EXAMINATION OF THE EFFECTIVENESS OT THE COMMISSION FOR HUMAN RIGHTS IN TANZANIA

TUMAINI UNIVERSITY

DAR ES SALAAM COLLEGE


FACULTY OF LAW AND HUMANITIES



A RESEARCH PAPER



EXAMINATION OF THE EFFECTIVENESS OF THE COMMISSION FOR HUMAN RIGHTS AND GOOD GOVERNANCE IN PROTECTION OF HUMAN RIGHTS IN TANZANIA FROM 2001-2006.

A CASE STUDY OF DAR ES SALAAM


CANDIDATE

NKUBA, SWEETBERT

REG NO:

TU/DARCO/LLB/05/348

SUPERVISOR:
NASSER MWAKAMBONJA (MR)

A Research Proporsal Submitted in Partial Fulfillment of the Requirement for the Degree of Bachelor of Laws (LLB) of Tumaini University Dar-Es- Salaam College.

JULY, 2008.







CERTIFICATION

The undersigned certifies that has read and hereby recommend for acceptance by Tumaini University Dar Es Salaam College a research paper entitled “EXAMINATION OF THE EFFECTIVENESS OF THE COMMISSION FOR HUMAN RIGHTS AND GOOD GOVERNANCE IN PROTECTION OF HUMAN RIGHTS IN TANZANIA FROM 2001-2006” in partial fulfillment of the requirements of LLB degree.


………………………………………….

NASSER E. MWAKAMBONJA (MR.)

SUPERVISOR























DECLARATION

I, SWEETBERT NKUBA; do hereby declare that this research is my own original work and has not been submitted for a degree in any other university.




Signed ………………………………………


Date…………………………………………



























COPYRIGHT

This research is copyright and may not be reproduced in completely or in part, stored in any retrieval system or transmitted in any form or by any means electrical, mechanical, photocopying, recording or otherwise without the express permission of the author or Tumaini University Dar Es Salaam College on that behalf in writing.


































ACKNOWLEDGEMENT

In writing this work, I have received valuable help from a variety of sources. It would be very difficult to list them by names generally I extend my sincere gratitude to all of them.

However, special thanks is due to my supervisor, Mr. Nasser E. Mwakambonja, whose tireless advice, help, patient and constant supervision, guidance and encouragements has made this research possible. I owe him unpayable debt.

Unique thanks to my fiancée, Edna David Mwihava, for her tolerance, love, care and encouragements, moral and material support which I could not find anywhere else.

I also extend my sincere gratitude to Mr. G.S. Ngwilimi for his comprehensive theoretical basics, Mr. Stolla for his material support and encouragement, Officers of the Legal and Human Rights Centre (LHRC), courts. The Commission for Human Rights and Good Governance (CHRGG).


I like to extend my thanks to librarians of the Tumaini University - Darco library, University of Dar Es Salaam faculty of Laws library who assisted me in collecting materials relevant to my research and data & Betty Stationery for their tireless typing and printing this work.

I thank Mr. Barnabas Lupande, Martine Masanja, Innocent Buzoya, Mr &Mrs. Abrahaman O. Kisigalile for their proof reading, Mr. Said Hamis Nnikumbukila (Sir), Connie, Geneviev, Consolata, Patrick, Juliana & Beatus Nkuba, Charles Machage, Hon. Lillian Rweyemamu,Mr and Mrs.Ally Kinyogori and Margaret Mwaseba for their material and Moral support.





DEDICATION

This work is dedicated to my father, CHARLES MBOJE NKUBA (chief) and my mother, MONICA LULI MASUNGA for their tireless support especially where the community perceived me wrong;





AND
To JOAQIUM MLEKWA GEDI, my true, best friend ever, an orphan, who was tortured and died unseeingly in my absence; whose advice and support made me go back to school, May the Lord Rest His Soul in Eternal Peace. Amen.
















ABSTRACT

Human Rights are fundamental Rights which a person acquires by virtual of being a human being.In Rev. Christopher Mtikila V. Attorney General (1995) TLR. 31, Lugakingira, J, had this to say;
“Fundamental Rights are not gifts from the State. They inhere in a person by reason of his birth and are therefore prior to the state and the law…”
Therefore, there are a number of mechanisms adopted by the International Community and under the national level for promotion and protection of human rights.

In Tanzania, the Commission for Human Rights and Good Governance was established specifically for promotion and protection of human rights in the country, however, how effective in promotion and protection of human rights the commission ought to be depends much on the law establishing it.

This work therefore goes further to examine the effectiveness of the Commission for human rights and good governance in Protection of human rights in Tanzania from 2001 to 2006. the work is moulded in five chapters whereas chapter one encompasses an introductory part of the research, chapter two is a portrait of the concept of human rights, its historical background in international and national level, this chapter also discusses the inclusion of the Bill of Rights in the constitution and protective measures established so far.
Chapter three discusses the establishment of the Commission for Human Rights and Good governance and its rationale and enforcement of its decision. Chapter four addresses the practical aspect of the law and examination of the decision of the commission generally, data is also presented and critically analysed. Chapter five entails a concluding remark of the study, and recommendations are given for measures to be taken or make the Commission to effectively protect human Rights in the country.




ABREVIATIONS/ ACRONYMS

A.G ………………….. Attorney General
Ch. D ………………….. Chancery Division
R ………………….. Republic
V/Vs. ………………….. Versus
Cr ………………….. Criminal
App ………………….. Application
S. ………………….. Section
Pg/pp ………………….. Page
HC ………………….. High court
PCE ………………….. Permanent Commission of Enquiry
TUDARCO ………………….. Tumaini University – Dar Es Salaam College
UN ………………….. United Nations
CHRGG ………………….. Commission for Human Rights and Good
Governance
CHRGGA …………………. Commission for Human Rights and Good
Governance Act
NOLA …………………. National Organization for Legal Assistance
LEAT ………………… Lawyers Environmental Action Team
TAMWA ………………… Tanzania Media Women Association
Op cit ……………….. ( Opere citato ) in the work mentioned above in
different pages
Ibid ………………. Ibidem/synonymously used as op cit and supra.
DSM ……………… Dar Es Salaam
TAWLA …………….. Tanzania Woman Lawyers Association
TGNP ………………. Tanzania Gender Networking Program
UDSM ……………….. University of Dar Es Salaam
HR ………………. Human Rights
NGO ………………. Non-Governmental Organizations
Vol. ………………… Volume
LLM ………………… Masters in Laws
LLB ……………….. Bachelor of Laws
DPO ………………. Danish Parliamentary Ombudsman
No. ……………….. Number
PGDL ……………….. Post Graduate Diploma in Laws
LHRC ……………….. Legal and Human Rights Centre
URT ………………… United Republic of Tanzania
TZ ……………….. Tanzania
UDHR ……………….. Universal Declaration on Human Rights
ICCPR ………………. International Convention on Civil and Political
Rights


CEDAW ………………. Convention on Elimination of All forms of
Discrimination Against Women
TShs. ………………. Tanzanian Shillings

ICC ………………. International Criminal Court
ICTR ………………. International Criminal Tribunal for Rwanda

ICTY ……………… International Criminal Tribunal for the former
Yugoslavia
B.C ……………… The years Before Christ
C ……………… Century
CCM ……………… Chama Cha Mapinduzi, The ruling Party
USA ……………… United States of America
WWI ……………… 1st World War
WWII ……………... 2nd World War
Anor. ……………… Another
Othr. ………………. Others
TLR ………………. Tanzania Law Reports
LRT ………………. Law Reports of Tanganyika
OAU ………………. Organization of African Union
TANU ………………… Tanganyika African National Union
J. ………………… Judge
Hon. ………………... Honorable
CUF ………………… Civic United Front


















LIST OF STATUTES

The Constitution Of The United Republic Of Tanzania, 1977 As Amended
.
The Constitution Of Zanzibar

The United Republic Of Tanzania Interim Constitution, 1965

The Commission Of Human Rights And Good Governance Act, No.7 Of 2001.

Basic Rights And Duties Enforcement Act, 1992

Constitution (Fifth) (Amendment) Act, 1984 (Act No. 15 0f 1984)

Constitution (Consequential, Transitional And Temporary Provisions) Act No. 16 Of 1984

The Permanent Commission Of Enquiry Act, (Act No.25 Of 1966)

The Preventive Detention Act, 1962.

The Regional Commissioners Act, 1962
.
The District Commissioners Act, 1962















LIST OF INTERNATIONAL CONVENTIONS

Universal Declaration on Human Rights, 1948

International Convenant On Civil and Political Rights, (Iccpr) 1966

International Convention On Economic, Social And Cultural Rights, 1966
The Convention On Genocide, 1948

The Convenants On Racial Discrimination, 1965

The Convention On Elimination Of All Forms Of Discrimination Against Women (Cedaw) 1979

Convention Against Torture, 1984

Conventin On The Right Of The Child, 1989

European Convention For The Protection Of Human Rights And Fundamental Freedoms, (1950)

The American Declaration Of The Rights And Duties Of Man, 1948

Convention On Human Rights, 1969

African Convention On Human And Peoples’ Rights, 1981









CERTIFICATION

The undersigned certifies that has read and hereby recommend for acceptance by Tumaini University Dar Es Salaam College a research paper entitled “EXAMINATION OF THE EFFECTIVENESS OF THE COMMISSION FOR HUMAN RIGHTS AND GOOD GOVERNANCE IN PROTECTION OF HUMAN RIGHTS IN TANZANIA FROM 2001-2006” in partial fulfillment of the requirements of LLB degree.


………………………………………….

NASSER E. MWAKAMBONJA (MR.)

SUPERVISOR























DECLARATION

I, SWEETBERT NKUBA; do hereby declare that this research is my own original work and has not been submitted for a degree in any other university.




Signed ………………………………………


Date…………………………………………



























COPYRIGHT

This research is copyright and may not be reproduced in completely or in part, stored in any retrieval system or transmitted in any form or by any means electrical, mechanical, photocopying, recording or otherwise without the express permission of the author or Tumaini University Dar Es Salaam College on that behalf in writing.


































ACKNOWLEDGEMENT

In writing this work, I have received valuable help from a variety of sources. It would be very difficult to list them by names generally I extend my sincere gratitude to all of them.

However, special thanks is due to my supervisor, Mr. Nasser E. Mwakambonja, whose tireless advice, help, patient and constant supervision, guidance and encouragements has made this research possible. I owe him unpayable debt.

Unique thanks to my fiancée, Edna David Mwihava, for her tolerance, love, care and encouragements, moral and material support which I could not find anywhere else.

I also extend my sincere gratitude to Mr. G.S. Ngwilimi for his comprehensive theoretical basics, Mr. Stolla for his material support and encouragement, Officers of the Legal and Human Rights Centre (LHRC), courts. The Commission for Human Rights and Good Governance (CHRGG).


I like to extend my thanks to librarians of the Tumaini University - Darco library, University of Dar Es Salaam faculty of Laws library who assisted me in collecting materials relevant to my research and data & Betty Stationery for their tireless typing and printing this work.

I thank Mr. Barnabas Lupande, Martine Masanja, Innocent Buzoya, Mr &Mrs. Abrahaman O. Kisigalile for their proof reading, Mr. Said Hamis Nnikumbukila (Sir), Connie, Geneviev, Consolata, Patrick, Juliana & Beatus Nkuba, Charles Machage, Hon. Lillian Rweyemamu,Mr and Mrs.Ally Kinyogori and Margaret Mwaseba for their material and Moral support.





DEDICATION

This work is a dedication to my father, CHARLES MBOJE NKUBA (chief) and my mother, MONICA LULI MASUNGA for their tireless support especially where the community perceived me wrong;





AND
To JOAQIUM MLEKWA GEDI, my true, best friend ever, an orphan, who was tortured and died unseeingly in my absence; whose advice and support made me go back to school, May the Lord Rest His Soul in Eternal Peace. Amen.
















ABSTRACT

Human Rights are fundamental Rights which a person acquires by virtual of being a human being.In Rev. Christopher Mtikila V. Attorney General (1995) TLR. 31, Lugakingira, J, had this to say;
“Fundamental Rights are not gifts from the State. They inhere in a person by reason of his birth and are therefore prior to the state and the law…”
Therefore, there are a number of mechanisms adopted by the International Community and under the national level for promotion and protection of human rights.

In Tanzania, the Commission for Human Rights and Good Governance was established specifically for promotion and protection of human rights in the country, however, how effective in promotion and protection of human rights the commission ought to be depends much on the law establishing it.

This work therefore goes further to examine the effectiveness of the Commission for human rights and good governance in Protection of human rights in Tanzania from 2001 to 2006. the work is moulded in five chapters whereas chapter one encompasses an introductory part of the research, chapter two is a portrait of the concept of human rights, its historical background in international and national level, this chapter also discusses the inclusion of the Bill of Rights in the constitution and protective measures established so far.
Chapter three discusses the establishment of the Commission for Human Rights and Good governance and its rationale and enforcement of its decision. Chapter four addresses the practical aspect of the law and examination of the decision of the commission generally, data is also presented and critically analysed. Chapter five entails a concluding remark of the study, and recommendations are given for measures to be taken or make the Commission to effectively protect human Rights in the country.




ABREVIATIONS/ ACRONYMS

A.G ………………….. Attorney General
Ch. D ………………….. Chancery Division
R ………………….. Republic
V/Vs. ………………….. Versus
Cr ………………….. Criminal
App ………………….. Application
S. ………………….. Section
Pg/pp ………………….. Page
HC ………………….. High court
PCE ………………….. Permanent Commission of Enquiry
TUDARCO ………………….. Tumaini University – Dar Es Salaam College
UN ………………….. United Nations
CHRGG ………………….. Commission for Human Rights and Good
Governance
CHRGGA …………………. Commission for Human Rights and Good
Governance Act
NOLA …………………. National Organization for Legal Assistance
LEAT ………………… Lawyers Environmental Action Team
TAMWA ………………… Tanzania Media Women Association
Op cit ……………….. ( Opere citato ) in the work mentioned above in
different pages
Ibid ………………. Ibidem/synonymously used as op cit and supra.
DSM ……………… Dar Es Salaam
TAWLA …………….. Tanzania Woman Lawyers Association
TGNP ………………. Tanzania Gender Networking Program
UDSM ……………….. University of Dar Es Salaam
HR ………………. Human Rights
NGO ………………. Non-Governmental Organizations
Vol. ………………… Volume
LLM ………………… Masters in Laws
LLB ……………….. Bachelor of Laws
DPO ………………. Danish Parliamentary Ombudsman
No. ……………….. Number
PGDL ……………….. Post Graduate Diploma in Laws
LHRC ……………….. Legal and Human Rights Centre
URT ………………… United Republic of Tanzania
TZ ……………….. Tanzania
UDHR ……………….. Universal Declaration on Human Rights
ICCPR ………………. International Convention on Civil and Political
Rights


CEDAW ………………. Convention on Elimination of All forms of
Discrimination Against Women
TShs. ………………. Tanzanian Shillings

ICC ………………. International Criminal Court
ICTR ………………. International Criminal Tribunal for Rwanda

ICTY ……………… International Criminal Tribunal for the former
Yugoslavia
B.C ……………… The years Before Christ
C ……………… Century
CCM ……………… Chama Cha Mapinduzi, The ruling Party
USA ……………… United States of America
WWI ……………… 1st World War
WWII ……………... 2nd World War
Anor. ……………… Another
Othr. ………………. Others
TLR ………………. Tanzania Law Reports
LRT ………………. Law Reports of Tanganyika
OAU ………………. Organization of African Union
TANU ………………… Tanganyika African National Union
J. ………………… Judge
Hon. ………………... Honorable
CUF ………………… Civic United Front




















LIST OF STATUTES

The Constitution Of The United Republic Of Tanzania, 1977 As Amended
.
The Constitution Of Zanzibar

The United Republic Of Tanzania Interim Constitution, 1965

The Commission Of Human Rights And Good Governance Act, No.7 Of 2001.

Basic Rights And Duties Enforcement Act, 1992

Constitution (Fifth) (Amendment) Act, 1984 (Act No. 15 0f 1984)

Constitution (Consequential, Transitional And Temporary Provisions) Act No. 16 Of 1984

The Permanent Commission Of Enquiry Act, (Act No.25 Of 1966)

The Preventive Detention Act, 1962.

The Regional Commissioners Act, 1962
.
The District Commissioners Act, 1962















LIST OF INTERNATIONAL CONVENTIONS

Universal Declaration on Human Rights, 1948

International Convenant On Civil and Political Rights, (Iccpr) 1966

International Convention On Economic, Social And Cultural Rights, 1966
The Convention On Genocide, 1948

The Convenants On Racial Discrimination, 1965

The Convention On Elimination Of All Forms Of Discrimination Against Women (Cedaw) 1979

Convention Against Torture, 1984

Conventin On The Right Of The Child, 1989

European Convention For The Protection Of Human Rights And Fundamental Freedoms, (1950)

The American Declaration Of The Rights And Duties Of Man, 1948

Convention On Human Rights, 1969

African Convention On Human And Peoples’ Rights, 1981

















LIST OF CASES

Ibrahim Krosso & 134 Others Together With Lhrc V.A.G & Others, (2005), (Hc),Unreported.

R. V. Nassoro Rwabunywenge Criminal Case No.282 Of 1998 (Tanga) Unreported

Legal And Human Rights Centre & Others Vs. Attorney General, Miscellaneous Civil Cause No. 77 Of 2005.

Bernado Ephraem Vs. Holaria Pastory (1989) Civil Application No. 70 (Mwanza)

Thomas Mjengi Vs. R (1991) No. 28

Mbushuu & Dominic Mnyoroge And Another Vs. R (1991) No. 44

A.G Vs. Chumchua Marwa Criminal Appeal No.8, 1988

Kukutia Ole Pumbun Vs Attorney General (1992)

A.G Vs. Lesnoi Ndeinai & Joseph Selayo Laizer & 2 Others (1973) Lrt 6 & (1980) Tlr.214
Rev.Christopher Mtikila Vs. Attorney General (2005) ( Ca)Unreported

Rev.Christopher Mtikila Vs. Attorney General (1995)Tlr.31


















TABLE OF CONTENTS
Page
Certification………………………………………………………… i
Declaration…………………………………………………………. ii
Copyright…………………………………………………………… iii
Acknowledgement…………………………………………………... iv
Dedication…………………………………………………... ……… v
Abstract……………………………………………………………. vi
Abbreviations/ Acronyms………………………………………….. vii
List of Statutes………………………………………………………. ix
List of International Convention………………………………….. x
List of Cases………………………………………………………. xi
Table of Contents………………………………………………… xii

CHAPTER ONE
1. INTRODUCTION 1
1.1 Background to the Problem ……………………………………..…....1
1.2 Statement of the Problem …………………..…………………………1
1.3 Hypothesis ……………………………………….……………………2
1.4 Objectives of the Study ……………………………….……………….2
1.5 Significance of the Study ………………………………………….......2
1.6 Methodology …………………………………………...…………….. 2
1.7 Literature Review ……………………………………………………...3
1.8 Scope of the Study ……………………………………..………………8

CHAPTER TWO
2.0 Human Rights in Context ……………………………….…………...9
2.1 Historical Background of
Human Rights in International Level………………………..……….10
2.2 Historical Background of
Human Rights in National Level ……………………………………11

2.3 The PCE: A Leakage Umbrella in Promotion
and Protection of Human Rights in Tanzania ……………………….13
2.4 Divergence and Convergence o the Bill of
Rights in the United Republic
Constitution,1977 as amended ………………………………………14
2.5 Protection of Human Rights from 2001 to 2006………….………….16

CHAPTER THREE
3.0 Establishment of the Commission for Human
Rights and God Governance
In Tanzania and Rationale.…………………………………………19
3.1 Protection of Human Rights in
Tanzania from 2001 to 2006.……………………………….............20
3.2 The Commission for Human Rights and
Good Governance Act, 2001…….……………………………….....22
3.3.1 Enforcement of the Decision ……………………………….............25
3.3.2 The Commission and Human Rights……………………………..…26

CHAPER FOUR
4.0 The Practical Aspect of the Law……………………………………...29
4.1 Examination o The Decision of the
Commission Generally…………………………………..….29
4.2 Access to he Commission…………………………………...33
4.3 Technicalities of Procedure………………………………....34
4.4 Geographical Location………………………………………34
4.5 Man Power………………………………………………..…35
4.6 Financial Resources of the Commission………………….....36
4.7 Data Presentation and Analysis………..………………….…36
4.8 Summary of the Main findings……………………………....40


CHAPTER FIVE
5.1 Conclusion…………………………………………………..42
5.2 Recommendations…………………………………………...42



BIBLIOGRAPHY



ANNEXTURES




1.0 INTRODUCTION

1.1 BACKGROUND OF THE PROBLEM

Human Rights (HR) in Tanzania is a day-to-day concern of individuals, Non Government Organizations, Government, Parastatals and other stakeholders. Since Human Rights is fundamental constitutional right, the government ploughed for mechanism of promotion and protection of the same. The Permanent Commission of Enquiry (PCE) was formed essentially for that[1]. However the PCE had a number of weaknesses which include much patronage of the President and his discretion on whether a matter to be investigated and the decision of the PCE were to be presented to the President for determination.[2] It was from these weaknesses that it was recommended to establish the Commission for Human Rights and Good Governance (CHRGG). My great concern is whether the new organ is effective in the promotion and protection of Human Rights and whether it has cured the problems of the Permanent Commission of Enquiry.

1.2 STATEMENT OF THE PROBLEM

The Commission for Human Rights and Good Governance hereinafter called the Commission was introduction in Tanzania to protect Human Rights. The introduction of this organ was aimed at reducing acts which violate Human Rights. However the Commission does not protect Human Right fully because it does not have powers to enforce its decision, hence it lacks teeth. The purpose of this study is to examine the effectiveness of the Commission in protection of Human Rights in Tanzania.



1.3. HYPOTHESIS

This research work proceeds on the proposition that the Commission is ineffective in promotion and protection of Human Rights.

1.4. OBJECTIVES
The research was undertaken with the following objectives;

(i) To examine whether the law on the decision of the Commission has given teeth to the Commission so as to promote and protect Human Rights in Tanzania.
(ii) To find out the weaknesses of the law relating to the enforcement of he decisions of the Commission and suggest solution thereof.
(iii) To suggest ways in which the decisions of the Commission can be made to guarantee the promotion and protection of Human Rights.

1.5. SIGNIFICANCE OF THE STUDY

The study clearly portrays the truth to the understanding of the enforcement of the decision of the Commission and ascertained whether it has teeth. It will attract the attention of the government, lawmakers and enforcers, scholars and stakeholders to appreciate the fallacy of the decisions of the Commission.

1.6. METHODOLOGY

The study combined both field and library research;
i. Library research-was done specifically at the Tumaini University Dar Es Salaam College library and Computer lab. University of Dar Es Salaam-faculty of Laws library, which helped me encompass a strong theoretical basis to the problem as reiterated by different scholars,
ii. Field work was done through direct interviews and questionnaires at:
Human Rights Centres-The Commission for Human Rights and Good Governance, LHRC-Lugakingira House and at different Law Firms,
iii. Direct interviews with officers of the above mentioned places.
iv. Questionnaires was also distributed to officers of the above mentioned offices and to residents of Dar Es Salaam,
The data so collected helped to prove the theoretical findings through libraries and was very useful in establishing the horizons to which the pros and cons of the hypothesis has been established.

1.7. LITERATURE REVIEW

From the literature consulted so far in this research, there is no doubt that many scholars have written about the weaknesses of the PCE in promotion and protection of Human Rights in Tanzania; but very few authors have touched on the examination of the effectiveness of the CHRGG in protection of Human Rights in Tanzania.

The scholars who have researched on protection of Human Rights in Tanzania have concentrated much on the weaknesses of the PCE in protection of Human Rights. A close observation at the subject reveals that the examination of the effectiveness of the CHRGG in protection of Human Rights in Tanzania has not been specifically and exhaustively dealt with. However there are some notably scholars who have devoted their time discussing about the weakness of the CHRGG in promotion and protection of Human Rights in Tanzania.
Abdulrahman O.J. Kaniki. An Ombudsman and Human Rights Protection and Promotion; the Permanent Commission of Enquiry in Tanzania; a toothless bulldog?[3]
Attempted to examine the effectivenesses of the PCE in Promotion and Protection of Human Rights in Tanzania, the author has revealed a number of weakness of the PCE mostly being the law establishing and governing it does not endow it with its executive powers. The Permanent Commission of Enquiry upon receiving the complaint and starts making investigation, the complainant continues to suffer the injustice.[4] Also the PCE being under total control of the President defies the purpose of why it was created.

Mwaikusa J.T[5]. Recognizes the inadequate capacity of the Permanent Commission of Enquiry as it lacks any power or authority of its own. Thus, it can only recommend to the President, whom it has no power to investigate. There is no way of ensuring further that the recommendations are effected, it has no power to issue any orders of its own, thus the PCE was seen as being another institution whose effectivenesses in safeguarding Human Rights is almost exclusively dependent upon the Chief Executive.

The Nyalali Commission[6], also has examined the Permanent Commission of Enquiry in deep and noted that the PCE lacks any power or authority of its own, it only recommends, The Nyalali Commission further recommended that in order for the PCE to be useful for the purpose of which it was created, there is need to make it independent of the executive and it must be responsible to the parliament and be given powers to prosecute on its own motion.[7]

In his LLM thesis Mdemu, John,[8] has thoroughly examined the role of the Commission for Human Rights and Good Governance in protection of human rights, he has the put much emphasis on the Act establishing the CHRGG and found out that the law does not confer adequate powers to the CHRGG for it to be independent and to protect human rights in the true sense of the term, he concluded that the Commission for human rights is more or less the same as the PCE, although it has been some how independent but it can not prosecute on its own motion; However, he does not comment on the decision of the Commission, whether effective or not; This work does not however tend to examine the effectiveness of the decision of the Commission.

Joyce Mkinga, in her article “ Human Rights Commission says its toothless”[9] she has revealed the ineffectiveness of the CHRGG by quoting the speech of the then Chairperson of the Commission, Justice Kisanga while addressing the Media; Kissanga, J. regretfully noted that the Commission does not have any legal binding but it rather recommends on the investigation done following complaints on Human Rights violation and good governance… Victims therefore have to go to court when such recommendations are ignored, in such eventualities, he added, it defeats the whole purpose of why the Commission was formed. From her view, Mkinga has not attempted to examine the effectiveness of the decision of the Commission, but she noted the view of the Commission chairperson on the status of the recommendations by the Commission.

Soka, Bertha in her Thesis, Establishment for Commission for Human Rights and Administrative Justice for PGDL, 2000, UDSM, she aimed at analyzing the prospects of the establishment of the CHRGG in replacement of the PCE, she went further to examine how justice ought to be administered in the new Commission, she put much emphasis on the establishment of new modalities and approaches in which justice could be administered, she however recommended that for justice to be administered by the Commission, the Commission has to be independent so that it can protect human rights against violation by the administrative arm of the government / executives; she did not however examine how effectiveness of the decision of the Commission should be; her findings were hypothetical for as the CHRGG was not in force.

Keregeo, Keregeo on “Government Refuses to Compensate Eviction Victims”[10], the author wrote on the ineffectiveness of the CHRGG decision as it was dishonored by the Government’s refusal to compensate the Villagers who were forcefully disposed’. However, the Legal and Human Rights Centre in its Tanzania Human Rights Report, 2005, criticized the CHRGG for its lack of legal authority in the enforcement of its recommendations;

However, The contentions above are highly supported by section 28 (3) of the Commission for Human Rights and Good Governance Act, 2001, as it was interpreted by the high court judges to mean that the decision of the Commission is merely a recommendation and can not be enforceable; This contention however has not attempted to examine the effectiveness of the decision of the CHRGG but an expression of the point of law which is the general overview of the decision of the Commission.

Kagaigai, Stephen Nzohabonayo[11], A scholar has attempted to point out the prospects of the Commission for Human Rights in Promotion and Protection of Human Rights, he however analyses significant changes in the mechanisms for protection of Human Rights, he has put much emphasis on the success of the CHRGG from a comparative approach over the defunct PCE, in his thesis he has clearly shown how the Commission has tackled necessary steps to respond to the complaints brought to it pertaining the violation of Human Rights by individual citizens, his overall observation over the Commission is advancement of the ombudsman from an executive monitored PCE to an independent Commission; The scholar has not however discussed on the merit or demerits of the decision of the Commission.

Also the Legal and Human Rights Centre, in Legal and Human Rights Implication; The Human Calamity of the Eviction[12], the report demonstrates the weakness of the Commission in protection of human rights, inline with the decision of the court[13] that the recommendations are not enforceable, the LHRC has argued the government to respect recommendations by the Commission otherwise it defeats its very purpose of establishing it.

The Justice Review Journal [14], the author noted that the Commission for Human Rights and Good Governance took over the functions of the defunct Permanent Commission of Enquiry and apart from the PCE mandate to deal with Human Rights issues, it is also concerned with addressing public authority, he has shown further how the Attorney General defied the recommendations of the Commission in Ibrahim Koroso[15], which confirmed the common pessimism by many critics on the Commission at its formation that its recommendations might be defied by public officers or authorities.
Also Peter, M.C in “HAKI” [16], the author wrote on status of the decision of the Commission for Human Rights and Good Governance as among the things which contradict in, the author noted that the Commission has no ability to make an order of command and that once the recommendations of the Commission have been neglected, the CHRGG has to go to court as a solution to enforce its recommendation which means the Commission has no teeth, the author does not explore the effectiveness of the decision, he only suggests the steps to be followed when the recommendations have been neglected.

In his paper, Mashamba, Clement J[17], has attempted to give a comparative analysis of the Danish Parliamentary Ombudsman with the Commission for Human Rights and Good Governance, he among other things noted, that the Danish Ombudsman has over a time, been able to assert its presence and reveal its importance and role in controlling abuse of public administrative powers, as a result of which it has gained public support and trust, thus, the criticisms and recommendations of the DPO have been implemented by the concerned authorities without any abstinence as contrasted in the Commission for Human Rights and Good Governance in Koroso’s case[18]. The author has much insisted on making the CHRGG responsible to the Parliament so that its recommendations should be honored and implemented by the concerned authorities.

Writing throughout worldwide experiences, Kamal, Hossain[19] has appreciated the similarities of Human Rights Commissions throughout the world as being dependence on the executive arm of the governments, he thus came up with an observation that Commission for Human Rights in developing countries are ineffective as they are not endowed with executive powers. In developed countries, which is mainly in the western European countries, where the violation of Human Rights is non existent in great quantum is however guaranteed, the Commissions for Human Rights in developed countries are independent of the executives and thus, their decisions are worth honored. The author has had a general overview on Commissions worldwide but he has not examined particularly the decisions of the Commissions.

From the reviewed work so far, there is no empirical study which has revealed about the examination of the effectiveness of the Commission for Human Rights and Good Governance in promotion and protection of Human Rights particularly in Tanzania from 2001 – 2006. However, the literature has enabled my research findings to go through and knowing the ideas of other personalities who wrote on the same problem but on different dimensions. This work therefore attempts to seal this gap.

1.8 SCOPE OF THE STUDY

The scope of this study has comprised the period, area of concentration and place in which the research is conducted. The period is from 2001 to 2006.The area of concentration is the examination of the law on the decision of the Commission. The reason of the choice of the period and area of concentration is to make the study manageable and to examine the practical constraints on the enforcement of the decision of the Commission. The place where research is conducted is Dar Es Salaam not only because the Commission and other Human Rights centers are located but also due to budgetary constraints.

















CHAPTER TWO

2.0 HUMAN RIGHTS IN CONTEXT.

Human rights are fundamental rights possessed by all persons by virtue of their common humanity, to live a life of freedom and dignity. They give all people moral claims on the behaviour of individuals and on the design of social arrangements. Thus, Human Rights are universal, inalienable and indivisible. Human rights express our deepest commitments to ensuring that all persons are secure in their enjoyment of the goods and freedom that are necessary for dignified living[20] Human rights are therefore universal or all inclusive, equal and non discriminatory and a system of international co operation[21].

Human rights in its broad understanding and universal applicability, we must therefore admit that there are some differences in what kind of human rights takes precedence within a specific context, such as human rights issues in Africa are very different from those in an economically developed country like Norway. In Africa, human rights examples are immediately related to food, shelter, education, employment, and health, in this regard from the above example economic rights are best sought[22]. Human rights however are indivisible in the sense that there is no hierarchy among different kinds of rights, all rights are equal necessary for a life of dignity, some rights can not be suppressed in order to promote others[23], all types of human rights are equal and interrelated and at all times necessary for us to have a life of dignity and well - being[24].





2.1 HISTORICAL BACKGROUND OF HUMAN RIGHTS IN
INTER NATIONAL LEVEL.

Human rights as an in born right, has existed with man from time immemorial, but the concept of existence and protection of human rights is traced from the writings of the Mesopotamia empire in 17th C. B.C. in most of the civilized empires human rights was the grand subject, Persia for example, Ceylon adopted the circular cylinder and in 1222 Mali adopted the Hammurabi as a human rights code. In 1225, Human Rights in United Kingdom were with all included in the Magna Carter;

Human rights as a dynamic virtue, changes with time to reflect the need of the society’s well being vis- a -vis development, in the U.S.A, human rights were endeavored in the American Bill of Rights, of 1791. In France, the French declaration of the rights of citizen and Man of 1789 acknowledged the existence of human rights to be protected.
The great advancement of recognizance of human rights was reached after the Massive violation of Human rights in the Second World War (1939 – 1945). The first worldwide human rights instrument to be established is the Universal Declaration of Human Rights which was developed and adopted in 1948 by the UN – General Assembly and it contains provisions which constitute the customary international law.

However, the Universal Declaration of Human Rights was seconded by specific human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), the Convention on Economic, Social and Cultural Rights (1966), the Conventions on Genocide (1948), the Covenants on Racial Discrimination (1965), Discrimination Against Woman (CEDAW) 1979, Torture 1984 and Rights of a Child 1989,. The main regional instruments are the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the American Declaration of the Rights and Duties of Man 1948 and Convention on Human Rights (1969), and the African Charter on Human and People’s Rights (1981). The UN – system on enforcement of human rights among member states to a treaty is through Pacta Sunt Servanda, due to vitality of human rights the UN established the court tribunal systems to legally enforce human rights, and the International Crimes Court (ICC). The Nuremberg and Tokyo War Tribunal, the ICTY and ICTR in Arusha. The UN – Human Rights Commission of 1948 is backed up by Sub – Commissions in view to monitor and be the watch dog to human rights violations, the UN – Human Rights Commission functions were extended to provide education and resources so as to promote and protect human rights worldwide.

2.2. HISTORICAL BACKGROUND OF HUMAN
RIGHTS IN NATIONAL LEVEL.

Human rights in Tanzania is previewed through a back forth development reflected by political realism of the prevalent material conditions, of that period, but each stage is important for the historical background of these fundamental rights. In colonial Tanzania (Tanganyika and Zanzibar) human rights in its meaning never existed, for the colonial government to pretend to uphold fundamental rights and freedoms would defeat the very aim of colonialism[25], racism and discrimination were accepted as both ways of life and a matter of state policy[26]. At independence, the bill of rights was rejected by the incoming government, it was argued by the then ruling party TANU that such a Bill would hamper the new government in its Endeavour to develop the country, the then Prime Minister Kawawa referred to it as a luxury which merely invites conflicts[27]. Human rights then existed as a concept but no instrument which recognized and therefore no one could petition for violation of his/her right however gross it might be, all rights were vested to the sole ruling party. In one party democracy the party is supreme all the way[28].

Human rights in Tanzania was a riddle, there was no mechanism endeavored for protection of such as there was no any legislation which applauded the concept of human rights; However, the Presidential Commission for the Establishment of the Democratic One – party state suggested the inclusion of the Bill of Rights in the Constitution as one way of providing guarantees to the fundamental rights and freedoms of the individual but the government rejected[29]. Alternatively, the government accepted the suggestions[30] to include the Bill of Rights in the Preamble of the constitution and establishment of the form of an ombudsman to protect the people against the politicians and bureaucrats[31] . This was like a monkey trap as it had no positive role in protection of people’s rights and freedoms in case of violations of the same. It was considered by the judiciary as:
“A preamble is a declaration of our belief in these rights. It is no more
than just that. The rights themselves do not become enacted thereby
such that they could be enforced under the constitution. In other
words, one can not bring a complainant under the constitution in
respect of violation of any of these rights as enumerated in the
Preamble”[32].
The Permanent Commission of Enquiry is all the same, it was meant to receive complaints and make investigations while the complainant continues to suffer the in justice[33], where withal it was under the total control of the President which defied the purpose of why it was created.

Human rights violation was in gross multitudes, in some instances empowered by enactment of the Parliament. These were the laws which could not stand test of validity in a constitutional system; the oppressive and objectionable laws included the Preventive Detention Act, 1962, Regional. Commissioners Act, 1962, Area Commissioners Act, 1962 etc, provided the powers of certain sections of the Executive arm of the state to detain individuals without resort to due process, these in one way or another curtailed the rights and freedoms of individuals[34].

Moreover, The Bill of Rights was finally incorporated into the Constitutional of the United Republic of Tanzania of 1977 in its fifth amendment in 1984[35], Through which human rights in Tanzania was legally pronounced and protected, although these sluggish legal changes come into effect in march 1985, however,. The justiciability of the basic rights and freedom in the courts of law was suspended for three years. This pseudo-love for the rights of individual by the government is no doubt the nature of our nation.
After the expiry of the three years, the government had done nothing which led to the adoption of the suggestion that the court had to exercise its powers if any if the provisions of the laws were inconsistent with the Constitution, a flood gate of cases to challenge constitutionalism of such laws were witnessed[36]. However, the Nyalali Commission[37], identified all the laws in the country which were against the fundamental rights and freedoms of the people and good governance, its recommendations subsequently led to the introduction of multipartism in 1992, from there onwards, a group of human rights activists strongly emerged, this led to the establishment of non- partisan organizations to promote human rights, these are such as the Legal and Human Rights Centre (LHRC) the Legal Department-University of Dar Es salaam, NOLA, TAWLA, TAMWA and publications such as journals for example the Justice Review journal, HAKI and non – partisan organization’s reports such as the LHRC reports;

A decade after the recommendations of the Nyalali Commission, the government established the Commission for Human Rights and Good Governance in substitution of the Permanent Commission of Enquiry in 2001. During this period the wind for Human rights promotion issues had swept all over the world including Tanzania and so it is, as a global issue, human rights in Tanzania is now regarded in a true sense of the term. Although the machinery for protection of human rights in Tanzania is doubtful but human rights is highly regarded than any time in the past.

2.3 THE PCE: A LEAKAGE UMBRELLA IN PROMOTION AND
PROTECTION OF HUMAN RIGHTS IN TANZANIA.

The permanent Commission of Enquiry was established as a form of Ombudsman to protect the people against the over zealous politicians and bureaucrats[38]. The Permanent Commission of Enquiry was originally established under chapter VI of the interim Constitution of 1965, and through a separate Legislation[39] which provided for its jurisdiction, powers and functions. The PCE however acted as a lubricant between citizens whose rights were violated and the government under the mono party democracy. The pseudo mandate of the PCE was challenged by many scholars and the Nyalali Commission[40], pin pointing its weaknesses to the effect that the Permanent Commission of Enquiry (PCE) lacks power of its own, it only recommends to the President whom it has no power to investigate; the President also had powers to stop any investigation which the PCE had undertaken at any point of time and the President could also bar the Commission from accessing certain information. The performance of the PCE over the years indicated serious short comings arising out of those inhibitions[41]. This however did not differentiate the period before establishment of the PCE and thereafter, thus the fundamental rights and freedom of the individual were left at the mercy of the executive arm of the state[42].

The Permanent Commission of Enquiry as an umbrella for the protection and promotion of the fundamental freedoms and rights of the individuals by the government was seen as being another institution, whose effectiveness in safeguarding human rights is almost exclusively dependant upon the chief executive. The weaknesses of this noble institution led to defiance of the very purpose of which it was created. This umbrella could not stop human rights violations due to fractures caused by its weaknesses, thus the PCE was nothing than just a leakage umbrella in promotion and protection of human rights in Tanzania, as a toothless ombudsman it finally became defunct in 2000, paving a way to the newly established Commission for Human Rights and Good Governance in 2001.

2.4 DIVERGENCE AND CONVERGENCE OF THE BILL OF RIGHTS IN
THE UNITED REPUBLIC OF TANZANIA
CONSTITUTION, 1977 AS AMENDED.

The Bill of Rights was enacted by the United Nations in 1948 vide the Universal Declaration of Human Rights; the Bill of Rights is a general term for the fundamental rights and freedoms of the individual; the struggle for independence in Tanzania was no doubt the struggle for the Bill of Rights but surprisingly enough after independence things remained as they were before with minimal changes. However, Tanzania mainland and Zanzibar had different epoch, in Zanzibar, the Bill of Rights was part of the Constitution at independence in 1963 which lasted for a month and thereafter it was discarded in the Revolutionary Constitution and after the Union in April 1964, Zanzibar was ruled by the Presidential decrees.

In mainland Tanzania, the idea of incorporating the Bill of Rights in the Constitution was rejected by the then ruling party, the Tanganyika African National Union (TANU), during the negotiations with the British colonial masters at departure. The main reason put forth by TANU was the inclusion of the Bill would hamper the new government in its endeavors to develop the country, the British accepted cordially the arguments thus made Tanganyika an exception to the general rule–coming to independence without the Bill of Rights in its Constitution[43].

The concern for the inclusion of the Bill of rights in the Constitution of Tanzania was great in 1965 to be part of the interim Constitution; this concern was forwarded as among many suggestions by the Presidential Commission for the establishment of the democratic one party state which was rejected[44]. The government accepted the refined proposal of including the Bill of Rights in the preamble of the interim Constitution of 1965, as part of the preamble, the Bill of Rights could not have any legal basis or mandate since in common law regime the preamble is not part of the Constitution.

In his observations, Kisanga, J; had this to say;
“A preamble is a declaration of our belief in these rights. It is no more than just that. The rights themselves do not become enacted thereby such that they could be enforced under the constitution. In other words, one can not bring a complaint under the constitution in respect of violation of any of these rights as enumerated in the preamble”[45].
The ruling party CCM published the proposal for the amendment of the Constitution of United Republic of Tanzania in 1983, there were increased forces for the inclusion of the Bill of Rights from various angles of the country and the world at large, the forces from Zanzibar where the Bill of Rights was enjoyed for a month in the independence Constitution and through the peoples’ view through mass media, the external forces were from the adoption of the African Charter on Human and people’s rights by OAU in 1981. Therefore the enactment of the Bill of Rights in the Constitution was unavoidable incident.

In it’s Fifth Amendment of the Constitution in 1984[46]. The Bill of Rights was enacted which had to come into operation in March, 1985. The Government in lieu of such changes in the new Constitution suspended the justiciability of the fundamental rights in the court of law for three years[47]. However, the government did not use the grace period effectively by excluding the violative provisions in statute books, moreover in the 1st March 1988, the constitutional provision on the Basic Rights were fully justiciable in the court of law, the failure of the government to repeal or amend the violative provisions led to the acceptance of the option of giving mandate to judiciary to invalidate such provisions. The Bill of rights was therefore legally enforceable on the 1st March 1988, paving the way for litigations to challenge constitutionality of violative provision to be fully encountered, although, the unconstitutional provisions remained in the statute books for the government to change at its own pleasure. In some instances some constitutional provisions were declared unconstitutional[48].

2.5 PROTECTION OF HUMAN RIGHTS FROM 1984 TO 2001.

After the incorporation of the Bill of Rights in the Constitution of the United Republic of Tanzania of 1977 in 1984 of which had to be into operation in March, 1985, the courts of law justicification of the provisions of the basic rights and freedoms was suspended for three years as provided in the constitution (Consequential, Transitional and Temporary Provisions) Act No. 16 of 1984 as;
“Not withstanding the amendment of the constitution and, in particular, the justiciability of the provisions relating to basic rights, freedoms and duties, no existing law or any other provision in any existing law may, until after three years from the date of commencement of the Act, be construed by any court in the United Republic as being unconstitutional or otherwise inconsistent with any provision of the constitution” [49].

This suspension was not a license to the government to violate human rights but was just to allow the government revisits the statute books which were inconsistence with the new provisions of the Constitution and repeal or amend them. The only government agency to perform this grand duty was the Law Reform Commission[50], which after the expiry of the grace period had done nothing. The only option the government had to take is to allow justiciability of the constitutional provisions on the Basic Rights by the courts of law, the High Court in particular was to determine the validity of the various laws depending on whether a particular law was a subject of litigation before the court or in course of exercising its inherent jurisdiction High Court could raise the matter suo moto, but leaving such laws in the statute books though unconstitutional.

Human rights protection was after the expiry of grace period in 1988 left to the judiciary, this led to the increasing petitions challenging the constitutionality of some legislation as a whole or provisions of such legislations. Thus the High Court was the sole protector of human rights in case of violation. In this regard, in the late 1980’s and throughout 1990’s we witnessed a number of cases, petitions and or litigations which highly challenged constitutional validity of some provisions[51]. However, human rights protection was basically through invalidating violative provisions in statute books. The High Court was not a watch dog of human rights, thus it could not condemn human rights violation or challenge certain actions by the government which were inhuman. The work of the HC was just to receive petitions challenging certain provision or raise the matter suo moto.

It was the duty of the Permanent Commission of Enquiry to protect the people against the over – zealous politicians and bureaucrats. Throughout 1984 to 2001, the PCE had proved failure in performing the duty of which it was established, as a result there was the rise of human rights activists, this included a number of prominent individuals and establishment of none – partisan NGO’s, CBO’s and professional organizations[52], to address human rights violation by the government and seek the courts order to stop such violations.


























CHAPTER THREE

3.0. ESTABLISMENT OF THE COMMISSION FOR HUMAN
RIGHTS AND GOOD GOVERNANCE IN TANZANIA
AND IT’S RATIONALE.

After three and a half decades of its existence as an ombudsman institution for the protection and promotion of the rights of individual against the over zealous politicians, the Permanent Commission of Enquiry was criticized for being ineffective to serve the purpose thereof by individuals and more so by governmental institutions, the Nyalali Commission noted that the Permanent Commission of Enquiry lacks any power or authority of its own and it can only recommend to the President, whom it has no power to investigate, It therefore recommended that in order for the PCE to be useful for the purpose of which it was created, there is a need to make it independent of the executive and it must be responsible to the Parliament and be given powers to presecute on its own nation.[53]

It is therefore from these weaknesses of the Permanent Commission of Enquiry and criticisms from all over the country which ignited the demands for the establishment of Human Rights Commission in the Country, This was one of express demands made by the non – governmental organizations during the 50th anniversary of the Universal Declaration on Human Rights in 1998,[54] Nyalali Commission[55]among other things recommended either to re- examine the role of the Permanent Commission of Enquiry (PCE) so as to make it more effective instrument for the protection of Human Rights, or do away with the PCE and establish a Commission for Human Rights and Administrative Justice (CHRAJ), therefore the PCE had to go and be replaced by the CHRAJ,[56] However, in may, 2000 the Commission for Human Rights and Good Governance (CHRGG) was established and enshrined under Articles 129 – 131 of the Constitution of the United Republic of Tanzania in its 13th amendment, this was put into effect by enactment of the Commission for Human Rights and Good Governance Act (No.7) of 2001 which came into force in 2nd May, 2001,[57] however, the contemplation on how effective this Commission could be depended on a variety of factors including the law establishing it and the people appointed into the Commission, the expected name of the Commission which was the Commission for Human Rights and Administrative Justice was superseded by the Commission for Human Rights and Good Governance.

The rationale for the establishment of the Commission for Human Rights and Good Governance was to cure the weaknesses which was occasioned in the Permanent Commission of Enquiry, among which are the law establishing it does not endow it with executive powers and being under total control of the President which defies the purpose of which it was created,[58] it has no power to issue any order of its own,[59] and that the PCE lacks any power or authority of its own, it only recommends and that for it to be useful for the purpose of which it was created, there is a need to make it independent of the executive and it must be responsible to the parliament.[60]

From these weaknesses and criticisms, from all over the country, there was a need for establishment of a new ombudsman institution, which will be independent and free from the weaknesses of the PCE, wherefore, the Commission for Human Rights and Good Governance was to be established as a cure, the rationale for the establishment of the Commission for Human Rights and Good Governance therefore lies in the need to do away with the weaknesses of Permanent Commission of Enquiry.

3.1. PROTECTION OF HUMAN RIGHTS IN TANZANIA
FROM 2001 TO 2006.

As we have seen in 2.4 above the protection of Human Rights shifted from the judiciary (particularly the High Court) in 2001 to the Commission for Human Rights and Good Governance which was established for the purpose thereof, it is my concern to note the circumstances which the Commission had to face upon its establishment. For the better purposes of this study, On January 26th 2001 there occurred footed events in which 23 people were killed by the state police in Pemba and over two thousand fled for their lives as refugees[61], It was due to the banned but peaceful demonstration organized by CUF, demanding for the enactment of a new democratic Constitution, an independent electoral commission and a re-run of the controversial Zanzibar elections, However there were other challenges like lack of HIV/AIDS policy in protection of HIV-Victims against discrimination: in the case of R V. Nassoro Rwabunywenge criminal case No.282 of 1998 [unreported] (Tanga) The Principle Magistrate in his judgement stated.

“The accused person is suffering from HIV which is a serious offence. If
at all he is left free, it is evident that there is a great possibility that this
dangerous disease will be spread. The accused person has got no hope
of living. So it is better if he dies himself, but not to use this chance to
kill others. I think that a prison will be a place for him to die. I hereby
sentence the accused person to two (2) years imprisonment.[62]”

Apart from that, the challenges on Female Genital Mutilation (FGM), a massive redundancy of public and private establishment workers due to introduction of new technologies i.e the use of computers, in such eventualities, the Commission for Human Rights and Good Governance had to face such challenges at its welcome, leaving aside massive violations of human rights by the Government and the newly threat of human kind existence and peace – Terrorism.


In 2001, however the CHRGG was still an infant institution, much of human rights protection advocacy was handled by the LEGALMENT which is made up of the Legal and Human Rights Centre (LHRC), the University of Dar Es Salaam, Legal Aid Committee (LAC), Tanzania Woman Lawyers Association (TAWLA), Tanzania Media Women Association (TAMWA), Women Legal Aid Centre (WLAC) and Environment Human Right Care and Gender Organizations (ENVIROCARE) which in its generality had also great expectations to the newly established ombudsman institution, the CHRGG[63].

In the year 2002, the Commission was fully in place for execution of its duties, however no much complaints were received, on July,29th 2003.The Legal and Environment Action Team (LEAT) submitted a complaint to the Human Rights and Good Governance Commission against the Afrika Mashariki Gold Mine and on November, 24th 2003, the CHRGG issued an order of injunction against the Africa Mashariki Gold Mine (AMGM), Tarime D.C-Pascal Mabiti, District land Valuation Officer-David Magabe and AMGM’s Public relations Officer-John Bosco Mbushiro, This was the first successful test which was celebrated as a success for the Commission[64].

The Commission being the Human Rights protector was entrusted and all complaints on human rights violations were logged to it, mainly being massive destruction and dispossession of property; The Nyamuma villagers complaint and the arbitrary eviction on 12th October, 2001 which after publicly hearing by way of enquiry by the CHRGG and its recommendations being offered on December, 2004-is a good example, However in 2006, the Commission visited 10 prisons for Human rights violations inspection. However, more of the complaints logged to the Commission were on land and labour matters of which the Commission does only reconcile the parties. The protection of human rights in Tanzania from 2001 to 2006 has been wholly the noble duty of the Commission for Human Rights and Good Governance, In one aspect, it is true that the CHRGG has successfully been the only National institution in promotion and protection of Human Rights and Good Governance, but from 2001 to 2006 there were no complaints concerning Good Governance unless brought in conjugation with human rights violation by public officials[65]; in the aspect of how effective or ineffective in promotion and protection of human rights the Commission is, has been proved in this study.

3.2.1 THE COMMISSION FOR HUMAN RIGHTS
AND GOOD GOVERNANCE ACT, 2001.

The Commission for Human Rights and Good Governance Act, 2001, came in as a Bill which was announced in the Gazette of the United Republic of Tanzania, No. 6 Vol 82 of February 2001, the Bill was accented by the then President on 2, May, 2001 and published to the Gazette of the United Republic of Tanzania, No. 18 Vol 82 of 4th May, 2001.

The Act is divided into six parts, part one entails Preliminary Provision which are under section one to section four; Part two entails the provisions for the Commission to include the Act to regulate the Commission, sections 5 and 6[66], composition of the Commission, tenure and condition of service, members to relinquish certain offices, S. 9 (i)[67], removal of commissioners, the provision for the Executive secretary and other staff of commission and Oaths.

Part three embodies Status, Powers and Competence of Commission which is covered under S. 13 to S. 21[68], which declares the Commission as a public independent department, this part also confers powers to investigate any human rights abuses or mal – administration to the Commission, status of proceedings, decision and witnesses, proceedings in public, secrecy and confidentiality, procedure of hearing, meeting and decision of the Commission.
Part four provides for Complaints and Investigations, which are covered under sections 22 to 28 to include manner of bringing complaints, representation, notice of complaint and opportunity to be heard, special powers of investigation and procedure in respect of such, evidence at investigation and procedure after investigation.

Part five entails provisions for finances, audit and reports which cover the resources of the Commission, accountability, estimates of revenue and expenditure, audit annual reports, special reports and other reports, this part is covered by sections 29 to 35[69].

Part six of the Act provides for Miscellaneous provisions, this part is only covered by five sections which are S.36, 37, 38, 39 and 40[70] which include procedure of the Commission, offence and penalties, regulations, the repeal of the Permanent Commission of Enquiry Act, 1966 and transitional; In addition, there is a schedule for oaths/affirmation of members and Employees and Jedwali for “Kiapo cha watumishi wa tume”.

The effectiveness of the Commission depends solely on the Commission for Human Rights and Good Governance Act, which is the law that establishes the Commission, the most important provisions of the Act are the provisions on independence of the Commission and the status of the decision of the Commission; the recommendations by the Nyalali Commission was to make the Commission for Human Rights responsible to the Parliament the Act does not show to whom is the Commission responsible, S. 7 (2) of the Act gives power to the President to appoint commissioners and Assistant-Commissioners, and he is given powers to remove from office a commissioner as per S. 10, CHRGGA, also the special report of the Commission should be taken to the President but surprisingly, in financial matters, the Commission is responsible to the parliament[71] as per S.30 (i)[72] the President can bar any investigation to a certain person, the President of Zanzibar is exempted from any investigation by the Commission[73] and the Commission is also required to submit some reports to him[74].

In this study, the essential study to be examined is the effectiveness of the decision of the Commission, the status of the decision of the Commission is among the things which contradict in the Act, the Commission has no ability to make an order of command, once the recommendations of the CHRGG have been neglected, the CHRGG has to go to court as a solution, it can issue interim orders subject to S. 25 (d)[75] also it can make only recommendations in pursuance to S. 17 (i) which can be enforced by court in case are ignored subject to application by the Commission. However these important provisions, that is, which pertains to the independence of the Commission and the status of the decision does not give powers to the CHRGG so that it can fully effect its noble role of promotion and more so protection of Human Rights.




3.3.1 ENFORCEMENT OF THE DECISSION.

Subject to this work, the enforcement of the decision means the enforcement of the decision of the Commission for Human Rights and Good Governance as provided under the Commission for Human Rights and Good Governance Act, 2001; The Commission can give a decision as per S. 17 (1) of the Act, the decision is in the form of a recommendation, once the recommendations have been neglected the CHRGG has to go to court as a solution to enforce its recommendations. The recommendations of the Commission has no legal binding, the court therefore has to give order for the enforcement of the decision of the Commission;

Section 17 (1) S. 25 (d) and (f) provides:

“The decision of the Commission shall have the status 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… The Commission shall for the purposes of performing its function under the Act, have power to ….make interim orders to preserve, pending determination of the matters at issue the existing state of affairs between the parties to the proceedings or the rights of the parties … and to cause, any person contemptuous of its proceedings or orders to be prosecuted before a competent court.’’

However, the Act does not give the recommendation of the Commission a status of a court order nor does the Act pronounces legal enforceability of the recommendations of the Commission by the court, silence of the Commission for Human Rights and Good Governance Act has led to human rights violations tycoons-the government to refuse to compensate the eviction victims. In which in the court’s decision in Korosso’s case the enforcement of the decision of the Commission was seen to lack legal binding and therefore not enforceable in law; in his own words Mr. Justice, the then chairperson of the CHRGG, Hon. Robert Kisanga confirmed to the contentions of the ineffectiveness of the decision of the Commission when he told news reporters to the effect that.
“The Commission (recommendation) doesn’t have any legal binding
(ness) it just gives recommendation of the investigations done
following complaints on human rights violations and good
governance….. Victims have to go to court when our
recommendations are ignored….. In such eventualities it defeats the
whole purpose of why the Commission was formed”
(Emphasis supplied)

From the observations stated above, the refusal by the government to abide to the decision of the Commission and the decision of the court against the enforceability of the Commission’s recommendation in law, confirms the criticisms that were thrown at CHRGG at its formation that it would merely be infective in dealing with violations of human rights and abuses of public administrative powers.

There is however no doubt that the admission by the then Chairperson of the Commission that the Commission’s decision are merely recommendations, the recommendations of which have no legal binding signifies that the proper authority or person having control over the person in respect of whose act or conduct an investigation has been carried out is required to abide to the recommendations in Good Faith; This notion of Pacta Sunt Servanda can in no way make the Commission effective unless endured by sanctions;

3.3.2 THE COMMISSION AND HUMAN RIGHTS.

In its noble duty of promotion and protection of human rights, the Commission has a duty to encompass all the rights and freedoms of an individual which are enshrined
in the Constitution of the United Republic of Tanzania under articles 12 to 28 as provided in article 29 (i)[76] as
“Every person in the United Republic has the right to enjoy
fundamental human rights and the benefits of the fulfillment by
every person of his duty to society, as provided in articles 12 to
28 of this chapter of the constitution”

However, the Basic Rights and Fundamental Duties of all individuals are provided under those articles to include, equality of human beings, equality before the law, the right to life, right to personal freedom, the right to privacy and security of the person, the right to freedom of movements, the right to freedom of expression, freedom to participate in public affairs, the right to work, the right to just renumeration and the right to own property[77].

The Commission in its endeavour to promote and protect human rights has been seen to protect a sect of these rights and neglected other rights as if it is not its duty, the CHRGG has put much emphasis on the Economic and Social Rights[78], the Commission does not much seem to promote the protection of the political rights such as the right to life and the rights to participate in governance, this is manifested in absence of the CHRGG as a proper party in the case between
Legal and Human Rights Centre (LHRC) and others Vs. The Hon. Attorney General[79] (Also known as the “TAKRIMAS” case)

Also the Commission is not involved in the current activism of condemnation of death penalty, there is no doubt that the Commission promotes and protects economic and social rights[80] for example, where the manner through which the social evictions was carried out was alleged to be violative of several economic and social rights, including the right to housing, the right to food, the right to property and the express denial of the alternative settlement to the victims of the eviction[81], the Commission thus is akin to protecting the rights which touches the social economic interests of individuals which are tangible, they can be felt and experienced by the majority of the people in case violated, but this is not a justifiable cause for not protecting and promoting other rights which are political oriented.

The Judiciary, though not an ombudsman institution is far better a protector of individual rights other than the economic and social rights, the trial judge has the power the to raise the matter suo moto in determining the constitutionality of any law when hearing the case, the judiciary has responded against customary laws which are discriminatory against women [Bernado Ephraim vs. Holaria Pastory (1989) Civ App. No. 70 (Mwanza), corporal punishment for adults. In Thomas Mjengi vs. R, [82] the High Court found corporal punishment to be inhuman, cruel and degrading punishment; The High court of Tanzania has in the case of Mbushuu & Dominic Mnyoroge and Anor V. R[83] declared the death penalty unconstitutional, The Commission in its recourse has not even appeared to the public and raise awareness or campaign on the right to life and other political rights which is its grand duty.































CHAPTER FOUR

4.0. THE PRACTICAL ASPECT OF THE LAW.

The Commission for Human Rights and Good Governance was established in 2001, and came into operation in 2001 following the enactment and the coming into force of its founding statute, the Commission for Human Rights and Good Governance Act, Cap 391 R.E 2001. [This Act was amended by Act No.16 of 2001 and come into force on 9th May 2001 vide Government Notice No. 67 of 4th 20001][84]

The law as pointed out in the provisions scrutinized provides for the role, constraints and prospects of the Commission in protecting human rights and addressing abuse of public authority, the law provides the Commission with its modus operandi, mechanisms of dispute settlement, it independence, security of tenure and security of emoluments in its six parts thenceforth,


4.1 EXAMINATION OF THE DECISION OF
THE COMMISSION GENERALLY.


The decision of the Commission and its status are provided for under section 17 (i)[85] as
“The decision of the Commission shall have the status of 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”

The decision of the Commission is given after the proceedings of the matters have satisfied the provisions of section 17 (2), (3), (4), (5), (6)[86] as relating to the witnesses and the mode of obtaining evidences;
Apart from the proviso of S.17, section 28[87] supplements it with procedures after investigation, thus section 28 (3)[88] states,

“If within the prescribed time after the report is made 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 and seek such remedy as may be appropriate for the enforcement of the
recommendation of the Commission”

According to section 28 (4) of the Act, the CHRGG can resolve any complaint or rectify an act or commission emanating from a violation of any fundamental right or acts of maladministration by mediation, conciliation or negotiation,

According to the then CHRGG chairman Hon (retired) Justice Kisanga, when the Commission is involved in mediation or conciliation; it is acting in a quasi-judicial capacity. The quasi-adjudicatory function of the Commission is particularly in relation to carrying out public hearing enquires. Mediation is a means to an end. It seeks to reconcile people. That is why the Commission has a role to play in conflict resolution by way of mediation, conciliation and adjudication, apart from investigating complaints and conducting enquiries into violations of human rights and contravention of principles of good governance[89].

In so far as the law provides for the decision and status of the decision. It is better for this study to note that the decision of the Commission may not suffice or have the same status with the court’s decision, in examination of the decision of the Commission to ascertain its efficacy in promotion and protection of human rights the then Commission chairperson Hon. Justice Kisanga once said,

“… The decisions of the Commission have the status of recommendations.
As such, the Commission lacks the judicially binding powers of the court
to enforce its recommendations.This may create some problems
particularly where unyielding respondents are involved”[90]

But before he went that far as to the last hope of the enforceability of the Commission’s decision, the then Commission’s chairperson while addressing the media he regretfully noted that the Commission does not have any legal binding but it rather recommends on the investigations done following complaint on human rights violations and good governance … victims therefore have to go to court when such recommendations are ignored, in such eventualities he added, it defeats the whole purpose of why the Commission was formed[91].

Apart from the comments on the status of the decision of the Commission by the then Commission’s chairperson, the efficacy of the CHRGG was practically tested for the first time in Ibrahim Korosso And 134 Others Together With The Legal And Human Rights Centre V. District Commissioner And The Police Officer In Command Of Serengeti District Together With The Attorney General. In this matter, the respondents defied the recommendation by of CHRGG, which of course confirmed the common pessimism shown by many critics on it at its formation that its recommendations might be defied by some public officers or authorities. In that matter, all villagers from the entire Nyamuma Village were arbitrarily evicted on 12th October. 2001 by the Serengeti District authorities under the District Commissioner and the District Police Officer in command who also set on fire an estimate number of at least 135 households. The reason behind was extension of the Ikorongo Game Reserve, which had to cut deeply into a good number of traditional households in Nyamuma Village.

Upon a fact – finding mission sent by the LHRC to Nyamuma, the LHRC decided, on behalf of the Nyamuma villagers to lodge a complaint to the CHRGG challenging such violations of human rights and good governance. Upon hearing a host of witnesses during the public hearing which were held in Musoma Township.

The CHRGG delivered its decision in December 2004 in favour of the complainants, ordering the government to pay a total amount of Tshs.890, 523,950 /= to the villagers as compensation for the foregoing ordeal. The CHRGG also ordered for reinstatement of villagers back to Nyamuma village[92], However the Government through a letter from the Attorney General[93] refused to comply with the foregoing CHRGG recommendations. This in effect, confirmed criticisms that were thrown at CHRGG at its formation that it would merely be ineffective in dealing with violations of human rights, as the then Commission’s chairperson has confirmed to this contention[94].

The Legal and Human Rights Centre, subject to section 28 (3)[95] took the matter to the High Court as the court of competent authority to legally enforce the decision of the Commission, this was the darkest side of the Commission and thus, it is from this view that the enforcement of the decision of the Commission is reduced from a perception of having legal force to merely through a person’s or authorities’ will to be bound by the recommendations in good faith,

In interpreting the proviso of section 28 (3) of the Commission for Human Rights and Good Governance Act, 2001, the High Court Judges[96] interpreted it to mean that the decision of the Commission is merely a recommendation and can not be enforceable, thus there is no any legal enforcement of the decision of the Commission, the then chairperson admitted to the effect that … the Commission lacks the judicially binding power of the courts to enforce its recommendations. Thus, the person or authority of whose act or conduct an investigation has been carried is required to be abiding to the decision of the Commission in good faith.

Therefore, it should be borne in mind that the law neither in section 17 (1) nor in 28 (3) has given legal bindingness to the decision of the Commission, section 17 (1), CHRGGA, provides to the effect that, the decision of the Commission shall have the status of a recommendation to whose act or conduct any investigation has been carried out, this proviso does not proclaim the legal status of the decision apart from being a mere recommendation and only recommendation, where withal section, 28 (3) purports that due to the recommendations made, the CHRGG may bring an action before any court or recommend to any competent authority to bring an action and seek such remedy as may be appropriate for the enforcement of the recommendation of the Commission. The provisions are silent as they both provide a room for the court to enforce the decision while there is no provision which confers legal bindingness or enforceability of the recommendation of the Commission by the courts of law

The lack of the Commission’s judicially binding power of the courts to enforce its recommendations has led to a bitter hot nail by the High Court refusing to enforce the recommendation of the Commission, this unveiled the truth that the Commission lacks teeth[97], and the efficacy of CHRGG in promoting good governance is dependent very much on the existence of a political will to implement its recommendations. Otherwise, what happened to the Nyamuma case might be the order of the day[98].

As I have pointed out above, the Commission has no power to issue an order of command, but only recommends subject to section 17 (1)[99] but it can make interim orders to preserve pending determination of matters at issue the existing state of affairs. between the parties to the proceeding or the rights of the parties, Thus therefore for having lack of legal binding authority, the promotion and protection of human rights in Tanzania is however not guaranteed in the true sense of the term, It is much better to classify the Ombudsman institution as “an operating bank in the mid-night without guards”.

4.2 ACCESS TO THE COMMISSION.

There is a free access to the Commission so far as the proviso of section 13 (1) of the Act concerns, under the auspicious of S. 13 (1), the Commission is established as a public department, in regard to the provisions of the Constitution and other laws relating to public departments, the access to the Commission is guaranteed to all, section 22, CHRGGA, deals with manner of bringing complaints, subsection (1) provides for all complaints to the Commission to be made either orally or in writing and to be recorded in such form as may be prescribed by the Commission, sub-section (2) gives access to a person in custody or a patient in hospital to address the complaint to the Commission through an agent where withal subsection (3) provides for a complaint to be made by any individual or a body of persons whether corporate or unincorporated,

It is therefore adequate to substantiate to the effect that the law provides for an access to the Commission for all.

4.3. TECHNICALITIES OF PROCEDURES.

However the access to the Commission is provided, the technicalities of procedures bars the victims to access the Commission in time, section 22(4) (b) requires the complainants before submission of their complaints to the Commission ought to exhaust grievance or other procedures prescribed by law, otherwise available, this has a literal meaning that the complainant has to go to court, tribunal or other law enforcing, or administrative bodies before going to the Commission. Experience shows that, a case in such other organs may take up to 5 or 10 years to be concluded, for example, the Kazimzumbwi case[100] which took three years before commencement of hearing. Thus, having such procedures in the Act leads to failure of the Commission to deal and solve problems in time which it may meet such same problems aftermath while the victims have suffered the indented consequences for a long period of time.

4.4. GEOGRAPHICAL LOCATION.

One of the huddles to access the Commission is geographical location of the same, Article 130 (6)[101] provides for the Commission to apply to persons employed in the service of the Government of the United Republic and those of the Revolutionary Government of Zanzibar, section 13 (2) (a)[102] provides to the effect that,

“For the purpose of the better performance of its functions the Commission
may, where it considers it necessary or appropriate, establish – other offices away from its head quarters in such geographical areas or at such administrative levels as it may determine”


Thus, in response to that requirement the Commission has established only a single office apart from its head quarters in Dar es salaam at Mbweni in Zanzibar for the Isles, Apart from the two offices in Dar es salaam and Zanzibar, there is no any other office established, therefore, the two offices are duly to cater for the population of 39 million (estimated Tanzanian population) hence, the victims have to travel to where the offices are located so as to lodge their complaints, For instance, The Nyamuma Villagers had to travel to Dar es salaam in support of the LHRC for a peaceful demonstration and lodging of their complaint, therefore, the Geographical location of the Commission makes the task of human rights protection difficult as to the purpose of why it was meant to be,

4.5. MAN POWER.

The constitution of the United Republic of Tanzania 1977 as amended, provides for the commissioners to constitute the working personnel of the Commission, under article 129 (2) (a)-(d) to include the chairman, the vice chairman and other commissioners not exceeding five, and assistant commissioner whose number is not definite, as dully provided under section 7 (1) of the Act, In response to S.7 (4)[103], the Minister in A Government Notice. No. 89 of 11th May 2001, pronounced the Commission for Human Rights and Good Governance (Appointment Procedure for Commissioners) Regulations, 2001.

In order to effect its functions, the Commission needs a capacity of 252 working personnel’s to effective the day to day duties, but in so far, the Commission has 191 personnel, which means there is a deficit of 61 working personnel[104] in such a big range it renders it difficult to effect its duties and some times it takes long period of time to handle certain matters and sometimes even impossible, thus, effectiveness of the Commission to erect its duties is always at stake in regard to inadequacy of the working personnel,



4.6. FINANCIAL RESOURCES OF THE COMMISSION.

The funds of the Commission shall consists of moneys appropriated by the Parliament for the purpose of the Commission, accruing to the Commission from any other source or which are donations or grants from sources within or outside the United Republic. The Commission is responsible to the National Assembly in accounting for all its’ revenue and expenditures therefore, the CHRGG is required to prepare its budget through the minister responsible for Human Rights, the Minister in consultation with the Minister for finance will advice the Commission to prepare its annual budget.

From the light of the revenue and expenditure of the Commission, the Commission’s emoluments are chiefly dependent upon the executive, thus, the security of emoluments is not efficacious secured, thus, the independence of the Commission is to the great extent limited by the executive; the law does not give the Commission security of emolments as that of the judiciary and therefore, the effectiveness of CHRGG is again limited, this considerable factor does not separate the Commission from the arms of the chief executive.

4.7 DATA PRESENTATION AND ANALYSIS.

This study was done through research in libraries, including the University of Dar Es Salaam – faculty of law library through which a number of thesis, dissertation and books were scrutinized, the library of Tumaini University Dar Es Salaam College where reports, journals, articles and books as well were used; however, the library research has enabled this work to encompass a strong theoretical basis to the problem, the field work through interviews has proved beyond expectations to the theoretical findings through libraries.

The nature of the study made it difficult for the researcher to get data through interviews to ordinary civilians, however relevant data was obtained from the legal practitioners and workers of the Human Rights Activists organizations which includes but not limited to the Legal and Human Rights Centre (LHRC), NOLA, LEAT, TAMWA, TAWLA and (TNGP). Due to unpopularity of the Commission to ordinary civilians, thus my research depended mainly on library research;
The basis of my study is chiefly whether the law on the decision of the Commission has given teeth to the Commission so as to promote and protect human rights. Thus the law on the decision is found under section 17 (1), 25 (d) and 28 (3)[105], these sections are subjected to a critical analysis.

Section 17 (1)[106], provides,
“The decision of the Commission shall have the status 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”

Therefore, the decision of the Commission is not endowed with the status of an order or command, it is neither a decree nor a judgment, it is therefore an opinion on human rights violations upon which the authority or a person against which such recommendations are made may observe the recommendations of the Commission or may ignore them without any legal consequences.

The practical aspect of the proviso of section 17 (1) was revealed in Korosso’s case[107], the Government through the letter from the Attorney General expressly refused to comply with the foregoing CHRGG recommendations, maintaining that it was actually the Commission that was mistaken in finding the respondents in this matter having violated basic human rights of the complainants[108].

In due regard, the then chairperson of the Commission confirmed to this contention when he told news reporters to the effect that,
“The Commission’s recommendations do not have any legal binding (-ness), it just gives recommendations of the investigation done following complaints on human rights violations and good governance…. Victims have to go to court when our recommendations are ignored …in such eventualities it defeats the whole purpose why the Commission was formed”.[109] (Emphasis supplied).

It is therefore undisputed that the practical aspect of section 17 (1)[110] , has not given any power of authority to the Commission, thus it can be argued that the efficacy of CHRGG in promotion and protection of human rights is dependant very much on the existence of political will to implement its recommendation, otherwise human rights violations may be an order of the day; therefore, S. 17(1)[111] has in no way given teeth to the Commission so that it can promote and protect human rights.

Moreover, S. 25 (d) provides that,
“The Commission shall for the purposes of performing its
functions under the Act, have power to make interim
orders to preserve, pending determination of the matters at
issue the existing state of affairs between the parties to the
proceedings or the rights of the parties”.

Therefore, the Commission is not given executive powers under the ambit of s. 25 (d)[112], neither has it been given powers to give orders per se, but only to make interim orders while awaiting for the final decision.

In 2003, the Commission received an application for an order of injunction by LEAT against Afrika Mashariki Gold Mines (AMGM) and it successfully issued an injunction order in October the same year. This provision, however successful it might be in giving power to the Commission to give interim orders, it is by itself not sufficient in giving the CHRRG teeth in protection of human rights, it is also immaterial for the Commission to give interim orders under S. 25 (d) of the Act and merely give recommendations thereafter as provided under S.17 (1) of the Act.

According to section 28 (3) of the Act, the Commission after a report has been made with no response, it may go to court so as to bring an action for the enforcement of its recommendations, the proviso provides as follows.
“If within the prescribed time after the report is made 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 bring an action and seek such remedy as may be appropriate for the enforcement of the recommendation of the Commission.”
Therefore, the proviso proves to the effect that the Commission’s decision have no any legal bindingness, the section provides to the effect that the Commission has to go to court to pray for the enforcement of the recommendations by the court, This position was watered down by the High Court in Ibrahim Korosso & 134 Others Together With The LHRC V. District Commissioner And The Police Officer In Command Of Serengeti District With The Attorney General[113], The High Court while refusing to enforce the recommendations of the Commission, it expressly stated that,
The decision of the Commission has the status of the recommendations therefore it can not be enforceable,

In complementary of the court’s decision, the then Commission chairperson, Hon. Justice Kisanga (retired), commented:
“The decisions of the Commission have the status of the recommendations, As such; the Commission lacks the judicially binding power of the courts to enforce its recommendations. This may create some problems particularly where unyielding respondents are involved,[114]”

However, in analyzing the data by critically examining the law relating to the decision of the Commission there is no doubt that it was the intention of the government to institute a toothless Ombudsman institution, since the law relating to the decision does not give any power or order of command to such a decision, the weaknesses of such provisions has led to practically impossible for the enforcement of the decision of the Commission, wherefore, the law establishing the Commission has flattered the aim of which it was created, this, in effect, confirms criticisms that were thrown at CHRGG at its formation that it would be ineffective in dealing with violations of human rights.[115]


4.8 SUMMARY OF THE MAIN FINDINGS.

The effectiveness of the Commission for Human Rights and Good Governance has been extensively examined through the decision of the Commission and the following are the main findings;

It has been found in the study that the decision of the Commission is a mere recommendation as it is provided under S. 17 (1) of the CHRGGA, due to its status it can not be enforceable in courts of law which therefore renders the Commission ineffective in promotion and protection of human rights,

The law under S.17 (1)[116], does not give the decision of the Commission legal bindingness; thus it does not give teeth to the Commission so as to promote and protect human rights: As such the Commission is ineffective in promotion and protection of human rights.

The Commission’s decision as a recommendation is not binding, however, if it is ignored, the Commission can go to court subject to S. 28 (3) to enforce the decision, but it has been found that the Commission lacks the judicially binding power of the courts to enforce its recommendation, this reveals the ineffectiveness of the law on the Commission in promotion and protection of human rights.

Also, the law relating to the decision is weak to the effect that it has not given any legal status to the decision of the Commission, thus, it has not given any legal binding authority to the Commission to enforce its decision against whose the investigation is made, which therefore has made the Commission ineffective in protection of human rights.

The efficacy of the Commission for Human Rights and Good Governance in promotion and protection of human rights is dependant very much on the existence of a political will to implement its recommendations; therefore the law has not given teeth to the Commission which renders it ineffective in protection of human rights.

On top of that, the further findings of this work is that the enforcement of the decision of the Commission is through Pacta Sunt Servanda (emphasis supplied), that is, a party against whose recommendations are made is required to abide to the recommendations of the Commission in good faith, if he refuses there is no any mechanism to punish him/her, thus the Commission is ineffective in protection of human rights as individuals and or the state can violate human rights and refuse to abide to the recommendations of the Commission.

Moreover, it has been found that the Commission lacks teeth, thus the law on the decision of the Commission does not give authority “teeth” to the Commission, and therefore it is ineffective in promotion and protection of human rights. (Emphasis supplied).

Moreover, the Commission is found to be a mere shock absorber, in the sense that, when the violation of human rights in multitude occur, it receives complaints to cool down temper and anger of whose rights have been violated and bring peace to the parties but it does not give an enforceable decision for the party to be entitled to his rights which are so violated, thus, the Commission is ineffective in protection of human rights and good governance.

It is also found that, the Commission is not independent of the executive, the president have a lot of inherent powers over the Commission, thus , like its predecessor, the Commission is also ineffective in promotion and protection of human rights.﴾﴾ s.7 (2), 8 (3)﴿[117].










CHAPTER FIVE

5.0 CONCLUSION.

Human rights as inborn and inalienable rights are not given by any authority whatsoever, but in recognizance of such rights a number of legislations have been enacted to acknowledge the existence of human rights. However, Ombudsman institutions have been established in national and international levels. The effectiveness of the Commission for Human Rights and Good Governance depends on the law establishing it. In this regard, the law establishing the Commission has not given it executive powers, especially the law on the decision of the Commission. The Protection and Promotion of Human Rights in Tanzania. From 2001 to 2006 entailed a great hope to civilians and a bright future in human rights protection by the human rights activists, but all in vain. This study has proved the proposition that the Commission is ineffective in promotion and protection of human rights, and the study has confirmed criticism that were thrown at the Commission for Human Rights and Good Governance at its formation that it would merely be ineffective in dealing with violations of human rights.

5.1. RECOMMENDATIONS.

The Commission for Human Rights and Good Governance in order to be fruitful for the purpose it was created, it should be responsible to the Parliament, for which it can even criticize and control human rights violation by the government. The Nyalali Commission[118], while recommending on the then Ombudsman the (PCE), recommended to the effect that the PCE should be independent of the executive and it should be responsible to the Parliament and be given powers to prosecute on its own, these recommendations were not fully implemented in the newly established CHRGG. Thus, those recommendations are worth to be regarded.

The law on the decision of the Commission should be repealed and the status of the decision of the Commission is to be restated in a comprehensive and effective manner, it should provide for a decree or a decision enforceable legally as that of the High Court or any court of competent jurisdiction.

The law on the decision of Commission should alternatively be given legally binding powers to be enforceable by the High Court rather than a recommendation which has no legal powers to be enforceable by the Court.

Since the procedures for submission of complaints to the Commission requires a complainant to have exhausted grievances or other procedures by the law otherwise available, the Commission should have the status of a tribunal with exclusive jurisdiction on human rights issues.

The law on the establishment of the Commission does not give any independence to the Commission, and does not provide the Commission with powers which could otherwise entitle the victims with a fair remedy, it is thus recommended that the Commission should be a government parastatals to provide education on human rights issues as most of the Non Governmental Organizations do, than a protector of human rights against which it has proven failure.

The Commission has been performing its duties as a quasi-judicial tribunal, but without any legal binding (-ness) of its decisions. The High Court proved to be efficient in protection of human right from 1988 to 2000,it is therefore recommended that, the Commission for Human Rights and Good Governance should be watered down, The NGO’s will act as human rights promoters whereas the High Court will be used as the human rights protectorate.









BIBLIOGRAPHY

BOOKS

Kamal, Hossain: Human Rights Commissions and Ombudsman officers; National experience throughout the World, The Hague, Kluwer Law International

Peter, C.M, Human Rights in Tanzania; Selected Cases and Materials, 1997, Rudger Kope Verlag Köln, Dar Es Salaam.

Shivji, I.G. et, al, Constitution and Legal system of Tanzania, (2004) Mkuki na Nyota Publishers, DSM.


ARTICLES

Joyce Mkinga “Human Rights Commission says it’s toothless” The Guardian, June 22, 2005
Kaniki, O.J.A. An Ombudsman and Human Protection and Promotion, The Permanent Commission of Enquiry in Tanzania: A toothless Bulldog? A revised paper which had appeared in the Guardian (Tanzania) New paper on six part series between 16 – 23, December 1996, 1998 – 2000

Keregeo Keregeo “Government refuses to Compensate Eviction Victim” The Guardian May 24, 2005

Mwaikusa, J.T, Genesis of Bill of Rights in Tanzania, the African Society of International and Comparative Law, 1991


OFFICIAL REPORTS

LHRC, Tanzania Human Rights Report 2005, Legal and Human Rights Centre, Dar Es Salaam (TZ)

URT, Presidential Commission on Single Party or Multiparty System in Tanzania, 1991 Dar Es Salaam (TZ)

THESIS/ DISERTATION

Kagaigai, Stephen Nzohabonayo; Prospects of Promotion and Protection of Human Rights in Tanzania by the Commission for HRGG, 2004, UDSM. (A Thesis for LLM, of the UDSM, 2004)

Mdemu, Gerson John, the Promotion and Protection on the commission for Human Rights and Good Governance, 2005, UDSM; (A Thesis for LLM, of the UDSM, 2005)

Soka, Bertha. Establishment for Commission for Human rights and administrative Justice, 2000, UDSM. (A Thesis for PGDL, of the UDSM, 2000).



[1]The Permanent Commission of Enquiry,1966
[2] URT, Presidential Commission on Single Party or Multiparty in Tanzania,1991,Dar Es Salaam.
[3]June,1999
[4]Ibid at pg. 25.
[5] Genesis of the Bill of Rights in Tanzania; the African Society of International and Comparative Law,1991 3 part 4,680 at 684
[6] United Republic of Tanzania, Presidential Commission, op cit.
[7]Ibid at pg.85
[8]The Promotion and Protection of Human Rights; A study on the CHRGG, A thesis for LLM,UDSM,2005
[9] The Guardian News Paper (Dar Es Salaam) 22nd June 2005.
[10]Ibid May,24th ,2005
[11] Prospects for Promotion and Protection of Human Rights in Tanzania by the Commission for Human
Rights and Good Governance, A thesis for UDSM, LLM, 2004.
[12]Case study at Nyamuma –Serengeti,2006,LHRC,DSM
[13] In Ibrahim Korosso & 134 together with the LHRC Vs. District Commissioner, the Police in Command
of Serengeti District with the A.G.
[14]Vol.6 (September-December, 2007) by NOLA, DSM at pp.39 & 40.
[15] In his letter dated 18/05/2005 with Ref No. J/C.60/4/3389/101.
[16] A Journal paper Submitted by Legal Department-UDSM.HAKI No.2, June, 2001 at pg 31.
[17]Vibeke Stemann, FORKETINGENTS OMBUDSMAND, Summary Annual Report, 2005 in the Justice Review, Vol.6 at pg 39.
[18]Op cit
[19]Human Rights Commissions and Ombudsman Officers; National Experience Throughout the World, The Hague, Kluwer Law International,
[20] . A paper on Human Rights, by the United Nations Association of Tanzania – Youth Wing – Presented at the workshop on effective Youth participation in the community – at New Mwanza Hotel, Mwanza on 3rd to 5th May 2002.
[21] . According to the Universal Declarations on Human Rights Charters, Articles 1and 2 , UDHR, also in the UDHR – Preamble:
[22] . Av Bianca Robertson, Knowledge of International Human Rights
[23] . Op Cit 1
[24] . Av Bianca Robertson, ibid op Cit 3
[25] Peter Chris Maina, Human Right in Tanzania, Selected Cases and Materials, Rudger Koppe Verlag. Köln, at pg 2.
[26] Ibid
[27] Kalunga, Leopord. T. “Human Rights and Preventive Detection Act, 1962 of the United Republic of Tanzania’ some operative aspects” Volumes II- 14 Eastern African Law Renew, 1978 – 1981 p. 281; in Peter , C.M, human Rights in Tanzania at p. 2
[28] The parliamentary debates ( Hansard ) 1st October 1968, Col 47 – 48, in Peter , C.M Human Right in Tanzania, op cit at pg 7
.[29]. GOVERNMENT of the URT; Report of the Presidential Commission on the Established of a Democratic one party state – DSM, Government printer, DSM, 1968
[30] The Presidential Commission for the Establishment of the Democratic One Party State.
[31] Peter, Chris Maina ibid at p. 9
[32] Kisanga, J in Attorney General V. Lesnoi Ndeinai & Joseph Selayo Laizer & 2 others (1980) TLR 214
[33]. Kaniki, O.J.A, An Ombudsman and Human Rights Protection and Promotion :the PCE in TZ. A
toothless Bulldog? June , 1999, at pp. 25
[34] Peter, C.M op cit 1 at pg 4
[34] Ibid
[35] . Constitution (fifth) (amendment) Act, 1984 (Act No. 15 of 1984.)
[36] . Such as
[37]. URT, Presidential Commission on single Party or Multiparty in Tanzania , 1991, DSM
[38].Peter , C.M, Human Rights in Tanzania op cit at p. 9

[39] .The permanent commission of enquiry Act (Act No. 25 of 1966)
[40] Presidential Commission op cit 18 at pp. 85
[41] MC AUSLAN, J. P.W.B and GHAI, Yash. P, “Constitution innovation and political stability in Tanzania; A Preliminary Assessment” Vol. 4 No.4 Journal of Modern African Studies, 1966. p 474 in Peter, C. M op Cit 6 at pp. 10
[42] Peter , C.M, Human Rights in Tanzania op cit 6 at p. 10

[43] . Peter , Chris .Maina, Human Rights in Tanzania op cit 6 at p. 3

[44] GOVT of the URT; Report of the presidential commission on the established of a democratic one party state – DSM, Government printer, DSM, 1968 in Peter , C.M, Human Rights in Tanzania ibid at p. 9
[45] . Attorney – General V. Lesnoi Ndeinai Joseph Selayo (1973) LRT 6
[46] Constitution (Consequential, Transitional and Temporary Provisions)Act,1984 ( Act No. 16 of 1984 )
[47] Act, 1984 (Act No. 16 of 1984)
[48] Rev. Mtikila V. A. G (1995). Attorney – General V. Lesnoi Ndeinai Joseph Selayo (1973) LRT 6
[48] Constitution (Consequential TLR 31
[49] Section 5 (2)
[50]1980
[51] . For example: the validity of S. 6(1) of the Government proceedings Act, 1967 was challenged in Kukutia Ole Pumbun V. A.G Of 1992, Reported In (1993) 2 LRC 317; Lohay Akonaay & Another V. The Hon. Attorney General , (H.C) High Court of Tanzania at Arusha, Miscellaneous Civil Cause No. 1 of 1993 (unreported)
[52] . This includes. Rev. Christopher Mtikila, Mabere Marando, Tanganyika Law Society (TLC), legal and Human Rights Centre (LHRC) to mention a few.
[53] Op cit 7 ibid at pg 85
[54] Training of Magistrates and State attorneys in Human Rights in the Administration of Justice,Vol.II,11TH -29TH October 1999,at pp.59 ( Peter, C.M. National Institutions for Protection and Promotion of Human Rights)
[55]Ibid at pg .76
[56]Haki, Toleo la 4 Namba 2,Juni,2001.pp.11-12
[57]Op cit 4 at pg. 25
[58] Genesis of the Bill of Rights in Tanzania; ibid at pg 680 at 684
[59]Op cit 6 at p. 85
[60] LHRC, Tanzania, Annual report -2004 pp.42
[61] Ibid
[62]Ibid at pg 38
[63] Ibid at pg.58
[64] www.state.gv/g/drl/rls/hrrpt/2003
[65] See; The Nyamuma Village Eviction case
[66]Ibid
[67] The Commission for Human Rights and Good Governance Act, No. 7, 2001
[68]Ibid
[69] Ibid
[70]Ibid
[71] URT-Presidential Commission on Single Party or Multiparty System in Tanzania (1991) Vol. at pg 85
[72] Haki Vol. 4 No. 2, Juni, 2001 pg 31.
[73] Ibid
[74] S. 16 (1) ibid
[75] Ibid
[76] URT-Constitution,1977 as amended
[77] The Justice Review,Vol.6, September-December,2007,pg 4
[78] Mashamba,C .J, Litigating Socio-Economic Rights Cases in the Tanzania’s Commission for Human Rights and Good Governance op cit in the Justice Review, ibid at pg.6
[79] Miscellaneous Civil Cause No.77 of 2005
[80] See: Ibrahim Korosso’s case ibid
[81] Mashamba,C.J “Enforcing Social Justice in Tanzania” The case study of Economic and Social Rights op cit;
[82] Nyalali, C.J (as he then was) in A.G Vs. Chumchua Marwa, Cr. App. No.8, 1988.
[83] (1991) No. 28
[84] Justice Review, op cit
[85] Commission for Human Rights an Good Governance Act, No. 7,2001
[86] Ibid
[87] Ibid
[88] Ibid
[89] Op cit
[90] Mashamba, C.J, “Enforcing Social Justice in Tanzania” op cit
[91] Joyce Mkinga, The Guardian newspaper (Dar Es Salaam) 22nd June, 2005.
[92] Mashamba, C.J, Op cit
[93] Ibid
[94] In Joyce Mkinga ,ibid
[95] CHRGG,Act,2001
[96] In Korosso’s case
[97] “Human Rights Commission Says its toothless” op cit
[98] Justice Review, op cit at pg. 7
[99] Ibid
[100] Haki,Vol.4 ibid,
[101] The URT Constitution, ibid
[102] CHRGGA, ibid
[103] Ibid
[104] Source: Interview to the Commission
[105] . The Commission for Human Rights and Good Governance Act, No. 7, 2001.
[106] . Ibid.
[107] . Op cit
[108] . LHRC, Tanzania Human Rights Report , 2005
[109] . Mkinga, J, “Human rights Commission says it’s toothless”, The Guardian news paper, DSM, 22nd June
, 2005 op cit
[110] . Ibid
[111] . CHRGGA, Ibid
[112] . Ibid.
[113] 2005,(HC) (Unreported)
[114] Mashamba ,C.J “enforcing Social Justice in Tanzania” The case of Economic and Social Rights” op cit
[115] Mashamba ,C.J ,enforcing Social Justice in Tanzania, op cit
[116] . Ibid
[117] Ibid
[118] . URT – Presidential Commission on Single Party or Multiparty in Tanzania (1991) Vol. 3 at pg 85.