THE KEY CONCEPTS GOVERNING FREEDOM OF EXPRESSION:
(DIFFERENCES BETWEEN RIGHT TO INFORMATION AND MEDIA SERVICES LAWS)
Introduction
This presentation is divided into four parts; First part is on the media history in Tanzania, Second is on the laws governing right to Information in Tanzania, third part will be on reasons to separate the right to Information law and Media Services Law. Third part will be on the Stakeholders intervention to proposed laws and final part on the best practices from other countries and recommendation.
1. Media history
The media industry in Tanzania has gone through four major phases, the first phase was during German rule (1890-1916). During this era media intended to serve communication interest and needs of the German administration. Some of the newspapers published during this era included; “Mtenga Watu” (the Converter), (1890) and “ Msimulizi“ in 1888, published by University Mission to Central Africa (UMCA). One weekly newspaper, which was published in the German language called Deutsc-Ostafrikanische Zeitung or “DOAZ” (1899), was ostensibly the mouth piece of the German Planters and farmers.
During the German era, there were about 18 different newspapers and magazines in Tanganyika.
In this era, the law governing media or rather press was the Germany East Africa Newspaper Decree, which came into effect in 1912. The major aim of this law was to control newspaper industry. The most controversial point in the Decree was for the journalist on the events, to be prosecuted as criminals if falling to prove their absence or rather participation on events, which caused violation of colonial laws.
1.1 The second phase was British administration (1916-1961)
During this era press was a propaganda tool to support the colonial regime. The first newspaper to be printed was the “Morogoro News”, which confined itself to the military situation in British Tanganyika. Other newspapers were the “Tanganyika Review” (1930) and “The Planters”, which was for the interest of Coffee, Sisal and farming industries in East Africa. A total of 19, newspapers, newsletter and journals were in circulation during this era.
In addition, during the British era, around the 1950’s, a nationalist press emerged with a major aim to struggle for the independence of Tanganyika. Newspapers like “Sauti ya TANU”, published by the Tanganyika National Union (TANU) and “Baragumu” published by United Tanganyika Party (UTP), were advocating for political independence of Tanganyika. Total of 158 daily and weekly newspapers were published.
In this era, media was controlled by section 63 of the Penal Code 1920. This law made an offence to publish false statements, which were likely to cause fear and alarm to the public. Thereafter it was followed by the Newspaper Ordinance 1928, which had similar offences.
1.2 From Independence to Liberalisation (1961- 1996)
One of the first decisions of Mwalimu Nyerere, was to nationalize media industry after the independence. Mwalimu wanted to utilise the media to foster the unity and the development of the country. However the fact is that all dailies (Mwafrika, Tanganyika, The Standard and Ngurumo and Daily Nation) were owned by private enterprises. Tanzania Broadcasting Cooperation (TBC) was the only radio station, owned by the government, which was later named Radio Tanzania Dar es Salaam (RTD), after dissolution of TBC in 1965.
Later in 1970, the government nationalized The Standard and Sunday News papers, which were owned by the LONRHO Group. He named Frene Ginwala, its first Managing Editor. In 1972 Daily News, replaced The Standard ,and later Mzalendo news paper was established as the Sunday edition of Uhuru newspaper owned by TANU party.
1.3 From liberalization 1992 on wards
The Government monopoly of the media continued until 1992. After re- introduction of multiparty the media was also fully liberalized and many newspapers, radio and TV stations were started. In 1992 there were 180 registered publications, the number increased to 251 in 1994 and in 1996; Tanzania Information Services had registered 323 newspapers and magazine. Thereafter, private TV and Radio stations were introduced. TV station like Independent Television (ITV), Radio One, Radio Tumaini, Radio Free Africa, Radio Maria etc, came in from 1994 on words.
2. Laws Relating to Right to Information in Tanzania
The Right to information is first derived from international treaties, which have included such right in the freedom of expression concept.
As early as 1946, the United Nations General Assembly recognized this right by adopting, in its first session, Resolution 59(1) which stated:
“Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the UN is consecrated.”
The Universal Declaration of Human Rights, 1948, an instrument carrying on internationally agreed customary norms to be adopted by all countries members of the United Nations extended the Resolution 59(1) by including Article XIX in its declarations, which provides:
“Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Similar provision was also included in Article 19 of the International Covenant on Civil and Political Rights, 1966.
The African Charter on Peoples and Human Rights Article 9 also supports these basic rights. It states that
1 Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law
The united Republic of Tanzania is a party to all the above- mentioned international instruments and it has to adhere to them.
Back to the national context, the Constitution of the United Republic of Tanzania, 1977 (as amended in 2005) is a supreme guiding document on the subject.
In its Article 9(f), the Constitution directs all government authorities to consider, whenever making any policies or in execution of their functions, that human rights are respected in accordance to the Universal Declaration of Human Rights, 1948.
Besides, Part three of the Constitution provides for the Basic rights and Duties. Such rights and duties recognized in Part three are enforced by courts in accordance to the Basic Rights and Duties Enforcement Act, 1994
Article 18 of the Constitution, which falls in Part three as amended in 2005, provides that:
“18. Every person –
(a) has the freedom of opinion and expression in his ideas;
(b) has a right to seek, receive and, or disseminate information regardless of national boundaries;
(c) has the freedom to communicate and a freedom with protection from interference from his communication; and
(d) has a right to be informed at all times of various important events of life and activities of the people and also of issues of importance to the society.”
Being the mother law of the land, the Constitution has to be adhered to by all other written laws. Any provision of law that curtails the constitutional provision is subject to annulment by a court order declaring the same to be unconstitutional. The procedure for such annulment and its impact on a respective law is provided for by the Constitution and the Basic Rights and Duties Enforcement Act, 1994 .
3. WHY WE NEED TO SEPARATE BETWEEN THE RIGHT TO INFORMATION LAW AND MEDIA SERVICES LAW
3.1 Introduction
The need for different laws between the Right to Information and Media Services was the result of a long time efforts and interest that has been shown by the Government and other stakeholders. In February 2005, the United Republic of Tanzania Constitution, 1977, was amended for the 14th time. Part of the amendments was the deletion of the clawback clause and introduces a new section of Article 18 that provides for full rights to access to and dissemination of information of everybody notwithstanding border limitations. The Constitutional changes in Article 18 were a culmination of dialogue and pressure from media and other human rights groups, especially those who were involved in the Media Laws Review Project.
In this project about 80 percent of the stakeholder’s recommendations, proposed an independent media council. This is the body, which would self regulate media activities in the country. Others recommendation were; to remove ownership of government on the mass media like newspapers and radio, in order to limit the ownership of mass media. Cross ownership and monopoly be regulated by law to prevent one owner from monopolizing the media and also to encourage plurality and diversity of the media.
Despite all efforts by the stakeholders of the media review project, government decided to publish on its website a draft Bill for the Freedom of Information, in October 2006. This Bill was received with different views by the right to information stakeholders as it contains issues which contradict the fundamental principles of the freedom of information.
Some of these issues include that of Sections 9 (4) and 21(1) in the Government Bill, which allow a public authority to remove exempt information from a document and issue the rest of the document containing information that is not exempt for public consumption. Media stakeholders doubted the wisdom of such permission because the public will be fed with altered information that may be false, imprecise, incorrect or misleading.
Other issue in the Bill which brought some contradiction was the proposed Media Standards Board which would undermine the functions of a long existing and Media Council of Tanzania. The nature of such Board is to control the freedom of media in undertaking their activities without government interference.
Some sections in the Government draft bill were reproduced from the Newspapers Act 1976, which were perceived as one of the most draconian pieces of legislation in Tanzania that need to be scrapped.
That many provisions of the Government draft bill would, to a greater extent, prohibit freedom of information rather than promoting it. Important provisions for promotion of freedom of information were missing and those included have not been adequately constructed to promote freedom of information in Tanzania as guaranteed by the Constitution.
All the above contradicting provision and many others in the Bill is that which forced media stakeholders to propose separating the bill into two laws which is the Right to Information and Media Services. Together with separation some of the new provisions were proposed by the stakeholders in the proposed Bills.
3.2 REASONS FOR SEPARATION
The reasons for separation will be presented in turn between the Right to Information laws and the Media Services law
3.2.1. The Right to Information law
The need to have Right to information legislation in Tanzania is derived from the best practices that have already taken place in various countries of the World. This need has also been supported by the provisions of the local and international instruments which were highlighted above. As it has been stipulated in various readings, Information is power, if people are well informed on various issues surrounding them they can easily develop. We also want the law because it would be beneficial to our country, for the growth of democracy and strengthening of good governance.
Principles Governing Freedom of Expression Legislation
In order to better understand the need for the Right to Information, various principles have to be considered. Some of these principles have been laid down by international treaties recognizing Freedom of expression as a fundamental human right. These principles have also been compiled together by Article XIX, an independent Freedom of Expression advocacy organization based in the United Kingdom. The key principles are explained below:
Maximum disclosure
The principle of maximum disclosure establishes a presumption that all information held by public bodies should be subjected to disclosure with minimum exemptions guaranteed by law. Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information. The overriding goal of freedom of information legislation should be to implement maximum disclosure in practice.
Obligation to Publish
Freedom of information implies that public bodies should not only accede to information requests but also must publish and disseminate widely documents and information of significant public interest. The only limit is availability of resources and capacity. Public bodies should therefore be required to publish information about operations of the body, information on information requests, complaints or other direct actions, which members of the public may take in relation to the public body, guidance on processes by which members of the public may provide input into major policy or legislative proposals.
Others are information that the body holds and the form in which this information is held, and the content of any decision or policy affecting the public, along with reasons for the decision and background material of importance in framing the decision (emphasis mine).
Promotion of Open Government
Informing the public of their rights and promoting a culture of openness within government are essential in order to achieve the goals of freedom of information legislation. Adequate resources have to be devoted to promote the goals of the legislation. Major changes need to take place in civil services through public education on freedom of expression, tackling the culture of official secrecy amongst civil servants and promoting open governance.
Limited Scope of Exceptions
All exceptions should be clearly and narrowly drawn and subject to strict ‘harm’ and ‘public interest’ tests. These tests, popularly known as three – part tests, require that:
• The information must relate to a legitimate aim listed in the law;
• Disclosure must threaten to cause substantial harm to that aim; and
• The harm to the aim must be greater than the public interest in having the information.
The general rule is that no public bodies should be completely excluded from the ambit of the law, even if the majority of their functions fall within the zone of exceptions.
Processes to Facilitate Access
This principle requires that requests for information be processed rapidly and fairly and an independent review of any refusals is available. This requires at least three levels of decision making process on access to information. The law should also provide for strict time limits for the processing of requests and require that any refusals be accompanied by substantive written reasons. There should also be an internal appeals mechanism provided by each public body.
Costs
Individuals should not be deterred from making requests for information by excessive costs.
Open Meetings
The freedom of information law should establish a presumption that meetings of public bodies should be open to the public. The public has the right to know what the government is doing on its behalf and to participate in decision – making processes.
Meetings may be closed, but only in accordance with established procedures and where adequate reasons for closure exist. Any decision to close a meeting should itself be open to the public. Reasons for closure may, in appropriate circumstances, include public health and safety, law enforcement or investigation, employee or personnel matters, privacy, commercial matters and national defense and security matters.
Disclosure Takes Precedence
The law on freedom of information and expression should require compliance by other laws, which are inconsistent with its provisions. Where this is not possible, other legislation dealing with publicly – held information should be subject to the principles underlying the freedom of information legislation. The freedom of information law should have overriding effect vis-à-vis other conflicting legislation.
Protection of Whistleblowers
This principle requires that the law must guarantee protection of individuals who release information on wrongdoing against any legal, administrative or employment – related sanctions.
It is therefore important that a distinct piece of legislation be enacted with specific provisions targeting the already developed international principles. If the legislation does not concur with international principles, it will be said to offend the very purpose of freedom of information legislation and therefore a non compliant law. This is the main argument by the coalition that the government should enact a law that abides with the international standards set by various international treaties to govern freedom of information legislation.
I think it is important to stress that the right to Information legislation is a framework legislation supported by clause 18 of the Constitution. It is a law, which provides rights to all citizens of URT irrespective of their profession, station in the society, gender, age etc. on the other hand, media services legislation is a sectoral law, interested only in the working and procedures of the media. Ransoming the rights of over 40m Tanzanians to a law, which is related to hardly 100,000 people is indeed very untenable.
3.1.2 Media Services Law
Media Services legislation is a separate set of principles and standards, which the government wishes to shape the dissemination of information by and to members of the public.
There are pertinent issues distinguished from freedom of information legislation, which need specific address by the law to be enacted. Such issues include, but are not limited to:
(a) Licensing of mass media for the purposes of practicing in the country;
(b) Contents management and control in order to protect the public morals and ethics and promote growth of a society;
(c) Protection and utilization of international resources such as telecommunication and frequencies to avoid interferences with each other.
(d) Academic credentials and qualifications of media practitioners
(e) Regulation of professional misconducts and or behavior of media practitioners
(f) Control of public access to media;
(g) Protection of human rights and personal integrity of individuals who are forming part of media sources of a subject of media coverage contents
(h) Protection of whistleblowers and confidential news sources for public interests.
(i) Investment policies and conducive business environment in relation to advertisements and consumer protection
(j) Labour relations and the protection of journalists and media practitioners at work
(k) Protection of media practitioners against unfair and illegal attacks from members of the public;
(l) Editorial independence
m) Media Pluralism, independence and diversity issues
n) Media ownership regulation
Legislation on media services has to incorporate a wide number of such issues addressed above in order to promote the enjoyment of diverse media contents to suit diverse interests of consumers. To have independent and professional media personnel any legislation to be enacted should not ignore the above issues
It is important to notice at this point that freedom of information legislation can easily be implemented where there are media services laws that adequately promote media freedom. In the absence of such relationship, the enjoyment of article 18 of the Constitution of the United Republic of Tanzania will remain a dream to be achieved.
4. STAKEHOLDERS COALITION PROCESS, 2006 - 2010
In October 2006, the Government made another historical step when published on its website a draft Bill for the Freedom of Information, 2006. This Bill was received by different outlook from media stakeholders who had an experience of 1993 when the then Minister of Information and Broadcasting, William Shija, made an attempt to regulate the activities of the private press by tabling the Media Professions Regulation Bill. The government draft Bill for the Freedom of Information has some draconian elements of the then rejected bill.
On December 16, 2006, the MCT organized a meeting of various media stakeholders to review and comment upon the Governments proposals contained in the Freedom of Information Bill.
The meeting resolved after in depth review and discussions of the governments’ proposals that there were unacceptable as there were deemed to contradict with fundamental principles of the freedom of information.
It was also seen that the Government’s proposals on freedom of information mixed together issues that are not necessarily related such as issues of media services, children’s protection and freedom of information.
The recommendations from the stakeholders was to split the proposed law, one to deal with issues of freedom of information that would be a framework legislation and the other on media services, which would be a sectoral legislation for media issues. Other issues were such as children should not be included unless absolutely related to access to information or protection from corruptive elements.
In their assessment, the stakeholders found out that, in the proposed freedom of information bill, access to information from public institutions regarding whistleblower protection, was seen as being downplayed and given blunt attention in that drafts Bill that also continued to place a lot of anonymity to a good number of information pieces for no reason
Since this draft Bill was seen as having a lot of deficiencies, stakeholders rejected the Bill and urged the government to give them some time to undertake public consultations, a request which was granted by the government.
The meeting recommended the formation of the coalition on the right to information, which initially comprised of MCT, TAMWA and MISATAN. It was later joined by other eight CSOs
The Freedom of Information Coalition, which comprises of eleven Civil Society institutions (two from outside Tanzania) organized and held meetings and public hearings countrywide in search for views on proposals for the freedom to information and media services legislation. All along, it emerged that the public was not only interested in the Freedom to access information but wanted this to be pronounced as a basic right – hence the notion of –right to Information in the discourse of the Coalition’s work.
Stakeholder recommendations on a Bill for the Right to Information Act were then prepared and officially submitted to the government in August 2007, with copies of the same distributed to all members of Parliament and the cabinet, various government institutions and agencies as well as non state actors.
Such recommendations factored in broader national interests including the need for a transparent framework in which a citizen can demand for the right to particular pieces of information held in government offices. Around 7,000 copies of the recommendation booklets both in English and Kiswahili languages were disseminated to the public receiving a lot of public attention following publication of its content by numerous newspapers in the form of pullouts, feature articles, analyzes and editorials.
Additionally, issues relating to Media Services were discussed and debated, in accordance with the principles established by the media profession. As was advised, media services became a separate realm leading to a separate set of recommendations for a draft Media services Bill prepared by the Coalition and submitted to the government officially in October 2008. Again, copies of such recommendation booklets were disseminated widely to all Members of Parliament, Cabinet Ministers and key government institutions and agencies as well as non-state actors.
Furthermore, the Coalition conducted several meetings with the Parliamentary Standing Committee on Social Development under the leadership of Hon. Jenista Mhagama, MP, whose contribution and cooperation has all along been immensely sound. The Committee has proved to be active and in true defense of national interests, judging from active contributions in improving the stakeholder recommendations.
However, there has not been sufficient cooperation and response from the government in working towards the enactment of good information and media services Laws. For instance, there has never been an official response to all the developments made throughout the stakeholder consultation processes leading to the drafting of the recommendations despite the Coalitions attempts in keeping the government informed all the time.
It is not known to date whether the government rejected or accepted the stakeholder recommendations. Even attempts by the Coalition to seek audience and have joint meetings with government experts to strike a common position proved futile. The Coalition wrote three times to Hon. Minister for Information, Culture and Sports, George Huruma Mkuchika on 2nd February 2009; on 8th September 2009 and 30th November 2010 last year in request for such a joint meeting. The three letters notwithstanding, there has never been a response from the Minister or his Ministry, not even an acknowledgement of receipt of the communications from the Coalition!
In a joint session between the Parliamentary Standing Committee, and the Coalition held on 20th January 2010, the Deputy Minister for Information, Culture and Sports, Hon. Joel Nkaya Bendera emphasized that the process towards the enactment of a Media Services and Control Act was underway and that the next stage was to write a certificate for tabling to the cabinet, a statement that has also been repeated by Minister Mkuchika. In spite of all this, none of the two has explanation over the Right to Information Act process.
The right to information is a basic right for every human being as guaranteed and protected in the Constitution of the United Republic of Tanzania and a number of international and regional instruments for the protection of human rights, most of which Tanzania is actually a signatory.
The coming of a Law that guarantees the right to information will facilitate the speedy progressing of Tanzania as a recognized development destination in the international sky. It is also in line with the implementation of the Millennium Development Goals, which Tanzania vehemently promises to be a champion, including eradicating poverty and eliminating criminal acts and Corruption and embezzlement in public offices. This is the sure way to promote Socio-economic and political development in the country.
The Coalition was impressed and encouraged by the fact that a good number of Tanzanians across the country participated in the preparation of the recommendation that have been submitted to the government demanding that there be the Right to Information and Media Services Bills to enact into Laws. Beyond the Bills, the Coalition has already prepared recommendations for regulations to guide the smooth implementation of the two Laws as soon as they have been enacted by Parliament.
And in order for the two Laws not to contradict with other statutes, the stakeholder’s recommendations also included proposals to review a number of existing Laws that will be in contradiction with the coming two Laws. Therefore, it is being proposed that some Laws and sections of Laws be repealed as a way of permitting the smooth implementation of the Laws to be enacted. The proposed repealed laws including; Newspapers No. 229, 1976, National Security Act No. 20 1981, Penal Code Cap 16 especially on section 89(1a), which criminalises defamation and insult, The Public Services Act 2002, The Public Leadership Code of Ethic Act, 1995, The Films and Stage Plays Act 1976, National Labours and the National Immigration laws.
The Stakeholders Coalition is led by the Media Council of Tanzania (MCT) and includes in it – The Media Institute of Southern Africa, Tanzania Chapter (MISA – TAN); Tanzania Media Women Association (TAMWA); The Bar Association of Tanzania Mainland (TLS); Legal and Human Rights Centre (LHRC); Tanzania Network for Legal Education (TANLET); National Organization for Legal Assistance (nola); Media Owners Association (MOAT) and Tanzania Gender Networking Programme (TNGP). Other Stakeholders in the Coalition who have offered inputs and technical expertise include the Commonwealth Human Rights Initiative (CHRI) based in India and Article XIX based in London, UK.
5. LESSONS FROM BEST PRACTICE JURISDICTIONS ON FREEDOM OF INFORMATION LEGISLATION
The struggle for freedom of information legislation has been taking place in various countries of the world. Some states have included in their constitutions, statements of guarantee to public access to information and freedom of information.
5.1. Sweden has been enjoying the right to know since 1810. It was replaced in 1949 by a new Act which enjoyed the sanctity of being a part of the country’s Constitution itself. The principle is that every Swedish citizen should have access to virtually all documents kept by the state or municipal agencies.
5.2. In Australia, the Freedom of Information Act was enacted in December 1982. It gave citizens more access to the Federal Government’s documents. With this, manuals used for making decisions were also made available. But in Australia, the right is curtailed where an agency can establish that non-disclosure is necessary for protection of essential public interest and private and business affairs of a person about whom information is sought.
Back to African continent, only a few countries have been able to enact the best laws on freedom of information.
SOUTH AFRICA
(a) The Republic of South Africa, has in the year 2000 enacted what is called Promotion of Access to Information Act, 2000. The Act aims to give effect to the constitutional right of access to any information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights; and to provide for matters connected therewith.
The exact provisions of the Act do not include media services. The Management and implementation of the Act vested into the Human Rights Commission, which is directly accountable to the South African National Assembly.
The implementation of the Act since its enactment in 2000 has been praised by various human rights activists as being one of the best regimes where access to public information is guaranteed without unnecessary curtailments. Access to public information held by private bodies by government is also possible under the Act.
KENYA
(b) Kenya our fellow East African community member has come out with the new Constitution, 2010, under the Bill of Right, apart from other basic rights like freedom of expression; it has provided specific sections, which has provided clearly impeccable freedom of the press. This section state clearly that;
34. (1) Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33 (2). Which prohibit media freedom to be extended to (a) propaganda for war; (b) incitement to violence; (c) hate speech; or
(d) advocacy of hatred
(2) The State shall not
(a) exercise control over or interfere with any person engaged in
broadcasting, the production or circulation of any publication or
the dissemination of information by any medium; or
(b) penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.
(3) Broadcasting and other electronic media have freedom of
establishment, subject only to licensing procedures that—
(a) are necessary to regulate the airwaves and other forms of signal
distribution; and
(b) are independent of control by government, political interests or
commercial interests.
(4) All State-owned media shall—
(a) be free to determine independently the editorial content of their
broadcasts or other communications;
(b) be impartial; and
(c) afford fair opportunity for the presentation of divergent views and dissenting opinions.
And for assurance of the Constitution has provided for the enactment of the law, which will guarantee these rights and to ensure that there is a body which is independent to foresee these rights.
Parliament shall enact legislation that provides for the establishment of a body, which shall—
(a) be independent of control by government, political interests or commercial interests;
(b) reflect the interests of all sections of the society; and
(c) set media standards and regulate and monitor compliance with those standards.
The Constitution also prohibit the state not to exercise control over or interference with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or penalize any person for an opinion or view or the content of any broadcast, publication or dissemination.
Apart from freedom of the media the Constitution also provide specific section on the right to access to information. This section states as follows;
35. (1) Every citizen has the right of access to—
(a) information held by the State; and
(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.
(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
Therefore it is our role as nation and especially at this point where we have constitution review process to consider inserting these fundamental rights, on access to information and media services in our new constitution.
INDIA
(c) Article 19(1) (a) of the Constitution of the Republic of India guarantees the fundamental rights to free speech and expression. The prerequisite for enjoying this right is knowledge and information. The absence of authentic information on matters of public interest will only encourage wild rumors and speculations and avoidable allegations against individuals and institutions.
Therefore, the Right to Information becomes a constitutional right, being an aspect of the right to free speech and expression which includes the right to receive and collect information. This will also help the citizens perform their fundamental duties as set out in Article 51A of the Constitution. A fully informed citizen will certainly be better equipped for the performance of these duties. Thus, access to information would assist citizens in fulfilling these obligations.
Republic of India has advanced in the right of Information laws. In 2005 India enacted the Right to Information Act number 22. The Act aimed to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
This Act is working under the India Constitution in which Article 19 of the same provides for the right to Information. Chapter 2 of the Right to Information Act stipulates clearly the Right to Information and obligation of the public authorities. This chapter categorically state that Public authorities shall:
“maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated”
Section 4 (2) of the Act stress responsibility of the public authority to provide as much information suo motu, to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.
The law stressed that all information shall be disseminated widely and in such form and manner which is easily accessible to the public. All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed.
The Act insist that information should reach people notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority.
The Act provides for categories of rights available to every citizen. This includes the right to:
- Ask any questions from the Government or seek any information
- Take copies of any government documents
- Inspect any government documents
- Inspect any government works
- Take samples of materials of any Government work
6.0. Media Services in other countries
A study on media services has failed to come up with the best practice law that governs media freedom. A number of developed countries have no single piece of legislation to govern media services. This is the same situation for developing countries, especially countries, which are members of the commonwealth.
Media is normally regulated through a regulatory body that is a creation of parliamentary statute. The practice of media regulation through such statutory organs has been ineffectual in the sense that media freedom activists have perceived it as a biased and discriminatory process whereby state- owned media practitioners enjoy more rights than the private media practitioners.
A move has been initiated by regional and international organizations to promote respect and protection of media freedom through legislation. In this regard, an independent media regulator has been preferred whereby Tanzania has been taken as a lead example through the Media Council of Tanzania, which is an independent regulatory body for media practitioners.
The functions of independent media regulators in African countries, has been widened to include quasi – judicial functions whereby victims of media conducts are able to access justice and have their rights remedied through award of damages by impartial and independent arbitrators.
A mediation and arbitration process, which is found on independent regulators, has been commended as the immediate and effective mechanism to regulate media without one going through legal technicalities and spending so much time to access justice.
The African Charter on Broadcasting, 2003, that Tanzania has signed is one of the best guiding treaties governing media freedom. The Charter recognizes the co existence of three – tie media ownership in SADC countries i.e. Public, Private and community owned broadcasting.
The contents of the African Charter on Broadcasting have already been adopted by incorporation into the Tanzania Communications regulatory Authority ( TCRA) Act, No. 12 of 2003 ( as amended from time to time). Media ownership has also been addressed by TCRA Act together with the Electronic and Postal Communications Act, 2010.
The experience from other countries of Africa including Tanzania before the year 2003, was targeting the maximum control and regulation of media practice. Defamation and national security issues were the main target for media regulation while leaving the broader part of media legislation requirement unaddressed. Issues like protection of members of the public, editorial independence, media ownership and anti- competition and advertisement were not included in media laws before 2003 when the TCRA Act was enacted.
New developments in information, communication technology (ICT) has paved way to the need to enact a new law that would accommodate the new media technologies to allow media practitioners and consumers to sail together without unnecessary infringements of each other’ s rights.
7.0. Recommendations
Therefore it is our recommendation that the Government should send first into the Parliament, the Bill to enact the Right to Information law. This will ensure all people of Tanzania a right to access information, which is their Constitutional right.
Secondly, in order to ensure maximum delivery of information to the people, government should send into the Parliament the Media Services Bill as proposed by stakeholders. When this proposed Bill becomes a law it will assure media fraternity maximum security when exercising their duties. Media stakeholders are ready to join hand to make sure that the proposed laws are enacted in time and with expected quality.
Friday, October 28, 2011
United Republic of Tanzania-second report
United Nations A/HRC/WG.6/12/TZA/3
General Assembly Distr.: General
22 July 2011
Original: English
Human Rights Council
Working Group on the Universal Periodic Review
Twelfth session
Geneva, 3–14 October 2011
Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1
United Republic of Tanzania*
The present report is a summary of 19 stakeholders’ submissions to the universal periodic review. It follows the structure of the general guidelines adopted by the Human Rights Council. It does not contain any opinions, views or suggestions on the part of the Office of the United Nations High Commissioner for Human Rights (OHCHR), nor any judgement or determination in relation to specific claims. The information included herein has been systematically referenced in endnotes and, to the extent possible, the original texts have not been altered. Lack of information or focus on specific issues may be due to the absence of submissions by stakeholders regarding these particular issues. The full texts of all submissions received are available on the OHCHR website. The report has been prepared taking into consideration the four-year periodicity of the first cycle of the review.
I. Background and framework
A. Scope of international obligations
1. The Institute for Human Rights and Business (IHRB) noted that Tanzania was a party to most major international human rights instruments and had ratified all eight ILO core conventions, though it had not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, and the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families. The Commission for Human Rights and Good Governance (CHRAGG) recommended that Tanzania ratify the Second Optional Protocol of the International Covenant on Civil and Political Rights. Omega Research Foundation (Omega) recommended that Tanzania ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment.
2. Joint Submission 3 (JS3) recommended that Tanzania adopt the ILO Convention (C169) of 1989, and thus enact a law on minority/indigenous people.
B. Constitutional and legislative framework
3. The National Network of Organizations Working with Children (NNOC) indicated that the Constitutions of Tanzania and Zanzibar included a Bill of Rights but did not provide specifically for the protection of children rights.
4. JS2 stated that Tanzania had enacted into law the Convention on the Rights of the Child through the 2009 Law of the Child Act. However, JS2 stated that this Act had not been implemented due to lack of rules and regulations that allocated roles and responsibilities of each actor and the lack of monitoring framework. The Global Initiative to End all Corporal Punishment of Children (GIEACPC) stated that, in Zanzibar, a Children’s Bill was expected to be tabled in the Parliament in June 2011.
5. NNOC also indicated that children issues were not Union matters; as a result there were different laws governing children issues in mainland Tanzania and Zanzibar. IHRB recommended that Tanzania consider the recommendations of United Nations Treaty Bodies on adopting a unified law to protect the rights of children.
C. Institutional and human rights infrastructure
6. CHRAGG recommended that Tanzania empower the national human rights institution with adequate financial resources to enable it carry out its functions more effectively.
7. NNOC recommended that CHRAGG take over the coordination of children issues in Tanzania.
D. Policy measures
8. HelpAge International (HelpAge) reported that the National Ageing Policy had for seven years not been regulated to make it legally binding and recommended that Tanzania legislate on this Policy.
9. CHRAGG recommended that Tanzania ensure that human rights education is mainstreamed in teaching curricula as part of all subjects from pre-primary to tertiary level.
II. Promotion and protection of human rights on the ground
Implementation of international human rights obligations, taking into account applicable international humanitarian law
1. Equality and non-discrimination
10. While noting the efforts made by Tanzania in protecting the rights of persons with disabilities, JS3 referred to the denial of their right to access education, health and other social services and their social exclusion and stigmatisation. JS3 recommended that Tanzania implement the Convention on the Rights of Persons with Disabilities and its Optional Protocol and the 2010 Persons with Disabilities Act and conduct advocacy campaigns/programmes to make the public aware of rights and special needs of persons with disabilities.
11. Although Article 24 of the Constitution enshrined the right to property, JS3 indicated that women’s right to inherit property was curtailed by the Local Customary Law (Declaration) Order in addition to competing legal systems as to administration of deceased’s estate i.e. statutory law, customary law, Islamic law and Hindu law. HelpAge stated that majority of women fell under the customary inheritance law 1963 and provided information on the severity of the problem. JS3 recommended that Tanzania harmonize laws governing succession/inheritance in the country and accord special protection to women.
2. Right to life, liberty and security of the person
12. CHRAGG indicated that death penalty was still part of Tanzania penal laws and provided figures on prisoners who were sentenced to death.
13. JS3, CHRAGG, Society for Threatened People (STP) and the Women’s Legal Aid Centre (WLAC) reported on killings of persons with albinism due to witchcraft related beliefs. JS3 mentioned the sentencing of 11 people accused of involvement in the killings of persons with albinism, and CHRAGG and STP reported on measures undertaken by the Government to protect persons with albinism. CHRAGG stated that incidences of killings had dropped over the last few years; however, stigmatization and differential treatment of persons with albinism continued. JS3 recommended that Tanzania ensure maximum security for persons with albinism.
14. CHRAGG and HelpAge referred to the killing of older women ascribed to witchcraft related beliefs and HelpAge provided detailed data on this issue. HelpAge also listed the institutional and cultural barriers as well as the structural obstacles limiting the capacity and the mandate of the authorities to address the issue. CHRAGG recommended that Tanzania increase efforts to protect vulnerable women and address the issue with dynamism in areas where these killings were rampant, while HelpAge recommended that Tanzania ensure that these killings be investigated, prosecuted and punished as murders.
15. While noting the increase in the crime rate, JS3 reported on killings by the police and its use of excessive force, and added that the public had lost confidence in the police because of unethical practices. As a result there had been an increase in mob justice. CHRAGG made also specific recommendations to address mob justice.
16. Omega stated that torture and inhuman or degrading treatment or punishment were prohibited in the Constitution. Omega considered the specific provisions of the 1967 Prisons Act on the use of force and on the application of solitary confinement and mechanical restraints to be too broad in their wording and their potential application, and recommended this Act be amended accordingly. Furthermore, Omega was concerned that there appeared to be a lack of robust controls over the trade in certain equipment that had either no practical use other than to facilitate torture or cruel inhuman or degrading treatment or punishment, which may facilitate abuse. Omega listed examples of such equipment and made recommendations in this regard.
17. Joint Submission 5 (JS5) reported that police and prison officers were accused of torturing and threatening suspected criminals and using excessive force against inmates. CHRAGG reported on the excessive use of force by the police during demonstrations and rallies in one region on the occasion of the 2010 national elections.
18. Joint Submission 4 (JS4) stated that indigenous peoples and other groups had been subjected to arbitrary decisions and actions of law enforcement agencies, such as violence, forced disappearances, arbitrary arrests and detention. Minority Rights Group (MRG) and STP provided similar information.
19. JS3 recommended that Tanzania address unethical practices, corruption and abuse of power that were rampant in the Tanzania Police Force. JS5 recommended that Tanzania conduct a prompt, independent and impartial investigation into all allegations of torture and ill-treatment. CHRAGG also recommended that Tanzania ensure law enforcers are sensitized through human rights education; review regulations governing police service to meet human rights standards; provide sufficient working tools and improve working conditions for the Police. Omega recommended that Tanzania incorporate the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Bangkok Rules into training programs for prison officials and others charged with running places of detention.
20. JS3 further recommended that Tanzania enact a law to govern the private security industry.
21. JS5 stated that overcrowding in prisons was due to the large number of inmates in pre-trial detention. CHRAGG stated that this situation resulted in prisoners having no access to adequate health services and to sanitation facilities, quality food, clean and safe water. CHRAGG recommended that Tanzania effectively use alternative sentencing; make parole system more effective; expedite criminal investigations; increase the prison budget; and implement rehabilitation of prisoners in practical terms.
22. JS3 noted that, in Tanzania, there were discriminatory laws which fuelled violence against women. JS3 stated that, despite the National Plan of Action for the Prevention and Eradication of Violence against Women and Children of 2001-2015, there was little effort undertaken by the Government to address this problem. NNOC reported on the high level of child abuse and notably recommended that Tanzania establish a reliable mechanism for collecting and maintaining official statistics on overall child abuse.
23. Equality Now (EN) reported that female genital mutilation (FGM) was practiced by specific ethnic groups notably in the Tarime district. EN added that FGM was prohibited under the Sexual Offences Special Provision Act 1998 but that Tanzania’s response to prevent it had been inadequate. EN stated that only a handful of cases had ever reached the courts in recent years and the police were reluctant to arrest and prosecute the perpetrators. EN provided an example from November 2010 where the police failed to protect girls from FGM. EN made a series of recommendations on this issue from awareness-campaign to protection of girls fleeing FGM.
24. JS3 recommended that Tanzania take measures to protect women against harmful practices, including shelters providing psychosocial services for survivors of gender based violence.
25. While noting increasing incidents of child sex tourism, particularly along the Indian Ocean’s beach hotels, NNOC recommended that Tanzania take serious measures aimed at curbing the involvement of children in the sex tourism industry.
26. JS5 referred to human trafficking and to the 2008 Anti-trafficking in Persons Act, and notably recommended that Tanzania consider the adoption of a national action plan against human trafficking defining comprehensive policies and programmes for prevention, prosecution of the perpetrators and protection of victims.
27. JS2 reported on the incidence of sexual abuse of children in Zanzibar, in both rural and urban areas and affecting both girls and boys. Child victims were stigmatized and adults usually preferred to solve the problem informally instead of officially reporting sexual abuses. JS2 reported on the number of cases dropped by police and the specific difficulties faced by children with disabilities in courts. JS2 made a series of recommendations including the development a comprehensive child protection system by 2013 that ensures access to justice for child victims.
28. IHRB recommended that Tanzania prioritise concerns raised by the United Nations Human Rights Treaty Bodies regarding the persistence of child labour.
29. GIEACPC reported that corporal punishment of children was legal in their homes, schools, as a sentence for crime and as a disciplinary measure in penal institutions and in alternative care settings in mainland Tanzania, and in Zanzibar to a certain extent. JS2 provided similar information. JS2 recommended that Tanzania prohibit corporal punishment in all settings as a matter of priority by 2013, repeal relevant legislation, carry out public educational campaigns and promote positive, non-violent forms of discipline as an alternative to corporal punishment.
3. Administration of justice, including impunity, and the rule of law
30. CHRAGG stated that, despite measures taken by the Government such as increasing the number of judges and magistrates, improving infrastructure and staff welfare, there was an increase in complaints against the court system. CHRAGG notably recommended that Tanzania allocate more resources to the judiciary and guarantee accountability. MRG recommended that allegations of corruption in the justice system be investigated and addressed.
31. JS4 recommended that Tanzania make public the reports of the probe committees and commissions including the Mbarali, Sukenya and Loliondo reports on forced evictions and take measures against all perpetrators of human rights and laws violations during these and other evictions.
32. JS5 stated that, despite the fact that the law provided for a juvenile justice system, in reality young offenders were often dealt with in the normal court system. Of particular concern was the detention of children in common holding facilities with adults that further exposed them to sexual abuses. CHRAGG recommended that Tanzania strengthen rehabilitation mechanisms for children in conflict with the law; train and deploy more social welfare and probation officers.
4. Right to privacy, marriage and family life
33. NNOC observed that the percentage of birth and death registered remained very low due to a lack of public awareness, the significant cost implications and the lack of capacity of the registrar general’s office. NNOC recommended that Tanzania allocate more resources, conduct awareness raising campaigns and include waiver of registration fees for poor families.
34. Joint Submission 7 (JS7) reported that the second draft national HIV and AIDS policy encouraged “shared confidentiality”, referring to the disclosure of an individual’s HIV status to colleagues, in hospital settings, work places, marriage or partner settings and other settings as “may be deemed appropriate.” JS7 recommended that the draft policy should provide specific criteria for health professionals to be able to disclose patients’ HIV-positive status to others, in line with the International Guidelines on HIV/AIDS and Human Rights.
35. JS3 stated that the Marriage Act 1971 permitted a girl child to be married at the age of 14 years under Court Order or 15 years under parents or guardians permission. JS2 recommended that Tanzania amend the Marriage Act 1971 to prohibit marriage before the age of 18 by December 2012. EN reported that the Marriage Act 1971, as amended by Act 23/73, Act 15/80 and Act 9/96, allowed polygamous marriage. EN recommended that Tanzania reform the Marriage Act in order to provide equal protection under the law to both sexes; and to conform to regional and international human rights standards.
36. JS1 referred to section 154 of the Penal Code, which notably criminalised “carnal knowledge of any person against the order of nature” and section 138(A) on gross indecency. JS1 recommended that the Human Rights Council urge Tanzania to repeal all provisions which may be applied to criminalise sexual activity between consenting adults.
5. Freedom of religion or belief, expression, association and peaceful assembly and right to participate in public and political life
37. Article 19 stated that the Tanzanian Constitution guaranteed the right to freedom of expression but did not explicitly provide for freedom of the press. Article 19 listed several restrictive laws that limit freedom of expression and the ability of the media to function effectively, including the 1976 Newspaper Act (notably as it related to the registration of newspapers), the 1970 National Security Act (as it gave the Government absolute scope to define what should be disclosed to or withheld from the public) and the 1945 Tanganyika Penal Code. Article 19 provided examples of the use of these laws and indicated that the offence of sedition had often been employed against opposition politicians. Joint Submission 6 (JS6) also mentioned the use of the National Labour Law and the National Immigration Law to restrict media freedom and freedom of expression.
38. Article 19 recommended that Tanzania immediately abolish these laws, in particular the 1976 Newspaper Act and the 1970 National Security Act, and replace them with legislations in line with international human rights standards; and repeal other restrictive media regulations. JS6 recommended that Tanzania decriminalize defamation.
39. Article 19 reported that there were no constitutional or legal provisions for the protection of journalists’ sources at either the Union level or in Zanzibar. Article 19 recommended that Tanzania adopt comprehensive legislation that would grant media the right to protection of sources.
40. Article 19 also reported that freedom of media in Zanzibar was of a particular concern. Although the residents could receive private broadcasts from the mainland, the Government published the only daily paper and controlled the Television Zanzibar and the radio station Sauti ya Tanzania-Zanzibar. Article 19 stated that it had been documented that other small private radio stations and newspapers often had close connections to ruling party politicians. JS6 added that there was no law protecting the editorial independence of government owned media and that public broadcaster is not accountable to the public.
41. JS6 added that there was a limited circulation of newspapers, internet catered for only 1.5 percent of the population and that television was accessed only by 5 percent of the population.
42. Article 19 was concerned about a number of cases, in which journalists and media workers were attacked, including by policemen, for conducting their journalistic activities. Article 19 and JS6 provided examples in this respect. Article 19 recommended that Tanzania thoroughly, promptly and effectively investigate all unresolved cases of violence against journalists and bring those responsible to justice.
43. JS4 also reported that human rights defenders had been intimidated, unlawfully arrested and maliciously prosecuted and that the Government had been suppressing efforts of NGOs, journalists, Maasai traditional leaders and villagers to investigate and protect the rights of the pastoralists and hunter-gatherers. WLAC recommended that laws that allowed for intimidation of political opponents be repealed.
44. Article 19 stated that article 18 of the Union Constitution guaranteed every person the right to freedom of expression, but also the right to seek, receive and impart information, unlike the Zanzibar Constitution, which explicitly protected only the right to receive information. However, there was no legislation in Tanzania at either the union-level or in Zanzibar through which the right to information could be realised in practice. JS6 added that, in 2007, stakeholders submitted the draft Right to Information Bill for consideration, but that the Government had remained silent on the issue. WLAC stated that a lot was yet to be done in Tanzania to ensure access to information and freedom of expression and reported on the impact it had on the protection of victims of human rights violations.
45. JS6 stated that freedom of assembly was a constitutional right but that it was controlled by the police as no one was allowed to demonstrate or call any public rally without permission from the police. The failure to abide by this requirement could lead to intimidation and sometimes brutal attack by the police.
46. JS5 reported that the lack of political representation in the Parliament exacerbated the current socio-economic and political marginalization and exclusion of indigenous peoples.
6. Right to social security and to an adequate standard of living
47. JS3 reported that despite strategies of reduction of poverty, the majority of Tanzanians still lived under extreme poverty, whilst the rate of unemployment was increasing.
48. JS2 reported that Tanzania had a number of social security schemes (both formal and informal) with a limited coverage and made a recommendation in this respect.
49. CHRAGG recommended that Tanzania avoid arbitrary evictions of citizens and if any for justifiable reasons, they should be accompanied by prompt and fair compensation; apply good governance principles and pay special attention in seeking solutions to the problems in the land sector. JS3 also made recommendations in this regard.
50. JS2 reported on the weakness of the health system notably in terms of limited access to quality health services, the lack of human and financial resources and shortage of skilled health providers. JS2 added that non medical factors such as socio-cultural beliefs and practices, gender inequality in family decision making processes and inadequate community involvement also contributed to this situation. JS2 noted however, that, in recent years, there had been some increase in the health care budget.
51. JS2 mentioned that, while Tanzania had substantially reduced child mortality over the past 10 years, it had failed to significantly reduce neonatal deaths and reported on the lack of political will to tackle this issue. JS2 also noted that chronic malnutrition remained endemic contributing to about 50 percent of all children’s deaths. The drafting of the National Nutrition Strategy started in 2006, but had not yet been endorsed while nutrition and nutritional issues remained diluted across ministries. JS2 made recommendations in this respect. NNOC referred to malaria and made a recommendation regarding the provision of mosquito nets to poor families.
52. JS2 notably recommended that Tanzania increase the health budget from 12 to 14 per cent by 2012 and launch a nation-wide child survival and health awareness campaign by 2012, focusing on rural communities. JS4 referred to health related needs of pastoralists and indigenous populations.
53. Joint Submission 7 (JS7) indicated that Section 47 of the 2008 HIV and AIDS (Prevention and Control) Act criminalized intentional transmission of HIV/AIDS and recommended that Tanzania facilitate discussions with a view to clarifying and limiting what will be captured by the law.
54. NNOC reported on the prevalence of HIV/AIDS among young women in the child bearing years and notably recommended that Tanzania minimize mother to child transmission, increase the provision of Anti-Retro-Viral treatment; and promote the use of condoms while reproductive health education and HIV/AIDS information should likewise widely be disseminated.
55. JS7 expressed concern at the prevalence of HIV in prisons and made recommendations relating to prevention and treatment. In the same vein, JS7 noted the prevalence of HIV among people who inject drugs and notably recommended Tanzania to scale up existing harm reduction initiatives.
56. JS3 reported on health hazard and environmental pollution resulting from mining industries and JS4 echoed this concern. JS4 recommended that Tanzania conduct an environmental audit; held accountable perpetrators; compensate victims of the environmental pollution and ensure that such a situation does not recur in future. IHRB made also recommendations in this regard, notably regarding follow-up to the recommendations of the United Nations Special Rapporteur on the adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights. While MRG described incidents preventing Maasai from accessing water, JS4 also recommended that all investments or programmes undertaken in indigenous peoples’ lands must protect the rights of indigenous peoples to access and use of water and pastures.
57. As skin cancer was another major cause of death among persons with albinism, CHRAGG recommended that Tanzania ensure provision of adequate health services and education in the prevention of cancer among persons with albinism. STP mentioned that Tanzania ordered the building of three new cancer treatment centres and an increased distribution of pharmaceuticals that help people with Albinism.
7. Right to education and to participate in the cultural life of the community
58. JS2 reported that the right to education was enshrined in the Education Act as well as in numerous other acts with no reference to quality. JS5 indicated that primary education was compulsory and free, while secondary education was not free. Although net enrolment had increased, JS2 reported on the lack of teaching and learning materials; overcrowded classes; inadequate facilities; the prevalence of violence mainly perpetrated by teachers. JS2 also noted the need to better train teachers and to raise their status, and made recommendations in this regard.
59. JS3 mentioned truancy due to child labour, which contributed to poor performance at schools and early school dropout. JS3 reported that children with disabilities did have inadequate facilities to access education despite the provisions in the 2009 Child Act and the 2010 Persons with Disabilities Act.
60. JS4 also recommended that Tanzania adopt education programmes which meet the specific needs of pastoralists and indigenous populations’ way of life, for instance boarding schools.
8. Minorities and indigenous peoples
61. JS5 stated that Tanzania had not formally accepted or acknowledged the legal existence of Indigenous Peoples in its territory. JS3 and JS5 stated that there was no national policy and law on indigenous people.
62. JS4 stated that, in conformity with the criteria set out by the African Commission on Human and Peoples Rights’ as well as the United Nations, the indigenous peoples of Tanzania included the Maasai, the Barbaig, Akie, Taturu and Hadzabe. The former two groups were predominantly pastoralists whereas the latter comprised of forest-dwelling hunter-gatherers. The Sukuma, Nyaturu, and others belonged to tribal groups, also recognized under international human rights law. The groups mentioned above collectively practiced pastoralism and hunting-gathering.
63. JS4 reported that Tanzania had been engineering forceful evictions on allegations of environmental degradation with little regard to traditional land ownership and customary practices. JS4 provided examples of forced evictions of pastoralists, which had been taking place in different parts of the country since 2007 and of evictions of indigenous peoples, pastoralists, hunters and gatherers to give way to other economic activities such as tourism, hunting, farming, and mining without provision of adequate compensation or alternative settlements. MRG, STP and Unrepresented Nations and Peoples Organization (UNPO) also provided examples, notably in the Ngorongoro district. JS5 recalled that the National Land Policy explicitly mentioned that “shifting cultivation and nomadism will be prohibited”.
64. JS4 stated that the Government had not intervened to safeguard the interests of these people while many evicted families were now landless, homeless and subjected to conflicts with other land users.
65. JS4 recommended that Tanzania ensure that all victims of evictions be resettled and compensated and that any future eviction be criminalized through legislation; it urged that the Constitution, laws and policies address the identity of indigenous peoples and their land ownership in conformity with international human rights instruments and standards. JS4 further recommended that Tanzania set up official, effective, permanent and statutory consultation machinery with organizations working on the rights of indigenous peoples to avoid further violations.
66. UNPO recommended that Tanzania ensure that projects led by the national Government, and national and international corporations are not to the detriment of indigenous Maasai communities; that they are involved in all stages of planning and implementation and that they benefit economically from the schemes. JS4 reported that Tanzanian investment policies and laws including the 2007 Tanzania Investment Act allowed creation of land banks and reserves anywhere without regard to religious and cultural sites such as holy (sacred) sites and tombs of ancestors.
9. Migrants, refugees and asylum-seekers
67. NNOC was concerned at the lack of information on how refugee children (including unaccompanied ones) were dealt with when Tanzania closed down all refugee camps in Ngara and Kibondo Districts in 2007/2008 and repatriated them to a neighbouring country.
10. Right to development
68. JS3 stated that the right to development was not enshrined in the Constitution and enumerated a number of problems relating to foreign direct investment, such as the signing of dubious mining contracts between the Government and foreign investors. IHRB noted that Tanzania passed new mining legislation (The Mining Act 2010, replacing the Mining Act of 1998). The new law aimed, among other things, at addressing concerns that mining did not sufficiently benefit the country.
69. JS3 recommended that Tanzania increase transparency in contracts with investors, while CHRAGG recommended that Tanzania promote human rights in business and identify the roles of companies, the government agencies and other stakeholders. IHRB notably recommended that Tanzania consider joining the Extractive Industries Transparency Initiative (EITI) to work towards ensuring better transparency and accountability in relation to minerals extraction. IHRB further recommended that future negotiations concerning concession contracts should prioritise economic development, poverty reduction and human rights-based approaches.
III. Achievements, best practices, challenges and constraints
N/A
IV. Key national priorities, initiatives and commitments
N/A
V. Capacity-building and technical assistance
N/A
Notes
General Assembly Distr.: General
22 July 2011
Original: English
Human Rights Council
Working Group on the Universal Periodic Review
Twelfth session
Geneva, 3–14 October 2011
Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1
United Republic of Tanzania*
The present report is a summary of 19 stakeholders’ submissions to the universal periodic review. It follows the structure of the general guidelines adopted by the Human Rights Council. It does not contain any opinions, views or suggestions on the part of the Office of the United Nations High Commissioner for Human Rights (OHCHR), nor any judgement or determination in relation to specific claims. The information included herein has been systematically referenced in endnotes and, to the extent possible, the original texts have not been altered. Lack of information or focus on specific issues may be due to the absence of submissions by stakeholders regarding these particular issues. The full texts of all submissions received are available on the OHCHR website. The report has been prepared taking into consideration the four-year periodicity of the first cycle of the review.
I. Background and framework
A. Scope of international obligations
1. The Institute for Human Rights and Business (IHRB) noted that Tanzania was a party to most major international human rights instruments and had ratified all eight ILO core conventions, though it had not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, and the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families. The Commission for Human Rights and Good Governance (CHRAGG) recommended that Tanzania ratify the Second Optional Protocol of the International Covenant on Civil and Political Rights. Omega Research Foundation (Omega) recommended that Tanzania ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment.
2. Joint Submission 3 (JS3) recommended that Tanzania adopt the ILO Convention (C169) of 1989, and thus enact a law on minority/indigenous people.
B. Constitutional and legislative framework
3. The National Network of Organizations Working with Children (NNOC) indicated that the Constitutions of Tanzania and Zanzibar included a Bill of Rights but did not provide specifically for the protection of children rights.
4. JS2 stated that Tanzania had enacted into law the Convention on the Rights of the Child through the 2009 Law of the Child Act. However, JS2 stated that this Act had not been implemented due to lack of rules and regulations that allocated roles and responsibilities of each actor and the lack of monitoring framework. The Global Initiative to End all Corporal Punishment of Children (GIEACPC) stated that, in Zanzibar, a Children’s Bill was expected to be tabled in the Parliament in June 2011.
5. NNOC also indicated that children issues were not Union matters; as a result there were different laws governing children issues in mainland Tanzania and Zanzibar. IHRB recommended that Tanzania consider the recommendations of United Nations Treaty Bodies on adopting a unified law to protect the rights of children.
C. Institutional and human rights infrastructure
6. CHRAGG recommended that Tanzania empower the national human rights institution with adequate financial resources to enable it carry out its functions more effectively.
7. NNOC recommended that CHRAGG take over the coordination of children issues in Tanzania.
D. Policy measures
8. HelpAge International (HelpAge) reported that the National Ageing Policy had for seven years not been regulated to make it legally binding and recommended that Tanzania legislate on this Policy.
9. CHRAGG recommended that Tanzania ensure that human rights education is mainstreamed in teaching curricula as part of all subjects from pre-primary to tertiary level.
II. Promotion and protection of human rights on the ground
Implementation of international human rights obligations, taking into account applicable international humanitarian law
1. Equality and non-discrimination
10. While noting the efforts made by Tanzania in protecting the rights of persons with disabilities, JS3 referred to the denial of their right to access education, health and other social services and their social exclusion and stigmatisation. JS3 recommended that Tanzania implement the Convention on the Rights of Persons with Disabilities and its Optional Protocol and the 2010 Persons with Disabilities Act and conduct advocacy campaigns/programmes to make the public aware of rights and special needs of persons with disabilities.
11. Although Article 24 of the Constitution enshrined the right to property, JS3 indicated that women’s right to inherit property was curtailed by the Local Customary Law (Declaration) Order in addition to competing legal systems as to administration of deceased’s estate i.e. statutory law, customary law, Islamic law and Hindu law. HelpAge stated that majority of women fell under the customary inheritance law 1963 and provided information on the severity of the problem. JS3 recommended that Tanzania harmonize laws governing succession/inheritance in the country and accord special protection to women.
2. Right to life, liberty and security of the person
12. CHRAGG indicated that death penalty was still part of Tanzania penal laws and provided figures on prisoners who were sentenced to death.
13. JS3, CHRAGG, Society for Threatened People (STP) and the Women’s Legal Aid Centre (WLAC) reported on killings of persons with albinism due to witchcraft related beliefs. JS3 mentioned the sentencing of 11 people accused of involvement in the killings of persons with albinism, and CHRAGG and STP reported on measures undertaken by the Government to protect persons with albinism. CHRAGG stated that incidences of killings had dropped over the last few years; however, stigmatization and differential treatment of persons with albinism continued. JS3 recommended that Tanzania ensure maximum security for persons with albinism.
14. CHRAGG and HelpAge referred to the killing of older women ascribed to witchcraft related beliefs and HelpAge provided detailed data on this issue. HelpAge also listed the institutional and cultural barriers as well as the structural obstacles limiting the capacity and the mandate of the authorities to address the issue. CHRAGG recommended that Tanzania increase efforts to protect vulnerable women and address the issue with dynamism in areas where these killings were rampant, while HelpAge recommended that Tanzania ensure that these killings be investigated, prosecuted and punished as murders.
15. While noting the increase in the crime rate, JS3 reported on killings by the police and its use of excessive force, and added that the public had lost confidence in the police because of unethical practices. As a result there had been an increase in mob justice. CHRAGG made also specific recommendations to address mob justice.
16. Omega stated that torture and inhuman or degrading treatment or punishment were prohibited in the Constitution. Omega considered the specific provisions of the 1967 Prisons Act on the use of force and on the application of solitary confinement and mechanical restraints to be too broad in their wording and their potential application, and recommended this Act be amended accordingly. Furthermore, Omega was concerned that there appeared to be a lack of robust controls over the trade in certain equipment that had either no practical use other than to facilitate torture or cruel inhuman or degrading treatment or punishment, which may facilitate abuse. Omega listed examples of such equipment and made recommendations in this regard.
17. Joint Submission 5 (JS5) reported that police and prison officers were accused of torturing and threatening suspected criminals and using excessive force against inmates. CHRAGG reported on the excessive use of force by the police during demonstrations and rallies in one region on the occasion of the 2010 national elections.
18. Joint Submission 4 (JS4) stated that indigenous peoples and other groups had been subjected to arbitrary decisions and actions of law enforcement agencies, such as violence, forced disappearances, arbitrary arrests and detention. Minority Rights Group (MRG) and STP provided similar information.
19. JS3 recommended that Tanzania address unethical practices, corruption and abuse of power that were rampant in the Tanzania Police Force. JS5 recommended that Tanzania conduct a prompt, independent and impartial investigation into all allegations of torture and ill-treatment. CHRAGG also recommended that Tanzania ensure law enforcers are sensitized through human rights education; review regulations governing police service to meet human rights standards; provide sufficient working tools and improve working conditions for the Police. Omega recommended that Tanzania incorporate the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Bangkok Rules into training programs for prison officials and others charged with running places of detention.
20. JS3 further recommended that Tanzania enact a law to govern the private security industry.
21. JS5 stated that overcrowding in prisons was due to the large number of inmates in pre-trial detention. CHRAGG stated that this situation resulted in prisoners having no access to adequate health services and to sanitation facilities, quality food, clean and safe water. CHRAGG recommended that Tanzania effectively use alternative sentencing; make parole system more effective; expedite criminal investigations; increase the prison budget; and implement rehabilitation of prisoners in practical terms.
22. JS3 noted that, in Tanzania, there were discriminatory laws which fuelled violence against women. JS3 stated that, despite the National Plan of Action for the Prevention and Eradication of Violence against Women and Children of 2001-2015, there was little effort undertaken by the Government to address this problem. NNOC reported on the high level of child abuse and notably recommended that Tanzania establish a reliable mechanism for collecting and maintaining official statistics on overall child abuse.
23. Equality Now (EN) reported that female genital mutilation (FGM) was practiced by specific ethnic groups notably in the Tarime district. EN added that FGM was prohibited under the Sexual Offences Special Provision Act 1998 but that Tanzania’s response to prevent it had been inadequate. EN stated that only a handful of cases had ever reached the courts in recent years and the police were reluctant to arrest and prosecute the perpetrators. EN provided an example from November 2010 where the police failed to protect girls from FGM. EN made a series of recommendations on this issue from awareness-campaign to protection of girls fleeing FGM.
24. JS3 recommended that Tanzania take measures to protect women against harmful practices, including shelters providing psychosocial services for survivors of gender based violence.
25. While noting increasing incidents of child sex tourism, particularly along the Indian Ocean’s beach hotels, NNOC recommended that Tanzania take serious measures aimed at curbing the involvement of children in the sex tourism industry.
26. JS5 referred to human trafficking and to the 2008 Anti-trafficking in Persons Act, and notably recommended that Tanzania consider the adoption of a national action plan against human trafficking defining comprehensive policies and programmes for prevention, prosecution of the perpetrators and protection of victims.
27. JS2 reported on the incidence of sexual abuse of children in Zanzibar, in both rural and urban areas and affecting both girls and boys. Child victims were stigmatized and adults usually preferred to solve the problem informally instead of officially reporting sexual abuses. JS2 reported on the number of cases dropped by police and the specific difficulties faced by children with disabilities in courts. JS2 made a series of recommendations including the development a comprehensive child protection system by 2013 that ensures access to justice for child victims.
28. IHRB recommended that Tanzania prioritise concerns raised by the United Nations Human Rights Treaty Bodies regarding the persistence of child labour.
29. GIEACPC reported that corporal punishment of children was legal in their homes, schools, as a sentence for crime and as a disciplinary measure in penal institutions and in alternative care settings in mainland Tanzania, and in Zanzibar to a certain extent. JS2 provided similar information. JS2 recommended that Tanzania prohibit corporal punishment in all settings as a matter of priority by 2013, repeal relevant legislation, carry out public educational campaigns and promote positive, non-violent forms of discipline as an alternative to corporal punishment.
3. Administration of justice, including impunity, and the rule of law
30. CHRAGG stated that, despite measures taken by the Government such as increasing the number of judges and magistrates, improving infrastructure and staff welfare, there was an increase in complaints against the court system. CHRAGG notably recommended that Tanzania allocate more resources to the judiciary and guarantee accountability. MRG recommended that allegations of corruption in the justice system be investigated and addressed.
31. JS4 recommended that Tanzania make public the reports of the probe committees and commissions including the Mbarali, Sukenya and Loliondo reports on forced evictions and take measures against all perpetrators of human rights and laws violations during these and other evictions.
32. JS5 stated that, despite the fact that the law provided for a juvenile justice system, in reality young offenders were often dealt with in the normal court system. Of particular concern was the detention of children in common holding facilities with adults that further exposed them to sexual abuses. CHRAGG recommended that Tanzania strengthen rehabilitation mechanisms for children in conflict with the law; train and deploy more social welfare and probation officers.
4. Right to privacy, marriage and family life
33. NNOC observed that the percentage of birth and death registered remained very low due to a lack of public awareness, the significant cost implications and the lack of capacity of the registrar general’s office. NNOC recommended that Tanzania allocate more resources, conduct awareness raising campaigns and include waiver of registration fees for poor families.
34. Joint Submission 7 (JS7) reported that the second draft national HIV and AIDS policy encouraged “shared confidentiality”, referring to the disclosure of an individual’s HIV status to colleagues, in hospital settings, work places, marriage or partner settings and other settings as “may be deemed appropriate.” JS7 recommended that the draft policy should provide specific criteria for health professionals to be able to disclose patients’ HIV-positive status to others, in line with the International Guidelines on HIV/AIDS and Human Rights.
35. JS3 stated that the Marriage Act 1971 permitted a girl child to be married at the age of 14 years under Court Order or 15 years under parents or guardians permission. JS2 recommended that Tanzania amend the Marriage Act 1971 to prohibit marriage before the age of 18 by December 2012. EN reported that the Marriage Act 1971, as amended by Act 23/73, Act 15/80 and Act 9/96, allowed polygamous marriage. EN recommended that Tanzania reform the Marriage Act in order to provide equal protection under the law to both sexes; and to conform to regional and international human rights standards.
36. JS1 referred to section 154 of the Penal Code, which notably criminalised “carnal knowledge of any person against the order of nature” and section 138(A) on gross indecency. JS1 recommended that the Human Rights Council urge Tanzania to repeal all provisions which may be applied to criminalise sexual activity between consenting adults.
5. Freedom of religion or belief, expression, association and peaceful assembly and right to participate in public and political life
37. Article 19 stated that the Tanzanian Constitution guaranteed the right to freedom of expression but did not explicitly provide for freedom of the press. Article 19 listed several restrictive laws that limit freedom of expression and the ability of the media to function effectively, including the 1976 Newspaper Act (notably as it related to the registration of newspapers), the 1970 National Security Act (as it gave the Government absolute scope to define what should be disclosed to or withheld from the public) and the 1945 Tanganyika Penal Code. Article 19 provided examples of the use of these laws and indicated that the offence of sedition had often been employed against opposition politicians. Joint Submission 6 (JS6) also mentioned the use of the National Labour Law and the National Immigration Law to restrict media freedom and freedom of expression.
38. Article 19 recommended that Tanzania immediately abolish these laws, in particular the 1976 Newspaper Act and the 1970 National Security Act, and replace them with legislations in line with international human rights standards; and repeal other restrictive media regulations. JS6 recommended that Tanzania decriminalize defamation.
39. Article 19 reported that there were no constitutional or legal provisions for the protection of journalists’ sources at either the Union level or in Zanzibar. Article 19 recommended that Tanzania adopt comprehensive legislation that would grant media the right to protection of sources.
40. Article 19 also reported that freedom of media in Zanzibar was of a particular concern. Although the residents could receive private broadcasts from the mainland, the Government published the only daily paper and controlled the Television Zanzibar and the radio station Sauti ya Tanzania-Zanzibar. Article 19 stated that it had been documented that other small private radio stations and newspapers often had close connections to ruling party politicians. JS6 added that there was no law protecting the editorial independence of government owned media and that public broadcaster is not accountable to the public.
41. JS6 added that there was a limited circulation of newspapers, internet catered for only 1.5 percent of the population and that television was accessed only by 5 percent of the population.
42. Article 19 was concerned about a number of cases, in which journalists and media workers were attacked, including by policemen, for conducting their journalistic activities. Article 19 and JS6 provided examples in this respect. Article 19 recommended that Tanzania thoroughly, promptly and effectively investigate all unresolved cases of violence against journalists and bring those responsible to justice.
43. JS4 also reported that human rights defenders had been intimidated, unlawfully arrested and maliciously prosecuted and that the Government had been suppressing efforts of NGOs, journalists, Maasai traditional leaders and villagers to investigate and protect the rights of the pastoralists and hunter-gatherers. WLAC recommended that laws that allowed for intimidation of political opponents be repealed.
44. Article 19 stated that article 18 of the Union Constitution guaranteed every person the right to freedom of expression, but also the right to seek, receive and impart information, unlike the Zanzibar Constitution, which explicitly protected only the right to receive information. However, there was no legislation in Tanzania at either the union-level or in Zanzibar through which the right to information could be realised in practice. JS6 added that, in 2007, stakeholders submitted the draft Right to Information Bill for consideration, but that the Government had remained silent on the issue. WLAC stated that a lot was yet to be done in Tanzania to ensure access to information and freedom of expression and reported on the impact it had on the protection of victims of human rights violations.
45. JS6 stated that freedom of assembly was a constitutional right but that it was controlled by the police as no one was allowed to demonstrate or call any public rally without permission from the police. The failure to abide by this requirement could lead to intimidation and sometimes brutal attack by the police.
46. JS5 reported that the lack of political representation in the Parliament exacerbated the current socio-economic and political marginalization and exclusion of indigenous peoples.
6. Right to social security and to an adequate standard of living
47. JS3 reported that despite strategies of reduction of poverty, the majority of Tanzanians still lived under extreme poverty, whilst the rate of unemployment was increasing.
48. JS2 reported that Tanzania had a number of social security schemes (both formal and informal) with a limited coverage and made a recommendation in this respect.
49. CHRAGG recommended that Tanzania avoid arbitrary evictions of citizens and if any for justifiable reasons, they should be accompanied by prompt and fair compensation; apply good governance principles and pay special attention in seeking solutions to the problems in the land sector. JS3 also made recommendations in this regard.
50. JS2 reported on the weakness of the health system notably in terms of limited access to quality health services, the lack of human and financial resources and shortage of skilled health providers. JS2 added that non medical factors such as socio-cultural beliefs and practices, gender inequality in family decision making processes and inadequate community involvement also contributed to this situation. JS2 noted however, that, in recent years, there had been some increase in the health care budget.
51. JS2 mentioned that, while Tanzania had substantially reduced child mortality over the past 10 years, it had failed to significantly reduce neonatal deaths and reported on the lack of political will to tackle this issue. JS2 also noted that chronic malnutrition remained endemic contributing to about 50 percent of all children’s deaths. The drafting of the National Nutrition Strategy started in 2006, but had not yet been endorsed while nutrition and nutritional issues remained diluted across ministries. JS2 made recommendations in this respect. NNOC referred to malaria and made a recommendation regarding the provision of mosquito nets to poor families.
52. JS2 notably recommended that Tanzania increase the health budget from 12 to 14 per cent by 2012 and launch a nation-wide child survival and health awareness campaign by 2012, focusing on rural communities. JS4 referred to health related needs of pastoralists and indigenous populations.
53. Joint Submission 7 (JS7) indicated that Section 47 of the 2008 HIV and AIDS (Prevention and Control) Act criminalized intentional transmission of HIV/AIDS and recommended that Tanzania facilitate discussions with a view to clarifying and limiting what will be captured by the law.
54. NNOC reported on the prevalence of HIV/AIDS among young women in the child bearing years and notably recommended that Tanzania minimize mother to child transmission, increase the provision of Anti-Retro-Viral treatment; and promote the use of condoms while reproductive health education and HIV/AIDS information should likewise widely be disseminated.
55. JS7 expressed concern at the prevalence of HIV in prisons and made recommendations relating to prevention and treatment. In the same vein, JS7 noted the prevalence of HIV among people who inject drugs and notably recommended Tanzania to scale up existing harm reduction initiatives.
56. JS3 reported on health hazard and environmental pollution resulting from mining industries and JS4 echoed this concern. JS4 recommended that Tanzania conduct an environmental audit; held accountable perpetrators; compensate victims of the environmental pollution and ensure that such a situation does not recur in future. IHRB made also recommendations in this regard, notably regarding follow-up to the recommendations of the United Nations Special Rapporteur on the adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights. While MRG described incidents preventing Maasai from accessing water, JS4 also recommended that all investments or programmes undertaken in indigenous peoples’ lands must protect the rights of indigenous peoples to access and use of water and pastures.
57. As skin cancer was another major cause of death among persons with albinism, CHRAGG recommended that Tanzania ensure provision of adequate health services and education in the prevention of cancer among persons with albinism. STP mentioned that Tanzania ordered the building of three new cancer treatment centres and an increased distribution of pharmaceuticals that help people with Albinism.
7. Right to education and to participate in the cultural life of the community
58. JS2 reported that the right to education was enshrined in the Education Act as well as in numerous other acts with no reference to quality. JS5 indicated that primary education was compulsory and free, while secondary education was not free. Although net enrolment had increased, JS2 reported on the lack of teaching and learning materials; overcrowded classes; inadequate facilities; the prevalence of violence mainly perpetrated by teachers. JS2 also noted the need to better train teachers and to raise their status, and made recommendations in this regard.
59. JS3 mentioned truancy due to child labour, which contributed to poor performance at schools and early school dropout. JS3 reported that children with disabilities did have inadequate facilities to access education despite the provisions in the 2009 Child Act and the 2010 Persons with Disabilities Act.
60. JS4 also recommended that Tanzania adopt education programmes which meet the specific needs of pastoralists and indigenous populations’ way of life, for instance boarding schools.
8. Minorities and indigenous peoples
61. JS5 stated that Tanzania had not formally accepted or acknowledged the legal existence of Indigenous Peoples in its territory. JS3 and JS5 stated that there was no national policy and law on indigenous people.
62. JS4 stated that, in conformity with the criteria set out by the African Commission on Human and Peoples Rights’ as well as the United Nations, the indigenous peoples of Tanzania included the Maasai, the Barbaig, Akie, Taturu and Hadzabe. The former two groups were predominantly pastoralists whereas the latter comprised of forest-dwelling hunter-gatherers. The Sukuma, Nyaturu, and others belonged to tribal groups, also recognized under international human rights law. The groups mentioned above collectively practiced pastoralism and hunting-gathering.
63. JS4 reported that Tanzania had been engineering forceful evictions on allegations of environmental degradation with little regard to traditional land ownership and customary practices. JS4 provided examples of forced evictions of pastoralists, which had been taking place in different parts of the country since 2007 and of evictions of indigenous peoples, pastoralists, hunters and gatherers to give way to other economic activities such as tourism, hunting, farming, and mining without provision of adequate compensation or alternative settlements. MRG, STP and Unrepresented Nations and Peoples Organization (UNPO) also provided examples, notably in the Ngorongoro district. JS5 recalled that the National Land Policy explicitly mentioned that “shifting cultivation and nomadism will be prohibited”.
64. JS4 stated that the Government had not intervened to safeguard the interests of these people while many evicted families were now landless, homeless and subjected to conflicts with other land users.
65. JS4 recommended that Tanzania ensure that all victims of evictions be resettled and compensated and that any future eviction be criminalized through legislation; it urged that the Constitution, laws and policies address the identity of indigenous peoples and their land ownership in conformity with international human rights instruments and standards. JS4 further recommended that Tanzania set up official, effective, permanent and statutory consultation machinery with organizations working on the rights of indigenous peoples to avoid further violations.
66. UNPO recommended that Tanzania ensure that projects led by the national Government, and national and international corporations are not to the detriment of indigenous Maasai communities; that they are involved in all stages of planning and implementation and that they benefit economically from the schemes. JS4 reported that Tanzanian investment policies and laws including the 2007 Tanzania Investment Act allowed creation of land banks and reserves anywhere without regard to religious and cultural sites such as holy (sacred) sites and tombs of ancestors.
9. Migrants, refugees and asylum-seekers
67. NNOC was concerned at the lack of information on how refugee children (including unaccompanied ones) were dealt with when Tanzania closed down all refugee camps in Ngara and Kibondo Districts in 2007/2008 and repatriated them to a neighbouring country.
10. Right to development
68. JS3 stated that the right to development was not enshrined in the Constitution and enumerated a number of problems relating to foreign direct investment, such as the signing of dubious mining contracts between the Government and foreign investors. IHRB noted that Tanzania passed new mining legislation (The Mining Act 2010, replacing the Mining Act of 1998). The new law aimed, among other things, at addressing concerns that mining did not sufficiently benefit the country.
69. JS3 recommended that Tanzania increase transparency in contracts with investors, while CHRAGG recommended that Tanzania promote human rights in business and identify the roles of companies, the government agencies and other stakeholders. IHRB notably recommended that Tanzania consider joining the Extractive Industries Transparency Initiative (EITI) to work towards ensuring better transparency and accountability in relation to minerals extraction. IHRB further recommended that future negotiations concerning concession contracts should prioritise economic development, poverty reduction and human rights-based approaches.
III. Achievements, best practices, challenges and constraints
N/A
IV. Key national priorities, initiatives and commitments
N/A
V. Capacity-building and technical assistance
N/A
Notes
United Republic of Tanzania-UPR-2011
United Nations A/HRC/WG.6/12/TZA/2
General Assembly Distr.: General
25 July 2011
Original: English
Human Rights Council
Working Group on the Universal Periodic Review
Twelfth session
Geneva, 3–14 October 2011
Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1
United Republic of Tanzania
The present report is a compilation of the information contained in the reports of treaty bodies, special procedures, including observations and comments by the State concerned, and other relevant official United Nations documents. It does not contain any opinions, views or suggestions on the part of the Office of the United Nations High Commissioner for Human Rights (OHCHR), other than those contained in public reports issued by OHCHR. It follows the structure of the general guidelines adopted by the Human Rights Council. Information included herein has been systematically referenced in endnotes. The report has been prepared taking into consideration the four-year periodicity of the first cycle of the review. In the absence of recent information, the latest available reports and documents have been taken into consideration, unless they are outdated. Since this report only compiles information contained in official United Nations documents, lack of information or focus on specific issues may be due to non-ratification of a treaty and/or to a low level of interaction or cooperation with international human rights mechanisms.
I. Background and framework
A. Scope of international obligations
Universal human rights treaties Date of ratification, accession or succession Declarations/reservations Recognition of specific competences of treaty bodies
ICERD 27 Oct. 1972 None Individual complaints (art. 14): No
ICESCR 11 June 1976 None –
ICCPR 11 June 1976 None Inter-State complaints (art. 41): No
CEDAW 20 Aug. 1985 None –
OP-CEDAW 12 Jan. 2006 None Inquiry procedure (arts. 8 and 9): Yes
CRC 10 June 1991 None –
OP-CRC-AC 11 Nov. 2004 Binding declaration under art. 3:18 years –
OP-CRC-SC 24 April 2003 None –
CRPD 10 Nov. 2009 None –
CRPD-OP 10 Nov. 2009 None Inquiry procedure (arts. 6 and 7): Yes
Treaties to which the United Republic of Tanzania is not a party: OP-ICESCR , ICCPR-OP 1, ICCPR-OP 2, CAT, OP-CAT, ICRMW and CED (signature only, 2008).
Other main relevant international instruments Ratification, accession or succession
Convention on the Prevention and Punishment of the Crime of Genocide Yes
Rome Statute of the International Criminal Court Yes
Palermo Protocol Yes
Refugees and stateless persons Yes, except 1954 and 1961 conventions
Geneva Conventions of 12 August 1949 and Additional Protocols thereto Yes, except Additional Protocol III (signature only)
ILO fundamental conventions Yes
UNESCO Convention against Discrimination in Education Yes
1. In its submission, UNCT stated that the Government of the United Republic of Tanzania should step up efforts to abolish the death penalty by acceding to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP 2). In 2009, the Human Rights Committee (HR Committee) recommended that Tanzania seriously consider becoming a party to ICCPR-OP 2.
2. In 2008, the Committee on the Elimination of Discrimination against Women (CEDAW) encouraged Tanzania to consider ratifying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Convention on the Protection of the Rights of Migrants Workers and Member of Their Families (ICRMW), and the International Convention for the Protection of All Persons from Enforced Disappearance (CED), and to accept, as soon as possible, the amendment to article 20, paragraph 1, of CEDAW. In 2006, the Committee on the Rights of the Child (CRC) recommended that Tanzania ratify CAT.
3. In 2005, the Committee on the Elimination of Racial Discrimination (CERD) strongly recommended that Tanzania ratify the amendments to article 8, paragraph 6, of the Convention.
B. Constitutional and legislative framework
4. UNCT stated that in the Tanzanian Constitution there was no recognition of the general prohibition of torture, as set forth in the ICCPR. UNCT added that a general clause in the Constitution stipulated that human rights might be subject to limitations by ordinary legislation, if, for instance, such legislation “promotes or preserves the national interest in general”. As a result, retrogressive law has usurped some human rights, in particular with regard to property and access to land. UNCT also stated that the Government should enact a comprehensive anti-discrimination law as a complement to the existing provisions in the Constitution.
5. HR Committee recommended that Tanzania ensure that all rights protected under the Covenant are given full effect in domestic law.
6. CRC and HR Committee recommended that Tanzania continue and complete the process of adopting a Children's Act.
7. CEDAW called upon Tanzania to consider amending the existing definition of discrimination to encompass both direct and indirect discrimination in accordance with article 1 of the Convention. CEDAW was concerned at the continuing discrimination against women under the Citizenship Act (1995) and urged Tanzania to accelerate the process to amend the Citizenship Act in order to bring it fully into compliance with the Convention.
8. CRC recommended that Tanzania consider reviewing its legislation in order to ensure that no person under 18 years can be recruited in the armed forces and that the violation of the provisions of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children and armed conflicts be explicitly criminalized in Tanzania's legislation.
9. CRC recommended that Tanzania expedite its law review processes in order to effectively prohibit the offences against children under the Optional Protocol to the Convention on the Rights of the Child on the Sale of children, child prostitution and child pornography and to ensure that perpetrators of the offences are duly prosecuted.
10. CERD was concerned about the absence of specific legislation on racial discrimination. It recommended that Tanzania adopt specific legislation on racial discrimination, including a legal definition of racial discrimination in line with the Convention. CERD also recommended that Tanzania envisage incorporating the Convention on the Elimination of All Forms of Racial Discrimination into its domestic legal order.
C. Institutional and human rights infrastructure
11. The Commission for Human Rights and Good Governance was accredited with A status by the International Coordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC) in 2003. It was further reviewed in 2005 and in October 2006. In 2010, OHCHR provided advice and assistance on strengthening national human rights institutions in Tanzania.
12. UNCT stated that there had been cuts by the Government into the financial resources of the Commission for Human Rights and Good Governance and that full access to the Commission’s services in rural areas is lacking. HR Committee recommended strengthening the capacity of the Commission to fulfil its mandate effectively in accordance with the Paris Principles, in particular by endowing it with adequate resources. CRC and CERD shared similar concerns.
13. UNCT also stated that a three-justice panel within the High Court considers individual complaints regarding violations of human rights. UNCT advised that better awareness about the right to resort to this mechanism among at-risk groups and the population at large was necessary.
14. CEDAW recommended that Tanzania strengthen its national gender machinery, in particular the Ministry of Community Development, Gender and Children for the Tanzanian mainland and the Ministry for Labour, Youth, Employment, Women and Children Development for Zanzibar.
15. Regarding ill-treatment in detention, HR Committee recommended that Tanzania establish a special mechanism, completely independent from the police force and other Government bodies, for the investigation of complaints concerning actions of law enforcement officials.
D. Policy measures
16. UNCT indicated that the 2008 revised Child Development Policy identified a series of key challenges concerning children, especially orphans, children with disabilities, children living in the streets and those engaged in harmful labour. The 2007 revised National Health Policy emphasized equity and human rights perspectives, especially among women, children, elderly and people with chronic diseases.
17. In 2009, OHCHR assisted the Government and the national human rights institution with the preparation of a road map for developing a plan of action on human rights.
II. Promotion and protection of human rights on the ground
A. Cooperation with human rights mechanisms
1. Cooperation with treaty bodies
Treaty body Latest report submitted and considered Latest concluding observations Follow-up response Reporting status
CERD 2004 August 2005 Overdue since 2006 Combined seventeenth and eighteenth reports overdue since 2007.
CESCR – Overdue initial, second, third and fourth reports submitted in 2009.
HR Committee 2007 July 2009 Overdue since 2010 Fifth report due in 2013.
CEDAW 2007 July 2008 Overdue since 2010 Combined seventh and eighth reports due in 2014.
CRC 2004 June 2006 – Combined third, fourth and fifth reports due in 2012.
OP-CRC-AC 2007 October 2008 – Combined third, fourth and fifth reports under the CRC due in 2012.
OP-CRC-SC 2007 October 2008 Combined third, fourth and fifth reports under the CRC due in 2012.
CRPD – Initial report due in 2011.
2. Cooperation with special procedures
Standing invitation issued No
Latest visits or mission reports Special Rapporteur on toxic waste (21-30 January 2008).
Visits agreed upon in principle
Visits requested and not yet agreed upon Independent expert on foreign debt (2006, 2007, 2008); Special Rapporteur on extrajudicial, summary or arbitrary executions (2008); Independent expert on the question of human rights and extreme poverty.
Facilitation/cooperation during missions
Follow-up to visits
Responses to letters of allegations and urgent appeals During the period under review, 6 communications were sent. The Government replied to 2 communications.
Responses to questionnaires on thematic issues Tanzania has not responded to any of the 23 questionnaires sent by special procedures mandate holders.
B. Implementation of international human rights obligations, taking into account applicable international humanitarian law
1. Equality and non-discrimination
18. UNCT indicated that patterns of discrimination against specific groups resulted primarily from intolerance, ignorance or negligence in conjunction with the lack of legal protection and effective remedies.
19. HR Committee recommended bringing laws governing the family and personal status in line with the Covenant, and stepping up efforts to change customary attitudes detrimental to women's rights. Tanzania should further promote women's participation in public affairs and ensure their access to education and employment.
20. CEDAW was concerned about the persistence of adverse cultural norms, practices and traditions that perpetuate discrimination against women, including female genital mutilation, polygamy and the bride price. CEDAW urged Tanzania to put in place a comprehensive strategy, including legislation, to modify or eliminate cultural practices and stereotypes that discriminate against women.
21. CEDAW was also concerned that traditional female stereotypes are most prevalent in the rural areas. It urged Tanzania to take appropriate measures to eliminate all forms of discrimination against rural women with respect to ownership of land, and to enact legislation to eliminate discriminatory inheritance practices.
22. CEDAW was deeply concerned about the social situation of older women, including their poverty, as well as reports of intimidation, isolation, abuse and killings, resulting, inter alia, from allegations of witchcraft. CEDAW recommended that Tanzania pay special attention to the precarious situation of older women. CEDAW also urged Tanzania to challenge traditional views regarding older women.
23. UNCT stated that particular attention should be drawn to the widespread marginalization of girl children in different spheres of life, including education, and the total exclusion caused for many by early and forced marriage.
24. CRC expressed concern at the fact that discrimination against certain groups of children still exists in legislation as well as in practice, particularly with regard to teenage pregnant girls, children with disabilities, children of asylum-seekers, children infected with and/or affected by HIV/AIDS, and street children. CRC encouraged Tanzania to integrate children with disabilities into the regular educational system and into society.
25. UNCT noted that stereotyping in HIV/AIDS infection had continued fuelling stigma and discrimination, particularly against women due to gender norms that labelled women as “vectors” of transmission for HIV. Commercial sex workers were another group at risk of social exclusion and UNCT encouraged Tanzania to study the effects of the arrests of these workers, the majority of whom were women.
2 Right to life, liberty and security of the person
26. HR Committee noted the de facto moratorium on the death penalty, which has not been applied since 1994, and recommended that Tanzania consider abolishing the death penalty, ensure that conditions of detention on death row do not amount to treatment contrary to the Covenant, and consider the early commutation of death sentences of all persons sentenced to death. In 2010, Tanzania abstained from voting on General Assembly resolution 65/206, Moratorium on the use of the death penalty.
27. UNCT stated that persons with albinism not only faced stigma and discrimination, but also the threat of violence and death. From 2006 to 2010, at least 58 persons with albinism were killed, the majority of whom were children. In addition, there were nine cases of attempted murder and reports of the desecration of graves. HR recommended strengthening efforts to put a halt to incidents of mutilation and killings of persons with albinism, and to ensure the efficient conduct of investigations and prosecution of the perpetrators. CEDAW shared similar concerns.
28. HR Committee recommended taking measures to eradicate all forms of ill-treatment in detention. HR Committee called on Tanzania to intensify its efforts to improve the conditions of persons deprived of liberty, in particular overcrowding, and to promote alternatives to imprisonment.
29. HR Committee recommended taking all necessary measures to effectively combat violence against women, and in particular, define and criminalize domestic violence, including marital rape; sensitize society as a whole in this regard; ensure that the perpetrators of such acts are prosecuted; and provide assistance and protection to victims.
30. CEDAW called on Tanzania to ensure that violence against women and girls, including domestic violence, marital rape and all forms of sexual abuse, constitute a criminal offence; that perpetrators are prosecuted, punished and rehabilitated; and that victims of violence have access to redress and protection. CEDAW recommended that legal aid be made available to all victims of violence, including in rural or remote areas.
31. HR Committee recommended that Tanzania adopt effective measures to combat female genital mutilation, in particular where the practice remains widespread, and ensure that the perpetrators are brought to justice. Concerned about the fact that the Sexual Offences Special Provisions Act of 1998 does not protect women above the age of 18 from genital mutilation, the Committee recommended that it be amending. Similar concerns were raised by CEDAW, CRC and CERD.
32. UNCT stated that Tanzania was a source, transit, and destination country for men, women, and children subjected to trafficking. The incidence of internal trafficking was higher than that of transnational trafficking, largely from rural to urban areas, affecting primarily children for their exploitation in domestic servitude, petty trade and prostitution. The use of young girls for forced domestic labour continued to be the country’s largest human trafficking problem. Governmental agencies were unable to implement the 2008 Anti-Trafficking in Persons Act, as the Ministry of Home Affairs has not yet established an Anti-Trafficking Committee tasked to set up the regulations of the Act.
33. HR Committee recommended taking all necessary measures to combat trafficking in human beings and sexual exploitation of women and children, ensure the effective implementation of its anti-trafficking legislation, and adopt a national action plan on trafficking. CEDAW urged Tanzania to implement the Anti-Trafficking in Persons Act and to adopt an action plan to address trafficking and to ensure the allocation of sufficient resources for its effective implementation.
34. CRC recommended that Tanzania strengthen preventive measures aimed at addressing the root causes that contribute to the vulnerability of children to sale, prostitution, pornography and sex tourism. CRC also urged Tanzania to undertake investigations into the sale of children for ritual purposes and bring the perpetrators to justice.
35. In 2010, the ILO Committee of Experts on the Application of Conventions and Recommendations expressed concern at the institutionalized and systematic coercion to work established in the Constitution, Acts of Parliament and District by-laws of Tanzania, in contradiction to both the ILO Forced Labour Convention (No. 29) and the Abolition of Forced Labour Convention (No. 105), ratified by Tanzania. A number of laws also permit the imposition of forced or compulsory labour as a punishment for a range of offences, including the expression of political views and the failure to engage in socially useful work.
36. CRC recommended that Tanzania assess the situation of children entering Tanzania who may have been recruited or used in hostilities abroad, and provide them with assistance for their physical and psychological recovery and their social reintegration.
37. In 2010, the ILO Committee of Experts expressed hope that Tanzania would take measures to prohibit the use, procuring or offering of a child for illicit activities, in particular the production and trafficking of drugs. HR Committee recommended that Tanzania intensify its efforts to eliminate child labour, and in particular ensure the effective implementation of its programme to eliminate the worst forms of child labour by 2010. CRC expressed similar concerns.
38. UNCT indicated that corporal punishment was not prohibited in any environment, including in schools, and its use was widespread. HR Committee recommended that Tanzania take measures towards the abolition of corporal punishment as a lawful sanction, promote non-violent forms of discipline within the educational system and carry out public information campaigns about its harmful impact. CRC shared similar concerns.
3. Administration of justice, including impunity and the rule of law
39. UNCT stated that the Government was attempting to address the shortcomings of the justice system, which remained weighed down by the increasing number of cases reported and lodged. There was an acute shortage of courts, as well as judges and magistrates to preside over cases, severely affecting access to competent tribunals. Some prisons were housing more than twice their capacity, as was the case with the Ruanda Central Prison. Convicted and non-convict inmates were mixed together, often under inhumane conditions.
40. CERD recommended taking the necessary measures to establish mechanisms to improve the capacity and efficiency of the judicial system, to ensure access to justice to all without discrimination, and to establish mechanisms to provide legal aid to all members of vulnerable groups.
41. HR Committee recommended that Tanzania ensure the effective implementation of the right of a suspect to be brought promptly before a magistrate, and introduce a comprehensive criminal legal aid system for individuals who do not have sufficient means to pay for legal representation.
42. UNCT stated that there was no separate criminal system for under-18s and, apart from one juvenile court in Dar Es Salaam, juvenile cases were heard in regular courts. Under-18s without the means to pay for a lawyer were often left without legal assistance. There was no system of diversion, no community rehabilitation schemes and non-custodial sentencing was limited. Children were routinely held in adult detention centres, even in regions where juvenile detention centres existed. The prisons were not staffed or equipped to provide specialist services, and juveniles were mixed with adults during the day. There were only two post-detention centres and five retention homes for under-18s in the country.
43. CRC urged Tanzania to ensure the full implementation of juvenile justice standards, clearly establish the age of criminal responsibility at 12 years, or at an older age that is an internationally accepted standard, and ensure that children between the ages of 16 and 18 are not considered as adults.
44. UNCT indicated that survivors of sexual abuse and violence struggled to secure justice and social support. The vast majority of police, prosecutors and magistrates were not trained to meet the needs of survivors. Stigma and community pressure often dissuaded families from lodging cases, with the community handling the case outside the justice system. This often leads to impunity for perpetrators.
4. Right to privacy, marriage and family life
45. UNCT indicated that same-sex sexual relations were criminalized and urged Tanzania to consider applying the Yogyakarta Principles as a guide to State policy-making, and to repeal any criminal provision against persons based on their sexual orientation. HR Committee made a similar recommendation.
46. CEDAW was concerned about the multiple marriage regimes and urged Tanzania to harmonize civil, religious and customary law with the Convention and to complete its law reform in the area of marriage and family relations. CEDAW also called on Tanzania to implement measures aimed at eliminating polygamy, and to ensure that its law establishes the legal minimum age for marriage at 18 years for both girls and boys. CRC and UNCT shared similar concerns regarding the minimum age for marriage .
47. CRC recommended ensuring free birth registration and introducing mobile birth registration units in order to reach remote and rural areas throughout the country.
5. Freedom of religion or belief, expression, association and peaceful assembly, and right to participate in public and political life
48. UNESCO stated that the situation of freedom of expression was favourable in Tanzania and has improved significantly in recent years. HR Committee recommended that Tanzania put an end to direct and indirect restrictions on freedom of expression, ensure that its legislation and practice give full effect to the Covenant, and adopt appropriate measures to prevent any intimidation of journalists.
49. The Special Rapporteur on the right to freedom of opinion and expression sent an allegation letter on 10 January 2008 concerning an attack against two journalists who were severely beaten.
50. UNCT stated that notwithstanding an increase in trained journalists, a lot remained to be done in improving quality and adherence to ethics. By December 2009, there were over 300 libel suits pending in the courts against the media.
51. HR Committee called on Tanzania to take all necessary measures to guarantee the exercise of the right to peaceful association, and ensure that any restrictions imposed on the operation of associations and the peaceful pursuit of their activities are compatible with the Covenant.
52. CEDAW recommended that Tanzania pursue sustained policies aimed at the promotion of women's full and equal participation in decision-making in all areas of public and professional life.
6. Right to work and to just and favourable conditions of work
53. UNCT stated that although the ILO Equal Remuneration Convention (No. 100) and Discrimination (Employment and Occupation) Convention (No. 111) had been ratified and domestic laws to their effect had been introduced, the Government had yet to elaborate measures to address wage discrimination and disparities between job values in the private and public sectors. UNCT also noted that HIV/AIDS-related discrimination remained institutionalized in the workplace in both the public and private spheres.
54. The ILO Committee of Experts recalled that the right to strike may be restricted or prohibited in the public service only for public servants exercising authority in the name of the State or in essential services, and requested Tanzania to take the necessary measures to amend relevant sections of the Labour Relations Act of 2005. UNCT expressed similar views.
55. CEDAW was concerned that the public service is male dominated and that the majority of women working in the public sector are in lower or middle cadre positions. CEDAW was also concerned about the precarious situation of the high number of women in the informal sector, mainly in the agricultural sector, as well as in other activities such as small business, food processing and handicrafts, where they have limited access to land and lack job security and access to social security benefits. CEDAW called on Tanzania to ensure that employment legislation applies to, and is enforced in, the public and private sectors, and to provide a regulatory framework for the informal sector, with a view to providing women with access to social protection and benefits.
7. Right to social security and to an adequate standard of living
56. CRC remained concerned about widespread poverty and the increasingly high number of children who do not enjoy the right to an adequate standard of living. UNCT stated that some 43 per cent of the population were children, 6 million of whom were living below the basic-needs poverty line and 3 million below the food poverty line. UNDP noted that Tanzania has the potential to reduce food poverty by 2015, if the current efforts to revive and accelerate agriculture production can be sustained.
57. CEDAW recommended that Tanzania strengthen its efforts to reduce the incidence of maternal and infant mortality, and to increase the life expectancy age for women. It urged Tanzania to make every effort to increase women's access to health-care facilities and medical assistance by trained personnel, especially in rural areas. CRC raised similar concerns. UNCT made a similar recommendation.
58. UNDP noted that although progress has been made, the spread of HIV/AIDS was the single most impoverishing force facing people and households in Tanzania. CEDAW recommended continued efforts to address the impact of HIV/AIDS on women and girls, as well as its social and family consequences. It urged Tanzania to enhance its focus on women's empowerment and to include clearly and visibly a gender perspective in its policies and programmes on HIV/AIDS. CRC expressed similar views.
59. In August 2008, the Special Rapporteur on toxic waste called on the Government, inter alia, to treat the issue of children being exposed to highly toxic substances as a matter of urgency and to try and find a way to reduce the number of children engaged in mining activities. He also called on the Government to monitor more closely the operations of large-scale mining companies, particularly on issues of occupational health and safety standards and the level of compliance of corporations with environmental and other legislation. Furthermore, he urged the Government, inter alia, to carry out social impact assessments to better protect and promote the human rights of the local population, and to develop a database of mining-related illnesses.
60. On 20 February 2006, the Special Rapporteur on the right to food stated that 3.7 million people in Tanzania were at risk of food shortage due to the failure of rain. Recalling that under the ICESCR, State parties have the obligation to respond quickly and in an appropriate manner to emergency food situations on the territory of a member State of the United Nations, the Special Rapporteur requested that member States ensure the realization of the right to food of the suffering populations.
8. Right to education
61. UNCT stated that the quality of education remained a concern. More Government attention was needed on a series of issues, particularly children with disabilities. While the Government had developed an Inclusive Education Strategy, immediate efforts should be taken to ensure its implementation and hence increase the inclusion of orphans and other vulnerable children.
62. UNCT stated that a 2002 regulation allowed for the expulsion of pregnant girls from school. Existing protection and special programmes for girls were inadequate and resulted in many girls being unable to complete the compulsory education programme.
63. CEDAW recommended implementing measures to ensure equal access of girls and women to all levels of education, retain girls in school and strengthen the implementation of re-entry policies so that girls can return to school after giving birth. It also encouraged Tanzania to take steps to overcome traditional attitudes that in some areas constitute obstacles to the education of girls and women. CRC shared similar concerns.
9. Minorities and indigenous peoples
64. UNCT stated that the rights of indigenous peoples to access ancestral lands had been denied or limited for economic exploitation, in particular in game reserves. UNCT urged the Government to reconsider its policy under which the notion of indigenous peoples was unrecognized, and to take steps to ensure their right to practice their own culture in parity with the majority population.
65. HR Committee recommended that Tanzania adopt specific legislation and special measures to protect, preserve and promote the cultural heritage and traditional way of life of its indigenous peoples, and consult indigenous communities before establishing game reserves, granting licences for hunting, or other projects on "ancestral" or disputed lands. Similar concerns were raised by CERD and by the Special Rapporteur on toxic waste.
66. On 28 August 2007, the Special Rapporteur on the right to food, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people and the Special Rapporteur on the situation of human rights defenders sent an allegation letter to the Government regarding alleged threats to the Hadzabe indigenous community arising from the granting of a hunting license to a private company on Hadzabe traditional lands, and about the detention of a Hadzabe spokesperson and member of the Hunter-Gatherer Forum of East Africa.
10. Migrants, refugees and asylum-seekers
67. In 2011, a UNHCR report indicated that Tanzania continued to experience large-scale unlawful entry of irregular migrants. By early 2008, some 550 prisoners had been convicted of unlawful entry into Tanzania and some 1,300 illegal immigrants, mainly from the Horn of Africa, were detained pending deportations to their home countries. CERD urged Tanzania to ensure that no refugees are forcibly returned to a country where there are substantial grounds for believing that they may suffer serious human rights violations.
68. A UNHCR report stated that Tanzania continued to enforce an encampment policy which required all refugees to live in “designated areas.” This left the refugees few opportunities to supplement their income and diet, and they remained dependent on humanitarian assistance.
69. CERD recommended that Tanzania take appropriate measures to eradicate all forms of ill-treatment of refugees, in particular women; ensure prompt and impartial investigations into all allegations of ill-treatment of refugees; prosecute the persons responsible for ill-treatment; and grant compensation to victims. CEDAW urged Tanzania to take steps to investigate and punish all perpetrators of violence against refugees.
11. Human rights and counter-terrorism
70. HR Committee recommended that Tanzania ensure that its counter-terrorism measures are in full conformity with the Covenant, including the right to presumption of innocence.
III. Achievements, best practices, challenges and constraints
71. UNCT recognized that, while gender-based violence was prevalent, the Government had taken several steps to prevent and respond to this phenomenon.
72. CERD noted that Tanzania is a multi-ethnic State, with more than 120 ethnic and minority groups, and acknowledged its efforts to build a State where all groups live in harmony.
73. CRC noted that the high incidence of the HIV/AIDS epidemic in rural areas, together with certain traditional practices and customs in use there, continue to hamper progress in the implementation of the Convention.
74. CERD acknowledged with appreciation that, despite a decline in the number of refugees, Tanzania continued to host more than 600,000 refugees, the largest number in Africa. CRC noted with appreciation Tanzania's long-standing generous approach to receiving refugees from neighbouring countries.
75. A UNHCR report indicated that, in April 2010, Tanzania took the decision to naturalize more than 162,200 refugees living in the north-west of the country since 1972. Their local integration, including their relocation to some 60 districts in 18 regions across Tanzania, could pose considerable challenges.
76. HR Committee welcomed the enactment of the Spinsters and Single Parent Child Protection Act of 2005 in Zanzibar, abolishing the imprisonment of unmarried women who have become pregnant.
IV. Key national priorities, initiatives and commitments
Specific recommendations for follow-up
77. In 2009, HR Committee requested Tanzania to provide, within one year, relevant information on its implementation of recommendations related to female genital mutilation, corporal punishment, and imprisonment for failure to pay a debt.
78. In light of information alleging discrimination against Maasai pastoralists in a district of Western Arusha, CERD requested Tanzania, in a letter dated 6 March 2009, to provide information on follow-up measures.
79. In 2008, CEDAW requested Tanzania to provide, within two years, written information on the steps taken to implement the recommendations related to law review process and female genital mutilation.
80. In 2005, CERD requested Tanzania to inform it, within one year, of its implementation of the recommendations regarding female genital mutilation, refugees forcibly returned to countries where they may suffer human rights violations and ill-treatment of refugees.
V. Capacity-building and technical assistance
81. CRC recommended that Tanzania take all necessary steps to strengthen international cooperation through multilateral, regional and bilateral arrangements for the prevention, detection, investigation, prosecution and punishment of those responsible for acts involving the sale of children, child prostitution, child pornography and child sex tourism.
Notes
General Assembly Distr.: General
25 July 2011
Original: English
Human Rights Council
Working Group on the Universal Periodic Review
Twelfth session
Geneva, 3–14 October 2011
Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1
United Republic of Tanzania
The present report is a compilation of the information contained in the reports of treaty bodies, special procedures, including observations and comments by the State concerned, and other relevant official United Nations documents. It does not contain any opinions, views or suggestions on the part of the Office of the United Nations High Commissioner for Human Rights (OHCHR), other than those contained in public reports issued by OHCHR. It follows the structure of the general guidelines adopted by the Human Rights Council. Information included herein has been systematically referenced in endnotes. The report has been prepared taking into consideration the four-year periodicity of the first cycle of the review. In the absence of recent information, the latest available reports and documents have been taken into consideration, unless they are outdated. Since this report only compiles information contained in official United Nations documents, lack of information or focus on specific issues may be due to non-ratification of a treaty and/or to a low level of interaction or cooperation with international human rights mechanisms.
I. Background and framework
A. Scope of international obligations
Universal human rights treaties Date of ratification, accession or succession Declarations/reservations Recognition of specific competences of treaty bodies
ICERD 27 Oct. 1972 None Individual complaints (art. 14): No
ICESCR 11 June 1976 None –
ICCPR 11 June 1976 None Inter-State complaints (art. 41): No
CEDAW 20 Aug. 1985 None –
OP-CEDAW 12 Jan. 2006 None Inquiry procedure (arts. 8 and 9): Yes
CRC 10 June 1991 None –
OP-CRC-AC 11 Nov. 2004 Binding declaration under art. 3:18 years –
OP-CRC-SC 24 April 2003 None –
CRPD 10 Nov. 2009 None –
CRPD-OP 10 Nov. 2009 None Inquiry procedure (arts. 6 and 7): Yes
Treaties to which the United Republic of Tanzania is not a party: OP-ICESCR , ICCPR-OP 1, ICCPR-OP 2, CAT, OP-CAT, ICRMW and CED (signature only, 2008).
Other main relevant international instruments Ratification, accession or succession
Convention on the Prevention and Punishment of the Crime of Genocide Yes
Rome Statute of the International Criminal Court Yes
Palermo Protocol Yes
Refugees and stateless persons Yes, except 1954 and 1961 conventions
Geneva Conventions of 12 August 1949 and Additional Protocols thereto Yes, except Additional Protocol III (signature only)
ILO fundamental conventions Yes
UNESCO Convention against Discrimination in Education Yes
1. In its submission, UNCT stated that the Government of the United Republic of Tanzania should step up efforts to abolish the death penalty by acceding to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP 2). In 2009, the Human Rights Committee (HR Committee) recommended that Tanzania seriously consider becoming a party to ICCPR-OP 2.
2. In 2008, the Committee on the Elimination of Discrimination against Women (CEDAW) encouraged Tanzania to consider ratifying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Convention on the Protection of the Rights of Migrants Workers and Member of Their Families (ICRMW), and the International Convention for the Protection of All Persons from Enforced Disappearance (CED), and to accept, as soon as possible, the amendment to article 20, paragraph 1, of CEDAW. In 2006, the Committee on the Rights of the Child (CRC) recommended that Tanzania ratify CAT.
3. In 2005, the Committee on the Elimination of Racial Discrimination (CERD) strongly recommended that Tanzania ratify the amendments to article 8, paragraph 6, of the Convention.
B. Constitutional and legislative framework
4. UNCT stated that in the Tanzanian Constitution there was no recognition of the general prohibition of torture, as set forth in the ICCPR. UNCT added that a general clause in the Constitution stipulated that human rights might be subject to limitations by ordinary legislation, if, for instance, such legislation “promotes or preserves the national interest in general”. As a result, retrogressive law has usurped some human rights, in particular with regard to property and access to land. UNCT also stated that the Government should enact a comprehensive anti-discrimination law as a complement to the existing provisions in the Constitution.
5. HR Committee recommended that Tanzania ensure that all rights protected under the Covenant are given full effect in domestic law.
6. CRC and HR Committee recommended that Tanzania continue and complete the process of adopting a Children's Act.
7. CEDAW called upon Tanzania to consider amending the existing definition of discrimination to encompass both direct and indirect discrimination in accordance with article 1 of the Convention. CEDAW was concerned at the continuing discrimination against women under the Citizenship Act (1995) and urged Tanzania to accelerate the process to amend the Citizenship Act in order to bring it fully into compliance with the Convention.
8. CRC recommended that Tanzania consider reviewing its legislation in order to ensure that no person under 18 years can be recruited in the armed forces and that the violation of the provisions of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children and armed conflicts be explicitly criminalized in Tanzania's legislation.
9. CRC recommended that Tanzania expedite its law review processes in order to effectively prohibit the offences against children under the Optional Protocol to the Convention on the Rights of the Child on the Sale of children, child prostitution and child pornography and to ensure that perpetrators of the offences are duly prosecuted.
10. CERD was concerned about the absence of specific legislation on racial discrimination. It recommended that Tanzania adopt specific legislation on racial discrimination, including a legal definition of racial discrimination in line with the Convention. CERD also recommended that Tanzania envisage incorporating the Convention on the Elimination of All Forms of Racial Discrimination into its domestic legal order.
C. Institutional and human rights infrastructure
11. The Commission for Human Rights and Good Governance was accredited with A status by the International Coordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC) in 2003. It was further reviewed in 2005 and in October 2006. In 2010, OHCHR provided advice and assistance on strengthening national human rights institutions in Tanzania.
12. UNCT stated that there had been cuts by the Government into the financial resources of the Commission for Human Rights and Good Governance and that full access to the Commission’s services in rural areas is lacking. HR Committee recommended strengthening the capacity of the Commission to fulfil its mandate effectively in accordance with the Paris Principles, in particular by endowing it with adequate resources. CRC and CERD shared similar concerns.
13. UNCT also stated that a three-justice panel within the High Court considers individual complaints regarding violations of human rights. UNCT advised that better awareness about the right to resort to this mechanism among at-risk groups and the population at large was necessary.
14. CEDAW recommended that Tanzania strengthen its national gender machinery, in particular the Ministry of Community Development, Gender and Children for the Tanzanian mainland and the Ministry for Labour, Youth, Employment, Women and Children Development for Zanzibar.
15. Regarding ill-treatment in detention, HR Committee recommended that Tanzania establish a special mechanism, completely independent from the police force and other Government bodies, for the investigation of complaints concerning actions of law enforcement officials.
D. Policy measures
16. UNCT indicated that the 2008 revised Child Development Policy identified a series of key challenges concerning children, especially orphans, children with disabilities, children living in the streets and those engaged in harmful labour. The 2007 revised National Health Policy emphasized equity and human rights perspectives, especially among women, children, elderly and people with chronic diseases.
17. In 2009, OHCHR assisted the Government and the national human rights institution with the preparation of a road map for developing a plan of action on human rights.
II. Promotion and protection of human rights on the ground
A. Cooperation with human rights mechanisms
1. Cooperation with treaty bodies
Treaty body Latest report submitted and considered Latest concluding observations Follow-up response Reporting status
CERD 2004 August 2005 Overdue since 2006 Combined seventeenth and eighteenth reports overdue since 2007.
CESCR – Overdue initial, second, third and fourth reports submitted in 2009.
HR Committee 2007 July 2009 Overdue since 2010 Fifth report due in 2013.
CEDAW 2007 July 2008 Overdue since 2010 Combined seventh and eighth reports due in 2014.
CRC 2004 June 2006 – Combined third, fourth and fifth reports due in 2012.
OP-CRC-AC 2007 October 2008 – Combined third, fourth and fifth reports under the CRC due in 2012.
OP-CRC-SC 2007 October 2008 Combined third, fourth and fifth reports under the CRC due in 2012.
CRPD – Initial report due in 2011.
2. Cooperation with special procedures
Standing invitation issued No
Latest visits or mission reports Special Rapporteur on toxic waste (21-30 January 2008).
Visits agreed upon in principle
Visits requested and not yet agreed upon Independent expert on foreign debt (2006, 2007, 2008); Special Rapporteur on extrajudicial, summary or arbitrary executions (2008); Independent expert on the question of human rights and extreme poverty.
Facilitation/cooperation during missions
Follow-up to visits
Responses to letters of allegations and urgent appeals During the period under review, 6 communications were sent. The Government replied to 2 communications.
Responses to questionnaires on thematic issues Tanzania has not responded to any of the 23 questionnaires sent by special procedures mandate holders.
B. Implementation of international human rights obligations, taking into account applicable international humanitarian law
1. Equality and non-discrimination
18. UNCT indicated that patterns of discrimination against specific groups resulted primarily from intolerance, ignorance or negligence in conjunction with the lack of legal protection and effective remedies.
19. HR Committee recommended bringing laws governing the family and personal status in line with the Covenant, and stepping up efforts to change customary attitudes detrimental to women's rights. Tanzania should further promote women's participation in public affairs and ensure their access to education and employment.
20. CEDAW was concerned about the persistence of adverse cultural norms, practices and traditions that perpetuate discrimination against women, including female genital mutilation, polygamy and the bride price. CEDAW urged Tanzania to put in place a comprehensive strategy, including legislation, to modify or eliminate cultural practices and stereotypes that discriminate against women.
21. CEDAW was also concerned that traditional female stereotypes are most prevalent in the rural areas. It urged Tanzania to take appropriate measures to eliminate all forms of discrimination against rural women with respect to ownership of land, and to enact legislation to eliminate discriminatory inheritance practices.
22. CEDAW was deeply concerned about the social situation of older women, including their poverty, as well as reports of intimidation, isolation, abuse and killings, resulting, inter alia, from allegations of witchcraft. CEDAW recommended that Tanzania pay special attention to the precarious situation of older women. CEDAW also urged Tanzania to challenge traditional views regarding older women.
23. UNCT stated that particular attention should be drawn to the widespread marginalization of girl children in different spheres of life, including education, and the total exclusion caused for many by early and forced marriage.
24. CRC expressed concern at the fact that discrimination against certain groups of children still exists in legislation as well as in practice, particularly with regard to teenage pregnant girls, children with disabilities, children of asylum-seekers, children infected with and/or affected by HIV/AIDS, and street children. CRC encouraged Tanzania to integrate children with disabilities into the regular educational system and into society.
25. UNCT noted that stereotyping in HIV/AIDS infection had continued fuelling stigma and discrimination, particularly against women due to gender norms that labelled women as “vectors” of transmission for HIV. Commercial sex workers were another group at risk of social exclusion and UNCT encouraged Tanzania to study the effects of the arrests of these workers, the majority of whom were women.
2 Right to life, liberty and security of the person
26. HR Committee noted the de facto moratorium on the death penalty, which has not been applied since 1994, and recommended that Tanzania consider abolishing the death penalty, ensure that conditions of detention on death row do not amount to treatment contrary to the Covenant, and consider the early commutation of death sentences of all persons sentenced to death. In 2010, Tanzania abstained from voting on General Assembly resolution 65/206, Moratorium on the use of the death penalty.
27. UNCT stated that persons with albinism not only faced stigma and discrimination, but also the threat of violence and death. From 2006 to 2010, at least 58 persons with albinism were killed, the majority of whom were children. In addition, there were nine cases of attempted murder and reports of the desecration of graves. HR recommended strengthening efforts to put a halt to incidents of mutilation and killings of persons with albinism, and to ensure the efficient conduct of investigations and prosecution of the perpetrators. CEDAW shared similar concerns.
28. HR Committee recommended taking measures to eradicate all forms of ill-treatment in detention. HR Committee called on Tanzania to intensify its efforts to improve the conditions of persons deprived of liberty, in particular overcrowding, and to promote alternatives to imprisonment.
29. HR Committee recommended taking all necessary measures to effectively combat violence against women, and in particular, define and criminalize domestic violence, including marital rape; sensitize society as a whole in this regard; ensure that the perpetrators of such acts are prosecuted; and provide assistance and protection to victims.
30. CEDAW called on Tanzania to ensure that violence against women and girls, including domestic violence, marital rape and all forms of sexual abuse, constitute a criminal offence; that perpetrators are prosecuted, punished and rehabilitated; and that victims of violence have access to redress and protection. CEDAW recommended that legal aid be made available to all victims of violence, including in rural or remote areas.
31. HR Committee recommended that Tanzania adopt effective measures to combat female genital mutilation, in particular where the practice remains widespread, and ensure that the perpetrators are brought to justice. Concerned about the fact that the Sexual Offences Special Provisions Act of 1998 does not protect women above the age of 18 from genital mutilation, the Committee recommended that it be amending. Similar concerns were raised by CEDAW, CRC and CERD.
32. UNCT stated that Tanzania was a source, transit, and destination country for men, women, and children subjected to trafficking. The incidence of internal trafficking was higher than that of transnational trafficking, largely from rural to urban areas, affecting primarily children for their exploitation in domestic servitude, petty trade and prostitution. The use of young girls for forced domestic labour continued to be the country’s largest human trafficking problem. Governmental agencies were unable to implement the 2008 Anti-Trafficking in Persons Act, as the Ministry of Home Affairs has not yet established an Anti-Trafficking Committee tasked to set up the regulations of the Act.
33. HR Committee recommended taking all necessary measures to combat trafficking in human beings and sexual exploitation of women and children, ensure the effective implementation of its anti-trafficking legislation, and adopt a national action plan on trafficking. CEDAW urged Tanzania to implement the Anti-Trafficking in Persons Act and to adopt an action plan to address trafficking and to ensure the allocation of sufficient resources for its effective implementation.
34. CRC recommended that Tanzania strengthen preventive measures aimed at addressing the root causes that contribute to the vulnerability of children to sale, prostitution, pornography and sex tourism. CRC also urged Tanzania to undertake investigations into the sale of children for ritual purposes and bring the perpetrators to justice.
35. In 2010, the ILO Committee of Experts on the Application of Conventions and Recommendations expressed concern at the institutionalized and systematic coercion to work established in the Constitution, Acts of Parliament and District by-laws of Tanzania, in contradiction to both the ILO Forced Labour Convention (No. 29) and the Abolition of Forced Labour Convention (No. 105), ratified by Tanzania. A number of laws also permit the imposition of forced or compulsory labour as a punishment for a range of offences, including the expression of political views and the failure to engage in socially useful work.
36. CRC recommended that Tanzania assess the situation of children entering Tanzania who may have been recruited or used in hostilities abroad, and provide them with assistance for their physical and psychological recovery and their social reintegration.
37. In 2010, the ILO Committee of Experts expressed hope that Tanzania would take measures to prohibit the use, procuring or offering of a child for illicit activities, in particular the production and trafficking of drugs. HR Committee recommended that Tanzania intensify its efforts to eliminate child labour, and in particular ensure the effective implementation of its programme to eliminate the worst forms of child labour by 2010. CRC expressed similar concerns.
38. UNCT indicated that corporal punishment was not prohibited in any environment, including in schools, and its use was widespread. HR Committee recommended that Tanzania take measures towards the abolition of corporal punishment as a lawful sanction, promote non-violent forms of discipline within the educational system and carry out public information campaigns about its harmful impact. CRC shared similar concerns.
3. Administration of justice, including impunity and the rule of law
39. UNCT stated that the Government was attempting to address the shortcomings of the justice system, which remained weighed down by the increasing number of cases reported and lodged. There was an acute shortage of courts, as well as judges and magistrates to preside over cases, severely affecting access to competent tribunals. Some prisons were housing more than twice their capacity, as was the case with the Ruanda Central Prison. Convicted and non-convict inmates were mixed together, often under inhumane conditions.
40. CERD recommended taking the necessary measures to establish mechanisms to improve the capacity and efficiency of the judicial system, to ensure access to justice to all without discrimination, and to establish mechanisms to provide legal aid to all members of vulnerable groups.
41. HR Committee recommended that Tanzania ensure the effective implementation of the right of a suspect to be brought promptly before a magistrate, and introduce a comprehensive criminal legal aid system for individuals who do not have sufficient means to pay for legal representation.
42. UNCT stated that there was no separate criminal system for under-18s and, apart from one juvenile court in Dar Es Salaam, juvenile cases were heard in regular courts. Under-18s without the means to pay for a lawyer were often left without legal assistance. There was no system of diversion, no community rehabilitation schemes and non-custodial sentencing was limited. Children were routinely held in adult detention centres, even in regions where juvenile detention centres existed. The prisons were not staffed or equipped to provide specialist services, and juveniles were mixed with adults during the day. There were only two post-detention centres and five retention homes for under-18s in the country.
43. CRC urged Tanzania to ensure the full implementation of juvenile justice standards, clearly establish the age of criminal responsibility at 12 years, or at an older age that is an internationally accepted standard, and ensure that children between the ages of 16 and 18 are not considered as adults.
44. UNCT indicated that survivors of sexual abuse and violence struggled to secure justice and social support. The vast majority of police, prosecutors and magistrates were not trained to meet the needs of survivors. Stigma and community pressure often dissuaded families from lodging cases, with the community handling the case outside the justice system. This often leads to impunity for perpetrators.
4. Right to privacy, marriage and family life
45. UNCT indicated that same-sex sexual relations were criminalized and urged Tanzania to consider applying the Yogyakarta Principles as a guide to State policy-making, and to repeal any criminal provision against persons based on their sexual orientation. HR Committee made a similar recommendation.
46. CEDAW was concerned about the multiple marriage regimes and urged Tanzania to harmonize civil, religious and customary law with the Convention and to complete its law reform in the area of marriage and family relations. CEDAW also called on Tanzania to implement measures aimed at eliminating polygamy, and to ensure that its law establishes the legal minimum age for marriage at 18 years for both girls and boys. CRC and UNCT shared similar concerns regarding the minimum age for marriage .
47. CRC recommended ensuring free birth registration and introducing mobile birth registration units in order to reach remote and rural areas throughout the country.
5. Freedom of religion or belief, expression, association and peaceful assembly, and right to participate in public and political life
48. UNESCO stated that the situation of freedom of expression was favourable in Tanzania and has improved significantly in recent years. HR Committee recommended that Tanzania put an end to direct and indirect restrictions on freedom of expression, ensure that its legislation and practice give full effect to the Covenant, and adopt appropriate measures to prevent any intimidation of journalists.
49. The Special Rapporteur on the right to freedom of opinion and expression sent an allegation letter on 10 January 2008 concerning an attack against two journalists who were severely beaten.
50. UNCT stated that notwithstanding an increase in trained journalists, a lot remained to be done in improving quality and adherence to ethics. By December 2009, there were over 300 libel suits pending in the courts against the media.
51. HR Committee called on Tanzania to take all necessary measures to guarantee the exercise of the right to peaceful association, and ensure that any restrictions imposed on the operation of associations and the peaceful pursuit of their activities are compatible with the Covenant.
52. CEDAW recommended that Tanzania pursue sustained policies aimed at the promotion of women's full and equal participation in decision-making in all areas of public and professional life.
6. Right to work and to just and favourable conditions of work
53. UNCT stated that although the ILO Equal Remuneration Convention (No. 100) and Discrimination (Employment and Occupation) Convention (No. 111) had been ratified and domestic laws to their effect had been introduced, the Government had yet to elaborate measures to address wage discrimination and disparities between job values in the private and public sectors. UNCT also noted that HIV/AIDS-related discrimination remained institutionalized in the workplace in both the public and private spheres.
54. The ILO Committee of Experts recalled that the right to strike may be restricted or prohibited in the public service only for public servants exercising authority in the name of the State or in essential services, and requested Tanzania to take the necessary measures to amend relevant sections of the Labour Relations Act of 2005. UNCT expressed similar views.
55. CEDAW was concerned that the public service is male dominated and that the majority of women working in the public sector are in lower or middle cadre positions. CEDAW was also concerned about the precarious situation of the high number of women in the informal sector, mainly in the agricultural sector, as well as in other activities such as small business, food processing and handicrafts, where they have limited access to land and lack job security and access to social security benefits. CEDAW called on Tanzania to ensure that employment legislation applies to, and is enforced in, the public and private sectors, and to provide a regulatory framework for the informal sector, with a view to providing women with access to social protection and benefits.
7. Right to social security and to an adequate standard of living
56. CRC remained concerned about widespread poverty and the increasingly high number of children who do not enjoy the right to an adequate standard of living. UNCT stated that some 43 per cent of the population were children, 6 million of whom were living below the basic-needs poverty line and 3 million below the food poverty line. UNDP noted that Tanzania has the potential to reduce food poverty by 2015, if the current efforts to revive and accelerate agriculture production can be sustained.
57. CEDAW recommended that Tanzania strengthen its efforts to reduce the incidence of maternal and infant mortality, and to increase the life expectancy age for women. It urged Tanzania to make every effort to increase women's access to health-care facilities and medical assistance by trained personnel, especially in rural areas. CRC raised similar concerns. UNCT made a similar recommendation.
58. UNDP noted that although progress has been made, the spread of HIV/AIDS was the single most impoverishing force facing people and households in Tanzania. CEDAW recommended continued efforts to address the impact of HIV/AIDS on women and girls, as well as its social and family consequences. It urged Tanzania to enhance its focus on women's empowerment and to include clearly and visibly a gender perspective in its policies and programmes on HIV/AIDS. CRC expressed similar views.
59. In August 2008, the Special Rapporteur on toxic waste called on the Government, inter alia, to treat the issue of children being exposed to highly toxic substances as a matter of urgency and to try and find a way to reduce the number of children engaged in mining activities. He also called on the Government to monitor more closely the operations of large-scale mining companies, particularly on issues of occupational health and safety standards and the level of compliance of corporations with environmental and other legislation. Furthermore, he urged the Government, inter alia, to carry out social impact assessments to better protect and promote the human rights of the local population, and to develop a database of mining-related illnesses.
60. On 20 February 2006, the Special Rapporteur on the right to food stated that 3.7 million people in Tanzania were at risk of food shortage due to the failure of rain. Recalling that under the ICESCR, State parties have the obligation to respond quickly and in an appropriate manner to emergency food situations on the territory of a member State of the United Nations, the Special Rapporteur requested that member States ensure the realization of the right to food of the suffering populations.
8. Right to education
61. UNCT stated that the quality of education remained a concern. More Government attention was needed on a series of issues, particularly children with disabilities. While the Government had developed an Inclusive Education Strategy, immediate efforts should be taken to ensure its implementation and hence increase the inclusion of orphans and other vulnerable children.
62. UNCT stated that a 2002 regulation allowed for the expulsion of pregnant girls from school. Existing protection and special programmes for girls were inadequate and resulted in many girls being unable to complete the compulsory education programme.
63. CEDAW recommended implementing measures to ensure equal access of girls and women to all levels of education, retain girls in school and strengthen the implementation of re-entry policies so that girls can return to school after giving birth. It also encouraged Tanzania to take steps to overcome traditional attitudes that in some areas constitute obstacles to the education of girls and women. CRC shared similar concerns.
9. Minorities and indigenous peoples
64. UNCT stated that the rights of indigenous peoples to access ancestral lands had been denied or limited for economic exploitation, in particular in game reserves. UNCT urged the Government to reconsider its policy under which the notion of indigenous peoples was unrecognized, and to take steps to ensure their right to practice their own culture in parity with the majority population.
65. HR Committee recommended that Tanzania adopt specific legislation and special measures to protect, preserve and promote the cultural heritage and traditional way of life of its indigenous peoples, and consult indigenous communities before establishing game reserves, granting licences for hunting, or other projects on "ancestral" or disputed lands. Similar concerns were raised by CERD and by the Special Rapporteur on toxic waste.
66. On 28 August 2007, the Special Rapporteur on the right to food, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people and the Special Rapporteur on the situation of human rights defenders sent an allegation letter to the Government regarding alleged threats to the Hadzabe indigenous community arising from the granting of a hunting license to a private company on Hadzabe traditional lands, and about the detention of a Hadzabe spokesperson and member of the Hunter-Gatherer Forum of East Africa.
10. Migrants, refugees and asylum-seekers
67. In 2011, a UNHCR report indicated that Tanzania continued to experience large-scale unlawful entry of irregular migrants. By early 2008, some 550 prisoners had been convicted of unlawful entry into Tanzania and some 1,300 illegal immigrants, mainly from the Horn of Africa, were detained pending deportations to their home countries. CERD urged Tanzania to ensure that no refugees are forcibly returned to a country where there are substantial grounds for believing that they may suffer serious human rights violations.
68. A UNHCR report stated that Tanzania continued to enforce an encampment policy which required all refugees to live in “designated areas.” This left the refugees few opportunities to supplement their income and diet, and they remained dependent on humanitarian assistance.
69. CERD recommended that Tanzania take appropriate measures to eradicate all forms of ill-treatment of refugees, in particular women; ensure prompt and impartial investigations into all allegations of ill-treatment of refugees; prosecute the persons responsible for ill-treatment; and grant compensation to victims. CEDAW urged Tanzania to take steps to investigate and punish all perpetrators of violence against refugees.
11. Human rights and counter-terrorism
70. HR Committee recommended that Tanzania ensure that its counter-terrorism measures are in full conformity with the Covenant, including the right to presumption of innocence.
III. Achievements, best practices, challenges and constraints
71. UNCT recognized that, while gender-based violence was prevalent, the Government had taken several steps to prevent and respond to this phenomenon.
72. CERD noted that Tanzania is a multi-ethnic State, with more than 120 ethnic and minority groups, and acknowledged its efforts to build a State where all groups live in harmony.
73. CRC noted that the high incidence of the HIV/AIDS epidemic in rural areas, together with certain traditional practices and customs in use there, continue to hamper progress in the implementation of the Convention.
74. CERD acknowledged with appreciation that, despite a decline in the number of refugees, Tanzania continued to host more than 600,000 refugees, the largest number in Africa. CRC noted with appreciation Tanzania's long-standing generous approach to receiving refugees from neighbouring countries.
75. A UNHCR report indicated that, in April 2010, Tanzania took the decision to naturalize more than 162,200 refugees living in the north-west of the country since 1972. Their local integration, including their relocation to some 60 districts in 18 regions across Tanzania, could pose considerable challenges.
76. HR Committee welcomed the enactment of the Spinsters and Single Parent Child Protection Act of 2005 in Zanzibar, abolishing the imprisonment of unmarried women who have become pregnant.
IV. Key national priorities, initiatives and commitments
Specific recommendations for follow-up
77. In 2009, HR Committee requested Tanzania to provide, within one year, relevant information on its implementation of recommendations related to female genital mutilation, corporal punishment, and imprisonment for failure to pay a debt.
78. In light of information alleging discrimination against Maasai pastoralists in a district of Western Arusha, CERD requested Tanzania, in a letter dated 6 March 2009, to provide information on follow-up measures.
79. In 2008, CEDAW requested Tanzania to provide, within two years, written information on the steps taken to implement the recommendations related to law review process and female genital mutilation.
80. In 2005, CERD requested Tanzania to inform it, within one year, of its implementation of the recommendations regarding female genital mutilation, refugees forcibly returned to countries where they may suffer human rights violations and ill-treatment of refugees.
V. Capacity-building and technical assistance
81. CRC recommended that Tanzania take all necessary steps to strengthen international cooperation through multilateral, regional and bilateral arrangements for the prevention, detection, investigation, prosecution and punishment of those responsible for acts involving the sale of children, child prostitution, child pornography and child sex tourism.
Notes
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