERED BY THE FACULTY OF LAW,

RUAHA CATHOLIC UNIVERSITY

– Doctor of Philosophy (Ph.D) in Law: a three (3) year programme

– Master of Laws (LL.M) in Human Rights Law: a one (1) year
programme
– Master of Laws (LL.M) in Trade and Finance Law: a one (1) year
programme
– Master of Laws (LL.M) in Finance and Banking Law: a one (1)
year programme
– Postgraduate Diploma in Law (PGDL): a one (1) year programme
– Specialized Postgraduate Diploma in Law (SPGDL): a one (1) year
programme
– Bachelor of Laws (LLB): a four (4) year programme.
– Diploma in Law: a two (2) year programme.
– Certificate in Law: a one (1) year programme.

RLR, Vol. 1, No. 1, 2013

 TABLE OF CONTENTS

Stella Nyana Ahanor

The Trial of George W. Bush and Anthony L. Blair by the
Kuala Lumpur War Crimes Tribunal of Malaysia: An
Appraisal of the Legitimacy and Jurisdiction of the
Tribunal............................................................................................................ 1
Mesiya Mwakisoma
Legal Concerns on the Co- existence and Collision of
Trademarks and Domain Names in ICT Era…………....................... 27
Lillian Mihayo Mongella
Reflection of Gender in Environmental Management:
Analysis of Environmental Laws and Policies in
Tanzania........................................................................................................... 41
Scholastica J. Mality
Trade Related Aspects of Intellectual Property Law and the
Kilimo Kwanza Programme in Tanzania............................................ 65
Kevin Mandopi
Protection of Currency in Tanzania: Does the Law and
Practice Provide Adequate Protection?.............................................. 87
Zuberi Ngoda
The Quest for Freedom of Association and the Regulation of
NGOs: The Law and Practice in Tanzania.......................................... 99
Mary Caroline Levira
Women’s Land Rights in Tanzania: A Wakeup Call....................... 131
Raymond J.A. Mwaikasu
The Blossom and Impetus of Human Rights in Africa: With
Focus on Tanzania........................................................................................ 151

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RLR, Vol. 1, No. 1, 2013

 THE BLOSSOM AND IMPETUS OF HUMAN RIGHTS IN AFRICA:
WITH FOCUS ON TANZANIA

Hon. Justice (Rtd) Raymond J.A. Mwaikasu*

Introduction

Awareness of human rights has been in the mind of men from the very
inception of human life on earth. The Biblical writings specify that when God had
created all things on earth, he finally created Man, whom we call Adam, in His
likeness.1
However, despite the fact that he was made to derive his happiness at the
sight of and mingling with all the animals of which there was a male and a female
for each kind, Adam is said to have felt lonely, as there was no other creature of
his kind. He lacked an important aspect for his fullest development –
companionship or societal living, through which the fullest development of his
faculties could be attained.
Having noted that, God in His wisdom, decided to create Eve in the likeness of
Adam out of Adam’s flesh.2 With Eve by his side, Adam sighed with relief and
happiness. It is further stated that God blessed and told them to go, procreate,
increase and fill the world3. That then was the first appreciation and fulfilment of
one of the basic human rights – the right to found a family, which is the basic unit
of any human society.
It is also further written in the Biblical scriptures that when Cain, the first son
of Adam and Eve had slain his young brother, Abel, out of jealousy, God was

* Hon. Justice (Rtd) Raymond J.A. Mwaikasu was a judge of the High Court of Tanzania from 17
October, 1982 to 26 January, 1998, when he reached a compulsory retirement age. As judge of
the High Court he also served as one of the four judges on the Tanzania Anti-Economic
Sabotage Tribunal from May 1983 to March 1985; Chairman of the Law Reform Commission of
Tanzania, from April 1991 to April 1996; Chairman of Industrial Court of Tanzania from 27 Jan
1998 to 1 March 1999; Judge of the High Court of Botswana from 4 March 1999 to 10 May
2002. He was later appointed and served as lecturer and later Dean of the Faculty of Law,
Tumaini University College of Iringa (now University of Iringa) from 1 October 2003 to 1
October 2006; and now he is senior lecturer and Associate Dean of the Faculty of Law, Ruaha
University College, from 1 October, 2006, todate.
1 Gen: 1:26, 2:7
2 Ibid 1:27; 2:18, 21-23
3 Ibid 1:28

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angered and condemned him to a wonderer for such unjustified loss of his
brother’s life4.
That again was the first incident in appreciation and protection of the right to
life. As men increased in population and began to settle together in large
communities, more conflicts began to emerge due to competing rights as each
one became more aware and assertive of his rights for his wellbeing. The earliest
most conspicuous demonstration of the people’s awareness and jealousy of such
human rights is the 13th century Magna Carta5 of the English people which later
gained ground and culminated in the English Bill of Rights of 1689 and Act of
Settlement of 1700.
In the light of such development, there emerged politico-jurisprudential
developments through the writings of John Locke6, Roussau7 and Montesquieu8
which advocated for and gave legal urgency for the protection of Human Rights.
It is such politico-jurisprudential developments with regard to human rights that
led to the American and French Revolutions of 1776 and 1789, respectively,
against monarchial rule, and establishing, instead, democratic, Republican
governments, both of which have had great impact or influence in transforming
totalitarian and absolutist monarchical governments into modern democratic
governments.
It was then the scourges and atrocities of the 1st and 2nd world wars which
made it imperative for the world community to make public acknowledgement
and declaration of the various human rights and the need to protect them in UN
Universal Declaration of Human Rights of 19489 and other subsequent UN
Conventions10 to the same effect, as guiding principles or standards to be
observed by states in dealing with their subjects in order to maintain justice,
peace and social-economic prosperity for the betterment of human life.
It is, perhaps, worthwhile pointing out, at this juncture, that while under the
UN Charter member states have committed themselves to honour the principles
of non-interference in domestic affairs of another state11, in Europe, on account

4 Ibid 4:8-11.
5 Magna Carta (of 1215) statute 25 Edw 1, 1297.
6 Second Treatise of Civic Government, 1690.
7 Jean-Jacques Roussau 1762: See also Hilaire Barnett, Constitutional and Administrative Law,
Cavendish Publishing limited 20045, 74.
8 Deu Espirit des Lois, BK XI (1748): See also Hilaire Bernett, supra n 7, at P 12, 98
9 Adopted and proclaimed by UN General Assembly Resolution 217A (III) of 10.12.1948
10 (i) The International Covenant on Economic Social and Cultural Rights, adopted by the UN
General Assembly Resolution 2200A of 16.12.1966.
(ii) the International Covenant on Civil and Political Rights, adopted by the UN General
Assembly Resolution 2200A (XXI) of 16.12.1966.
11 UN Charter, Art 2(4); The 1965 Declaration on Inadmissibility of Intervention in Domestic
Affairs of States, UN General Assembly Resolution 2131 (XX): The 1970 Declaration on

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 Human Rights in Africa 153

of the scourges suffered during the 1st and 2nd World Wars and atrocities
experienced by the people under cruel, totalitarian regimes, European countries
were quick to forego state sovereignty and the rule of non-interference in
domestic affairs of another state. Thus soon after the formation of the UN and
the adoption of the Universal Declaration of Human Rights in 1948, on 14
November 1950, fifteen European democratic states entered into the European
Convention on Human Rights12. Under such Convention were also established
the Commission for Human Rights13 and the European Court of Human Rights14.
The two institutions were intended to protect the individual citizens of the
member states against violations of their human rights by their respective
governments. However, the two institutions were, upon the adoption of Protocol
XI of 1998 by member states, reconstructed so as to have a single, permanent
and full time court15, to meet the need of an increased litigation.

1.1 Meaning of Human Rights

Most of us and almost all writers are accustomed to talking about human
rights as enumerated under the Universal Declaration of Human Rights and
other international instruments. We seldom address our minds to the question
as to what is a human right. I personally consider that an attempt to answer such
a question is very important to the proper understanding and appreciation of the
importance of human rights to mankind. Talking of fundamental human rights as
being inherent and inalienable rights that inhere in human nature16 is more of a
description rather than a definition of human rights. Thus, in my modest attempt
to define human rights, I take them to be conditions precedent for the fullest
development of man’s faculties necessary for his total development and
happiness as such human being. They constitute major instinctive driving force
in man’s endeavours for his development.
Thus, for man as a social being, in order to develop both his intellectual and
physical talents, he must do so in association with others. Hence the right to
freely associate with others17, be it a political, professional, cultural or sporting
association. It is thus such association with others that is a condition precedent

Principles of International Law, UN General Assembly Resolution 2625 (XXV): CORFU

CHANNEL CASE, ICJ Reports, 1949, P. 4, 35.
12 Dated Rome 4.XI.1950: See Human Rights in International Law, Basic Texts- Strasbourg, 1985,
P.101
13 Established under Art. 19(a).
14 Established under Art. 19(b)..
15 Adopted and came into force on 1.11.1998: Court established under Art. 19 of the Convention,
as amended by Protocol XI.
16 Rev. Mtikila Vs. A.G [1995] TLR 49
17 Art. 22 of the International Covenant on Civil and political Rights.

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154 Mwaikasu

to the development of one’s intellectual and physical faculties through

interaction with others. Marriage is a condition precedent for the lawful exercise
of a man’s procreative faculties and for the existence of a family and society as a
whole18. Likewise, life19 itself is a condition precedent for the very existence of
man and the development and exercise of all the man’s faculties necessary for
his development as such human being.
Ironically, although the English people have rightly claimed to be champions
in the enjoyment of human rights in the world with common law tradition, and
the British government was keen to protect fundamental and other legal rights
of her citizens, the British colonial administration in British colonial countries
had no regard for human rights that ought to have been similarly enjoyed by
people under such colonial rule in such countries, particularly those which were
not designated as British colonies of which Tanzania (Tanganyika and Zanzibar),
was one. The enjoyment or observance of human rights and the well known and
jealously cherished Western constitutional ideal and pride of the British people -
the Rule of Law, with its corner-stone principle of separation of powers between
the legislature, the executive and the judicature, embracing the principle of the
independence of the judiciary, was treated as a myth by the British colonial
administrators, so far as Africans were concerned. Thus the executive from the
Governor down to the Provincial Commissioner, the District Commissioner, the
Administrative officers and the African chief, were at once a law maker, an
administrator, a police officer, a prosecutor and at the same time a judge in an
African cause20.
There was no independence of the judiciary, for even judges of the High Court
held office at the pleasure of His/Her majesty21. In such British colonial
territories, efforts by the indigenous people who happened to fall victims of
atrocities at the hands of colonial officers, to seek redress in municipal courts
were thwarted by the Act of State doctrine. A living example of such disregard of
human rights for colonised, especially protected peoples was the brutal eviction
of three thousand (3000) Maasai people of Meru (Arusha) from their old,
traditionally held land in favour of thirteen white Settlers.22 That, of course, was
a deliberate and sure course of perpetuating underdevelopment of the Africans
and guarding a prolonged domination by the colonial rulers who, nevertheless,
vehemently professed, as their mission, to civilize and develop Africans.23

18 Art. 16 of the Universal Declaration of Human Rights.

19 Art. 3 of the UDHR supra, and Art 6 of the International Covenant on Civil and Political Rights.
20 Morris & J.S. Read: Indirect Rule and the Search for Justice, Clarendon Press, Oxford, 1972.
21 Terrel v. Secretary of state for Colonies (1953) 2QB 482.
22 AntonNelson: “the Free Men of Meru” p 30-59, OUP 1967; See also Olle Njogo v. A.G (1914) 5
EALR 70 (The Maasai Case).
23 “Indirect Rule and Search for Justice” op. cit. fn 20, p. 133-134.

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 Human Rights in Africa 155

1.2 The Advent of the Struggle for Independence

It is with such background of the colonial rule and upon being deeply
inspired and buttressed by the UN Charter24, the UN Universal Declaration of
Human Rights25, together with other several UN Conventions26, Protocols27 and
resolutions28, coupled with political developments that took place in other
former colonial territories, like India, that led to the independence of such
countries, from late fifties, the efforts of some educated and organised African
nationalist political leaders in mobilizing their fellow country men and women to
agitate for independence from colonial rulers, that had started some years back,
began to pay off upon attainment of independence by Ghana in 1957, from the
British colonial rule. That provided a greater driving force for other African
countries that were still under colonial rule. Also of even greater encouragement
by the international community, in such struggle for independence was the UN
resolution No. 1514 (XV), being a Declaration on the Granting of Independence
to Colonial Countries and Peoples, adopted in 1960, which is in the following
terms:-
“… all people have the right to self determination; by virtue of
that right they freely determine their political status and freely
pursue their economic, social and cultural development.”29

Of particular interest and importance of such resolution in accelerating

decolonisation was its implication that the inadequacy of political, social,
economic or educational preparedness was not to serve as a ground for delaying
independence.30
It is in such politico-legal setting that African leaders of the dominant
political parties representing the voice of the African populace in their respective
colonial countries, recognised that democracy, justice according to just laws
administered by independent and impartial courts, were pre-requisites for the

24 Adopted by the San Francisco Conferences of 1945.

25 Supra, note 9.
26 Supra, note 10.
27 Optional Protocol to the International Covenant on Civil and Political Rights, adopted by the UN
General Assembly Resolution 2200A (XVI) of 16.12.1966; e.f. 23.3.1976
28 Eg. Resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial
Countries and Peoples, adopted in 1960; See also M. N. Shaw, International Law, Cambridge
University Press, Cambridge
20035, 227.
29 Idem.
30 Ibid.

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156 Mwaikasu

promotion, enjoyment and protection of the people’s right and freedoms and the
maintenance of justice-the cornerstones for peace, which, in turn is a condition
precedent for any country’s sustainable development.
Accordingly, in Tanganyika, for instance, the provisions in the constitution of
TANU31, then the dominant political party from colonial times in the early fifties
up to its merger with the Zanzibar Afro Shiraz Party in 1977, gave expression to
such aspiration in the following terms, inter alia:

“WHEREAS TANU BELIEVES:-

a) That all human beings are equal;
b) That every individual has a right to dignity and respect
c) That every citizen has the right to freedom of expression, of
Movement, of religious belief and association within the context of
the law
d) That every individual has the right to receive from society
protection of his life and property held according to law”.

In consequence, therefore, in great contrast to the colonial constitutional and

judicial position, and demonstrative of what the African people had fought for,
independence constitutions of most African states, like Uganda32 and Kenya33, for
example, where concern for the protection of the interest of the rival minority
political groups was more pronounced, clearly embodied safeguards for people’s
rights and freedoms and justice according to law administered by independent
and impartial courts of law. Such conditions went even further such as providing
for semi-autonomous regional governments and had also provisions spelling out
fundamental human rights.
In Tanzania Mainland (Tanganyika) 34 , too, though such elaborate and
extensive provisions on fundamental human rights were avoided for fear lest the
enforcement of the specific rights should thwart efforts of the executive pushing
through radical socio-economic development measures and destabilize the
country through friction with the judiciary, as by then the judiciary was wholly
manned by foreigners, a comprehensive statement of belief in and commitment
to the observance of such rights was also embodied in the preamble to her
independence constitution. Despite such non-embodiment of the fundamental
human rights in Tanzania Mainland’s independence constitution, that does not

31 Tanganyika African National Union, formed on 7 July 1954.

32 Uganda Independence Constitution, being Second Schedule to the Uganda (Constitution)
Order-in-Council, 1962 No. 405 of 26.2.1962.
33 Kenya Independence Constitution, being Second Schedule to the Kenya (Constitution) Order-
in-Council, 1963 No. 1968 of 12.12.1963.
34 Tanganyika Independence Constitution, being Second Schedule to the Tanganyika
(Constitution) order-in-Council, 1961 No. 2274 of 27.11.1961 e.f. 9.12.1961.

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 Human Rights in Africa 157

mean that they were left to be trampled upon anyhow. For they received
adequate protection under the Penal Code35, the Criminal Procedure Code36 and
other municipal laws and the received English common law principles and
doctrines of equity.37 In the circumstances, the only snag was that despite such
protection under ordinary municipal laws, such laws were subject to the
legislative supremacy of parliament, which could theoretically lead to repeal or
adverse modification to such laws. Fortunately, the fact that most of the
fundamental human rights have found protection under natural law, nowhere in
the world has such law, which is founded in the God’s Ten Commandments, been
tempered with. For such natural law is imbued in human nature38 and over the
years has proved itself invaluable in ordering human societies for the survival of
mankind.
In 1965, when Tanzania Mainland adopted an Interim Constitution for a One
Party state soon after the union of Tanganyika and Zanzibar, the national
political leadership was quick to anticipate the likely misuse of power by both
government officials and the party functionaries, which could lead to rampart
violation of human rights among the subjects, thereby providing a setting for
civil unrest and instability of the young nation. That then prompted the
government to establish the Permanent Commission of Enquiry (PCE) 39
(Ombudsman) to check such possible misuse of powers as to result into violation
of human rights among the people. However, the PCE was clearly an instrument
of the Head of the Executive, the President, over whom it had no jurisdiction to
investigate any complaint against him.40 The PCE was also required to submit its
annual reports to him. That led to criticism against the PCE that it was not
effective enough for lack of independence.41 It did, however, do a good job, as it
gave members of the general public an opportunity to vent out their grievances
against officials in the public service, which, though the PCE itself had no
punitive powers, served a deterrent effect in the minds of officials in the public
service, thus promoting good governance and reducing grievances by the
subjects.
However, attainment of independence by the majority African countries
which had been under colonial rule, ushered in corruption, nepotism, tribalism,

35 Cap. 16 of the Laws of Tanzania.

36 Cap. 20 of the Laws of Tanzania.
37 Received and Applied under S. 2(3) of the Judicature and Application of Laws Ordinance – Cap
453, now Judicature and Application of Laws Act, (Cap 358 R.E 2002).
38 Jeremiah 31:31, 33.
39 Art. 29(1) of the 1977 Constitution of the United Republic of Tanzania as read with Act no 25 of
1966.
40 Art. 129(4) of the 1977 Constitution, supra.
41 C. M. Peter, Fundamental Rights and freedoms in Tanzania, Mkuki na Nyota Publishers, Dar es
Salaam 1998, P. 50.

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158 Mwaikasu

racism, political and religious-intolerance in a number of such countries,

resulting, in some countries, into military coups and civil wars42, that, to-date,
have displaced and thrown over seven million civilians into refugee camps and
have led to loss of thousands innocent lives, and untold suffering. Currently we
still witness such catastrophic state of affairs in the DRC, Somalia and Sudan.
It is in the light of such atrocities and scourges, coupled with the pressure
from Western countries and the United States through the imposition of human
rights and democratic rule through multipartism requirement, as loan
conditionalities for the grant of socio-economic aid by the World Bank and the
IMF and State bilateral agreements, that during the last two decades, the
blossom and impetus of human rights in Africa began to be felt.
It is then with such state of affairs, more or less akin to the plight that befell
our European brothers and sisters during World Wars One and Two, that in
1981, African Heads of States and Governments, meeting in Nairobi, Kenya,
adopted a Draft African Charter on Human and Peoples Rights and Duties, which
came into force on 21st October, 198643, after being ratified by an absolute
majority of OAU (now AU) member states, Tanzania being one of them.
Established under the Charter, there now exists the African Commission on
Human and Peoples Rights.44 Later, in June 1998, at the OAU’s summit in
Ouagadougou, Bukina Faso, African Heads of States and Governments signed the
Protocol to establish the African Court on Human and Peoples Rights, the whole
human rights system having been very much influenced by the European system.
Hence, the need for the promotion, observance and protection of human rights in
Tanzania and Africa as a whole, for good governance arose. In Tanzania, it is of
interest to note that such African Court on Human and Peoples Rights has found
its home in Tanzania and it is seated in the city of Arusha.
It is however, ironical that despite the on-going atrocities in some of the AU
member states, for the last twelve years very few cases have been handled by the
court.45 This, could be partly due to inadequate publicity about the existence of
such court, its procedures and what it is supposed to deal with, and partly due to
wanting strong political will, on the part of AU member states.

42 Instances of military coups are those that took place in Nigeria, Burkina Faso, Sierra Leone,
Equatorial Guinea, Zaire (DRC), Uganda, Somalia, Ethiopia, Central Republic of Congo, civil wars
in Rwanda, Liberia, Burundi and Sudan.
43 Human Rights in International Law: Basic Texts, Strasbourg 1985, note 12.
44 Established under Art. 30 of the Charter.
45 (i) Michelot Yogogombaye V The Republic of Senegal, App. No.0001/2008.
(ii) Urban Mkandawile Vs. The Republic of Malawi - Application No. 003/2011.
(iii) Tanganyika Law Society and Legal and Human Rights Center v. The United Republic of
Tanzania –
Application No. 009/201.1

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 Human Rights in Africa 159

2. The Need for the Promotion, Observance and Protection of Human

Rights

The need for the promotion, observance and protection of human rights
arises from the fact that human rights are for the betterment of the humanity of
human beings, our humanity, so to speak. For it is the sum total of the
observance and exercise of all the human rights that would lead to the respect
and happiness of human beings and society as a whole. As observed in
paragraph 13 of the Proclamation of Teheran 1968:

“Since human rights and fundamental freedoms are indivisible,

the full realization of civil and political rights, without the enjoyment
of economic, social and cultural rights, is impossible. The
achievement of lasting progress in the improvement of human rights
is dependent upon sound and effective national and international
policies of economic and social development.”

For, in practical terms, real respect for the human person and for a people,
can only be commanded where people are well-fed; well-clad; adequately
educated and informed; have decent shelter; have good adequate health services
and facilities; have clean and adequate water; energy supply; have improved
means and methods of production and marketing of both industrial and
agricultural goods; have good means of communication and transport; have
stable and responsible families; properly cared for children the aged and the
disabled; have well established democratic government with active participation
from the people; have an impartial and independent judiciary and reigning peace
and unity.
Thus, apart from purely humanitarian sympathy, there can be no real respect
for him as a human person commanded by a beggar; a man clad in tattered
clothes, who is undernourished, illiterate and uniformed, living in poor and
indecent shelter; neither can we, as a people, command such respect and enjoy
human rights as such to the full under dire socio-economic and political
underdevelopment.
It is the people’s full consciousness of human rights and the desire to enjoy
them to the full, that will provide the driving force to strive towards the
elimination of all factors standing on the way of endeavours for the attainment of
the requisite standard in the enjoyment of such rights. Thus it is the full
awareness of and respect for human rights by all members of a given society that
will stand as a central pillar for justice, peace and unity among the people. It is, in
fact, justice, peace and unity which can be said to be conditions precedent for
any people’s sustainable socio-economic, political and cultural development in
the pursuit of their lasting happiness.

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160 Mwaikasu

The ever growing campaign for human rights, the world over, has, therefore,
come at an opportune time in our continent and, Tanzania, in particular. For
Africa is now in a grip of serious socio-economic and political changes that have
engulfed the whole world. As part of such changes, there has been a wind of
change sweeping across Africa towards entrenched multiparty democracy, free
market economy and constitutional entrenchment of human rights. Thus unlike
in the past, or the perestroika period, to be exact, it is most likely that at this
point of time, the need to promote, observe and protect human rights will be the
more acceptable and tolerated by Tanzania leadership.

2.1 The Implementation and Protection of Human Rights

The biggest problem now concerning human rights is in respect of their

implementation and protection. To successfully achieve this many hands must
be at work: the individual, the family; the village through the national and the
international levels of organised communities, institutions; governmental and
non-governmental, both local and international ones.
Both the individual, the community in which he lives and the international
community, have a major role to play in implementing human rights from the
socio-economic, political and cultural perspectives, on the basis of
complimentarity.
The individual person must, in the absence of any aspect of incapacity, work
hard and avail himself with all available resources and opportunities for the
betterment of his/her life. For their part, the local and international communities
and institutions, must join hands and strive to supplement the efforts of the
people by providing necessary information, material and technological
assistance, favourable socio-economic, political and cultural environment and
equal opportunities to facilitate the fullest enjoyment of their human rights.

2.2 The Tanzania Situation

On its part, Tanzania Mainland has made great strides in the implementation
and protection of human rights for her subjects.
Among the milestones, first and foremost, it was in the year 1984, that
fundamental human rights were embodied and entrenched under the 1977
constitution following its amendment of that year.46 Such rights are provided for
under Articles 12 to 24 and duties fall under Article 25 to 29 of the constitution.
The violation or threat to violate any of such rights is justiciable in the High
Court47 in accordance with the procedure laid down under the Basic Rights and

46 Constitutional Amendment Act No. 15 of 1984.

47 Art 30(3) of the 1977 Constitution of the United Republic of Tanzania, as amended from time to
time

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 Human Rights in Africa 161

Duties Enforcement Act.48Any Act of parliament or any action taken by the

Government or any other authority that has the effect of abridging or abrogating
any of such rights and duties as provided for under Articles 12 to 29 of the
constitution may be challenged in the High Court by an aggrieved party49, and
where such encroachment is established, the court may declare it void or require
the Government or authority concerned to rectify the same within a specified
period.50
The Constitution also expressly provides for the independence of the
judiciary.51With such entrenchment of human rights in the Constitution, the
Bench and Bar of this country have been very active and aggressive in the
protection of human rights in this country resulting in the nullification of some
customary and statutory laws that turned out to have been unconstitutional to
the extent they violated the entrenched human rights.52
Over and above that, Tanzania does also have the Commission for Human
Rights and Good Governance, established under the Constitution of the United
Republic53 as read with the Commission for Human Rights and Good Governance
Act54. Its territorial jurisdiction is over both Tanzania Mainland and Tanzania
Zanzibar.55
As to its composition, the Commission is made up of the following members56:

48 Cap. 3 of the Laws of Tanzania

49 Art. 30(5) of the Constitution.
50 Ibid.
51 Art. 107(b) of the Constitution op. cit (R.E 2005)
52 (i) Bernado Ephraim v. Holaria Pastory and Another H/C (PC) Civ. App. No. 70/89 MA registry
reported in (1990) LRC (Const) P. 757.
(ii) Daudi s/o Pete v. Republic H/C Misc. Cr. App No 80 of 1989 MZA Registry (1991) LRC
(const) 553 (C.A) [1993] TLR 22 (C.A).
(iii) Peter Ng’omango v. Gerson M.K Mwangwa and Another H/C Civ. Case no 22/92 – Do
Registry [1993] TLR 77 H/C.
(iv) Kukutia Ole Pumbun and Others v. A.G and Another [1993] 159 (C.A).
(v) A. A. Sisya and 35 Others v. Principal Secretary, Ministry of Finance and Another H/C Civ. Case
no. 5/1994 – Do registry (Unreported)
(vi) Mbushuu alias Dominic Mnyaaroje and Another v. Republic [1995] TLR 97 (C.A).
(vii) A.G v. Lohay Akonaay and Joseph Lohay [1995] TLR 80.
(viii) OTTU (on behalf of Paul Magasha) v. A.G and Another [1997] TLR 30 (HC).
(ix) Julius Ishengoma Francis Ndyanabo v. A.G CAT. Civ. App. No 664/2001 (unreported).
53 Art. 129 of the Constitution, as read with the Commission for Human Rights and Good
Governance Act No. 7 of 2001 and 16 of 2001 (cap 391 R.E. 2002).
54 Ibid.
55 Art. 130(6) of the Constitution and S. 28A of the Act (cap 391 R.E 2002); (see Amendment Act
no 8 of 2006)
56 Art 129 (2) of the Constitution op. cit. as read with S. 7(1)(2) of the Act (cap 391 R.E. 2002)

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162 Mwaikasu

a) A chairman, who must be a person qualified for appointment as Judge of

the High Court or of the Court of Appeal.
b) A Vice-Chairman, appointed on the basis that if the chairman comes from
Tanzania Mainland the Vice-Chairman must come from Tanzania
Zanzibar and vice-versa
c) Not more than five other Commissioners appointed from amongst
persons who have knowledge, experience and a considerable degree of
involvement in matters relating to human rights, law, government,
politics or social affairs.

All Commissioners are appointed by the President upon recommendation of

the Appointments Committee57 (Nomination Committee) composed of the Chief
Justice of the Court of Appeal, the Speaker of the National Assembly; the Chief
Justice of Zanzibar, the Speaker of the House of Representatives and the Deputy
Attorney General58, done on a competitive basis after submission of applications
by the aspiring candidates. The tenure of office is three years59, renewable only
once. They also have good security of tenure, removable from office by the
President only for inability to perform the functions of their office due to illness
or any other reason or for misbehaviour inconsistent with the ethics of office or
any law concerning ethics of public, officers60 and only upon a recommendation
of a special tribunal appointed by the President61, as provided for under the
Commission for Human Rights and Good Governance Act. Their salaries, too,
which are determined by the President, are charged on the consolidated Fund62.
The Commission is an autonomous department63; it is not bound to comply
with any directive or order of any person or any department of government or
any opinion of any political party or any public or private sector institution. It
may, however, receive and comply with a directive given by the President where
the President is satisfied, in respect of any matter or state of affairs, that public
interest so require.64 The Commission may, as well, receive instructions from the
President to inquire into the conduct of any person or institution concerned;
likewise, the commission may be directed by the President not to conduct such
inquiry in respect of any person or institution concerned who is, or which is
suspected to have abused authority of his office or the functions of such

57 Art 129(3) of the Constitution.

58 Art. 129 ibid, as read with S. 8(1) of the Act, cap 391, supra.
59 Art. 129(5) ibid, as read with S. 8(1) of the Act, cap 391, supra.
60 Art. 129(7) ibid, as read with S. 10(1) of the Act, cap 391, supra.
61 S. 10(2) of the Act, Cap 391, supra.
62 S. 8(2) of the Act, cap 391, supra.
63 Art 130(2) of the Constitution, supra, as read with S. 14(1) of the Act, Cap 391, supra.
64 Art 130(3) and (4) of the Constitution, as read with S. 16(3) and (4) of the Act, Cap 391, supra.

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institution or for violation of human rights and principles of good governance in

which case, the direction, must be in writing accompanied with reasons; and
upon compliance with such direction the Commission must inform the
complainant of the same within 30 days from such decision.
The functions and powers of the Commission are laid down more
comprehensively under the Commission for Human Rights and Good
Governance. Act65 As to the functions, they include:
a) To promote within the country the protection and the preservation of
human rights and of duties to the society in accordance with the
constitution and the laws of the land;
b) To receive allegations and complaints in the violation of human rights,
generally;
c) To conduct enquiries into matters involving the violation of human
rights and the contravention of the principles of administrative justice;
d) To conduct research into human rights, administrative justice and good
governance issues and to educate the general public about such issues;
e) When necessary, to institute proceedings in court designed to terminate
activities involving the violation of human rights or redress the right or
rights so violated or the contravention of the principles of administrative
justice;
f) To investigate the conduct of any person to whom or any institution to
which the provision of this section apply in the ordinary course of the
exercise of the functions of his office or discharge of functions in excess
of authority;
g) To investigate or inquire into complaints concerning practices or actions
by persons holding office in the service of the government, public
authorities or other public bodies, including private institutions and
private individuals, where those complaints allege abuse of power,
injustice, unfair treatment of any person, whether complainant or not, in
the exercise of their official duties;
h) To visit prisons and places of detention or related facilities with a view to
assessing and inspecting conditions of the person held in such places and
making recommendations to redress the existing problems in accordance
with the provisions of this Act.
i) To take steps to secure the remedying, correction, reversal or cessation
of instances referred to in paragraphs (e), (f), (g) or (h) through fair,
proper and effective means, including the institution of legal
proceedings.66

65 Art 130(1) of the Constitution, as read with S. 6(1) of the Act, Cap 391, supra.
66 Art. 130(1) of the Constitution as read with S. 6(1) of the Act, cap 391, supra.

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164 Mwaikasu

j) To provide advice to the government and to other public organs and

private sector institutions on specific issues relating to human rights and
administrative justice;
k) To make recommendations relating to any existing or proposed
legislation, regulation or administrative provisions to ensure compliance
with human rights norms and standards and with the principles of good
governance
l) To promote ratification of or accession to treaties or conventions on
human rights, harmonization of national legislation an monitor an assess
compliance, within the United Republic, by the government and other
persons, with human rights standards provided for in treaties or
conventions or under customary international law to which the United
Republic has obligations;
m) Under the auspices of the government, to cooperate with agencies of the
United Nations, the OAU (AU), the Commonwealth and other bilateral,
multilateral or regional and national institutions of other countries
which are competent in the areas of protection and promotion of human
rights and administrative justice;
n) To take such measure as may be appropriate for the promotion and
development of mediation and reconciliation amongst the various
persons and institutions who come or are brought before the
Commission;

The Commission is also mandated to use its good office, to promote, protect
and, where necessary, to provide assistance to persons who human rights have
or are in imminent danger of being violated.67
As regard the powers of the Commission the Commission mandated to
investigate any human rights abuse or maladministration either on its own
initiative or upon receipt of a complaint or allegation under the Act from (i) an
aggrieved person action in one’s own interest; (ii) an association acting in the
interest of its members or (iii) a person acting in the interest of a group or class
of persons.68
In carrying out its investigation the Commission has power to determine its
own procedure for the conduct of hearings of matters brought before it, but may
be guided by such other procedures as may be prescribed by regulations made
under the Act.69 However, in conducting an enquiry the Commission has to
observe principles of natural justice70, and is not to be bound by any legal or

67 S. 6(3) of the Act, cap 391, supra.

68 S. 15(1) and (3) of the Act, cap 391, supra.
69 S. 20(1) of the Act, cap 391, supra.
70 S. 20(2), ibid.

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technical rules of evidence applicable to proceedings before the courts. Its

decisions are by a majority vote of members present at the meeting where the
quorum has been realized.71
The Commission is required to deal with every complaint received unless it is
satisfied that72:-
a) The complaint relates to a decision, recommendation, act or omission of
which the complainant has had knowledge for more than 24 months
before the complaint is received by the Commission; or
b) The alleged victim of the act or act complained of ought to exhaust
grievance or other procedures prescribed by law, otherwise reasonably
available,
c) The complaint is frivolous, vexatious or made in bad faith; or
d) The complaint is not within the jurisdiction of the Commission.

A complainant, an interested party and any other person whose conduct or

act is likely to be subject of adverse comment by the Commission may be
represented by an advocate or any other person suitable to represent him73. The
person complained against has to be notified of the complaint and given
sufficient opportunity to appear in person or through a representative at the
inquiry and to present evidence and make representations74.
Where the Commission decides to conduct an investigation under the Act, it
has to give the authority or person concerned and to any other person who is
alleged in the complaint to have taken or authorized the act or omission
complained of an opportunity to comment on any allegation contained in the
complaint and the representative of the authority or person concerned has to
submit his comment within such times as the Commission may specify.75
Where, after making an investigation under the Act76, the Commission is of
the view that the decision, recommendation, act or omission that was the subject
matter of the investigation;
a) Amounts to a breach of any of the fundamental rights and freedoms
provided in the Constitution or in any international instrument to which
the United Republic is a party;
b) Appears to have been contrary to law; or

71 S. 20(3), ibid.
72 S. 22(4), ibid.
73 S. 23(1), ibid.
74 S. 24, ibid.
75 S. 26(1), ibid.
76 S. 28(1), ibid.

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c) Was unreasonable, unjust, oppressive, discriminatory or was in

accordance with a rule of law or provision of any Act or a practice that is
unreasonable, unjust, oppressive or discriminatory; or
d) Was based wholly or partly on a mistake of law or fact; or
e) Was based on irrelevant grounds or made for an improper purpose; or
f) Was made in the exercise of discretionary power and reasons should
have been given for the decision;
The Commission has to report its decision; recommendation and the reasons
for it to the appropriate authority concerned. It is, in fact, to be pointed out, at
this juncture, that the status of the decision of the Commission has been
expressly categorized under the Commission for Human Rights and Good
Governance Act77, to be of a recommendation to the appropriate authority or
person having control over the person, in respect of whose act or conduct an
investigation has been carried out. Thus the Commission’s decisions have no
binding effect.
Then upon receipt of such report or recommendation of the Commission, the
appropriate authority has, within a period of not exceeding three months; from
the date of the Commission’s decision or recommendation, to report to the
Commission with details of any action taken by such authority to redress the
infringed rights or acts of maladministration.78
If, within the prescribed time after the report is made by the Commission, no
action is taken which seems to the Commission to be adequate and appropriate,
the Commission may, after considering the comments, if any, made by or on
behalf of the department, authority or person against whom the complaint was
made, either bring an action before any Court or recommend to any competent
authority to do so and seek such remedy as may be appropriate for the
enforcement of the recommendations of the Commission.79
However, the Commission has no jurisdiction to investigate any complaint
against the President of the United Republic or the President of Zanzibar.80
Neither has it the jurisdiction to investigate into a decision of any judge,
magistrate or of the court or any tribunal if such decision was made in the course
of exercise of the powers of his office or its functions, or a matter pending before
a Court of Law or any judicial tribunal; a matter involving the relations or
dealing between the government and any foreign State or an international
organization; a matter relating to the prerogative of mercy; and a matter on

77 S. 17(1), ibid.
78 S. 28(2), Ibid.
79 S. 28(3), ibid.
80 S. 16(1), ibid.

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 Human Rights in Africa 167

which the President directs otherwise in accordance with the provisions of the
constitution.81
From the above account, it will have become clear that upon entrenchment of
fundamental human rights and freedoms in the country’s constitution, Tanzania
has, apart from the use of her traditional guardians of human rights - the courts
of law, found fit to establish another, almost equally powerful organ-the
Commission for Human Rights and Good Governance, specifically for the
purpose of serving as watchdog to check against violations of human rights and
maladministration. It is interesting to note that our watchdog has been required,
under the Act, to have an eagle’s eye not only on the violations of fundamental
human rights and freedoms enshrined under our constitution, but also those
embodied in other international instruments to which Tanzania is Party. Further,
the watchful eye is not limited to violation of such rights by persons and
institutions in the Public Sector only, but also extends to persons and institutions
in the private sector as well. It is, in reality, a giant bull dog.
It is however, regrettable that, by the fact that the Commission’s decisions
have the status of recommendations only to authorities concerned, and therefore
of no binding and biting effect, our bulldog-the Commission, has been effectively
rendered toothless bulldog. That has been vindicated by the Serengeti incident82,
where its order to have the residents there compensated by the government for
the damage caused to the properties of such residents, was publicly disputed by
the Attorney General on behalf of the Government.
The fact that the Commission has power to institute proceedings in a court of
law is not enough. For the decisions in such cases are those of the court over
which it has no control and the Courts may have different perception on the
basis of different evidential criteria. What, in my view, could have been done to
make the Commission more effective as a watchdog against violations of Human
Rights and Maladministration, is to make its decisions enforceable by the High
Court as decrees of such Court.
In spite of such short-comings, the Commission remains a valuable organ for
the promotion, preservation and protection of human rights in this country, first,
through its educational role to the general public, in promoting awareness of
human rights and how to go about in enforcing them, either through the courts
of law or itself; and second, no doubt by dint of its investigative function and
reporting power, it does thereby serve an effective deterrence role to potential
culprits.
It is also to be observed that the Commission’s educational role is very
challenging, bearing in mind the size of our country, the big current population

81 Art. 130(5) and 131(2) of the Constitution as read with S. 16(2) of the Act, cap 391, supra.
82 Ibrahim Korosso and 134 Others and the LHRC v. the District Commissioner and the Officer
Commanding District for Serengeti District and A.G, HBUB/S/1033/2001/2002 MARA.

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168 Mwaikasu

of over forty million people and the prevailing poor accessibility of

communication tools, like newspapers, televisions and Radios among our rural
people.
In the circumstances, it is my considered opinion that in order to accelerate
the speed of such sensitization of our people on human rights for the betterment
of their lives, and subject to availability of funds to meet necessary attendant
costs, the Commission would be well advised to enlist the assistance of other
professional lawyers of this country, instead of relying upon its own meagre
human resources, which could take years to realize and reach the majority of our
people.

Conclusion

In the upshot, it is, perhaps, fair to say that Africans, throughout the African
continent, have for years, been aware, and jealous of their fundamental human
rights but have not been able to clearly articulate them so as to confidently
defend them against transgressors before the relevant established organs. It is
with increased circular education and sensitisation of the people about human
rights that they will become the more able to articulate and jealously defend
their rights against violations of the same by any person so as to enhance their
dignity and promote justice and peace among their respective communities for
their sustained socio-economic development and happiness.

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