The Place of International Law in Human Rights Litigation in Tanzania

Introduction

This proposal will evaluate the application of international law principles and norms before courts and quasi-judicial organisations in Tanzania. This will expand on the currently existing Tanzanian scholarship on the subject. Justice Mwalusanya, one of the most renowned Tanzanian judges based on human rights cases, has outlined the hardships of citing international human rights instruments and overseas case law by saying that the issue is the country’s adherence to the common law (dualist) system in the event universal treaties are not acknowledged in the laws of the land.

 

In this proposal, the main concern will be the place of human rights and international law in Tanzanian legal framework, how courts have incorporated international human rights as an interpretive instrument, the way the new Commission for Human Rights and Good Governance has utilised international law within its quasi-judicial directive, and factors impacting the local application of universal law principles in Tanzania.

Client's Review

"I have to say that when I first heard about this company I was like "are they for real". I get in touch with them when I needed to write an essay. Here's the thing, I would usually write it by myself but this time I actually needed help. I was desperate and the deadline was imminent. The result was amazing."

reviewed Exclusive-Paper.com on December 13, 2017, via SiteJabberClick to see the original review on an external website.

International Law and Human Rights Norms in the Constitutional Framework

In the first place, the proposal seeks to establish whether Tanzania as a country is a dualist of monist country with regard to universal treaties. At this level, the main consideration is the Constitution of the United Republic of Tanzania drafted in 1977. However, it would be imperative to trace the background of the constitutional provisions, essentially those of basic rights and freedoms. The assessment will incline both on the political and legal commitments in Tanzania according to international law standards.

From a political perspective, soon after independence, Julius Kambarage Nyerere (who was the prime minister of Tanganyika by that time) travelled to New York to address the United Nations, General Assembly. Within his speech, he outlined Tanzania’s obligation to international human rights customs, especially the Universal Declaration of Human Rights (UDHR). He clearly stipulated that Tanzania will try to use the UDHR as a foundation for both external and internal regulations. The human rights stipulated in the Constitution have their historical background in the Principles of Tanganyika African National Unity (TANU) and are mirrored in the Guide to the One-Party State Commission of 1963. At a later stage, these rights were infiltrated into the Constitution through Act 15 of 1984 that pioneered the Bill of Rights in the Constitution.

Based on the available literature reviews, Tanzania’s power to enter into agreements is delegated entirely to the executive arm of the government. This implies that the legislative branch of the government has no power to make treaties. As a result, in case of agreements should be part of the law in Tanzania without legislative sanctioning, wide law-making powers would be bestowed on the executive. However, according to Act 20 of 1992, the National Assembly was given the power to deliberate upon and approve all agreements that involve Tanzania as a state and the provisions that require sanction. The provisions provide proof that Tanzania is a dualist country and that universal law agreements do not have the force of law unless they are incorporated within the domestic law.

In essence, the Tanzanian parliament has to adopt permitting laws to give effect to a universal treaty. This can be accomplished in three ways:

  • (a) provision of an agreement may be incorporated in the text of an Act of Parliament;
  • (b) the treaty may be incorporated as a framework to a statute;
  • (c) a permitting Act of Parliament may give the executive power to endorse a municipal law through proclamation.

It is evident that, since 2008, Tanzania has transited from a restrictive human rights system to the open regulation human rights regime. As a result, judges and advocates will not hesitate to draw reference on international human rights agreements as endorsed by the state and localised.

Get 24/7 Free consulting

Courts and International Human Rights Law

Basically, when the courts draw reference to foreign case law, they are only guided and persuaded by such authorities since the authorities have no binding obligation to the courts. In the same way, international human rights tools, especially those that Tanzania has sanctioned, and universal law standards are applied so that it can guide constitutional interpretation. Universal agreements are interpretative equipment only if they remain in line with the constitution. The obligatory law is that enacted by the parliament with the constitution as a prerequisite, and judicial precedents from the Court of Appeal and High Court of Tanzania.

The former Chief Justice of Tanzania, Francis Nyalali, held in Attorney-General v Lesinoi Ndeinai and Joseph Selayo Laizer and two others that the moment fundamental human rights are at risk or the problem of interpretation of a constitutional provision come up, consideration should be given to foreign case law. He said this after considering the fact that human rights are the same everywhere only diverging on conditions under which they exist. According to him, international law had a role to play as well, even prior to the introduction of the Bill of Rights.

Similarly, the courts have surpassed just drawing reference to international agreements and utilised case law from universal courts in interpreting constitutional provisions. For instance, in the case of Peter Ng’omango v Gerson MK Mwangwa and the Attorney-General, the High Court interpreted the right to justice provided in article 13 of the constitution based on the case-law of the European Court of Human Rights.

Another incident in which the High Court cited and incorporated decisions of regional human rights organisations is that of Christopher Mtikila and Others v The Republic. This petition was filed in 1993 by Mr Mtikila in the High Court of Dodoma. He sought an affirmation that the citizens of Tanzania are entitled to contest for the political posts of president, Member of Parliament and local government councillor regardless of belonging in a political party or not. The main objective was to allow independent candidates to vie for electoral positions.

Guarantees

Exclusive-Paper.com is a leading custom writing service, the professionals of which are always ready to write an essay, research paper, book report or any other kind of academic papers writing. You may rely on us - Exclusive-Paper.com will deliver the best orders strictly on time. Our highly-educated professionals will do their best to help you receive the highest grades.

The ruling was in his favour. During the interpretation of the ‘claw-back clauses’ in the Bill of Rights of the Constitution, the court asserted that the constraint that claw-back clauses exert regarding the enjoyment and inflicting of fundamental rights should be accompanied by enough safeguards and efficient leverage against subjective interference. In the same way, the court observed that this perspective is as well “taken by the European Court of Human Rights.” In addition, the court supported its decision by referring to article 19(3) of the ICCPR.

Furthermore, the courts have referred to ‘soft law’ principles in some cases like Republic v Mbushuu alias Dominic Mnyaroje and Another that concerned the issue of the constitutionality of the death sentence. During the discussion on the right to life and the inhibition against torture, the High Court construed the principles of the Constitution with regard to the provisions of International Human Rights tools and the rulings from overseas states and regional human rights organisations. Reference was not only drawn to agreements and case regulation, but also to the Bangalore Principles, the Declaration of Stockholm (1977) that proclaimed the death penalty as an inhuman, demeaning and brutal form of punishment and the decision reached by the United Nations Human Rights Commission at its 1989 session that affirmed these results.

Want an expert write a paper for you
Talk to an operator now
Start live chat now

The Court stated that the death penalty was unconstitutional based on the inhuman, demeaning and brutal nature. However, the Court of Appeal did not go against this but stated that the penalty was based on the constitution due to the limitations clause stipulated in article 30 of the Constitution.

A number of cases mentioned above show that the courts in Tanzania have referred to international human rights law even when not determinative for the results of a case. For example, in BAWATA v Registrar of Societies, the petitioners stated that the government’s action of deregistering a National Women’s Council called BAWATA, Swahili acronym (Baraza la Wanawake Tanzania) was against the constitution through violation of articles 13(6)(a), 18 and 20 of the Constitution. These articles provided the right to a fair hearing, freedom of expression and association, and assembly in that order. They additionally argued a violation of principles in international agreements especially the ICCPR, the African Charter and CEDAW. As a result, the Court ruled in favour of the petitioners.

Quasi-Judicial Mandate

This mandate was established by the Commission for Human Rights and Good Governance founded by law in 2001. The Quasi-Judicial mandate is charged with the responsibility of hearing complaints on human rights violations stipulated under section 15 of the Act. Since its establishment, the Commission has heard and offered recommendations on just one complaint. The complaint was about the right to property ownership, especially the right to own land and fair reimbursement for loss of land after being evicted forcefully, and crops destroyed by the state authorities and agents.

Within the recommendations during Nyamuma case, the commission in the results for the complaint drew reference to the South African case of Government of the Republic of South Africa & Others v Irene Grootboom & Others and cited the provisions of equality before the law, the right to ownership of property, the right to health and rational standards of living as stipulated and protected by the Constitution and international human rights tools. As much as counsel for the complaints entirely depended on the provisions of international human rights instruments, the Commission just made a cursory mention of such agreements. It was recommended that the state reimburse victims of forced eviction. Since the recommendations have not been implemented, the case is currently before the Land Division of the High Court so that enforcement can be done.

Try VIP services or become a VIP client, benefit from the exclusive opportunity at a very reasonable price. Limited time offer - order a zingy VIP package with a 30% discount online!

Factors Influencing Domestic Application of International Law Principles

Challenges faced in human rights legal actions in Tanzania include laws passed by the parliament that do not support decisions by the courts, clawback clauses found in the constitution, lack of awareness on human rights based on insufficient literature, the dualist personality of Tanzania as it concerns treaties and the ability of the courts to identify some rights by law, especially socio-economic ones. These have resulted in some judges, magistrates and advocates not whole-heartedly agree to arguments about human rights agreements even though at times they are endorsed by the state. It can be argued that it is because some of them have not been incorporated into municipal law.

At the time of their college and university education, some of the Tanzanian judges, magistrates and advocates were not exposed to the International law, and most particularly, human rights. It can be largely attributed to the fact that in the past international law was not a compulsory subject as opposed to the current time where all Tanzanian law students must take the subject as a core component of the studies. Even while the subject has been made a key component of law studies, it will not impact effectively on the students because it does not give enough chance for the students to the master the concept of international law.

For instance, the four components of international law; public international law, human rights law, humanitarian law and refugee law are compacted into one subject. It makes it difficult for all components of the related subjects to be taught effectively in a period of one year. Based on the fact that each subject has its own requirements, there is a need for them to be taught separately. Public international law should be the basis before others are considered.

Conclusion

This analysis has looked at the place of international law in the eyes of the Tanzanian law courts and the Commission of Human Rights and Good Governance. It has been established that Tanzania has a dualist perception as it concerns international law. International law does not have a direct effect o decision by the courts. The courts apply international law concepts in interpretation to interpret domestic human rights based on the constitution. Courts have not undertaken to deeply interpret international law. It is proposed that Tanzanian law tools engage in using international law in interpreting human rights even if some have not been domesticated.

Affordable Legal Case Brief Writing Services

Our Benefits
  • 300 words/page
  • Papers written from scratch
  • Relevant and up-to-date sources
  • Fully referenced materials
  • Attractive discount system
  • Strict confidentiality
  • 24/7 customer support
We offer for Free
  • Free Title page
  • Free Bibliography list
  • Free Revision (within two days)
  • Free Prompt delivery
  • Free Plagiarism report (on request)
scroll to top call us
live-chat-button
Chat with Support