THE LAW has a vital role to play in the current transformation of government and politics in Tanzania, as Chief Justice Nyalali demonstrated in his impressive survey reported in the last issue of Tanzanian Affairs: as Chairman of the Presidential Commission which recommended ‘multipartyism’ he identified among the first essentials for a true democracy an environment of respect for the Rule of Law and for Human Rights. The Bill of Rights adopted in Tanzania by constitutional amendment in 1984 came into effect in 1987. The Nyalali Commission itself listed no less than 40 oppressive laws which violated the Constitution (many of them laws of Zanzibar); the expectation, yet to be fulfilled in most cases, was that these laws would be repealed, or suitably amended.

Meanwhile Tanzanian judges have given many bold and thoughtful judgements over the past six years, often overturning laws which infringed human rights (most of them reported in the international series Law reports of the Commonwealth).

In the first case under the Bill of Rights Mr Justice Mwalusanya in 1988 struck down the Deportation Ordinance, a colonial legacy dating from 1921, which authorised the ‘rustification’ of individuals with no requirement for fair trial or hearing; Parliament responded strangely in 1991 by purporting to amend this septuagenarian Act which the court had declared to be void!

Another early case tested the power given to the Director of Public Prosecutions by the Criminal Procedure Act to prevent an accused person being released on bail, if the Director certified that bail would prejudice the safety or interests of the state. In the High Court at Mwanza in 1988 Mr Justice Mwalusanya held that this provision was unconstitutional and void, an improper denial of the basic right to personal liberty; he granted bail to Daudi Pete pending his trial for robbery with violence. The Court of Appeal, led by the Chief Justice, rejected the state’s appeal in a judgement which included several important points:

1) The Swahili version of the Constitution is the controlling one – the judges noted significant discrepancies in the official English translation, which lacks some subtleties of the original;

2) the Tanzanian Bill of Rights (which came into force in 1987) also, unusually, stipulates fundamental duties: ‘a constitutionally recognised coexistence of the individual human being and society’;

3) in applying the Bill of Rights the courts can take account of the African Charter of Human and Peoples’ Rights 1981 signed by Tanzania in 1982.

The Bill of Rights prevails not only over statute law but also over customary laws. Holoria Pastory, an elderly lady, inherited some clan land in Muleba District, Kagera Region, under her father’s will and sold it for Shs 300,000. Her nephew disputed the sale, citing a rule of Haya customary law that a woman cannot sell inherited clan land. The District Magistrate (reversing the Primary Court) held that under the Bill of Rights women had the same rights as men; the appeal came before Judge Mwalusanya, who, in a judgement quoting sources as diverse as Religio Medici and the Beggars Opera, rejected it, upholding the sale.

The Bill of Rights guarantees access to the courts to settle disputes. A case of wide general importance (Kukutia Ole Pumbun) concerned a rule enacted in 1967 that a lawsuit against the government could not be started without first obtaining the consent of the Attorney General (a rule not unique to Tanzania). In 1993 the Court of Appeal held the rule was invalid because it violated the right of unimpeded access to the courts: although individual rights must be balanced against the collective rights of society, any derogation from basic rights must meet two conditions: the law must not be arbitrary and the limitation imposed on rights must be no more than are reasonably necessary to achieve a legitimate purpose.

Land rights are obviously vital to most Tanzanians. In the Akonaay case a father and son by court order in 1987 recovered land in Mbulu District which had been taken from them during ‘Operation vijiji’ in the 1970’s. Then in 1992 an Act of Parliament purported to extinguish all customary law rights acquired before ‘operation Vijiji’ in ‘established villages’. The landowners brought a new case, challenging the validity of this Act. In 1993 Mrs Justice Munuo at Arusha held that the Act was void for violating several basic rights – the right to own property (subject to lawful acquisition and payment of compensation), freedom from discrimination and the right of access to the courts. In deciding the state’s appeal, the Chief Justice in the Court of Appeal examined the history of land law in Tanzania from the start of British rule, recognising that it was crucial, for a better understanding of the present, to understand the past (without living in it). The court noted the persistence of the underlying principle of protecting customary rights in land, held that such rights are property rights which the Constitution protects and identified ‘the Nyerere Doctrine of Land Value’ reflecting the value added to land by clearing and working it (citing Nyerere’s Freedom and unity 1966). However, the court allowed the appeal in part, because the customary rights in question had been effectively extinguished by legislation of 1987, before the Bill of Rights, which is not retrospective, became enforceable. Therefore the 1992 Act, which the court aptly termed ‘draconian legislation’, was not so much invalid as superfluous.

The most dramatic decision on the Bill of Rights was the scholarly, wide-ranging judgement of Mr Justice Mwalusanya, at a murder trial in Dodoma in June 1994, that the death penalty is unconstitutional as a cruel, inhuman and degrading punishment; convicting the accused Mbushuu and Sangula of murder, he sentenced them to life imprisonment. However, in January 1995 the Court of Appeal disagreed and quashed his decision, affirming the constitutionality of the death penalty; but it also quashed the convictions for want of vital evidence and therefore set aside the life sentence. The court rightly commended the judge ‘for the unexcelled industry in his exploration of the human rights literature’.

These recent judgements are now being studied by the new Constitutional Court in South Africa, which is considering the very same question the constitutionality of the death penalty – as its first case under the new Bill of Rights there. It is notable that Tanzania, from its relatively short experience of a Bill of Rights, is able to make such a contribution to the application of an even newer system guaranteeing human rights.

In his talk Chief Justice Nyalali noted that the trend in court cases challenging the constitutionality of oppressive laws, if mishandled, ‘is bound to generate some heat’ between the judiciary on the one side and the executive and legislature on the other. The latter has responded with the Basic Rights and Duties Enforcement Act 1994, which restricts the enforcement of basic rights by requiring a bench of three High Court Judges to sit and requiring them to refer any deficient law to Parliament for amendment, instead of immediately declaring the law to be void. The question has already been raised whether this act itself infringes the basic rights explicitly guaranteed by the constitution.

James S Read

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