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Promoting the Effectiveness of Democracy Protection Institutions in Southern Africa:

Tanzania’s Commission for Human Rights and Good Governance

A Research Report Prepared for the Electoral Institute of Southern Africa (EISA)

by Ernest T. Mallya

Department of Political Science and Public Administration University of Dar es Salaam

Tanzania

June 2009

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TABLE OF CONTENTS

Page

1. Acknowledgements . . . . . . . 3 2. List of Acronyms . . . . . . . 4 3. Executive Summary . . . . . . 5 4. Introduction . . . . . . . . 7 5. Methodology . . . . . . . . 8 6. Contextual Background . . . . . . 9

‐ The Country . . . . . . 9 ‐ Political Leadership . . . . . . 10

7. Constitutional and Legal Framework . . . . 11 ‐ Constitutional Provisions . . . . . 11 ‐ Composition of the CHRAGG . . . . 13 ‐ Powers, Functions and Mandates of the CHRAGG . . 13

8. Institutional Governance and Effectiveness . . . 16 ‐ Performance . . . . . . 16 ‐ Key Problem Areas handled . . . . . 16 ‐ Limitations . . . . . . . 20

9. Interaction with the Government . . . . 21 ‐ The Executive . . . . . . . 21 ‐ The Judiciary . . . . . . . 22 ‐ The Legislature . . . . . . . 23

10. Interaction with other Democracy Protection Institutions . . 24 ‐ The PCCB . . . . . . . . 24 ‐ The Ethics Commission . . . . . . 28 ‐ Electoral Management Boards . . . . . 29 ‐ Political Parties . . . . . . . 30

11. Interaction with the Public and Non-State Actors . . . 30 ‐ Civil Society Organizations . . . . . 30 ‐ The General Public . . . . . . 32

12. Conclusion . . . . . . . . 33 13. Policy Recommendations . . . . . . 35 14. References . . . . . . . . 36 15. Appendices . . . . . . . . 37

‐ Questionnaire . . . . . . . 37 ‐ List of Respondents/Interviewees . . . . 39

16. About the Author . . . . . . . 40

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Acknowledgement

The researcher appreciates the trust bestowed upon him to do this work on the Democracy Protection Institutions with regard to Tanzania’s Commission for Human Rights and Good Governance. He also appreciate the cooperation accorded to him by the Chairman of the Commission Judge Manento and the CHRAGG Executive Secretary Ms Massay for agreeing to have a long telephone interview as they were upcountry inspecting prisons. Appreciation goes to staff at the CHRAGG Office especially Mr Nzuki who is director of human rights at the Commission for availing time as a respondent to an interview with Mr Jingu who was assisting the researcher; and Mr Mudogo who was the linkman when it came to tracking down some respondents. The researcher is also thankful to those others outside the Commission who spared their time to talk to him in the effort to get information including those from CSOs, media and academics.

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List of Acronyms

1. AG Attorney General 2. ASP Afro Shirazi Party 3. CCM Chama Cha Mapinduzi 4. CHRAGG Commission for Human Rights and Good Governance 5. CSO Civil Society Organizations 6. DC District Commissioner 7. DFID Department for International Development 8. DPP Director of Public Prosecutions 9. EMB Electoral Management Board 10. FIU Financial Intelligence Unit 11. GDP Dross Domestic product 12. ICCPR International Covenant on Civil and Political Rights 13. LHRC Legal and Human Rights Centre 14. NACSAP National Anti-Corruption Strategy and Action Plan 15. NEC National Electoral Commission 16. NGO Non-Governmental Organization 17. PCB Prevention of Corruption Bureau 18. PCCB Prevention and Combating of Corruption Bureau 19. RC Regional Commissioner 20. SADC Southern African Development Community 21. TAMWA Tanzania Media Women’s Association 22. TANU Tanganyika African National Union 23. TAWLA Tanzania Women Lawyers Association 24. TGNP Tanzania Gender Networking Programme 25. URT United Republic of Tanzania 26. ZEC Zanzibar Electoral Commission

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Executive Summary The Electoral Institute of Southern Africa (EISA) is a not-for-profit organization which strives to promote credible elections on the continent, based in South Africa. One of its current projects is the one on the Promotion of Effectiveness of Democracy Protection Institutions. Such institutions would include Human Rights Commissions and those institutions charged with overseeing the integrity of the government bureaucracy normally called ombudsman. This research report is about the Tanzanian Commission for Human Rights and Good Governance (CHRAGG) which covers both issues of human rights as well as the integrity of the government bureaucracy in Tanzania. Tanzania is a union between two states – Tanganyika and Zanzibar, a union that took place in 1964. Immediately after Independence opposition parties withered away on the Tanganyika side; and in Zanzibar there was but only one political party after the 1964 Revolution. Tanzania, therefore, remained a de facto single party state after the union up until 1992 when multiparty democracy was reintroduced. The system that operates gives a lot of power to the executive vis-à-vis the other arms of government. In some way the government has been building institutions that would sustain democracy but they are yet to be effective as democracy activists would want them to be. Such institutions is the CHRAGG, and of course the dozen or so of political parties that have been registered.

The methodologies used to collect data include review of literature, interviews, a questionnaire as well as informal consultations. The report is in six parts. First, after this introduction it gives a background to the country in general, especially the political aspects that led to the creation of the Commission. Second, it looks at the constitutional and legal framework under which the Commission is operating, and third, it looks at the institution and how it is governed and whether it has been effective or not. Fourth, it focuses on the institution and those with whom it interacts. These include the government – to include the three arms of state viz. the judiciary, the executive and the parliament. It looks also on other democracy protection institutions – which may be government formed or otherwise such as the Ethics Commission and the Prevention and Combating of Corruption Bureau. Then it looks at the interaction between the Commission and the public at large as well as non-state actors like civil society organizations, of which prominent ones include TAMWA, TAWLA, LHRC and TGNP. Fifth, the report looks at the key research finding in its conclusion, but also adding some policy recommendations as listed below:

o Civic education should be provided to the people so that they can know their (human) rights and duties as citizens.

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o The capacity of the Commission should be strengthened so that it can perform its duties as per its mandate. Funding the Commission adequately, for example, should be a priority otherwise it will become a white elephant having no real benefits to the people of Tanzania.

o The Parliament should be made to discuss the Annual Reports from the Commission so that the reports can make an impact especially when it comes to matters needing follow–up.

o The Commission should be accountable to Parliament rather than the President who appoints it.

o The inclusion of human rights in police/prison training colleges’ curricula as well as provision of human rights training to in-service police officers should be done.

o The Government should make deliberate efforts to equip the Police Force with modern working equipments and tools and improve the working conditions of police officers including the provision of adequate housing and transport as well as increasing their salary to reduce the chances of being corrupt thereby being ineffective human rights protection agency.

o The degree to which a police officers has abided by human rights and democratic principles in performing his or her duties should form part of his or her individual performance appraisal system for purpose of promotion at par with good police tactics.

In concluding the report notes that:

o The nascent democracies on the African continent need to be carefully nurtured in order that real democracy is realized. The nurturing requires that some institutions like those overseeing elections, human rights and good governance be constitutionally recognized so much that no other institutions should interfere with their activities without fitting and justifiable reasons.

o The constitutional and legal mandates for the Commission are clear but the capacity it currently commands makes it look like a white elephant because it has not been as effective as one would have liked. Basically, the Commission lacks resources for implementing its mandate, and therefore the need for the government to raise it in its list of priorities.

o The government has a lot to do also when it comes to perfecting the environment in which democracy is going to thrive. With regard to the legal system, for example, there are certain laws in this country, some of which are quite draconian and need to be repealed or amended.

o The cooperation and networking between and among government and non-governmental actors is also an important input into the successful realization of the goals of such institutions as the CHRAGG. These institutions would need government support.

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Introduction

EISA is a not-for-profit organization established in the mid-1990s and based in Johannesburg, South Africa. The mission of EISA is mainly to promote quality electoral processes in the SADC region. But electoral processes have other related and necessary processes, structures and conditions that should obtain in any one country for elections to be free, fair and democratic. As such, EISA has also been engaged in programmes targeting such structures as political parties, electoral management boards, civil society organizations of all kinds, governance institutions in African countries and so on. As its vision clearly states, EISA wants to see “An African continent where democratic governance, human rights and citizen participation are upheld in a peaceful environment”

As it were, no democratic elections can be carried out in situations where human rights are not observed. This is why EISA also deals with the issues of human rights in the SADC region and beyond, it being one of the necessary conditions for elections to make sense. The organization’s stakeholders and partners include governments, electoral commissions, political parties, civil society organizations and other institutions operating in the democracy and governance fields throughout Africa.

To be able to do what it has set to do, EISA works through programmes and projects which include:

• Democracy, conflict management and electoral education • Elections and political processes • Balloting and Electoral Services • Special projects: Rule of law; Local Government; Political Parties."

EISA strives for excellence in the promotion of credible elections, participatory democracy, human rights culture, and the strengthening of governance institutions for the consolidation of democracy in Africa. The current project and under which this work falls is titled Promoting the Effectiveness of Democracy Protection Institutions in Southern Africa. In this project, one of the key players in protecting democracy – ombudsoffices and human rights commissions or their equivalents – are being studied. In the process they would be identified, studied, compared and solutions proposed for their better efficiency and effectiveness. These institutions are very important in that they are the ones which check such vices as misuse of office, abuse of power by elected and appointed officials, make noise when human rights are trampled upon and even prosecuting culprits where necessary.

In Tanzania the institution which deals with this area of governance is the Commission for Human Rights and Good Governance. Luckily, perhaps both aspects of human

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rights and good governance are overseen by one institution. The Commission is, however, rather young in that it was only operational effective 2002.

This report is basically divided into six sections. First, after this introduction it gives a background to the country in general, especially the political aspects that led to the creation of the Commission, after which it focuses on the methodology used to collect data. Second, it looks at the constitutional and legal framework under which the Commission is operating, and third, it looks at the institution and how it is governed and whether it has been effective or not. Fourth, it focuses on the institution and those with whom it interacts. These include the government – to include the three arms of state; other democracy protection institutions – which may be government formed or otherwise; and the public at large as well as non-state actors like civil society organizations. Fifth, the report looks at the key research finding in its conclusion, but also adding some policy recommendations. Sixth and lastly, there is the usual list of references as well as a few appendices.

Methodology

The researcher used the following data gathering methods:-

• Desk Research A lot has been written about human rights in Tanzania and the world at large. The Commission is only seven years old nut there is also substantial materials about it and the way it has performed and its relation with other institutions. The researcher reviewed literature covering the Commission, the Constitution and the Commission, other institutions and general political-economic profile of Tanzania.

• Interviews with a few key stakeholders. There were direct interviews with the Chairman of the Commission, the Director of Human Rights within the Commission and the Acting Executive Secretary of the Secretariat to the Commission, among others.

• Questionnaires served to the respondents before face-to-face interviews This method gave the respondent some freedom to say what they wanted in a more confidential manner in that they were on their own when doing the exercise. May be this would make some to say what they would not say in a more public interaction like interviews and focus group discussions.

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• Informal consultations To supplement what transpired in the interviews, the researcher did have further discussions after the formal engagement was over with some of the interviewees. This led to some clarification of some issues that came up in the interviews.

Contextual Background

The Country

The United Republic of Tanzania is comprised of the Mainland Tanzania (formerly Tanganyika) and Zanzibar. The Mainland attained its independence from the British under the leadership of the Tanganyika African National Union (TANU) on 9th December, 1961. Exactly a year later, the Westminster constitution was replaced by a republican one. In Zanzibar the Afro-Shirazi Party (ASP) staged a revolution on 12th January, 1964 three months after the British handed power to an Arab-dominated coalition. A Union between Tanganyika and Zanzibar was formed on 26th April 1964. By the operation of law, TANU was the sole political party on the Mainland from 1965 while ASP was the only political party in Zanzibar after the Revolution. On the 5th February, 1977 TANU and A.S.P. merged to form Chama cha Mapinduzi (CCM) and the two governments came under a single political party, the CCM. Constitutionally there have always been two governments: the Union Government and the Revolutionary Government of Zanzibar. The Government of the United Republic has jurisdiction over Union matters throughout the United Republic and over Non-Union Matters on the Mainland. The Revolutionary Government of Zanzibar has jurisdiction over all Non-Union matters in Tanzania Zanzibar. Foreign Affairs is a Union Matter therefore it is Tanzania (United Republic) that deals with the Commonwealth and not Zanzibar as a country.

The population of Tanzania stands at around 34 million as per the 2002 population census. The population includes some 120 ethnic groups and each has its vernacular. But Tanzania has a lingua franca in Kiswahili which most of the 120 ethnic groups can speak About 24% of Tanzanians live in urban areas. It is widely held that 50% of Tanzanians live below a locally defined poverty line while 36% of them live in abject poverty (DFID, 1999: 1; URT, 1999: 7; Assey, 1999: 129). Studies indicate that poverty is likely to persist for the foreseeable future. GDP per capita income is around 700 US$. Population growth is at 2.9 per cent, while the economy has been growing at around 6 per cent in the past four to five years. Of the rural population which account for about

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75% of the total population, around 60% live below the poverty line. Women who comprise 51% of the population constitute 54% of the economically active population. Women – and especially rural women - are known to bear the brunt of poverty.

Political Leadership

The Tanzanian system of political leadership is part presidential and part parliamentary. Some see the Tanzanian form of government as being parliamentary or even having the Westminster format, since the cabinet is chosen from among legislative representatives and the executive forms part of the legislative process. However, the head of government in Tanzania is chosen directly by the people, which is not the case in a strictly Westminster model, making Tanzania’s case have features that do not conform with the known Westminster model whereby upon electoral victory by his or her party, the party leader becomes the chief executive and the leader of government business in the legislature. The chief executive also plays an active role on a day-to-day basis in the legislature. Often someone else will be the Head of State. When Tanganyika gained her political independence that was the model. The Head of State was the Queen for a year as Tanganyika remained a Commonwealth realm until the 1962 constitutional change. A year into Tanganyika’s Independence, the constitution was changed into a Republican one – and therefore the structure we now see on the ground. Tanganyika remained a member of the Commonwealth. There is an executive President as well as a Prime Minister who basically heads government business in parliament, among other duties.

In this presidential system, the leader of the government is given a mandate by a popular vote. S/he is both the Head of Government and the Head of State. In Tanzania, as is the case with France, for example, the President appoints a Prime Minister often from a majority party who, among other things, becomes the leader of government business in the legislature. In such cases as is the one of Tanzania, if the majority party in the legislature is not that of the President, the Prime Minister can then truly share executive power with the president. In both this type and the “pure” presidential kind, such as that of the USA, the chief executive wields a lot of power. These powers have been said to infringe the powers of the other arms of government – the legislature and the judiciary. A lot of the power of the executive president (in a presidential system) comes from the deliberate combination of the functions of Head of Government and Head of State, which in practice means that there is no check or balance of power within the executive in the sense in which the prime minister in a typical parliamentary system is limited by the presence of the Head of State. Moreover, whereas the cabinet is a body of peers formed more or less by the party caucus to assist the prime minister in a parliamentary system, such a body is often the creature of the president alone in a presidential system. The fact that the President is usually popularly elected adds to this power, since he/she will be as legitimate as the

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legislators, perhaps even more legitimate on account of his/her national constituency. Countries such as Tanzania, which choose presidential systems, deliberately wish to give its chief executive a lot of power within the executive branch. This has not been seen as a healthy feature in the attempt to build democracy. And, all these feature impinge upon the upholding of human rights.

Tanzania’s current Ombudsman – the Commission for Human Rights and Good Governance (CHRAGG) – states in its vision that it intends to be “committed to the creation of a just society and culture in which Human Rights and Principles of Good Governance are promoted, protected and preserved. This is a vision with a noble goal in this world where human rights and governance issues have come to the fore than never before. For quite a long time in Tanzania the issue of human rights has been on the agenda, and more so when finally a bill of rights was installed in the constitution in 1984. However, the instruments to make sure that the rights were enforced were not that solid and effective. The then ombudsman – the Permanent Commission of Inquiry (PCI) was formed to, among other things, check the misuse and abuse of power by public and governmental actors. The PCI was established in 1965 and was incorporated into the Interim Constitution as an alternative to the incorporation of a Bill of Rights. It is believed that the PCI was the first ombudsman on the continent (Maloka: 2005 ). In 1984 a Bill of Rights was incorporated in the constitution. However, the enforcement of these rights was hampered by the many oppressive and unconstitutional laws, some of which were identified by the Nyalali Commission. The government had until 2000, been under pressure to form a Human Rights Commission. Also there were demands for the removal of the claw-back clauses contained in the constitution with regard to some of the human rights provided for in the constitution. A committee formed by the government to look into these laws – The Kisanga Committee – ended up disagreeing with the government stand on the need to retain some of the laws, which effectively derogate from some constitutional provisions with regard to human rights. In the 13th Constitutional Amendment to the Tanzania Constitution this issue was rather comprehensively addressed and a CHRAGG was provided for in the Constitution.

Constitutional and Legal Framework The Constitutional Provisions A constitution stipulates the powers given to government. It usually includes a bill of rights listing the rights of individuals and limits on the power of government. The Union Constitution and the Zanzibar Constitution are both written constitutions and

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each contains a bill of human rights and duties.1 Both Constitutions embrace the multi-party system of democracy and the enforcement of human rights as well as the practice of multiparty democracy fall under the so-called “union matters”.2 The Commission for Human Rights and Good Governance (CHRAGG) was established under Article 129(1) of the Constitution of the United Republic of Tanzania of 1977 as amended by Act No. 3 of 2000. The Commission became operational in June 2001 and was officially inaugurated in March 2002 following the appointment of Commissioners by the President of the United Republic. The Commission was initially only operating on the Mainland due constitutional and legal problems but now it has extended its mandate to Zanzibar. It has established an office in Unguja and is in the process of establishing one in Pemba. Article 130(1) (a) – (h) of the United Republic of Tanzania constitution entrusts the Commission for Human Rights and Good Governance the responsibility of protecting and promoting human rights in the country. Article 130 (2) provides that the Commission is an independent department in discharging its functions. Through ARTICLE 129 of the constitution, the Permanent Commission of Inquiry was replaced with the Commission for Human Rights and Good Governance.

Apart from promoting human rights and disseminating human rights education in the country, ARTICLE 130 of the constitution stipulates that the commission may institute investigation in any area of violation of human rights. Those liable for investigation include civil servants in both governments, leaders of political parties, commissioners and workers of government commissions, parastatals, private companies, societies, and cooperatives. The Commission feels that it has not done its educational programmes as it should have done due to under funding. In fact, the Commission feels that even some central governance organs like the cabinet and parliament need to be educated on its rationale, functions, mandates and so on.

The decision to form a Human Rights Commission was partly an answer to a long outcry about the ineffectiveness of that previous commission and the need for a human

1 The Union Constitution contains a catalogue of fundamental rights, including political rights, and duties in articles 12-29. Similarly, the Constitution of Zanzibar incorporates basic human rights and duties under articles 11-15. 2 The First Schedule to the Union Constitution lists twenty two (22) “union matters”, being almost twice as much the number of the initially eleven (11) union matters agreed to by the “Founders of the Union” in 1964. This matter has been a bone of contention and has given rise to a heated debate, particularly on the other side of the Union, thus amounting to one of the “union problems”, which are now being delt with by the newly created Ministry for Union Matters in the Vice President’s Office.

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rights watchdog. Now Tanzania has a human rights watchdog that incorporates the previous functions of the Permanent Commission of Inquiry. But it appears to suffer from some of the shortcomings that befell the previous commission, including the authority of the President to order it to stop any investigation. Others have also argued that the commission should be supervised by parliament, not the presidency. In its favour we can mention the fact that at least it is in existence. In addition, the complaint aired over many years that ordinary individuals cannot pursue their rights in the High Court because of the legal complexities and fees involved, may now be met in part by the commission, which will have petitions brought to it and may prosecute offenders. Previously, these two actions would not have been possible. It should be mentioned also that by its existence that does not mean that violation of human rights has stopped. There are many instances of these rights being violated by state agents like the police, people in power like DCs and RCs, individual citizens like the pastoralists who have been moved from their areas on the pretext that they are a hazard to the environment without settling them in alternate conducive areas for their animals.

Composition of the CHRAGG

The Commissioners and Assistant Commissioners of this commission are appointees of the President after consultation with the Public Service Commission. The composition of the appointment committee comprises the Chief Justice, Speaker of the National Assembly, the Zanzibar Chief Justice, the Speaker of the National Assembly and the Deputy Attorney General. The Chairman of the Commission is appointed from among the persons qualified enough to be appointed a judge. The commissioners whose number is limited to five are appointed from among the people with enough experience and expertise in human rights, law, governance, politics and social issues. The commission is also empowered to send cases to a court of law to either stop acts of violation of human rights or to rectify the anomaly resulting from the violation of human rights. This is seen by many as a way of enhancing the effectiveness of the commission. The provision will not, however, help to curb denial of human rights related to court proceedings. The appointment of Commissioners takes into consideration the gender aspect. The current Commission has six commissioners three of whom are women, including the vice chairperson. The provision is to have seven commissioners though and the seventh position is yet to be filled (as of May 2009).

Powers, functions and mandate of CHRAGG

The CHRAGG Act provides the commission with the following powers (URT, 2001 : 241)

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• To issue summons or other orders requiring the attendance of any person before it and the production of any document. record or anything relevant to an investigation or inquiry which may be in possession or control of that person;

• To examine. on oath or affirmation, any person in respect of any matter under investigation;

• To require any person to provide any information within his or her knowledge relevant to an investigation or enquiry;

• To make interim orders to preserve, pending determination of the matters at issue., the existing state of affairs between the parties to the proceedings or the rights of the parties;

• Subject to any other law, to enter upon, and inspect, any premises relevant to an investigation and to seize any relevant document, record or anything; and

• To cause any person, contemptuous of its proceedings or orders, to be prosecuted before a competent court.

According to Maloka (op.cit.: 131) and whom we have quoted in extenso in this sub section, the Constitution and the laws of Tanzania, CHRAGG is required to promote, protect and preserve the human rights of Tanzanians, improve the accountability of the government’s administrative machinery, and make government more transparent. It receives complaints of human rights violations and contraventions of the principles of administrative justice (such as abuse of power), and subsequently conducts enquiries or investigations. CHRAGG concludes each investigation with the formulation of recommendations (which are not legally binding). Following the publication of the recommendations, the violating group or individual must submit a report within three months, detailing those actions that have been taken to redress the human rights violations or principles of good governance. If no significant action has been taken in this regard, then the commission may either bring the case to a court of law or recommend that a competent authority take the necessary action to enforce compliance with the recommendations. To date, CHRAGG has not instituted such legal proceedings, because no situation requiring such measures has arisen. In short, the commission's role is to protect people against human rights violations and abuse of power.

CHRAGG also conducts research into human rights abuses, as well as problems relating to administrative justice and good governance, and seeks to educate the public about such issues. For instance, CHRAGG recently started undertaking research on child abuse in Tanzania. Once the research process has been completed a public inquiry will

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be conducted which will be followed by a national workshop with all relevant stakeholders. This workshop aims to produce concrete recommendations on measures to be taken to address child abuse. CHRAGG also produces annual and thematic reports as part of its advocacy and human rights awareness work.

CHRAGG's mandate further requires it to visit prisons and places of detention in order to assess and inspect the conditions in these facilities and the manner in which prisoners and detainees are being treated. It is also required to make recommendations to address identified problems. In 2002 and 2003 CHRAGG inspected several regional and district prisons on mainland Tanzania and found severe overcrowding, inadequate bedding, poor ablution facilities, and inadequate clothing provided to prisoners. It also found that child prisoners were being held in the same sections as adults. CHRAGG compiled a report which included a series of recommendations to improve prison conditions. The Tanzanian government subsequently implemented some recommendations, including provision of mattresses, installing toilets in cells and improving prison uniforms and diet.

The commission is also mandated to promote Tanzania's accession to and ratification of international human rights treaties and conventions to which it is a party but due to the fact that the commission has only recently been established and has limited capacity very little progress has been made towards fulfilling this function. Nevertheless for treaties already ratified CHRAGG has assisted the government in fulfilling its reporting obligations. In addition, in terms of Section 40 of the CHRAGG Act, the commission is required to deal with cases that had been carried over from the erstwhile PCI. Consequently, guided by its mandate, CHRAGG has had to prioritize those activities that would immediately have a significant impact on society in terms of policy and legislative reform and development.

CHRAGG like many other national human rights institutions is mandated to advise the government public organs and private sector institutions on specific issues relating to human rights and administrative justice. In this way the commission contributes to policy formulation by ensuring that the policies of government and private institutions comply with international human rights standards. CHRAGG has also suggested priority areas for legal reform so that they comply with the Tanzanian Constitution and incorporate international best practices CHRAGG has entered into partnerships with international regional and other national institutions that are competent in the areas of

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protection of human rights and administrative justice. Regionally CHRAGG has become a member of the African Ombudsman Association, the African Secretariat of African National Human Rights Institutions and it has accreditation with the African Commission of Human and Peoples' Rights CHRAGG is also a member of 'the International Ombudsman Institution.

Institutional Governance and Effectiveness Performance Since its establishment in 2001, CHRAGG’s record of performance is mixed. It has some success stories and distressing ones. As of July 31st 2008, CHRAGG had received and dealt with 22,812 complaints relating to human rights and maladministration. Out of these, 2,237 (10%) were inherited from the defunct Permanent Commission of Inquiry. Out of the total number of the complaints received 22,322 complaints (98%) relate to abuse of principles of good governance and 490 complaints (2%) relate violation of human rights. A total of 14,954 complaints (70%) have been dealt with to completion by the Commission since its establishment. About 7,755 complaints are still under investigation.

According to the Commission’s report, by May 2008 about 64% of the received cases had been investigated to completion. The findings from investigations indicated that 20.7% of the complaints investigated were justified and the Commission’s recommendations were honoured. On the other hand, 13.3% of the investigated complaints were found unjustified and 45% were referred to appropriate authorities and out of these 20.9% were rejected. That is to say, government authorities are not yet clearly receptive of the Commissions’ recommendations. The rate of rejection is relatively on the high side suggesting an apparent lack of goodwill. The Dar es Salaam region is the one from which many complaints come from, it alone accounting for 29% of complaints. Tanzania has 26 regions, including the 5 in Zanzibar. Key Problem Areas Handled by the CHRAGG

The commission has been handling a variety of cases from different stakeholders on issues relating to its dual mandate of human rights and good governance. Complaints submitted to the commission generally relate to the following:

• Land use and ownership: With Tanzania's shift in economic policies from socialist to more liberal policies, land has significantly increased in value. Land

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ownership has become a key measure of wealth and security. Consequently, CHRAGG has dealt with complaints concerning, for example, unlawful evictions, conflicts between pastoralists and farmers over land ownership and so on.

• Police and Prison Officers Abuses: CHRAGG receives complaints of police brutality or refusal by the police to make arrests in certain matters. Human rights abuses by prison officers and police brutality have also come up for the attention of the Commission. In recent years there have been several complaints by citizens in the media concerning police brutality. It seems as if some police officers are now engaging in “unjustified shootings”, severe beatings, and unnecessarily rough physical treatment across the country. Arusha, Dar es Salaam, Mbeya and Mwanza are leading in the number of reported police brutality events. A victim seeking redress faces obstacles at every point in the process, ranging from overt intimidation to the reluctance of prosecutors (themselves police officers) to take on police brutality cases. The recently appointed Presidential Commission of Inquiry to inquire into the alleged shooting and killing by some police officers of about four mineral dealers mistaken for suspected armed robbers who had earlier on robbed a jewelers shop in Dar es Salaam,3 could be step forward in addressing the problem.

• Investor-Citizens conflicts: There have been conflicts between local communities and investor companies especially where there are minerals. These conflicts emanate from lack of or no compensation when locals are evicted from their land, environmental degradation, intimidation and non-consideration for employment.

• Natural resources: Access to natural resources like water, forests, the sea and so on has been a cause for complaints to the Commission.

• Gender related issues: Tanzania is a patriarchal society and gender discrimination still takes place. As a result, women are disadvantaged when it comes to participating fully in civic life even though laws exist that promote gender equality. In some parts of the country, especially rural areas, spousal abuse is a common practice. CHRAGG plans to intervene, educate the public about such issues, and provide redress for those who have been harmed by such practices.

• Youth and unemployment: Tanzanian youth are particularly affected by the lack of employment openings. This state of affairs has resulted in drug abuse amongst young people, among other desperate measures to ward off the effects of being unemployed. CHRAGG also deals with cases pertaining to statutory rape and the defilement of young girls and boys.

• People with disabilities: While the rights of disabled people are enshrined in the Tanzanian Constitution, no remedy or redress is provided for disabled people whose rights have not been respected. The Commission has a desk for children

3 DAILY NEWS, “JK Orders Dar Killings Probe”, ISSN 0856-3812, No. 8946, Monday, January 23, 2006.

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and people with disabilities, and has entered into a memorandum of agreement with UNICEF to address the issue. Through this partnership, CHRAGG seeks to persuade; the government to provide protection for the human rights of people with disabilities. It will be remembered that Tanzania tarnished its name in recent months because of the killings of albinos. All human rights institutions have been working hard to stop these killings.

• Labour: As mentioned earlier, labour disputes account for sixty percent of CHRAGG's workload, which can be partly attributed to the shift in economic policies resulting in changing working conditions and/or job losses. CHRAGG also inherited a number of cases from the PCI, which are mostly labour-related. It is unknown whether CHRAGG will hand over these cases to the proposed Commission for Mediation and-Arbitration once it has been established.

• Corruption: Some complaints relate to judicial officers demanding bribes from citizens to investigate their cases. This has contributed to a loss of faith in the legal system, and has led to incidents of mob and/or vigilante justice. Corruption is also reported in other sectors of the political system. A catalogue of public offices where corruption was and still is rampant can be found in the Warioba Report of 1996.

There are two landmark cases where appropriate authorities did not take action as CHRAGG recommendations. The first one is the Nyamuma case. In 2001 the Commission received the first case brought by Nyamuma village in Serengeti District against the District Commissioner for Serengeti District, Office Commanding District and the Attorney General. The case was brought by the village on behalf of 135 villagers who were evicted from their residential areas by the district authorities. The Commission investigated into the matter and ultimately found the district authorities responsible for the violation of human rights. The Commission was satisfied that the complainants were lawful residents of the disputed area. In line with the findings, the Commission issued a number of recommendations. These included: relocation of the complainants in their areas, the complainants had a basic right to be compensated for their properties amounting to Tshs 890 million, the complainants are entitled to urgent humanitarian assistance in order to bring them back to their normal way of life and finally that the Government should take action to some of its officers. The Commission also ordered that the district authorities to stop all incidences of violation of human rights such as persecution, degradation, discrimination, torture and intimidation. The Commission’s recommendations are required, by law, to be implemented within three (3) months after they are issued. In case the appropriate authority fails to implement such recommendations the Commission may initiate legal proceedings before the court of law for enforcing its recommendations. In this case the Commission’s recommendations were issued on 13th December, 2004. At the expiry of the three months the Government had done nothing to implement these recommendations. However on 18th May, 2005 the then Attorney General, informed the

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Chairman of the Commission that the Government had investigated the issue and discovered that most of the recommendations made by the Commission were based on fabricated evidence. In essence, the Government was denying the existence of any violation of human rights. The AG’s argument was very interesting. This is because the mandate to determine the violation of human rights is vested in the Commission and not otherwise. Let alone this fact, full hearing of the evidence from the complainants and the district authorities was conducted in public where the Government was well represented. There is also nowhere in the proceedings the Government managed to shake or dispute the complainants’ evidence. One could raise a legitimate query as what the basis of the AG’s argument was. In another landmark case, CHRAGG initiated investigation after the death of 17 convicted and remanded prisoners in Mbarali. After the investigations, CHRAGG issued a report with recommendations for an out-of-court cash settlement to relatives of the diseased and the survivals of the suffocation due to lack of air. The appropriate authorities however were reluctant to take action and insisted that it would be prudent to wait for court decision regarding the case of manslaughter filed against the policemen who were on duty on the night when the deaths happened. In 2008, the Court convicted some of the policemen on manslaughter and CHRAGG has revived the case by seeking administrative justice. Apart from political constraints notably of working in a restrictive political environment where the government authorities are not quite receptive of Commissions recommendations, the Commission is also constrained in budgetary allocations and manpower. Funding has been below needs to a great extent. The allocation availed to the commission is enough to cater for salaries, rent and key utility costs like electricity, telephones and water. There is no money for public education – which is a serious omission for the Commission. At the moment it has 7 Commissioners (six on the ground one to be nominated) and 192 members of professional staff out of 252 required by the Commission. The Head of the Secretariat noted that there is need for capacity building in terms of training to the available staff On the whole, the Commission has been improving its performance as well as its image in the eyes of the public. In addition to a number of complaints received and handled, among the success stories the Commission include conducting prisons and police stations’ inspection. By May 2008, it has inspected 173 prisons and 282 police stations in the country. It has made many recommendations for the improvement of living standards and human dignity of prisoners and detainees. Among the recommendations which have been implemented by the authorities include increasing meal budget, easing facilities outside the cells, reducing overcrowding of inmates, and using spongy

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mattresses instead of simple mates (virago), transport facilities using buses instead of unventilated trucks. Furthermore, the Commission has been carrying out limited programmes for people’s awareness on human rights and good governance, conducting research and issuing reports with recommendations, monitoring compliance to international and regional conventions on human rights and has been closely collaborating with CSOs in monitoring human rights and principles of good governance. Limitations The Commission’s powers and independence are limited in a number of ways. First, Article 130 (3) provides that, the president can order the Commission to do anything he/she wishes. Similarly, Article 6 prohibits the Commission to investigate the president. Second, the commission does not have its own budget that is separately passed by parliament. Article 131 (3) provides that the Commission secures its budget through a minister responsible for human rights and good governance. The Chairman of the Commission noted, however, that the executive is very cooperative when he raises issues of inadequate budget and for consecutive years the budget ceiling for the Commission has been raised, although not to the extent the Chair would have liked. Third, the commission’s decisions are not binding. It can only take human rights’ violation cases to the court of law. Although the Commission is supposed to a statutory independent body, it is highly constrained by the political environment within which it operates as the former Chairman of the Commission, Justice Robert Kisanga aptly noted in 2005 that “the lack of institutional cooperation and good faith by the Government impeded investigations as public servants either delayed in answering the Commission’s letters of inquiry or outright refused to do so” (AI: 2006). The Commission’s decisions are not binding. Aside from giving its advisory opinion, it can only take human rights-related cases to the court of law. The current Chair of the Commission is of the opinion though, that the strength of the Commission vis-à-vis politicians is within the chairperson. If the chair is strong politicians would not poke their noses into matters of the Commission. And he insists that since he is a retired judge he knows what it is meant to be independent as provided for in the Constitution.

However, with regard to the first point about the President, not all directives of the President can be defended since our President is an executive one. He is head of state and government, and chief of the armed forces. His directives can affect the impartiality or independence of the commission since some of the complaints might be leveled against his government or some organs, which s/he may not feel comfortable to be investigated by the human rights commission! Also the fact that the commissioners are be appointed by the President makes the whole commission accountable to the

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executive instead of the people. The Commission should have been made accountable to the Parliament.

Interaction with the Government

The Executive

It is a fact that the CHRAGG interacts much more with the government - meaning the executive - than the two other branches. This is because, firstly, it is known that the government is the one with the coercive instruments and which are known to be the prime culprits when it comes to the abuse of human rights. The police force is the one that enforces law and order and in this area a lot of controversies, claims and counter-claims emerge day in day out. But secondly, the aspect of good governance is also to a larger extent related to the government bureaucracy which is the one that interacts with the electorate on a daily basis, and where resources are allocated. It is mostly resource allocation which leads to many of the complaints against the bureaucracy in many governments.

With regard to the first, the police force and the prison services are normally the ones picked as key actors on the part of the government when it comes to human rights abuses. In fact, the police force is structurally lined to be in that position because it is the one that is unleashed against the population when the government feels that there is threat to peace; the way the police force executes its task is where complaints arise from. Things like excessive use of force, use of live bullets, police “frame-ups”,4 heavy handedness and even police killings are usual complaints that will emanate from any police operation. The main issue here is the extent to which the police respect human rights and abide by rule of law in its operations. This might involve a broad and protracted public debate, particularly given the colonial origins of the Police Force, and the need for reforming it so as to ensure that its work is more service oriented than merely being that of enforcing law and order. The powers of the Tanzania Police Force, a union state organ,5 are enshrined in various statutes, including the Police Force Ordinance, and various other national laws. In the political field, the Police Force also has a major role to play under the Political Parties Act (1992). These powers to large extent have an impact on the constitutionally guaranteed right of association, freedom of speech and the management of political parties. The powers given the police under state laws are so immense and could, if not properly checked, open doors for abuse.

4 See the 2001/2002 and 2002/2003 Annual Reports of the Commission for Human Rights and Good Governance – Complaints of prisoners about police “frame-ups” (kubambikizia kesi) are fairly common 5 Item 4 in the list of “union matters” in the First Schedule to the Union Constitution.

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Most effective constitutions include provisions to prevent state organs from abusing their power.6

Good Governance Office within the President’s Office There is also the Good Governance Office within the President’s Office. This Corruption Strategy and Action Plan; to monitor the public leaders’ ethics and abuse of power; to coordinate state organs involved in the fight against corruption; to strengthen the legal regime for fighting corruption and to link government and civil society efforts against corruption. The Good Governance Office is headed by the Minister of Good Governance in the President’s Office. The minister is a political appointee of the President. This ministry was purposefully put under the president’s Office to give it more power vis-à-vis other offices on the land. So far though, this office has delivered little. Corruption in the public service, independent departments and agencies has not gone down, and complaints about the public service come up everyday.

Other Government Ministries

There are Ministries that by their areas of operation have a role to play in the areas mentioned as being possible incubators for human rights abuses, with the relevant stakeholders are put in the brackets.

o Ministry of Community Development, Gender and Children, (rights of women, children);

o Ministry of Education and Vocational Training; (rights of children, young people to education);

o Labour, Employment and Youth Development(youth and employment) o Ministry of Health and Social Welfare (rights to health); o Ministry of Home Affairs (police, prisons, and security in general).

The Judiciary Article 107A (1) of the URT constitution 1977 states that the judiciary is the organ with the final say on the administration of justice. Moreover, Article 13(3) of the constitution still upholds that, human rights will be protected and adjudicated by the judiciary and other organs of the state established by law for that purpose. Minimum Human Rights Guarantees

6 Our Constitution does not do so. The President however, has authority under the Commission of Inquiry Act to establish a Presidential Commission to enquire into any allegations of misuse or cause of power by any state organ including the police.

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Both the Union7 and Zanzibar Constitution8 provides for minimum constitutional guarantees for the protection of the human rights of any person coming into contact with the criminal justice system. These are:

(a) Entitlement to a fair hearing and right of appeal or other remedy (b) Not to be punished for any act which at the time of its commission was not an

offence under the law. (c) Not to be given a penalty in force at the time the offence was committed. (d) Respect to human dignity during criminal investigations and process and

when restrained or in executing a sentence. (e) Not to be subjected to torture or inhumane or degrading punishment or

treatment.9 However, the judiciary is limited in a number of ways. First, the judiciary is more reactive in most cases than proactive. This is due to the fact that aggrieved parties must call upon the attention of the judiciary for its reaction. The second limitation is that, any human right case should be instituted to the High Court before three judges. However there are still few judges in Tanzania. Currently, there are only about 55 judges of the High Court. These judges are distributed in the zones. This implies that it is quite difficult for ordinary citizens especially from rural areas to afford expenses involved in reaching zonal courts. Besides, the judges for the specialized tribunals such as High Court Land Division, Commercial Division, and Labour Division are only located in Dar es Salaam and go around the High Court zones depending on the availability of funds. This largely slows down the pace to handle land, commercial and labour related disputes. This makes cases to take too long to be completed. This problem is worsened by insufficient funding allocated to the judiciary. The third limitation is related to costs. Hiring an advocate for an ordinary citizen is too expensive. Thus, on the whole, in spite some improvement in accessing justice over the last few years as a result of institutional reforms access to justice in is rather limited. But, there are nowadays CSOs that offer legal aid and other legal support to people who cannot access the legal system easily for one reason or another. These include the Tanzania Women Lawyers Association (TAWLA) Legal and Human Rights Centre (LHRC), Tanzania gender Networking Programme (TGNP) and Tanzania Media Women Association (TAMWA).

The Legislature The relationship between the legislature and the CHRAGG is first and foremost in approving the funding for the commission. The relevant ministry would present the

7 Article 13(6)(1), (b), (c), (d) and (e). 8 Article 12(6) (a), (b), (c) and (d). 9 Curiously, the Zanzibar Constitution does not provide safeguard against torture, inhumane and degrading treatment! Tanzania has yet to ratify the United Nations Convention Against Torture.

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proposals to parliament for approval before the Commission can get warrant of funds from government. The second key area of interaction is that the Commission presents its reports to parliament for review and discussion. However, data from the interviews showed that the parliament normally does not discuss the reports from the Commission. This has been disheartening in that was the parliament allocating time for the reports discussion some issues would have been taken more seriously, funding could have been increased after the Members of Parliament would have seen the work, challenges and potential of the Commission, and so on. The reports are left for individual members to read. The third area would be when there is need to change the law establishing the Commission. It would be the parliament that would do it. With regard to accountability on the part of the Commission, activists and other human rights stakeholders have been of the opinion that the commission should be accountable to the parliament and not the appointing authority – which is now the Presidency. The thinking is that by being accountable to parliament the Commission would be freer in its activities and would be more independent. Also, many see the Commission as ‘policing’ the executive whose chief is the appointing authority and therefore the likelihood that the Commission may not be impartial despite the constitutional guarantees about its independence. Interaction with other Democracy Protection Institutions

The Prevention and Combating of Corruption Bureau

Legal and institutional measures to combat corruption in Tanzania can be traced back to the colonial era. In 1958, for example, the colonial government enacted the Prevention of Corruption Ordinance (Cap 400) of 1958 as a tool to fight corruption in the country. At that time corruption was more prevalent among lower and middle grade officers particularly those responsible with public services delivery. That legislation remained even after independence in 1961. In 1971 the government enacted the Prevention of Corruption Act No.16 . The law was adopted partly in response to changes in the socio-economic and political environment following the adoption of the Ujamaa policy in 1967.

In addition, the need to have a specialized enforcement institution to implement the requirements of the Prevention of Corruption Act of 1971 made the government amend the 1971 Prevention of Corruption Act in 1974 to provide for the establishment of Anti-

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Corruption Squad. The Squad was established in 1975 under the Prime Minister’s Office. Later, it was relocated to the President’s Office. This was the first specialized anti-corruption body in the country. The squad was charged with investigation and prosecution of offences under the Prevention of Corruption Act of 1971 and other offences involving corrupt transactions. The Squad was also required to take necessary measures for the prevention of corruption in all sectors in the country and to advise the government and parastatal organizations on ways and means to prevent corruption. However, the Squad’s authority to investigate corruption cases was subordinated to the authority of the Director of Public Prosecution (DPP).

Twenty years after the enactment of the Prevention of Corruption Act of 1971, an amendment was made to the law in 1991 to establish the Prevention of Corruption Bureau (PCB), which replaced the Anti Corruption Squad. PCB was given the mandate to perform several functions including investigating corruption offences, conducting research on corruption matters, raise public awareness on corruption, prosecuting and giving advice to any entity in the fight against corruption in the country. The Bureau was located in the President’s Office and it was headed by the Director General who was an appointee of the president. There was no procedure stipulated under the law for the appointment of the head of PCB.

Changes in the domestic, regional and international context regarding the war against corruption necessitated the repeal of the Prevention of Corruption Act No.16 of 1971 in 2007. With time, the weaknesses of the 1971 Act were realized. Some of the weaknesses include: some of the corruption offences were not captured by the 1971 Act. Moreover, the law focused more on the public sector and little attention was given to the private sector. Provisions for involvement of citizens in the war against corruption including protection of informers and whistle blowers and systematic provision of civic awareness were missing. Moreover, the DPP had enormous powers over the Bureau’s prosecution process which made it functionally look like a department under that Directorate. Besides, the National Anti-Corruption Strategy and Action Plan 1999-2005 had come to an end and NACSAP II 2006-2010 was adopted in 2006 which partly contributed to the need for a new legal instrument.

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At the regional and international levels, a number of anti corruption instruments were adopted to which Tanzania was a signatory. These instruments include: the Southern Development Community (SADC) Protocol Against Corruption, 2001; African Union on Prevention and Combating Corruption, 2003 and United nations Convention Against Corruption, 2003. Moreover, technological changes in science and communication have not only made corruption cases more complex but also created conducive condition for the development of national, regional and global networks of corruption. All these called for a significant improvement in the anti corruption legal framework and institutions to make them more efficient and effective in the war against corruption in the country. The 1971 Prevention of Corruption Act was outdated and inadequate to accommodate all these changes.

In 2007, the 1971 Act was repealed and replaced by the Prevention and Combating of Corruption Act, 2007. The 2007 Act gave prevention and combating of corruption equal weight, the move that necessitated a change of the anti corruption bureau’s name from the Prevention of Corruption Bureau (PCB) to the Prevention and Combating of Corruption Bureau (PCCB). PCCB, however, remains a government department in the President’s office.

The new legislation has given the Bureau more legal force in preventing and combating corruption in the country. The new law has increased the power and mandate of the Bureau in fighting corruption. It has also widened the scope of corruption offences and thus providing room for prosecuting more corruption offences and related offences before the court of law than the repealed Act. The repealed Act had only three corruption offences and no any corruption related offences. The new law has fifteen offences including: corrupt transactions in general; corrupt transactions in contracts; in procurement; in auctions; in employment; bribery of foreign public official; use of documents intended to mislead principal; obtaining advantage without lawful consideration or for an inadequate lawful consideration; advantage received on behalf of accused; sexual or any other favours; possession of unexplained property; embezzlement and misappropriation; transfer of proceeds of corruption and false pretence to be an officer.

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Furthermore, the new law gives powers to the Bureau to require any public official to give an account of all properties in his possession as well as in the possession of his agent and how such an official acquired such property. If the public official fails to comply with the requirement of a notice addressed to him to declare his property alleged to have acquired corruptly, the officer will be committing an offence and shall be liable on conviction by the court of law of fine not exceeding five million Tanzanian shillings or imprisonment for a term not exceeding three years or both. Moreover, the new law provides room for cooperation with other international anti-corruption agencies. In terms of resource capacity; the PCCB has investigators with advanced training in different professions, such as law, sociology, accountancy, education, political science and engineering. The PCCB also have offices in all regions and districts in Tanzania Mainland. The PCCB, with its own prosecutors, can investigate and bring to court corruption cases.

Section 57 of the Act, for example, compels PCCB to seek the consent of the Director of Public Prosecution (DPP) in prosecuting grand corruption cases. It is only on petty corruption offences that the Bureau can institute prosecutions to offenders at its own volition. Grand corruption offences are committed by powerful people in the government who may also be connected to the president. The president is also the appointing authority of the DPP. However, the Director of Public Prosecution retains the powers of ending any criminal case against any person. These weaknesses may limit the powers of PCCB in fighting corruption. PCCB ought to have powers to investigate and prosecute all corruption cases without seeking consent from anyone.

Furthermore, section 37 (1) of the Prevention and Combating of Corruption Act, prevents the media, civil society organizations or individual persons from reporting alleged offences under investigation by PCCB. Yet it does not describe procedures that are to be followed to make officials of the PCCB responsible when they announce or publish cases or names of people under investigations. This provision may be used to conceal people alleged to be involved in corruption. It also risks eliminating the public in the war against corruption and thus ought to be struck off as it befits only judicial organs where rights are determined. These weaknesses of the new law raise the propensity of the Bureau to be used as a political tool at the expense of its entrusted mandate.

The government has also enacted Anti-Money Laundering Legislation as one of its actions to curb corruption. Anti-money laundering Act of 2006 requires banks and

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financial institutions in the country to maintain proper records of information regarding their customers in order to enable state apparatuses to track the occurrence of dirty transactions. The legislation establishes the Financial Intelligence Unit (FIU) to track suspicious movements of money that involves a predicate offence in the banks and other financial institutions. Currently, commercial banks operating in the country require additional detail information in additional to basic banking information from new clients seeking to open new accounts. Required additional information includes signature specimens, thumb prints, voter registration cards, passports, and tax identification numbers. The regulation requires banks to seek advice from the embassy or consular officer in the country of origin for foreigners seeking banking services in the country. The legislation came into force in 2007

The FIU is responsible for receiving, analyzing and disseminating suspicious transaction reports and other information regarding potential money laundering received from sources within and outside the United Republic of Tanzania. The general administration of the FIU is under the Commissioner of FIU. The Commissioner of FIU is appointed by the President amongst the people with adequate knowledge and experience in economics, monetary affairs, finance, law, financial crimes, and other field that is beneficial to the execution of mandates of the unit.

The Ethics Commission

An Ethics Secretariat was also created to monitor corruption among the leadership fraternity. Specifically, its mandate is to curb the misuse of public office by top public officials. The body came into being in 1995 vide the Public Leadership Code of Ethics Act No.13 of 1995. The Ethics Secretariat was established in accordance with Section 132 of the Constitution. It is primarily designed to deal with breaches of ethics by public officials, which may or may not be corruption related. All high-ranking elected and non-elected officials are required to make a declaration of their assets and liabilities. Section 9(1) of the Act holds that every public leader shall within thirty days after taking office, at the end of each year and at the end of his term of office declare in a prescribed form, all assets owed by, or liabilities owed to him, his spouse or unmarried minor children. Section 12 of the Act bars a public leader from acquiring dishonestly any pecuniary advantage or assisting any other person to acquire any pecuniary advantage. A public leader is also obliged to disclose any pecuniary interest to forum vide section 13 of the Act. Further, section 14 of the Act requires a public leader to

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declare his interest in a contract that is made, or is proposed to be made. The interest of the public leader in this case includes the interest of the spouse or spouses or of the children of a public leader in relation to the government contract.

All declarations required from public leaders are submitted to the Commissioner of Ethics Secretariat. Failure to make declaration or making false declaration constitutes a breach of the code. Any breach to the code shall result in warning and caution or demotion, suspension, dismissal, resignation, imposition of other penalties provided for under the rules of discipline related to the office of the leader; and initiating action for the leader to be dealt with under the appropriate law. However, there are no hard data which show that there is any public leader who has ever been held accountable for breaching the public leadership code of ethics since the establishment of the secretariat. While this is the case, there is a growing public outcry on increasing breaching of the code amongst the leadership fraternity.

The head and chief executive of the Ethics Secretariat is the Ethics Commissioner. The commissioner is appointed by the president amongst persons of a high proved or provable integrity, who are holding or have held or are eligible for appointment to hold the office of permanent secretary, the office of a judge of the high court, or any other high public office. The commissioner holds office for a term of five years and is eligible for reappointment for another one term. The president may remove the commissioner from office for good cause.

The Electoral Management Bodies: NEC and ZEC In recent years we have witnessed what Electoral Management Boards (EMB) can cause to the nation when they not managed by people of integrity. The cases of Kenya and Zimbabwe are the ones in point. What we have learned from the two cases is that the Elections Law and the EMB have a very crucial role to play if human rights and good governance are to be realized in any country. In Tanzania the EMB in the name of National Electoral Commission (NEC) for the Elections in Tanzania has the following roles, and these are governed by the Elections Act of 1985. Duties of the Commission

(a) To supervise and coordinate the registration of voters in Presidential and Parliamentary elections in the United Republic.

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(b) To supervise and coordinate the conduct of the Presidential and Parliamentary elections.

(c) To demarcate the United Republic into constituencies for Parliamentary elections. Article 75(3) and (4) of the United Republic of Tanzania empowers the NEC to review the delimitation of constituencies at least once every ten years.

(d) To supervise and co-ordinate the registration of voters and the conduct of the elections of local councillors in the Tanzania Mainland. (URT, 1977 Constitution: S 74).

(e) To provide voter education (URT, Elections Act 1985, S. 4C). Zanzibar has its own EMB called Zanzibar Electoral Commission (ZEC) and has similar responsibilities as those of the NEC when it comes to elections in Zanzibar. Political Parties Firstly, political parties promote stability which is necessary for human rights and good governance to prosper. Through their activities such as those related to aggregation and articulation of demands, parties end up uniting sections of the population, commanding some respect from the people. Secondly, political parties articulate philosophies and develop policies including policies that target the upholding of human rights and good governance practices. Thirdly, political parties criticize the government in power when human rights are abused, and they also caution the government when there is likelihood that human rights are about to be abused. Similarly, political parties take the government to task when good governance is not adhered to. Briefly, one can say that political parties – especially those in opposition make ‘positive’ noise which makes the government effect some actions that would not have come about were the parties not there. Interaction with the Public and Non-State Actors

Civil Society Organizations

There is a host of Civil Society Organizations (CSOs) which are also doing a lot in the some of the areas mandated to the CHRAGG. A majority of these are the ones formed by lawyers. CSOs that have been involved in human rights activism, advocacy and legal aid and, necessarily, civic education include Tanzania Women Lawyers Association (TAWLA), Tanzania Media Women’s Association (TAMWA), Tanzania Gender Networking Programme (TGNP), and the Legal and Human Rights Centre (LHRC). These are operating at the national level. There are others which are either

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regional or they operate at a lower level of the administrative levels. We discuss their areas of focus briefly and indicate how they relate to the CHRAGG activities of human rights and good governance. What is important to note here is that these CSOs do network and work together. Human rights appear in the activities of all these organizations.

The Commission has good working relationship with CSOs. It has signed memoranda of understanding with twelve NGOs working on Human Rights including the Tanganyika Law Society, in which they intend to work together in some areas in which each is competent. But by the time of this research, actual work had not begun as some would need facilitation by the Commission but the latter is financially constrained and the Commission has not managed to support it financially.

TAMWA

Since its inception in 1990 TAMWA has consciously and tirelessly worked to uplift the status of women in society by informing and highlighting the issues and problems which act as barriers to emancipation as full and equal members of the society. This has been done through research work, meetings and seminars, news reports and features, radio and television programmes, and outreach campaigns. TAMWA disseminates information and education via several media including radio, where they have a programme called KIOO, i.e. mirror, which is a weekly programme on women and gender issues, currently with Radio Tanzania Dar es Salaam; when there is an issue which needs lobbying, programmes are arranged with local TV stations. They also have videos for educating viewers on human rights and other issues, and newspapers to cover issues on gender and other features like family planning. Finally there is a publication in the form of a quarterly magazine named Mama Sitti. Occasionally TAMWA also publishes leaflets and fliers in order to educate the people or deliver some important messages.

TAWLA

TAWLA was established on October 2, 1992 because women lawyers saw the need to have a united front, as well as a need to offer legal literacy and providing legal aid to women and children. The main objective of TAWLA is to ensure that human rights, women's rights and children's rights are respected in Tanzania. TAWLA also aims to educate women about their rights and about the law, since women are the caretakers and educators in the family, and to do research on specific areas of women's human rights. TAWLA conducts workshops and seminars; does para-legal training; and operates a legal aid programme for women and children. It also offers other services like aid to victims, legal, education, counselling, and adult and popular education

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TGNP

The Tanzania Gender Networking Programme (TGNP) established in 1993, is “committed to contributing to the social transformation leading to the creation of a vibrant Tanzania society. It seeks to promote gender equality and social equity through the empowerment of women and other marginalized sectors of the community”. The organization strives to enhance the mainstreaming of gender at all levels of society from grassroots communities to the highest levels of national policy- making and legislation. The TGNP’s vision is existence of “A transformed Tanzanian society in which there are gender equality and equity; equal opportunities; access to and control over resources for all citizens”

LHRC

The LHRC is registered in Tanzania as a non-governmental, non-partisan and non-profit making organization. It has been an autonomous entity since its registration in September 1995. The Centre was established from the realization of the extent to which the majority of the people were unaware of their rights and for the indigent who had no means to pursue their rights in court for want of legal representation. It is both a legal and a human rights organization. It was created so as to contribute to the process of democratization in Tanzania and strives to promote, reinforce and safeguard human rights. The primary task of the Centre is to create legal and human rights empowerment amongst the socially, economically, culturally and spiritually disadvantaged and marginalized groups within the Tanzania society through legal and human rights training, provision of legal aid, information generation and dissemination through publications and radio programmes, research on legal and human rights issues and networking and alliance building with other institutions which share this mission. The Centre has a TV programme called “pambanua” in which experts are invited to discuss issues of national interest for the benefit of the public in general. Such issues would include legislation which is likely going to have a negative effect on sections of society, and therefore, the need to lobby the relevant bodies so that some sections can be changed.

The General Public

The Commission was intended to be an agent of the public in addressing human rights violations and abuse of power practices in the country. However, the Commission is not very much known to the common man and woman in the villages. The Commission can be accessed by members of public can access the offices of the Commission at its headquarters office in Dar es Salaam, its territorial office in Zanzibar and the branch offices in Mwanza and Lindi. On the Mainland there are twenty-one regions and the Commission has offices in these three regions only. This makes the aspect of the Commission being known to the people more far fetched. The implications of this fact is

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that Civil Society Organizations have had a big job in their hands to fill in the gap – by disseminating information about the ‘whereabouts’ of the Commission or actually taking issues from the public to the Commission as was the case with the LHRC when it came to the hunter-gatherer communities being deprived of their land by farming communities, or cases of displaced communities due to mining companies. The meagre budget given to the Commission complicates the situation as it cannot expand in terms of offices nor can it advertise itself through civic education programmes to an extent that it can be seen by the people.

Conclusion

The nascent democracies on the African continent need to be carefully nurtured in order that real democracy is realized. The nurturing requires that some institutions like those overseeing elections, human rights and good governance be constitutionally recognized so much that no other institutions should interfere with their activities without fitting reasons. Tanzania has tried to create an atmosphere as well as institutions to this end but a lot needs to be done to make the institutions effective. Included in these institutions is the Commission for Human Rights and Good Governance.

The constitutional and legal mandates for the Commission are clear but the capacity it currently commands makes it look like a white elephant because it has not been as effective as one would have liked. Basically, the Commission lacks resources for implementing its mandate. With the inadequate resources it has been allocated though, it has managed to pursue a few of the human rights and good governance issues brought to it. While it is clear that many governments in the Sub-Saharan Africa are starved with resources especially financial resources, institutions like the ones which work for human rights and good governance may need to be paid closer attention and be given adequate resources because when they become effective their impact is across the entire economy. What we are saying is that if, for example, good governance is attained, then resource distribution and management would be better done and therefore the realization of socio-economic development. This is where one could say that institutions that work for and protect democracy should be on the list of top priorities of a country.

The government has a lot to do also when it comes to perfecting the environment in which democracy is going to thrive. With regard to the legal system, for example, there are certain

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laws in this country, some of which are quite draconian,10 which still restrict the enjoyment of human rights. Some of the laws received at thorough scrutiny of the Nyalali Commission.11 Some of the laws fall under the competence of the Union Government, and others under that of the Revolutionary Government of Zanzibar. Some of the laws have been repealed, some amended, but new ones have also been enacted, which to a large extent threatens the enjoyment of human rights, as is the case with the Prevention of Terrorism Act.12

The cooperation and networking between and among government and non-governmental actors is also an important input into the successful realization of the goals of such institutions as the CHRAGG. Civil society organizations have had a critical; role in educating the population, in doing advocacy work, and mobilizing resources for programmes towards the realization of good governance and the upholding of human rights. The government in Tanzania has, from time to time, cooperated with these organizations for the benefit of the population. As has been the case with the ones which we mentioned in this report, they have been working in areas of human rights, good governance as well as civic education – something that the government itself has not done as much. They therefore need government support.

10 For example, the Deportation Ordinance, which empowers the President to order the internal deportation of any person from one part of the country to another, the Preventive Detention Act (1962) which empowers the President to order the detention of any person; and the Regional Administration Act 91977), which confers on Regional and District Commissioners with detention powers 11 11 The UNITED REPUBLIC OF TANZANIA, The Report and Recommendations of the Presidential Commission on Single Party System in Tanzania, Dar es Salaam: Dar es Salaam University Press, 1992 “The Nyalali Commission Report” and the 1999 Kisanga “White Paper” Commission Report. 12 Act No. 21 of 2002. The Act widen the category of Police Officers by declaring under Section (28(2) of the Act, that a “Police Officer” for purposes of arresting without warrant a suspected terrorist, includes a police officer or above the rank of Assistant Superintendent, an immigration officer or a member of Tanzania intelligence security service.

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Policy Recommendations

1. Civic education should be provided to the people so that they can know their (human) rights and duties as citizens.

2. The capacity of the Commission should be strengthened so that it can perform its duties as per its mandate. Funding the Commission adequately, for example, should be a priority otherwise it will become a white elephant having no real benefits to the people of Tanzania.

3. The Parliament should be made to discuss the Annual Reports from the Commission so that the reports can make an impact especially when it comes to matters needing follow–up.

4. The Commission should be accountable to Parliament rather than the President who appoints it.

5. The inclusion of human rights in police/prison training colleges’ curricula as well as provision of human rights training to in-service police officers should be done.

6. The Government should make deliberate efforts to equip the Police Force with modern working equipments and tools and improve the working conditions of police officers including the provision of adequate housing and transport as well as increasing their salary to reduce the chances of being corrupt thereby being ineffective human rights protection agency.

7. The degree to which a police officers has abided by human rights and democratic principles in performing his or her duties should form part of his or her individual performance appraisal system for purpose of promotion at par with good police tactics.

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References

1. Amnest International (2006) Global Integrity Report

2. Assey, P. (19990 “Poverty Alleviation Initiatives in Tanzania” in V.S. Vyas and Pradeep Bhargava (eds.), Poverty Reduction in Developing Countries: Experiences from Asia and Africa (New Delhi, Rawat Publications): 125-151.

3. Department For International Development (DFID, UK) (1999), Tanzania: Country Strategy Paper (DFID, East Africa).

4. Legal and Human Rights Centre, (2006) ‘The Human Calamity of Evictions at Nyamuma-Serengeti’ March, pp. 65.

5. Maloka, V. (2006) ‘Paradigm Shift? Building Capacity for Conflict Management and Peace-building: The Tanzanian Commission for Human Rights and Good Governance’ in Defenders of Human Rights, Managers of Conflict, Builders of Peace: National Human Rights Institutions in Africa.

6. Munishi, G. K. (1997) Private Health Care in Tanzania: Private Health Sector Growth Following Liberalization in Tanzania Washington DC: International Health Policy Program.

7. Mwase, Nkunde (2006), “An Empirical Investigation of the Exchange Rate Pass-Through to Inflation in Tanzania”, IMF Working Paper No 06/150.

8. Nyalali Commission. (1991). “Taarifa ya Mapendekezo ya Tume Kuhusu Mfumo wa Siasa Nchini Tanzania” (Dar es Salaam: The Nyalali Report).

9. United Republic of Tanzania, (1977). The Constitution of the United Republic of Tanzania (Dar es Salaam, Government Printer).

10. United Republic of Tanzania, (1985) The Elections Act.

11. United Republic of Tanzania, (1995) The Public Leadership Code of Ethics Act.

12. United Republic of Tanzania, www.chragg.go.tz

13. United Republic of Tanzania, 2001. The Commission for Human Rights and good Governance Act No 7 2001.

14. URT (1998), The National Poverty Eradication Strategy (Dar es Salaam, Vice President’s Office).

15. URT (1999), Poverty and Welfare Monitoring Indicators (Dar es Salaam, Vice President’s Office).

16. URT (1992) The Political Parties Act.

17. URT (1996) The Report of the Presidential Commission of Inquiry Against Corruption (Warioba Report) (Dar es Salaam: Government Printer).

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Appendices: Appendix A: The Research Questionnaire

Promoting the effectiveness of democracy protection

institutions in Southern Africa.

Questionnaire for officials of country institution

Country: TANZANIA

Institution name: COMMISSION FOR HUMAN RIGHTS AND GOOD GOVERNANCE

A. General

1. How long has your institution been in existence? How and why was it established?

2. Please provide a description of your understanding of your institution’s constitutional/legal mandate. Does it include a right of initiative?

3. What role or function does your institution perform that is not carried out by other institutions, whether in government or civil society?

4. What other democracy protection institutions exist in your country? How does your institution relate to them?

5. In what way, if any, does the role and function of your institution overlap with or potentially overlap with that of the other democracy protection institutions?

6. Does the founding legislation provide a clear, workable and comprehensive legal framework that supports and empowers the institution to successfully fulfil its core mandate?

7. What outcomes do you strive for in order to realise the constitutional/legal mandate set out in 1 above? How often do you engage in strategic planning?

8. What have been /are the major constraints facing your institution and how have these impacted on its ability to achieve its mandate?

B. Institutional effectiveness

9. What mechanisms are in place to deal with public complaints, to follow through on such complaints and to successfully resolve them?

10. How many cases/ complaints have been brought to you over the last year?

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11. How many of these were resolved? How many are outstanding and what are the reasons for this?

12. How do you measure and assess your own effectiveness? What instruments do you use for monitoring and evaluation purposes?

13. Have you carried out any external evaluation looking at the successes or otherwise of your functions?

14. Do you produce annual reports? If so, are they publicly available? 15. What strategies do you employ in carrying out public outreach and

ensuring public trust of your institution? C. Independence

16. How do you view your relationship with the executive and parliament? 17. How do you view your relationship with political parties (both ruling and

opposition)? 18. What legal and other mechanisms are in place to ensure and strengthen

the institution’s independence? 19. Who is your institution accountable to? 20. What is the extent of collaboration and coordination of the work carried

out by your institution and similar/ related work carried out by other institutions of a similar nature?

21. What safeguards exist to protect your institution from political encroachment?

D. Institutional governance

22. What are the institutional governance arrangements in your institution? Are these arrangements clearly set out and do they allow for a smooth running of the institution? Do you embrace gender issues? What suggestions do you have to improve institutional governance arrangements?

23. Is there a clear, logical and workable division between the members of your institution appointed by President (on advice of the National Assembly) and the Secretariat?

24. Does your institution have mechanisms in place to deal with internal conflict in your institution? If yes, what are these mechanisms and are they effective?

25. What mechanisms are in place for Chief Executive Officers, Chairpersons and Commissioners to disclose and/or seek permission for private/commercial/financial interests or involvement as well as membership in any organisation? Are such mechanisms effective or sufficient to ensure transparency and avoid conflict of interest?

E. Interaction with the public and non-state actors

26. What is the extent of collaboration and coordination of the work carried

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out by your institution and similar/ related work carried out by non-state actors?

27. What was the intended relationship between your institution and the public? To what extent has this relationship been realised?

28. Does your institution have mechanisms in place to deal with complaints by the public about the work done by your institution or the failure to attend to issues?

29. How accessible are the offices of your institution to the public? 30. What kind of complaints do the public bring to you? 31. Do the public have a sufficient appreciation of your role and mandate? 32. Are public expectations of your institution realistic/ unrealistic?

F. Resources

33. Is your institution funded through a designated ministry/ government department or through the consolidated fund voted directly by parliament?

34. Please give an indication of your budget allocation, additional funding and expenditure over the past five years.

35. Please illustrate the budget process followed by your institution, including the process of allocation of funds.

36. Please provide detailed information of the remuneration packages for office-bearers and Commissioners.

37. Are the current budgetary and administrative arrangements sufficient to ensure autonomy of democracy protection institutions?

38. To what extent are the resources allocated to your institution directly spent on meeting its key responsibilities?

39. What are the resource constraints faced by your institution? 40. How does this hamper the work of your institution?

Appendix B: List of Interviewees

1. Judge (rtd) Ramadhani Manento – Chairman of the CHRAGG 2. Ms Mary Massay – Ag Executive Secretary to the CHRAGG. 3. Mr F. Nzuki – Director, Human Rights Directorate, CHRAGG. 4. Mr J. Jingu – Assistant Lecturer teaching Human Rights Course at University of

Dar es Salaam. 5. Mr B. Kaiza – FORDIA an NGO for development and good governance. 6. Mr Epson Luhwago, Journalist, Uhuru Publications.

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About the Author

Ernest T. Mallya is associate professor in Public Policy and Administration at the University of Dar es Salaam’s Department of Political Science and Public Administration. He has work and researched in the area of public service delivery systems, civic/public service reforms in Tanzania; good governance issues (including ethics and corruption); elections and election monitoring, civic education, as well as training in capacity building. He has worked in projects with the Public Service Management (Tanzania), GTZ, ESRF (Tanzania), UNDP/Maastricht School of Management (MsM), and Kvistgaard/Hedeselskabet (Denmark), IDASA and EISA to mention some. He teaches courses related to the Administrative Sciences, but also has been appointed Deputy Principal (Academics) at the Constituent College of Education of the University of Dar es Salaam.