FA/U.20/28
PERIODIC REPORT SUBMITTED BY THE GOVERNMENT OF TEE
DNITED REPUBLIC OF TANZANIA UNDER THE OAU CHARTER ON
HUMAN AND PEOPLES RIGHTS
INTRODU:CTIO N
This is the first report submitted by the Government of the
United Republic of Tanzania to the African Commission on Human and
Peoples Rights, in conformity with Article 62 of the African Charter
on Yuman and Peoples Rights.
The repirt has been prepared in keeping with guidelines issued
by the Commission vide its letter Ref. AYR/COM/H1R/CM/AD 38 of the 20th
February, 1990.
1. Reception and Dissemination of the
Charter to the public
Tanzania signed the charter on the 51st May, 1982 and ratified
the same on the 18th February, 1984.
Tanzania has always subscribed to the ideals of both the OAU Charter
on Human and Peoples Rights as well as to those contained in the UniverSal
Declaration on Haman Rights. Both the Interim Constitution of 1965 and its successor the Constitution of the United Republic of Tanzania of 1977
contained a bill of rights in their preambular paragraphs, which set out
the principal human rights guaranteed to citizens by the Tanzanian Government.
However, the inclusion of a Hill of Rights in the preamble was a major
drawback on enforcement of these rights by the citizens. This was mainly
JEue..to the_perennial . controversy of whether or nota.preambIe -fOris pa of a
constitution. For all practical purposes, the preamble, in Tanzania, was.
not considered as forming part of the Constitution. The Bill of Rights thus
ended by being seen as merely a guiding light for what Tanzania was aspiring
for in the field of Human Rights.
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In 1983, the Government of the United Republic of Tanzania made
a proposal to amend the Constitution in order to incorporate the Bill
of Rights as part of-the substantive body of the Constitution, rather --
than in the preamble as hitherto had been the case. A debate was opened
and public opinion was sought through the mass media and party meetings
at all levels, where the public was given an opportunity to cement on
the proposed amendments.
Tanzanians all over the country responded positively, coming out
with different views and opinions as to how best human rights could be
safeguarded and enforced in the United Republic of Tanzania.
Finally by the Act of the Fifth Amendment to the Constitution of
the United Republic cf Tanzania, (Act 14.. 15 of 1984), the Bill of Rights
was incorporated into the text of the 1977 Constitution, and the act came
into force on the 15th March, 1985.
2. Legislative, Administrative and Judicial
Measures taken to effect implementation
of Raman Rights and difficulties encountered
in promoting them
The application of the Bill of Rights in the Constitution was
initially suspended for a period of three years under Section 5 (2) of
the Constitution, (Consequential, Transitional and Temporary provisions)
Act of 1984. This period was considered as necessary in order to enable
the Government to review all acts and to amend or repeal those found to
be ultra vires to the Bill of Rights in the Constitution.
However, with effect from the 1st March, 1988, Tanzanians can
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enforce the basic rights provisions contained in the Bill of Rights,
by petitioning the High Court which, under section 30 (3) of the
"Constitution, has excluSive original jurisdiction in such proceedings.
In addition to the amendments to the Constitution, the Preventive
Detention Act of 1962 has been amended to bring it more into line with
the provisions of the Constitution and the African Charter on Haman
and Peoples Rights. A detainee is now able to petition the High Court,
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to challenge the legality of his detention on any ground under section 3
of the Preventive Detention Act.
Furthermore, a detainee has to be informed of the grounds of his
detention not later than fifteen days from the date of his detention,
6 (1) and
failure of which the detainee must be released under section
also be afforded on opportunity
6(2) of the same Act. The detainee must
to his
• of making a written representation to the President with respect
detention.
Finally, the nanes of all detainees have to be published in the
Gazette, under section 6A of the Act.
Amendments have also been made to the Criminal Procedure Code which
replaced by the Criminal Procedure Act of 1985, to give
was repealed and
investigations.
to the rights of accused persons during
greater protection
rights do occur occasionally, only two
While violations of human
Court as involving the
cases have so far been cited by Judges of the High
violation of basic rights. The major obstacle encountered in promoting
ority of
human rights, is the low efteational level of the vast maj
the rural popUlation and a lack of awareness of the basic rights of
citizens. It is only a small percentage of the population living in
urban areas which has an inkling of human rights and the entoreenent
mechanism in Tanzania. There is therefore, need for publIssising
further, human rights enforcement mechanisms in Tanzania.
high costs involved in instituting petitions in the High
The
Court is a contributory factor in dissuading people from seeking redress
the violation of basic rights.
from the High Court in cases involving
uninofthe
3. Orisa;tior
_____1a-----ndcti
Courts in Tanzania
The Legal system of Tanzania is a four tier system with the
following blarachyl
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'The Court of Appeal of the
United Republic of Tanzania
The High Court of the United
Republic of Tanzania
District and Resident
Magistrates Courts
Primary Courts
(i) The Court of Appeal of the United Republic
of Tanzania
The Court of Appeal is the supreme court of the land. It has got
only appelate jurisdiction on cases emanating from the High Court, Cases
in this court are heard by three Justices of Appeal.
(ii) The HiEh Court of the United Republic
of Tanzania
The High Court has original jurisdiction in cases of murder and
in cases involving violations of human rights, and appelate jurisdiction
in other instances whereby appeals emanating from District and Resident
Magistrates Courts are determined. Proceedings in the High Court are
presided over'by High Court Judges.
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S.
TEE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA
The Constitution of the United Republic of Tanzania is the basic
Law of the Land. It,establishes the Government of the United- Republic
of Tanzania, and other state organs and provides for their powers. The
constitution also proclaims the supremacy of the Party as well as for
the establishment of the Judiciary and the Legislative branches of the
Government.
Briefly, the Constitution is divided into ten chapters. These
are further subdivided_ into parts dealing with specific matters. The
following is a rough breakdown of the constitutional provisions:
Chapter One has three parts. The first part proclaims the
United Republic of Tanzania, composed of Tanzania mainland and
Tanzania Zanzibar, including the territorial waters thereof.
This part also declares that Tanzania is a democratic and
socialist state with CCM being the sole political party, and final
authority in all matters in Tanzania. Thus, all political activity
within and concerning the United Republic of Tanzania can only be
conducted under the auspices of CCM.
Finally, Part One of the Constitution provides for the separation
of powers between the Executive, the Judicial and the Legislative.
branches of government.
The Second part, sets out the fundamental objectives and guiding
principles of state policy.
The last part of the chapter enunciates the basic rights and
duties of Tanzanians. These are basically the same as those recognised
by the OAU Charter on Human and Peoples Rights, and include interalia,
the right to life, the right to equality, the right to freedom of
conscience, the right to work as well as the duties of the individual
to society.
Chapter Two provides for the Executive branch of the Government.
Part one deals with the President, who is both the Head of Government
and Commander-in-Chief of the Defence Forces. He is vested with
executive power over all union matters, as set out in the First
Schedule to the Constitution. This part also spells the aualifications
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for election as President, the discharge of Government business,
Presidential powers and functions as well as the protection of
the President from legal proceedings in respect of anything done
or purported to be have been done whilst in office.
Part II of this chapter, deals with the offices of the two
Vice Presidents, the Principal Assistants of the President in
respect of all the affairs of Tanzania. This provides for the
manner of determining who shall be designated as the First Vice
President and Second Vice President. One of the Vice Presidents is
also the President of Zanzibar while the other is to function as Prime
Minister of the mainland.
Part III deals with the Office of the Prime Minister, the
Cabinet and the Government. The Prime Minister is appointed by the
President from amongst members of the National Assembly and has
responsibility over the day to day running of the affairs of the
Government. He is also the leader of Government business in the
National Assembly.
The Cabinet is the principal advisory organ of the President.
It is composed of the Vice Presidents and all the Ministers who are
appointed by the President in consultation with the Prime Minister.
Its meetings are presided over by the President.
Chapter three provides for the Legislature, described as
consisting of two parts, namely the President and the Members of
Paiiament. The National Assembly 4,s charged with responsibility of
supervising and advising the Government and its agencies in thl
exercise of their functions.
Part II of chapter three sets out the various categories of
the Members of the National Assembly, together with the qualifications
for Membership, and their tenure of office, as well as the procedures
for the election of these members.
This chapter also sets out the procedures, powers and privileges
of the Parliament, including the offices of the Speaker and Deputy
Speaker and their roles. Furthermore this part describes the
procedure - in the National Assembly, the quorum needed at every
sitting, as well as the mode of the exercise of legislative power.
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Lastly, chapter three protects the freedom of speech of the
Members of Parliament, in the discharge of their functions.
Chapter four proclaims the Revolutionary Government of
Zarmibarl the
• Zanzibar Revolutionary Council, ,and the House
of Representative of Zanzibar. The Revolutionary Government
under the President of Zanzibar, has executive authority over
all matters for Tanzania Zanzibar, which are not union matters.
Other provisions relating to the President of Zanzibar follow
closely the provisions relating to the Presidency of the United
Republic as described under chapter 2.
Part IIIcf this chapter vests legislative authority in
respect of all matters in and for Tanzania Zanzibar other than
Union Matters in the House of Representatives of Zanzibar. The
7nion discharges functions similar to those of the National
Assembly of the Union Government.
Chapter five of the Constitution gives provision for the
establishment of the High Court, the Judicial Services Commission,
the High Court of Zanzibar, the Court of Appeal of the United
Republic of Tanzania and the Special Constitutional Court of
the United Republic.
The High Courts of Tanzania and Zanzibar have unlimited
juriddietions to hear and determine civil and criminal cases over
their respective territories. The High Court of Tanzania mainland
also has original jurisdiction to determine eases of the abuse
of basic rights provided in chapter one.
,,Chapter.Pive.f_Irthermore, sets-out the qualifications required
for appointment to the Office of Judge and for the tenure of such
Judges as well as their age of retirement.
The Court of Appeal is the supreme court of the land having
only appelete jurisdiction on eases emanating from the High Courts
of Tanzania mainland and from Zanzibar. It is headed by the Chief
Justice who has overall control over the Judiciary.
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Cases in the Court of Appeal are heard by three Justicds of
Appeal who like their colleagues in the High Court enjoy security of
tenure.
Finally part vi of Chapter Five establishes the Special Constitutional
Court of the _United Republic to exercise'jtrisdiction in hearing and Making
reconciliatory decisions in respect of disputes submitted before it.
Chapter Six makes provisions for the establishment, of the
Permanent Commission of Enquiry, the Ombudsman (PCE) and the Leadership
Code Enforcement Commission. The PCE is empowered to investigate cases
of misuse of power by public officials, while the Leadership Code
Enforcement Commission is there to ensure that leaders abide by the
regulations contained in the Leadership Code.
Chapter Seven contains provisions relating to finance, including
contribution to and allocation from the revenue of the United Republic,
as well as expenditures to be charged from the consolidated fund. The
Controller and Auditor-General of the United Republic of Tanzania, who
enjoys security of tenure and can only - be removed for inability to
discharge functions, after following the procedures, set out in the
removal of Judges.
Chapter Eight makes provision for the exercise of peoples power
through Local Government Authorities and Local Councils,'
Chapter Nine provides for the Armed Forces and the powers of the
Commander-in-Chief. It also prohibits the establishment of irregular
forces in Tan7Lnia.
Lastly, Chapter Ten contains the miscellaneous provisions
including the First Schedule which . pecifies Union matters of the
United Republic of Tanzania. These include interalia, matters
relating to the Constitution, External Affairs, Defence and Seautly,
the Police, Emergency powers, External Trade anti. Borrowing, currency
matters, mineral oil resources and the Court of Appeal of the
United Republic of Tanzania.
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(iii) The District and Resident Magistrates
Courts
District and Resident Magistrates Courts have both original as
well as appelate jurisdiction over cases from Primary Courts. These
courts are-presided_over'by Distri,A-Magistrates andAtesidmatlUestratesrespectively.
<iv) Primary Courts
primary Courts have originni jurisdiction in customary and simple
disputes and are presided over by Primary Courts Magistrates.
(v) The Bar
The Bar consists of Private Advocates, Lawyers - in the Tanzania
Legal Corporation, a public corporation, and State Attorneys in the
Attorney General's Chambers.
There is in existence, in addition, the Legal Aid Committee in
the Faculty of Law of the University of Dar es Salaam which gives legal
assistance to low income earners having legal problems.
4. Texts governing the Judicial
System in Tanzania
The main provisions governing the judicial system in Tanzania
are to be found in Chapter Five of the Constitution of the United
Republic of Tanzania, as amended by Act No. 15 of 1984.
Sections 108 - 128 of the Constitution provide for the
establishment of the Court of Appeal, (section 117(1), The High
Court (Section 108 (1) and the Judicial Services Commission
(section 112 (1) ).
Under section 118 (1), the Constitution provides for the
Office of the Chief Justice, while the offices of Principal Judge
and other Judges of the High Court are provided for in section 109(1).
Furthermore the Constitution also provides for the establishment
of the Judicial Services Commission, responsible for the appointment,
46.160410
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disciplining and dismissal of District and Resident Magistrates under
section 112(1), as well as for the Organisation and functioning of the
various courts.
On the other hand, Pimary Courts are co7;obrolled by the Judicial
Services Special Commission4;
Other texts guiding the operations of the courts are as follows:
(i)The Magistrates Courts Act 1984
(ii)The AlTelate Jurisdiction Act 1979
(iii( The High Court Rules
(iv)The Crimin;,1 Procedure Code
(v)The Penal Code
(vi)The Civil Procedure Code
(vii)The ivocates Ordinance
Primary Courts Provisions relating to Civil Jurisdiction of
Primary Courts, 1963
(ix) Primary Court provisions relating to criminal jurisdiction of
Primary Courts, 1963.
5.
The Status of the Judiciary in Tanzania
There is a clear separation of powers between the Executive,
Legislature and the Judiciary in Tanzania, under section 4 (1) of the
Constitution. Though not expressly spelt out in the Constitution, the
judiciary is independent in the discharge of judicial functions.
The independence of the judiciary is guaranteed through the
security of tenure of judges which is entrenched in the Constitution.
Under section 109 (2), Judges are appointed by the President in consultation
with the Chief Justice of the Court of Appeal. However once appointed,
0,:judge_cannot.be removed from officeuntil,reaahing'the:age'Of retirement,
save for inability to perform his functions or for misbehaviour.
Where the question of removing a Judge from office arises, an
elaborate procedure set out in section 110 (6) must'be- -followed. Under
that section, the President must set up a Commission whose Chairman and
at least half of the members should be persons holding the office of
Judge of the High CourT, or the Court of Appeal of a Commonwealth country,
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to investigate the matter, and report its findings to the President.
It is only after the Commission has advised that a Judge be removed
after investigation that the President can proceed and reMC%iv him from
office..
Purthermorei,.,the emoluments of Judgesarecharged•froncthe- consolidated fund, and are therefore not the subject of debate by
'Parliament every year.
At a lower level, District and Resident Magistrates fall under
the Judicial Services Commission, composed of the Chief JI)stice who is
Chairman of the Commission, a Judge of the court at Appeal, and the
appointed by the President. The Judicial Services
twn n"• Commission is responsible for the appointment, discipline and dismissal
of mac'. magistrates.
These measures go a long way to ensure that court decisions are
based tirely on the evidence adduced in court, and are not influenced
by eit_er the Executive of Legislative branch of Government.
Please find enclosed herewith a brief commentary on the
Constitution of the United Republic of Tanzania*
o.c: MPA
Hon. Judge R.H. Kisanga - Court of Appeal.