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Contradictory Developments in the Teaching and Practice of Human Rights Law in Tanzania1

Published online by Cambridge University Press:  28 July 2009

Issa G. Shivji
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Extract

The Bill of Rights is a novelty in Tanzania. As is well-known, Tanzanian Constitutions from independence to 1984 did not contain a bill of rights. Partly for this reason, legal discourse, whether in teaching or in practice, did not centre on rights issues particularly in the relationship between the state and citizen. At the Faculty of Law, University of Dar es Salaam, there developed an approach to teaching which the university calendar refers to as “the historical, socio-economic” method. The socioeconomic method emerged in contrast to the “law and development” approach which was a manifestation of the modernization theory on the legal plane. Neither of these revolved around the question of rights. Put rhetorically, “law and development” saw law essentially as an instrument of social change while the “socio-economic method” regarded law as an instrument of the ruling class. This may be a little over-simplified, but I believe broadly represents the main points of departure of, and contention between, the two schools—at least at that time at the Dar es Salaam Faculty.

Type
Research Article
Information
Journal of African Law , Volume 35 , Issue 1-2: RECENT CONSTITUTIONAL DEVELOPMENTS IN AFRICA , Spring 1991 , pp. 116 - 127
Copyright
Copyright © School of Oriental and African Studies 1991

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References

2 I will be dealing with the mainland part of the Union only. Zanzibar has its own constitutional peculiarities, both historical and contemporary, which need to be treated separately. The Bill of Rights was first inserted in the text of the Constitution by the Fifth (sic—the number ought to be “Fourth”) Constitutional Amendment in 1984 (see Act No. 15 of 1984). Its justiciability was suspended for three years ostensibly to let the government put its house in order. For this justification see the speech of the then Minister of Justice and Attorney-General Lubuva, D. Z. reproduced in (1988) 14(2) Commonwealth Law Bulletin 853Google Scholar.

3 Legal Aid Committee, “Bill of Rights” in Essays in Law and Society, Dar es Salaam, 1985, 11–15Google Scholar.

4 For a detailed discussion see I. G. Shivji, “Law, Democracy and the Rights-Struggles: Preliminary Reflections on the Experiences at the University of Dar es Salaam”, unpublished paper (August 1990) and “Tanzania: The Debate on De-linking” in Mahjoub, Azzam (ed.), Adjustment or De-linking? The African Experience, London, 1990. 49–68Google Scholar. See also Ghai, Y. P., “Law, Development and African Scholarship” (1987) 50 M.L.R. 750–76Google Scholar; Kanywanyi, J. L., “The Struggle to Decolonise and Demystify University Education: Dar's 25 years Experience focused on Faculty of Law (Oct. 1961–Oct. 1986)”Google Scholar, paper presented to the Silver Jubilee Seminar, Der es Salaam: Faculty of Law (mimeo) and articles in Shivji, I. G. (ed.), Limits of Legal Radicalism: Reflections on Teaching Law at the University of Dar es Salaam Dar es Salaam, 1986Google Scholar.

5 M. O. A. Owori in an LL.M. dissertation (Dar es Salaam, 1982) promisingly titled The Hegemonic Function of Ideology and Law in a Post-Colonial State: Tanzania raises the issue but fails to address specifically the question of law-form per se as an ideology and, in my opinion, incorrectly assumes its hegemonic function in Tanzania. For an exactly contrary view see the works cited in the next two footnotes.

6 Ghai, Y. P., “The Rule of Law, Legitimacy and Governance” in (1986) 14 International Journal of the Sociology of Law, 179–208Google Scholar; Shiyji, I. G., “Equality, Rights and Authoritarianism in Africa” in MacCormick, N. & Bankowski, Z. (eds.), Enlightenment, Rights and Revolution: Essays in Legal and Social Philosophy Aberdeen, 1989Google Scholar and Shiyji, I. G., “The Politics of Liberalization in Tanzania: Notes on the Crisis of Ideological Hegemony” in (1990) 1 TAAMULI, 138–152Google Scholar.

7 See n. 4 above.

8 Dworkin, R., Law's Empire, London, 1986, passimGoogle Scholar.

9 Okoth-Ogendo, H. W. O., “Constitutions without Constitutionalism” in Shivji, I. G., (ed.), The State and Constitutionalism: An African Debate on Democracy, Harare, 1991Google Scholar.

10 Depending on the individual interests of lecturers, Public International Law has on and off covered international human rights law.

11 Some articles are carried in the Special Issue of the Eastern Africa Law Review, vols. 11–14, 1978–1981Google Scholar.

12 Shivji, I. G., “Voluntary Legal Aid in Tanzania: Retrospect and Prospect” in Tanzania Notes and Records, vol. 90+91: 9–33 (1984)Google Scholar and Kapinga, W. B. L., “A Survey of Voluntary Legal Assistance for the Poor in Tanzania” in [1985] Third World Legal Studies, 179–94Google Scholar.

13 Many of the legal aid decisions remain unreported. Among the leading ones which have been reported are Wejja v. Attorney-General [1982] T.L.R. 35Google Scholar and Hqji v. Nungu L.R.C. (Const.) 224Google Scholar.

14 Kanywani, op. cit., has drawn attention to this.

15 See, in particular, Peter, C. M., Human Rights in Africa: A Comparative Study of the African Charter and the New Tanzanian Bill of Rights New York, 1990Google Scholar and his recent paper “Five Years of Bill of Rights in Tanzania; Drawing a Balance-Sheet” presented to the Conference on Constitutionalism and Human Rights Law in Africa organized by the African Society of International and Comparative Law, Arusha 2–504, 1991Google Scholar.

16 See, for instance, the Special Issue of the Eastern Africa Law Review (1989) carrying articles on the Court of Appeal; Peter's writings cited in the preceding footnote and my own Tanzania: The Legal Foundations of the Union Dar es Salaam; 1990Google Scholar.

17 See Shivji, I. G., State Coercion and Freedom in Tanzania Lesotho, 1990 and Peter, C. M., “Balance-Sheet”, op. cit.Google Scholar

18 Cf. Shivji, I. G., “The Pitfalls of the Debate on Democracy” in IFDA Dossier, 10–11. 1990: 55–58Google Scholar and articles cited therein.

19 D.P.P. v. Daudi Pete Miscellaneous Criminal Appeal No. 28 of 1990Google Scholar (unreported), hereinafter referred to as Daudi Pete.

20 See s. 5(2) of the Constitution (Consequential, Transitional and Temporary Provisions) Act, No. 16 of 1984.

21 Chamckua Marwa v. Officer i/c of Musotna Prison. Misc. Criminal Cause No. 2 of 1988Google Scholar, High Court at Mwanza (unreported). This decision was quashed on appeal on the ground that the High Court had not afforded sufficient opportunity to the state attorney to argue the constitutional point; it was returned to Mwalusanya, J., for a re-hearing (see Attorney General v. Marwa Magori, Court of Appeal, Criminal Appeal No. 95 of 1988, unreportedGoogle Scholar.) The case was re-heard, this time the Legal Aid Committee representing the deportee. The judge arrived at the same decision as before. The matter is now pending on appeal before the Court of Appeal.

22 These groups originally arose as a reaction of the rural folks to cattle thefts which the state was failing to deter. They have now been more or less co-opted and incorporated in the state machinery without constitutionally valid legal instruments. These have been numerous cases before the courts charging members of sungusungu with grievous abuses including unlawful fining, torture and deaths. For a recent example see the record of appeal and the High Court and Court of Appeal decisions in the Court of Appeal case of Irneri Maleva v. Dima Nhorongo Civil Appeal No. 17 of 1990Google Scholar (unreported). For the debate on sungusungu see Abrahams, R., “Sungusungu: Village Vigilante Groups in Tanzania” (1987) African Affairs 86, 343: 197–96Google Scholar and Campbell, H., “Popular Resistance in Tanzania: Lessons from the Sungusungu”, paper presented to History Seminar, University of Dar es Salaam, 08, 1987 (mimeo.)Google Scholar

23 See Mwita v. Mresi Civil Case No. 15 of 1988Google Scholar, unreported, High Court at Mwanza and Nyamuganda v. Kilingo, Civil Case No. 22 of 1988Google Scholar, High Court at Mwanza, unreported. Both of these are discussed in Shivji, State Coercion, op. cit., and Peter, “Balance-Sheet” op. cit.

24 The leading decision is Daudi Pete v. R.. Misc. Criminal Cause No. 80 of 1989Google Scholar, unreported, High Court at Mwanza. See also a later decision by Mapigano, J., to the same effect though in a much more measured tone, Kazembe v. Msangi, Misc. Criminal Cause No. 41 of 1989Google Scholar, High Court at Dar es Salaam, unreported. For reasons I am not able to establish Mapigano, J. 's ruling does not refer to Daudi Pete which was decided almost seven months earlier. For an example of a rather narrow conception of, and an unsympathetic attitude to, fundamental rights entrenched in the Constitution, see the judgment of Msumi, J., in another bail case, R. v. Pegerin Mrope Misc. Criminal Cause No. 43 of 1989Google Scholar, High Court of Tanzania at Dar es Salaam, unreported. In the later case, with respect, the judge confuses denial of bail by a court of law after the accused has been given a hearing with the statutorily mandatory denial of bail in certain specified offences without a hearing. Msumi, J., fails to appreciate this crucial difference thereby virtually reducing to nought the procedural rights and principles of natural justice embodied in article 13(6)(b) of the Constitution.

25 Masatu v. Mwanza Textiles Civil Case No. 3 of 1986Google Scholar, High Court at Mwanza (unreported). This decision however has been quashed by the Court of Appeal on different grounds, see Masatu v. Mwanza Textiles, Court of Appeal, Civil Appeal No. 8 of 1988Google Scholar; and Kaare v. Mara Industrial, Civil Case No. 30 of 1986Google Scholar, High Court at Mwanza, unreported. It is interesting to note that both these decisions were made before the Bill of Rights became justiciable and yet Mwalusanya, J., refers to the “right to work” enshrined in the Constitution. Although there is no explicit discussion in the judgments on this issue, it is submitted, with respect, that MWALUSANYA, J., was correct in referring to this right as an aid in the interpretation of other provisions of the relevant statute and common law principles. As Bhagwati, J., argued in Minerva Mills v. Union of India AIR 1980 Supreme Court 1789Google Scholar, although certain fundamental rights may not be justiciable, they do not cease to be rights. It is only that one cannot found a cause of action on them; but those unjusticiabie provisions may be used for construing other provisions of law.

26 Ephrahahim v. Pastory Civil Appeal No. 70 of 1989Google Scholar, High Court at Mwanza, unreported.

27 Chamchua, 11–12 of the cyclostyled judgment. Emphasis in the original.

28 Ibid, at p. 16.

29 See Magori cited and explained in n. 21, above.

30 Mt. 43875 Pte. Ilungu & Others, v. R.. Criminal Case No. 1 of 1986Google Scholar, High Court at Mwanza, unreported, p. 2. Emphasis in the original.

31 Sangija & Others v. R.. Criminal Appeal No. 72 of 1987Google Scholar, High Court at Mwanza, unreported.

32 Daudi Pete, op. cit. at p. 16Google Scholar.

33 Thompson, E. P., “The Rule of Law” in Beirne, P. and Quinney, R. (eds.), Marxism and Law New York, 1982, 135Google Scholar.

34 Picciotto, S., “The Theory of the State, Class Struggle and the Rule of Law” in Beirne and Quinney, (eds.), op. cit. at 169–180Google Scholar.

35 Sayer, D. and Corrigan, P., “How the Law Rules: Variations on Some Themes in Karl Marx” in Fryer, B.et. at. (eds.), Law, State and Society, London, 1981Google Scholar.

36 See Peter, “Balance-Sheet”, op. cit.

37 See, for instance, Haji Athumani Issa v. Mututa, Court of Appeal, Civil Appeal No. 9 of 1988Google Scholar cited by Mwalusanya, J., in R. v. Nyeisao Misc. Criminal Cause No. 6 of 1990, High Court at Mwanza. The latter judgment by MWALUSANYA, J., is very intriguing and uncustomary, to say the least. Therein the judge goes out of his way to plead with the Court of Appeal not to entertain “technical” arguments of the Republic in the pending appeal against his decision in Daudi Pete's case. The Court of Appeal has now firmly decided that the absence of rules need not prevent an aggrieved person from petitioning the court for breach of his constitutional rights, see D.P.P. v. Daudi Pete.

38 Examples of this in extra-judicial statements by the Attorney General and others are cited in Shivji, , State Coercion, op. cit. at 11Google Scholar and Peter, , “Balance-Sheet”, op. cit. at 24–28Google Scholar.

39 See Mbunda, L. X., “Limitation Clauses and the Bill of Rights in Tanzania”, (1980) 4 Lesotho Law Journal 153–170Google Scholar. For a discussion of derogation and claw-back clauses see Gittleman, R., “The Banjul Charter on Human and Peoples' Rights: A Legal Analysis” in Welch, C. E. and Meltzer, R. I. (eds.), Human Rights and Development in Africa, Albany, 1984Google Scholar.

40 Shivji, , State Coercion, op. cit. at 25et. seqGoogle Scholar.

41 This is discussed in Peter, , “Balance-Sheet”, op. cit. at 14–16Google Scholar.

42 Peter, , “Balance-Sheet”, op. cit. at 41–46Google Scholar. Precisely for these reasons I have argued that a free and fruitful debate on democracy is virtually crippled ab initio if the statute book continues to have on it very oppressive laws on the freedom of expression and association, see my “Pre-conditions for a Popular Debate on Democracy in Tanzania”, paper presented to the Law Society Seminar, September, 1990, mimeo. forthcoming in Eastern Africa Law Review.