The Private Security Industry in Tanzania: Challenges, Issues and Regulation
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THE PRIVATE SECURITY INDUSTRY IN TANZANIA: Challenges, Issues and Regulation Jaba Shadrack, October 2011 A Dissertation Submitted in Partial Fulfilment of the Requirements for the Degree of Master of Laws (LL.M) of the University of Dar es Salaam
Transcript of The Private Security Industry in Tanzania: Challenges, Issues and Regulation
THE PRIVATE SECURITY INDUSTRY IN TANZANIA: Challenges, Issues and Regulation
Jaba Shadrack, October 2011
A Dissertation Submitted in Partial Fulfilment of the Requirements for the Degree
of Master of Laws (LL.M) of the University of Dar es Salaam
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CERTIFICATION
The undersigned certify that he has read and hereby recommends for acceptance and
examination by the University of Dar es Salaam a dissertation entitled: “The Private
Security Industry in Tanzania: Challenges, Issues and Regulation” in partial
fulfilment of the requirements for the degree of Master of Laws (LL.M) of the
University of Dar es Salaam.
……………………………………….
PROFESSOR, G.M. FIMBO
(Supervisor)
Date: ------------------------------
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DECLARATION
AND
COPYRIGHT
I, Jaba Shadrack, declare that this dissertation is my own original work and that it has
not been presented and will not be presented to any other University for a similar or any
other degree award. I declare further that all references I have used or quoted or
paraphrased have been indicated or acknowledged by means of footnotes or references.
Signature ------------------------------------------
(Supervisee)
This dissertation is copyright material protected under the Berne Convention, the
Copyright and Neighbouring Rights Act (No. 7 of 1999, CAP. 218, RE: 2002) and other
international and national enactments, in that behalf, on intellectual property. It may not
be reproduced by any means, in full or in part, except for short extracts in fair dealings,
for research or private study, critical scholarly review or discourse with an
acknowledgement, without the written permission of the Directorate of Postgraduate
Studies, on behalf of both the author and the University of Dar es Salaam.
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ACKNOWLEDGEMENT
I wish to extend my heartfelt thanks to Professor G.M. Fimbo, my supervisor, whose
enthusiasm, inspiration, and great efforts to explain things clearly helped me greatly to
accomplish this dissertation. Admittedly, I would have lost direction and main points
without him. Whilst, I am thankful to Professor G.M. Fimbo for his unconditional
guidance, I must admit that if there is any error in this dissertation, the blame lies with
me alone.
I am also indebted to many of my workmates (alias the Yombo Republic) namely Mr.
Abdallah Gonzi, Abel Mwibuli, Kitta Hussein, Njamasi Sehewa, Kiwory Goodluck,
Evaristo Longopa, Laurean Mussa, Sabhigoro Francis, Luhende Boniphace, PrayGod
Nicholas, Sostenes Materu and Mhozya Bonaventura whose challenges, insights and
constructive ideas on the topic have helped me a lot.
Further, I wish to thank my entire extended family for providing a loving environment
for me. My brothers, Sisters, my half-siblings, my sister-in-law, nephews, uncles, and
cousins were particularly supportive.
Lastly, and most importantly, I owe my deepest gratitude to my soulmate, Ms. Felister
Akonaay, and above all my parents, Mr. Deogratias Mfungo Shadrack and Nyajige
Agnes Mcheche for their unconditional love, support, understanding, patience and belief
in me.
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DEDICATION
I dedicate this dissertation to all „Private Security Personnel‟ in Tanzania which
continues to work tirelessly day and night despite the hardships they have to endure.
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ABSTRACT
After the decline of „command economy‟ in the socialist bloc, the policy of privatisation
has hit even areas that were considered to be exclusive domain of the state, such as
defence and security. With the trend of privatising security becoming national and
international in nature, the theme of privatisation of security services is gaining
prominence on the international agenda. In that regard, this sector of investment has
influenced and has become an area of concern to scholars and policy-makers at national
and international level.
However, the aspect of effective regulation of the security industry seems to be forgotten
in many jurisdictions, Tanzania inclusive. The increase of Private security or military
companies‟ involvement in transnational business as combatants (private contractors),
peace-keepers, or mercenaries has fuelled the United Nations (UN) to draft the
Convention on the Regulation, Oversight and Monitoring of Private Military and
Security Companies (infra).
This study examines the issue of the Private Security Industry in Tanzania in terms of
regulation and outlines major issues and challenges pertaining to the industry. The aim is
to demonstrate that laws and practice relating to registration, licensing and regulation of
Private Security Industry in Tanzania are loosely crafted, frail and feeble. To establish
that notion the study appraises the performance and impact of the sector in Tanzania in
the light of an assumption that „an effective security service in Tanzania is no longer a
public good, but a privilege available only to those who can afford it.‟
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TABLE OF CONTENTS
Certification……………………….………………………………………...………...…..i
Declaration and Copyright…….……………………………….…………..…………….ii
Acknowledgement……………………………………….………………….………..….iii
Dedication…………………………………………………….……………..…………..iv
Abstract…..……………………………………………………………..…...…………...v
Table of Contents……………..………………………………………..………………..vi
Abbreviations & Glossary…………..………………..……………….…………..……...x
Table of statutes and Cases…………………….…..……..………….………………...viii
CHAPTER ONE: INTRODUCTION
1.0 Definitions and Background Information………………………………………….....1
1.1 Background to the Study…………………………………………………………..…6
1.2 Statement of the Problem………………………………………………………….....9
1.3 Research Objective……………………………………………………………….…10
1.3.1 Principal Objective…………………………………………………….………….11
1.3.2 Specific Objective………………………………………………………………...11
1.4 Significance of the Study……………………………………………………………11
1.5 Hypotheses………………………………………………………………………….12
1.6 Literature Review………………………………………………………….………..13
1.7 Research Methodology……………………………………………………………...26
1.7.1 Library Research………………………………………………………………….26
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1.7.2 Online/Electronic Research…………………..........................…………………..26
1.7.3 Field Research…………………………………………………………………….27
1.8 Limitations of the Study…………………………………………………………….28
1.9 Scope of the Study……………….……………………………………………….….29
1.10 Conclusion……………………………………………………………………….…29
CHAPTER TWO: CONSTITUTIONAL, LEGISLATIVE AND INSTITUTIONAL
FRAMEWORK OF THE PRIVATE SECURITY INDUSTRY
2.0 Introduction………………………………………………………………...……….30
2.1 Growth of the PSI and Risks of Unregulated PMSCS….….…………...…………..30
2.2 Laws on Private Security Industry in Tanzania…….……………………………….33
2.2.1 Establishment and Regulation of PSCs…………………………………………34
2.2.2 The Private Security Industry under The Constitution of the United Republic of
Tanzania, 1977……………………………………..……………………...……39
2.3 Conclusion…………………………………………………………………….…….46
CHAPTER THREE: THE RIGHT TO SECURITY OF PERSON VIS-A-VIS
PRIVATISATION OF SECURITY
3.0 Introduction…………………………………………………………………...….....48
3.1 The right to security of person and property as a human right……...……….……...50
3.1.1 National Dimension……………………………………………………..…........51
3.1.2 International Dimension………………………………………………....……...53
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3.2 The state of Security to Commoners on Eve of PSCs………………...…………….56
3.3 Effects of Privatisation of Security on the Right to Security of Person and
Property…………………………………………………………………......………57
3.4 Conclusion…………………………………………………………………...…...…68
CHAPTER FOUR: LEGAL ISSUES IN THE PRIVATE SECURITY INDUSTRY
IN TANZANIA
4.0 Introduction…………………………………………………………………………70
4.1 Legal Issues in the TPSI…………….……………………………………………....70
4.1.1 Relationship between PSCs and Public Police……………………………………70
4.1.2 The Law on Possession and Use of Firearms by PSCs……..…………………….74
4.1.3 Wearing of Uniforms and Identification of PSCs personnel……………………...77
4.2 Operation of PSCs…………………………………………………………….…….79
4.2.1 Self-regulation and Cooperation in the Private Security Industry………….……..81
4.2.2 Legal Standards for Recruitment and Training of Private Security Personnel...…82
4.2.3 Trade Union, Remuneration and the Working Conditions…………………….….85
4.3 The Role, Challenges and Influence of PSCs…………………………………….....91
4.4 PSCs and the threat to the National Security…………………………….………….93
4.5 Conclusion…………………………………………………………………………..94
CHAPTER 5: CONCLUSION AND RECOMMENDATIONS
5.0 Conclusion…………………………..……………………………...………….........96
5.1 Recomendations..........……………..………………….....………….............….......98
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REFERENCES......................................................................................................99
APPENDICES.......................................................................................................121
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ABBREVIATIONS & GLOSSARY
Askari Soldier/member of armed forces
ASP Assistant Superintendent of Police
CA Court of Appeal
CAP Chapter
CCTV Closed Circuit Television
CP Commissioner of Police
DCI Director of Criminal Investigation
DDSC District Defence and Security Committee
FFU Field Force Unit
GSI Global Security Industry
HC High Court
IBEACO Imperial British East African Company
IGEACO Imperial Germany East African Company
IGP Inspector General of Police
ILO International Labour Organisation
ISS Institute for Security Studies
Jamii Society/community
JSTOR Journal Storage
PMC Private Military Company
PMSCs Private Military/Security Companies
PSC Private Security Company
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PSI Private Security Industry
RE Revised Edition
T Tanzania
TLR Tanzania Law Report
TSIA Tanzania Security Industry Association
TPSI Tanzania Private Security Industry
TUPSE Tanzania Union of Private Security Employees
UDSM University of Dar es Salaam
UK United Kingdom
US/A United States/of America
URT United Republic of Tanzania
Ujamaa Socialism/Brotherhood
Vol. Volume
WW World War
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TABLE OF STATUTES AND CASES
Local Statutes
Anti-Money Laundering Act, No. 12 of 2006.
Arms and Ammunition Act (RE: 2002, CAP. 223).
Armaments Control Act (RE: 2002, CAP. 246).
Constitution of the Revolutionary Government of Zanzibar, 1984 (RE: 2002).
Constitution of the United Republic of Tanzania, 1977 (RE: 2005, CAP. 2).
Deportation Act (RE: 2002, CAP. 380).
Economic and Organized Crimes Control Act (RE: 2002, CAP. 200).
Emergency Powers Act (RE: 2002, CAP. 221).
Employment and Labour Relations Act, No. 6 of 2004.
Explosives Act (RE: 2002, CAP. 45).
Extradition Act (RE: 2002, CAP. 368).
Fugitive Offenders (Pursuit) Act (RE: 2002, CAP. 57).
Immigration Act (RE: 2002, CAP. 54).
Labour Institutions Act, No. 7 of 2004.
Minimum Sentences Act (RE: 2002, CAP. 90).
Mutual Assistance in Criminal Matters Act (RE: 2002, CAP. 254).
National Security Act (RE: 2002, CAP. 47).
Penal Code (RE: 2002, CAP. 16).
Peoples Militia Act (RE: 2002, CAP. 111).
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Police Force and Prisons Service Commission Act (RE: 2002, CAP. 241).
Police Force and Auxiliary Services Act (RE: 2002, CAP. 322).
Prevention of Terrorism Act, No. 21 of 2002.
Prisons Act (RE: 2002, CAP. 58).
Proceeds of Crime Act 1991 (RE: 2002, CAP. 256).
Public Order Act (RE: 2002, 385).
Refugee Act (RE: 2002, CAP. 37).
Tanzania Intelligence and Security Service Act (RE: 2002, CAP. 406).
Trade Unions Act (RE: 2002, CAP. 244).
Visiting Forces Act (RE: 2002, CAP. 194).
Workers' Compensation Act (RE: 2002, CAP. 263).
Foreign Statutes
Constitution of the Republic of South Africa, Act No. 108 of 1996.
Code of Ethics for Recruitment Organisations Supplying Security Personnel, BSIA,
April 2005 (UK).
Private Guard Companies Act, No. 23 of 1986 (CAP. 367) (Nigeria).
Private Investigators and Security Guards (Control) Act, 1978 (CAP. 27:10)
(Zimbabwe).
Private Security Act, 2004 (Victoria-Australia).
Private Security and Investigative Services Act, 2005 (CAP 34) (Canada).
Private Security Industry Act 2001, Cap. 12 (UK).
Private Security Industry Regulation Act, No. 56 of 2001 (South Africa).
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Private Security Industry Regulations Bill, 2004 (Kenya).
Private Security Services Act, No. 12 of 2004 (UK).
Private Security Services Act, No. 12 of 2004 (Ireland).
International Instruments
African Charter on Human and Peoples' Rights, adopted on June 27th
1981, Banjul.
African Charter on Human and Peoples' Rights‟ Protocol on the Rights of Women. in
Africa, 11th
July 2003, Maputo.
American Convention on Human Rights, 22nd
November 1969, San Jose.
Arab Charter on Human Rights, adopted on 15 September 1994, Cairo.
Cairo Declaration on Human Rights in Islam, August 5th
1990, Cairo.
East Africa Community‟s Treaty, 1999, Arusha.
European Convention on Human Rights, 4th
November 1950, Rome (as amended from
time to time).
Freedom of Association and Protection of the Right to Organise Convention (ILO
Convention No. 87), 1948.
International Convention on the Elimination of All Forms of Racial Discrimination,
1969.
Convention on Elimination of All Forms of Discrimination against Women, 1979.
International Covenant on Civil and Political Rights (ICCPR), 1966.
Right to Organise and Collective Bargaining Convention (ILO Convention No. 98),
1949.
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UN Draft International Convention on the Regulation, Oversight and Monitoring of
Private Military and Security Companies, 13 July 2009.
UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,
1990 (Havana).
Universal Declaration of Human Rights (UDHR), 1948.
Selected Case law
Amon Magigi Nyamugonda & Another v. Boniface Kilingo & 15 others, High Court (T)
Civil Case No.22/1988.
Charles Charari Maitari v. Matiko Chacha Ghati and 4 Others, High Court (T) Civil
Case No.15/1987.
Charles Mwita & Another v. Kando Mresi & 10 Others, HC at Mwanza, Civil Case No.
15 of 1988.
Daudi Sabaya v. Republic [1995] TLR148 (CA).
Geza Geza & 12 Others v. Isa Hamisi & 11 Others, HC at Mwanza, civil Case No. 7 of
1988.
Griffin v. Maryland, 378 U.S. 130, 135 (1964).
The Human Rights Program v. the Minister of Finance (alias Academic Center of Law
and Business, Human Rights Division v. Minister of Finance) (2009) HCJ 2605/05
(Israeli Supreme Court sitting as the High Court of Justice).
Jackson v. Metropolitan Edison Co. (1974) 419 U.S. 345.
Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946);
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Misperesi K. Maingu v. Hamisi Mtongori & 9 Others, HC at Mwanza, Civil Case No, 16
of 1988.
Ngwegwe s/o Sangija & 3 Others v. R., HC at Mwanza, Criminal Appeal No. 72 of 1987.
People v. Brouillette (1988) 210 Cal.App.3d 842 [258 Cal.Rptr. 635].
USA v. Mario Terrell Day, F.3d , 2010 WL 60900 (4th Cir. Jan. 8, 2010).
USA v. Tariq B. Shahid, aka Kenneth A. Butler (1997) No. 96-3231, Court of Appeals,
Seventh Circuit.
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CHAPTER ONE
INTRODUCTION
1.0 Definitions and Background Information
The private security company (PSC)‟ or a private military company (PMC)‟ is defined
as a corporate entity (firm, company or enterprise) which provides on a compensatory
basis military and/or security services, including investigation services, by physical
persons and/or legal entities1. In the light of this study, the PSCs and PMCs differ as to
the nature and range of services they provide. PSCs provide security services such as
armed guarding or protection of buildings, installations, property and people, police
training, material and technical support to Police Forces, elaboration and implementation
of informational security measures and other related activities2. PMCs offer military
services, that is to say, specialised services related to military actions including strategic
planning, intelligence, investigation, land or sea or air reconnaissance, flight operations
of any type, manned or unmanned, satellite surveillance, military training and logistics,
and material and technical support to armed forces, and other related activities.3 Some
scholars have glued the two and thus refer them as one, i.e. private military/security
companies (PMSCs). Whilst, the private security industry (PSI) means the sector within
which the PSCs and PMCs operate. On the other hand, security commercialism connotes
1Article 2 of the Draft International Convention on the Regulation, Oversight and Monitoring of Private
Military and Security Companies, 13 July 2009. The Montreux Document. 2Ibid, Article 2(c).
3Ibid, Article 2(b).
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the tendency of excessive emphasis on policing for profit making (in short, policing by
generating maximum profit).
Let us now look at the historical trends of policing in Tanzania;
Public policing as it exists today has passed through various phases to acquire the
position it has today. The German rulers in Tanganyika4 had no formal policing
machinery, thus they deployed armies and paramilitary officers to maintain law and
order, and to protect colonial administration.5 At local community level, Akidas and
Jumbes were used but not on regular basis to perform policing duties.6The role of
indigenous in security was seen in the First World War (WWI) where Colonel Paul Von
Lettow-Vorbeck (a German Commander) 7 integrated local soldiers (i.e. askari) into the
army to fight against the British in East Africa. The WWI ended in Germany‟s defeat,
and consequently Tanganyika was placed under British colonialism as a Trusteeship
territory under the League of Nations.8
The British regime in Tanganyika9 introduced the Police Force (and Prison Service) in
191910
headquartered at Lushoto.11
Functionally, civilian policemen were separated from
the military.12
The aim of public policing was to protect imperialists‟ interests in
41886-1919.
5CHRI (2006) The Police, The People, The Politics: Police Accountability in Tanzania, p. 2.
6 Ibid.
7 Ibid.
8 In 1945 Tanganyika became a trustee territory under the United Nations Organisation (UNO, now UN).
9 1919-1961.
10The Police and Prisons Proclamation of May 1919, Government Gazette, Vol. 1. No. 21-2583. Initially,
the Police Force was headed by Major Davis, S.T. 11
However, in 1930, the Police headquarter was moved to Dar es Salaam. 12
CHRI, op. cit., p.3.
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Tanganyika to the exclusion of native populace.13
In that regard, police operations and
patrols were generally limited to white peoples‟ suburbs in urban areas and settlers‟
settlements in rural areas14
. In strategic areas like mines (colonial investments) the
colonial regime empowered respective authorities to raise and maintain „Auxiliary
Police‟ for policing activities, one example is Williamson Diamonds Mines at Mwadui15
.
Moreover, in 1949 a special unit within the Police Force known as „Motorised
Company‟ (now, FFU) was established to counter political movements or mass
mobilisation and violence16
.
In 1961, after political independence of Tanganyika (now, Tanzania Mainland), the
Police Force was reformed and thus most of white officers were replaced by native
blacks.17
Therefore, services of the Police Force were extended to every one. The
government also established more Auxiliary Police units to provide security services
(policing) in „special areas‟ so as to relieve the police in one way or another. Whilst
police are termed as employees of the government, auxiliary police are deemed as
employees of the area concerned18
. In another development, the „people‟s militia‟
13
Ibid. 14
For instance, the first police post/station was built in 1925 at Lupa Tingatinga, near Chunya Gold Mines 15
The Auxiliary Police Ordinance, Cap. 262. 16
Visit < http://www.policeforce.go.tz/index.php?option=com_content&task=view&id=15&Itemid=30>
accessed on 23rd
August, 2010 at 16:37 Hours. 17
In 1962, for example Mr. M.S Wilson (Commissioner of Police, i.e CP) was replaced by Mr. Elangwa
Shaidi (CP). 18
Tibasana, L.M. (2001) Effective Administration of the Police and Prosecution in Criminal Justice: The
Practice and Experience of the United Republic of Tanzania, The 120th
International Senior Seminar
Participants‟ Papers, Annual Report for 2001 and Resource Material Series No. 60, p.168 (available at
<http://www.unafei.or.jp/english/pdf/PDF_rms/no60/ch12.pdf> last accessed on 06/07/2011 at 10:36
Hours.
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(mgambo) was introduced as a paramilitary reserve force which, inter alia, carries out
policing work under the supervision of the Police Force19
.
In early 1980s another form of informal policing system known as
sungusungu/wasalama was recognised by the central government20
. This kind of
vigilante policing in the neighbourhood was a result of the Kagera war21
which
culminated into lawlessness in most parts of the country. It was at the said epoch that
crime such as burglary, armed robbery and cattle rustling proliferated.22
The sungusungu
system was seen as a relief to the community as well as the government which
commended the same as grass-root initiative to implement the Arusha Declaration23
and
the policy of „socialism and self-reliance‟24
.
However, in 1987 and 1988 the High Court declared sungusungu activities illegal
(unconstitutional) as they tended to assume functions of state machineries such as Police
and Courts25
. Nonetheless, in 1989, the government legalised sungusungu activities26
and granted them powers to arrest and search similar to those of a police constable27
. As
19
The Peoples Militia (Powers of Arrest) Act, No. 25 of August 1975. 20
It started in Mwanza, Shinyanga, Tabora, Mara, Kagera and Singida, later became a common feature all
over the country. They arrested and punished adulteress/adulterers, run-away wives, thieves, debtors,
witches/wizards, night vagabonds, and cattle rustlers. Mwaikusa, J.T. (1995) Maintaining Law and Order
in Tanzania: The Role of Sungusungu Defense Groups; and Abrahams, R.G. (1989) Law and order and
the state in the Nyamwezi and Sukuma area of Tanzania. 21
War between Tanzania and Uganda in 1979. 22
Heald, S. (2005) State, Law and Vigilantism in Northern Tanzania, p.266. Also Abrahams, R. G.
(1987) Sungusungu: Village vigilante groups in Tanzania. 23
Ibid. pp. 273, 277. Abrahams, R.G. & S. Bukurura (1993) Party, bureaucracy, and grass-roots
initiatives in a socialist state: the case of sungusungu vigilantes in Tanzania. 24
Wisler, D. & I.D. Onwudiwe (2008) Community Policing in Comparison, pp.430, 432, 435, 437 & 440. 25
Amon Magigi Nyamugonda & Another v. Boniface Kilingo & 15 others, High Court (T) Civil Case
No.22/1988; and Charles Charari Maitari v. Matiko Chacha Ghati and 4 Others, High Court (T) Civil
Case No.15/1987. 26
The People‟s Militia Laws (Miscellaneous Amendments) Act, No. 9 of 1989. 27
Ibid, Section 3(1).
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a result sungusungu policing spread all over the country and became a popular way of
protecting neighbourhoods both in rural and urban areas to date. Apart from the
aforesaid security actors, the Police Force has devised ways to involve the community at
large in policing i.e. Polisi Jamii (community policing)28
and Special Constabulary.29
The night watchmen are common actors in the security area, and of course the oldest of
all of them. Essentially, night watchmen are employees of private individuals duty
bound to guard homesteads, cattle and business premises at night, for example the
Maasai, Ngoni, Makonde, Digo and Gogo watchmen in urban areas.
The TPSI which composes local and international PSCs started in 1981 with only two
companies30
. However, in 2009 there were 360 companies and in 2010 the number
increased to 495 companies, country wide.31
The said number cover companies dealing
in man guarding, money escort, security consultancy, but it does not cover companies or
sole traders dealing in private investigation and detection as well as Night watchmen and
bouncers whose number is yet to be determined by the Police Force32
. However, since
1981 to 2001 there was no formal ways of dealing with PSCs. In 2002, the Police Force
introduced the Community Policing Department under which PSCs are now dealt with
as part of community policing alongside Sungusungu and whistleblowers (volunteers)
28
This is a police strategy aiming at involving the community actively in being responsible for the security
of their neighbourhood. (Tibasana, loc. cit.). 29
These are citizens who volunteer to assist the police when called upon to do so. (Tibasana, loc. cit.). 30
Mjingo, H. Female night guards in high risk occupation. In the Daily News (Online Edition) of 13th
November 2010 < http://dailynews.co.tz/home/?n=14511&cat=home> Visited on 22/12/2010 at 11:16
Hours. 31
Ibid. 32
Information learnt from interviewees i.e. Mr. Kiondo (ASP), and Adumu (Department of Community
Policing, Police Headquarters, Dar es Salaam). Appendix J (The Constitution of Tanzania Security
Industry Association).
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and other paramilitary actors like Mgambo and Auxiliary Police.33
However, the way
PSCs operate differs from other actors under community policing. This is because, PSCs
offer contract security services, while other actors, namely Mgambo and Auxiliary
Police are employees of the institution with security concerns which may be a municipal
or city council, a private institution or public corporation.
1.1 Background to the Study
The notion of a „state‟ being a protector of individuals, occupied an upper hand between
1600s-1700s, as a result, featured in every state‟s policies in Europe and North America.
At that epoch, the popularity of a ruler (or government) was measured on the basis of the
strength to protect his or her own citizens and their properties as well as the ability to
defend national sovereignty. The might of armies and law enforcement agencies
dominated not only scholarly works but also statesmen‟s strategies and propaganda.
In the same vein, the social contract philosophers namely Thomas Hobbes, Hugo
Grotius, John Locke and Jean-Jacques Rousseau identified a „state‟ as a guardian of
individuals‟ security and the community at large. Most crucially, they argued that
individuals choose to give up some rights to a „state‟ in return for protection from
dangers. The same position was reiterated in Machiavelli and Jean Bodin‟s works
respectively.34
This conception of state‟s role in security affairs is still fresh and tenable in modern
states‟ agendas. Most of African states being part of western imperialists‟ empire, in the
33
Ibid. 34
Mahajan, V.D. (1987) Jurisprudence and Legal Theory, 5th
Ed, (Chap. 29), p. 698.
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19th
century, inherited and maintained the same colonial superstructure and role of a
state. However, after the „Cold-war‟ which culminated in privatisation of socio-
economic activities, the world witnessed tremendous changes in the security industry
too. Unlike in the past,35
non state actors emerged to work concurrently with state‟s
security machineries, thus marking the end of states‟ monopoly of security services.
Creutz has observed,
The mixture of state and private actors within the field of security is here to
stay and consequently the international community has to find a way, if not
to embrace it, [or] at least to cope with it.36
This new sector of the economy has come to be known as „Private Security Industry
(PSI)‟. The PSI has two major branches namely as PSCs and PMSCs, the former as the
predominant one and the latter as the emerging one37
. The distinction between the two is
common in the USA (and not in the UK), but for the purpose of this study such
distinction is vital38
.
Tanzania as part of „globalised‟ economy could not stand in isolation. The Private
Security Industry permeated Tanzanian market in the form of „Private Security
Companies‟ in 1980s39
. The private security industry mushroomed in 1990s and
35
Chapter one (Paragraph 1.0). 36
Quoted by Sabelo, G. (2007) To embrace or not to embrace: Addressing the private security industry
phenomenon in Africa. In Private Security in Africa: Manifestation, Challenges and Regulation, p. 3. 37
Chakrabarti, S. (2009) Privatisation of Security in the Post-Cold War Period: An Overview of its
Nature and Implications, pp. 5-6. 38
Introductory Part to Chapter one (Paragraph 1.0). 39
The PSCs in Tanzania emerged in 1985 with two notable companies, namely as „Group 4 Security (T)
Ltd., and Ultimate Security (T) Ltd., deployed in sensitive areas such as Banks, Foreign missions and
investments. (2000) Crime and Policing issue in Dar es Salaam - Tanzania Focusing on Community
Neighbourhood Watch groups – “sungusungu”, p.39, available at
<http://www.unhabitat.org/downloads/docs/1825_12883_sungusungu.pdf>.
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prospered in 2000s, the period when the government of Tanzania undertook extensive
reform of the ordained ujamaa policy to liberal policy. It is estimated that more than 495
PSCs operate all over the country and have the work force of not less than 1.7 million
people40
while the police are only 2991841
.
Primarily, the sector provides domestic security services, such as policing (guarding and
arresting), body guarding (bouncers), fire fighting (evacuation), ambulance services,
surveillance, event security, security consultancy, investigation and detection42
. In
particular, their services cut across various areas of the economy such as banks security,
travel and tour security, and investment security.
In other jurisdictions (For instance, Iraq and Angola) they offer additional services such
as maintenance and operation of weapons systems, prisoner detention (maintain private
prisons), training and security review, convoy security and risk analysis. They offer
business intelligence, and investigation such as diligence, and asset tracing and recovery,
counter-surveillance and anti-surveillance, private detection (ransom and kidnap cases),
and training police and military personnel. Yet, they provide humanitarian assistance in
war-torn areas as private contractors (private military companies)43
.
40
Adamu Maro (Assistant Superintendent of Police i.e. ASP), Personal Interview, 23rd
November, 2010.
Also, Sabinus, J. „Changamoto za Sekta Binafsi za Ulinzi Tanzania. East African Security: Tunazikwa
kimya kimya‟. Habari Leo (1st September 2010 @ 13:00) available at )
<http://www.habarileo.co.tz/kitaifa/?n=9712 > last accessed on 28th
March 2011 at 17:42 Hours. 41
Police Annual Report 2009, p. 7. 42
Appendix J. 43
Sabelo, G. (2009) “Addressing the use of private security and military companies at the international
level”, p.2.
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1.2 Statement of the Problem
The Private Security industry is a booming industry in Tanzanian economy. In the past
two decades, it has experienced tremendous growth and transformation. The industry
provides guards and police-type security services, in some way, outnumbering national
Police Forces.
However, the Tanzania Private Security Industry (TPSI) lacks a regulatory authority,
and there is no specific national (or international) legislation, code of conduct or
industry‟s self-regulation arrangement to govern it44
. The procedure for commencing
security business in Tanzania exposes a number of weaknesses too. For instance, the
prospective owner has to register his business by the Business Regulation and Licensing
Authority (BRELA) and secure a company‟s licence. Besides, he has to seek a permit
from the Police Force to run his business45
. Such permit usually has no expiry date, and
the assessment procedures to be given a permit are not certain. After a permit is issued,
there is no authority that monitors day to day activities of the TPSI.
Further, there are PSCs which were registered many years ago but are still functioning
despite the death of the original subscribers of the company46
. As opposed to other
business companies, PSCs ought to be registered and operated by accredited individuals
who are trustworthy and personally responsible for activities of the company. In other
44
One police officer opined that, „if PSCs continue to work in the existing institutional framework, the
chance of some of them to be taken over by political movements and become privatised armies is high‟
(She opined on a condition of anonymity). 45
A „police permit‟ is a letter from the IGP to the respective PSC, authorising it to offer security services
in Tanzania. Such letter includes also some conditions to that effect. 46
John, C. „Private security companies in plea for recognition‟, Daily News (Online Edition) 20th
November 2009 [available at <http://www.dailynews.co.tz/home/?n=5502>.
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jurisdictions, if it is a family owned PSC, the death of original subscriber (e.g. father) or
any substantial transfer of shares do not confer heirs/heiresses or new subscribers an
automatic right to operate such company as managing directors. Usually, they will be
subjected to the same test as new applicants of a security service licence or permit by the
regulatory authority. The rationale of the rule is to ensure that respective PSCs continue
to be managed or operated by individuals who can be entrusted with a special duty of
protecting people and their properties.
Another area of concern in the TPSI is the possession and use of firearms (weapons) and
uniforms. In that the Arms and Ammunition Act47
and policy governing possession of
arms and ammunition do not address fully and take into consideration the security
business. In the use of arms there is a great challenge since guards who kill bandits by
opening fire in an act of self-defence face murder charges unlike members of the Police
Force who have special protection accorded to them by the law48
.
Moreover, PSCs use civilian laws to govern labour relations which allow employees to
form or join trade unions. This is contrary to the norms and practises in the area of
defence and security49
.
1.3 Research Objective
The study‟s objectives are divided into two i.e. main and specific objectives as follows;
47
CAP. 223 (RE: 2002). 48
Section 29 of the Police Force and Auxiliary Services Act (CAP. 322). 49
The Trade Union Act, 1998 (RE: 2002), and the Employment and Labour Relations Act, and the Labour
Institutions Act of 2004.
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1.3.1 Principal objective
The study addresses legal challenges and issues facing the TPSI. In doing so, the study
makes a critical analysis of the institutional framework and incidental laws to PSCs
activities in Tanzania.
1.3.2 Specific objectives
First, the study analyses the establishment and regulation of PSCs in Tanzania. In the
same vein, the study questions the constitutionality of PSCs‟ existence and operation.
Second, the study scrutinises „security commercialism‟ in the light of inherent
constitutional rights to security of the person and property, and the implication of PSCs
on the National Security.
Third, the study examines the TPSI. In that regard, issues pertaining to integrity and
quality of PSCs‟ staff, possession of firearms, labour standards, employment of ex-
members of armed forces in PSCs and running of PSCs by members of armed forces as
well as the national intelligence service are discussed.
1.4 Significance of the Study
In terms of advantages, the study has accomplished the following;
First, the study is an added literature to this area of study where there is no reading of
such kind written in Tanzania, taking into consideration that now there is a specific
degree program on law enforcers offered by the School of Law - University of Dar es
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salaam50
. Undoubtedly, the study will widen people‟s understanding of the PSI and its
role in Tanzania security system.
Second, the study acts as a base in framing laws and policies as well as reviewing
practices as to regulation of PSCs in Tanzania. This is possible, since the study has
pointed out legal issues in the TPSI.
Finally, the study enables readers to appreciate this new area of policing cooperation
between the Police Force and PSCs in fighting crimes (i.e. public-private partnerships).
The study further addresses society‟s perception of PSCs (and security guards) in crimes
prevention and involvement. Notably, the study critically brings into light the
constitutional rights to security of the person and property in the era of „security
commercialism‟, as well as the debate as to the constitutionality of PSCs‟ activities.
1.5 Hypotheses
Within the parameter specified above, the main research hypotheses of this study are:
1. Whether the existence of PSCs and their activities in Tanzania is
unconstitutional?
2. Whether commercialisation of security services and the way PSCs operate have
affected the constitutional right to security of person and property in Tanzania?
3. Whether a regulatory framework of PSCs should be erected?
50
Bachelor of Art Law Enforcement (BALE).
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1.6 Literature Review
I should start by pointing out that Weber51
in his classical definition of „the state‟
maintains that the „state‟ holds a monopoly on the exercise of legitimate violence to
ensure social order. To Weber, the protection of the state's sovereignty and the
protection of the social order are two indispensable aspects within a state. It is through
the state‟s securing a particular area that guarantees its sovereignty. However, Bislev52
rationalises Weber’s notion by saying;
The state is not only an institution for maintaining order, but is also
a creature made or accepted by citizens because they need it for a
purpose: to build a civil society. From this perspective, security
receives a new meaning: society is an association of citizens, and
the maintenance of security is a necessary function for that
association, something without which it cannot exist and thrive.
Security is not only the physical protection of a regime and its
associated social order, but also a political function benefiting civil
society. Without the state to ensure basic security, there would be
no civilization, no civil society.
Bislev appraises the changing nature of the state, mainly how globalisation has impacted
even traditional core area of public security. Bislev asserts that privatisation of security
at local level involves different kinds of private self-protection whilst at the international
level it goes all the way to the hiring of private armies. He also focuses on the change in
police work from fighting crime to managing security and, the growth of gated
communities (Private Security lifestyle).
51
In Gerth & Mills (Eds.) (1946) From Max Weber. 52
(2004) Globalization, State Transformation, and Public Security.
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With that conception of the state‟s role in security therefore, let us now look at the basic
readings on the study at hand. It should however, be known that there is no reading on
the PSI written in Tanzania perspective or by Tanzanian authors save for short, indirect
and rare newspaper articles. However, there are many authors in Sub-Saharan Africa and
worldwide who have endeavoured to write on the subject as follows;
On the origin of private security as opposed to public security, Lipson53
argues that the
former preceded the latter. To him, private security emerged when a man began to
domesticate animals and own private properties. Thus, by using dogs, man safeguarded
his possessions from both human and animal marauders or raiders and also kept them
from wandering. With the rise of trade and nations, public security acquired primacy,
thus military and Police Forces were raised to keep law and order as well as to secure the
safety of the ruler. The author reveals that during Victorian epoch54
there was a greater
reliance on public police to protect both persons and property, with a diminishing use of
private guards and watchmen, especially in Great Britain. However, in 20th
century, the
private security as a distinct industry re-emerged as an outcome of the Second World
War and reduction of governments‟ spending on social services. This reading is crucial,
as it discloses how security actors, both public and private came into existence.
53
(1988) Private Security: A Retrospective. The Private Security Industry: Issues and Trends. 54
20th
June 1837 to 22nd
January 1901.
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Another historical approach on the subject is taken by Ortiz55
who observes that PMCs
activities in Europe and their colonies date back in early 17th
and 18th
Centuries, at the
eve of „Commercial Capitalism‟. The charters of overseas trading enterprises allowed
companies to raise their own forces to accompany them on a risky voyage abroad. He
concludes that such forces maintained by overseas trading companies constitute the
closest historical antecedent to PMCs and can be regarded as PMCs in embryonic form.
This work is important as it shows how colonial chartered companies such as Imperial
British East African Company, and Deutsch-Ostafrikanische Gesellschaft (Imperial
Germany East African Company) protected themselves in new worlds like East Africa
and how these companies paved the way to the modern day PMCs.
Sabelo analyses the private security sector in Africa, in terms of its emergence, growth
and major challenges56
. However, the author doubts as to the contribution of PMSCs in
the security of Africa. The author justifies his stance by citing a number of challenges in
the security industry in Africa, some of the challenges being the tendency of PSCs to
maximise profit, mercenarism, and engagement of PMSCs in armed conflicts or
peacekeeping process. At the end, he affirms the need of private security industry, but it
must be effectively controlled and regulated for the betterment of human security. He
argue that many African countries have downsized their armed forces as a way to
implement conditionality of the Structural Adjustment Programmes (SAP) which, inter
55
Overseas trade in early modernity and the emergence of Embryonic Private military Companies, (2007)
in Jager & Kummel (Ed.) Private Military and Security Companies: Chances, Problems, Pitfalls and
Prospects. 56
(2008) The private security sector in Africa: The 21st Century‟s major Cause for concern?
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alia, urge the Third World countries not to spend much in provision of social services by
allowing private actors in the economy. The move of downsizing armies in Africa comes
as a result of the security sector being sorted out as a big spender of tax payers‟ money
and donor funds. Sabelo in another article branded as „Pouring old wine into new
bottles? The debate around mercenaries and private military and security companies‟57
reiterate his position above and suggests the need to distinguish between PMSCs and
mercenarism. This is because, usually, PMSCs operate legally while mercenaries are
outlaws, though in some instances PMSCs may become mercenaries and thus illegal.
Again, Sabelo takes another twist on the subject in his work titled as „Addressing the use
of private security and military companies at the international level‟.58
He writes on the
use of PMSCs services in Africa‟s conflict and post-conflict situations. The underlying
notion of his work is that the use of PMSCs in conflict and post-conflict situations is
here to stay due to the fact that PMSCs have become indispensible non-state actors
whose services have become an integral part of security and military arrangements. In
short, his paper covers two aspects; first it provides an analysis on the use of PMSCs and
challenges such as violation of human Rights when engaged in combat zones or
peacekeeping mission, lack of effective regulatory framework and mercenarism.59
Second, it presents an international perspective on how best to address the challenges
associated with the use of PMSCs with particular focus on the UN Draft Convention on
57
Sabelo, G. (Ed.) (2008) Elimination of Mercenarism in Africa: A need for a new Continental Approach. 58
ISS Paper No. 206, November 2009. 59
The coup plot in Equatorial Guinea aimed at toppling President Teodoro Obiang Nguema and seizing the
country‟s oil riches; and civil war in Liberia and Sierra Leone.
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PMSCs. The author urges statesmen to put in place an International Code of Conduct for
PMSCs and to include an unequivocal clause which prohibit mercenarism in the UN
Draft Convention on PMSCs.
Furthermore, Sabelo60
in one of his monograph series, titled Private Security in Africa:
Manifestation, Challenges and Regulation compiles a number of papers written in
African perspective by African scholars on the subject. In short, the monograph
addresses key issues such as the state of insecurity on eve of PMSCs. It also exposes
challenges such as poor regulation of Private Security Industry, definitional challenges,
breeding of mercenaries, lack of professional standards and accountability of PMSCs in
Africa. The above views are also embodied in his policy paper written under the
auspices of the African Union61
.
The above works by Sabelo contribute meaningfully to this research as they offer a
„matrix approach‟ i.e. regulatory schemes at the national, regional and international
levels as well as at sector level in regulating PMSCs. They also furnish this study with
historical insight, definitions, functions and operation of PMSCs. Finally, they lay a
plain ground in comparing PSCs‟ legal frameworks and activities in Tanzania and South
Africa. However, Sabelo’s works address the theme of PMSCs with much reference to
South African laws and international (humanitarian) law, and the practice elsewhere
with exclusion of Tanzania which is the focal point of this study. Besides, the author in
most of his works did not treat PSCs and PMCs separately. Therefore, PSCs which is the
centre of my study did not receive a fair treatment in Sabelo‟s works.
60
ISS Monograph Series, November 2007. 61
(2008) Regulation of the Private Security Sector in Africa.
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Alemika62
groups private security providers in Africa into two, namely as the individual
private security guards and the corporate private security companies. The author links
the growth of private security companies in Africa to the size of the economies of a
respective country. He submits that the growth of private security companies does not
necessarily imply police inefficiency but rather the growth of private enterprises and
property for which private policing is more appropriate and efficient. The importance of
Alemika‟s work is that [it] draws examples even from Tanzania though in a nutshell.
However, the theme of PSI was not a focal point of Alemika‟s work but just as an
incidental aspect of modern policing. In my view, if good security services are available
to those who can afford them, it means the state is failing. According to eminent
Tanzanian theologian, Fr. Magesa, one of the signs of a failing state is inequitable
security services (lack of reliable internal security)63
the problem which is evident in
Tanzania.
Another co-authored paper pertinent to my study is that of Schreier and Caparini, titled
Privatising Security: Law, Practice and Governance of Private Military and Security
Companies.64
This is one of the constructive, broad and relevant papers that I have
reviewed. It covers a range of legal and practical issues on the private security industry
in third world and developed countries, taking both municipal and international
dimensions. In short, their work answers questions such as „what‟, „when‟ and „how‟
62
(2009) Police practice and police research in Africa. 63
“Failing States in Africa.” <http://www.newsfromafrica.org/newsfromafrica/articles/art_861.html> last
visited on 30th
/08/2010 at 10:29 am. Brooks, R.E. (2005) Failed States, or the State as Failure?. 64
Geneva Centre for the Democratic Control of Armed Forces, Occasional Paper - No. 6, March 2005.
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„why‟ PSCs/PMCs. They also outline major concerns such as marginalisation of the poor
in the security system, loss of state‟s monopoly over the means of force, mercenarism,
easier waging of wars by the use of PMCs (Dogs of war) and poor regulation of the
security industry. However, their paper is too general and did not address specific
problems in the TPSI.
Another attempt to deal with the subject of the PSI was made by Dietrich65
. His work
gives an insight of the emergence of PMSCs and commercialisation of military
deployment in Africa. To him, private security industry in Africa is an outcome of
foreign investment in mining industry especially in war-torn areas. In that, PMSCs
emerged in countries like Sierra Leone and Liberia as a result of civil wars and
instability which left such states being weak and incapable of providing reliable security
in vital areas of economy (mining sites). In turn, such weak sovereign (failing states)
legitimised and collaborated with foreign security actors (PMSCs) whose presence
secured patronage payments from mineral resources while using them physically to
strengthen their position. He argues further that such triangular system of profit-sharing
has transformed the international problem of securing destabilised, mineral-rich states
into a viable business activity to the benefit of all parties.
In my view, Dietrich‟s work does not tell us as to why the private security industry is
also an integral part of some countries which have no viable mining sector. Besides,
many countries have accepted PSCs to complement police functions and not military.
65
(2000) The Commercialisation of Military deployment in Africa.
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Bearpark and Schulz in their article named as „The Regulation of the Private Security
Industry and the Future of the Market‟66
suggest three ways of regulating PSCs. The first
way is by framing specific laws of the industry through the parliament and designates
regulatory powers in a respective body. The second way is to obligate the Industry to
have a „centralised‟ Association of all private security actors with specific rules adopted
by all members (i.e. self-regulation approach). Finally, is by having international
Convention and/ or a Code of Conduct governing transnational activities of PMSCs.
This work has proved to be useful especially on how PSCs‟ regulatory framework can
be erected. Also their work has acted as a springboard in comparing PSCs‟ laws and
activities in Tanzania and UK. However, their work focuses on the regulation of PSCs in
the UK, though it mentions Sub-saharan Africa in some aspects67
.
Another work is „Privatisation of Security in the Post-Cold War Period: An Overview of
its Nature and Implications‟ authored by Chakrabarti68
. It covers inter alia the rise of
PMSCs, definitions and functions of PSCs. His work also examines the impact of
PMSCs engagement in conflict or war zones69
as contracted combatants or
peacekeepers. He says, this has formed a multiple centres of authority as state and
territorial based systems of governance is shifting to a more polyarchical, non-territorial
and networked relations which bring together governments, NGOs, military
establishments, and private companies (PMSCs).
66
In Chesterman & Lehnardt (Ed.) (2007) From Mercenaries to Market: The Rise and Regulation of
Private Military Companies. Oxford: Oxford University Press. 67
Schulz, S. (2008) Good, the bad, and the unregulated. Banning mercenarism and regulating private
security activity in Africa. In Sabelo (Ed.) Elimination of Mercenarism in Africa: A need for a new
Continental Approach. 68
Institute for Defence Studies and Analyses, December 2009. 69
„Private contractors‟ in Iraq, Southern Sudan, Afghanistan and Haiti.
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As to the rise of PMSCs, Chakrabarti contends that it is a result of interventionist
policies by the Western states, particularly the United States which employ a cost-
effective method of ensuring domination. Therefore, to him, the trend towards privatised
security represents the „new face‟ of neo-colonialism disguised in neo-liberal market
policies through „corporate mercenarism‟. Chakrabarti deals with the Private Security
Sector in Asia, especially India.
On the area of policing cooperation between the police and PSCs, Minnaar70
writes on
the South African model. In South Africa, the National Crime Prevention Strategy
(NCPS) provides for partnerships between the public and private sector under the
programme of environmental design and maintenance. He points out that the private
actors and Business Against Crime (BAC) have tabled a partnerships proposal before the
South African Police Service (SAPS) and Security Officers Board (SOB) to allow PSCs
to transport prisoners, to serve summonses, to exchange information on crimes with the
public actors, to monitor adherence of bail conditions and also private security officers
to be declared as peace officers and appointed as members of the police reserve force.
The author explores unresolved aspects that prevents private-public partnership in
policing, namely as divided loyalty, inadequate firearms control, possible misuse of
crime information, corruption, involvement in crimes by guards, uniform wearing, poor
training of security personnel, poor flow of information, payment for services and so
forth. Finally, he suggests an effective regulation and review of the law for a meaningful
70
(1999) Partnership Policing: A Role for the Private Security Industry Security Industry to Assist the
SAPS in Preventing Crime?.
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partnership to be realised. This work is central to my study as it traverses problems also
common to the TPSI. Such problems may be listed as poor private-public policing
partnerships, outdated possession and use of weapons‟ policy, limited role and privileges
of private security guards. This work is also vital in comparing South African model of
private-public partnerships in policing activities and that of Tanzania.
Overman71
embarks upon the selection of personnel in the private security industry. The
scholar argues that it is very rare (in the US) for private companies to take security
consideration in the hiring process. He cites lack of proper follow-up and poor keeping
of records as major reasons. Finally, he suggests proper genetic and biological
screenings, background investigation and effective scrutiny of criminal records and
employment history of prospective employees. This may be true in Tanzania as people
with bad criminal or employment records may be hired as private security guards by
PSCs. All in all, this research will analyse the said challenges in Tanzania context.
Perrin72
aligns the PMSCs activities to international humanitarian law, international
relations theory, criminology, economics, corporate strategy and political economy,
psychology and sociology. The author examines the danger posed by private military
and security company activity with respect to violations of international humanitarian
law and human rights, in that regard he presents a list of evidence to substantiate his
stance. Finally, he assesses quasi-judicial measures adopted to deal with PSCs/PMCs.
71
(1988) Personnel Selection in Private Industry: The Role of Security. 72
(2006) Promoting compliance of private security and military companies with international
humanitarian law.
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Perrin‟s article though elucidative on this study, covers PMSCs‟ activities in combat
zones or peace-keeping mission (as humanitarian team) which is not the case in
Tanzania.
Brabant73
examines the image of PSCs in the society. He suggests that if PSCs want to
be perceived as legitimate and respectable enterprises, they must prove their integrity
and credentials. To achieve that, he points out that they have to develop a code of ethics
that is convincing both in principle and in its application. Also, they must demonstrate
sufficient transparency and accountability to convince sceptical observers and potential
clients that they are not hiding facts that would contradict the image that they portray.
Brabant‟s approach on PSCs is quite helpful on my part as chapter four deals with the
image of TPSI in the society and the issue of professionalism.
Schiller and Harris74
in „the Legal Liability of a Private Security Guard Company for
the Criminal Acts of Third Parties: An Overview‟ discusses legal principles governing
criminal and civil liability of PSCs. Illustratively, the author argues that the duty of
reasonable care is owed by the private security company to wide classes of persons,
including customers and employees of the business by which it was retained. Further,
that since PSCs are retained to prevent threats of criminal acts by third parties such
criminal acts are foreseeable. Therefore, due to such foreseeability, the law imposes
monetary liability upon a PSCs whose failure to meet the standard of reasonable care
was a factor in permitting the criminal act to take place. This article is quite useful as it
73
(2002) Humanitarian action and private security companies. 74
(1988) The Private Security Industry: Issues and Trends. ANNALS, AAPSS.
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gives an insight on standards of conduct imposed by the common law on PSCs. In the
case of Tanzania, common law principles may be useful since at the moment we do not
have specific legislation on the TPSI.
Another illuminative work is by Shearing and Stenning75
in which the two scholars
consider development and significance of modern PSCs in various countries and its
implications for the nature and scope of policing in those societies. They have discussed
so far problems in defining PSC, growth of PSCs in a number of jurisdictions, the role
and functions of PSCs as well as co-existence of PSCs and the Public Police. The article
then turns to the nature and scope of legislative responses to the development of PSCs in
various countries. At the end, they outline general implications of PSCs for the public
policing and the criminal justice systems. In the same vein, they point out critical issues
of PSCs systems and normal systems of justice in respective countries. Shearing and
Stenning76
in another paper referred to as „Private Security: Implications for Social
Control‟ trace the development of private security industry in Canada and the US since
1960 and examine the reasons for its present popularity. They also explore essential
features of the sector and features i.e. it is non-specialised, victim-oriented, and relies on
organizational resources as sanctions. They conclude that private security is having a
major impact on the nature of social control.
Their works shade light on the regulation and practice of the PSI in Europe which is part
of my case study. The only problem with the two articles is that [they] were written at a
75
(1981) Modern Private Security: Its Growth and Implications. 76
(1983) Social Problems: University of California Press, Thematic Issue on Justice.
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time when the Private Security Industry were emerging thus lacks the current dimension
of the sector. Besides, the said works dwelt much on western countries.
Loader77
defends the idea that security is a needed good rather than a tradable
commodity. In that sense the author warns us on the danger of private policing as it may
lead the society to social divisions.
Likewise Caparini, et al78
in another paper analyse the regulation of PSCs at the
European level. The paper covers roles and tasks of PSCs, links between PSCs and
public police, control and accountability of PSCs, licensing of PSCs‟ personnel,
selection, recruitment and training of PSCs‟ personnel, identification of PSCs‟
personnel, use of force and firearms of PSCs‟ personnel, search and seizure powers of
employees of PSCs. Admittedly, some of the listed aspects above will also be addressed
in this study but in Tanzanian context.
Bjork and Jones79
in Overcoming Dilemmas Created by the 21st Century Mercenaries:
Conceptualising the Use of Private Security Companies in Iraq, contextualise the use of
PSCs for reconstruction in Iraq and how it has affected humanitarian efforts and
exacerbated conflicts. It is argued by the two authors that NGOs and PSCs working in
the private sector need to distance themselves from military campaigns to limit the
violent consequences of negative perceptions. As the title suggests, their article focuses
on PSCs practices in Iraq.
77
(1997) Thinking Normatively about Private Security. 78
(2007) Regulating Private Security in Europe: Status and Prospects. 79
In The Reconstructing Post-Saddam Iraq: A Quixotic Beginning to the `Global Democratic Revolution
(2005).
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As we have seen, there are number of authors/authoresses on the subject at hand, but
none of them has addressed Tanzania position. It also transpired that large sections of
the authors/authoresses have described PSCs activities as militarising rather than
policing. Besides, some of the literature is either obsolete or rigid. This study contributes
to the above literature by addressing key issues like the right to security of persons and
property, PSCs and the state of security as well as challenges relating to private-public
policing partnerships, regulation of the security sector, labour standards and firearms‟
law in Tanzania.
1.7 Research Methodology
The study has employed three methods in collecting data i.e. Library, Internet and Field
Research.
1.7.1 Library Research
The study used and analysed library resources such as textbooks, journal articles,
monographs, principal and subsidiary legislation, international conventions and
declarations, and law reports. Therefore, the study perused materials from the UDSM
library and Police Force archives. The library review enabled this study to make an
analytical comparison between Tanzania institutional framework and other jurisdictions
with the Private Security Industry (PSI).
1.7.2 Online/Electronic Research
Online resources were used from reliable online catalogues and archives especially
JSTOR. The JSTOR is chosen because; it is an online archive that contains reputable
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Journals (and texts) on law such as Harvard, Oxford, Yale, Chicago and Cambridge.
Unlike other online archives which require subscription and payment, the access to
JSTOR is guaranteed by the UDSM. The study also made use of resources from
reputable international online archives namely as ISS, Wiley, SAGE, and SpringerLink.
Likewise, websites of various local and international organisations, parliaments and
scholars were visited so as to get contemporary and viable data on the subject as well as
some historical insights in the area of private policing. Admittedly, online archives
proved to be more useful than opaque resources, since they have most recent resources,
data and new dimensions in the PSI world wide.
1.7.3 Field research
Field data was collected in Dar es Salaam where most of the big PSCs and their potential
clients, Police Force, Ministries and NGOs are headquartered.80
Strategically, the study
also made use of field data from Mbeya and Dodoma. In collecting data various research
tools were employed, but notably unstructured face-to-face interview and
questionnaires/opinionnaires were used to solicit data from PSCs‟ stakeholders and
policy/law makers. Telephone Interview was also used to seek data from interviewees
who are outside Dar es Salaam or can not be reached physically though they are in Dar
es Salaam. The researcher in certain instances used an observation method so that
discreetly to see how PSCs‟ personnel dress and equip in discharging their duties. In
particular, the study sought information as to the public‟s knowledge of PSCs, plans of
regulating PSCs, crime rate and security concerns in the eve of PSCs, public-private
80
The interview protocol annexed at the end.
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partnerships, and future prospect of the PSI. Certainly, the said research tools and
methods furnished this study with data from both educated and uneducated interviewees.
1.8 Limitations of the Study
First, the sum (i.e. Tshs.1,000,000/-) allotted by the sponsor for the research could not meet
all needs required to conclude the study. Besides, it became difficult to employ modern
technology in collecting and analysing data, and to secure assisting staff in the whole
process of data collection due a limited budget. Somehow, budget constraint affected
outcomes of the study and consumed much time.
Second, to access data in reliable websites, in most cases, required registration
(subscription) by paying in terms of US Dollars. Therefore, with scant resources fixed for
this study, it was hard to utilise some of the online materials.
Third, lack of academic works written in Tanzania on the subject made an exploration of the
study a bit harder. Besides, literature written abroad on the subject is not always available at
UDSM main Library since there is no course on PSI offered at UDSM.
Fourth, as the study at hand involves security issues, especially in the area of public
policing, the police and TSIA (The Tanzania Security Industry Association) were always
reluctant to provide „classified data‟, in some way, this affected data collection process81
.
Finally, the University‟s rule „not to exceed 110 pages‟ in writing a dissertation affected my
way of presenting data and limited my explanations.
81
TSIA leaders refused to be interviewed or even to allow me to have access to their Constitution (which I
believe is a public document) claiming to be confidential and security sensitive.
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1.9 Scope of the Study
The study focuses on PSCs as opposed to PMCs. The first chapter introduces the study by
covering background information, key terms and define parameters within which the study
is addressed. The second chapter discusses legislative and institutional framework on the
PSI. Therefore, it covers establishment and operation of security business in Tanzania, risks
of unregulated PSCs as well as an unconstitutionality of PSCs in Tanzania. The third
chapter underpins the concept of privatising security in the wider umbrella of human rights
and the implication of privatisation of security services to human security. The fourth
chapter highlights various legal issues (challenges) in the PSI, whilst the fifth chapter
summarises pertinent arguments which transpired throughout the study in the light of the
study hypotheses. In short, the second chapter dwells on the first hypothesis, whilst the third
chapter addresses the second hypothesis, whereas the fourth chapter expounds the third
hypothesis. The primary field area of the study was Dar es Salaam, while Dodoma and
Mbeya were secondary.
1.10 Conclusion
This chapter introduced the historical trends of policing in Tanzania and also explored
profoundly the traditional aspects of a Research proposal, namely as Back ground to the
study, Statement of the Problem, Research Objectives, Hypotheses, Research
Methodology, Literature Review, Limitation and scope of the Study. Fundamentally,
this chapter has shaped and thus laid a foundation and conceptual framework within
which the subsequent chapters are discussed.
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CHAPTER TWO
CONSTITUTIONAL, LEGISLATIVE AND INSTITUTIONAL FRAMEWORK
OF THE PRIVATE SECURITY INDUSTRY
2.0 Introduction
Though the Private Security Industry is a fast growing area of socio-economic service, it
seems to be forgotten by policy and law-makers in Tanzania. There is a wide gap
between the role (position) of PSCs and the quasi-regulatory framework erected to
regulate PSCs‟ activities in Tanzania.
This chapter presents two major arguments; One, that ineffectively regulated PSI is a
breeding ground for mercenaries which in turn may act as springboard or stepping stone
to destabilise peace and order of the country. Two, that the Constitution of Tanzania
(infra) do not envisage private actors in the area of policing, thus allowing PSCs to
operate in Tanzania amounts to unconstitutional delegation of exclusive powers of the
state.
2.1 Growth of the PSI and Risks of Unregulated PMSCs
Globally, the emergence and proliferation of the PSI is attributed to: one, the end of the
Cold war in 1980s which culminated in disarmament, downsizing of public armed
forces82
. Two, political instability and failure of many Third world states (i.e. failing
82
Thompson, G.L. (2002) „Army Downsizing following World War I, World War II, Vietnam, and a
Comparison to Recent Army Downsizing‟, p. 8.
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states83
) thus resorting to PMSCs and mercenaries to keep peace and order. Third, public
panic over crimes and terrorist attacks and the US‟s war on terror has also played a great
role on the expansion of the PSI84
. For now, the transnational security business has
changed from being an alternative to policing services to a more sophisticated military
operation under the control of individual civilians.
The existing challenge at the international arena is how to regulate increasing activities
of PMSCs under international human rights and Humanitarian law regime. In armed
conflicts (war zones) PSCs are contracted by governments as combatants (Private
Contractors or Dogs of war or guns for hire) and peacekeepers85
. At the moment, there
are three major problems associated with activities of unregulated PMSCs namely,
mercenarism, lack of PMSCs accountability in their operations, and violation of people‟s
and human rights especially the right to self-determination.
There are ample examples in Africa and other part of the world as to how PMSCs have
turned out to be mercenaries, human rights violators86
and thus destabilise peace and
security.
For instance, in the struggle for political power in Zaire (now, Congo DRC) between
Mobutu Seseseko and Laurent Kabila, the duo were said to involve mercenaries who
83
Governments which can not ensure security of their citizens or contain insurgency thus resorts to
imported „contractors‟ or mercenaries to keep their power. The failing states are characterised with
internal conflicts and unreliable internal security. 84
Fischer, R.J. et al (2008) Introduction to Security, 8th
ed., pp. 3-25, 478-485. 85
Gainer, J. (2010) "The Business of War: A Content Analysis of Private Military Companies' Websites".
Applied Research Projects, Texas State University-San Marcos, Paper 337
<http://ecommons.txstate.edu/arp/337> last viewed on 06/07/2011 at 12:43 Hours). 86
Recently, the uses of PMSCs in armed conflicts have come under attack following the CACI and L-3
Services (formerly Titan Corporation) involvement in torturing of Iraqi detainees in Abu Ghraib Prison.
Further report shows that on 16/09/2007, Blackwater‟s (now, Xe) personnel killed 17 innocent civilians
and injured more than 20 others in Nisoor Square - Baghdad including children and women.
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operated as private security firms in Johannesburg or London to crush one another87
.
The same tactic was employed by Pierre Bemba who had private guards to protect his
interests in Congo DRC. While in Congo Brazzaville, Denis Sassou Nguesso formed
„cobra militia‟, Paschal Lissouba formed „cocoye militia‟ and Benard Kolelas and
Frederic Bintsangou formed „ninja militia‟88
. Further, in 2006 police in Congo DRC
arrested and deported security personnel (mercenaries) who worked for Omega Security
Solutions (a South African PSC) and AQMI Strategy Corp. (an American PSC) who
were accused of plotting a coup89
. Another known example is the Executive Outcomes
(EO), a PMSC formerly stationed in South Africa (now in London) which played a big
part in Angolan and Sierra Leonean civil wars as combatants90
. There is also evidence
that some of the mercenaries who engaged in 2004‟s coup plot in Equatorial Guinea
were employees of PMSCs known as „Meteoric Tactical Systems‟ and Steele
Foundation91
. Moreover, in 1995, Colonel Bob Denard used private security personnel
from his company known as „Sogecom‟ and mercenaries to wage a coup in Comoros.92
87
(2004) „The Privatization of Security in Sub-Saharan Africa‟. In Africa South of the Sahara, by Robert
Stock (Ed.), Europa Publications Ltd, New York: 33rd
Ed., PP. 29-31 (Activities of Geolink Co., and Silver
Shadow activities in Congo DRC). 88
Bazenguissa-Ganga, R. (1999) „the Spread of Political Violence in Congo-Brazzaville‟. In the African
Affairs, Oxford University Press: Vol. 98, Issue No. 390, PP. 37-54. 89
Wikipedia <http://en.wikipedia.org/wiki/Private_military_company#PMC_activities_elsewhere> last
visited on 20/12/2010 at 15:48 Hours. 90
Wikipedia <http://en.wikipedia.org/wiki/Executive_Outcomes> accessed at 15:53Hours, on 20/12/2010. 91
Gomez del Prado, J.L. (2010) The Privatization of War: Mercenaries, Private Military and Security
Companies (PMSC): Beyond the WikiLeaks Files.
<http://www.globalresearch.ca/index.php?context=va&aid=21826> browsed on 20/12/2010 at 17:17
Hours. 92
<http://xenohistorian.faithweb.com/africa/af09a.html> accessed on 20/12/2010 at 17:54 Hours.
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Despite human sufferings caused partly by activities of PMSCs in Africa and elsewhere,
there is no international Convention on PMSCs93
. In Africa, the existing OAU
Convention for the Elimination of Mercenarism in Africa94
has proven to be toothless
and ineffective to regulate PMSCs‟ activities (i.e. mercenarism). Again, activities of
PMSCs‟ personnel who take part in combat zone are not envisaged by the existing 1949
Geneva Conventions95
and the International Convention against Recruitment, Use,
Financing and Training of Mercenaries96
.
My submission is that, unregulated PSCs may be used as a stepping stone in waging
coups which in most cases end up in political turmoil and insecurity. This is possible
since, PSCs have more personnel, possess and use firearms, PSCs‟ personnel execute
their duty under the command of their employers and most importantly they have access
to modern technology compared with civilian armed forces.
2.2 Laws on Private Security Industry in Tanzania
There is neither a specific piece of legislation nor statutory (regulatory) authority that
governs activities of the TPSI. However, multi-dimensional approaches have been
93
Save for the UN Draft International Convention on the Regulation, Oversight and Monitoring of Private
Military and Security Companies, 2009 (not yet in force), and the International Code of Conduct for
Security Service Providers (ICoC) 2010 (a non-binding document adopted by the world‟s leading PMSCs
pledging to respect human rights and the rule of law in conflict zones). The relevancy of the ICoC to
Tanzania is that, some PSCs which offer services in Tanzania like KK security and G4S plc and many
others have also signed it. 94
It was adopted in Libreville, Gabon on 3rd
July 1977, and come into force on 22nd
April, 1985. The Draft
Convention on the Prevention and Suppression of Mercenarism (Draft produced by the International
Commission of Inquiry on Mercenaries, in Luanda, Angola, June 1976). 95
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), 8 June 1977. 96
4th
December 1989; entered into force on 20 October 2001.
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adopted in dealing with PSCs. Since the police are traditional peace and order keepers
have automatically emerged as the controller and regulator of PSCs in Tanzania.
Therefore, to keep up with the expansion of the PSI, the Police Force uses caretaker
regulations and the force‟s own law to supervise activities of PSCs in Tanzania97
.
2.1.1 Establishment and Regulation of PSCs
PSCs are registered like other business entities as per the Companies Act98
. However,
there are procedural steps the holder of a certificate of incorporation is required to fulfil
to be permitted by the Inspector General of Police (IGP) to provide security services in
Tanzania. However, to set up a security business is different from normal business
enterprises. This is because before allowing a PSC to operate some security issues need
to be taken into consideration. In addition to conditions under the Companies Act (ante),
the applicant must meet other criteria set by the Police Force. Usually, PSCs start to
provide security services in Tanzania after being issued with a police permit by the IGP.
But, before a PSC is given a permit to operate in security business, must fulfil the
following requirements:-
Foremost, an applicant after consulting the District Defence and Security Committee
(DDSC) will be required to fill an application form99
and send it to the Regional Police
Commander (RPC)100
. The problem with this practice is that the DDSC is not created
under any law, thus its powers to deal with security issues becomes illegal.
97
Ibid. 98
Act No. 12 of 2002. 99
Such application forms (and other related forms) are not made pursuant to any written law whatsoever. 100
Appendix A, B & J.
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Further, the application form requires an applicant (normally, owners/directors of a
company) to provide personal address, employment and education background,
experience in the sector of security, to specify security services he or she intends to
offer, army profile, names and details of company‟s directors101
, list of shareholders,
particulars of firearms in their possession, names and particulars of two guarantors
(sureties)102
, office location, a declaration of a company‟s financial status and other
material possessions, especially land103
.
After filling the application form, the applicant will be required to attach; CV of
company‟s directors, a copy of ERV, finger prints of company directors (applicants),
Memorandum and Articles of Association, a copy of certificate of incorporation issued
by BRELA, Business licence, a copy of TRA‟s TIN, four passport size pictures of
company directors, a copy of bank statement, sample of the colour of the uniforms, and
evidences of payment of all application fees for further scrutiny104
. In the due process,
the RPC will inspect applicants‟ proposed business premises (office), firearms and
storage facility. Finally, a special police committee will be formed to work on the
application and recommend to the IGP whether to issue a permit to an applicant/s or not.
My first concern is that after a PSC is issued with a Police permit no government agency
or institution is directly in charge of its activities. Besides, most of the PSCs are
established, owned and operated by current serving members and ex-members of the
101
Must have worked in security related areas, e.g. the armed forces and National Intelligence Agency. 102
Especially, Officer Commanding District (OCD) or his representative to TSIA. 103
Appendix A & B. 104
Ibid.
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armed forces with political influence thus, in one way or another, blocking any move
towards effective regulation of the TPSI. For example, Haroun Mahundi, Philemon
Mgaya, Omari Mahita (ex-IGPs), Adadi Rajab (ex-DCI)105
, to mention just a few, own
PSCs which have secured lucrative contracts with foreign embassies and big commercial
enterprises106
.
My second concern is how these public officials draw a line between their private
policing tasks (otherwise to manage their companies and personnel) and public policing
tasks. To me, there are three problems arising here, namely as conflict of interest, the
likelihood of using public offices for personal gain and different loyalty. Since PSCs are
regulated by the Police Force, at the same time, within the PSI we have Police officers
who own PSCs and have access to information relating to PSI, this practice may lead to;
one, misuse of crime information especially where such information is against their
commercial interests. Two, they may use intelligence information against rival firms or
for blackmailing potential customers to accept their services or to protect interest of their
customers. Third, it may lead to disclosure of vital security information to criminals and
gangs. Further, for police officers who holds senior post such as IGP and DCI to engage
in security business may, first compromise their impartiality in making or passing
decision relating to regulation of PSI especially in issuing guidelines or advocating for
new laws. Second, if a PSC owned by a police officer falls in any public scandal may
105
Appendix D. 106
Interviews with several officials in the Department of Community Policing, Police headquarter - Dar es
Salaam, on 16th
, 19th
, 23rd
, 30th
November, and 6th
December 2010. Interviews with Abdalah Msagama
(Chairman – TUPSE) and Augustino Rupia (Acting Secretary – TUPSE) on 02/05/2011 at TUPSE
Headquarter, Dar es Salaam.
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bring the respective officer to disrepute and ultimately the public may lose confidence in
the Police Force. This is because police officers are said to stand in fiduciary
relationship to the general public107
.
The registration process as we have seen above has a number of weaknesses compared
to international standards in regulating PSCs. Some of those weaknesses are;
One, the police has not made it clear as to whether for one to be permitted to offer
security services must be registered as a company, or even business entities (structure) in
a form of a partnership, Trust, Foundation, and sole trader (registering a business name)
can be registered as security service provider108
. What we see is that usually the police
require a certificate of incorporation from BRELA, this practice forces people who are
interested in security business to form companies even though they may be
uncomfortable to do business through a company.
Two, the application form for a police permit do not probe into the applicants‟ medical
background. It is possible under the current arrangement for psychopaths, drug addicts,
alcoholics, recidivists and people with serious impairment of eyesight to own and
operate PSCs.
Third, tendering of a bank statement is not conclusive evidence as to the financial status
of the applicant. I would have suggested a written reference from a registered financial
107
Section 21 of the Police Force and Auxiliary Services Act (CAP. 322) prohibits police officers to
engage in any other employment or office without permission of the IGP. 108
Section 4 of the Business Names (Registration) Act, CAP. 213 (RE: 2002) allows registration of names
of individual person, body corporate, firm and partnership.
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institution that evaluates an applicant‟s financial status for the past two years. The
essence of this requirement is to prevent people with insufficient capital to operate as
security service providers. Let us not forget that this sector also obliges PSCs to pay
wages to employees of a company, pay taxes and to buy equipments. One of the
interviewees said that the problem of many PSCs (especially those owned by ex-
members of the armed forces who essentially have no business experience) want to
operate at zero cost109
.
Fourth, in the process of issuing a police permit, the general public is not involved. An
applicant, among other things, would have been required to place an advertisement in a
daily newspaper stating the nature of the business, name of directors and guarantors, and
thus allowing the public to raise objection pending the issuance of the police permit110
.
Fifth, the current registration process does not require the applicant to present his
business plan for a certain duration, ex-members of the armed forces do not attach
certificates of good character and letter of discharge, serving members in the armed
forces and other public offices are not barred to engage in security business and there is
no requirement of taking insurance covers.
109
Mr. Kiondo (ASP – Police Headquarter, Dar es Salaam) Personal Interview, 19/11/2010. 110
In New Zealand, under Section 22, 23 of the Private Investigators and Security Guards Act, 1974 (RE:
2007) the police and the general public are allowed to raise objections against an applicant of the license.
Further, Section 13, 14 allows the public to inspect the PSCs register. The same approach (i.e. accessible
public register and objection) is adopted by Sections 23 and 29(3) of The Surface and Marine Transport
Regulatory Authority Act (Act No. 9 of 2001), Sections 24 and 30(3) of The Energy and Water Utilities
Regulatory Authority Act (Act No. 11 of 2001), Sections 23 and 37(4) of The Tanzania Communications
Regulatory Authority Act (Act No. 12 of 2003).
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Sixth, under the current arrangement, the IGP enjoys enormous discretion in issuance of
police permit to PSCs. This is too dangerous, since there are neither laid grounds upon
which the IGP may refuse to grant a permit, nor are there procedures to appeal in case of
an express or implied refusal by the IGP to issue a permit to an applicant. Besides, there
is a likelihood of abusing such power by granting a permit to friends, relatives or
workmates who have no qualifications.
Finally, in the application form, there are no probing questions as to whether the
applicant has ever been the subject of any refusal, cancellation, suspension or
prohibition of a private security permit/license in Tanzania or abroad. Or as to whether
the applicant has ever changed his name and, applicant‟s addresses for the past five or
ten years. Further, the applicant is not asked to attach a tax clearance certificate from
TRA, and to notarise or certify the application form to a public notary or commissioner
for oaths before submitting it to the RPC.
2.1.2 The Private Security Industry under the Constitution of the United
Republic of Tanzania, 1977
The Constitution of the United Republic of Tanzania (the Constitution)111
under Article
147 (1) prohibits individuals, organisation or group of persons to raise or maintain an
armed force of any kind in the United Republic of Tanzania. It is only the government
that is allowed to raise, control and maintain an armed force of various types for
111
Of 1977 (As amended from time to time).
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purposes of defence and security of the territory and the people of Tanzania112
. This
conception of a state‟s role under Article 147 (supra) falls squarely in the „Weberian‟
model of a state which is said to maintain a monopoly on the legitimate use and
allocation of legitimate force.
The first question to be probed is: do PSCs qualify as armed forces under Article 147?
Objectively, I think, PSCs do qualify as armed forces though not so expressly mentioned
under Article 147 due to the following reasons;
First, arm of the state theory, this theory avers that whenever a private supplier acts as
an arm of the state by fulfilling a public demand for order and security, that private
supplier should be held to be a de facto state actor113
. In Tanzanian context, various
activities performed by PSCs are more or less similar to those of armed forces, for
example prevention of crimes (especially theft), protection of property and lives, assist
the police in policing (holding car patrol), thus such role make PSCs an arm of the state
or de facto law enforcement agents or official proxies114
. On this point, Enion argue that
integration of a private actor in matters or areas or functions which are exclusive realm
of the state makes that actor an arm of the state115
.
112
147(2) of the URT Constitution. 113
Enion, M.R. (2009) Constitutional Limits on Private Policing and the State‟s Allocation of Force,
p.545. 114
Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); USA v. Tariq B. Shahid, aka
Kenneth A. Butler (1997) No. 96-3231, Court of Appeals, Seventh Circuit; People v. Brouillette (1988)
210 Cal.App.3d 842 [258 Cal.Rptr. 635] and Griffin v. Maryland, 378 U.S. 130, 135 (1964). 115
Enion, op. cit., p. 547.
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Second, the state action doctrine, under this theory PSCs qualifies as armed forces (state
actors) not because of the form but the function they perform and for being legitimized
directly or indirectly by the state to fulfill a public demand for order and security116
.
Third, PSCs adhere to armed forces‟ traditions, norms and cultures (i.e. parading,
saluting), use accoutrements of the public police (uniforms, radio call, whistles, firearms
and handcuff) and undergo special trainings which make them behave like public
police117
. Besides, just like in armed forces, PSCs have established command of duty,
culture of loyalty, set of beliefs, symbols and rituals. This view is supported by the
American Civil Liberties Union of Virginia, Inc (amicus curiae) in the case of USA v.
Mario Terrell Day118
. In this case, the issue was whether private security guards should
be considered as state actors for the purposes of the 4th
and 5th
Amendments of the US
Constitution. The amicus curiae answered that issue in affirmative and thus opined that;
one, private police behave more like public police than like private citizen i.e. detain
individuals, conduct searches, investigate crimes and maintain order. Two, private
security guards are often mistaken for public police as [they] tend to use the indicia of
official authority to induce compliance from individuals. Three, private security guards
are institutionally inclined to look and act like police officers119
. Four, private security
guards bear the imprimatur of the state, because protection of the people from internal
and external threats is a central responsibility of the government120
.
116
Ibid., p. 553. 117
F.3d , 2010 WL 60900 (4th Cir. Jan. 8, 2010), on Appeal from the United States District Court For the
Eastern District of Virginia Richmond Division. 118
Ibid. 119
Loc. cit. 120
Ibid.
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Therefore, PSCs qualify as de facto armed forces (law enforcement agencies) because
they perform some powers which are traditionally associated with sovereignty121
.
The second question: is the existence of PSCs in conformity with the Constitution (i.e.
constitutionality of PSCs)? Since PSCs qualifies as armed forces as we have seen above,
my answer is that PSCs‟ existence in Tanzania is unconstitutional or illegal for the
following reasons;
First, under Article 147(1) of the Constitution it is only the government that is
empowered to establish an armed force of any kind. The provision asserts that,
Ni marufuku kwa mtu yeyote au shirika lolote au kikundi chochote
cha watu, isipokuwa Serikali, kuunda au kuweka Tanzania Jeshi la
aina yoyote.
The English version;
It is hereby prohibited for any person or any organization or any
group of persons except the Government to raise or maintain in
Tanzania an armed force of any kind122
.
PSCs as private actors neither established nor operated by the state are therefore
unconstitutional for violating Article 147(1).
Second, PSCs operate outside the framework of the law. Mwalusanya, J. (as he then
was) in determining the question of constitutionality of traditional army (sungusungu)
which prior to 1989 were unregulated, held them unconstitutional for operating in a
121
Justice Rehnquist in Jackson v. Metropolitan Edison Co. (1974) 419 U.S. 345. 122
Attorney General of Tanzania, The Constitution of the United Republic of Tanzania (English
Version), RE: 2008.
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vacuum and that the Constitution allowed only the Court and police as organs of the
state to maintain law and order123
. Therefore, applying Mwalusanya‟s formulation on
private entities which operate outside legal framework, PSCs become unconstitutional
for lack of constitutional or statutory basis upon which to operate.
Third, the Constitution of Tanzania does not whatsoever envisage delegation or
privatisation of maintenance of peace and order powers (policing works) to private
individuals (business companies). This argument is supported by the ruling of the Israel
High Court of Justice in the case of the Human Rights Program v. the Minister of
Finance (alias Academic Center of Law and Business, Human Rights Division v.
Minister of Finance)124
. In this case the petitioner called the High Court of Israel to
declare an Amendment to the Prisons Ordinance125
illegal for allowing privatisation of
prisons in violation of Article 1 of the Israel‟s Basic Law. The High Court of Israel held
for the petitioner by holding prisons‟ privatization scheme null and void in its entirety
due to;
One, that traditionally the state hold incarceration powers as reflected under the social
contract principle. Therefore, the State as an elected entity and democratic accountable
123
Misperesi K. Maingu v. Hamisi Mtongori & 9 Others, HC at Mwanza, Civil Case No, 16 of 1988; Geza
Geza & 12 Others v. Isa Hamisi & 11 Others, HC at Mwanza, civil Case No. 7 of 1988; Charles Mwita &
Another v. Kando Mresi & 10 Others, HC at Mwanza, Civil Case No. 15 of 1988; Charles Charari
Maitari v. Matiko Chacha Ghati & 4 Others; and Ngwegwe s/o Sangija & 3 Others v. R., HC at Mwanza,
Criminal Appeal No. 72 of 1987 [All cases reported in Peter, C.M. & H. Kijo-Bisimba (2005) Justice
and Rule of Law in Tanzania: Selected Judgments and Writings of Justice James L. Mwalusanya and
Commentaries. LHRC]. 124
(2009) HCJ 2605/05 (Israeli Supreme Court sitting as the High Court of Justice) available at:
<http://elyon1.court.gov.il/files/05/050/026/n39/05026050.n39.pdf> (in Hebrew). Seven (7) Judges
concurred, whilst, Justice Edward Levy dissented, holding that the Court can not nullify a privatisation
scheme which is yet to be implemented. 125
Amendment No. 28 of 2004.
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entity should enjoy a monopoly over the exercise of organised force designed to further
public interest (i.e. democratic mandate theory)126
.
Two, the state can not delegate constitutional role to enforce the law and safeguard the
public safety to private actors which are superseded by profit-making imperatives127
.
The Court rejected the State‟s argument that privatization (of prisons) is a legitimate
economic policy that can not shake the foundations of the structure of the democratic
regime and the basic principles of the legal system128
.
In the light of the above reasoning, the act of the Tanzanian government to allow PSCs
to operate violates the constitutional right to security of person and property and thus
amounts to unconstitutional delegation of public powers to private actors.
To avoid the unconstitutionality of PSCs activities in Tanzania, the government may
wish to adopt the South African model to legitimise them. The Constitution of the
Republic of South Africa129
in Article 199(1)(2) declares security services (i.e. a single
defence force, a single police service, and a single intelligence service) as the only legal
armed forces in South Africa. However, Article 199(3) allows armed organisations or
services such as PMSCs to operate in South Africa but a specific national legislation
must be enacted for that purpose to structure and regulate them. Article 199(3) reads;
126
Ludlow, A. (2010) Prison Privatisation in Israel: Important Transnational Lessons, Cambridge
Student Law Review, p. 328. 127
Ibid. (Sommer, H. & G.I. Seidman (2010) The Unconstitutionality of Privatized Prisons-Lessons
Learned from the Israeli Experience. The Interdisciplinary Center (IDC), Herzliya, Israel. 128
Sommer & Sedman, ibid. 129
The Constitution of the Republic of South Africa Act, No. 108 of 1996.
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Other than the security services established in terms of the Constitution,
armed organisations or services may be established only in terms of national
legislation.
In that regard, in 2001 the Private Security Industry Regulation Act130
was enacted as an
enabling Act to Article 199 (supra). Section 20(1) of the Private Security Industry
Regulation Act (supra) states that;
(a) No person, except a Security Service contemplated in section 199 of
the Constitution (Act No. 108 of 1996), may in any manner render a
security service for remuneration, reward, a fee or benefit, unless such a
person is registered as a security service provider in terms of this Act.
(b) A Security Service contemplated in section 199 of the Constitution may
use persons employed by them and who are not registered as security
service providers to render a security service.
My submission is that, unless Article 147 of the Constitution is softened to encompass
new actors in the security arena, the existence and operation of PSCs in Tanzania is
illegal. The reason for my stance is that delegation or privatisation of policing power is
not envisaged by the Constitution. Besides, there is no administrative order or
proclamation or statute that justifies existence of PSCs in the Tanzania. The only way to
legalise PSCs‟ activities in Tanzania is to constitutionalise the same by adopting South
African model. In the same vein, law/s to be enacted afterwards to implement such
constitutional stipulation must establish independent regulatory authority to exercise
control over PSCs. The best way to control PSCs activities is to emulate the Insurance
Act131
which inter alia establishes the Tanzania Insurance Regulatory Authority (TIRA)
130
Act No. 56 of 2001. 131
Act No. 10 of 2009 (The GN. No. 266 of 24th July 2009).
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with specific power to regulate and licence actors in the insurance business, to promote
and maintain efficient, fair, safe and stable insurance market132
. Alternatively, the Bank
of Tanzania (BOT) model may be adopted whereas under the Banking and Financial
Institutions Act133
, the BOT supervises and regulates banks and financial institutions to
ensure stability, safety and soundness of the financial system134
.
2.3 Conclusion.
It is still not clear as to how the Tanzania Private Security Industry (TPSI) came into
existence in 1980s. But one thing for sure is that, there is no law, circular, administrative
order or proclamation that officialised PSCs‟ activities in Tanzania. However,
introducing key actors such as PSCs without any piece of legislation or regulation was a
mistake which still haunts the TPSI today.
What I fail to understand is how the government pioneered the law on other private
actors such as sungusungu, peoples‟ militia and Auxiliary police while totally forgetting
the TPSI. As a result, the Police Force which is arbitrarily entrusted with regulating the
TPSI has failed to put in place a feasible way of monitoring PSCs. The TPSI is operating
without clear focus and in a total disregard of what is going on in other parts of the
world within the PSI.
In short, this chapter has weighed the TPSI and came to conclude that the TPSI has a
number of weaknesses in terms of registration, licensing, regulation and operations.
132
Ibid., Sections 5 and 6. 133
Act No. 5 of 2006. 134
Ibid, Sections 4 & 5. Also, The Bank of Tanzania, Act No. 4 of 2006.
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Above all, the chapter ignites a discussion as to the constitutionality or otherwise the
legitimacy of PSCs activities in Tanzania.
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CHAPTER THREE
THE RIGHT TO SECURITY OF PERSON AND PROPERTY VIS-A-VIS
PRIVATISATION OF SECURITY
The battle of peace has to be fought on two fronts. The first is the
security front where victory spells freedom from fear. The
second is the economic and social front where victory means
freedom from want. Only victory on both fronts can assure the
world of an enduring peace….No provisions that can be written
into the Charter will enable the Security Council to make the
world secure from war if men and women have no security in
their homes and their jobs135
.
3.0 Introduction
The issue of security of either individuals within a state, or the state as a whole
(sovereign) is crucial to people‟s welfare and prosperity. The state of insecurity as
Stewart136
say, cuts life short and thwarts the use of human potential, thereby impeding
the realisation of development goals. Therefore, it is in this trend the right to security of
person and property is intertwined in a wider range of interrelated idioms such as state
security, national interest, national sovereignty, human security and development137
. All
of these expressions and the like, relate to individuals‟ well-being, and if placed in
135
The report of Edward Stettinius, Jr., (the US secretary of State, in 1945) to his government on the
results of the Conference in San Francisco that set up the United Nations. 136
Stewart, F.J. (2004) Development and Security. Centre for Research on Inequality,
Human Security and Ethnicity (CRISE) Working Paper 3, Oxford University, p. 4. Available at
http://www.crise.ox.ac.uk/pubs/workingpaper3.pdf> accessed on 03/08/2011 at 11:14 Hours. Also,
Mayer-Rieckh, A. & R. Duthie (2009) Enhancing Justice and Development through Justice-Sensitive
Security Sector Reform. In Pablo de Greiff & Roger Duthie (eds.), Transitional Justice and
Development: Making Connections, Social Science Research Council, New York, p.214, at pp.219 & 220
(available at <http://www.ssrc.org/workspace/images/crm/new_publication_3/%7B1ed88247-585f-de11-
bd80-001cc477ec70%7D.pdf> last accessed on 06/07/2011 at 13:11 Hours). 137
Alkire, S. (2003) A Conceptual Framework for Human Security, p.31.
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human rights‟ realm can be referred to in an elucidative term as „the right to security of
persons and property.‟
The concept of the right to security of persons and properties or human security has been
approached differently in various scholarly works. One school of thought with reference
to the Human Development Report138
argues that human security entails two things i.e.
freedom from fear, at the first place and freedom from want on the other139
. This
approach is taken as a wider or contemporary meaning of the right to security which
essentially includes liberty, biosecurity and protection of physical integrity of a person
and natural hazards140
. The other school takes a narrow approach on the right to security
of persons, and thus limits its meaning to freedom from fear (with exclusion of want)141
.
For the purpose of this study, the right to security of person and property entails
individual (human/citizen) security as well as national (public) security (i.e. freedom
from fear). By individual security we mean how individuals‟ lives and properties are
protected by either the state or private agencies monitored by the state from internal
threats i.e. crimes and violence142
. On the other hand, national security includes state‟s
protection of citizens from external threats i.e. foreign invasion or aggression and
terrorism143
. Therefore, the right to security of person and property in the context of this
chapter may be referred to as the right of human race and its material possessions against
138
UNDP (1994) Human Development Report. Oxford University Press, New York, pp.22-38. 139
Ibid., p. 24. 140
New Zealand Action Plan for Human Rights - Status Report, 2004 (Chapter 7). 141
Powell, R.L. (2007) The Right to Security of Person in European Court of Human Rights
Jurisprudence. European Human Rights Law Review, 6:649. 142
Powell, R.L. (2008) Security and the Right to Security of Person, Chapter 1 & 2. 143
Ibid.
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crimes (e.g. simple theft, burglary, robbery, rape, extra-judicial killings) and
interpersonal or social violence.
3.1 The Right to Security of Person and Property as a Human Right
The right to security is said to be the cornerstone of all other rights of a person144
. This is
because, it is on the right to security of persons and property that even the cardinal right
to life as well as right to personal freedom (liberty), freedom of movement, right to own
property, right to work, freedom of expression and to participate in public affairs are
built.
It is in this context that the right to security has featured in almost every international
human rights instrument, and many states have incorporated it in their Constitutions or
Bill of rights and likewise contextualised to a large extent in their penal laws. Unlike
other type (or areas) of human rights, there is a global consensus as to the universal
nature of the right to security of person and property. According to the Human
Development Report145
, human security is relevant to people everywhere whether poor
or rich, and that security threats (i.e. crimes or violence) are common to all people146
.
Further, components of human security are interdependent in the sense that when the
security of people anywhere in the world is endangered, all nations are likely to get
involved or affected.
144
Though in the case of East African Asians v United Kingdom (1981) E.H.R.R. 76, the EU Commission
on Human Rights held that the right to security of person has no independent content from the right to
liberty of person and must be read in light of the legislative context and its historical development. 145
Op. cit., pp.22 & 23. 146
Ibid.
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Human rights advocators and statesmen since time immemorial have been struggling to
ensure that the world is a peaceful place for human habitation. Social contract
philosophers (i.e. Locke, Machiavelli, Rousseau, Bodin, Hume and Montesquieu) in
medieval times also identified social order and protection of property (public security) as
a foundation of nation-states or civil society147
. It is in this perspective therefore, the
issue of security has received considerable attention in every state‟s policy and law.
Again, historians and socio-scientists agree that the main reason of forming the United
Nations (formerly the League of Nations) and other regional groupings is to ensure or
secure global peace and order (i.e. world security)148
.
3.1.1 National Dimension
The right to security in Tanzania is incorporated under Article 16(1) in the Tanzania
Constitution149
which provides that;
Kila mtu anastahili kuheshimiwa na kupata hifadhi kwa nafsi yake, maisha
yake binafsi na familia yake na unyumba wake, na pia heshima na hifadhi
ya maskani yake na mawasiliano yake ya binafsi.
English version;
Every person is entitled to respect and protection of his person, the privacy
of his own person, his family and of his matrimonial life, and respect and
protection of his residence and private communications150
.
147
Dr. Pitsuwan in his Keynote Speech on Regional Cooperation for Human Security. 148
Howard, P. (2009) "United Nations". Microsoft Student - DVD. In Redmond, WA (Ed.) Encarta
Encyclopedia: Microsoft Corporation. 149
Of 1977 (as amended from time to time). 150
Attorney General of Tanzania, The Constitution of the United Republic of Tanzania (English
Version), RE: 2008.
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A similar phraseology above is adopted by Article 15(1) of the Constitution of
Zanzibar.151
In the same vein, the Criminal Procedure Act152
under section 148(5)(d)
allows relevant authorities to deny bail to person in police custody for his own
protection or safety. Additionally, Article 24 (1) of the Tanzania Constitution (supra)
guarantees individual‟s right to own properties as well as their protection. It further
protects such properties from acts of the state and individuals153
.
To show that the issue of national security is of utmost importance, the Constitution of
Tanzania, in certain instances, allows abrogation of some of individual rights for the
sake of public order (security)154
. This is exemplified by Article 19(2), 31(1) and
32(2)(c) of the Constitution of Tanzania which in essence qualifies enjoyment of basic
rights in peaceful or state of emergency situations for national security.
Additionally, the Penal Code155
under section 18 and 18A exonerates from liability
people who use reasonable force in an act of defending ones life or property. This
defence is also extended to people who use force against criminals committing or
intending to commit offences such burglary, robbery, arson, rape, unnatural offence,
kidnapping, abduction and defilement156
. Further, to ensure that peace and order is
151
1984 (RE: 2002). 152
CAP. 20 (RE: 2002). 153
Article 24(2). Also, Article 17 of the Constitution of Zanzibar (1984). 154
Such qualifications can also be seen in International Conventions e.g. Article 12(3), 13, 14, 19(3)(b),
21, 22(2) of ICCPR; Article 13(2)(b), 15, 16(2), 22(3) of the American Convention on Human Rights;
Article 6(h) of the ACHPR‟s Protocol on the Rights of Women in Africa; Article 8(1)(a)(c) of the
ICESCR; Article 10(2), 13(2)(b), 15(2) of the Convention on the Rights of the Child; Article 11, 12(2) of
the ACHPR; Article 29(2) of the UDHR; Article 24(7), 26(2), 32(2), 35(2) of the Arab Charter on Human
Rights; and Article 8(2) of the European Convention on Human Rights. 155
CAP 16, Chap. VII, IX, XX, XXII, XXIII, XXV, XXVI, XXVIII, XXIX, XXX & XXXV. 156
Ibid., S.18C.
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maintained, the Government has enacted various laws which in one way or another
protect individual‟s rights to safety and peaceful co-existence in the society157
.
3.1.2 International Dimension
Under international human rights laws, the right to security has been reiterated in almost
every convention and Charter158
. This is because international laws and organisations are
mainly concerned with maintaining peace and order among nations. The Universal
Declaration of Human Rights (UDHR)159
in Article 3 and 17(1)(2) provides for the right
to security of persons and property. Similar wording to that of UDHR are found under
Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR).160
The
right to security of persons and property is also incorporated in Article 6 and 14 of the
African (Banjul) Charter on Human and Peoples' Rights (ACHPR)161
and reiterated in
Article 4 and 5 of ACHPR‟s Protocol on the Rights of Women in Africa162
. Likewise,
157
The Explosives Act, CAP 45 [SS.3, 7, 14, 20, 24 & 25]; The National Security Act, CAP 47 [The
preamble, and Section 3]; The Immigration Act, CAP 54 [S.14(2)(c)]; The Prisons Act, CAP 58
[S.13(2)(a)-(d)]; The Minimum Sentences Act, CAP 90 [ S.5]; The Mental Diseases Act, CAP 98
[S.7(1)(b)]; The Peoples Militia Act, CAP 111; The Grass Fires (Control) Act, CAP 135 [SS.3 & 5]; The
National Defence Act, CAP 192 [SS.97 & 98]; The Visiting Forces Act, CAP 194; The Emergency
Powers Act, CAP 221 [SS. 6 & 7]; The Preventive Detention Act, CAP 361 [S.2(1)(a)(b)]; The Arms and
Ammunition Act, CAP 223 [S.10]; The Police Force and Prisons Service Commission Act, CAP 241; The
Armaments Control Act, CAP 246 [Section 5 to the Act]; The Mutual Assistance in Criminal Matters Act,
CAP 254 [S.6(1)(e)(2)(e)]; The Police Force and Auxiliary Services Act, CAP 322 [Section 5(1) of the
Act]; The Prevention and Combating of Corruption Act, CAP 329 [The preamble, and Section 37(3)(b)
thereto]; The Extradition Act, CAP 368; The Deportation Act, CAP 381; The Public Order Act, CAP 386;
The Tanzania Intelligence and Security Service Act, CAP 406 [SS. 14 & 15]; Fugitive Offenders (Pursuit)
Act, CAP 57 [SS. 4 & 5]; The Anti-Dumping and Countervailing Measures Act, 2004; The Transfer of
Prisoners Act, 2004; The Environmental Management Act, 2004; Prevention of Terrorism Act, No. 21 of
2002; Proceeds of Crime Act, 1991; Economic and Organized Crimes Control Act of 1984; The Anti-
Money Laundering Act, 2006; Money Laundering Control Circular No. 8 and The Refugee Act of 1998. 158
Article 23(1) of ACHPR and Article 5(1)(3)(f), 11(3), 89(f), 123, 124, 125 of the East Africa
Community‟s Treaty of 1999. 159
1948. 160
1966. 161
Adopted on 27 June, 1981. 162
Adopted by the 2nd Ordinary Session of the Assembly of the Union Maputo, 11 July 2003.
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Article 14(1) and 31 of The Arab Charter on Human Rights163
affirms the right to
security of person and property. This position is reflected also under Article 15 and 18 of
the Cairo Declaration on Human Rights in Islam164
. Moreover, Article 7(1), 21(1)(2)
and 32(2) of the American Convention on Human Rights165
and Article 5(1) of the
European Convention on Human Rights166
guarantees the right to security of person and
property. Last but not least on the right to security is Article 5(b) of the International
Convention on the Elimination of All Forms of Racial Discrimination167
.
Under the international criminal law jurisprudence, individuals have also been included
as subjects of international law168
. Actually, this came as a result of the increase of
crimes against humanity and peace, genocide, ethnic cleansing and war crimes
committed by individuals rather than the state169
. The move is important as nowadays
hostilities between states are very rare, while internal violence and civil wars between
ethnic groups within states is becoming more prevalent. The abandonment of the
traditional view of the state as the only subject of international law is viewed by jurists
and statesmen as a new dimension towards protection of human race and the right to
security of persons and property. On this point, Pitsuwan puts it that, the concept of
security has changed drastically from states to human persons170
.
163
22nd
May 2004 (entered into force on March 15, 2008). Article XV and XVI of the Universal Islamic
Declaration of Human Rights of 19 September 1981. 164
August 5, 1990. 165
Entered into force on 18th
July, 1978 (RE: 1992). 166
4th
November 1950 (as amended from time to time). 167
Entry into force 4 January 1969. 168
The Rome Statute; Refer, proceedings in the International Criminal Court against Charles Taylor,
former president of Liberia. 169
Ibid., Article 5 – 8. 170
Pitsuwan, Loc. Cit.
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In recent development, the international community under auspices of the UN has
coined and recognised the „responsibility to protect‟ (RTP)171
as a new principle in
dealing with crimes which threaten world peace, security and human existence172
. In
essence, the principle of RTP obligates the international community to prevent genocide
and other crimes against peace by the use of force in a territory with human atrocities173
.
Canada for example has incorporated the concept of RTP in her foreign policy especially
in dealing with crimes against humanity at international level174
.
Though the notion of RTP has been criticised for qualifying the principles of sovereignty
and non-interference, in my view, the principle of RTP is a very crucial element in
international relations to secure human peace and security. Corman175
in his address to
the UN‟s General Assembly framed the use of the principle of RTP in the following
words;
In exceptional cases where States could not and would not protect their
populations, the international community has the responsibility to do
so through a range of means, from sanctions to, as a last resort,
collective action. However, we must be extremely careful in resorting
to these coercive measures and always seek to enable the States in
question to assume and deliver their responsibilities. The very concept
of RTP is, first and foremost, designed for that purpose.
171
UN World Summit in 2005, UN Security Council‟s Resolution No. 1674 (2006) and The Secretary-
General's report (A/63/677) on RTP. 172
E.g. Resolution No. 1973 of the UN‟s Security Council, 6498th
Meeting of 17th
March 2011 (approving
„no-fly zone‟ over Libya, and authorizing „all necessary measures to protect civilians‟ against Qadhafi‟s
regime). 173
Preventing Genocide: UNITAR Peace and Security Series, Seminar Report, 2-3 April 2007
United Nations Headquarters, New York. Also, Rugumamu, S. (2001) State sovereignty and intervention
in Africa: nurturing new governance norms. 174
Ibid. 175
Charges D'affaires a.i. of Turkey to the UN, "Responsibility to protect", UN General Assembly, 63rd
Session, 24 July 2009.
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If the principle of RTP is to be officiated as a norm of international law, therefore,
security of individuals will no longer be defined exclusively within the realm of states or
state security but as a universal responsibility.
On the other hand, PSCs (also known as Private Military Companies) that operate
internationally have attracted attention of the international community for various
reasons. One of the reasons being, violation of human security by PMSCs due to their
involvement in armed conflict as combatants (private contractors) or peace-keepers
(humanitarian aids, e.g. Iraq, Afghanistan, Kosovo and Sudan). The vivid examples are
PSCs/PMCs contracted in countries like Sierra Leone, Angola, and Equatorial Guinea
which turned out to be mercenaries. In response to the state of insecurity created by
PMSCs, the UN has drafted the “International Convention on the Regulation, Oversight
and Monitoring of Private Military and Security Companies” (not yet in force) which
inter alia obligate PSCs/PMCs to observe human rights176
.
3.2 The state of Security to Commoners in the eve of Private Security Companies
As we have seen, the issue of security is central to human survival and development.
With the changing nature of the state in provision of social services undoubtedly many
areas of the economy have been affected, human security being one of them. The
presence of PSCs in the area of defence and security has not only strengthened security
but also affected the right of some members of the community to access security
services and justice. Like in other areas of the economy, privatisation of security
176
Final Draft of 13 July 2009.
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services was intended to offer citizens with a wider range of choices as well as to cut
state‟s budget in internal policing.
To me, what is forgotten here is the integration of commoners in the Tanzania Private
Security Industry (TPSI) keeping in mind that, most of Tanzanians live below the
poverty line. The rationale of introducing PSCs was to back-up the Police Force in law
enforcement activities, but, PSCs have turned out to be one of lucrative businesses to
owners who provide services to a few people and organisations. The impact of
privatising security in Tanzania is that, police‟ patrol scheme in streets is no longer a
common feature as far as public policing is concerned. As a result, it is becoming
difficult to fight criminal gangs and organised crimes, muggings and street crimes or to
deter crime by being visible on the streets, to prevent burglary and recover stolen
properties. Thus, People who can not afford private security are more vulnerable to
crimes and insecurity created by either free movement of people within the East African
Community or poor coordination between public and private security entities to curb
crimes.
3.3 Effects of Privatisation of Security on the Right to Security of Person in
Tanzania
The Constitution of Tanzania partly affirms the notion that the primary duty of
protecting citizens and their properties is on the state and its machineries177
while the
177
Article 9(2)(b) of the Constitution of Zanzibar (1984) make it clear that the main function of the
government is to ensure security and welfare of the Citizens.
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secondary duty is on the citizens themselves178
. However, with the current trend of the
government distancing itself from providing social services, security included under the
umbrella of privatisation, the state and its armed forces are no longer sole players in the
security system179
. In Tanzania for example, non-state actors such PSCs perform quarter
of policing works while outnumbering the Police Force in terms of manpower.
Privatisation of security in Tanzania has both positive and negative implications on the
right of the people to be free from violence and crimes.
Starting with the positive effects as follows;
First, the PSI has complemented the Police Force‟s functions especially in large cities
and town (i.e. supplementary and redistributive effects of PSI)180
. This point is cemented
by the fact that private guards are almost outnumbering police and perform 40% of
policing works in Tanzania181
. For example, nowadays PSCs take care of the security in
sport fields (e.g. football stadia), escorting role and guarding individuals‟ houses
(buildings, business premises). The PSCs‟ guards and surveillance system in rich
people‟s suburbs like Masaki, Mbezi, Mikocheni, and Posta in Dar es Salaam have
improved security of those areas to a large extent182
. In the area of fire-fighting, PSCs
178
Article 27(1)(2) and 28(1)(2)(3) of the Tanzanian Constitution; also Article 23(2)(3)(4) of the
Constitution of Zanzibar. 179
Chesterman, S. & and A. Fisher (2009) Private Security, Public Order: The Outsourcing of Public
Services and Its Limits (Introduction). New York University Public Law and Legal Theory Working
Papers, No 147, p. 1, available at <http://lsr.nellco.org/nyu_plltwp/147/>. 180
It is reported that one Police is equal to 1400 Tanzanians. The 1999/2000 Annual Report of the Global
Coalition for Africa (GCA). 181
29,918 Police officers, over 1.7 millions private security guards. 182
Information learnt from residents of the said areas.
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have proved to be better equipped and efficient than state‟s agencies183
. However, their
fire-fighting services are still concentrated in big cities and profit-oriented. Therefore, if
the private security sector is to be reformed effectively, the police can deal with more
important and urgent security works rather than day-to-day policing works.
Second, privatisation of security has to some extent relieved the government from
supplying police in business and residence premises, thus security services becoming
income generating venture. For instance, in 2009 the police generated Tanzania shillings
6,078,813,465.99, while in 2011 expects to collect 6,699,700,000 Tanzania shillings for
guarding Commercial banks184
. On another hand, presence of many PSCs which
compete in providing security services to the public somehow has improved
performance in the area of policing.
Finally, the Private Security Industry has created employment to approximately 1.7
million Tanzanians who would otherwise been jobless and therefore an added threat to
human security. However, some see privatising security services as a way for politicians
to enhance electoral success by pleading job creation to their voters in political rallies185
.
Notwithstanding the fact that privatisation of security in Tanzania has impacted
positively the national security and individuals‟ right to security as shown above, the
183
Hansard from 9th
Meeting, 11 Session of the Parliament of the United Republic of Tanzania, 13th
November 2007 (Question and Answers No. 155) at p. 30. Kimani, M. (2009) Security for the Highest
Bidder: Shoddy Policing for the Many, Costly Private Protection for the few. The Africa Renewal,
October 2009, p.10 at <http://www.un.org/ecosocdev/geninfo/afrec/vol23no3/233-security.html> viewed
on 29/03/2011 at 08:53 Hours. [Security officers in private firms are often much better equipped than the
national police, with vehicles, radio alarm systems and rapid-response capacity (Kimani)]. 184
Tanzania Police Force, Annual Report for the Year 2010, p. 15. 185
Markusen, Loc. cit.
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introduction of PSCs to a certain extent has also had negative effects to human security
as follows:
The main effect of privatising security is that the issue of security has now become a
private good rather than a public good in Tanzania.186
This point is elaborated as follows;
First, the private security sector has promoted social stratification as PSCs usually offer
their services in urban areas and avoid operating in areas where operational costs are
high regardless of the demand (i.e. PSCs are urban/town oriented). In this case, rural
areas are neglected by private actors regardless of having very few numbers of police
stations/posts as well as experiencing high level of cattle rustling, albino killings, and
vigilantism (mob injustice). Besides, even in major cities like Dar es Salaam, crimes rate
in city slums is higher than in richer suburbs protected by PSCs‟ surveillances and
personnel. The Global Coalition for Africa (GSA) warns that such practice tends to
deflect criminals to others, less wealthy individuals who still depend on the police187
.
Second, commercialisation of security has marginalised the commoners‟ right to
security, since good security services are now available to a small section of the society
which can afford them. That is to say, PSCs are profit oriented their services are
accessible by few individuals with ability to pay. As one study argued that, “...their own
186
PARLFORUM POLICY states that “since security is termed as a public good; thus the role of the state
is to provide this right equally to all citizens in a way that upholds Human Rights and democratic
principles”. 187
1999/2000 GCA‟s Annual Report, p. 35.
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profitability depends to a significant extent of fear and insecurity”188
. On contrary, state
controlled security has no profit motive as the same is subordinated to social welfare
objectives. It is also well known that the government‟s mission in social services is to
provide for affordable and quality services to the society. Thus, privatisation of security
in Tanzania has affected tremendously those who lack the ability to pay for private
security services and who depend largely on public policing.
Third, inadequate number of police and distancing of police in public policing may have
fuelled incidences of mob injustice189
. To me, mob justice is another face of crime and
insecurity, and bad enough mob justice violates individuals‟ unalienable right to life.
However, in a common man‟s view, mob justice and vigilantism are cheap grass rooted
security system outside of the public policing system. As Isima190
says,
Informal security does not provide sustainable security, being
haphazard and vulnerable to elite capture, politicisation or
criminalisation...
With the current number of police in Tanzania, it is very difficult for the Police Force to
exercise its mandate effectively. This is because the UN‟s recommended population
188
Abrahamsen & Williams (2010) Privatising Africa's everyday security. Available at
<http://www.opendemocracy.net/opensecurity/rita-abrahamsen-michael-c-williams/privatising-africas-
everyday-security> last accessed on 28th
July, 2010. 189
Chapter 2 of The Legal Human Rights Centre, Tanzania Human Rights Reports 2006, 2007, 2008,
2009 & 2010. U.S Department of State, Country Reports on Human Rights Practices, Tanzania. Bureau
of Democracy, Human Rights, and Labor 2005; March 8, 2006. Allowing mgambo (people‟s militia),
sungusungu (vigilantes), Auxiliary Police, night watchmen to do policing works, evidences insufficiency
of the Police in Tanzania. 190
Isima, J. (2009) the Global Marketplace and the Privatisation of Security
<http://www.securitytransformation.org/bli.php?id=12>.
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ratio is one police officer to 450 people191
. In 2009 the Tanzania Police Force had a
workforce of about 29,918192
police officers. At the end of December 2010 the said
number has increased to approximately 37,000 countrywide193
while the current number
of Tanzanians is tallying to 43,739,000 millions in a country of 945,203 Square
Kilometres194
. This means that in Tanzania, one police covers an area of 32 KM2 of
1458 people. The police have been more overburdened by the influx of refugees from
neighbouring countries, tourists, free movements of personnel within the East African
Community and of course presence of foreign investors and their expatriates in
Tanzania.
It is for this reason therefore, rich people, foreign embassies, foreign investors and
business enterprises have been engaging PSCs to ensure their safety. It is only logical
that PSCs are now key players in the security arena since they have a workforce of about
1.7 million people, thus outnumbering the Police Force195
.
Even if PSCs‟ services were available to everyone in Tanzania, discrepancies in the
sector are likely to create insecurity and ultimately impeding people‟s right to security
due to the following reasons;
191
CHRI (2006) The Police, The People, The Politics: Police Accountability in Tanzania, p. 12 (available
at <http://www.humanrightsinitiative.org/publications/police/tanzania_country_report_2006.pdf> last
visited on 06/01/2011 at 08:50 Hours. Also, Kimani, M. (2009) Security for the Highest Bidder: Shoddy
Policing for the Many, Costly Private Protection for the few. The Africa Renewal, October 2009, p.10,
available at <http://www.un.org/ecosocdev/geninfo/afrec/vol23no3/233-security.html> viewed on
29/03/2011 at 08:53 Hours. 192
The Tanzania Police Force, Police Annual Report for the year 2009, p.7. 193
Tanzania Police Force, Annual Report for the Year 2010, pp. 2 & 10. 194
<http://en.wikipedia.org/wiki/Tanzania> last visited on 27/12/2010 at 10:12 Hours. 195
Gamaina, C. (2010) „Kampuni za Ulinzi na Umuhimu Uliosahaulika‟, a newspaper article appearing in
RAI of Thursday 2nd
, September 2010, issue No. 884, p. 16.
63
Jaba, 2011
First, unlike public police, private security guards are less protected by the law and
prone to criminal prosecution196
. Thus, entrusting private companies or individuals with
a vital duty of protecting or securing the nation may compromise individuals‟ right to
security and the nation at large.
Second, most of PSCs in Tanzania are poorly equipped save for large companies like
Ultimate Security, Security Group, KK Security and Knight Support. It is common to
find private guards equipped with wooden batons, whistles, torches and dogs purporting
to protect properties worthy millions of shillings197
. It becomes very difficult for a
private guard who is ill equipped to stop recidivist criminals (bandits) with heavier
weapons such as sub-machine guns and revolvers. Besides, PSCs in Tanzania have a
tendency of moving their security guards from one customer to another on a daily basis.
This practice is risky as it becomes very difficult for a guard who is not conversant with
a new area to provide effective security198
.
Third, poor partnership and coordination of police and private security actors‟ activities
is likely to create clashes between police and private security guards. Out of this
uncertainty, security vacuum can emerge to the detriment of peoples‟ lives and
properties. This may be facilitated by lack of effective policies, control and regulation of
the TPSI.
196
This point is discussed under chapter 4 of this study. 197
Data from personal observation during field research in Dar es Salaam, Mbeya and Dodoma. 198
Magesa Nathanael, Personal Interview, 13/05/2011.
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Fourth, PSCs usually operate on a profit-making basis and at the discretion of company
boards as well as shareholders. Thus, in case of bankruptcy, transfer or sale of the
company, customers may be exposed to an unforeseeable state of insecurity and fear.
Fifth, PSCs‟ employees (security guards) in Tanzania are allowed to form and join trade
unions, and thus having an automatic right to strike (unlike members of armed forces)199
.
If they actually exercise their right to strike [it] may paralyse sectors (and individuals)
which depend on their services e.g. Bureaux de Change, Shopping complexes, large and
medium businesses and Hotels.
Sixth, paying for private security services is an added cost to tax payers (i.e. for a
producer who has engaged a PSC to secure his business, at the end, shifts such costs to
consumers). For instance, costs for concluding security contracts, administering,
monitoring and evaluating works of private security guards becomes an extra cost to
citizens on services which they voted the government to provide for. Besides, PSCs are
not directly accountable to the public or National Assembly, and they are not subject to
civil service accountability system, unlike in the area of public policing where the
Government is the owner of security forces and thus answerable to the people.
Moreover, underpayment is a common feature in the TPSI200
. It is well understood that
an inadequate wage is always a threat to security. This point is self explanatory, how an
199
PSCs‟ workers in Tanzania are governed by normal civilian laws of employment and labour relations.
This point is discussed extensively under Chapter 4 of this study. 200
Appendixes G, H & I. Also, online Articles; Chanzo cha Ujambazi Tanzania ni Hiki (IPP Media)
available at <http://www.jamiiforums.com/habari-na-hoja-mchanganyiko/8518-chanzo-cha-ujambazi-
tanzania-ni-hiki.html> last accessed on 28th
March 2011 at 17:52. Haule, A. „DC kuwabana wamiliki
65
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angry security guard could be expected to provide security to assets worthy billions? In
this way, PSCs become a new security problem rather than being part of curbing existing
one.
Furthermore, lack of professionalism is another problem in the TPSI201
. It is a normal
practice among PSCs operating in Tanzania to recruit staff with questionable
backgrounds202
. This practice may be disastrous to the security of people and their
properties especially where such staff have access to firearms; the likelihood of using
them illegally is higher. It becomes even worse where private security guards learn some
vital security information in the course of their duty and decide to disclose them to
criminals203
. On this point Anna and Henry204
share with us Bulgarian experience,
where after the collapse of socialism in 1990s embarked on privatising public policing,
but by 1998 the Bulgarian PSI was dominated by organised criminal groups.
kampuni binafsi za ulinzi‟ (Habari Leo), available at <http://dullonet.com/2010/11/26/dc-kuwabana-
wamiliki-kampuni-binafsi-za-ulinzi/ > last viewed on 28th
March 2011 at 18:02 Hours. Sabinus, J.
Kampuni ya ulinzi yaonyesha umahiri katika kuigiza ububu (Kiongozi)
<http://kiongozi.tripod.com/K2000/kitaifajan4.htm> accessed on 29/03/2011 at 09:31 Hours. “Mishahara
Duni” (Reader‟s letter to the Editor) AN-NUUR, Na.171 Jamadul Akhir 1419, Oktoba 16 - 22, 1998
<http://igs.net/~kassim/an-nuur/171/barua171.htm> last accessed o 28th
March 2011 at 17:28 Hours.
Sezzy, S. „Waajiri wakorofi 'wamtibua' Kandoro‟ (Mwananchi, Monday, 29 November 2010 20:54),
<http://www.mwananchi.co.tz/business/13-biashara-za-kitaifa/6961-waajiri-wakorofi-wamtibua-
kandoro.html> visited on 29/03/2011 at 11:29 Hours. Monyo, G. „Vibarua Bandarini Wacharuka‟
(Nipashe) available at
<http://www.bongo5.com/index.php?option=com_content&task=view&id=3941&Itemid=232&lang=sw>
accessed on 30th
March 2011 at 16:57 Hours. 201
Elias Kalinga (RPC, Kinondoni special police zone) was quoted by the Global Publisher admitting
lack of professionalism in the TPSI
<http://www.globalpublishers.info/profiles/blog/show?id=5398006%3ABlogPost%3A101217&commentI
d=5398006%3AComment%3A103869&xg_source=activity> viewed on 30/03/2011 at 17:41 Hours. Mr.
Kiondo (ASP) & Adamu (ASP), personal interview, 23rd
November, 2010. 202
Ibid. 203
Kabaye, S. „Chanzo cha kuvuja siri za serikali chaelezwa‟ (StarTv, Friday 18th
March 2011) available
at < http://startvtz.com/2011/03/18/chanzo-cha-kuvuja-siri-za-serikali-chaelezwa/> accessed on
30/03/2011 at 18:01 Hours. 204
(2007) Addressing the role of private security companies within security sector reform programmes,
p.5.
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Tanzania is also experiencing a similar problem, since private policing took control of
the security sector, crimes rate has also increased in recent years205
. We have seen,
between 2005-2009 crimes such as stock theft, armed robbery and burglary gaining
momentum all over the country206
. For instance, Banks have been robbed while being
guarded by PSCs207
, some PSCs‟ personnel have also been apprehended for either being
part of criminal groups as informers or by taking part in simple theft208
. The Police
Force and the Ministry of Home Affairs in Tanzania have admitted several times as to
the increase of violent offences with direct involvement of security guards in abetting
criminals209
.
205
The Citizen, Rising Crime Rate Source of Concern, 24 February 2010
<http://allafrica.com/stories/201002240661.html>. U.S. Department of State (Bureau of Diplomatic
Security), Tanzania 2011 OSAC Crime and Safety Report, 5/1/2011. Chapter 2 of The Legal Human
Rights Centre, Tanzania Human Rights Reports 2006, 2007, 2008, 2009 & 2010. 206
The Tanzania Police, Annual Report for the Year 2009. 207
„African Banks Struggle with ATM Security‟ <
http://www.atmmarketplace.com/article/134843/African-banks-struggle-with-ATM-security> last
accessed on 06/01/2011 at 10:22 Hours. 208
Katemi Erick, E-Mail interview, 07 December 2010. Also, The Tanzania Police Force‟s Annual
Reports from 2000 to 2009. On 17/01/2011, Mr. Mizengo Pinda (Tanzania, PM) called for a national
debate on the increase of state of insecurity in Tanzania. 209
Maigala, R. „Konyagi zawafikisha pabaya walinzi‟ (Dar Leo, Wednesday, 29 December 2010 09:38),
available at <http://www.darleo.co.tz/index.php?option=com_content&view=article&id=1754:konyagi-
zawafikisha-pabaya-walinzi&catid=35:habari-za-mahakamani&Itemid=48> 29/03/2011 at 11:20 Hours.
Lenatus Leonard, „Walinzi binafsi tishio kiusalama Mbezi‟ (Reader‟s letter to the Editor, Dar Leo,
Tuesday, 28 December 2010 09:46) available at
<http://www.darleo.co.tz/index.php?option=com_content&view=article&id=1736:walinzi-binafsi-tishio-
kiusalama-mbezi&catid=34:maoni-ya-mhariri&Itemid=29> accessed on 29/03/2011 at 10:49 Hours.
„Walinzi washikiliwa kwa kushirikiana na majambazi kuvamia mgodi‟ (Habari Leo/Mwanakijiji,
Wednesday, 14 January 2009) <http://www.mwanakijiji.com/en/national/lakezone/walinzi-washikiliwa-
kwa-kushirikiana-na-majambazi-kuvamia-mgodi.php> viewed on 28/03/2011 at 18:18 Hours. Shaaban,
O. ‘Watu Watatu wabambwa wakiingiza SMG 2 Zanzibar‟ (Uhuru, Friday 7th
April, 2006) available at
<http://www.habaritanzania.com/new/articles/4752/1/Watu-Watatu-wabambwa-wakiingiza-SMG-2-
Z%92bar> 29/03/2011 at 11:53 Hours. Wezi Waiba Tena Vifaa Ofisi Binafsi ya Rais Mstaafu Mkapa
(March 23rd
, 2010) available at <http://www.mohammeddewji.com/blog/?p=1749 > 29/03/2011 at 11:46
Hours. Mpera, M. & Sanga, T. „Wakamatwa wakivunja ofisi Dar‟ (Mwananchi, Tuesday, 11th
May
2010 22:04) <http://www.mwananchi.co.tz/news/4-habari-za-kitaifa/1526-wakamatwa-wakivunja-ofisi-
dar.html> visited on 30/03/2011 at 16:41 Hours. Tesha, G. „Polisi zishughulikieni kampuni za ulinzi‟
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Jaba, 2011
The Tanzanian security market though has many PSCs but only few companies seem to
prosper than the rest. In a quick survey of the prospering companies, it was discovered
that there is a considerable number of ex-army officials employed in them210
and of
course, those companies have secured a number of contracts in government affiliated
agencies, foreign embassies, High Commissions and transnational organisations. To me,
such oligopolistic nature of the private security market is likely to weaken competition
and increase prices to the extent of sidelining commoners to access good security
services211
.
Finally, as Markusen212
argues, the chain of command in PSCs is more complicated
than in the Police Force or otherwise members of the armed services where the chain of
command is clearly defined213
. Perhaps, this justifies the fact that, PSCs in Tanzania
have been very slow and of course hesitant to respond to security alarms in areas where
they are not contracted214
. This is not the case with the members of the Police Force who
(Habari Leo, 3rd October 2009 at 23:59) available at <http://habarileo.co.tz/kitaifa/?n=3789> accessed on
31/03/2011 at 09:27 Hours. 210
Abdalah Msagama (Chairman – TUPSE) says one-third (approximately 600,000) of the employees in
the TPSI are retired members of Tanzania armed forces. He contends further that retired army officials are
preferred because they can use weapons and requires no extra trainings. 211
Sabinus, J. „Changamoto za sekta binafsi za ulinzi Tanzania. East African Security: Tunazikwa kimya
kimya‟ Habari Leo, Makala, 1st September 2010 @ 13:00, available at
<http://www.habarileo.co.tz/kitaifa/?n=9712 > last accessed on 28th
March 2011 at 17:42 Hours. 212
(RE:2003) the Case Against Privatizing National Security, pp. 18 & 19. 213
Section 4 of The Police Force and Auxiliary Services Act (RE: 2002), and Rule 3 of The Special Police
Officers Regulations, G.N. no. 392 of 1958 (RE: 2002). 214
PSCs usually demand pre-payment before salvaging burning houses, e.g. Knight Support (T) Ltd., have
been criticised for lacking any sense of corporate social responsibility. Finnigan wa Simbeye, Nahodha
needs support to revive fire-rescue industry. Habari Leo, 4th January 2011 @ 16:00, available at
<http://www.dailynews.co.tz/feature/?n=16056&cat=feature>. Sunday News Reporter, Fire
extinguishing row for discussion. 8th January 2011 @ 11:00, available at
<http://www.dailynews.co.tz/home/?n=16171>. Finnigan wa Simbeye, Nahodha takes private security
firms to task, <http://in2eastafrica.net/nahodha-takes-private-security-firms-to-task/> last accessed on
07/07/2011.
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react instantly even without an order from the superior to rescue a situation. Therefore, if
at all, we embark on downsizing the Police Force and their services to give a way to
private policing without substantial reform of the sector, the country may be driven into
security dilemmas to the point of no return.
Lastly, the TPSI has not been reasonably integrated in our security system, as it looks
like a new scrap on an old cloth. Clearly, PSI is a result of interventionist policies of
developed nations to force developing ones to give way to private actors in provision of
social services. It is in this trend therefore, the government has blindly allowed PSCs to
operate without making thorough study of the security system of the country, need and
means of the people, political economy and implications of the PSI to commoners. The
question that remains unanswered by the government is that, „how the government
protect vulnerable population in the private security market? My biggest concern is not
the presence of PSCs in Tanzania, but what is going to happen if the sector continues to
operate the way it is today.
3.4 Conclusion
The chapter has critically analysed PSCs‟ services in the light of constitutional rights of
security of persons and property. The chapter advance three major arguments; one, that
the Constitution of Tanzania (infra) as well as international conventions guarantees and
obligate the state to ensure security and order to its citizen. Two, that privatisation of
security and downsizing of armed forces has curtailed individuals‟ right to security since
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only a small section of society can afford services of PSCs. Three, unregulated PSCs and
lack of professionalism in the TPSI is a threat to human and property security (safety).
The submission of this chapter is that the right to security of persons and property is a
foundation of other rights accorded to human beings. One can not enjoy the right to life
for example, if at all, the country is in a state of anarchy. Likewise, citizens can not
plead their rights to work, assemble if at all, their freedom of movement is curtailed by
the state of insecurity. It is in this sense that most of the Bill of Rights, either
international or municipal, subject basic rights of individuals to national or public
security. This is so for a simple reason that the state of insecurity (reign of terror) in
most cases, culminate into gross violation of human rights.
In the light of reasons advanced above, the study urge the government to put in place
laws and policy on PSCs so as to allow public-private partnership and to make sure that
PSCs services are available even to marginalised groups in Tanzania.
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CHAPTER FOUR
LEGAL ISSUES IN THE PRIVATE SECURITY INDUSTRY IN TANZANIA
4.0 Introduction
The chapter argues that procedural and substantive laws governing public policing in
relation to power of search, arrest, possession and use of firearms do not envisage PSCs
activities nor confer special protection to private security guards above ordinary citizens.
The chapter argues further that lack of formal public-private partnership in the area of
policing limits activities of PSCs. Finally, that lack of recruitment and training
guidelines as well as specific labour standards for PSCs impedes smooth operation of the
TPSI.
4.1 Legal Issues in the TPSI
4.1.1 Relationship between PSCs and Public Police
Even though both public and private security personnel carryout policing works, their
core duties differ in terms of their legal mandates and operational structure215
. The
distinction between police and private security officers are illustrated by functions which
each performs, for example, while private security officers are only responsible in areas
where they are engaged contractually216
, police officers on the other hand have a
constitutional or statutory duty to offer security services and protection to the general
215
Fischer, R.J., et al. (2008) Introduction to Security (8th
Ed.), pp. 122-129. 216
Rule 47(1)(2) of the Employment and Labour Relations (Code of good practice) Rules, published in
GN. No 42 of 16/02/2007 [Made under section 99(1) of ELRA (supra)].
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public without geographical limitation217
. Further, private security guards are restricted
in the use of force and firearms, thus when their lives are in danger, they are supposed to
alert the police like ordinary citizens to rescue the situation. Conversely, police officers
have special training and expertise to deal with serious crimes and of course, statutory
powers to pursue and apprehend suspects of crimes and give security warning to the
public218
. The police officers are empowered to arrest and detain a suspect for twenty
four hours before bringing him/her to Court or release the suspect on police bail219
.
The law establishing the Police Force220
and other procedural law221
regulating,
empowering and which provides immunity to police officers do not envisage PSCs‟
personnel. For instance, PSCs‟ personnel have no special power to arrest suspects,
conduct search and seizure of suspicious property compared to those of a police
officer222
. However, private security guards may be covered under section 16 of the
Criminal Procedure Act (CPA)223
on powers which reads as;
(1) Any private person may arrest any person who in his presence
commits any of the offences referred to in section 14224
.
(2) A person found committing an offence involving injury to property
may be arrested without a warrant by the owner of the property or
his servants or a person authorised by the owner of the property225
.
217
Section 27(2) of CAP 322. 218
Manda, G. (2010) „Differences between Public Security and Private Security‟, available at
<http://www.ehow.com/list_7540029_differences-public-security-private-security.html> last visited on
06/01/2011 at 11:04 hours. Fischer, R.J., et al., op. cit., pp. 59-64. 219
Sections 32(1), 64-69 of the CPA. Also, section 31 of CAP 322. 220
CAP., 322 and Article 147 of the Tanzania Constitution. 221
CAP., 20. 222
Criminal Procedure Act, CAP. 20, (RE: 2002). 223
Section 20 of the CPA. 224
Section 14 of the CPA lists offences that allow a police officer to arrest a suspect without a warrant.
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Further, under section 36 of the CPA, every member of the society (including, private
security guards) are duty bound to assist a police officer or magistrate to apprehend a
criminal who has escaped from custody or detention or otherwise wants to disturb public
peace or destroy any public property. Impliedly, the CPA under Section 37 (1)226
encompasses also situations where employees of PSCs have died or sustains injury or
material loss in a course of assisting the police to apprehend a criminal or prevent
commission of a crime to receive compensation. In short, PSCs‟ personnel have no more
power of arrest than ordinary citizens, they are not even considered as justice of
peace227
. There is no law that defines PSCs relationship with existing national security
agencies i.e. TPDF, the Police Force, and the intelligence unit228
.
Moreover, section 40 of the CPA by implication suggests that there are situations where
any other person (including, private security guards) other than the police may under a
specific Court‟s order execute a search warrant.
The PSI has actors such as private investigators and detectives. For example Tanzania
Private Investigation Agency (TPIA) involves in investigation of missing person, tracing
debtors, child abuse or molestation, cheating spouses, insurance investigation, criminal
investigation, arson and fire loss investigation, unsolved crime investigation,
surveillance, private clients, corporate clients, computer forensics investigation,
225
However, Section 31(1) of the CPA states further that, “any private person arresting a person without a
warrant shall without unnecessary delay hand over the person so arrested to a police officer or to the
nearest police station or, in the absence of either, to the Ward Secretary or the Secretary of the Village
Council for the area where the arrest is made”. Compare with section 118. 226
Compare with section 72 and 90 of CAP., 322. 227
As per SS. 51-62 (Part VI) of the Magistrates‟ Courts Act, No. 2 of 1984 (RE: 2002) CAP 11. 228
In this context, the term „relationship‟ means „public-private partnership‟ in carrying out policing
works.
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undercover investigations, white-collar crime, intelligence services, photographic
evidence, fraud prevention, criminal and civil legal cases, fraud, theft, stolen or
counterfeit goods, sexual harassment investigation, suicide investigation. However, the
CPA confers investigatory and detective powers to police officers only, and there is no
provision whatsoever that envisages a private person or ordinary citizen to that effect229
.
One may ask, where does an investigation agency such as the TPIA derive investigative
or interrogative powers? In the field research, I discovered that procedures for licensing
private investigators and detectives are yet to be put in place, and there is no concrete
record whatsoever as to how many agencies, individuals or companies are licensed or
otherwise engage in investigation and detection business230
. My concern here is how
private actors such as TPIA respect individuals‟ rights of privacy, personal security and
personal freedom in their daily activities231
.
The PSCs‟ personnel have been accused of usurping police powers and lawbreaking,
likewise, members of the police force are also accused by PSCs for accepting bribes and
colluding with criminals. Regardless of the differences between the two, the Tanzania
Police Force has endeavoured to create an ad hoc arrangement which involve PSCs in
community policing in the so called, „public-private partnership‟. For instance, the
police have been involving PSCs in outreach programmes and sometimes providing
229
Sections 46-63 of the CPA. Also Part IV of CAP., 322. 230
An interview with Mr. Maro (ASP). 231
Articles 15 and 16 of the Tanzania Constitution.
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special training to a few personnel of PSCs on how to counter crimes232
. Remarkably,
Mr. Mwema (IGP) has allowed PSCs personnel to be trained at Kidatu Police College233
.
Therefore, such informal arrangement between the police and certain PSCs without
proper justification of the law amounts to informal delegation or usurpation of public
powers contrary to section 100 of the Penal Code (supra).
In my submission, the rationale of introducing PSCs was to relieve or free police so as to
take care of the poor. In practice, the poor and powerless are least protected by public
police and PSCs thus, resorting to „neighbourhood watch groups‟ and vigilante groups
(e.g. sungusungu, and maasai watchmen). Therefore, there is a need to enact a law
which, among other things, will define (enumerate) areas of cooperation between PSCs
and the police as well as setting corporate social responsibilities for PSCs.
4.1.2 The Law on Possession and Use of Firearms by PSCs
The Armaments Control Act (ACA)234
prohibits importation and exportation of
armaments in and from Tanzania without prior authorisation of the National Armaments
Control Advisory Board235
. The ACA also bars individuals to manufacture or assemble
firearms under section 13. The same position is reiterated under sections 8 and 9 of the
Arms and Ammunition Act (AAA)236
. The AAA restricts individuals from possessing,
232
Job, O. (2010) „Ulinzi shirikishi, IGP Mwema ametangulia tumpe ushikiano‟, article appearing in
Habari Leo of 28th
January 2010, available at <http://habarileo.co.tz/kitaifa/?n=5478> last visited on
06/01/2010 at 17:30 hours. 233
There are no clear terms under this arrangement, and the same is yet to be implemented. 234
CAP. 246, Act no. 1 of 1991 (came into force on 15/01/1994). 235
Sections 7 and 12 of CAP 246. 236
CAP 223 (Also, Act no. 2 of 1991, GN. No. 66 of 4th
May 2001, and Act no. 9 of 2007).
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carrying, selling or to transfer and store firearms without a valid license237
. On top of the
AAA, the Penal Code238
under section 84 bars and criminalises the act of going armed
in public in such a way that is likely to cause terror to the people.
As we have seen in the foregoing paragraphs, there is no law in Tanzania that directly
envisages activities of PSCs and their personnel. However, for the first time the Arms
Management and Disarmament Regulations (draft regulations, not yet in force)239
among other things make provisions which cover possession of firearms by PSCs. The
Regulation, inter alia, requires relevant authority to identify and register firearms to
PSCs and then to individual security guards in a respective PSC240
. The Draft Regulation
further restricts registered (licensed) firearm owners to pledge, lend firearms to a private
company or individuals. It further requires PSCs‟ personnel who carry and use firearms
to be trained and certified by the registrar of firearms, and PSCs in possession of
firearms to ensure that they have safe strong room for safe custody of arms under their
control241
. At the moment, there is no clear records as how many firearms and of what
kind are in the possession of PSCs.
In my view, the Draft Regulation is in tandem with section 33(1)(a) of CAP 223 which
empowers the Minister to make regulation prescribing category of persons (both natural
and legal persons242
) to be issuable with a licence or permit to possess arms.
Nonetheless, existence of private armed organisation (PSCs) as we have seen in chapter
237
Sections 4, 5, 10, 24, 25, 37 and 38 of the AAA. 238
CAP 16 (RE: 2002). 239
Of 2010, made under section 33 of CAP., 223. 240
Rule 9. 241
Ibid. 242
Definition of the term, „person‟ under section 4 of CAP., 1.
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two of this study is unconstitutional, thus issuing them with a permit to possess firearms
becomes outright irregular.
In practice, after firearms have been issued to a respective PSC, such firearms are
supposed to be carried by ex-police, ex-auxiliary police, retired army officers and PSCs
personnel who have mgambo and JKT trainings243
. In the absence of the listed personnel
above, PSCs are required to choose and thus train a few personnel with no criminal
records, easily trainable and of good reputation to carry and use firearms244
.
Police officers are allowed to have access and use of firearms without much
restriction245
, PSCs personnel are allowed (with restriction) to hold „shotguns with single
bullet round‟. Taking into account that robbers/bandits are always armed with weapons
such as sub-machine guns, it becomes very difficult for private security guards who use
shotguns to restrain armed robberies. Moreover, unlike public police who have
immunity under the police law to shoot and kill in certain circumstances246
, PSCs‟
personnel have no such immunity, thus end up being charged with murder247
. The only
avenue available to PSCs‟ personnel in case of shooting criminals is to rely on sections
18, 18A, 18B and 18C of the Penal Code (supra) which accord to every individual a
right to use reasonable force to defend life or property.
243
Major Bululu [Ultimate Security (T) Ltd.], Telephone interview, 10/04/2011 at 15:23 Hours. 244
Ibid. 245
Sections 26, 27 and 29 of CAP 322. 246
Section 29 of CAP 322. This provision allows the police to shoot after giving a warning to a person who
escapes from prison or custody, prevent lawful arrest or attempt to rescue or break out any person in a
lawful custody. 247
Daudi Sabaya v. Republic [1995] TLR148 (CA).
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At the moment, there are a lot of problems relating to possessions of firearms by PSCs.
For instance, some PSCs issue firearms to their personnel without proper training on the
use of arms thus causing much concern to the public. Besides, ex-police and army
officers who work in the PSI are not prepared mentally to use firearms as civilians and
thus end up in conflict with the law. Apart from poor training of gun holders, PSCs are
also accused of controlling firearms under their possessions recklessly, and thus firearms
end up in hands of criminals248
. Many people I interviewed were sceptical on how PSCs
handle and keep (store) weapons under their possession. It was also revealed that some
members of the armed forces hire firearms illegally to PSCs in return for considerable
amounts of money249
. Nonetheless, too much restriction on possession and use of
firearms by PSCs personnel has exposed them to security peril as sometimes they bump
into heavily armed bandits while guarding properties worthy billions with a club,
wooden baton/truncheon and a torch250
.
4.1.3 Wearing of Uniforms and Identification of PSCs personnel
The Tanzanian Penal law251
criminalises wearing of uniforms of armed forces and or
wearing of attire having the appearance or bearing any of the regimental or other
distinctive marks of armed forces252
. With regard to the PSI, there are neither guidelines
as to colour and style of uniforms (attire) nor minimum descriptions as to the size, style
248
Mganga, Personal interview, 15th
October, 2010. This is an offence under section 32 of CAP. 223. 249
This transpired in an interview with a certain police officer under condition of anonymity. 250
Hasina Mjingo (2010) Female night guards in high risk occupation. Daily News Tanzania,
13/11/2010, available at <http://www.dailynews.co.tz/home/?n=14511> viewed on 15/07/2011. 251
Section 178 of the Penal Code, CAP., 16. 252
Also, Section 6(1)(a) of The National Security Act, CAP. 47 (RE: 2002).
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and content of badges worn by PSCs‟ personnel. This means that each PSC has its own
kind of uniform styled in its own way.
In practice, before a PSC is licensed or rather issued with a police permit to start
business in Tanzania, directors of the company are required to provide a sample of
uniforms to be used by their employees. However, this exercise of ascertaining PSCs‟
uniform pending issuance of a police permit seems to be blurred. This is because, there
are several PSCs in Tanzania whose attire resembles (though not similar) to that of
public police officers and prison officers253
. This has brought confusion to commoners
who are not even aware of the powers of private security guards as opposed to police
officers254
.
Recently, the Police Force through the department of community policing have tabled a
proposal to PSCs to consider using a single uniform255
. However, this proposal has been
opposed by small companies rather than big ones for fear of being marginalised and thus
thrown out of business256
.
I think, there is a need to have a single uniform for all private security guards operating
in Tanzania. A single uniform will serve the purpose of easy identification of the PSI, at
253
Appendixes E & F. This fact was also learnt in an interview with Mr. Victor Kitamale (UDSM law
alumnae, and police officer at Songea), Telephone interview, 23/03/2011 at 10:29 hours. Mr. Abdalah
Msagama and Augustino Rupia (TUPSE), Personal Interviews, on 02/05/2011 at TUPSE Headquarter, Dar
es Salaam mentioned “Dragon Security Company” that [it] has uniform which resembles the Tanzania
Police Force‟s Khaki uniform. The bongoland.net, Iweje Kampuni za Ulinzi Zivae Sare sawa na za
Majeshi Yetu?
<http://www.bongoland.net/viewtopic.php?p=1005&sid=1442c56986f705b3be6436cb54539cf7> last
viewed on 29/03/2011 at 09:16 Hours. During field research, I observed that almost all PSCs use/wear
shoes like those worn by Tanzanian armed forces. 254
This fact was learnt in an interview with Mr. Masanja Maduhu, prison officer stationed at Tabora,
23/03/2011 at 10:47 Hours. 255
Learnt in a discussion with Mr. Maro (ASP). 256
Ibid.
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the same time solving the problem of people mistaking PSCs‟ personnel to police
officers. Otherwise, PSCs will continue violating section 178 of the Penal Code (supra)
while the police taking no action. I suggest that the Auxiliary police‟s approach should
be adopted to solve PSCs‟ uniform dilemma. For example, section 138(1)(2) of The
Police Force and Auxiliary Services Act (CAP 322) provides that Auxiliary polices
would be identified by a single uniform (and badge) of a design approved by the IGP.
4.2 Operation of PSCs
To a large extent, the TPSI is dominated by companies formed by serving members and
ex-members of the armed forces257
and a few multinational companies. Further, the
PSCs in Tanzania are registered as business enterprises under the Companies Act258
and
they are governed by the general business laws and principles which apply to all
business entities. After a PSC is given a police permit, starts to operate indefinitely
since, normally the permit does not state an expiry date or renewal259
.
There are companies which operate even after the death of original subscribers of the
company without renewal of the permit. It should be noted that, usually the police
permit is issued to individuals depending on their personal profile or merit. Though
under company law after incorporation a company acquires legal personality and thus
distinct from shareholders. Nevertheless, this rule (i.e. corporate veil) need to be
257
Ibid. (usually, before a company is issued with a permit to engage in security business, must show that
its founding members (directors) have served in the army or the Police Force. Most of interviewees
considered the PSI as an exclusive investment area for retired army officers. Thus, this proves the
assumption that the TPSI is dominated by ex-members of the armed forces). 258
Act No. 12 of 2002. 259
John C. (2009) „Private security companies in plea for recognition‟, an article appearing in the Daily
News of 20th
November, 2009.
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qualified taking into consideration the sensitive nature of the security business. I would
have suggested that, if it is a family business, the heir or heiress (successor of the
business) needs to renew a police permit and be reassessed personally. The same
procedure need to be adopted in case of transfer or sell of a business entity or substantial
change of shareholders, guarantors and directors of the company.
With regard to the issue of renewal of police permit by PSCs, I suggest that the same be
renewed every year. Annual renewal of a permit will ensure effective monitoring of
security service providers by reassessing each company‟s credentials before being
reissued with a permit. The practice of annual renewal of a licence is not a new idea in
Tanzania, because other regulatory bodies like the Tanzania Insurance Regulatory
Authority (TIRA) under the Insurance Act (2009) require dealers in insurance business
to renew their licences every year260
.
Normally, PSCs‟ services are offered both to the public and private agencies. However,
my concern is that the TPSI lacks transparency261
and accountability. For instance, it is
not clear as to how PSCs replaced Auxiliary police and peoples‟ militia in providing
security in certain public offices or institutions. A good example is the presence of PSCs
at Ardhi University and Dodoma University instead of Auxiliary police. We have seen
PSCs installing security devices in various buildings; however the police have failed to
260
The fact learnt from Prof. G.M. Fimbo (my research supervisor, and the Chairman of the National
Insurance Board). 261
The good example is when I was researching, Mr. Almas Maige (TSIA – Chairman) refused to be
interviewed and even to allow me to have access to TSIA Constitution (which I believe is a public
document). Other members of TSIA were also reluctant to be interviewed. I was able to get a copy of
TSIA Constitution from a Good Samaritan who is running a PSC in Mara Region.
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set minimum standards of electronic devices used in security business and of course to
set a code of practice (conduct) on how those services should be offered. Besides, the
minimum capital required to be licensed as a security service provider is not certain.
Additionally, the current requirement to be licensed as a PSC does not compel PSCs to
take insurance cover or otherwise to repay customers who are victims of poor services
offered by their personnel.
4.2.1 Self-regulation and Cooperation in the Private Security Industry
PSCs in Tanzania are intrinsically divided according to the size of the company in terms
of capital (volume of the business), origin i.e. indigenous PSCs and foreign owned
PSCs. This division is said to fuel the lack of cooperation among PSCs in Tanzania.
Since the establishment of the PSI in early 1980s to 2005 there was no any kind of
association that represented the interests of owners of PSCs in Tanzania. In 2005, to fill
in the current regulatory vacuum, a few sections of PSCs‟ stakeholders established the
Tanzania Security Industry Association (TSIA) as a voluntary association aimed at
monitoring activities of its members262
. It also aimed at putting in place some sort of
professional code of conduct and standards among its members. However, it should be
noted that TSIA‟s activities are not legally binding among its members and that TSIA‟s
membership is a voluntary one263
. Apart from TSIA there is no other forum that joins
together PSCs in Tanzania264
.
262
Appendix J. 263
TSIA has 240 members out of 450 PSCs registered in Tanzania [Information learnt from Isaya Maliseli
(TSIA - Secretary), Telephone interview, on Sunday 14th
August 2011 at 11:24-29 Hours]. 264
Ibid.
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On this point, I would argue that Parliament erects law which, among other things, will
recognise and establish TSIA as an involuntary statutory association for PSCs operating
in Tanzania. By that I mean that, once a PSC is licensed and permitted to operate in
Tanzania, it forthwith acquires automatic membership with TSIA. The rationale of
making TSIA a statutory creature is to avoid disparity within the TPSI and to establish a
cross-section of standards in terms of code of conducts, code of practice and code of
professional ethics for PSCs so as to ensure self-regulation of the PSI. A good example
of this model of self-regulation is the „Tanganyika Law Society‟, a statutory association
for legal practitioners (advocates of the High Court) all over Tanzania Mainland created
under the Tanganyika Law Society Act265
.
4.2.2 Legal Standards for Recruitment and Training of Private Security Personnel
There are no proper criteria and procedures laid down by the police in relation to
selection, training and employment of PSCs‟ personnel266
. Besides, there is no
accredited institution (or a means to such accreditation) to train security personnel in
Tanzania. The only requirement set by the police is that after a PSC has recruited [its]
employees must take their fingerprint to the police for criminal record check. However,
this practice may create security problems, reasonably, I would have expected criminal
record check to be conducted first so that a prospective employee could obtain a
criminal clearance certificate from the police and then seek employment in the security
sector. Albeit, PSCs are very hesitant to submit fingerprints of their employees to the
265
CAP., 307 (RE: 2002), sections 3 and 6. 266
For example, in the Republic of South Africa there is regulation which provides for standards for
training and classification of private security providers.
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police, therefore requiring seekers of employments in PSCs to attach a police criminal
clearance certificate to their CV (before being employed) seems to me the only logical
solution.
Further, there is no requirement as to education qualifications therefore each PSC has set
its own criteria depending on the financial status of the respective company. For
instance, big PSCs with viable financial base require prospective employees to be
holders of a certificate of secondary education or above, plus other optional criteria such
experience in the field of security (i.e. ex-members of armed forces, or attended JKT and
or Mgambo Trainings)267
. Whereas, in small or newly registered PSCs with feeble
financial base requires their prospective employees to know how to read and write268
.
Generally, the security industry is one of the sectors that have employed a number of
ordinary people in Tanzania, especially standard seven leavers.
The foreign owned PSCs prefer hiring (to employ) foreigners. For example, Kenyans,
South Africans and Ugandans are preferred more than Tanzanians since they can speak
English language eloquently. Other companies dealing in mining business such as
Barrick Gold mines has established an in-house (proprietary) security system which
employs foreigners as security officers. However, the tendencies of employing
foreigners to guard people‟s lives and assets in Tanzania who lacks a sense of patriotism,
267
E.g. KK Security Ltd., Ultimate Security Ltd, and Knight Support Ltd. 268
Idd Mandi, Casual Conversation, 07 September, 2010.
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in one hand, endangers national security and, on the other violate section 24 of the
Tanzania Investment Act269
which set an immigration quota.
Moreover, there is no minimum standardised training for all private security personnel in
Tanzania. In that regard, each PSC has adopted its own ways and procedures of training
[its] personnel. The problem of this kind of decentralised system of training PSCs‟
personnel fails to expose employees of PSCs to common core techniques, ethics and
knowledge. Most local PSCs run their training program for two weeks, while for foreign
owned PSCs train their employees for one month or two months depending on the
market demands at the time270
. However, this kind of training has a number of
weaknesses as follows. First, the training mainly concentrate on physical training (i.e.
body building) especially on how to deal with security threats, and on how to handle
customers271
. Second, it is a kind of training that does not expose PSCs personnel‟s to
various substantive and procedural laws of Tanzania. Thus, in their operation PSCs
personnel end up usurping police powers which expose them to criminal cases or in
other instances their companies suffer civil penalties under the doctrine of vicarious
liability272
. Third, ex-members of armed forces who in most cases get employment in
PSCs do not receive special training to civilianise them so as to behave like other
employees of PSCs who have never been members of armed forces. Finally, there is no
arrangement for regular or continuing training of PSCs personnel, in most cases PSCs‟
269
Act No. 26 of 1997 (RE: 2002). 270
Pamba, B., Telephone interview, 28th
December, 2010. 271
Ibid. 272
This is a common law rule that hold an employer liable for torts of his employee.
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personnel are trained only once, especially at the beginning of their career, and very
rarely afterwards273
. Besides, employees of PSCs are not funded or otherwise be given a
study leave „with pay‟ by their employers to pursue further education, the only way for
an employee of a PSC in Tanzania especially security guards to go back to school is to
quit his/her employment274
.
The Police Force is also not happy with poor training of PSCs personnel, since in certain
circumstances PSCs‟ personnel have ended up disturbing crime scenes thus, losing or
disturbing evidence or clues at a crime scene that might have lead to apprehension of
criminals275
.
4.2.3 Trade Union, Remuneration and the Working Conditions in PSCs
As we have seen in preceding chapters, PSCs in Tanzania have employed almost 1.7
million people276
. The law in Tanzania allows workers to form or join trade unions277
save for workers in the armed forces278
. Unlike members of the armed forces, PSCs
employees are not barred to form or join trade unions regardless of the facts that PSCs
do qualify as armed forces for reasons stated in chapter two (ante). It is in this sense
therefore, PSCs‟ personnel have utilised Part IV and V of the Employer and Labour
273
Baraka Makanya, personal interview, 23rd
November 2009. 274
Ibid. 275
Data from the Questionnaire, „The Private Security Industry in Tanzania: Challenges, Issues and
Regulation‟, drawn and distributed by the researcher. 276
Mr. Almas Maige (TSIA – Chairman) is claiming that PSCs‟ personnel are now two (2) million
(Appendix E). 277
Part IV and V of the Employer and Labour Relations Act, Act No. 6 of 2004. 278
Section 82 of the Trade Unions Act, No 10 of 1998, prohibits members of the Police Force, military
force, and prisons service to join or to be affiliated to any trade union. It should also be known that the
Employment and Labour Relations Act (supra) does not apply to armed forces.
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Relations Act (ELRA)
279 to form various trade unions, but the main one is the Tanzania
Union of Private Security Employees (TUPSE)280
which is a voluntary union aimed at
protecting interests and rights of employees of PSCs all over Tanzania281
. However,
owners of PSCs (employers) are not happy with the ELRA‟s provision which allows
PSCs‟ personnel to form trade union by advancing two major reasons282
. The first reason
being that, services offered by PSCs‟ are as essential as those of the Police Force, thus it
is not fair for PSCs‟ personnel to be governed by civilian laws such as ELRA. Secondly,
that usually PSCs personnel adheres to armed forces‟ norms of conduct and ethics, thus
by allowing PSCs personnel to form and join trade unions may paralyse other sectors
which depend much on PSCs for security services in case of general strikes or
boycotts283
. In short, employers in the PSI (represented by TSIA) oppose their
employees to be governed by the ELRA, the Labour Institutions Act284
and Regulations
thereto. Conversely, employees in the PSI (especially, TUPSE) support the current
labour regime but are not happy with how it is implemented285
especially on payment of
superannuation, annual leave, sick leave, paternity and maternity leaves.
I partly subscribe to views harboured by the TSIA (employers) that workers should not
be allowed to form or join trade unions for a simple reason that PSCs qualifies as armed
279
Act No. 6 of 2004. 280
Appendix K. 281
Interviews with Abdalah Msagama (Chairman – TUPSE) and Augustino Rupia (Acting Secretary –
TUPSE) on 02/05/2011 at TUPSE Headquarter, Dar es Salaam. 282
Ibid. Workers in the TPSI who joins TUPSE faces disciplinary actions, warnings (threat) or in other
instances are denied to renew their contracts of service. 283
Athuman Maige (TSIA‟s Chairperson), In an interview with Dailynews (Tanzania). Salum Maige,
Walinzi 285 wa mgodi wa Geita GGM wagoma, April 13, 2011
<http://radiofreeafricatz.com/2011/04/13/walinzi-285-wa-mgodi-wa-geita-ggm-wagoma/> accessed on
16/07/2011. 284
Act No. 7 of 2004. 285
Charles, Personal interview, 03 January 2011.
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forces. Thus, allowing PSCs‟ personnel to exercise their rights (e.g. boycott, strikes) like
workers (in less security sensitive sectors) may paralyse other economic sectors which
depends on PSCs services. On the other hand, PSCs personnel can still be governed by
civilian laws and thus allowed to form and trade unions as per Article 5(1)(2) of the
International Labour Organisation Convention No. 98286
and Article 9(1)(2) of the
International Labour Organisation Convention No. 87287
.
Expansion of the TPSI has also exposed the same to more challenges relating to wages
and working conditions. To be specific, these challenges are long working hours, poor
working conditions, unfair termination (job instability), underpayment (meagre salary)
and lack of annual leave. In my findings, employees of PSCs works for a duration of 12
hours or more, usually there are two shifts, the first staring at 06:00 am to 06:00 pm,
while the second at 06:00 pm to 06:00 am (i.e. „day‟ and „night‟ shifts). This
arrangement on the face of it contravene provisions of the ELRA which essentially
prohibits an employer to require or permit an employee to work for more than 12 hours
in any day288
. The ELRA further requires an employee to work for 6 days and 45 hours
in a week, and 9 hours per day289
. Thus, this means that there ought to be three shifts in
24 hours rather than two, each shift with a total of 9 hours. Though the ELRA allows an
overtime agreement between an employer and employee290
, in practice employees of
PSCs are forced to work overtime and for 7 days a week without consenting, because
286
Right to Organise and Collective Bargaining Convention, 1949. 287
Freedom of Association and Protection of the Right to Organise Convention, 1948. 288
Ibid., S. 19(1). 289
Ibid., S. 19(2)(a)(b)(c). 290
Ibid., S. 19(3).
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they fear to lose their job. Besides, the ELRA gives to employees 12 daily resting hours,
and 24 weekly resting hours (one day)291
, though an employer and employee can agree
to reduce resting hours to 8 daily292
. In my view, the danger with working more than 9
hours per day is that an employee may lose concentration and become inefficient due to
fatigue (tiredness), thus putting the property he or she is guarding at high risk of being
stolen or destroyed. Many PSCs owned by indigenous employers do not even give
annual leaves to their employees293
. This practice violates section 31 of ELRA which
grant for annual leave rights to every employee. For economists, a worker who works
throughout a year without resting becomes less productive, inefficient, and thus
monotonous. Therefore, it is in the employer‟s interest to give his/her employers an
annual leave.
Another challenge is underpayment of PSCs‟ employees294
. The ELRA empower the
Minister concerned to issue circulars (regulation) as to the rate of wages to be paid by
employers295
. Currently, local PSCs are required to pay a minimum wage of 85,000Tshs,
while the rate for international PSCs operating in Tanzania is 105,000Tshs, monthly296
.
The said wage is too meagre compared to the workload they are required to carry out,
working hours and the existing inflationary rate. For instance, in one security contract
that I passed through, company „X‟ was engaged to guard Embassy „Y‟ by providing 5
291
ELRA, S. 24. 292
Ibid. 293
This fact transpired in a personal interview with several private security guards in Dar es Salaam who
preferred anonymity so as to protect their jobs. 294
Appendixes G, H & I. 295
S. 98(1)(2) of ELRA. 296
Pamba, B., Telephone interview, 28th
December, 2010.
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security personnel, each security personnel cost Embassy „Y‟ 600,000Tshs per month,
but at the end of the month each security officer pocketed 85,000Tshs from company
„X‟297
. What I am trying to show here is that workers in the TPSI are exploited to the
maximum by their employers. It should be noted that, normally wages in PSCs operating
in Tanzania increases only after an annual review of the wage by the Minister for labour.
Thus, there is neither an „automatic‟ annual increment attached to their contract of
service298
nor viable procedures of promoting employees299
.
Another area of concern is overtime payment300
. Overtime payment varies from one PSC
to the other. Under the ELRA an employer is required to pay an employee not less than
one and one-half times the employee's basic wage for any overtime worked301
. However,
in practice PSCs do not adhere to the said rule. For example, company „Q‟ pays a
monthly salary of 105,000Tshs to its security guards and an overtime of 807Tshs per
each extra hour. Furthermore, the ELRA requires an employer to pay an employee who
has worked on a public holiday302
double that employee's basic wage for each hour
worked on that day303
. Regardless of public holidays‟ payment rule, most PSCs in
Tanzania pay their employees like in other normal working days304
. The problem of low
297
Ibid. 298
Appendixes G, H & I. 299
Ibid. 300
Overtime payment means a sum paid to an employee for work done over and above ordinary hours of
work. 301
Data given on a condition of anonymity. 302
Public holidays as per the Public Holidays Act, CAP., 35 (RE: 2002), i.e. New Year's Day - 1st January,
Revolution Day - 12th January, Id-ul-Fitr - two days, Good Friday, Easter Monday, Id-el-Haj - one day,
Union Day - 26th April, International Workers' Day - 1st May, Maulidi Day, Peasants' Day - 8th August,
Independence and Republic Day - 9th December, Christmas Day - 25th December, Boxing Day - 26th
December, Nyerere Day and Karume Day. 303
S. 25. 304
Pray-God Nicholas, Personal interview, 13th
December 2010.
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wages is coupled with late payment of wages and failure of PSCs to remit workers
contributions to the respective social security funds305
. The practice of PSCs to
remunerate their employees unfairly or in the way that do not equal works performed
violates Article 23 of the Tanzania Constitution which states;
(1) Kila mtu, bila ya kuwapo ubaguzi wa aina yoyote, anayo haki ya kupata
ujira unaolingana na kazi yake, na watu wote wanaofanya kazi kulingana
na uwezo wao watapata malipo kulingana na kiasi na sifa za kazi
wanayoifanya.
(2) Kila mtu anayefanya kazi anastahili kupata malipo ya haki.
English version;
(1) Every person, without discrimination of any kind, is entitled to
remuneration commensurate with his work, and all persons working
according to their ability shall be remunerated according to the measure
and qualification for the work.
(2) Every person who works is entitled to just remuneration306
.
I think, the salary scale of PSCs should be reviewed annually to reflect the inflationary
rate, education level and workloads of PSCs‟ personnel as per Article 23(2) of the
Constitution. An annual review of the salary will bar PSCs owner to maximise profit at
the expense of their employees, and it will eliminate less competitive and profit oriented
PSCs from the security business.
There are also an issue relating to working conditions in the TPSI. Employees of PSCs
especially security personnel perform their duties in high risk environment, since it
305
Williams, M. (2005) Polisi yapiga mkwara makampuni ya ulinzi, an online article published on
24/07/2005 at <http://www.habaritanzania.com/new/articles/176/1/Polisi-yapiga-mkwara-makampuni-ya-
ulinzi> last viewed on 15/07/2011 at 10:57 Hours. 306
Attorney General of Tanzania, The Constitution of the United Republic of Tanzania (English
Version), RE: 2008.
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involves working at night and in other instance, they are supposed to confront thieves.
However, private security personnel in Tanzania are poorly equipped, for example they
use personal cellular phones (without being given communication allowance) instead of
radio calls (walkie-talkies)307
. It is common to find private security personnel protecting
properties worthy millions but armed with a wooden baton, a whistle and a torch308
.
Besides, provision of health service in many PSCs is not part of employers‟ obligation
and those who get injured in the course of their duty hardly get compensated or receive
medical assisted as per the provisions of the Workers' Compensation Act309
. It is in this
sense therefore, many labour related disputes or complaints pending in the High Court of
Tanzania (Labour Division) and other subordinate tribunals emanate from the TPSI.
4.3 The Role, Challenges and Influence of PSCs
The society is less informed of the role and place of PSCs in the global market. Even
policy makers and public law enforcers do not take PSCs and their personnel seriously.
A great section of police officers for example, see PSCs as competitors rather than
partners in the security business, and thus a threat to their powers310
. Though the Police
Force is a constitutional creature with full statutory mandate, discretion and immunity
compared to PSCs, fears harboured by some members of the police is founded for two
reasons. One, the existence of PSCs which continue to operate in a legal vacuum (with
no procedural or substantive law to govern them) arouses security concerns of which the
307
Facts from personal observation and experience during the field research. 308
Ibid. 309
CAP 263, Parts II, III & IV (SS. 5-45) of the Act. 310
Ibid.
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police are answerable to. Two, the expansion of the PSI marginalises (encroach or
abrogate) the police powers to enforce laws and to maintain peace and order.
At the grass root level, PSCs personnel especially security guards are viewed by the
society as unfortunate, uneducated and lowly paid individuals. In short, working in the
PSI is considered as one of the lowly esteemed career in Tanzania. Perhaps, this is true
in some way because; one, it lacks qualified personnel in a sense that employment in the
PSI attracts mostly standard seven leavers, form four and six failures and retired
members of the armed forces311
. Two, that employees of PSCs who have good form four
or six education certificates view employment in PSCs as a temporary one i.e. not as a
lifetime career312
. Third, that the PSI has no defined ethics and code of conduct. Very
often, some employees of PSCs engage in simple theft or draw racket for organised
criminal gangs thus bringing the PSI to disrepute. Fourth, even employees of PSCs
especially the youth are not comfortable to introduce themselves as „security guards‟ or
otherwise to dress in such a way that they will be recognised as such. The practice is that
usually, PSCs personnel dress up in casual attire in their way to and from work, and thus
put on their uniforms during working hours only, while on duty313
.
In my submission, the popularity and usefulness of PSCs‟ services continue to grow as
security concerns increases. In the same vein, modern governments downsize their
armed forces and minimises military expenditures by allowing business companies to
311
Ibid. 312
Questionnaire, loc cit. 313
This fact is from researcher‟s (personal) observation.
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provide security services. It is in this trend therefore, even a large section of government
officials and businesses with close connection with the government have opted for
PSCs‟ protection314
. On the other hand, the common people, who can not afford PSCs
services, are not comfortable with the presence of PSCs since they constantly remind
them that the state‟s security agencies are not available to protect them.
4.4 PSCs and the threat to National Security
The TPSI has attracted both local and international companies315
. However, the major
concern is how these PSCs especially foreign owned ones are effectively scanned and
monitored by the police to ensure that they are not part of multilateral companies run by
criminal organisations (syndicates) such as mafia, Al-Shabaab and Al-Qaeda. On top of
that, how PSCs‟ personnel are prepared to counter or detect security threats posed by
terror groups and organised crime in the form of car theft, bank robbery, burglary,
jewellery theft, computer hacking, credit card fraud, economic espionage, identity theft,
securities fraud, kidnapping, drug trafficking, arms trafficking, organ trafficking and
contract killings316
. I am raising this challenge because; first, PSCs are increasingly
replacing or assuming the role of the Tanzania Police Force which is primarily
empowered to protect peoples‟ lives and properties. Besides, now we have state‟s
military wing (unit), such as SUMA JKT which offer security services for money on
314
Similar views have also been shared by the GCA’s 1999/2000 Report, p. 35. 315
Chapter one, p.5 (infra). 316
Wikipedia, „organised crimes‟ available at <http://en.wikipedia.org/wiki/Organized_crime> last
accessed on 05/01/2011 at 16:38 Hours.
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private basis317
. Thus, involvement of state‟s security agency like SUMA JKT in the PSI
shows how „security‟ is commoditised and thus, gradually ceasing to be a free public
service. Second, terrorist attacks are at an alarming level in East Africa in the last twelve
years, for example bombing of US embassies in Nairobi and Dar es Salaam in 1998
followed with a series of attacks in public places, public transport, Hotels and recreation
halls in Kampala and Mombasa respectively in 2010318
, essentially some of the bombed
places were protected by PSCs‟ personnel319
. Third, lack of legal and institutional
framework thus posing a danger to national security due to the fact that PSCs possess
and use firearms, and adheres to chain of command as in armed forces.
4.5 Conclusion
This chapter has established that policy and law as [they] stand today bestow to PSCs
and their personnel no special treatment above ordinary citizen and to other legal
entities. The chapter also argues that the complementary role of PSCs to the police is yet
to be realised. It is in this sense therefore, influx and dominance of PSCs in the security
sector has received a cold welcome from the society and the state‟s law enforcers. The
chapter reveals further that the government has failed to lay standards for private
security services providers and to define the relationship between the police and PSCs.
The chapter also has explored unresolved aspects in the TPSI like firearms law,
317
Registered as SUMA JKT Guard Ltd, with Police Permit No. PHQ/SO.1/PS/900/Vol. XXXIII/26 issued
on 25/6/2008. Lula wa Ndali-Mwananzela, titled as „Polisi nao waanzishe kampuni yao ya ulinzi?‟
which appears in Raia Mwema of January 14, 2009, issue No. 64. This article is also available at
<http://www.raiamwema.co.tz/news.php?d=1111>. 318
Okungu, J. (2010) „the EAC must tackle Terrorist Attacks as a Common Problem‟ , article available at
<http://allafrica.com/stories/201012240025.html> last viewed on 05/01/2011 at 16:59 Hours. 319
Ibid.
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employment and labour standards as well as the implication of unregulated PSI to the
national security.
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CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.0 Conclusion
PSCs are increasingly becoming key actors in the Tanzanian security system. It is very
hard for the government either to downplay (understate) or to dispense with PSCs as
they complement (supplement) the police in carrying out policing workload.
This study was channelled on three (3) hypotheses i.e. one, whether the existence of
PSCs and their activities in Tanzania is unconstitutional? Two, whether
commercialisation of security services and the way PSCs operate have affected the
constitutional rights to security of persons and property in Tanzania? Three, whether a
regulatory framework of PSCs should be erected in Tanzania?
The study has responded to the first hypothesis in the affirmative by arguing that PSCs
are operating in the vacuum since they are not envisaged by the Constitution of Tanzania
or any other law of the land. Therefore, existence and operation of PSCs in Tanzania is
unconstitutional delegation (or privatisation) of public powers.
The study has answered the second hypothesis with assent by conceptualising the aspect
of human security as a basis of other rights, namely as right to life and freedom of
movement (liberty). In that regard, the study appraised the changing role of the State in
security affairs and its implication (i.e. aftermaths) to the national security and human
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security (safety). In doing so the study delineated the right to security of person and
property in the new dimension of privatising security in Tanzania. In the light of
evidence disclosed in preceding chapters, commercialisation of security services has
affected negatively the rights to security of person and property, especially the poor
people who can not afford services of PSCs while police services are becoming
unevenly offered.
Likewise, the study has reacted positively to the third hypothesis by covering various
issues, and challenges facing the Tanzania Private Security Industry (TPSI), especially
existing institutional frameworks (and practice). This study has also revealed key legal
problems in the TPSI with specific focus on labour standards, use and possession of
firearms, and relationship between PSCs‟ personnel, the police and the society. The
study also weighed Tanzanian practice vis-à-vis international standards by taking the
South African Constitution and the law on PSCs as a focal point. Therefore, the study
finds that there is a need to erect regulatory frameworks.
The functioning of the PSI should reflect economic reality and needs of [the]
commoners. Changes that do not serve interests or concerns of common people
(majority) are doomed to fail. The point I wish to make is that, if PSCs‟ economic
motives is not well monitored, their presence may be an added human security‟s
inopportune rather than a panacea. And of course, what will be the essence of having
services that people can not afford, anyway?
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5.1 Recommendations
In order for the PSI to operate legally and thrive in Tanzania, the government is urged to
address the identified issues throughout this study by doing the following;
To constitutionalise activities of PSCs in Tanzania by inserting a clause in the
Constitution that allows delegation of security powers to private actors. This will
solve the problem of PSCs being unconstitutional actors.
To enact a specific law for regulating PSCs. Among other things, the law must
establish an independent regulatory authority and restrict public officials such as
members of the armed forces to engage in private security business. Further, if
the law is to be enacted [it] must recognise the sector‟s self regulation
arrangements and other international standards.
To ensure that the process of privatising security services do not curtail peoples
constitutional right to viable security. Also to ensure that privatisation of
security do not result in a total delegation of the traditional duty of the state as
the custodian of peace and public order to private actors. Besides, PSCs should
have the social responsibility in addressing security threats, to some extent, even
in areas where they are not contracted.
To revisit and define rights and duties of PSCs‟ personnel in relation to public
police in dealing with civilians.
To ensure that PSCs abide by human rights, labour standards, laws on use and
possession of firearms and other laws of Tanzania in their daily operation.
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APPENDICES
APPENDIX A: IGP‟s Directives to RPCs on Police Permit‟s application
JAMHURI YA MUUNGANO WA TANZANIA
WIZARA YA MAMBO YA NDANI YA NCHI
JESHI LA POLISI TANZANIA
Anwani ya simu:’’MKUUPOLISI’’
Simu:022 21110734
Fax No: 022-2136556 OFISI YA:
Inspekta Jenerali wa Polisi
Makao Makuu ya Polisi,
S. L. P 9141,
Dar es Salaam.
10 March 2010
REF: PHQ/S0.I/PS/VOL.VI/47
KAMISHNA WA POLISI,
KANDA MAALUM,
DAR ES SALAAM.
MAKAMANDA WA POLISI MIKOA YOTE. .
TANZANIA BARA.
UTARATIBU UNAOTAKIWA KUFUATWA NA WAOMBAJI VIBALI VYA
KUANZISHA KAMPUNI BINAFSI YA USHAURI NA UELEKEZI WA ULINZI
(SECURITY CONSULTANTS) KATIKA MIKOA MBALIMBALI NCHINI:
Tafadhali rejeeni kichwa cha habari hapo juu.
Ufuatao hapa chini ni utaratibu na muongozo unaotakiwa kufuatwa na watu mbalimbali wanaohitaji/
kuomba, kuanzisha makampuni binafsi ya ushauri na uelekezi wa ulinzi katika maeneo yenu.
Kila mwombaji anatakiwa kufuata na kutekeleza utaratibu huu kabla ya maombi yake kuletwa hapa
Makao Makuu ya Polisi kwa hatua za mwisho.
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1. Mwombaji anatakiwa kutuma maombi yake kwa kamanda wa polisi wa mkoa anakotarajia
kufungua kampuni yake ya ushauri na uelekezi
2. Mwombaji awe na ofisi ya kuendeshea shughuli za kampuni yake akitaja mji, mtaa na
namba ya nyumba iliyoko ofisi hiyo.
3. Mwombaji aonyeshe kwenye maombi yake idadi ya Wakurugenzi akielezea kazi za kila
mkurugenzi.
4. Picha nakala moja ya kila mkurugenzi. Mwombaji kwenye maombi yake aeleze kampuni
yake ya ushauri na uelekezi itatumia jina gani.
5. Wakurugenzi wote wachukuliwe alama za vidole na kutumwa hapa Makao Makuu ya
Polisi, Forensic Bureau kwa uchunguzi kama hawana kumbukumbu za uhalifu. Kabla ya
maombi kuletwa Makao Makuu ya Polisi, kila mtu mmoja atapaswa kulipia Tsh. 2000/- na
photocopy ya ERV iambatanishwe kwenye kila fomu za alama za vidole vya mhusika.
Kama Mkurugenzi ni raia wa kigeni atalipia USD 25.
6. Mwombaji aambatanishe photocopy ya bank statement ili kujua kama anao uwezo wa
kuwalipa watumishi wake.
7. Wakurugenzi wote wanatakiwa kuandika curriculum vitae (CV) zao na kuambatanisha na
maombi yao.vilevile tupate cv za wataalamu hao watakaotoa ushauri elekezi.
8. Picha paspoti size nakala tatu za wataalamu watakaotumika kutoa ushauri na uelekezi.
9. Mkurugenzi anayetaka kuanzisha kampuni binafsi ya ulinzi anatakiwa kwenda kwa msajili
wa Makampuni (BRELA) kuhakiki (name search) kama jina la kampuni alilochagua
halitumiwi na kampuni nyingine
10. Baada ya Kamanda wa Polisi kupokea maombi hayo yakiwa yamekamilika kuanzia na. 1 –
8 atakagua ofisi ya mwombaji ili:-
(i) Kuijua na kuhakikisha kwamba kweli ipo.
(ii) Kama mwombaji anavyo vitendea kazi madhubuti.
11. Baada ya Kamanda wa Polisi wa Mkoa kuridhika kwamba kampuni hiyo inaweza kupewa
kibali, basi ataandika barua kwa Inspekta Jenerali Wa Polisi ili aweze kumpa au kutompa
mwombaji kibali cha kuanzisha kampuni ushauri na uelekezi kutokana na pendekezo lake.
aidha wakati wa kuandika hiyo awe tayari amepata taarifa ya uchunguzi wa alama za vidole
vya Wakurugenzi pamoja na kuambatanisha na vitu vyote vilivyotajwa na Memorandum
and Articles of Association.
12. Baada ya Mwombaji kupata kibali cha kuanzisha kampuni, mwombaji pia atahakikisha
waombaji wote wa kazi za ushauri na uelekezi katika kampuni yake wanachukuliwa alama
za vidole kwa utaratibu uleule ulioelekezwa kwenye Na. 5 na hapo ndipo atakapofungua
ofisi na kuanza kazi rasmi.
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13. Baada ya kupata usajili toka BRELA ni lazima mwombaji alete nakala moja ya certificate
of incorporation
14. Mkurugenzi ahakikishe askari wote anaowaajiri wanapata mafunzo ya ulinzi shirikishi kwa
kuwasiliana na Kamanda wa Mkoa ilipo kampuni yake kwa ajili ya mafunzo hayo
Utaratibu huu pia utatumika katika waombaji walio na makampuni ya ulinzi mkoa mmoja,
kama atataka kupanua huduma hii katika mikoa mingine basi mwombaji ni lazima kufuata
utaratibu huu isipokuwa Wakurugenzi hawatachukuliwa alama za vidole tena, ila kama
ataongeza Wakurugenzi na walinzi.
Tumeona tutoe ufafanuzi huu baada ya kugundua kuwa waombaji wanakuja Makao Makuu
ya Polisi kufuatilia vibali wakiwa na barua ambazo zimetoka kwa Makamanda wa Polisi wa
Mikoa baadhi zikiwa hazijakamilisha utaratibu huu ama viambatanisho vingine vikiwa
vimebaki mikoani.
Ni imani yetu kwamba tukifuata utaratibu huu tutafanya kazi hii vizuri na kuwapunguzia
usumbufu waombaji.
Ni imani yetu kwamba tukifuata utaratibu huu tutafanya kazi hii vizuri na kuwapunguzia
usumbufu waombaji.
F.A. Mboya – ACP
Kny: INSPEKTA JENERALI WA POLISI.
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APPENDIX B: Police Permit‟s Application Form
JESHI LA POLISI TANZANIA FOMU YA MAOMBI YA KIBALI CHA KUMILIKI NA
KUENDESHA SHUGHULI ZA KAMPUNI YA ULINZI BINAFSI
1. TAARIFA BINAFSI YA MUOMBAJI
Jina la ukoo:__________________________________________________
Majina mengine:_______________________________________________
Jina la ukoo kabla ya ndoa:_________________________________
Utaifa:_________________________________________________________
Anuani eneo:_____________Wilaya:________Mtaa:________Nyumba
Anuani ya posta:_______________________________________________
Tarehe ya kuzaliwa:______________Mahali/Wilaya/Mji__________
Kama hukuzaliwa Tanzania taja wapi:________________________
Tarehe:__________________________________________________________
Simu:____________________simu ya kiganjani:____________________
2. AJIRA YAKO KWA SASA
Jina la mwajiri/kampuni:________________________________________
Anuani:__________________simu:_____________________________
Cheo chako:_____________uwajibikaji kwa:______________________
3. TAARIFA YA TAALUMA YAKO BINAFSI
Elimu yako:_________________________________________________
Ujuzi wa taaluma yako_________________________________________
Majukumu yako yalikuwa______________________________________
Ujuzi wako kwa kibali unachoomba____________________________
Miaka:_______________________Miezi_________________________
Uzoefu wako katika usimamizi (management) katika kibali unachokiombea
Miaka__________Miezi___________________________
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4. MAOMBI YA KIBALI (Weka alama ya v mbele ya shughuli unazoombea kibali kama ni zaidi ya moja
jaza fomu nyingine kila aina ya shughuli za ulinzi ni fomu yake).
(a) ulinzi wa watu (manned guarding).
(b) ulinzi wa kufunga mitambo (electronic security installers)
(c) upelelezi binafsi(private investigations).
(d) ushauri(security consultants)
(e) mengineyo (others)
**Usindikizaji pesa,mali mizigo,ulinzi kwa njia ya mbwa n.k.Taja kama zipo hapo juu.
5. AINA YA MAJESHI ULIYOPITIA (TAJA MOJAWAPO AU ZAIDI)
(a) Jeshi la Polisi
Mwaka:____________________Mpaka:____________________________
Sababu za kuacha:______________________________________________
Cheo ulichoachia___________________Namba:_________________________
(b) Jeshi la Magereza.
Mwaka:____________________Mpaka:_______________________________
Sababu za kuacha:_________________________________________________
Cheo ulichoachia_______________________Namba:____________________
Jeshi la kujenga Taifa
JKTM waka:___________________Mpaka:________________________________
Sababu za kuacha:___________________________________________________
Cheo ulichoachia__________________Namba:__________________________
(d) Jeshi la ulinzi la wananchi wa Tanzania JWTZ
Mwaka:_____________________Mpaka:_______________________________
Sababu za kuacha:__________________________________________________
Cheo ulichoachia___________________Namba__________________________
(e) Jeshi la kujenga uchumi (JKU) Zanzibar
Mwaka:_______________________Mpaka:____________________________
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Sababu za kuacha:_________________________________________________
Cheo ulichoachia __________________Namba__________________________
6. AJIRA ZINGINE ZISIZO ZA KIJESHI WALA ZA KIUSALAMA
(Taja ajira ya mara ya mwisho)
(a) Serikali kuu
Mwaka ulioacha:__________________________________________________
Idara uliyokuwepo;________________________________________________
Cheo ulichoachia;___________________________________________________
Sababu za kuacha;___________________________________________________
(b) Serikali za mitaa
Mwaka ulioacha:___________________________________________________
Idara uliyokuwepo;_________________________________________________
Cheo ulichoachia__________________________________________________
Sababu za kuacha:_________________________________________________
(c) Mashirika ya umma
Jina la shirika;____________________________________________________
Mwaka ulioacha:__________________________________________________
Idara uliyokuwepo:________________________________________________
Cheo ulichoachia:_________________________________________________
Sababu za kuacha:__________________________________________________
7. NAFASI YA UKURUGENZI/UTAWALA/TAALUMA;
(a) Taja majina ya wakurugenzi katika kampuni yako na nafasi zao
Jina Cheo Taaluma
1.
2.
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Umiliki wa Hisa
(a) Taja majina ya wamiliki wa kampuni
1.______________________________________________________________
2.______________________________________________________________
3._______________________________________________________________
4._______________________________________________________________
(b) Kama kampuni ni ya wanahisa zaidi ya kumi eleza idadi ya wanahisa_______
9. UMILIKI WA SILAHA
(a) Wewe Binafsi
Idadi ya silaha;________________________________________________________
Aina ya silaha;________________________________________________________
Zimeandikishwa kwa jina la nani taja jina lililokatika leseni za silaha zote;___________
10. WADHAMINI: (Taja wadhamini wawili mmoja wapo binafsi wa pili mdhamini wa kibiashara ambao
wanakufahamu kwa muda usiopungua miaka mitatu ya nyuma na ambao wakitakiwa na mamlaka
itakayokupa kibali hiki watoe maelezo yako watafanya hivyo.
***Wadhamini hao wasiwe ndugu wala kutoka kampuni mojawapo ya ulinzi.
(a) Majina ya mdhamini wa kwanza;______________________________________
Anuani yake:_____________________________________________________________
Hadhi yake:____________________Cheo:_____________________________________
Shughuli zake:___________________________________________________________
(b) Majina ya mdhamini wa pili:__________________________________________
Anuani yake:____________________________________________________________
Hadhi yake;____________________Cheo:_____________________________________
Shughuli zake:__________________________________________________________
11. AJIRA NA UCHUMI
(a) Uwezo wa mwombaji kiuchumi
(i) Akiba ya fedha benki
(ii) Tawi la benki
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(iii) A/C No.
(b) Mali alizonazo Mwombaji
(i) Nyumba:___________Plot No.______Mahali:________Mtaa:_______
(ii) Nyumba ya ofisi:________Plot:_________Mahali_______Mtaa:_______
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APPENDIX C: Questionnaire/Opinionnaires
RESEARCHER‟S NAME: Jaba Shadrack
RESEARCH THEME: The Private Security Industry in Tanzania: Challenges, Issues and Regulation
INSTITUTION: University of Dar Es Salaam – School of Law
DEGREE PROGRAM: Master of Laws (LL.M)
Dear Respondent/s,
I would like to invite you to participate in this research, which essentially examines the Private Security
Industry in Tanzania (i.e. private security companies). This is an academic study though national in scope,
which aims at analysing practical and legal issues and Challenges in the Private Security Industry.
It is my hope that you will enjoy taking part in the research, should you have any questions or queries
about the research please feel free to contact me on 0716-231772 (Tigo) or via
[email protected]/[email protected]/[email protected] or visit
http://www.jabashadrack.blogspot.com. In any case, could you complete this questionnaire, please return
it to the forenamed researcher or dispatcher.
NB:
*Any information/data given on condition of anonymity or confidentiality will be treated as such.
*The researcher guarantees to use the information you have supplied for research purposes only.
RESPONDENT‟S PARTICULARS (optional)
Name ______________ Title ________ Date _________________
Education _________ Sex _____ Age____ Mobile/E-mail _____
1. What kind of security service provider/s have you engaged to protect your home/business
premises/office for the past few years to date?
*(You can „tick‟ more than one item)
a) Private Security Companies { }
b) Night Watchmen { } (Tick)
c) Public Polices { }
d) Other/s { } ................................................ (Specify)
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2. (a) What made you decide to use such particular security service provider?
………………………………………………………………………………………………………………
(b) How does it serve your security needs?
………………………………………………………………………………………………………………
3. What was/is bad about using the named security service provider/s?
………………………………………………………………………………………………………………
4. Do you think there is any legal challenge/s in the Private Security Industry that need to be
addressed?
(a) YES …………… (b) NO …………….. [Tick]
If „YES‟, name those challenges
………………………………………………………………………………………………………………
What need to be done? (Solutions to the foresaid challenges)
………………………………………………………………………………………………………………
5. How do you rank the relationship between the police and private security companies so far?
(a) GOOD ………………….. (b) POOR ………………………….
[Tick]
If „POOR‟, why and what need to be done?
………………………………………………………………………………………………………………
6. Do you know that the Constitution of the United Republic of Tanzania provides for the right to
security of person/s?
(a) YES ……………….. (b) NO ………………….. (Tick)
If „YES‟, do you think the emergence of private actors (i.e. private security companies, night
watchmen) in the security sector which was exclusive area of the public polices violate/
strengthen your constitutional right to security or access to security services? *(Cancel
either the word „violate‟ or „strengthen‟)
(a) YES ………………… (b) NO ……………… (Tick)
Please, can you explain your stance above?
………………………………………………………………………………………………………………
7. Is there any other organisation/s or person/s that you recommend I interview in this research?
………………………………………………………………………………………………………………
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8. Is/are there anything I did not ask you about the Tanzania Private Security Industry that you think
are worthy mentioning?
(a) YES ……………………… (b) NO …………………………… [Tick]
If „YES‟, name it/them (explain)
………………………………………………………………………………………………………………
Thank you very much for taking trouble and time to offer your invaluable assistance.
Yours sincerely,
Jaba Shadrack
(If we imagine and work together, it is only the sky that can limit our imagination to become a
living reality).
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APPENDIX D: Public Officials and Ownership of PSCs
**Prepared following an interview with Abdalah Msagama (Chairman – TUPSE, 0784 897794)
and Augustino Rupia (Acting Secretary – TUPSE, 0755 490567) on 02/05/2011 at TUPSE
Headquarter, Dar es Salaam.
No. Name PSC/s associated with Previous/Current Post
1 Omari Mahita (a) GEMA security
**GEMA (is an acronym of
Gewe & Mahita). Now
operated by Mr. Raphael.
GEMA provides security
services at the State House
– Dar es Salaam, and the
Office of the Registrar of
Political Parties.
(b) Lupanga Security
Co.
Ex-IGP
2 Alfred Gewe GEMA Ex- Dar es Salaam
Regional Police
Commander
3 Adadi Rajab Solar Security Ex-DCI
4 Philemon Mgaya Security Group (formerly,
Group 4 security)
Ex-IGP
5 Almas Maige SSTL The Tanzania
Intelligence and Security
Service, and the current
Chairman of TSIA.
6 Lukuvi William
Vangimembe
Ultimate Security Former Dar es Salaam
Regional Commissioner,
and currently, MP and
Minister.
7 Alfred Tibaigana Expected to join the
management of “Ultimate
Security‟
Ex-Deputy
Commissioner of Police
& Ex-Dar es Salaam
Special Zone
Commander.
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APPENDIX E: Wearing of Uniforms by Private Security Guards
RPC- Walinzi binafsi wawe na sare zinazofanana
Imeandikwa na Jasmin Shamwepu, Dodoma; Tarehe: 3rd May 2011 @ 20:10 Imesomwa na watu: 154;
Jumla ya maoni: 0
KAMANDA wa Polisi wa Mkoa wa Dodoma, Zelothe Stephen ameshauri walinzi binafsi nchini wawe
na sare moja ya mavazi itakayoondoa mkanganyiko na kurahisisha majukumu ya kulinda usalama bila
kuingiliana na majeshi mengine. Alitoa tamko hilo wakati akifunga mkutano mkuu wa Chama cha
Wafanyakazi wa Sekta ya Ulinzi Binafsi (TSIA) mjini Dodoma, uliotanguliwa na semina ya siku moja
kuhusu Sheria za Ajira na Uhusiano Kazini ya mwaka 2004. “Nadhani umefika wakati wa kuwa na sare
moja ili kuwafanya wananchi waondokane na mashaka juu ya Jeshi hili na majukumu yake ya kulinda
usalama wa raia na mali zao bila kuingiliana na majeshi mengine hasa Polisi ambayo inasimamia
shughuli zenu,” alisema Stephen.
Amefafanua kuwa, sare ya aina moja itazipa heshima kampuni za ulinzi. Wakati huo huo, ametoa mwito
kwa kampuni za ulinzi kuajiri watu waliopitia mafunzo ya ukakamavu.
Amezitaka kampuni hizo zitoe fursa za mafunzo ya mara kwa mara kazini ili kuboresha utendaji wa
askari katika kukabiliana na uhalifu. Amezitaka kampuni hizo zizingatie utaratibu wa ajira na
kuhakikisha waajiriwa wanakuwa na sifa za kitaaluma badala ya kuchukua watu bila kuwafanyia
uchunguzi na kufahamu uwezo na tabia zao.
Kwa mujibu wa Mwenyekiti wa Taifa wa TSIA, Almasi Maige, baada ya Serikali kufungua milango kwa
kampuni binafsi kujihusisha na ulinzi, zimeongezeka kutoka mbili mwaka 1980 hadi kufikia 450 za sasa.
Idadi ya askari imeongezeka kutoka 60 hadi milioni mbili mwaka huu. Hata hivyo uamuzi wa
Serikali kuruhusu kampuni hizo kutekeleza majukumu yake nchini ulifanyika huku kukiwa hakuna sheria
ya kusimamia kampuni za sekta binafsi za ulinzi nchini. Amesema, changamoto zinazokabili sekta hiyo
ni pamoja na Sheria ya Kazi za Kiraia (Sheria ya Ajira na Mahusiano Kazini ya mwaka 2004) kutumika
kuendesha shughuli zao wakati haitumiki kwa majeshi mengine.
“Sheria inayotumika kuongoza sekta hii, ina upungufu na utata kwa vile inaruhusu kuanzishwa kwa
vyama vya wafanyakazi katika makambi ya kijeshi ambalo ni kosa, kuruhusu migomo na kufungiwa au
kufunga shughuli za kampuni na kwamba likitokea malindo yatabaki wazi,” alisema Maige. Maige
amesema, sheria hiyo haina mkazo katika matumizi ya nidhamu ya hali ya juu yanayohusu walinzi
waliobeba silaha na kukabidhiwa lindo la thamani kubwa.
Available at <http://www.habarileo.co.tz/kitaifa/?n=16783&cat=kitaifa> last accessed on 17/05/2011 at
11:27 Hours.
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APPENDIX F: Similarity of Uniforms between the Public Police and Privare Security Guards
Walinzi wa kampuni ambayo ni mwanachama wa Umoja wa Wamiliki wa Kampuni Binafsi za Ulinzi
Tanzania (TSIA) wakiwa katika gwaride la kuhitimu mafunzo rasmi ya Polisi Jamii. Hafla hiyo ilifanyika
hivi karibuni katika Viwanja vya Mwembeyanga, Tandika, Dar es Salaam. (Source: Habari Leo).
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