A LONG WAY TO LAND REGULARIZATION SCHEME
The Open University
LAWJournal
Volume 1 No. 2 December, 2007 ISSN 1821-5327
The Open University of Tanzania
Faculty of Law
P. O. Box 31741
DAR ES SALAAM
TANZANIA
Fax (255) 022-2668759
E-mail: benhajj@
dfl@out.co.tz
Website:.
in this issue
|Land Regularization in Tanzania: The Revolution in Land Laws and a Tool to Millennium Development Goal 7 Target 11 |
|Patricia Boshe |
|The Right to Property without Adequate Legal Protection in Tanzania |
|J. Clement Mashamba |
|The Protection of Employee Entitlement in The Event of Employer Insolvency: A Challenge for Justice in Tanzania Insolvency|
|Law |
|Eliad E. Mndeme |
|Patents Protection in Tanzania: Some Legal and Policy Considerations for Reform |
|P.F1 Kihwelo |
|International Trade Law and Genetically Modified Organisms: Concerns for Kenya |
|Agnes Warutere |
|The Effectiveness of Criminal Law in Regulating Sexual Behaviour: An Empirical Analysis of |
|The Sexual Offences Special Provisions Act 1998, [Act No.4, Cap.101, R.E.2002] |
|A.M. Mapunda |
|The Constitutionalization of Family Law in Tanzania |
|Bart Rwezaura and Ulrike Wanitzek |
|Widow Inheritance, The Law and Modernity In Tanzania: A Critique |
|Abdulrahman O.J. Kaniki |
|Corruption: A Psychological Perspective |
|M. K. Possi |
The Open University Law Journal
The Open University of Tanzania
P. O. Box 31741
Dar es salaam, Tanzania
E-mail: benhajj@
dfl@out.co.tz
© The Open University of Tanzania , 2007
All rights reserved.
Note: Opinions expressed in this journal are those of the authors and not necessarily those of the publishers - The Open University of Tanzania.
EDITORIAL BOARD
Chief Editor
Mr. Benhajj S. Masoud
Associate Editors
Prof. Dr. M.C.Mukoyogo
Dr. B.T. Mapunda
Dr. Susan Kolimba
Mr. Abdulrahman O.J. Kaniki
Mr. Manase Keenja
Consulting Editor
Prof. B.A. Rwezaura
Copyediting and typesetting by Printmedia Section – Institute of Education Technology, The Open University of Tanzania.
|The Open University Lawjournal |
|Vol. 1 No. 2 December, 2007 ISSN 5327-5321 |
Contents
|Editorial Board………………………………………………………………………… |iii |
|Note to Authors …………………………………………………………………………. |v |
|Editorial Note…………………………………………………………………………… |vi |
Papers
|Land Regularization in Tanzania: The Revolution in Land Laws and a Tool to | |
|Millennium Development Goal 7 Target 11 | |
|Patricia Boshe………………………………………………………………….. |1 - 14 |
|The Right to Property without Adequate Legal Protection in Tanzania | |
|J. Clement Mashamba………………………………………………………… |15 - 28 |
|The Protection of Employee Entitlement in The Event of Employer Insolvency: | |
|A Challenge for Justice in Tanzania Insolvency Law | |
|Eliad E. |29 - 44 |
|Mndeme.................................................................................................. | |
|Patents Protection in Tanzania: Some Legal and Policy Considerations for Reform | |
|P.F. Kihwelo, ………………………………………………………………....... |45 – 54 |
|International Trade Law and Genetically Modified Organisms: Concerns for Kenya | |
|Agnes Warutere……………………………………………………………….... |55 - 76 |
|The Effectiveness of Criminal Law in Regulating Sexual Behaviour: An Empirical Analysis of The Sexual | |
|Offences Special Provisions Act 1998, [Act No.4, Cap.101, R.E.2002] | |
|A.M. Mapunda………………………………………………………………..… | |
| |77 - 109 |
|The Constitutionalization of Family Law in Tanzania | |
|Bart Rwezaura and Ulrike Wanitzek……………………………….………….. |110 – 131 |
|Widow Inheritance, The Law and Modernity In Tanzania: A Critique | |
|Abdulrahman O.J. Kaniki…………………………………………………….. |132 - 148 |
|Corruption: A Psychological Perspective | |
|M. K. Possi………………………………………………………………….. |149 – 165 |
NOTE TO AUTHORS
The Open University Law Journal is an International Journal that addresses a wide range of legal issues related to legal profession, practice and development. It publishes research based as well as conceptual, thematic and reflective/position articles.
The Editorial Board of The Open University Law Journal welcomes submission of manuscripts to be considered for publication. The Journal addresses a wide range of legal issues relating to legal practice, the profession and development. The Editorial Board will be pleased to consider contributions provided they have not been published or being submitted for publication elsewhere. Special attention should be made to quotations, footnotes, and references which should be accurate and complete. All manuscripts should comply with the following format:
1) A-4 double space
2) 1 inch margin: left, right, top and bottom
3) Font: Not more than 12 Times New Roman
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6) Use endnotes or footnotes
7) Use ibid., or op.cit., or loc. Cit whichever is appropriate.
8) Depending on the nature of the manuscript, arrangement should be in the order of title page, abstract not longer than 200 words, (structured summary), including upto six key words, main text, and references.
A complete mailing address (including email and telephone number) of the author or person to whom all correspondence regarding the manuscript should be addressed must be indicated.
Manuscripts will only be published subject to review by referees and to ensure a fair review, authors shall be required to avoid information within the text that discloses their identity. Manuscripts shall further be subjected to editorial review for style, quality of communication, academic and scholarly content. The Editorial Board reserves the rights to reject, edit or shorten any article submitted and approved for publication. A decision on every manuscript shall be made in a timely manner and communicated to the authors. Both hard and soft copies of materials to be considered for publication, including all correspondence, letters to the Chief Editor, notes, comments, articles and book reviews should be addressed to:
Chief Editor
The Open University Law Journal
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The Journal shall not necessarily reflect the views or opinion of the editors, The Open University of Tanzania, or of any person and organization associated with the publisher.
Mode of Citation: (Year) Volume OULJ page
EDITORIAL NOTE
This is the second issue of Vol.1 of the Open University Law Journal whose first issue was published in August 2007. Although this issue was supposed to be published not later than 31st December 2007, it could not be published at that time due to problems beyond the hands of the publishers. The Editorial Board is now working towards the first issue of Volume 2 of this Journal and it will soon be with printers.
The present issue carries a wide range of articles including those which are devoted to real and intellectual property matters, right to property, family law and corruption. The articles address topical issues in their respective fields. Professor Rwezaura’s article that he co-authored with Professor Ulrike Wanitzek is worth noting. It introduces a new dimension in family law. The authors argue that the constitutionalization of family law in Tanzania is not an isolated phenomenon but is part of a wider process of political and economic liberalization taking place in the country and affecting other aspects of civil society.
The Editorial Board hopes that the readers will find this issue useful and make the maximum of it.
Benhajj S. Masoud
Chief Editor
Land Regularization in Tanzania: The Revolution in Land Laws and a Tool to Millennium Development
Goal 7 Target 11
Patricia Boshe
Faculty of Law
The Open University of Tanzania
Abstract: Land regularization scheme not only marks a contemporary evolution in land planning and management but also reflects fundamental changes in the land laws in Tanzania. For the first time since her independence in 1961, the disadvantaged land holders in the informal sector have been considered and their property rights respected and given legal recognition. While land regularization on one hand ensures legal recognition of land acquired irregularly, promote security of land tenure and expected to reduce the level of poverty to individual land holders and nation at large, on the other hand it is employed as a methodological approach to illustrate the end of land monopoly to individuals who are in position to obtain land through legal channels as opposed to majority of disadvantaged population who are unable to obtain land through legal channels. This article focuses on the introduction of land regularization scheme in land laws in Tanzania, its implementation and expected results at the local level and beyond. The article also narrates the importance of land regularization scheme in relation to individual property rights as provided and guaranteed by The Constitution of United Republic of Tanzania and poverty reduction in line with the Millennium Development Goals. It also illustrates how Tanzanian government had made individual efforts to ensure the smooth implementation and success of land regularization scheme to promote individual property right, and poverty reduction adhering to the Millennium Development Goal 7 target 11.
INTRODUCTION
Regularization in a simple term means legalization of interests in land which is owned and/or acquired irregularly and thus lacking legal status. Regularization is an important phenomenon in securing legal rights in land and thus through land regularization efforts have been made to ensure that land acquired irregularly is given legal status to promote security of land tenure and sustainable urban development thus it has become an inevitable tool to solving future problems which are/can be associated with insecurity of land tenure.
The importance of land regularization in promoting security of land tenure and enforceable property rights is portrayed in the report by UN Habitat that by 2020 the current 30% of the level of urban poverty in the world would reach 45-50% of the total population living in cities and that is 381 to 455 million of households in most of the developing world.[1]
The fact that the urban population is doubling every decade, and that conventional tenure concepts have proved unable to meet the needs of the people with low income and limited, if any, savings and in many cases land on the urban periphery is not registered, so the tenure status of the owners and users is extremely difficult and expensive to determine.[2] Under the circumstances, regularization is taken and most likely is the best and only solution for tenure insecurity especially to the poor living in informal settlements because they cannot afford to obtain land through legal recognized channels such as purchase.[3]
The importance of land regularization in overcoming the problem insecurity of tenure in urban centers is highly reflected by the number of people living in informal settlements as compared to those living in formal settlements. In an estimate, almost 3 billion people, half of the world population now lives in cities.[4] In Tanzania a total of 11.2 million Tanzanians, equivalent of 32.2% of the total population lives in cities among which, 90% lives in unplanned settlements.[5]Further, a study conducted in 1997 shows that this trend of population growth in urban centers continues rapidly as in 1950:3.6%, 1985:14.8%, and 2020: 40.4%[6]. In this regard, the paper looks into the trend, efforts and circumstances under which land regularization came into being in Tanzania as well as the form in which land regularization took in Tanzania.
A LONG WAY TO LAND REGULARIZATION IN TANZANIA
German Era
Tanzania has a complex history of land law which can be largely attributed to colonization, a historical phenomenon which brought changes in almost every aspect in indegnieous African life style including land matters. Before colonial invention, land rights were governed by customary rules and land holding was influenced by patterns of settlements. Land was owned communally and individually. This system of customary land holding was interrupted upon the coming of colonization by introduction of new system of land holding which included land registration mainly designed to provide land for settlers, plantation owners and mercantile traders and it was done through enactment of legislations extinguishing customary land tenure system and declaring land to be under crown by the virtue of German Imperial Decree[7].
British Era
In 1923, The Land Ordinance, Cap 311 was passed by the British Government and declared all land to be public land. The Ordinance also empowered the Governor to make grants of land on right of occupancy and further recognized the dual structure in land ownership, i.e. native land ownership, (customary) and written right of occupancy. What is fascinating is that the written title deed were granted to foreigners in urban centres and to estates and plantations, while the majority of citizens were limited to customary tenure under a system of informal law. Thus, under statute law the economically dominant classes in urban and rural areas came to dominate large-scale properties while the majorities, under customary law, were restricted to ownership of small-scale landed property.[8]
The Land Ordinance was claimed to have been enacted by British rule ruling Tanganyika as protectorate with the aim of protecting natives’ interests in land. However there were arguments that, though the preamble of the Land Ordinance declared that its aim was to assure, protect, and preserve the existing customary rights of Africans to their land, the substantive provisions of the Ordinance did not give that protection.[9] Ironically, alienation increased and the natives were once again left with no apparent land rights and unfertile plots of land.[10]
Independence Era
In 1961, Tanganyika got her political independency and amazingly the new government accepted the legal framework which had been erected by the colonial government. Instead of focusing on changing the land policies to provide security of tenure to her people, the new government directed her efforts in agriculture advancement through Ujamaa Villagelisation Program and neglected the need of her people to have secured land rights. The government further rejected the land market reform that had been advocated by the colonial regime and insisted on the policy of Villagilisation. Further, in the late 1960s’ after the 1967 the Arusha declaration, all land in Tanzania was nationalized, followed by the forced resettlement of hundreds of thousands of peasants and pastoralists in new villages and as such agriculture production was to take the route of “Transformation” and “Improvement”[11]
The result of these government policies on land and rigid adoption of the Land Ordinance started to emerge in the mid 1970’s when the economy of the Nation declined, and Tanganyika was forced to abandon her land policy strategies erected after her independency which were socialist-oriented to save the economy of the country and be able to receive financial assistance from capitalist oriented organizations such as IMF and The World Bank to boost up her deteriorating economy. In the further attempt to rescue her economy, Tanzania government introduced the National Agricultural Policy in 1983, in which private ownership of land was emphasized.[12] The National Environmental Policy instead of rescuing the problem accelerated by the land policies adopted by Tanzania government, it accelerated the problem as Landless natives responded to the Policy by migrating from rural to urban in search of vacant land to privately occupy. At this point it should also be remembered that customary rights of occupancy continued to be disregarded, and was taken not to be applicable in urban areas. This is because whenever the government declares an area to be a planning area, persons occupying the plot under customary rule, looses rights to such land and becomes squatters.[13] Customary law was not only regarded as inferior and inapplicable in urban areas, but also lacking the juridical attributes for operationalising land ownership.[14]
However, with the high growth of population and an increased trend of rural-urban migration,[15] economy of the national continue to decrease as the majority of migrants grabbed and occupied valuable plots of land which could not be invested on for lack of secured legal rights for they have been acquired irregularly at the impulse of The National Agricultural Policy of 1983 among other reasons.
The irregular/informal occupied plots of land posed an imminent danger to the economy of the nation, and thus became a wakeup call to Tanzania government of the inevitable need to giving legal recognition to informal settlements, and also giving land its value and get away with the notion of ‘unexhaustive improvements’ on land. Thus the need to repeal the land laws and policies to rescue her deteriorating economy.
To the effect, Tanzania Government under the leadership of President Ali Hassan Mwinyi formed a commission to inquire into land matters and to prepare a report on necessary improvements in the said land laws. This report termed as the Report of Presidential Commission of Inquiry into Land Matters of 1992, popularly known as Shivji report, reported on the fears which manifests among the people living in informal settlements regarding their insecurity of tenure. That insecurity of tenure, not only deny people living in informal settlement an opportunity to use the plots of land they posses for any economic gain but also their existence on the land depends on the mercy of the government administrators and big businessman who expand their boundaries at their expense[16]. The effect of which, on one hand the economy of the nation continue to deteriorate despite the resources the nation has and on the other hand, people living and owning informal pots of land continue to sink into the pond of poverty despite the rich resources in their possession.
The report thus recommended new means of validating land rights to people living and having interests in plots of land in informal settlements. It showed its disapproval with the idea of demarcation being the only means for providing security of land tenure to informal settlements. That the purpose of demarcation is to secure individual or separate land ownership making it formal and legal, but evidence received by the commission shows that the process is mattered by delays, malpractice, abuse, defective instruction and lack of records, and instead of demarcation being guarantee of boundaries it becomes source of discontent and insecurity. [17]
The report advanced strong arguments regarding land planning and allocation that, since the main pillars of land allocation and planning policy is security of land tenure for all its residents. Planning urban development should not be the means of displacing people by extinguishing their land rights held through customary law or customs recognized by their neighboring communities, but securing existing land rights.
With that view, the commission recommended a total new approach to urban planning; that, planning should follow registration of land rights rather than precede it. Principle should be security of tenure first, and suggested a remedy to all the problems manifests land laws in Tanzania to be the introduction of national land policy.”[18]It noted that Tanzania has not had explicit policy on land tenure. That land tenure system has either been influenced by broad statement of social and philosophical visions or left to work out pragmatically in the course of implementing broad social policy, thus it is not accidental that the basic law of land has no provision of land and its ownership. This is why various development policies have concentrated more on the forms and methods of production rather than forms of ownership thus was inevitably and urgently needed.
This report was an eye opener and as a result Tanzania came up with The National Land Policy stating several objectives which reflects the importance of providing legal rights to informal settlements. It gave provision on the need to validate the informal land markets and regularization of informal settlements. To promote an equitable distribution of and access to land by all citizens. To ensure existing rights in land are recognized, clarified, and secured in law, and to facilitate the recording, adjudication, classification and registration of interest in land who appear to have no apparent lawful title to land.
In response to the Shivji report and the National Land Policy, two most important documents in the history of land law in Tanzania, Tanzania came with the Land Act,[19] which repealed and replaced The Land Ordinance, Cap 113. The Land Act [20]further adopted the above stated objectives of the National Land Policy,[21] and provides for exclusive provisions to regularization of informal settlements under Sub-part 2 of part VII of the Act. In Sub-part 2 of part VII, S. 56 is to the effect that, land regularization scheme should be implemented within the boundaries of any urban authority or in peri-urban area, with the purpose of facilitating registration of occupation and use of land by persons living and working in those areas. The land policies now took a turn in promoting security of tenure to the disadvantaged in informal settlements.
Like many countries implementing land regularization scheme, it is expected that land regularization scheme will enable to clearly define private, public and semi-public land as the scheme facilitates land registration and the processing of title deeds. Land regularization scheme on one hand is to enable the Government to collect revenue from the regularized land to enhance her economy, whilst on the other Land Regularization will, through certificates offered, enable the owners of property to access credits in financial institutions, use their plots of land in contractual transactions thus enable them to obtain collateral value on the land.
INTERNATIONAL BACKGROUND TO LAND REGULARIZATION SCHEME
In January 1996 there was an adoption of Delhi Declaration by the United Nations Conference on Human Settlements in Istanbul which was signed by 171 countries including Tanzania.[22] The Delhi Declaration advocating on access to land and security of land tenure as a condition of sustainable shelter and urban development, focused on the need to generate new investment in urban land by current users, to avoid substantial hardship for population already disadvantaged, and to increase the fairness with which the benefits of land are distributed.[23]
Specifically, The Delhi Declaration wanted, among other things, to have both negative and positive aspects of irregular land development realistically recognized. Despite the fact that informal land development generates access to land and unserviced settlements, The Declaration recognized the fact that such development does not offer security of tenure and may have poor infrastructure and maybe exploitative. However, despite all that, informal land offers a wide range of access to land opportunities to the urban poor, in the context where neither public nor formal private sector can cope with the demand accordingly. Thus, rather than be immobilized by the illegality of the situations, governments should undertake claims and unauthorized uses into rights to land which are recognized by the society and law.[24]
The Declaration also recommended that security of tenure be given to inhabitants of irregular settlements, and that relocation within or off site should be negotiated in exchange for improvements to tenure where it is in the public interest to free land for other purposes. Most importantly, claims to land rights arising from unofficial allocations by the traditional land management system should be recognized, whether these claims are feasible and equitable in terms of the public interest.[25] Tanzania in responding to the above resolutions of the United Nations Conference on Human Settlement, introduced The Land Regularization scheme through The Land Act[26] and later in 2000 in the National Human Settlement Development Policy of 2000 [27]
Under The Human Settlement Development Policy, regularization of informal settlement, though not addressed in detailed length, focus is made on the Sustainable Dar-es-salaam Project which was launched in 1992 with the aim of managing the growth and development of rapidly growing city of Dar-es-salaam. The project which was in lieu of the master plan preparation approach, aimed at strengthening the local capacity to plan and manage development of the city in a participatory manner by all actors and stakeholders. Also with necessary coordination and partnership with developers in services and infrastructure provision, the concept which was stated to have been replicated in the country with the UNDP (Habitat) assistance.[28]
The Human Settlement Development Policy made reference to Sustainable Dar-es-salaam Project in relation to Land Regularization scheme because the project is said to have brought public awareness on the role and contribution of stakeholders and private sectors in planning, development and management of human settlements. Also Sustainable Dar-es-salaam Project is said to have made the planning system more transparent and accountable to urban residents as well as integration between various sectors and community participation in planning implementation and management. [29]
It is from the Sustainable Dar-es-salaam Project that Tanzania adopted self regulation mode to land regularization on assumption that people will be able to contribute better if they are mobilized and organized. Thus in that respect NGOs and CBOs are expected to play a big role in harnessing individual resources for human settlement development and not directly from the government. This approach to planning replaced the traditional way to planning basing on the long term master plans which regulates land use and prepared by technocrats,[30] is highly promoted by UN Habitat and it emphasizes on participation of different stakeholders within various sectors.
LAND REGULARIZATION SCHEME IN ACTION
Regularization in Tanzania took a form of community initiative what has been termed as self regulation.[31] This is mainly attributed to the resource constraints on the part of the government which is traditionally seen as the enabler in such activities. Comparatively, the urban population living in informal settlements; which is more than 50% of the urban population, and the public resources budgeted for the purpose of upgrading informal settlements and provide serviced plots have been dwindling year after year while the demand is ever increasing[32]
To make sure that the informal settlements are regularized and the residents are provided with legal titles, the Government of Tanzania despite her financial limitations, decided to allow people living in informal settlements to regularize their plots on their own initiative and resources while the Government plays a facilitative role. And accordingly, the law provides that, for regularization to commence it has to be initiated by the minister responsible (Minister for Land Human Settlement Development) or the community itself should have enough initiative to initiate the process by taking all the necessary steps towards Land Regularization.[33]
However, the law requires that before the scheme can take place, the Minister either on his own motion or at the request of the people in the area, channeled through the local authority representative, shall declare such area an area for regularization. The minister, before making such declaration, has to appoint the Commissioner to do an inquiry as to whether the area qualifies to be declared as regularization area.[34] The inquiry to be done by the Commissioner comprises convening meeting in the area and explain to the residents of the area the nature, purpose and procedure to be followed in the declaration and implementation of the said scheme. Upon which, the Commissioner has to take the views of the people on the matter and prepare a report on existing state of land tenure, nature and manner under which the residents occupy land. The Commissioner has also to prepare estimation of what will be undertaken , i.e. the time and costs to carry out the scheme and submit the same to the Minister with his opinion as to whether the area be declared an area for regularization or not.[35]
The law also provides for criteria to be satisfied before the Minister can declare an area for regularization, that the area should be used substantially for habitation in dwelling of their own construction, and that substantial number of persons living in the area appears to have no apparent lawful title to their use and occupation of land notwithstanding that they have paid for or are paying for the land they occupy. Further, the residents must have lived there for substantial period of time so that the area is well established and settled area from a social point of view and that there is evidence that despite lack of security of tenure people appear to be investing in their houses and businesses and attempting to improve the area through their own initiatives. And that the community based organizations within the area wish to participate in the scheme of regularization.[36]
Apart from the above provided criteria by the Land Act, The Land (Schemes of Regularization) Regulation,[37] adds that, the minister shall be satisfied that there is reasonable support from those occupying and using the land and from any local authority representative and that, the resources needed for the implementation of the scheme and any project/programme to be introduced as a consequence of the declaration of the scheme are reasonably likely to be forthcoming. He must also satisfy himself that, there are no extraneous circumstances affecting the area which would tend to inhibit or limit the effectiveness of the implementation of any programme or project likely to be introduced in the area as a consequence of the declaration of the scheme.[38]
Upon satisfaction of the above requirements, the minister may declare an area for regularization and accordingly, the law stipulates for procedures to be followed in declaring an area for regularization. First, there must be a publication of the draft of the scheme in at least one Swahili news paper circulating in the proposed area. Also commissioner is to give publicity in the manner which is customary in that area and which is likely to bring attention to the people living in that area so that they may give their views.[39] Upon such publication the local authority shall consider the draft scheme and send its comments to the Commissioner.[40]
However, when the draft scheme is likely to involve relocation of people from their homes or place of business/work, acquisition or redistribution of land, or readjustment of boundaries of land, the commissioner shall serve notice to every person likely to be affected by the draft scheme and such people given an opportunity to be heard before the commissioner can proceed to make any decision.[41] If the Commissioner thinks it is necessary and desirable, he may consider the views of the people of the area, the local authority and any other person who have submitted their comments on the draft plan, revise the scheme, and submit it to the Minister.[42] Upon submission of the Draft Scheme to the Minister, the Commissioner has to give notice of not less than 14 days on public meeting to discuss matters connected to the draft scheme.[43]
The Minister upon the receipt of the draft scheme submitted to him by the Commissioner, may approve the draft scheme for regularization by order published in the gazette, or may, if disapprove of it, refer it back to the Commissioner for further amendments in accordance to his directions, or he may reject it all together.[44] Incase the minister approve of the draft scheme and declare an area for regularization, the same is deemed to be a scheme under the Town and Country Planning Ordinance.[45]
When an area is declared an area for regularization, the residents and their leaders will have to convene a meeting to discuss their idea of a layout plan of the settlement and planners will thereafter translate it into conceptual plan. If the residents are in agreement with the conceptual plan, they will sign an agreement confirming the acceptance of the mapped boundaries. The map will be submitted to the Municipal council for approval. Meanwhile the residents will have to organize themselves to mobilize resources for the cadastral survey and take necessary steps towards land regularization, and as noted earlier, the Government will play a facilitative role.[46]
THE LAND REGULARIZATION AND THE MILLENNIUM DEVELOPMENT GOAL 7 TARGET 11
Tanzania is one of the countries which signed to adopt the declaration of ‘cities and other human settlements in the new millennium’ In Istanbul, Turkey June 1996, thus tasked to implement the goals and objectives adopted in the declaration under the supervision of the UN Habitat mandated by the United Nations General Assembly.[47]In this respect, focus and emphasis was made to Millennium Development Goal 7 Target 11 which aims to improve the lives of at least 100 million slum dwellers by the year 2020.[48]
Prior to this, in 1999, The UN Habitat governing body adopted a strategic version statement, and brokered a partnership with World Bank to launch The Cities Alliance and the two organizations came up with “the cities without slums” action plan patroned by Nelson Mandela.[49] The action plan was further articulated by The Former UN Secretary General Kofi Annan in his report to the Millennium Assembly leading to its incorporation in the Millennium Declaration and the Millennium Development Goals, thus the millennium development goal 7 target 11.[50]
In practical terms, improving the lives of 100 million slum dwellers requires a large amount of money. Thus to curb the problem, member states were urged to mobilize international and domestic resources to finance the process.[51] Under the circumstances, the UN Habitat regarded it to be crucial for Community Based Organizations and Non-Governmental Organizations to be involved as partners in regularization together with municipal councils and other private sector organizations.
Tanzania on the other hand to be able to meet the Millennium Development Goal 7 target 11, has set her own target to do away with slums by 2015,[52] with the focus of preventing further unplanned settlements in the outskirt areas of towns. In an effort to make sure that the goal targeted is met by 2015, Tanzania made further efforts by reducing planning standards during the planning and implementation stages.[53]
Further, the government has foregone some standards it had set in the National Human Settlement Development Policy in the implementation of Land Regularization scheme so as to meet the 2015 goal among other reasons. For instance, Tanzania under the Ministry for Land Human Settlements Development have approved a sketch map for Ubungo Darajani for regularization and formalization of land rights despite the fact that Ubungo Darajani had been marked as Hazard area in the master plan of the Dar-es-salaam city.[54] It is clear that Tanzania government is determined to go away with slums and meeting the 2015 target to Millennium Development Goal 7 Target 11 and with all the commendable efforts made by the government and at a certain level in collaboration with the UN Habitat, people living in informal settlement can not only see the light through the tunnel to better living condition through provision of secured land rights, basic services and housing, the three main components in settlements upgrading strategy, but also reduce their poverty level through the use of the plots as collateral with which they may obtain credits from money lending institutions and building societies for socio-economic investment.[55] National wide, regularization scheme is expected to reduce proportional of the urban population below basic needs poverty line from 25.8% in 2000 to 12.9% in 2010.[56]
CONCLUSION
The aim of the article has been to show the trend in the history of the land laws in Tanzania with focus on the informal land holding in urban centers. It showed how the so called squatters were deprived of their Constitutional right to property as once they acquired plots of land in urban areas, the government denied such plots of land a legal recognition giving all sorts of reasons for not doing so; as Wanjala, in Land and resource tenure, policies and law: Perspective from East Africa said, that people acquiring urban land irregularly or occupying urban land under customary rule, their right to the land, were regarded as inferior, inapplicable and lacking the juridical attributes for operationalising land ownership as understood in English jurisprudence. Thus their existence were highly insecure in the land they posses. That it is through the introduction of land regularization scheme that people living or having interests in informal land can have their rights to land secured and legally recognized. Though it is clear from the words of the UN Habitat that upgrading of informal settlements is quite expensive, it is also clear that Tanzania has made tremendous efforts to ensure it success so that people living and having interest in informal land attain legal right over the land by 2015. The efforts made by Tanzanian government regarding land regularization scheme, is not only to abide to the 2020 Millennium Development Goal7 target 11 of improving the lives of 100 million slum dwellers but also to improve the overall national economy and reduce individual poverty.
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United Republic of Tanzania, (1999), Tanzania parliamentary proceedings (hansard, 9th February.
United Republic of Tanzania, (2005). The national strategy for development and poverty eradication.
United Republic of Tanzania, (2000). Poverty Reduction Strategy Paper, Mkuki na nyota publishers ltd.
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United Republic of Tanzania,, (2000). The National Human Settlements Development Policy.
United Republic of Tanzania, (1995). The National Land Policy.
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Methuselah Paul Nyagaswa Vs. Christopher Mbote Nyirabu, Civil Appeal no. 14 of 1985, Court of Appeal @ Dar-es-salaam,
Suzanna Kakubukubu & 2 Others Vs. Walwa Joseph Kasubi & Another, High Court of Mwanza Civil Case no. 13 of 1991
Mwalimu Omary & Another Vs. Omari Bilal; Court of appeal of Tanzania @ Dar-es-salaam, Civil appeal no. 19 of 1996 (unreported)
www whoseland .com/papers
The Right to Property without Adequate Legal Protection in Tanzania[57]
J. Clement Mashamba
Advocate of the High Court of Tanzania
and the Executive Director of the
National Organization for Legal Assistance (nola)
Abstract: This article is an attempt at revisiting and updating existing knowledge on the constitutional and legal protection of the right to acquire and own property in Tanzania. It traces the legal protection accorded to this right from the colonial period to the post- Arusha Declaration period. It notes that during the colonial period the right to acquire and own property was not legally protected because the colonialists were not interested in economically advancing indigenous Africans, but they were interested in capitalist accumulation and super profit from the colonies. After independence, the nationalist leaders were anti-private property, a stance that led to the promulgation of the Arusha Declaration. This Declaration witnessed massive nationalisation of private properties and converted them into public belongings. However, many government officials misused this approach and infringed the right to own private property during this period.
The paper also observes that even after the current Constitution was enacted in 1977, the right to property was given a qualified status (vide the Bill of Rights incorporated in the Constitution in 1984). With the demise of the Arusha Declaration in 1991, Tanzania saw a radical change in the mode of production where privatisation of the public corporations was undertaken, leading to massive retrenchment of many workers. The article cites several cases that reveal that the right to own private property was constantly infringed during the economic liberalisation era, noting that there is no adequate protection of this right.
In the end, the article calls upon concerned authorities to undertake constitutional and legislative action so that the country’s legal system could contain adequate legal protection of the right to own property.
INTRODUCTION
Ten years ago, Professor Chris Maina Peter of the Faculty of Law at the University of Dar es Salaam published the first ever treatise on human rights in Tanzania.[58] In this treatise, the distinguished Professor critically discusses the human rights discourse in Tanzania and how Tanzania has failed to live up to the required standards of promotion and protection of human rights. Amongst the grey areas that this treatise sheds a light on, is the right to own property in Tanzania. According to Professor Peter, some Government functionaries have been abusing the right to property with impunity, both before and after the Bill of Rights guaranteed this right in 1984.[59]
As a contribution to the existing knowledge this article revisits, and critically discusses, the right to own property as entrenched in the Constitution of the United Republic of Tanzania, 1977; and tries to update the existing knowledge as a contribution to knowledge in the country’s human rights dialogue.
THE THEORETICAL AND HISTORICAL PERSPECTIVE OF THE RIGHT TO PROPERTY
Theoretically, the right to own private property relates to ownership of property by an individual to the exclusion of others. This ownership of private property ‘is not a relation between a person and a thing. It is a relation between a person and a person.’[60] In this respect, Prof. Shivji provides an example to the effect that:
Ownership of (property) means that the owner can exclude others from access to it. My right to own a piece of land means my right to exclude you from it. And when the State guarantees my right to own (property), it undertakes to exclude others from it by law, meaning disguised force.[61]
Historically, the right to private property, in the above sense, started to be asserted when primitive communalism gave way for slavery, whose mode of production was dominated by slave-owning. During the era of slavery, man was able ‘to produce more than his basic needs and thus able to accumulate what he could call his property.’ [62] Under feudalism, and later capitalism, property relations were more entrenched in the society. According to Prof. Peter,
The concept of property has been changing with time. At first property was only that what is tangible, but now property rights include even intangible acquisitions.[63] Also, the value of property in relation to other matters differs from society to society.[64] In some societies property is valued even more than life itself.[65]
This changing nature of the concept of property has brought about interesting and conflicting theories about what actually entails by property. For instance, a 19th century French anarchist, Proudhon, once referred property to ‘theft,’ a theory that Marx corrected by saying that:
Originally property was not only theft but robbery, that is, stealing accompanied by force. Marx called it primitive accumulation, in the sense of original accumulation. In the process of primitive accumulation, which included the gruesome slave trade and ruthless colonialism, force was the dominant agency. Force was a midwife of the birth of capitalism.[66]
According to Rosa Luxembourg, the second aspect of accumulation, ‘akin to primitive accumulation, relates to the relation between capitalist and non-capitalist modes of production, like subsistence and small producers as in the colonial situation.’[67]
It is from the foregoing historical foundation that the contemporary concept of the right to property evolved. To date, the right to private property has been protected in various legal instruments, both at international and municipal levels.
THE RIGHT TO PROPERTY WITHOUT ADEQUATE LEGAL PROTECTION
Interestingly, the right to property in the Constitution of Tanzania is constructed in a manner that does not impose positive duty on the State to ensure that there is a conducive environment put in place to ensure that every citizen is capable of acquiring property. Under Article 24 of the Constitution, it is provided that,
24.-(1) Every person is entitled to own property, and has a right to the protection of his property held in accordance with the law.
(2) Subject to the provisions of sub-article (1), it shall be unlawful for any person to be deprived of property for the purposes of nationalisation or any other purposes without the authority of law which makes provision for fair and adequate compensation.
Indeed, this article seems to be in tandem with the provisions of many international human rights instruments that guarantee the right to own property. In its jurisprudential nature, the right to own property has been constructed differently in many international and municipal human rights instruments. But in most of these instruments, the right to property has been constructed in a manner that does not entail positive fulfilment of the right by respective States.[68] So, most of the international human rights instruments provide for circumstances under which the State is allowed to derogate from its obligations to provide for protection of property.[69] As such,
[T]hese instruments do not provide for (the) right to property. Rather, they provide for protection of property. Which means one has to earn the property first and then get protection and or the right to peaceful enjoyment of that property. The legal instruments do not provide the individual with property – but with protection of already earned or acquired property.[70]
For instance, Article 17(1) of the Universal Declaration of Human Rights (UDHR) provides – in similar, declaratory terms like Article 24(1) of the Constitution of Tanzania – that everyone has the right to own property, either alone or in association with others and prohibits arbitrary deprivation of the same.[71]
It is interesting to note that the International Covenant on Economic, Social and Cultural Rights (ICESCR) does not provide for the right to property.[72] At the international level, many litigants have been relying on the non-discrimination provision in Article 26 of the ICCPR to challenge violations of the right to property on the ground of non-discrimination.[73] But at the regional level, the European Convention for Protection of Human Rights and Fundamental Freedoms, 1950, affords protection to the right to property to both natural and juristic persons, and prohibits arbitrary deprivation of the right of the said right unless it is done so in public interest.[74] Accordingly, where deprivation of the right to property takes place it must be in accordance with the conditions provided for by the law and by the general principles of international law. In addition to that,
The Convention goes on to recognise the right of the State to enforce such laws as it deems necessary in order to control the use of property in accordance with the general interests. Also, in the exercise of its sovereign rights, a State is allowed derogation in the process of securing payment of taxes or other contributions or penalties.[75]
Similarly, under Article 14 of the African Charter on Human and Peoples’ Rights of 1981 the right to property is guaranteed, with deprivation being allowed only in the interest of public need or in the general interest of the community. As is the case with the European Convention on Human Rights and the African Charter on Human and Peoples’ Rights, deprivation of the right to property has to be done in accordance with the law.[76]
Hiding behind the foregoing limitations relating to the dimensions and scope of the right to property at international human rights law, the Government saw no difficulty in incorporating the right to property in the ‘enforceable’ part of the Constitution of Tanzania. This was so done because,
The Bill of Rights was (in Tanzania) formulated in a manner which would ensure that the executive still maintained its margin of discretion in dealing with the citizenry… [A] close scrutiny of the Articles (as contained in the Bill of Rights) shows that there is very little guarantee (of most of the basic rights and fundamental freedoms). A few Articles purport to carry absolute guarantees. The rest provide for qualified guarantees. It is apparent from the anatomy of the Bill of Rights that executive was more wary with rights which give the individual and the civil society organisational capacity. Such rights were qualified and subjected to executive counter-checks and control. Only those rights which are purely personal were couched in absolute terms, although the reality … is different.[77]
Viewed in this light, the provisions of Article 24 of the Constitution tend to qualify the right to acquire and own property in order ‘to give the State powers to requisition of private property in certain cases, such as emergency or war situations. However, this right is prone to abuse,’[78] as will be seen later in this article. In order to give practical effect to the foregoing exposition, the State has retained the Land Acquisition Act,[79] which provides for compulsory acquisition of land for public purposes and in connections with public housing schemes. Under section 3 of the Land Acquisition Act, the President may ‘acquire any land for any estate or term where such land is required for any public purpose,’ upon compensation having been paid to holder of such land.[80] However, as it is under international human rights law, the protection of the right to private property in Tanzania does not entail a guarantee afforded to the acquisition of private property.[81] As we shall see later, this incongruity subjects the right to acquire and own private property to constant abuse by agents of the State in certain cases.
HISTORICAL BACKGROUND TO THE RIGHT TO PRIVATE PROPERTY IN TANZANIA
During the colonial period, the colonialists were only interested in the second aspect of primitive accumulation – i.e., capitalist accumulation. Indeed, the main mission of colonialism in Tanzania, and Africa in general, was to accumulate capital and sell exorbitantly the surplus accruing from the accumulated capital to the colonial subjects. Indeed, in Tanzania, like any other African country,
[S]mall peasant and pastoral producers were in substance exploited by colonial capital, while formally still retaining ownership of and control of their means of production, land. Supplying male semi-proletarian labour to plantations that were paid bachelor wages, while continuing food production by peasant women, was a method of subsidizing capital. Sale of cash crops on the world market at consistently unequal terms of trade was another mechanism of exploitation. Selling crops to marketing boards, both during colonialism and after independence, below international market prices, was the third method of exploitation.[82]
So, peasant producers had no choice on whether or not to produce cash crops, because ‘by-laws required them to produce minimum acreages of cash and food crops. Failure to do so resulted in criminal sanctions – six months imprisonment.’[83]
This situation did not change much after the ‘political’ independence of Tanganyika in 1961,[84] in that the nationalists led by TANU ‘took a strong anti-private property position particularly on land’ during the negotiations for independence in the 1950s and 1960s.[85] This included objecting the inclusion of the Bill of Rights in the independent constitution,[86] which would entail, inter alia, guarantee of the right to own private property. This stance of the ruling party manifested in the nationalisation process, which took place following the promulgation of the Arusha Declaration on 5th February 1967. The Declaration was founded on the policy of Socialism and Self-reliance, which sought ‘to place all major means of production and exchange in the hands of the public. That entailed massive nationalisations of private investments – both local and foreign.’[87] In fact,
In execution of the Declaration, the government swiftly enacted laws through which various business enterprises were taken over by the State.[88] These laws affected Banks;[89] Retail and Wholesale Trade;[90] Agricultural Products Marketing;[91] and Insurance Business in which a monopoly was created vide the Insurance (Vesting of Interests and Regulation) Act, 1967.[92] … (and the) Industrial Shares (Acquisition) Act, 1967.[93]
Although the Government paid compensation for the nationalised property, ‘damage had already been done to the image of the Government in the area of protection of private property.’[94]
When the Bill of Rights was incorporated in the Constitution of Tanzania in 1984, the right to property was guaranteed under Article 24. However, the enjoyment of this right has been subjected to the laws of the country; meaning that the right to property is not absolute.[95] This Article, nevertheless, apart from guaranteeing and protecting the right to property, it prohibits deprivation of property in the process of nationalisation or otherwise without abiding by the law which provides for adequate compensation.[96] The qualification of the right to property, in practice, has given the State powers ‘to requisition private property in certain cases, such as emergency or war situations.’[97]
INFRINGEMENT OF THE RIGHT TO PROPERTY BY GOVERNMENT FUNCTIONARIES
As we have noted above, the wording of Article 24 makes the right to own private property prone to abuse.[98] In practice, the right to own private property has been subject of constant interference by certain Government functionaries. This interference was practiced even before the right to property was incorporated in the ‘enforceable’ part of the Constitution. Certain Regional Commissioners, Area Commissioners and even Ward and Village Executive Officers have been infringing the right to own private property without any justifiable or legitimate cause.
Therefore, the following part of the discussion sheds some light on how certain government officials have been in the forefront to infringe the right to own property in Tanzania.
INFRINGEMENT OF THE RIGHT TO PROPERTY BY GOVERNMENT FUNCTIONARIES BEFORE THE BILL OF RIGHTS
Before the Bill of Rights was incorporated in the Constitution of Tanzania in 1984, certain Government functionaries deprived people of the right to own private property on pretext of nationalisation or for the reason that the same had to be made public property. The major problem facing the victims of this infringement was that during that period it was difficult to successfully sue the Government functionaries involved. In Patrick Maziku v. G.A. Sebabili and 8 Others,[99] for example, a Regional Commissioner ordered the takeover of flour milling machines belonging to the plaintiff and gave them to a village as public property. The plaintiff knew that it would not be easy to sue the Regional Commissioner in his official capacity due to the requirement of Ministerial consent to sue the Government as then required under the Government Proceedings Act, 1967. In this case,
The Government applied to be joined in this suit and the moment that was allowed by the court – it insisted that consent should be obtained. Of course, it knew that it was not going to issue any consent![100]
Similarly, in John Mwombeki Byombalirwa v. Regional Commissioner, Kagera and Another,[101] the applicant applied in the High Court for order of mandamus to compel the Kagera Regional Commissioner and Regional Police Commander to return the applicant’s property seized in the process of carrying out the anti-sabotage campaign in 1983. Notably, in the process of implementing the Economic Sabotage (Special Provisions) Act, 1983,[102] many citizens who were suspected to be economic saboteurs were arrested and their property seized. In addition, they were not to be tried in normal courts of law but by special tribunals established under the Act. So, the applicant suffered the same fate when he was arrested on 30th March 1983 and charged with hoarding property before a special tribunal and later acquitted. Eventually, the tribunal ordered the return of his property and compensation. However, the concerned government officials did not comply with this order, hence this application seeking the return of the seized property or compensation in lieu of the same in the estimated sum of TShs. 33,123,980.00. The respondents denied liability, but the State Attorney who represented them conceded that the respondents seized a lot of property, some of which were sold and they were not accounted for.
Allowing the application, Justice Mwalusanya held that:
If there is any doubt as to the obligations of the law enforcement agencies and other members of the executive branch of the Government in returning the seized goods to the suspects who have been cleared by the court, I wish to point to Article 17(2) of the Universal Declaration of Human Rights of 1948 which provides that no one shall be arbitrarily deprived of his property. By Article 7(1) of our Constitution as amended by Act No. 15 of 1984 the government and all its agencies having executive, legislative or judicial functions are obliged to take into account and implement all the provisions of Part II of the 1st Chapter of the Constitution which includes the Universal Declaration of Human Rights of 1948 as provided by Article 9(f) of our Constitution.
Therefore, His Lordship held that: “It goes without saying that the Regional Commissioner and Regional Police Commander were duty bound in performing their duties to be guided by the provisions of the Universal Declaration of Human Rights which includes the duty not to arbitrarily deprive someone of his property. And I may also point out that under Article 24 of the Constitution, the right to property is guaranteed and can only be taken away by a law providing for adequate compensation.” It is worth noting here that at the time the ruling of the court was delivered in this case the Bill of Rights was not yet justiciable.[103] But Justice Mwalusanya was aware of this and he pointed out that:
Although justiciability of the Bill of Rights comes into force on 16/3/1988, yet the implementation of the provisions of the Bill of Rights by every organ of the government started on 1/3/1985 by virtue of Act No. 16 of 1984.[104] And so the Regional Commissioner and Regional Police Commander had and still have an obligation in law to return the seized goods or its value to the owners.
On the other hand, the so-called Regional Defence Committees used to harass private property owners before the entrenchment of the Bill of Rights in the Constitution. As Prof. Peter points out: ‘Though not legally provided anywhere, these committees ordered police to seize property, arrest suspects and the police did it without questioning the orders.’[105] For example, in Edward Mlaki and Another v. The Regional Police Commander, Kilimanjaro and Another,[106] the committee did not bother to respect court orders. In this matter, the applicants applied for an order of mandamus urging the court to compel the respondents to return or restore the applicants’ properties – i.e., two cars which were seized by the respondents in Moshi. However, the respondents defied the due process of the court – they refused service of the respective summons and eventually did not appear in court for hearing, which proceeded ex-parte.
The facts of this matter were thus: some time in April 1978, acting under instructions from the Secretary of the Kilimanjaro Regional Security Committee, the Regional Police Commander (RPC) caused the said two cars to be detained at Himo Police Station on allegations that the said cars were involved in carrying smuggled goods. Then in January 1979, the applicants were summoned by the Regional Security Committee to explain before it on the said allegations. At the meeting two people, other than the applicants, admitted that the goods found in the said cars were theirs; and that the applicants were only owners of the two cars, both of which were taxi-cabs. After the meeting the applicants were told that they would be informed about the progress of the matter; but until they took the matter to the High Court they had not been informed of the same as promised. It was the applicants’ contention in court that the Regional Security Committee had ‘no power in the absence of any criminal matter or civil suit to detain the applicants’ vehicles indefinitely.’
So, the main issue before the court was: whether the two respondents were under any duty, statutory or at common law, to release the vehicles to the applicants. Mwesiumo, J. (as he then was) answered that question in the affirmative. His Lordship was of the view that:
The initial step by the Police of seizing the two vehicles under the suspicion that the said vehicles might have been involved in smuggling offences was supportable by the law of this country. One would have thought that after such seizure the Police would pursue investigations of the suspected offences and then take whoever was concerned to a court of law after proper charges (have) been preferred.
Therefore, the court was surprised by the police’s disregard of the foregoing due process; and instead dealing with the matter through the Regional Security Committee. Faulting this tendency, His Lordship observed that:
I know of no law, statutory or otherwise, which empowers any Regional Defence and Security Committee to make an order that an individual’s property be detained at will without reverting to its owner in the absence of any legal process pending, even if initially the seizure of such property could be saltered by a suspicion of commission of a criminal offence.
As such, the court issued the order of mandamus compelling the respondents to release the said vehicles and return the same to the applicants. In this case, the court referred to a case that was decided in the High Court at Mbeya, whose facts were similar to the present matter. This was Re Juma Abdallah Kanchi[107]where the Regional C.I.D. officer in Sumbawanga seized a vehicle belonging to one Juma Abdallah Kanchi in connection with some alleged criminal offence under the Wildlife Conservation Act, 1974[108] and G.N. No. 263 of 1974. The applicant was charged in court, but the charges were later withdrawn under section 86(a) of the Criminal Procedure Code, 1945.[109] Then, under instructions from the Regional Defence and Security Committee, the Regional C.I.D. officer detained the applicant’s car apparently indefinitely without disclosing to him the reason(s) for such a move. The applicant approached the said Regional C.I.D. officer requesting for the release of his vehicle but to no avail for invariably he was told that the said Regional C.I.D. officer had no powers over the vehicle for the same was detained on orders of the Regional Defence and Security Committee. Consequently, the applicant successfully applied to the High Court for the release of his vehicle.[110]
INFRINGEMENT OF THE RIGHT TO PROPERTY BY GOVERNMENT FUNCTIONARIES AFTER THE BILL OF RIGHTS
After the Bill of Rights was entrenched in the Constitution of Tanzania in 1984, the right to own private property continued to be infringed by some villain Government functionaries.[111] According to the Tanzania Human Rights Report 2004: ‘There have been incidences where people’s property has been taken (away) without adequate compensation.’[112] This has been done notwithstanding progressive provisions in the Land Act, 1999[113] and the Land Acquisition Act, 1967,[114] which provide for equitable and/or adequate compensation in case of appropriation of landed property.[115] In fact, after the Bill of Rights was enacted, few pieces of legislation have been enacted to specifically protect the right to own private property, except the Land Act, 1999 and the Village Land Act, 1999.[116] This situation has resulted in violations of the right to (landed) property by various agencies of the State. For instance, in October 2001 the Serengeti District authorities, destroyed villagers’ properties, including crops and cattle, in Nyamuma Village while evicting them from the village. This eviction was found repugnant by Commission for Human Rights and Good Governance (CHRAGG) in Ibrahimu Korosso and 134 Others et al v. Thomas Loy Ole Sabaya et al.[117] In this matter CHRAGG held, inter alia, that:
According to the evidence available to the Commission, the Commission is satisfied that the respondents … did evict the complainants from the area of dispute and that eviction was carried out brutally and with excessive force. Some of the complainants had lived in the area for a long time and had enough properties to satisfy their needs but they were evicted without being given an opportunity to take with them their belongings. They left while destitute. [Emphasis supplied].[118]
In another similar incident, some time in August 2005 the Parastatal Sector Reform Commission (PSRC), assisted by Prison Warders and some prisoners, forcefully evicted nine families in Morogoro from their homes, in the process several property belonging to the occupants of the said families were destroyed. In fact, the homes were subject to court litigation at the time of the eviction, including the existence of a court injunction prohibiting any imminent eviction and any accompanying action. The Tanzania Human Rights Report 2005 documents this issue in the following phraseology:
Upon facing the villagers’ refusal to leave, an unknown number of prisoners from the Morogoro Prison were brought into the area. The prisoners destroyed banana trees and other crops in the area. Electricity was disconnected…[119]
Similarly, in September 2005 more than 36 residents of Ukonga area in Dar es Salaam were forcibly evicted from their homes by several prison officers from the Ukonga Prison. As was the case in the Morogoro eviction, the Ukonga homes were also the subject of litigation in court when they were invaded by the prison personnel and several properties were destroyed. The root cause of this tale is the controversial sale of ten houses formerly owned by Air Tanzania Corporation (ATC), which sold the same to the Prisons Deportment. The said houses were then occupied by employees, who in 2003 challenged in court the procedure for selling the said houses by their employers. However, before the matter was determined in court several prison warders forcefully evicted the occupants of the houses and destroyed several properties belonging to the occupants. They also injured two journalists who were on the scene covering the event.[120]
The foregoing discussion has just shown how certain Government functionaries have been involved in the deprivation of individuals’ right to own private property. Some of the infringements on the right to own private property have been challenged in the courts of law and some have not.
CONCLUSION
As seen throughout in the discussion above, this article has particularly discussed judicial protection of the right to own private property. It has attempted to trace the historical background of the right to own private property and how international law has protected the said right. The article also has discussed the state of legal protection of the right to property during colonialism and after independence, revealing how the colonial masters and later the nationalist leaders did not intend to effectively protect this right. The discussion has as well examined several incidences or cases where certain Government functionaries have been depriving individuals of their right to acquire and own property and how the courts have been effectively protecting the right to property.
In the main, the article has revealed that although there is constitutional protection of the right to own property in Tanzania, this protection is not absolute; and, as such, there is no adequate legal protection of this right. This situation has rendered the right to acquire and own property prone to constant abuses by certain government functionaries. In order to effectively protect the right to property, there is a need to undertake a fundamental constitutional and legislative review with a view to effecting amendment that would first, elevate the right to property to be an absolute one; and, secondly, legally protect it against any unjustifiable encroachment on it. This is so contended here because the effectiveness of any constitutional or legal guarantee to a basic right and/or fundamental freedom is attained when the right is unencroacheable.
The Protection of Employee Entitlement in The Event of Employer Insolvency: A Challenge for Justice in Tanzania Insolvency Law
Eliad E. Mndeme
The Open University of Tanzania
and Advocate of the High Court of Tanzania
and Courts Subordinate thereto
Abstract: This paper examines the law dealing with treatment of employees in repayment of debts owed by an insolvent entity. Particularly, this paper is centred on the treatment of employees whose employment has been terminated by operation of law and whose fate is subject to operation of insolvency law on the rules and regulations governing repayment of debts in the event of employer insolvency.
The paper is grounded on the assumption that for protection of employees’ entitlement in the event of insolvency of their employer, there is need for reforms of the insolvency law in Tanzania. The paper craves for fair play and treatment of employees’ benefits in comparison with other insolvency creditors. It stands out as another solitary voice in defence of employees’ benefits. As it will be noted here, the problems facing employees entitlement in the event of insolvency of their employers is a historical phenomenon which has its roots from the 18th Century in the United Kingdom. It then found its way into Tanzania through importation of English laws and was made possible under provision of Tanganyika Order in Council of 1920.
INTRODUCTION
It is a well known principle of law that a company having complied with all legal requirements for registration and issued with a certificate of incorporation becomes henceforth a legal person or legal entity separate from, and capable of surviving beyond the lives of its members. Like any juristic person, a company is legally an entity apart from its members, capable of exercising rights and duties of its own, and endowed with the potential of perpetual succession[121][122]. This is, indeed, the underlying principle governing corporate existence, which has long been established as one of a fundamental attributes of corporate personality[123]. Clothed with corporate personality, a company has perpetual succession which means that the company will continue to exist as a legal person until the time when its existence is brought to an end through established legal processes.
One of the instances where the life of the company may be brought to an end is where debts or liabilities exceed asserts. Thus, the company is unable to pay all its debts when they become due and as a result some persons particularly creditors take legal steps to wind up the affairs of the company. In other words the entity in question loses its going concern attributes. When the company is unable to pay all its debts, in corporate law, the company in question is said to be an insolvent entity. When a company is declared an insolvent entity, the pertinent question that follows is the realization and distribution of the assets of the company to the benefits of its creditors, if any, and shareholders of the company concerned.
In corporate law, the realisation and distribution of company’s assets is done through a special process called winding up of a company, which, by its meaning, is a process whereby its life of an entity in question is ended and its property administered for the benefit of its creditors and members[124]. A liquidator, is appointed and takes control of the company, collects its assets, pays its debts and finally distributes any surplus among the members in accordance with their rights[125]. Winding up of a company differs from the bankruptcy of an individual inasmuch as a company cannot be made insolvent under the insolvency law. Moreover, a perfectly solvent company may be wound up[126].
Corporate insolvency law provides for different methods for assisting creditors who deserve some priority or special treatment in repayment of debt owed by the company subject to insolvency proceedings. The most common method which has long been used by creditors is to file a petition in court under the relevant provisions of company law seeking compulsory winding up of the company and an appointment of a liquidator under the order of the court for the purpose of liquidating the affairs of the entity[127].
It is an inescapable reality that in winding up of an insolvent company, not all debts are going to be met from the realization of the company’s assets. In addition, since the late 1900s, insolvency laws in Anglophonic jurisdictions have established rules on ranking of creditors. Employees’ wages and government unpaid taxes and rents are the most obvious areas expressly identified by statute, although both the tax due by the company and tax deductions withheld by the company also have been ‘favoured’ by legislation for special treatment[128]
THE EVOLUTION OF THE CONCEPT OF PREFERENTIAL DEBTS
Historical Perspective under Tanzania Legal Regime
Invariably, the history of preferential debts in insolvency law traces it roots from England. In England, the first Companies Act in 1862 did not expressly mention the crown and taxes as being entitled to any special distribution upon the insolvency of the company[129]. The Re Henley &Co[130] of 1878 provides the first authority that the Crown is entitled to be paid out of assets in priority to all other creditors.
From earliest times, the basic principle of distribution of assets to the creditors of an insolvent company was that each creditor would rank pari passu. However, in 1825 the bankruptcy legislation was amended to insert the following:
And it be enacted, that when any Bankrupt shall have been indebted, at the time of issuing the commission against him, to any Servant or Clerk of such Bankrupt, in respect of the Wages or Salary of such Servant or Clerk, it should be lawful for the Commissioners, upon proof thereof, to order so much as shall be due as aforesaid, not exceeding Six Months’ Wages or Salary, to be paid to such Servant or Clerk out of the Estate of Such Bankrupt; and such Servant or Clerk shall be at liberty to prove under the Commission for any Sum exceeding such last mentioned Amount[131]
Since that time, debts of employees to the company have enjoyed priority in the United Kingdom [and other common law countries] to an increased degree[132]. This trend of giving priority to certain unsecured creditors in the distribution of assets of insolvent company founded its way into then Tanganyika through the Companies Ordinance (Cap 212). The Ordinance expressly mentioned taxes and rate payable to the Crown or to local authority and employee’s wages or salaries, subject to certain limitations, as enjoying preferential payments to all other debts[133]. The scheme of the then Ordinance reflected the framework of the English corporate insolvency established during the Victorian ages to the Napoleonic wars and into the twentieth century. Indeed, one may rightly surmise that the Companies Ordinance (Cap 212) and the current Companies Act (Cap. 212 R.E. 2002) are in pari materia with the English Companies Act, 1929.
The English legislation was adopted virtually wholesale into Tanzania without giving due consideration to the stage of development of Tanzania in the political, social, economic, and financial context[134]. Arguably, it is in this connection that D.J.A. Dowdall (then Registrar of Companies) once remarked that:
Tanganyika inherited a system … carefully moulded over a period of nearly three centuries to meet the requirements of a country, then a leader in the growing world of commerce, and finally a system which, judged on the basis of subsequent legislation in its country of origin, was soon to prove inadequate to the needs of a still developing, and a progressively more sophisticated commercial society[135].
The above remarks reflect the tendency adopted by then colonial government of transplanting English law groomed or developed in a different environment and level of development to the colonies. This certainly was something of a misnomer characterized by the English colonial legal regime which is the bedrock of the current Tanzania legal regime. It was thought that the trend was cheaper than entering into costly exercise of drafting fresh legislations for each colony.
Notwithstanding the above fact, looking at the provision of the Act, based on English Companies Act, 1929, one may argue that current insolvency law in Tanzania concerning the distribution of an assets of insolvent entities aims, as far as possible, to adhere to the principles of equality of treatment[136]. Despite this, the law recognizes the special position of certain preferred creditors and so accords them priority status over other unsecured creditors[137]. As such it could be said that the position in Tanzania is that all creditors are equal but some creditors are more equal than others.
The former Companies legislation which had governed companies for the last 77 years has been repealed and replaced by the Companies Act, 2002[138], after the latter was finally operationalized after long delay waiting necessary regulations to be made[139]. Yet, even the new Act has not substantially changed the rules governing the distribution of assets of an insolvent company. One would have expected substantial reforms on the issue of preferential debts under the Companies Act, 2002. Conversely, section 367 of the new Companies Act, 2002 is a replica of section 259 of the former Companies Ordinance with minor amendment touching minor issues such the removal of Shs. 4000 limitation on the amount the employees may claim as priority debts imposed under section 259 of the Companies Ordinance. The power to set monetary limit on the amount that may be preferred is vested in the respective Minister responsible for Industry and Trade[140]. However, against all reasonable and legitimate expectation, the Minister has decided to retain the four thousand shillings as the maximum amount in which the employee may claim preference[141]. This amount is a mockery compared to the prevailing cost of living.
Admittedly, the rigor of the application of rules governing distribution of assets of insolvent entities in Tanzania has not been fully experienced during the existence of the former legislation. As it is well known that from 1967 up to the late 1980’s Tanzania was predominated by public corporations as a result of adoption of the Ujamaa policy which was mainly aimed at placing all major means of production under the umbrella and control of the government. This being the case the rigour and severity of the principles governing payment of debts of an insolvent estate was not much on front and the provisions of The Companies Ordinance were displaced and to a large extent made redundant. The displacement and redundancy was necessary since The Companies Ordinance was enacted and modelled on the spirit of private ownership of property, as it was the case with United Kingdom where the legislation traces its roots.
With public corporations at the helm of corporate development and subject to tight control of the state, these corporations were wholly dependent on the state for policy guidelines as well as their financial backer when the need arose. The state had also a necessary burden of providing funds to public corporations in forms of subvention and/or subsidies even to seemingly insolvent corporations. At the same time the government, as the majority or sole shareholder of the public corporations, could not enforce or compel public corporations to strictly adhere to the basic principles of corporate governance so as to maintain financial discipline and administration as provided under corporate laws. For instance although the Companies Ordinance required all registered companies to send to the Registrar of Companies an account of the annual returns, profits, losses and capital structures, none of these provisions were implemented by subsidiaries of public enterprises incorporated under such legislation[142]. This was, may be, a calculated omission intended to avoid ostensibly conflicting legal regimes since public corporations were accountable to the Treasury Registrar and subsidiaries of public enterprises were incorporated and regulated under Companies Ordinance thereby placing them under the control of the Registrar of Companies. The situation was even worse to public corporations which were established and regulated by legislation other than Companies Ordinance[143] which did not provide for requirements and conditions as found under the Ordinance.
The state’s intervention and disregard of insolvency procedures and laws presumably sought to avoid chaotic implications that would seemingly follow if the public enterprises were ousted from business through the operation of insolvency laws and procedures. This practice, nonetheless, was pursued without considering the liquidation or the going concern values of the enterprises and whether or not the enterprises in question were still viable albeit in the long run[144]. It is argued that the practice did not consider the fact that most public enterprises were formed out of an overnight decision verging upon national political, economic and social considerations rather than managerial or commercial studies[145].
In recent times, however, Tanzania has witnessed devolution of major means of production into the private sector and the changing terrain of investment climate in the country in which private companies have turned out to be the catalyst of corporate development. The result of this change of events is that the companies’ laws, including the insolvency part, is being resorted to and applied in bringing the affair of an insolvent company to a decent burial.
PREFERENTIAL DEBTS IN TANZANIA
Under the Companies Act the underlining rule governing distribution of properties of an insolvent entity is that the properties are distributed in pari passu[146], that is to say creditors have an equal entitlement to share in a proportionate distribution of the assets of an insolvent debtor. However, the above general principle admits certain exceptions. In other words, the general principle is applicable subject to the provisions relating to preferential payments. Thus section 357 of the Companies Act[147], provide that:
Subject to the provisions of this Act as to preferential payments, the assets of a company shall, on its voluntary winding up, be applied in satisfaction of its liabilities pari passu, and, subject to such application, shall, unless the articles otherwise provide, be distributed among the members according to their rights and interests in the company[148]. (Emphasis supplied)
It has to be noted that the above provision is applicable only to voluntary winding up of a company, which presupposes that the company is financially able to meet all of its liabilities in full. Nevertheless, the above provision is subject to provisions as to preferential payments. Specifically, the above provisions are subject to section 363 of the Companies Act[149] which provides to the effect that all costs, charges, and expenses properly incurred in the winding up, including the remuneration of the liquidator, shall be payable out of the assets of the company in priority to all other claims.
Apart from costs, charges, and expenses incurred in the winding up, the Companies Act, 2002 also recognize certain debts as enjoying priority treatment over other debts. As a result, section 367 of the Companies Act, 2002, provides to the effect that in winding up, the company’s preferential debts shall be paid in priority to all other debts. The provision goes on to enumerate preferential debts to include:
a) all government taxes, local rates and customs and excise duties due from the company at the relevant date and having become due and payable within twelve months next before the date;
b) all government rents not more than one year in arrears;
c) all wages and salary (whether or not earned wholly or in part by way of commission) of any employee not being a director in respect of services rendered to the company during four months next before the relevant date;
It is an undeniable fact that the above provision provides for preferential treatment of some debts of unsecured creditors in preferential to others. Thus, in accordance with provisions of the Companies Act, 2002[150], the liquidator having realized the assets of the company is required to make payments in the following order[151]:
i) Costs, charges, and expenses incurred in the winding up including Liquidators’ remuneration;
ii) Preferential creditors;
iii) Creditors with floating charges on the assets, that is secured creditors,
iv) Ordinary Creditors,
v) Deferred Creditors,
vi) Shareholders.
Once a liquidator takes control of the company assets subject to liquidation process, the question that follows is the realisation of assets of the company and distribution of the proceeds among the creditors of the company. In insolvency law, creditors are divided into three classes, namely creditors who hold priority claims, creditors with secured claims and lastly creditors who hold unsecured claims. The emphasis here is on the “claims” and not on the “creditor”[152]. Where there are different classes of creditors the wishes of those particularly interested will be given most weight and in particular, where the companies’ assets are not entirely charged in favour of the debenture holders, the wishes of unsecured creditors will be primarily considered[153].
Again, in distributing assets in favour of its creditors, the liquidator has to follow the established principles in distributing the realised proceeds to the various creditors. Creditors holding unsecured claims are all debtors’ creditors having no special interests in property of the debtors’ estate. This category includes the claims of those parties who loaned the debtor money or performed services for the debtor, or sold the debtor merchandise without demanding collateral to secure the debtors’ promise to pay[154].
There may be several unsecured creditors ranging from employees of the company to the suppliers of goods and independent contractors and government in form of unpaid taxes and rent. When it comes to the treatment of unsecured creditors, the most problematic and disputable matter is the priority status afforded to some of unsecured creditors such as government taxes and employee’s wages and salaries. It is on the question of priotisation of debts of unsecured creditors that has generated a hot debate in number of countries in the process of formulating insolvency law and policy. The ranking of creditors within the unsecured group is the primary form of protection conferred upon unsecured creditors in the event of corporate insolvency in the majority of international jurisdictions.
THE ENTANGLED DEBATE
The World Bank[155] report on priority status enjoyed by some unsecured creditors in insolvency observes that the insolvency laws and policies of many countries recognize, in varying degrees, the priority of certain categories of unsecured debt, such as taxes and unpaid wages. Furthermore, there is an observable tendency to increase the categories of debts enjoying such priority, for example by giving this status to each new form of tax or duty or each additional employee entitlement. The report further notes that in countries with a strong tradition of worker protection there is sometimes an acute tension between the provision of safeguards for employees against the consequences of their employers’ insolvency. In addition there is the need of the trustee in bankruptcy to keep the business viable and, if possible, restore it to profitability, which may involve a sharp reduction in the workforce. In recent years, there has been a reaction against preferential status for unsecured debts and even against the concept of unsecured preferential claims as impeding the perceived objective of insolvency law, namely, to maximize returns for creditors as a whole[156].
This paper deals with only one category of unsecured creditors, namely employees of the company subject to or under insolvency proceedings. Over time there have been a number of theories put forward to explain the rationale behind according employees priority in insolvency. It is broadly recognized that worker’s wage claims deserve special protection, since the insolvency of an enterprise and consequently the suspension of payments directly threatens the means of livelihood of workers and their families[157]. Moreover, as employees do not have a share in the profits of the enterprise, they should not share in its losses either. The preferential treatment of wage claims is by far the most widely accepted and most traditional method of protecting service-related claims in the event of the employer’s bankruptcy or the judicial liquidation of an enterprise[158].
The privilege system was first codified in the civil codes of the nineteenth century, beginning with the Napoleonic Code, initially to protect the wages of domestic servants. Protection was progressively extended to other categories of wage earner and the preference principle soon gained recognition in both commercial and labour legislation[159].
Conversely, the generally accepted rationale behind affording debts due to employees priority in a winding up would appear to have their genesis in the fact that debts owed to employees have historically been seen to be of a different nature than other debts by the company for a variety of reasons.
In Parkin Elevator Co[160]the following observation was made:
Salaries and wages are generally needed for, and generally expended in, the support and maintenance of the persons earning them, their wives and families and others dependent on them, and so may well be given priority, for a short period, over debts due to other creditors in the ordinary course of business and generally more nearly related to the profit and loss account of the creditor than his sustenance or that of those dependant upon him.
Again, employees have long been considered worthy of a special protection if a company becomes insolvent. This has been seen to be appropriate because employees are less able to manage the risk of the loss they suffer if their employer becomes insolvent[161]. It is argued that whilst shareholders can diversify their investment portfolio to eliminate or hedge against risk, and creditors may diversify their customer base by having guarantees or security, employees typically only have one employer and they are accordingly exposed to that employer for the entirety of unpaid wages, leave or redundancy entitlements with very little capacity to reduce that risk[162].
A number of other reasons have been put forward as justification for affording debts to employees a preferred status. On this front it has been argued that debts due to employees have the same characteristics as alimony since in most cases the worker depends on the wages to support himself and his family[163]. The priority has also been said to correct the adverse imbalance, which affects the worker as a result of the employer’s obligation to pay the wage only after the worker has carried out his
PREFERENTIAL DEBTS UNDER COMPANIES ACT
On employees side the law in Tanzania gives preference to “all wages or salary” of both full time employees and casual employees in respect of services rendered to the company during the four months preceding the date of commencement of winding up. Formerly, the preference was limited to a maximum of four thousand only, however, the new Companies Act has removed this maximum financial threshold[164], and the only remaining limitation as regards employee’s preference under the above legislation is that the employee’s salary or wages, which receive preferential treatment, is for the period of four months only[165].
Furthermore, the new Act does not expressly mention casual labourer as entitled to priority payments, the Act only refer to the wages or salary of any employee not being a director in respect of services rendered to the company as entitled to preferential treatment[166]. This being the case it is important to acquaint ourselves on who is employee in corporate insolvency in strict legal sense. It is unfortunate that the Companies Act has not attempted to give a comprehensive definition of the term employee for insolvency purpose so as his/her salary or wages would be entitled to priority in distribution of assets of a company. The Employment and Labour Relations Act, 2004, defines the word employee to mean an individual who has entered into a contract of employment; or has entered into any other contract under which the individual undertakes to work personally for the other party to the contract and the other party is not a client or customer of the profession, business, or undertaking carried on by the individual[167].
Looking at the above definition, a criterion in determining whether a person is an employee is for individual concern to have entered into contract of service or employment with any other person. Nonetheless, it must be noted that there are many types of employees including casual employees, daily or monthly contract employees and permanent employees. The above two legislation do not provide a clue on mode of employment in terms of duration and this is one of the shortcoming in the above two legislation. It may appear a simple matter to define an employee. In simple terms it means that there is a service relationship between one person and another: the provider of the service being the employee and the recipient being the employer[168]. Yet, it may not be that simple when it comes to determining who is entitled to payment of terminal benefits when a company goes into liquidation.
Notwithstanding the above fact, over year’s employee related claims have received priority payments in distribution of assets of an insolvent company. The preferential payments scheme was introduced in Tanzania in 1952[169], however, as stated earlier no reason or reasons have been assigned as a justification for affording such preference. In United Kingdom, the stated reason for the early position in relation to debts due to employees was that insolvency was akin to death and that debts due to employees of the deceased company should be afforded the same priority as debts in a personal estate[170].
The next question which naturally follows from the above backdrop is whether the current priority system given to employee under Tanzania’s insolvency law has had done any justice to the employees? The near-end diversifications of public corporation in Tanzania had given a leaf of the practical aspects of the application of insolvency law as far as employees’ entitlement is concerned. The available reports of liquidation of most public corporations reveal rather undesirable examples where the liquidation of companies in Tanzania has caused untold sufferance to its former employees who had to wait for almost two years longing for their terminal benefits which were not promptly paid to avert employee hardships. Understandably, employees being unsecured creditors have to wait for payments to be made in accordance with corporate law at the time, which in the final analysis entitle them to paltry sum which does not take account of the rising cost of life.
This trend calls for the review of the existing rules governing priority and preference given to unsecured creditors in insolvency. This call is more pertinent today on the premise that even countries where the current principles governing distribution of insolvent estate namely United Kingdom and Australia has undertaken review of their insolvency law with a view of creating more equitable and balanced systems of law for dealing with employees wages in the event of corporate insolvency.
MODERN TREND OF INSOLVENCY LAW
In United Kingdom and Australia the position on priority creditors were roughly the same to that of Tanzania at least up to 1986. Nevertheless, in 1982 the United Kingdom conducted an extensive review of the existing insolvency law. This review was conducted by a committee known as United Kingdom’s Review Committee’s on Insolvency Law and Practice, famous referred to as the Cork Committee[171]. After making extensive review of the law and policy governing preferential debts in UK’s insolvency system, the Cork Committee concluded that no debt should be afforded priority unless this can be justified by reference to principles of fairness and equity which would be likely to command general public acceptance[172]. The Committee reasoned further that ‘it is a fundamental objective to achieve a rateable, that is to say, pari passu distribution of the uncharged assets of the insolvent among the unsecured creditors’. However, it observed that the principle of pari passu distribution has been greatly eroded into merely a theoretical doctrine[173].
Again, the above views were echoed by the New Zealand Law Commission, which stated that concepts such as justice and fairness have a role in insolvency law, at least in terms of the collective nature of the insolvency process. For it, the Commission stated:[174]
In our view, the purpose of insolvency law is to provide rules based on notions of fairness and justice, which can be applied in any given case to avoid inefficiencies that would result from an individualised resolution of claims within a bankruptcy or liquidation. In insolvency, it is axiomatic that loss will be suffered. The issue is how the incidence of loss will be borne. The granting of priority status to a creditor affects the incidence of loss as particular creditors may be paid in full while others receive little or nothing.
On the above basis, the Law Commission concluded that compelling reasons are required to justify any departure from the pari passu principle[175]. In terms of the criteria for deciding whether reasons in any specific case can be categorised as compelling, the Law Commission took the view that community expectation was the decisive factor[176]. It stated that it is ‘entirely appropriate in a democracy for community expectations to be the value underpinning a priority provided that the grounds for the expectation are articulated clearly so that proper debate can take place as to whether priority status is the best way of achieving the policy goal’.[177]
In its final report, which culminated to the enactment of Insolvency Act, 1986, the Cork Committee concluded that the rationale put forward for the priority for employees is that they are in a particularly vulnerable position if their employer becomes bankrupt or is wound up[178]. Thus, on the basis of above argument the Committee recommended for retention of priority accorded to employees by the UK’s insolvency law. However, it is argued that all creditors are vulnerable to some extent in insolvency, so the question is what is particular to the vulnerability of employees?[179] A more widely supported and precise explanation of the rationale for the employee entitlements priority is that, in the first instance, employees tend to be non-consensus creditors. Secondly, employees tend to be less able to account for the risk of insolvency than other[180]. A non-consensual creditor is one who has not consciously and voluntarily accepted the risk of default[181]. By virtue of this fact employee as non-consensual creditors is unable to extract concessions or compensation for accepting such risk.
Thus, for non-consensual debt there is a deficiency in the bargaining process relating to the extension of credit. The only practical way to remedy this deficiency is to offer some sort of protection for those non-consensual creditors, who being unable to recognize the risks involved are unable to protect themselves accordingly[182]. To not do so, it is argued, would be like subjecting someone to rules of a game they never knew they were playing[183].
Notwithstanding the importance of affording employee the preferential treatment in insolvency law and benefit accrued to this system, in modern times, however, the preferential system has come under heavy criticism largely on the objectives of insolvency law to the creditors. On this score it is submitted that insolvency by its very nature is only capable of facilitating the benefits treatment of one group of creditors to the detriment of another[184]. This is the unavoidable problem where liabilities exceed available assets. It is argued that by treating employees as priority creditors enhances their prospect of repayment only to the detriment of ordinary unsecured creditors who are left with fewer, if any, assets available to satisfy their debts and claims[185]. This, inevitably, invites the question as to whether such treatment comes at an unjustifiably high cost to ordinary unsecured creditors.
WHAT NEXT ON INSOLVENCY LAW
Despite the dominance of the idea of creditors as faceless, greedy entities, typified by banks and financial institutions, it is noted that in the vast majority of cases this is a blatant fiction[186]. It is further noted that although creditors vary markedly, one thing many ordinary unsecured creditors have in common is that they are hit hard by insolvency[187]. Consequently, to the extent that the priority distribution of assets in respect of employee entitlements exhausts the assets of an insolvent entity, it causes many such unsecured creditors who cannot share the assets, to either struggle financially or enter into liquidation[188].
To this extent it can be safely asserted that in certain cases, mainly where the assets of an insolvent company cannot service all debtor, priority to certain creditors acts as a sword to other unsecured creditors. This point was also made by the New Zealand Insolvency Law Review with particular reference to trade creditors, which suggested that by increasing the costs on trade creditors in preference to employee, there is an increased risk that those trade creditors will fail[189]. Recognising this, and assuming a legitimate goal of insolvency law is to improve the chances of creditors surviving the collapse of their debtors, the priority of employee entitlements is counter-productive to that goal[190]. It is in relation to this argument that it is strongly argued that there is probability of more creditors surviving the collapse of their debtors if and where the impact of insolvency was spread among all creditors and not shouldered by an unfortunate few[191].
Again, protection of unsecured creditors through priority scheme in bankruptcy has not proven to be very satisfactory. First, priority scheme may be without much practical effect where there are not sufficient realizable assets in the insolvent estate[192]. Second, while it is generally agreeable fact that the priority scheme seeks to protect unsecured creditors such as employees by providing relative priority for their claims, it fails to guarantee a minimum rank for such claims which would be a socially acceptable standard of protection.
Another objection advanced against priority scheme in insolvency and which has progressively gained acceptance in the fact that the philosophy underlying the preference system under bankruptcy law is to arrange for the liquidation of the distressed enterprises, subsequently, the sale of its assets for the purpose of satisfying the creditors’ claims. Nowadays, however, it is widely accepted that such proceedings should instead be aimed at rescuing enterprises in difficulties; the assumption being that in most cases it is economically and socially preferable to keep the enterprise afloat by separating its fate from that of its owner[193]. Under the influence of the so-called “rescue culture”, therefore, the privilege system has come to be seen as not only inadequate in its practical application but also outdated in its conception[194].
To this end, the next pertinent question is what is the alternative to priorities scheme offered by insolvency law? It is argued that a better alternative is to protect vulnerable creditors through mechanism other than the redistribution of pre-insolvency property rights[195]. For employees, this could be achieved through the introduction of wage earner protection funds. This was the approach advocated in the Harmer Report. The report was in the opinion that, “the most efficient way to ensure employees are paid in the event of their employer becoming insolvent is through the introduction of a wage earner protection fund”.[196] These funds protect employee entitlements by requiring employers to deposit some entitlements into an independently administered fund as they accrue or by providing for insurance schemes to guarantee payment in the event of insolvency[197].
The wage guarantee institutions shift the individual employer’s business risk to what might be called the “community of employers” and hence make it possible for the service-related claim to be paid in all cases through a third party which is by definition solvent and acts as an insurer of the “risk of insolvency”[198]. In the final analysis, the principle of insurance by the community of employers against the risk of individual insolvency is not very different from the principle of occupational accident insurance financed exclusively by the employer’s contributions[199].
Wage earner protection funds currently exist in many countries such as Belgium, Sweden, Finland, Spain, Denmark, France, Germany and the Netherlands. These funds have been extremely efficient in protecting employees’ entitlements[200]. Managed proficiently, the funds require minimal employer contributions once a sufficient pool of accumulated funds has been realised[201]. Having wage earner protection funds, it is argued, would provide a more equitable distribution for all, as they enable employees to be paid their entitlements in full. At the same time the wage earner protection funds improves the position of ordinary unsecured creditors, who have a greater pool of funds to draw from, where employee preferences have not proceeded them[202].
It is high time that the system of priority is reviewed in line with international models. As noted above the traditional philosophy underlying the preference system and corporate insolvency law is to arrange for the liquidation of the distressed enterprises and for the sale of its assets for the purpose of satisfying the creditors’ claims. However, in modern corporate insolvency laws and practices, it is widely accepted that insolvency proceedings should instead be aimed at rescuing enterprises in difficulties. The assumption being that in most cases it is economically and socially preferable to keep the enterprise afloat by separating its fate from that of its owner and ultimately put it under rescue arrangement with a view of allowing the distressed company to pay its debts while it remains a going concern.
The rescue arrangements of keeping the enterprises afloat without resorting to liquidation is a contemporary trend which has been introduced and applied in modern insolvency laws. In addition, it has been a catalyst in paradigm shift from looking at insolvency law as only concerned with assisting and guiding distressed enterprises into a decent burial but also placing it under rescue plan with a view of keeping the enterprise a going concern while servicing its debts. It is probably in keeping with this spirit that the new legislation, The Companies Act, 2002[203] has introduced rescue arrangements into the insolvency law in Tanzania.
In line with introducing wage guarantee scheme like the above, it has to have efficacy and impact on the employees during and after insolvency proceedings. The scheme must be governed in the light of the principles which ensure that it is administratively, financially and legally independent of the employer. The scheme should be financed by compulsory contributions payable by employers, and funds collected should be used exclusively towards satisfying claims in respect of unpaid wages.
Patents Protection in Tanzania: Some Legal and Policy Considerations for Reform
P.F Kihwelo
Dean of the Faculty of Law
The Open University of Tanzania
paulkih@.
Abstract: This article is exploratory as it seeks to make a brief survey on the state of patent law in Tanzania today. The article focuses on the legal and policy aspect of the law with a view of proposing for reform. The author starts by introduction of the word patent and proceeds to examine some other issues such as historical development of patent protection from colonial to the contemporary Tanzania. The author highlights the present legal regime for the protection of patents in Tanzania. The article proceeds further by examining other issues such as the political economy of the TRIPs Agreement which is a culmination of the series of Multilateral Trade Negotiations (MTNs) from 1948 to 1994. The TRIPs Agreement is examined in view of patents. In particular the Article concentrates on the scope of review of Article 27 (3) (b) of the TRIPs which is the most controversial part of the Agreement despite the fact that it has been discussed very widely by member states in a number of occasions. The article also discusses by passing the relationship between TRIPs and Traditional Knowledge (TK). The author elaborates why there needs to be a national policy on intellectual property protection in Tanzania. Lastly but not least the author highlights the need to reform patent law so as to overcome the selective nature of the law when it comes to the type of invention that can be patented.
INTRODUCTION
The term patent does not command to an internationally unanimously acceptable definition. However it seems to mean something associated with the concept of an exclusive right, i.e. patent is mainly looked at as a representation of an industrial right granted by the government. This exclusive right is certainly the primordial signification of a patent which however represents only one of the two essential aspects of patent documents. The aspect is represented by the technical information given in the patent document, otherwise known as the technical knowledge. A patent is therefore defined as a right or legal privilege granted by a government authority, which confers on its holder the exclusive right of exploitation of the patented invention[204]. An invention is usable in industry and is consequently economically valuable. Patents tend to have two aspects. One, they confer on their owner exclusive rights, Two they serve as a source of technological information for economic development.
Inventions are rarely the result of an accidental or an instantaneous stroke of genius.[205] They result from long and hard thinking and experimenting with the precise aim and hope of arriving at a new solution amounting to an invention. Inventions result from methodological research which, inter, alia requires investment, time and patience.[206]
HISTORICAL BACKGROUND
The first law authorizing an exclusive right to utilize an invention appears to have been the law passed in Venice in 1414. This law directed everybody in the municipal of Venice who wanted to manufacture new devices which had not previously been manufactured in Venice to notify the municipal authorities. In this respect nobody was permitted to manufacture the same device within a period of ten (10) years without the permission or Licences of the inventor.[207]
Patents created there after in most of the European countries were found on the concept that the state might grant to the inventor a monopoly for the exploitation of the invention as an appreciation of his merits. This was also the case with the British Statute of Monopolies of 1624, which was based on the idea of special privilege granted by an Act of the grace of the sovereign (state)[208]
Gradually this basic idea was however replaced by the idea of the economy based on private enterprises with individual rights. This development of the modern patent law however took quite a long time and it arrived at its established form during the latter part of the 19th century. It entailed at the same time also the enactment of patent laws in almost all industrialized countries. Patent offices were established to perform the function of accepting and examining patent applications and to grant patents. With the increasing economic importance of patents to the public they also had to be made generally accessible to the public concerned. In other words, the patent had to be printed and published as a patent document available to everybody interested[209]
The oldest patent is British Patent Number 1 of 1617. It concerns a right for the production and sale of maps and urges all officers of the Sovereign to assist the owner of the patent as far as his right is concerned. Other countries also followed the British trend by granting patents in various monopolies.[210]
PATENTS LEGAL REGIME IN TANZANIA
The introduction of the colonial legal system in the then Tanganyika also brought patent protection systems, which implied the recognition of modern patent protection notions in the country though by then it meant to protect foreign inventions. In 1931 the Patents (Registration) Ordinance[211] was enacted and came into operation on 10th May, 1931. Later the Patents, Design, Copyright and Trade marks (Emergency) Ordinance[212] was enacted and came into operation on 3rd September, 1934. This was repealed and replaced by the Patents, Design, Copyright and Trade Marks (Repeal of Sundry Obsolete Provisions) Ordinance[213] which came into operation on 10th December, 1954.[214]
On 20th January, 1987 a new and modern law was enacted to govern matters relating to patents in Tanzania and this is the Patents Act, 1987[215] which was assented by the President on 31st April 1987 and came into operation on 1st September, 1994.[216] This legislation effectively repealed and replaced the Patents (Registration) Ordinance[217]
The new Act is a modern piece of legislation and has all the regulatory powers of a modern patent protection legislation, which requires equally modern patent infrastructure to comprehend an effective patent protection system. The new legislation also includes petty patents and utility models.
CONDITIONS FOR PATENTABILITY
The Patent law defines an “invention” to be a solution to a specific problem in the field of technology and may relate to a product or process.[218] As such by virtue of the above meaning the following shall not be regarded as inventions within this context.
a) Discoveries, scientific and mathematical theories.
b) Schemes, rules or methods for doing business, performing purely mental acts or playing games.
c) Plants or animal varieties, other than microbiological and products of such process,
d) Methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods, but shall not apply to products for use in any of those methods.
e) Mere presentation of information.[219]
Not all inventions are patentable. The Patent law requires that the invention to be protected must be new/novel and useful art, process, machine, manufacture or composition of matter which is not obvious, capable of being used or applied in trade or industry. Industry in this respect should be understood in a broader sense to include agriculture.[220] Above all, the inventor must fully disclose the invention. The three key requirements for an invention to be patentable are commonly know as requirements or conditions of patentability. For the sake of clarity I will endeavor to explain them briefly below.
An invention will be patentable if it has the following qualifications:
i) It must be new and this condition in patent law is known as Novelty.[221]
An invention shall be considered to be new if it does not form part of the state of the art. The state of the art is held to comprise everything made available to the public by oral description, publication, by use or in any other way, before the date of filing of the application.
ii) Must involve an inventive step.[222]
This is similarly referred to as “Non obviousness”
An invention is considered as involving an inventive step if, having regard to the prior art, it would not have been obvious to a person skilled in the art on the date of the filing of the application or if priority is claimed on the priority date validly claimed in respect thereof.
iii) It must be industrially applicable [223]
An invention shall be taken to be capable of industrial application if according to its nature, it can be made or used in the technological sense in any kind of industry, including agriculture, fishery and services.
It must be emphasized at the outset that the technology contained in patents is very diverse and ranges from sophisticated technological fields such as computers to simplified fields such as agricultural implements and tools like spades or electrolysis of water.[224]
THE POLITICAL ECONOMY OF THE TRIPS AGREEMENT IN VIEW OF PATENTS
The TRIPS Agreement is a product of the Uruguay Round of multilateral trade negotiations that was launched in Punta del Este, Uruguay in 1986[225]. It was during the Uruguay Round that the idea of taking up the issue of protection of intellectual property rights (IPRS), within the General Agreement on Tariffs and Trade (GATT) framework began to receive support from the major developed countries and mainly the United States. [226]
There was consequently a general feeling, among the developing counties, that the concern with the protection of IPRS was being expressed by the American government on behalf of the industries. Therefore, all such efforts towards the establishment of an effective regime for the protection of IPRS were aimed at furthering the interest of the western industries and not those of the developing countries. From the very beginning Developing countries considered intellectual property to be an issue that belonged exclusively within the competence of the World Intellectual Property Organization (WIPO) [227] the USA was, on the other hand, not happy with the progress made towards intellectual property rights protection within WIPO. It pointed out the failure of conferences in 1980-1984 to revise the Paris Convention on the Protection of Industrial Property, and therefore preferred the GATT Forum for negotiating effective regimes for the protection of IPRs. They pointed out that the GATT forum provided for effective enforcement of agreements and for dispute settlement mechanisms which were practically lacking in the WIPO administered conventions.[228]
The inclusion of TRIPs issues on the agenda of the Uruguay Round did not, however, mean that the developing countries had abandoned altogether, their reluctance to have intellectual property rights issues discussed under the GATT Forum. Subsequent developments indicate that the inclusion of TRIPS on the agenda was a last-minute political compromise whose legal foundation was yet to be clarified. One author has pointed out that the TRIPs item featured almost as a footnote on a crowded agenda of the Uruguay Round and it was uncertain whether that contentious item would survive the end of the Round.[229] Developing countries generally considered the management and control of patent related activities as a key element in development policy. They tended to see patents as an obstacle to the transfer of technology which they need for their industrialization process as the engine for their development to the level of ability to undertake research resulting in patentable inventions. In contrast, the developed countries regard the existence of an effective patents protection system as the necessary prerequisite for investment in research and development and the engine for driving technology transfer.[230]
It must be observed at the outset that apart from trade secret which the developing countries originally wanted to exclude from patentability, they however maintained their reluctance to include life form, plants, micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes leading to the compromise reflected in the provision of article 27.[231] The section on Patents was the most politically and economically controversial in the entire TRIPs negotiations. [232] Article 27 of TRIPs entitled “Patentable Subject Matter” is wholly reproduced:
1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.
2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.
3. Members may also exclude patentability from the following matters:
a) Diagnostic, therapeutic and surgical methods for the treatment of humans or animals:
b) Plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, members shall provide for the protection of plant varieties either by patents or by an effective sui generic system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
THE CONTROVERSY SURROUNDING THE SCOPE OF REVIEW UNDER ARTICLE 27(3)(B)
The review to be undertaken by States according to the last sentence of paragraph 3(b) of Article 27 set out above has indeed begun although it seems that there is still controversy over the scope of the review in question. In the process of review which was initiated by the secretariat of the WTO the African Group made its views known collectively through a document which was presented on their behalf, by the government of Mauritius at the meeting of the council of 21st March, 2000[233]. It raised a number of issues. However for the purposes of this article I will endeavour to explore only those pertinent to patent matters.
Technical Issues Relating to Patent Protection under Article 27(3)(b)
In respect of this issue the African states underscore the fact that the distinction made in the article between plants, animals, essentially biological processes for the production of plants or animals, which are excluded from patenting; and micro-organisms, non biological and microbiological processes, which are patentable is artificial and violates the basic principles of intellectual property law[234]
Ethical Issues Relating to the Patentability of Life Forms
The African Group maintains their position that patenting of life forms (human, animal or plant life) raises serious ethical, religious and cultural questions and therefore rejects their patentability. Moreover, they point out that co-modification and marketing of life structures violates the cultural practices of most societies.[235]
The Relationship of the TRIPs Agreement to the Concepts of Traditional Knowledge
African states affirm that local and farming communities have developed (traditional) knowledge systems for conservation and sustainable use of biological diversity ensuring their food security and sustenance. Accordingly, they argue that such knowledge systems should be recognized both at regional and international level. They moreover point out, in this connection, that the TRIPs Agreement is based on the western concept of individual ownership of rights and therefore does not recognize the communal ownership of rights including the development of indigenous knowledge, which a number of experts have tried to explain.[236] An effort to harness traditional knowledge in Latin American countries has however resulted in the following observation: “New models will probably be needed to protect such traditional knowledge, and these will not be easy to create. To some, such initiatives smack of political correctness; others see them as fair reward. Their introduction would help to turn the rising tide against TRIPs by showing even the poorest developing countries that intellectual property rights can be an opportunity, not just a threat [237]
WANT OF INTELLECTUAL PROPERTY POLICY
At the moment, save for the brief mention of intellectual property in the National Science and Technology Policy of 1996 as well as the National Trade Policy 2003 it can safely be eluded that in Tanzania at present there is no national intellectual policy per se.
There is need for a national intellectual property policy which shall spearhead the intellectual property demystification exercise and make it accessible to potential beneficiaries of such rights.
Intellectual property policy should be considered within the wider context of a policy in support of national innovation. Such a policy should bear in mind the need to support and strengthen the innovative role of broad spectrum of the wider society. The policy might also consider the role of the formal innovation system of public and private researchers and the potential for cooperation among the research institutions and the communities[238].
The policy will also be expected to clearly spell out the vision and the mission of the whole process of ownership of intellectual property rights, the scopes of their protection and the economic benefits pertaining to ownership of such rights and the development in technology, industry and commerce which is likely to be the product of the protection process of intellectual property.
The Policy will further spell out the scope and the extent by which the nation will participate and co-operate in the regional and international areas of co-operation in intellectual property, and how the nation expects to benefit from such co-operations.
The Policy should provide as far as science and technology is concerned a clear place in the national priorities for economic development.
At the national level, the policy should in very broad terms, clearly state the boundaries of each stakeholder in intellectual property and provide an integrative arrangement for the mutual and common benefits of each and every one.
The policy in the wake of digital and global knowledge based economy, should focus on the complex and challenging rapid developments particularly in the information and telecommunication technology and clearly define the national strategy of making it an active participant.
Last but by no means least, the policy should in broad terms state, the contribution of intellectual property in the overall national economic development strategy.
INTELLECTUAL PROPERTY POLICY FORMULATION TO INVOLVE ALL STAKEHOLDERS
Since intellectual property touches almost every aspect of every ones life, there is need to involve everyone in intellectual property policy formulation.
This will ensure the acquisition of the collective vision of every participant in the policy formulation and eventually the common ownership of the policy.
Further more it will be a lot easier to enforce such rights, as the right owners will be aware of their specific intellectual property rights and their specific protection and enforcement systems. Likewise users of such information will also be aware when they legally or fraudulently use such rights.
It is also expected that awareness will be enhanced during the policy formulation workshops, seminars and other consultative fora, with stakeholders and hence such fora have multiplier effects.[239]
NEED FOR PATENT LAW REFORM
We have already noted from the discussion above that Patent Law is selective as to the type of invention that can be protected. Most patents are not for significant technological breakthroughs but for small incremental improvements on the state of the art. Nevertheless, only those inventions that can be dated and attributed to an individual or small group of people (usually employees of a company) can be patented. As a result tremendous amount of knowledge can not easily be protected under the current patent law regime. For example, traditional ecological knowledge is rarely protected even though a great deal of such knowledge is useful, not only in its narrow presence (i.e. capable of industrial application).
Indigenous people are entitled to the recognition of full ownership, control and protection of their cultural and intellectual property; as such the current patent law should be reformed to accommodate this aspect.
As rightly pointed out earlier IPR law, (including the Patent Law), currently, is incapable of accommodating the often complex nature of non-western intellectual property rights.
References
Adede A.O; Biopiracy International, the Political Economy of Trips Agreement; Origins and Negotiations, African Centre for Technology Studies, Nairobi, Kenya 2001
Batanouny, Land-use traditions and indigenous knowledge in the Arab region, 2 WORLD CONSERVATION 18 (2000).
Crucible Group; People, Plants and Patents, the impact of Intellectual Property on Trade; Plant biodiversity and rural society, Ottawa, ON, IDRC, 1994
Dutfield G, “Indigenous Peoples, Bioprospecting and the TRIPs Agreement: Threats and Opportunities” (unpublished paper presented at the 1999 Nairobi Conference on Biopioracy, on file with the present author);
Kihwelo P.F; “Intellectual Property Rights Protection in Tanzania; the Nightmare and the Noble Dream” Huria Journal of the Open University of Tanzania Volume V. 2003.
Lettington & Manek; “Pandora’s Box TRIPs Article 27, 3 (b) and the Convention on Biological Diversity” paper presented at the 1999 Nairobi Conference on Trade Related Aspects of Intellectual Property Rights and the Convention on Biological Diversity, (unpublished paper on file with the present author)
Marco Bronkers; The Impact of TRIPs; Intellectual Property Protection in Developing Countries, 31 Common Market Law Review 1246 (1994)
Maria Kiwia; Intellectual Property Policy in Tanzania, A Paper delivered at a workshop on Science for Societies at the then Sheraton Hotel, Dar Es Salaam -Tanzania from 5th – 7th June, 2000.
Mngulwi Richard. B; Patenting of Life Forms and Implication on Developing countries. A paper presented during the First National Workshop on Plant Genetic Resources and Biotechnology in Arusha-Tanzania 16th – 20th January, 1990.
Mugabe J; “Intellectual Property Protection and Traditional Knowledge: An Exploration in International Policy Discourse” (unpublished paper presented at the 1999 Nairobi, Kenya Conference on Biodiversity, on file with the author)
WIPO; Technological Information Contained in Patent Documents at Geneva on, September, 1984 ISIP/89/3
Yusuf A.A; “Intellectual Property and International Trade; The Trips Agreement,” 1998 in Marco Bronker(Ed) The impact of TRIPs: Intellectual Property Protection in Developing Countries, 31 Common Market Law Review 1246, 1994.
International Trade Law and Genetically Modified Organisms: Concerns for Kenya
Agnes Warutere
Faculty of Law
Tumaini University, Dar es Salaam College
Abstract: Genetic engineering of foods, particularly foods derived from plants, has many known benefits, including the production of more nutritious foods; the production of drought resistant crops; decreased use of herbicides and pesticides in farming; higher crop yields. The risks of genetically modified foods are however uncertain: these organisms might adversely affect the environment and be injurious to the life and health of humans, plants and animals. This raises a major issue for all countries and for purposes of this paper, Kenya: should it adopt a pro-GMO policy for food security reasons; should it completely ban GMOs in a bid to be better safe than sorry; or should it adopt a middle ground approach? Coupled with the concern for safety of GMOs is the requirement that as a member of the World Trade Organization (hereinafter WTO) Kenya should not to adopt policies that are trade restrictive. Is an anti-GMO stance trade restrictive, or would it be justifiable under the precautionary principle provisions of the WTO law? This paper analyzes the benefits and risks of GMOs as against Kenya’s food security needs, and also in view of the country’s obligations under the WTO; and recommends that Kenya should adopt a fifty-fifty approach: accept GMOs while being cautious of their potential risks.
INTRODUCTION
International Trade in genetically modified organisms (GMOs), in particular Genetically Modified (GM) foods, is a current and controversial issue, with world politics being at the center of the debate. The United States (US) and Canada on the one side have in place pro-GMO policies, while the European Union on the other hand is mainly anti-GMO. This division raises major concerns for developing countries such as Kenya, which are torn between the benefits of food security advanced by pro-GMO countries, and the economic and potential environmental risks associated with the acceptance of GMOs.
The main economic risk is the restriction of agricultural products exports from the developing countries to the anti-GMO countries. With regards to the environment, the anti-GMO countries contend that GMOs may pose a risk to the environment and to human life. These countries therefore adopt a precautionary approach in dealing with these products.
This paper analyzes the precautionary principle from the point of view of international trade in GMOs, in an attempt to determine the consequences for Kenya if it adopts a definitive stand on GMOs. Should the country accept trading in GM products, or should it restrict such trade on the basis of the precautionary principle, relying on the scientific opinion that GMOs have the potential of adversely affecting the environment?
The paper is set against the background that Kenya is a member of the World Trade Organization (WTO), which aims at removing all kinds of trade restriction. The country is also a party to a multiplicity of international environmental law (IEL) conventions[240] that call upon State Parties to exercise precaution where necessary, in order to protect the environment. The country has therefore to determine whether GMOs have the potential of adversely affecting its environment. If that is the case, Kenya would be obliged under various IEL conventions to which it is party, to adopt a precautionary approach towards GMOs.
THE EVOLUTION OF GMOS
Genetically modified organisms (hereinafter referred to as GMOs) are organisms whose genetic components have been altered by various techniques, one of them being genetic engineering.[241] Genetic engineering involves altering the genetic component of an organism by inserting the deoxyribonucleic acid (DNA) of a second organism, in order to come up with a third organism that has the desired traits of both the first and the second organisms.
Genetic modification can be distinguished from selective breeding, which has been applied in agriculture for thousands of years.[242] Selective breeding involves crossing of different species in order to breed out unwanted traits.[243] Selective breeding is however limited by the fact that cross breeding is only possible with similar or related species.[244] Genetic engineering on the other hand allows scientists to alter the DNA of one organism using the DNA of an unrelated species altogether. In this regard, it has been noted that:
[Genetic engineering] must not be confused with previous intrusions upon the natural order of living organisms; animal and plant breeding, for example…All such earlier procedures worked within single or closely related species. The nub of the new technology is to move genes back and forth, not only across species lines, but across any boundaries that now divide living organisms.[245]
For purposes of developing human health products, genetic engineering commenced in the 1970s.[246] This technology was later applied in agriculture, resulting in the development of GM foods. These were released for commercial exploitation in the US in 1996.[247] This application of genetic engineering to food products is the basis of the GMO controversy today, with the actual and potential benefits and risk of GMOs being contentious.
BENEFITS OF GMOS
Genetic modification has been regarded as offering various benefits to human health and to the environment. To human life, the GM technology has the capability of offering more nutritious food, by having vital nutrients added into food.[248] This technology could therefore benefit a large number of developing countries, whose staple food is grains such as rice, maize and wheat, which offer little nutrition to their consumers.[249] Adding vital grains to the staple food would reduce malnutrition in these countries. Genetic engineering also has the capability of developing foods that can prevent diseases; producing tastier and longer lasting food; and increasing crop production.[250] This technology therefore has the potential of answering developing countries’ hunger questions.
As regards the environment, it is argued that firstly, planting GM crops leads to increase in crop yields without the need to increase the tillable land area.[251] This decreases the demand for additional land for cultivation and in turn ensures environmental protection.
Secondly, with genetic modification, there is the development of plants that require less use of herbicides and pesticides. This reduces the harmful effects that these chemicals have on the environment such as the contamination of ground and underground water. Less use of these chemicals also decreases the chance of consuming food that has chemical residues[252].
RISKS OF GMOS
There is a growing concern that GMOs may have adverse effects on the environment in the long term. This concern is fuelled by the fact that there is no conclusive scientific evidence on the long-term safety (or lack of it) of GMOs. The fact that no adverse effects on the environment are seen today does mean that the status quo will remain. It has been argued that “…[w]ith genetic engineering, we assume control over the hereditary blueprints of life itself. Should we expect that such unprecedented power to alter life is without hazard?”[253]
To begin with, there are concerns that the herbicide resistant GM crops may transfer the modified genes to weeds, “…creating unkillable superweeds.”[254] This argument is supported by the fact that most crops belong to the same species as a variety of weeds, and therefore, cross-pollination may lead to the weeds acquiring the herbicide resistant traits.[255] If such a thing were to occur, other herbicides would have to be developed to deal with this weed, which in the end would not reduce the use of chemicals.
Secondly, there is a concern that genetic engineering transfers allergens to crops.[256] Some proteins normally trigger allergic reactions when consumed by persons who are sensitive to them, with some attacks being fatal.[257] With the mixing of genes from a large variety of species in genetic engineering, it will be impossible to determine and therefore avoid the type of GM foods that cause allergic reactions.[258]
Thirdly, there are arguments that the antibiotic-resistant genes introduced to most GM foods could be transferred to humans.[259] Such transference would lead to resistance of the antibiotics in humans. However, it is argued that scientists can remove the antibiotic-resistant marker gene from the food before it is commercially developed.[260]
Lastly, GMOs have the potential to erode biodiversity.[261] Biodiversity is important in maintaining ecological balance within species. It is also a crucial source of most of the drugs used by humans today.[262] Genetic modification creates new crops that may wipe out natural species, depriving the world of the immense benefits of biodiversity. There are also fears of adverse effects on important cross-pollination insects that consume GM crops.[263]
THE GMO DEBATE
The debate on genetically modified organisms (GMOs), especially in the area of GM foods, is a major battle between developed countries. At the core of this battle are economic, moral, environmental, trade, consumer protection, and political forces warring against each other. While the proponents of this debate argue that genetically modified (GM) foods are the answer to modern day’s, and even the future’s hunger problems, the opponents argue that these foods have been developed for purely profit reasons; that they pose a risk to the environment;[264] and that it is morally wrong to change the structure of natural food. Furthermore, the leaders of the opposing factions have their hands tied by their citizens, who are largely the food consumers, and who ultimately are the deciding factor on whether or not to accept GM foods.
International trade law also inevitably features in this battle, since the rejection of GM foods in one country means that a second country producing GM foods would be unable to export its food to the first country. With the World Trade Organization (WTO) advocating the removal of trade barriers, the GMO import restrictions become subject to international trade law.
Last, but by no means the least, are developing countries, which are mostly dragged into the battle through dependency on aid from, and trade with developed countries. For these developing countries, the controversy between the US and the EU leaves them caught between a rock and a hard place. On one hand, they are promised food security for their starving populations, but on the other hand they are warned of the danger that the food may cause to their environment and to the health of their people. Which way should they go?
The divergence of opinion on the potential benefits and risks ultimately becomes a concern for international trade law. This is so because, with the potential of GMOs harming the environment, and the scientific uncertainty on the nature and extent of the harm, States are obligated under various international environmental law (IEL) agreements to adopt the precautionary principle.[265] Under the WTO law however, States have to go beyond merely adopting a precautionary approach in restricting trade in GMOs. They have to fulfill strict criteria that have been laid down by the WTO law, which criteria defeats in the intent and purpose of the precautionary principle.[266]
A comprehensive analysis of the precautionary principle in light of WTO law is essential to facilitate an understanding of the predicament facing anti-GMO countries.
PRECAUTIONARY PRINCIPLE
Origins of the Precautionary Principle
The precautionary principle is described as “… primarily a concept of care, of thoughtful anticipation, and a basis for recognizing the limits of human understanding.”[267] The principle aims at guiding states on the course of action to take in the face of scientific uncertainty on the nature and extent of risks that certain activities may cause to the environment.[268] This principle is premised on that fact that scientific knowledge may at times be inconclusive and fallible.[269] Consequently, it asserts that the lack of full scientific certainty on the harmful effects of certain activities on the environment should not be used as a reason to disregard measures that may avert environmental damage. Hence, it has been observed that “[t]he attraction of precaution lies in the aphorisms a “stitch in time saves nine” and “better safe than sorry”.”[270]
The precautionary principle is deemed to have originated in Germany in the 1970s, recognized in the US in the 1980s, and incorporated into IEL instruments in the 1990s.[271] The German environmentalists and policy makers who developed this concept defined it as:
… a general rule of public policy action to be used in situations of potentially serious or irreversible threats to health or the environment, where there is a need to act to reduce the potential hazards before there is strong proof of harm, taking into account the likely costs and benefits of action and inaction.[272]
The principle made inroads into IEL in 1982, through a Declaration of the United Nations (UN), the World Charter for Nature.[273] The Charter urged UN member states to exhaustively examine activities that may pose a significant risk to nature, and to desist from activities whose potential adverse effects are unknown.[274] The principle was later embodied in other international instruments such as the 1992 Rio Declaration;[275] the Climate Change Convention;[276] and the Biodiversity Convention.[277]
Although these international instruments provide different definitions to the precautionary principle, they agree on one thing: That in order to apply the principle, there should be the potential, the threat, or the possibility of harm to the environment.[278] The use of the words “potential” and “threat” essentially means that the application of the precautionary principle does not require the existence of actual harm to the environment. The probability that a certain action or product may harm the environment is enough to warrant the application of the principle.
The instruments further agree that the principle should be adopted when scientific evidence on the existence of harm or risk to the environment is inconclusive. This means that the international instruments do expect that there should be some sort of assessment on the impacts of the product or activity on the environment. The results of such an assessment however do not need to clearly point out the existence of harm to the environment.
Precautionary measures are different from preventive measures in that prevention is based on the certainty of environmental harm.[279] This means that where there is evidence of the adverse environmental impacts of a certain activity, the measures taken to alleviate these adverse impacts are preventive. But where there is no certainty on whether or not the activity will result in environmental damage, or the nature and extent of the damage that the activity may cause on the environment, the measures taken to deal with this situation are precautionary.[280]
Difficulties with the Precautionary Principle
The main difficulty that the precautionary principle encounters in international law is the lack of a precise definition.[281] While the purpose of the principle is clear,[282] the constituent elements of the principle are not. For instance, the principle does not lay down the factors that States must take into account in order to conclude that a certain activity may be harmful to the environment. The level of scientific evidence required in order to apply the principle is also not well settled.[283] When exactly does the State decide that the available scientific evidence is not conclusive as to the existence and extent of harm to the environment? The precautionary principle as it is today does not give a precise answer to this question. The principle is therefore clear on the end but unclear on the means.
The second major difficulty with the precautionary principle is its enforceability in international law. The principle is widely regarded as an emerging one, and not yet well settled in law.[284] It is neither a general principle of law recognized by civilized nations, nor a rule of customary international law.[285] Furthermore, although it is recognized in a number of international legal instruments, some of the instruments are not binding sources of international law,[286] while in most of the binding instruments the principle is framed in exhortatory terms.[287] It has therefore been argued that, “[t]he uncertainties and ambiguities in the articulations of the precautionary principle have allowed sovereign nations to sign agreements they otherwise might not sign because the precautionary obligations are likely to be unenforceably vague.”[288]
The precautionary principle is however binding upon parties to international instruments that lay down the principle in mandatory terms.[289] Nevertheless, the imprecision of the precautionary principle may have a detrimental effect on its enforceability, since it is difficult for an international tribunal to enforce a rule whose parameters are undefined. The application of the principle in this discipline is therefore contentious, with some States hailing it as an important environment protection tool that should be incorporated into international trade relations, while others regard it as a potential trade barrier that should be not allowed to hinder trade.[290]
Precautionary Principle in International Trade Law
Precaution under the GATT
A reading of Article XX (b) of the 1947 General Agreement on Tariffs and Trade (1947 GATT) [hereinafter Article XX (b)], which was adopted in the 1994 GATT, may lead one to the conclusion that the Article implicitly recognizes the precautionary principle.[291] Some scholars have also regarded the Article as giving contracting parties some leeway to apply the precautionary principle, in order to protect human health and the environment.[292] The general exceptions Article provides that:
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures…necessary to protect human, animal or plant life or health…[293]
The interpretation of this Article by the WTO Dispute Resolution Panel (Panel) and the Appellate Body (AB) in the Asbestos Case however reveals that these bodies do not regard the Article as importing the precautionary principle into the 1994 GATT.[294] The precautionary principle largely hinges upon scientific uncertainty of the existence and extent of risk, while the decision in the Asbestos Case in effect lays down the requirement that in order to invoke Article XX(b), one has to demonstrate that the there is a risk to human, animal, or plant life or health.[295] The AB’s decision in the Asbestos Case has therefore settled the issue of the precautionary principle and the 1947 and 1994 GATT.
Precaution in the WTO: The SPS Agreement
The WTO Agreement[296] is a complex one, regulating not only trade in goods, but also other matters such as trade in services and intellectual property rights.[297] It also encompasses a number of various other agreements, including the SPS Agreement.[298]
The SPS Agreement is designed to govern all sanitary and phytosanitary measures adopted by WTO members, which may affect international trade.[299] The Agreement seeks to attain a balance between the need to protect human, animal, and plant life or health, and the need to prevent restrictive, discriminatory and arbitrary international trade practices. In this regard, the Agreement acknowledges that WTO members have a right to adopt measures aimed at protecting human, animal, or plant life in their countries, while at the same time maintaining that such measures should not “…constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade…”[300] Furthermore, a Member may only apply SPS measures if such application is based on scientific principles.[301]
The SPS Agreement further requires WTO Members to base their SPS measures on international standards, guidelines or recommendations where they exist.[302] The Members may however adopt SPS measures that may result in higher levels of protection than those laid down by international standards, if there is a scientific justification for it.[303] Article 5 of the Agreement further lays down criteria for guiding Members into adopting SPS measures that may result in higher levels of protection. The Article requires that the adoption of such higher measures should be based on risk assessment, taking into account among other things, the available scientific evidence.[304]
While the Agreement does not expressly acknowledge the application of the precautionary approach, such an approach may be inferred from Article 5(7) of the Agreement. The Article provides that:
In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information… [and] [i]n such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the … measure accordingly within a reasonable period of time.[305]
Article 5(7) therefore recognizes that in some situations there may be uncertainty of scientific evidence, which is one of the key elements of the precautionary principle. However, to apply protective measures on the basis of that Article, some conditions must be met. These conditions are that: (a) there must be insufficient scientific evidence of the harmfulness of the situation; (b) the measure must be based on available scientific information, meaning that a risk assessment would have to precede the adoption of the measure; (c) the Party adopting the measures must seek additional information to enable a further assessment of risk; and (d) the Party must review the measure within a reasonable time.
These requirements were affirmed in the Japan Agricultural Products Case, where the AB held that, “[t]hese four requirements are clearly cumulative in nature and are equally important for the purpose of determining consistency with this provision. Whenever one of these four requirements is not met, the measure at issue is inconsistent with Article 5.7.”[306]
The issue of the precautionary principle under the SPS Agreement was not given much weight in the Japan Agricultural Products Case, as it had been interpreted earlier in the Hormones Case.[307] The AB in the Japan Agricultural Products Case referred to the Hormones Case as authority on the status of the principle under the SPS Agreement.[308]
In the Hormones Case, the AB made the following decision as relates to the precautionary principle: (a) the principle had not been recognized in the SPS Agreement as a ground for justifying SPS measures that are otherwise inconsistent with other obligations set out in the Agreement; and (b) the principle “…does not, by itself, and without a clear textual directive to that effect, relieve a panel from the duty of applying the normal (i.e. customary international law) principles of treaty interpretation in reading the provisions of the SPS Agreement.”[309] Thus, the AB agreed with the Panel that the principle could not override the express provisions of the SPS Agreement. [310]
The failure of the Panel and the AB to uphold the precautionary principle signifies that international trade may be trampling environmental protection. This trend presents a danger that an anti-GMO measure may not see the light of day before the WTO dispute settlement bodies, since with the scientific uncertainty on the harmful effects of GMOs to the environment, a precautionary approach would be the best suited means of ensuring environmental protection.
The fact that the WTO dispute settlement bodies may not favor GMO import restrictions that are based on the precautionary principle does not resolve the dispute, but merely imposes a one-sided solution to the problem. The environmental dangers of GMOs, if they prove to be true, constitute a real problem for all States. It is in this context that to trade or not trade in GMOs becomes a hard choice for states, especially developing countries, and for purposes of this paper, Kenya. In an effort to offer guidance to Kenyan policy makers on the way in which to deal with international trade in GMOs, an analysis of the Kenyan dilemma is essential in view of both law and the realities of GMOs.
CONCERNS FOR KENYA
Kenya does not have a comprehensive policy on GMOs. Although it has accepted GM technology, [311] the importation of GM foods into the country is highly restricted. The National Biosafety Committee, which regulates the importation of GM foods and crops into the country, has been cautious in approving such imports. The adoption of this divided stance towards GMOs may be explained by the current international attitude towards GMOs, which is also divided.
The issue of international trade in GMOs raises conflicting concerns for Kenya. First, there is the SPS Agreement that aims at reducing barriers to trade. As discussed earlier, this Agreement lays down strict criteria for the restriction of trade on grounds of environment and human health. Coupled with this, there are those attractive pro-GMO arguments that may seem as answers to all of Kenya’s hunger problems. On the other side of the coin is the fact that Kenya exports a large percentage of horticultural products to the EU, which is currently anti-GMO. The acceptance of GM technology in Kenyan agriculture may therefore lead to loss of these export opportunities.
Secondly, there are those IEL conventions that call for the observance of the precautionary principle in order to protect the environment. Coupled with this are those alarming anti-GMO arguments that spell doom for GMO usage. Kenya therefore has a genuine concern that the acceptance of GM foods and crops may pose a risk to its environment. However, if Kenya decides to go the anti-GMO way, it would be required to meet the strict conditions that are set out in the SPS Agreement and emphasized by the WTO dispute settlement bodies.
The following discussion is therefore an attempt to reconcile these conflicting concerns facing Kenya. In particular, it is an analysis of the consequences that Kenya may face, if it decides to adopt a clear and one sided stand on GMO imports. These implications specifically relate to the country’s obligations under international trade law and IEL, and the need to solve food problems in the country.
Trade Restriction v. Harm to the Environment
From the foregoing, it is clear that the GMO debate focuses on whether regulating the use and importation of GMOs is trade restrictive and a contravention of the WTO Agreement, or whether it is a genuine environmental protection measure, justifiable under international law. As already discussed, the WTO Agreement aims at reducing barriers to trade, but allows import restrictions in certain circumstances, notably to protect the environmental of the importing country.[312] However, the WTO Agreement has no place for the strict application of the precautionary principle.[313] How then can Kenya rely on international law to ensure the protection of its environment from possible harmful effects of GMOs?
One promising way in which international law may enable the protection of Kenya’s environment from potential harmful effects of GMOs is through the Biosafety Protocol.[314] The Protocol, which was negotiated under the Biodiversity Convention,[315] aims at regulating Living Modified Organisms (LMOs) that may have adverse effects on biodiversity, in accordance with the precautionary approach.[316] In particular, the Protocol focuses on the transboundary movements of these organisms.[317] In this regard, it calls upon its state parties to apply the Advance Informed Agreement (AIA) procedure, prior to the first intentional transboundary movement of LMOs intended to be introduced into the environment of the importing Party.[318] LMOs that are intended to be used as food, feed or for processing are however exempt from the AIA procedure.
The reliance on the Biosafety Protocol is however problematic for a number of reasons. To start with, the Protocol only applies to LMOs intended to be introduced into the importing country’s environment. This means that the importation of GM foods meant for consumption only are not under the regulation of the Protocol. The Protocol may therefore not protect the health of the Kenyan population if the negative health effects of GMOs prove to be true.
Most importantly, there are no effective enforcement procedures in the country which would ensure that when GM foods such as grains are imported into the country for consumption purposes only, small scale farmers would not replant them. Consequently, the reality on the ground in Kenya may defeat the intent and purpose of the Biosafety Protocol.
Secondly, the Biosafety Protocol cannot create obligations for non-party States. This is so because international agreements are only in force with regard to States that agree to be bound by them.[319] Third States can only be bound by those provisions of the Protocol that may (if ever) enter the realm of customary international law.[320] Consequently, in the event of a dispute between two State Parties to the WTO Agreement, with one of the disputants being Party to the Biosafety Protocol, the WTO dispute settlement system would not be entitled to apply the Biosafety Protocol unless the non Party agrees to it.
Lastly, the language of the Biosafety Protocol denies it an interpretation preference provided by international law. The Preamble to the Protocol provides that “… [the] Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements.” [321] The implication of this provision is that in case of a conflict between the Protocol and the SPS Agreement, the relevant international dispute settlement body would be obligated to give preference to the SPS Agreement.[322] The restrictive language in the Biosafety Protocol means that the Protocol cannot enjoy a preference that later agreements have in the interpretation of conflicting agreements concluded between similar parties.[323] The current status of international law is therefore in favor of the SPS Agreement in the interpretation of Parties’ international trade law obligations.
This means that if Kenya were to adopt an anti-GMO policy, it would have to ensure that such a policy is in conformity with the provisions of the SPS Agreement. However, the adoption of a determinate position on GMOs may not be the right way forward for the country, since both the pro and the anti GMO sides have potential benefits and shortcomings.
Anti-GMO Way: Problems With Risk Assessment
Kenya may choose to go the anti-GMO way, in order to avoid potential negative effects of GMOs on its environment.[324] Such a move would be primarily aimed at protecting biodiversity, which could otherwise be eroded by the introduction of GM crops in the country.[325] The move would also be based upon the fact that Kenya exports a fair amount of agricultural products into the EU, which is anti-GMO.[326] The country may therefore restrict the introduction of GM crops in order to protect its trade with the EU.
Such a choice may however be viewed by other States, especially pro-GMO states, as trade restrictive, and could result in the matter appearing before the WTO dispute settlement system. Would Kenya win such a case?
As already discussed, the SPS Agreement would be the main source of law applicable in such a case.[327] Hence, Kenya would have to adduce evidence to the effect that it has satisfied those provisions in the Agreement that are aimed at the adoption of environmental protection SPS measures. The main problem that Kenya would encounter is the requirement to conduct a scientific risk assessment before adopting the restrictive measures.
The SPS Agreement defines risk assessment as “…the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs.”[328] The Agreement further calls upon its Parties to ensure that “…any [SPS] measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence…”[329] In the Japan Agricultural Products Case and the Hormones Case, the AB noted that this provision should be read in conjunction with Article 5(1) of the SPS Agreement, which provides that, “[m]embers shall ensure that their [SPS] measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health…”[330]
In interpreting the requirements for a risk assessment under the SPS Agreement, the AB has held that there should be a rational relationship between the SPS measure and the risk assessment, and that the result of a risk assessment must sufficiently warrant the SPS measure at stake.[331] The AB has further noted that whether there is a rational relationship between the SPS measure and scientific evidence is a matter to be determined on a case by case basis.[332] However, the Party imposing the measure need not conduct its own risk assessment, but it may rely on the assessment done by other Parties or by international organizations.[333]
It is therefore well settled that if Kenya were to put in place anti-GMO measures, it would have to base them on a scientific risk assessment. It would further be obligated to have scientific proof of evidence of the risks of the GMOs to the environment. This is problematic for Kenya, which does not have the relevant scientific technology to carry out such a risk assessment. Furthermore, even though Kenya may rely on risk assessments conducted by other States or international organizations, currently, there is no conclusive evidence of the adverse environmental effects of GMOs.[334]
Kenya may therefore resort to reliance on Article 5(7) of the SPS Agreement, which permits the adoption of temporary SPS measures where there is insufficient scientific evidence of the harmfulness of a certain activity.[335] However, as discussed above, the AB has laid down stringent conditions for the adoption of SPS measures under that Article.[336] One of the conditions is that a Party adopting such measures must base them on available pertinent information, which means that Kenya would need to have conducted or taken into account some risk assessment even when putting in place provisional measures.[337]
It therefore follows that if Kenya were to put in place anti-GMO measures, it would face the risk of having a WTO case instigated against it. Considering that the case would most likely be decided against its favor for reasons discussed, the country may choose to adopt a pro-GMO policy.
Pro-GMO Way
The adoption of a pro-GMO policy in Kenya would potentially solve its food problems. This is owing to the fact that a large part of the country is semi-arid and cannot effectively support farming, while in the fertile areas, problems such as pests and diseases plague agriculture.[338] GM crops would therefore potentially solve the country’s problems by enabling the growing of crops that require less water; increasing crop yields; offering more nutritious foods; and reducing the burden that farmers have of buying pesticides and herbicides. Or would they?
Genetically engineered seeds are usually patented, and a farmer who acquires them is bound not to replant or replicate them.[339] This means that if Kenya were to accept trade in GMOs, it would have to strengthen its intellectual property (IP) laws, which currently allow farmers to replicate and replant seeds that are protected by IP laws.[340] Such a move may however be imprudent. This is so because most farmers in Kenya practice subsistence farming, whereby they mainly grow crops for personal consumption. Stronger IP laws would mean that they would have pay for protected seeds every time they need to plant them, which is beyond the monetary capabilities of most Kenyan farmers.
The above problem may be solved if Kenya acquired GM technology so as to develop its own GM seeds and foods. Failing that, GM foods will just remain foods that “… can save [Kenya], but may never get a chance.”[341]
Nevertheless, even if Kenya were to acquire the relevant technology to produce GM crops, hunger problems in the country would not be fully solved. This is so because it is not so much the scarcity of food that causes starvation, but the inability of the population to purchase food.[342] Hence, even with the GM technology, the country would still have to solve the problem of poverty to enable its people enjoy the benefits of this technology.[343]
There is also the concern that since the long term effects of GMOs are not fully understood, their acceptance and use in the country may ultimately pose the various environmental and health risks associated with agricultural biotechnology.[344] Moreover, though biotechnology is not yet applied to most of the agricultural products that Kenya exports to the EU, such as tea, coffee, and flowers, anti-GMO proponents in the EU may argue against importing even non-GMO products from the country in fear that their growth and development may have in one way or another come into contact with GMOs. The acceptance of GMOs in the country may therefore adversely affect agricultural trade relations between Kenya and the EU.
THE WAY FORWARD
The preceding discussion demonstrates that the pros and cons of each side of the GMO debate are merely potential; meaning, that they may or may not occur. It therefore seems reasonable to recommend that Kenya should adopt a fifty-fifty policy towards this issue: accept trade in GMOs so as to resolve the food crisis, while at the same time being cautious about their potential risks.
In accepting trade in GMOs, the country should lay emphasis on developing or acquiring agricultural biotechnology. Developing this technology could be enabled by having the treasury set aside funds to promote research in biotechnology, coupled with seeking donor funding. A move in this direction could however be curtailed by the fact that Kenya may not have enough funds to apply to the enhancement of GM technology. The country could therefore explore alternative ways of acquiring biotechnology from pro-GMO countries. Acquiring the relevant GM technology would enable the country to regulate royalties and other agreements in a manner that ensures the highest benefits for the small scale farmers.
With regards to being cautious in dealing with GMOs, the country should mainly ensure that this technology does not act to the detriment of the poor farmers. An affirmative action policy could for instance be put in place to ensure that the poor farmers do not miss the benefits of the new technology, while the rich farmers reap immense gains from it.
Furthermore, should the country accept GM products and technology, it would be desirable to put in place policies aimed at checking any adverse impacts of these products and technology on biodiversity. These would include measures such as setting aside protected areas, where intentional introduction of GM crops is to be prohibited. Other policies may also be also put in place to ensure that farmers do not practice mono cropping, this being the planting of only particular strains of GM crops, to the detriment of other crops. Most importantly, emphasis should be laid on the continued evaluation of the risks of GMOs, taking into account available and reliable international data on the subject. This would go a long way in guiding Kenya’s policy makers on the development of new strategies for dealing with international trade in GMOs.
CONCLUSION
The discussion above demonstrates that the issue of international trade in GMOs cannot be easily and authoritatively settled in favor of one side, whether the proponent or the opponent side. This is owing to the fact that there is no conclusive evidence on most of the latent benefits and risks of GMOs. It is therefore recommended that in order to try and reconcile the unrelenting pro and anti GMO contentions, Kenya should adopt a compromise between the pro and anti GMO stands. This means that the country should accept the use and trade in GMOs, while at the same time ensuring that there is in place measures for checking any negative environmental and economical effects of GMO.
The recommendation that Kenya should accept the GM technology is in view of the fact that notwithstanding its potential harmful effects, the technology, like all other scientific innovations before it is here to stay. And although it is controversial in this generation, it may not be opposed by future generations. After all, “[a]n important scientific innovation rarely makes its way by gradually winning over and converting its opponents: it rarely happens that Saul becomes Paul. What does happen is that its opponents gradually die out and that the growing generation is familiarized with the idea from the beginning.”[345]
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The Effectiveness of Criminal Law in Regulating Sexual Behaviour: An Empirical Analysis of The Sexual Offences Special Provisions Act 1998, [Act No.4, Cap.101, R.E.2002]
A.M. Mapunda
Faculty of Law
University of Dar es Salaam
Abstract: The use of criminal sanctions to regulate social behaviour and other undesirable acts that violate human rights is very popular in Tanzania, as is the case with many other societies. Instinctive recourse to tightening penal laws, enhancing sentences and penalties appears to be an automatic remedy wherever there is public outcry about increase in anti social behaviour. The proliferation of penal statutes and the myriad amendments to the same clearly demonstrates the point.
However, in Tanzania, an empirical analysis into the operation of the Sexual Offences Special Provisions Act for the period 1998 -2007, shows that despite broadening the scope of sexual offences, increasing the penalties and relaxing the rules of evidence, there has been a steady increase in the number of reported cases on all types of sexual offences. This exposes the life and liberty of women and children to grave risk.
The question can penal sanctions, however severe they may be, effectively eliminate crimes in society? Is it not more important to focus on preventing the causes of crime rather than trying to impose more stricter and severe sentences on criminals.
This paper analyses the background to the Act, its objectives, implementation and assesses its success and failures.
BACKGROUND TO THE SEXUAL OFFENCES SPECIAL PROVISIONS ACT 1998, NO.4 [ CAP.101, R.E.2002
The Sexual Offences Special Provisions Act, 1998[346] [hereinafter referred to as the “SOSPA” throughout this article] was passed by the Tanzania National Assembly on 1st April, 1998. It promptly received Presidential assent and came into force on 1st July, 1999. Both parts of Parliament, the National Assembly and the President unreservedly blessed this law.
This statute has a unique characteristic. On one hand, it is a consolidating statute on sexual and allied offences. A range of sexual offences which were previously scattered into different legislations have been brought together under this law; while on the other hand, it is merely an amendment to the several laws on sexual offences. The respective principal statutes also contain the same sections as found in the Act.
The three key aspects of this law are: that it introduced new provisions on sexual offences; it amended the several laws relating to sexual and allied offences and it brought under one statute special provisions to safeguard the personal integrity, dignity, liberty and security of women and children.
The long-term strategy of this law was to strengthen the provisions on sexual offences so as to prevent, punish and ultimately eradicate sexual violence and demonstrate in no uncertain terms that such behaviour is not tolerated.
A range of organizations, including government departments, professional
organizations, civil societies, women’s groups, children’s charities and individuals were actively involved in the review process[347]. Background studies were commissioned by the Ministry of Women and Children to examine the inadequacies of the existing laws. The studies revealed a disturbing trend on sexual offences in the country. First, the studies showed that sexual violence was on the increase and almost becoming an integral part of life, particularly in urban areas. In particular, sexual offences are not restricted to any age or religious group. They are committed by and against people of all ages and religions. There was hardly a day in which the local newspapers did not report a rape or sexual assault incident.
Rape victims interviewed by the researchers commissioned by the government and civil societies as well as academicians, and those who spoke over the television and radio programs gave horrifying accounts of their suffering. The victims expressed fear of having contracted sexually transmitted diseases and HIV/Aids, while unwanted pregnancies also intensified their trauma. Statements from victims detailed depression, insomnia and suicide attempts by victims.
Studies conducted by the Tanzania Women Lawyers Association (TAWLA) and the Tanzania Media Women Association (TAMWA ) showed that young women who had been raped and involuntarily put in the family way resorted to killing the newborn babies due to their failure to come to grips with what had happened to them. The studies showed that many victims chose not to be tested for HIV/Aids because they know they risk being rejected by their families if they are found to be HIV positive. The studies also showed rape survivors are often ostracized and shunned by their communities and abandoned by their husbands immediately their HIV/Aids status is revealed. Some women who had been raped were disserted by their husbands. The husbands simply blamed the women for bringing the rape upon themselves when in actual fact the women were not to blame at all.
It was found that sexual abuses and defilement were increasing. In some communities under age sex was becoming too a common tradition and consensual. Yet in others, sex with young children was wrongly believed to be protective against contracting HIV/Aids. This naturally incited men to resort to sex with the under age. Still in others sex was said to be a cure for those who believe they have been bewitched. It was disclosed from those studies that local medicine men exploited the ignorance of their patients and indulged in indiscriminate sex with their patients under the guise of treating those patients.
Most disturbing of all, the studies showed that while the health care system failed to help the victims, the judicial system offered no justice to the victims either.
SHORTCOMINGS PERCEIVED IN THE PREVIOUS LAWS
The reviews identified weaknesses in the then existing laws and procedures on sexual offences Particularly wanting were the provisions in the Penal Code; the Criminal Procedure Act,1985; the Children and Young Persons Ordinance and the Evidence Act, 1967[348].
It was found that the Penal Code did not criminalize some acts and conduct that violated women’s and children’s physical integrity. For instance, cruelty to children; female genital mutilation; marital rape; harboring for sex; trafficking of persons and sexual harassment were not criminal acts by then.
It was also found that the provisions of criminal law in Tanzania (mainland), though intended to protect the dignity, integrity and liberty of women and children in many respects fell short on penalties.
For example, in most cases the maximum penalties stipulated for offences such as rape, attempted rape and allied offences were left to the discretion of the magistrates. As a result the maximum penalties were rarely being applied effectively by the courts due to the sentencing policy which conferred a wide margin of discretion on the courts with regard to the wide range of choice of sentencing the courts could mete out. There were no minimum imprisonment sentences for sexual offences as a result the court could choose the softest sentencing term. The reviews established that the subordinate courts were particularly notorious for imposing lenient sentences. The instinctive inclination of the magistrates in subordinate courts to lean towards lower sentences was attributed to a combination of factors including, lack of appreciation by the courts of the disadvantageous social and economic position of women and children in society that renders them exceptionally vulnerable to sexual abuses; the lack of appreciation of the gravity and nature of the offences; the dominance of male magistrates in the subordinate courts with their male chauvinistic attitude towards the plight of women and children; strict application of the requirement of corroboration of evidence of the complainant where the complainant turned out to be the sole witness in her case or a child victim, without regard to the weight and credibility of the evidence of such a sole witness.
Other notable weaknesses in the laws included: the tendency of the courts to construe acts done in preparation of commission of rape in a very strict manner which watered down the rules on attempted rape and virtually made it impossible to convict a person with attempted rape. In particular, the constant recourse to the judicial doctrine of “proximate and last act” propounded by the High Court in the case of Andrew Avarity .v. R,[349] became a celebrated precedent binding on all subordinate courts This case established a principle which made it hard to prove rape. It held that there is a distinction between acts constituting an attempt to rape and acts merely preparatory to an attempted rape. The onerous burden placed on the prosecution to prove that an act amounted to an attempted rape and not merely to a preparation for an attempted rape enunciated in the rules of this case seriously watered down the effectiveness of the clear provisions of the Penal Code on the ingredients of attempted rape.
The requirement that victims of sexual offences should testify in an open court coupled with the reluctance of courts to award compensation in cases of sexual assault were the other hurdles that heavily weighed against victims of sexual offences.
The requirement that a victim of rape should give evidence in an open court was singled out by the review teams as a severe setback to justice for the victims because it discouraged women and children who had been sexually abused from recounting in the open what they had experienced during the abuses. The prospect of testifying in public glare and facing humiliating cross questioning from defense lawyers together with the prospect of press coverage of the court proceedings, press coverage that often depicted rape trials as pieces of amusing tales, deterred victims from divulging in public what they had experienced during rape and sexual abuses. Victims considered public disclosure of their experiences to be derogatory to their dignity, integrity and respect.
All these factors demanded for drastic changes in the criminal law to enhance the protection of women and children and guarantee the enjoyment of their constitutional and human rights. When it came clear that the laws on sexual offences were manifestly out of tune with reality, essential and effective steps had to be taken. The government was left with no choice but to initiate legislative changes in Parliament. Thus came the enactment of the Sexual Offences Special Provisions Act, 1998.
OBJECTIVES OF THE ACT
A close examination of the Act clearly shows that the provisions tried to rebalance the scales of justice in favour of victims of sexual offences. For the first time the law came up with a coherent and clear list of offences which protect individuals, especially women and children and those more vulnerable to sexual abuses from abuse and exploitation. It introduced provisions that subject abusers to proper and severe punishment in a fair and non discriminatory manner.
From the content of the Act, the government was determined to assume its responsibility to prevent, punish and eradicate sexual violence, and demonstrate that such behaviour is not tolerated. To achieve those objectives, the Act has brought together under one legislation the provisions of the law on sexual offences and sex offenders. The statute brings together provisions creating the offences, prescribing the procedure for trials and those imposing penalties. Previously those provisions were scattered into different legislations.
Moreover, it removed loop- holes that existed in the provisions of the Penal Code, the Criminal Procedure Act and Evidence Act that tended to limit the scope of definition of rape, attempted rape and sexual assault by expanding the definitions. On the procedural front, it has introduced rules in criminal trials that protect witnesses by introducing in-camera proceedings; it has relaxed rules of evidence by doing away with the legal requirement of corroboration of evidence in sexual offences; it has created new offences such as marital rape, trafficking of persons, female genital mutilation ( outlawed female circumcision and legislated the offence of grave sexual abuse). It has outlawed homosexuality and imposed criminal liability for a variety of conduct which was until then considered not criminal.
Same sex relations are strictly prohibited, regardless of whether those practicing are consenting adults or not. In the mind of the legislators these are acts morally and socially reprehensible.
It is significant to note that sexual abuse is also prohibited by international instruments for being violative of human rights as provided in international instruments to which Tanzania is a state- party and also violative of rights enshrined in the Constitution of the United Republic of Tanzania, 1977[350]; the United Nations Charter, the Universal Declaration of Human Rights, and the African Charter on Human and Peoples Rights. On the whole the thrust of the Act is to protect the public by strengthening the law on sex offenders and sex offences. The principal beneficiaries are women and children.
PRINCIPAL CHANGES BROUGHT BY THE ACT
Laws that were Amended and Substance of the Amendments
The statutes that were affected by the SOSPA are: the Penal Code, Cap 16; the Criminal Procedure Act, 1985, Cap. 20; the Evidence Act, 1967; the Children and Young Persons Ordinance, Cap.13 and the Minimum Sentences Act, 1972.
With regard to the Penal Code, Section 4 of SOSPA repealed and replaced it with Section 15 of the Penal Code raising the age for criminal responsibility to ten years. Following the amendment now under S.15(1) of the Penal Code, a person under the age of ten years is not criminally responsible for any act or omission. Before the amendment the age for criminal responsibility was seven.
Under this amendment also, persons under twelve years are considered not criminally responsible for any act or omission unless it is proved that at the time of commission of the act or making the omission they had capacity to know that they ought not to commit the act or make the omission.
Significant changes were effected on the law relating to offences against morality. The major one was the broadening of the definition of rape to include more incidences not covered under the previous laws. Rape now has two ingredients only namely, the sexual intercourse and lack of consent.
By the amendment effected to Section 130(2) of the Penal Code, lack of consent in rape cases can be established in a variety of ways. One is where a woman or girl is not the man’s wife. Two, is where being his wife she is separated from the man. Three, where the consent is involuntary such as by the use of force, threats or intimidation, or consent is secured by putting her in fear of death, hurt or where the woman is under unlawful detention. Four, in case the consent was granted by a woman of unsound mind or who was in a state of intoxication. Five, where the woman gives consent while labouring under the mistaken belief that the man to whom she is consenting is her husband or a man she knows while in fact he is not or the man himself knows he is not a husband but pretends to be one.
Six, consent is presumed to lack in all cases where the woman is under eighteen years of age. Seven, if being in a position of authority or management of any institution the man takes advantage of his official position and has sex with a girl or a woman. Eight, there is no consent where being on the management or on the staff of remand home or other place of custody established by or under law or of a women’s or children’s institution a man takes advantage of his position and has sexual intercourse with any woman in- mate of the remand home, place of custody or institution. Nine, consent will be deemed lacking where being on the management or staff of a hospital, a man takes advantage of his position and commits rape on a girl or a woman. Ten, a traditional healer who takes advantage of his position and has sex with a woman he is treating cannot plead consent. Eleven, a religious leader who takes advantage of his position to have sex with a girl or woman cannot claim consent[351].
By the provisions of Section 131(1) to the Penal code ( as amended by SOSPA) the punishment for rape has been enhanced to imprisonment for a minimum of not less than 30 years with corporal punishment plus compensation to the victim and a maximum imprisonment for life. For offenders aged eighteen years or less the punishment is graduated. In case of first offender, he is liable to corporal punishment only. Where he is convicted for the second time, he is liable to imprisonment for a term of 12 months with corporal punishment and where he is convicted for the subsequent time [a recidivist offender] he must be sentenced to life imprisonment. Any person who rapes a girl under the age of ten years is subject to a mandatory sentence of life imprisonment.
It is worth noting that by broadening the definition of the offences of rape and attempted rape respectively, the scope of the offence has expanded to accommodate circumstances which previously went unpunished. Under the previous laws a person could only commit rape if proven that: first, he was male and second had unlawful carnal knowledge of a woman or girl and third without her consent or with her consent if the consent was obtained by force, threats, intimidation of any kind, fear of bodily harm, or by false representation as to the nature of the act. Or in the case of a married woman by personating to be her husband. The maximum punishment was life imprisonment. The courts had an option to order corporal punishment if they deemed appropriate. Also, under the previous laws punishment did not discriminate whether the accused was a first, second, third and subsequent offender. He would be liable to the same penalty.
With regard to evidence, the Act has simplified the procedure of adducing evidence in courts to make it easier for victims of sexual offences and children to testify by collapsing the ingredients of the offence into two only: The slightest penetration of the male organ into the vagina without consent is sufficient to constitute rape.
Previously evidence of resistance by the victim such as sustaining bruises, physical injuries and not yielding at all, was necessary to prove that the victim did not consent. This is no longer necessary the case.
New Offences Created by the Act
To enhance protection of women and children a host of new offences were introduced under the SOSPA.
The new offences include: rape by persons in authority; marital rape; gang rape; trafficking in persons, harboring; acts of gross indecency, between persons; sexual exploitation; grave sexual abuse and sexual harassment.
Rape by Persons in Authority
To appreciate the significance of the change on the law regarding rape by persons in authority and those in fiduciary relationship, we need to look at what was the position of the case law prior to this enactment.
The decision in Kabulungu Juma V.R and Nguza Viking alias Bab Sea & 3 Others v. R, [352] is a classic example of the legal position prior to the changes. In that case the appellant, a local medicine man, had been charged and convicted of rape and sentenced to 5 years imprisonment. He appealed. The appellate court established from the record that the woman had voluntarily consented to the intercourse believing that it was part of the treatment for her ailments by the appellant. It was held by the court, that a woman who is enslaved by strange ideas and beliefs and who under those circumstances allows a medicine man to have sexual intercourse with her in the hope that sexual act were the man’s mode of treating her cannot be heard to complain of rape. The legal position after the amendment is that there is no consent where a traditional healer (medicine man) takes advantage of his position and has sexual intercourse with a girl or a woman who is his client. Thus a Bishop who raped his followers under the pretence that he was cleansing them and removing evil spirits from them and assisting barren women to become fertile was convicted of multiple rape.
To appreciate the progressive nature of the provisions of the law, one can compare these stringent provisions of the Tanzanian law with the recent decisions of an Australian court, which I consider very lenient. Four men convicted of multiple sex offences that included rape and sexual assaults received jail sentences of between two and six years. Two others were ordered to carry out community service. Chief Justice Blake said harsher punishments could have “an adverse effect on the island as the men are vital to its (island’s) daily life”. The men were allowed to remain free pending outcome of appeals by their lawyers[353].In the Australian case, the sex offenders happened to be persons in authority[354].
Gang Rape
Gang rape is another new offence created by the SOSPA. In terms of section 131A gang rape is committed by two or more in a group of persons pursuing a common intention of raping or facilitating rape. Each of the persons in the group committing or abetting the rape, is a principal offender and is liable upon conviction to be sentenced to life imprisonment regardless of the actual role he/she has played in the rape [Section 131A(2) of the Penal Code]. By this definition women can be convicted of gang rape if they aid or abet.
In this regard this law has emulated the jurisprudence established by decisions of the International Criminal Tribunals for Bosnia and Rwanda. In the International Criminal Tribunal for Rwanda sitting in Arusha, women who had aided and abetted rape during the genocide and mass rapes in Rwanda in 1994 have been tried and sentenced for gang rape by the International Criminal Tribunal (ICTR).
Gross Indecency Between Persons
Gross indecency is constituted by sexual acts that are more than ordinary but fall short of actual intercourse, Section 138A of the Penal Code. The category of acts that fall within the definition of “more than ordinary” is never closed. I see this as an open- ended category because what is seen as indecency very much depends on peoples perception of what is indecent at a particular time. Perceptions of what is moral and ethical are judgments based on the mores of the community and are bound to change with time. For example, not long ago it was considered indecent for persons to kiss or hug in public and those indulging in kissing in public could be flogged instantly by members of the people’s militia or youth league. They could be arrested by members of the youth league or people’s militia or police without an arrest warrant. This is no longer the case nowadays.
The objective of prohibiting indecent acts is to preserve public order, morality and decency. Prosecutions for indecent assault have been mounted against those arrested for masturbation; indecent physical contact; indecent exposure, exhibition and indecent display. It does not matter whether the indecency is committed in public or private.
The punishment for acts of indecency ranges from one to five years imprisonment. Alternatively, a fine of not less than Tshs:100,000/= but not exceeding Tshs:300,000/= may be imposed.
Where the gross indecency is committed by persons over 18 years of age against those under 18 years or to a pupil of a school or a student of any school, the offender is liable upon conviction to a mandatory sentence of not less than ten years imprisonment with corporal punishment. In addition, the court must order the offender to pay the victim compensation for any injuries suffered[355]. It is not clear whether the definition of a student is confined to those in secondary schools only to the exclusion of those in universities, colleges or other learning institutions. Presumably the criteria of studentship will also apply to victims who are above 18 years but still at school.
Sexual Exploitation of Children
It is criminal to use children in sex and live from the earnings of such activity[356]. This offence covers those who employ children such as in brothels and collect payments from clients of those children.
Exploitation may take place in a variety of ways such as keeping children so that men may have sex on them and charging the clients a fee or the child who renders the service a commission for finding her a client; or allowing children to be sexually abused; or causing children to participate in any form of sexual activity or in any obscene or indecent exhibition or show, for money or gain.
It is also illegal to induce any person to be a client of a child for sexual intercourse or any form of sexual abuse; or indecent exhibition or show, be it by means of print, dance, oral advertisement or other medium.
Similarly, it is criminal for any person in authority to take advantage of his position or his relationship with a child to have sexual intercourse with the child or any form of sexual abuse, indecent exhibition or show[357].
This strict position of the law can be compared with a recent case in England where a Roman Catholic priest who confessed to have stripped out his vest and green underpants and chased a seven year old girl around his room was cleared of charges of indecent exposure[358].
The only punishment was that the priest’s faculties to practice as a priest were formally withdrawn on grounds of suspect mental stability.
Moreover, it is criminal to give inducements such as monetary consideration, goods or other benefits to a child or its parents to lure the child for sexual intercourse or any form of sexual abuse or indecent exhibition or show. The punishment for these offences is imprisonment ranging from five to twenty years[359].
Grave Sexual Abuse
Grave sexual abuse is any offensive act or conduct by the use or any part of the human body, or any instrument, any orifice or part of the body of any other person for sexual gratification [Section 138C of the Penal Code]. Consent is no defense to a charge of grave sexual abuse if the consent was obtained by force or threat, intimidation or fear of death or hurt or where consent is given while the victim is under unlawful detention or of unsound mind or in the state of intoxication induced by alcohol or any drug, matter or thing.
The punishment for grave sexual abuse is minimum of fifteen and maximum of thirty years imprisonment with corporal punishment. In addition, the court must determine and order compensation to the victim for injuries suffered. The law prescribes more severe punishment for victims under fifteen years of age. In such cases an imprisonment sentence of twenty to thirty years may be imposed [ Section 138(1)(b) of the Penal Code. And in addition the offender must pay compensation to the victim. The position of the law in Tanzania may be compared to other countries where consent is accepted as a defense to under age sex where under age sex is part of the local tradition or culture of the people. An example is the case of British subjects in the tiny UK Pacific colony of Pitcairn where seven men, including the island mayor charged with more than 50 counts of rape and indecent assaults committed against young women, some of whom aged as low as 12 years were given light imprisonment sentences . The sentences were subsequently commuted to suspended sentences.
Surprisingly, adult women in the Pacific colony, who had been called to testify before the court, defended the male offenders arguing that the practice was an established island tradition and consensual. The women, wives, daughters, sisters and mothers of some of the accused testified that they themselves had passed through the same experience and argued that the charges against the men were unfair because there was an ingrained culture in the remote island of using children for sex. To them there was nothing criminal because rape was a way of life on the colony where young girls were treated as sexual playthings.
On their part, the defendants defended their actions on the ground that consensual underage sex was a long and un-assailed tradition of the inhabitants of the island. The offenders received light jail sentences of between two and six years. Chief Justice Blake, held that harsher punishments could have an adverse effect on the island’s economy and social fabric as the men standing accused were a vital part to its daily life. The seven accused comprised 50% of the adult male population of the island whose population is only 57 inhabitants. The accused were allowed to remain free pending outcome of their appeals. Despite the lenient sentences, women in the island condemned the prosecutions saying consensual sex involving girls as young as 12 or 13 was common place in the island[360]. The vexing question here is how could the United Kingdom tolerate its colony to maintain such a repulsive practice of under age sex.
Sexual Harassment
In the 1990’s women dressed in scanty clothes such as mini skirts, skin tights or light cotton textiles (locally known as “khanga and kitenge”) could not safely walk the streets in Tanzania. They faced vicious attacks by being booed, scorned , taunted, teased or called all sort of names or simply being insulted by mobs of youths. This grossly interfered with their freedom to move around and choose the manner of dressing. Women seeking employment or those in places of work were subjected to unsolicited sexual advances from their male employers. Sexual harassment covers all those types of conduct and a wide range of acts of similar nature.[361]
Sexual harassment is amorphous, hard to delineate and may be likened to jelly fish. It may be committed by words, deed or use of criminal force calculated to sexually annoy or harass another person. The Act specifically provides that sexual harassment is committed wherever a person, with intent to insult the modest of any woman, utters any words, makes any sound or gesture[362], or exhibits any object including any organ whether male or feminine, intending that such words or sound shall be heard, or that the gesture or object shall be seen by the woman; or intrudes upon the privacy of a woman commits the offence of sexual harassment.
Elements of the offence broadly include: gestures, spanking, sexual batteries, unsolicited patting or handshaking, busting someone’s behind, comments, drawings or even hissing may lead to commission of the offense. Upon conviction the offender is liable to imprisonment for a term not exceeding five years or a fine not exceeding Tsh. 200,000; or to both a fine and imprisonment. In addition to the imprisonment or fine, the court has discretion to order compensation to the victim to be compensated for any injuries suffered in befitting cases.
Unlike the other types of sexual offences, there is a time limit within which a prosecution for sexual harassment must be instituted. The law requires that the victim of a sexual harassment must report the incident to the Police within sixty days from the date of its occurrence. This is a rare example where the prosecution of a criminal offence is subject to the law of limitation.
Ordinarily criminal offences do not have a time limit.
Procuration For Prostitution
The Act prohibits procuration of any person of whatever age, and whether with or without her/his consent, for purposes of prostitution within or outside the country[363].
The exportation and importation of persons under eighteen years of age for sexual intercourse is one such procuration outlawed by this provision[364]. It is illegal to detain or keep any person in a brothel or other premise for prohibited sexual intercourse or sexual abuse. Consent is no defense to the detention[365].
These provisions aim at those women (madams) who recruit girls from rural areas, some parts of the country like Iringa and Singida regions provide fertile areas of recruitment under the pretext of finding house keeping jobs for them in urban centres and abroad [366]just to turn them into prostitutes for a fee.
On conviction the offenders are liable to imprisonment between ten and twenty years or a fine of not less than Tshs 100,000 and not exceeding Tshs 300,000 or both fine and imprisonment[367].
Unlike the previous provision which prohibited procuration of only women under twenty one years of age and thus excluded males and women over 21 years of age, the current provisions have expanded the protection to any person, including males of whatever age. Also while in the previous rules there was a proviso that no conviction for procuration could be founded on the evidence of a sole witness the amending rule has repealed the mandatory requirement of corroboration. Thus the evidence of the victim may solely be relied upon by the court to convict an alleged offender.
Trafficking of Persons
Trafficking in humans is a worldwide problem[368]. An estimate of the total number of young people being trafficked in Tanzania is not known. However it is a fact that the number of girls and boys trafficked into prostitution and those held as virtual domestic slaves in many places in urban areas is growing. The traffickers are often people known to the young girls and boys who lure them with false promises of gainful employment. The traffickers use their familiarity with the victims to build trust, making empty promises of lucrative work to persuade the young persons to leave home. Many young girls go to the urban centers hoping for a glamorous lifestyle just to find themselves locked up in private homes as domestic servants, concubines, sex objects and sex traders. Particularly susceptible to trafficking are young girls from the depressed and least developed parts of the country. About a third of the trafficking in women and children takes place from rural areas with some regions gaining notoriety for the supply of such girls[369].
If one takes into account the fact that about 50% of the population is 18 years old or younger, coupled with the fact that job opportunities are limited and literacy is low the problem is likely to persist. In an effort to curb trafficking in humans the Act introduced new provisions that prohibit the purchase, sale or bartering of any person for money or other consideration[370] .
The Act outlaws taking of children from any child- care institution for money or other consideration for the purpose of trafficking. It outlaws surrogate motherhood in that the recruitment of women or couples to bear children for others is prohibited[371]. Those found guilty are liable to imprisonment between twenty and thirty years, and a fine of not less than one hundred thousand shillings and not exceeding three hundred thousand shillings or to both the fine and imprisonment. In addition the court must order the convict to pay compensation to the victim .
Defilement and Procuring Defilement
Previously the Penal Code forbade only defilement of girls below 14 years. The punishment was life imprisonment. By statute a girl is defined as any female under 18 years[372].
Now it is an offence for a husband married to a girl under 18 years to have or attempt to have carnal knowledge of her. If any man does so it will be defilement. Consent is immaterial to defilement so long as the girl is below fifteen years. The punishment is ten years imprisonment.
The absurdity of the law in this regard is that the Law of Marriage Act, 1971 still allows girls at the age of 15 to marry on condition that they should refrain from sex until they reach 18 years. It is wishful thinking to expect husbands of this young girls to refrain from sexual intercourse until their spouses reach the age of 18. After all does anyone expect the young wives to complain when asked for sexual favors by their husbands? How are the law enforcers going to monitor what takes place under the roofs of the homes of these couples. After all, what is that attracts elderly men to marry girls under 15 years of age, if not the desire for sexual intercourse with the young girls!
Defilement of a Child under the Age of 12 years
Defilement of children under twelve years is punishable with ten years imprisonment. Before the amendment the imprisonment was for a maximum of five years only.
Unlike in the previous provisions where corporal punishment was optional in defilement, under the SOSPA amendments corporal punishment is mandatory for all cases of defilement of young girls. The statute also provides for imprisonment of ten years to a parent or guardian who disposes any girl under his custody with the intention that she should, while still under fifteen years of age, be carnally known.[373] It does not matter whether the girl consented to being disposed or not. This provision is intended to prohibit archaic practices in some tribes like the Masai, Makua, or Sukuma, Gogo or Kuria tribes where young girls are given to elderly men as future wives when still very young or forced to leave school to get married.
Although SOSPA raised the age for permissible consensual sex to 18 years it is debatable from health perspectives whether it is wise for girls below eighteen years to involve themselves in reproduction. Health experts consider girls participating in early reproduction to be risking their lives.
Unnatural Offences
All homosexual acts are criminal[374]. Thus homosexual acts such as gay, lesbian, bisexual, unnatural acts, same sex marriages and transgender, face severe punishment. Orthodox and conservative religious leaders have condemned homosexual tendencies being unbiblical, unnatural and definitely un-African. According to the conference of African Anglican bishops held in Lagos Nigeria on 28th October, 2004 homosexuality is incompatible with” God’s will and the word of God” and gay unions are incompatible with the teachings of the scripture. Consent is no defense to a charge of a homosexual act.
The amendments impose not less than thirty years imprisonment for homosexual acts .[375] Where the offence is committed to a child under ten years of age the sentence is a mandatory life imprisonment. Prior to the amendment the sentence was an imprisonment for fourteen years regardless the age of the victim. Punishment for attempts to commit an unnatural offence has been raised to imprisonment for not less than twenty years [ Section 155 Penal Code]. Under the previous statute the maximum imprisonment was a mere seven years. The amendment has raised the punishment for indecent assaults against boys under fourteen years as well, from seven years to life imprisonment. It also provides that where the charge for indecent assault relates to a boy under the age of fifteen years, it is no defense that the boy consented to the act of indecency.
Incest by Male
The law prohibits any male person to have sexual intercourse with any female within the prohibited relations.[376]. Prohibited relations are enumerated under the Law of Marriage Act, 1971 and amplified in Section 161 of the Penal Code. These cover primarily persons related by blood such as: father, son, granddaughter, daughter, sister or mother. Where the female is under eighteen years of age the offender must be imprisoned for a term not less than thirty years. And where the female is of the age of eighteen years or more imprisonment will be for a term of not less than twenty years.
Incest by Female
In the same vein, it is an offence for a female person of or above eighteen years of age to consent and permit persons within the prohibited relations to have sex with her knowing him to be a grandfather, father, brother or son[377]. The punishment is life imprisonment or imprisonment for a term of not less than thirty years. The court in addition will order the female to pay compensation to the person whom she induced to have sex on her. Where the male person on whom incest is committed is below ten years, the convict must be imprisoned for not less than thirty years.
Before the amendments, the section covered female persons of or above sixteen years of age only but now the age has been raised to eighteen years. Also the punishment was five years imprisonment. The imposition of severe punishment of life imprisonment and the minimum of thirty years brought in by SOSPA was considered sufficient to deter people within prohibited relations to commit such offences.
Cruelty to Children
To protect children against acts of cruelty a provision was introduced in the Sexual Offences Special Provision Act, 1998.[378] It prohibits any person having custody, charge or care of any child from ill -treating, neglecting or abandoning the child. Among the cruel acts expressly outlawed by section 169A are: female genital mutilation (female circumcision); assaults, ill- treatment, neglect or abandonment in a manner likely to cause suffering or injury to health, loss of sight, hearing, or limb or organ of the body or any mental derangement. Cruelty envisaged under the law covers both acts of both physical violence to a child, neglect and mental torture.
A guardian or parent found guilty of cruelty to children is liable to fifteen years imprisonment or a fine not exceeding Tshs 300,000 .00 or both fine and imprisonment. The court must order compensation to be paid to the child for any injuries.
Parallel with amendments to the Penal Code, the Criminal Procedure Act 1985 was also amended by the SOSPA to strengthen protection of children against cruelty. Section 168 of the Criminal Procedure Act was amended by Section 22 of Sexual Offences Special Provisions Act, 1998 by addition of sub section 6 which compels the courts where they find a person guilty of sexual offences to impose sentences prescribed under the Minimum Sentences Act, 1972.[379]
This amendment has increased the penalties which subordinate courts can impose for sexual offences. Before the amendment the subordinate courts could only have sentenced a person to imprisonment for a term not exceeding five years, save/except where it convicted for a scheduled offence. The maximum sentence authorized by law for subordinate court was imprisonment of five to eight years. By applying the provisions of the Minimum Sentences Act, a subordinate court has no choice but to impose sentences scheduled in the Minimum Sentences Act, 1972.
Sexual and Indecent Assaults on Women
A sexual assault is constituted by sexual annoyance through words, sound; gestures, exhibition or object intending that such word or sound shall be heard, or the gesture or object shall be seen by that other person.
On conviction the offender is liable to imprisonment for a term not exceeding five years, or to a fine not exceeding Tshs 300,000 or to both fine and imprisonment.
Where the victim of the sexual assault is a boy or girl under 18 years of age consent is no defense35.
Before the amendment, the provision of section 135 of the Penal Code indecent assaults could be committed against females only. Now the law covers both boys and girls37.
In the past the accused could plead implied consent by simply establishing that the girl was above twelve years old. However, with the enactment of SOSPA consent is only relevant if it is proved that the consenting victim is over 18 years.
Marital Rape
The position of the law before 1998 as adopted from the common law held that husband could commit no rape upon his wife because it was assumed that by their marriage they had entered into a continuing mutual matrimonial consent and contract that she gave unreserved consent to sex with her husband which undertaking she could not retract.
Within that conservative position, the only incident when a husband could be convicted of marital rape was if he was found to have aided or abetted rape committed by another man on the wife. This position was adopted from the rules propounded in an English case of R. v. Cogan[380]
Section 130 (2) (a) as amended by s.5 of SOSPA, 1998 changed the traditional view. Where there is separation, the law provides no protection from criminal prosecution to a husband who procures sexual intercourse with his separated wife without her consent at the time of such intercourse. Once there is separation between the spouses the basic rights accruing to mutual matrimonial relations cease to operate and the wife should be regarded to have withdrawn the consent to have sex with her husband in perpetuity.
Similarly, in English law the common law position was revisited and discarded in the case of R. v R[381] where the court held that it is no longer correct to think that by marriage a wife submits to sexual intercourse with his husband in all circumstances.
Under s.130(2)(a) of Penal Code a husband commits rape if he forces sexual intercourse with his wife during separation if at the time of the act the wife did not consent . Separation in this context need not necessarily be one affected by a court order or tribunal. It is sufficient if the separation was arranged by family or clan elders or mutual consent of the spouses.
There is no consent of the wife if the same has been obtained by the use of force, intimidation, threat or fraud regardless of whether the threat is express or implied. It does not matter whether the threat is from the past or present conduct.
The threat need not necessarily be directed to the woman herself. It is sufficient if directed to someone close to her for instance her child. In Mtundu Chile & 3 Others v. R.[382] The appellants after breaking and stealing in the house of the victim, demanded sexual intercourse with the victim’s daughter who was in advanced stage of pregnancy. The victim aged 50 years fearing the consequences to her pregnant daughter, offered herself for the sex in place of her daughter. On appeal, the issues was whether there was consent to sexual intercourse by the 50 year old woman. The High Court held that there was no consent as the alleged consent was obtained under fear for her daughter’s safety. Section 5 of SOSPA broadly defines threats or intimidation as acts that put the woman in fear of death or of hurt or unlawful detention as circumstances amounting to rape.
Attempted Rape
From the court decisions prior to the amendments it was extremely difficult to prove attempted rape. It was common place that charges for attempted rape ended up into substituted conviction for the minor cognate offence of indecent assault. The courts insisted that to constitute attempted rape it had to be established that accused had an intention to have sexual intercourse at all costs not withstanding the resistance on the part of the woman plus an attempt to put that intention into effect.
In a chain of decisions the courts laid down principles that completely blurred the distinction between attempted rape and mere preparation making it impossible to convict offenders with attempted rape.
This was an insurmountable task on part of victims as some of the decided cases clearly show. For example in one of the earlier cases of R. v. Haruna Ibrahim[383] the accused had been charged and convicted of attempted rape in the trial court. According to the evidence the accused had dragged the complainant to a ditch, placed his hands over her mouth and pulled down her under clothes and proceeded to lay on top of her. Fortunately he was spotted by a passerby and he fled. There was no evidence that at the time he fled he was undressed. When the record of the lower court was called at the High Court for review, the court overturned the ruling and held that the acts did not constitute attempted rape because accused had not yet undressed himself at that point. The court cited with approval the principles in Adam Mulira v. R.[384] and held that at most the facts presented in this case amounted to mere preparation for that crime. It concluded that the acts only amounted to indecent assault under s.135 of Penal Code. Conviction for indecent assault was accordingly entered.
In Gamaiyo S/O Melau v. R.[385] the accused had been convicted of attempted rape by the trial court. There was evidence that the accused had thrown complainant on the ground, threatened her with a knife and tore off her underpants. The victim then caught hold of his attacker’s private parts and effectively prevented him from unbuttoning his pants. At this point an alarm was raised and accused ran away. Plat,J. held that “to constitute an attempt to rape there must be evidence of an attempt to have sexual connection with the woman not withstanding her resistance”. The appellate court doubted whether the trial court had fully appreciated the fact that the acts of the accused did not constitute attempted rape. A conviction for indecent assault was entered.
In the case of Paskari S/O Joseph[386] the appellant had been convicted of attempted rape and sentenced to 18 months imprisonment. It was proved that he had pushed the complainant down on grass, held her right hand to break her resistance and pulled her two pieces of khanga off leaving her with one piece of kitenge cloth only. The attacker pulled her legs apart. He stood up and started to unbutton his trouser when the complainant escaped and raised an alarm. She thought he wanted to kill her and she was resisting. On appeal against conviction, Bramble J (as he then was) held that appellant’s action should be considered as mere preparation and could not amount to attempted rape. A conviction for indecent assault was substituted.
Consolidation of the elements of the offense of attempted rape came in the case of R v. Andrew Avarity. In that case accused way laid complainant, struck from behind, got hold of her and started stripping her clothes. Complainant shouted for help. People appeared on the scene and accused ran away. In a charge of rape accused stated “ It is so. I was attempting to rape the complainant, but people came there and I stopped raping her”.
The court formulated three basic propositions on the ingredients of attempted rape. First, there must be evidence of an attempt to have sexual connections with a woman not withstanding her resistance and execution of that intention by overt acts clearly adapted to its fulfillment. Second, where existence of the overt act is established, it is not required to classify further the overt acts into preparatory and non preparatory, proximate or remote.
Third, it is immaterial, except as regards sentence, that the accused desisted from his own motion or otherwise from further execution of his intention.
The judges in the above cited cases seem to have followed the principle in an English case of R. John Eagleton [387] and ignored the plain words in the statute. The English case had laid down that acts remotely leading towards the commission of the offence are not to be considered as attempts; only acts immediately connected with it become so.
The frequency of substituting convictions of indecent assault for charges of attempted rape tended to undermine the deterrent effects of the sentences prescribed in the statute for attempted rape. While attempted rape was punishable with life imprisonment, indecent assault was subject to a maximum of fourteen years imprisonment. The convicts could walk away with a one year imprisonment or less.
JUDICIAL RESPONSE TO THE SOSPA AMENDMENTS
Since the change in the law on defilement were made the courts have responded well. The new provisions on defilement have been applied to the letter of the law. In James Bunduma v. R.[388] the appellant was charged with defilement under s.136 (1) P.C convicted and sentenced to 20 years imprisonment and mandatory 12 strokes of the cane. It was alleged that he had defiled a girl under 14 years. He appealed to the High court on the ground that the complainant had not positively identified him properly and there was no corroboration to the evidence of the complainant. The High court dismissing the appeal found there had been no question of mistaken identity of the accused.
On the requirement of corroboration the court said the only question was whether in a case of defilement the court could convict relying solely on evidence of the victim who the defense alleged to be of doubtful moral character without sufficient corroboration or at all? The judge applying the new rules held that while it is still a cardinal principle of criminal law that it is the duty of the prosecution to prove their case beyond all reasonable doubt it is not the number of witnesses which counts in the proof. It is the quality, sufficiency and credibility of the evidence which matters. The judge concluded that there was sufficient testimony from injuries in the victim’s private parts to convict on the basis of sole testimony of the victim herself. In that particular case, the requirements of s.127 (2) TEA, 1967 were met and the only yard -stick for assessing the value of the evidence was whether the court believed it to be true as s.127(3) allows the court to convict on uncorroborated evidence provided the court warns itself of the danger of doing so. The court made it clear, that where the court is satisfied as was here, that the child of tender age is telling the truth it can proceed to convict.
PROCEDURAL SAFEGUARDS
Increase in the Age for Criminal Responsibility
Another significant element in SOSPA is the expansion of protection accorded to children by raising the age for criminal responsibility.
A child under 10 years is not criminally liable for any offence. The age for criminal responsibility has been raised from seven in the previous statutes to 10 years. A child below twelve years can only be held criminally liable if it is proved that he/she knew what she/he was doing was wrong or what she was omitting to do was wrong.
Protection of witnesses in Criminal Trials
The changes on this aspect are those that require evidence of all persons in all trials involving sexual offences to be received by the court in camera and the testimony of the witnesses involved in the proceeding not to be published by or in any newspaper or other media. However printing or publishing such matters bona fide, such as in a series of law reports, newspapers or periodicals of a technical character bona fide, intended for circulation among members of the legal or medical profession is allowed with leave of court.[389]
The High Court, while exercising its revisional jurisdiction over matters relating to sexual offences determined by the subordinate courts has power to impose greater punishment than the one which the convicting court might have imposed if it considers the justice of the case so requires. The punishment which it may impose must be the one which it could have imposed if the matter were before it on appeal i.e. as if the matter were in fact an appeal. [Section 373 of the Criminal Procedure Act, 1985 is also amended by s.26 of SOSPA by adding sub section (4) which empowers].
Testimony of Children of Tender Age can be relied upon to Convict without Corroboration
The court can now rely on the sole evidence of a child of tender years or a victim of sexual offence to convict, if after receiving and assessing the credibility of such witness, though there is no independent evidence to corroborate it proceed to convict, the court is satisfied and it records that the child of tender years or a victim of sexual offence is telling nothing but the truth. [The Sexual Offences Special Provisions Act, 1998 also amended the Evidence Act no.6 1967.]
Section 27 of SOSPA amended s.127 of the Evidence Act by adding subsection 7 and 8. It lessened the burden of proofing sexual offences. Prior to this amendment, the status and value of evidence given by children of tender years were treated with great caution in all cases.
The law provides that where the un sworn evidence of a child of tender years is received under sub section 2 of section 127 of TEA and there is no independent evidence to corroborate it, the court must warn itself of the danger of relying on it and can then proceed to convict if is satisfied that the child of tender years is telling nothing but the truth. In addition the evidence so received may also be of corroborative value. It can be acted upon by the court as material evidence to corroborate the evidence of another child of tender years or of an adult, which need corroboration.
The effect of the amendment is to ensure justice is done taking into account that most of the sexual offences are not committed publicly; they are committed in private areas and often the parties involved are the victim and the accused. Therefore, parliament in removing the rigid rule of corroboration has eased the burden of proof.
The Parliament in its effort to protect children also amended the Children and Young Persons Act,[390] The subsection provides that where a child of less than eighteen years of age is a witness, a victim, an accused or co- accused in a case involving a sexual offence, the child shall be tried in camera and separately form the adult co - accused, or in case he is a witness, the evidence of the child shall be adduced in proceedings conducted in camera.
Therefore in any sexual offence where the accused and or a witness is below eighteen years old, such proceedings must be conducted in camera.
The Sexual Offences Special Provisions Act, 1998 also amended the minimum Sentences Act, 1972. It amended section 5 by adding paragraph (h) which provides that where any person is convicted of any sexual offence specified under chapter XV of the Penal Code Cap.16 as amended by SOSPA, the court shall sentence such person to imprisonment for a term prescribed under chapter XV of Penal Code as amended.
Exceptions to the General Rule That Criminal Trial to Take Place Primarily in Open Court
As a general rule, the place of conducting criminal cases as prescribed in the Criminal Procedure Act 1985 (s.186) is the open court where the general public have access. Nevertheless there are exceptions to this general rule.
In Camera Proceedings
There are cases where the Sexual Offences Special Provisions Act or some other Act provides for proceedings to be conducted in camera. In camera proceedings may also be ordered where the presiding judge or magistrate considers it necessary or expedient to conduct proceedings in camera. In camera proceedings or often referred to “ chamber hearing” are common in interlocutory proceedings or in circumstances where publicity would be prejudicial to the interests of justice, defense, public safety, public order or public morality; or the welfare or private lives of persons to the proceeding is paramount. For example proceedings involving young persons under the age of 18 require protection of the identity of the young person involved. In such proceedings, persons other than the parties to the proceeding or their legal representative may be excluded from access to the room or be prohibited from remaining in the room or building used by court.
Before the enactment of SOSPA, 1998 it was common place for all sexual offences to be tried in open courts without exception. This practice was criticized as being an injustice to many victims of sexual crimes who had to face cross examination in public glare by their rapists. It was not uncommon for victims to narrate what had happened to them while crying when challenged by rapists knowledgeable with the procedures of the court. As a result victims would be shaken by the public laughter when recounting what they had experienced during the abuses or simply get nervous or lose concentration and thereby create in the mind of the magistrate the impression that they were not credible, honest and truthful. This affected credibility and weight of the evidence of the victim before the court.
This procedure needed rectification. Witnesses of sexual offences needed reassurance that they would testify under an environment where their integrity, freedom and privacy would be respected. Section 3 of section 186 of CPA which requires evidence in sexual offences be received by the court in camera and identity of witnesses not to be disclosed by or in any newspapers or other media has taken care of that shortcoming.
With guaranteed privacy the victims of sexual harassment can now freely and openly speak up their minds as witnesses.
Likewise, it is the position of the law that where a child of less than eighteen years of age is a witness, a victim, an accused or a co accused in case involving a sexual offence, the child shall be tried and shall testify in camera. And where the child is associated with an adult co-accused, the child shall be separated for trial and shall not testify with the adult co-accused. The evidence of the child must always be adduced in camera.
Corroboration no longer a necessary legal requirement
It was noted earlier that the requirement of corroboration for sexual offences was for a long time unassailable pillar in the prudence of the courts before SOSPA came into effect.
A chain of decided cases made it clear that a person could not be convicted of a sexual offence without corroboration. Judges faithfully adhered to this principle.
From the Court of Appeal for East Africa decision in Kibongem Arap Kahl v. R[391] onwards, the courts reiterated that an accused charged with a sexual offence could not be convicted on the uncorroborated evidence of the complainant.
In Chila and another v.R [392]where the appellants had been convicted of rape on the uncorroborated evidence of the complainant and the trial judge in his summing up in his judgment had not made any mention of the desirability of corroboration, the court of appeal held that a judge must warn himself of the danger of acting on the uncorroborated testimony of the complainant, but once the judge had warned himself, he could convict in the absence of corroboration provided he is satisfied that the evidence is truthful. If no such warning was given then the conviction would be set aside unless the appellate court was satisfied that there had been no failure of justice.
The same principle was adopted in a series of other decisions .[393] It was held that, while it is a rule in sexual offences if the person against whom the offence is alleged to have been committed is an adult, the court should warn itself that it is not safe to convict on uncorroborated evidence of the complainant, but if the court is satisfied of the truth of the complainant’s testimony it may, after paying attention to the warning, nevertheless convict.
The wisdom underlying this rule came from 17th century English jurist Sir Hale who wrote rape is an accusation easy to be made and hard to be proved and harder to be defended by the party accused
Similar sentiments were echoed in many other subsequent decisions. In Mchelengwanjingi s/o Masala v .R[394] four persons had been convicted by a subordinate court of rape. The evidence showed that the accused had been drinking with the complainant. At midnight one of the accused carried away the complainant where the first and second accused had sexual intercourse with her by force and later the third and fourth accused took their turn. At that time she was too tired and drunk to resist. The first and third accused admitted to have had intercourse with the complainant but claimed that she had consented. But the second and fourth accused denied having had intercourse with the complainant at all. However, it was established that a witness had seen the third accused having intercourse with the complainant and a torn piece of complainant’s clothing was found near the scene of the event suggesting force had been used to subdue complainant. On appeal the High Court quashed the conviction for all the four appellants on the ground that first, there was no corroboration for the complainant’s testimony to support the claim that the second and fourth accused had intercourse with her; second, that whereas there might be authority negating consent for rape when the complainant is too drunk to resist.[395] In this case there was no corroboration of complainant’s testimony that the intercourse with the first and third accused was without her consent. In the court’s view, neither the torn clothing nor the fact that she was too drunk would necessarily negate her consent. Third that the trial magistrate also may have failed to consider the possibility that because of their drunkenness the accused had no intention to commit rape and mistakenly believed that the complainant had consented. The High Court placed no credibility on the evidence of the victim. The court presumed that without corroboration her testimony was not credible.
The attitude of the appellate court raises the question of who was better placed as between the trial court and the High Court to observe and assess the demeanor of the witnesses!
The court adopted a similar attitude in the case of R.v. Rashid s/o Mohamed [396]. The accused had been convicted of committing an unnatural offence. There was ample evidence that carnal knowledge through the anus had been committed upon the complainant, an elderly woman, but the only evidence connecting the accused person with the offence was the testimony of the complainant herself. It was held that, although there is no general rule of law that corroborative evidence is required to support the testimony of the complainant in a sexual offence, as a rule of practice and prudence the magistrate must warn himself of the danger of convicting in the absence of corroboration. Only where the magistrate finds that the evidence is so irresistibly convincing that it is safe to convict on the uncorroborated evidence of the complainant he should proceed to do so. The appellate court concluded that no such course was followed by the magistrate in that case. As a result the accused was entitled to acquittal. A progressive attitude on when and when not to invoke the requirement of corroboration in cases of rape appears in the case of Abasi Ramadhani v.R[397] The appellant was charged and convicted of rape. He appealed against conviction. The evidence established that the appellant and complainant went out together to collect fire wood and while in a sisal plantation they were out of sight. The appellant approached the complainant caught her and demanded sexual intercourse. Upon her refusal appellant threatened her with a slasher he was carrying. He snatched the child the complainant was carrying on her back and dumped the baby on the ground. He removed his trouser and pushed the complainant to the ground and forcefully had intercourse with her. She could neither resist nor cry for help as her life was threatened by the slasher and her mouth was also covered by appellant. Medical evidence established that both accused and complainant had sexual intercourse at about such time. Police evidence confirmed that the scene pointed out to them by the complainant bore marks that an incident of the nature described by the complainant had taken place there. Further the medical evidence on physical injuries to the complainant also appeared to negative consent.
The Court held that even if some of the facts in isolation did not constitute corroboration of the complainant’s evidence to connect the appellant with the offence the issue of whether conviction could be sustained in the absence of corroboration was fairly certain. The court rightly held that the testimony of the complainant was sufficient to sustain a conviction as the requirement of corroboration in sexual offences is only a rule of practice founded upon the wisdom and prudence of the courts. That the rule should not be applied strictly where to do so would occasion failure of justice.
That principle was adopted and reiterated by the High Court in the case of Shiku Salehe v. R[398] In this case the appellant was charged and convicted of rape. The conviction was solely based on visual identification and uncorroborated testimony of the victim. The issue on appeal was whether the conviction was proper. It was held that before basing a conviction solely on evidence of visual identification, such evidence must remove all possibilities of mistaken identity and the court must be satisfied that the conviction is watertight. In the end, the appellate court concluded that since the record of trial showed clearly the trial magistrate had considered these factors, the conviction was proper.
From the cases examined we note that there are two schools of thought on the issue of corroboration in sexual offences. The conservative school holds that in sexual offences the court should always warn itself of the dangers of acting on uncorroborated testimony of the complainant and having done so the court may convict if it is satisfied that the victim’s evidence is true.
The liberal school, holds that not withstanding the failure of the trial court to warn itself, an appellate court will not interfere with the conviction if upon review of the evidence before the trial court it is satisfied that there was no danger at all of there having been failure of justice consequent upon such conviction.
Under the Tanzanian law, the first approach appears to have been effectively abolished by express provisions of Sexual Offences Special Provisions Act, 1998 which amended s.127 of Tanzania Evidence Act, 1967. Courts may now convict relying on uncorroborated evidence of a victim of sexual offence provided the court puts on record in the proceedings reasons why it is satisfied that the victim of the sexual offence is telling nothing but the truth.
ENHANCED SENTENCING IN SEXUAL OFFENCES
Sentences imposed by judges and magistrates have a .very big effect in deterring further commission of crimes or curbing the rate of crimes.
As mentioned, earlier before the SOSPA amendments to the Penal Code, rape, attempted rape and defilement of girls under 14 years carried a maximum penalty of up to life imprisonment. However, in practice rarely were offenders given this maximum penalty. In most cases they got away with far lesser imprisonment terms or suffered just modest fines.
Cases of lenient sentences for rape convicts abound. In the case of R.V. Pauni Nasinda [399]the accused having been convicted by the court of the resident magistrate for attempted rape was sentenced to only 9 months imprisonment, of which six were suspended. An inspection note by Platt J, as he then was noted the error. However, the judge took no action to impose the proper sentence but simply remarked that the sentence was too lenient and the magistrate should have ordered compensation for injuries sustained by the victim.
In R. v. Amiri s/o Ali[400], the accused was sleeping in same room as complainant. In the middle of night, accused went to complainant’s bed, and without even awakening her, undressed her and had sexual intercourse without her consent and without her knowledge. Complainant woke up and shouted for help. The rapist convicted on his own plea of defiling a girl under 12 years was imprisoned for 2 years only and given 6strokes corporal punishment on the ground that the lenient sentence was necessary because the rapist had been tempted to commit the offence by sleeping together in the same room with complainant. The Court held “ the strongest mitigation is that the accused had temptation thrust upon him in that sleeping together in the same room with complainant, he was doubtless affected by the proximity and tempted by the sight and presence of the sleeping girl so near him”.
On the basis of the theory of temptation, the convict was ordered to be released after serving 2 years imprisonment. In R. v. Rashid s/o Mohamed[401], the rapist was convicted in the subordinate court and sentenced to pay a fine of Tshs. 5000 (US $ 5 only). The High Court in the exercise of its revisional jurisdiction examined the evidence on record and upheld the conviction but enhanced the sentence to mere 5 years imprisonment.
Similarly in two other cases of Amri s/o Mohamed v. R. (1968) HCD No.329 a rapist was sentence to 6 months imprisonment on the ground that prior to the rape the complainant had indulged into sexual intimacies with the rapist and thus the rapist was “enstrapped by desires which may have been inflamed by the recklessness and foolishness of the complainant.”
In R v.Revocultus s/o Nsolo[402] where a boy of 18 years who had pleaded guilty to committing a buggery on the complainant, was sentenced to only 3 years imprisonment and then had his sentence reduced to 18 months imprisonment by the High Court which reasoned that although the accused was indeed morally debased, the sentence was excessive as he was a first offender. The penalty provided for the offence under s.154 of the Penal Code is 14 years. The judge in reducing the sentence took into account the fact that the accused was a first offender and that he had pleaded guilty saving time that would have been wasted for a full trial. Clearly in this case the court failed to consider the victim’s interests and the protection of her dignity. It neglected the policy of deterrence to other potential offenders.
In Shiku Salehe v. R, [403]the accused had been convicted of rape and sentenced to 5 years imprisonment. He appealed against conviction on the ground that evidence of his identity came from a sole witness which was uncorroborated. The trial court was satisfied that the identity of the accused had adequately been established by the victim upheld sentence of 5 years imprisonment. The court failed to apply the mandatory sentence of life imprisonment assigned to rape. The imprisonment of 5 years was clearly improper. It is argued that those glaring errors in sentencing should be detected by or brought to the attention of the appellate courts in the course of their revisional and inspectorate duties so that proper sentences are meted out.
In Eliakim Nikolaus v. R[404] an appellant who had used a knife to subdue and rape a 14 year old girl was sentenced to 3 years imprisonment and 18 strokes by the trial magistrate. On appeal the sentence was reduced to 2 years imprisonment on the ground that “ where a young man of previous good character is involved, long term imprisonment together with corporal punishment is only justified in the more extreme instances of the offence.”
In Matonya Chima v. R[405] gang rapists aged 14, 16 and 17 years respectively who had been sentenced by trial magistrate to 12 months imprisonment each, were released on appeal by the High Court on the ground that the appropriate sentence was corporal punishment, but the High Court did not order the corporal punishment.
Compensation Orders
The provisions of section 348 of the Criminal Procedure Act empower the courts to order compensation on top of fines or imprisonment in befitting cases. However compensation in practice much more readily paid to those injured while effecting arrests rather than those who suffer material loss or personal injury in consequence of offences committed against them. For victims of criminal offences, the compensation is determined by the court depending on the injuries sustained in the course of the offence. The quantum is not pleaded by the victim nor can the victim argue the quantum.
The principle therefore was that unless the victim had suffered material loss or personal injury not mere mental trauma, compensation will not be entertained. The principle was wrong because in most cases victims of sexual crimes suffered prolonged mental and emotional trauma although they may not have sustained serious physical injuries.
The enactment of SOSPA, 1998 positively changed the situation. The court now must, in addition to any penalty imposed, order the convict to pay the victim compensation for any injuries he / she sustains in the course of the offence.
Responsibility for Compensation where the Offender is a Minor
The question of who should be responsible to compensate the victim where the offender is a minor was settled in the cases of XY(Minor) v. R and[406] R. v Mabula Magana v. R[407] In that case a young person was convicted of defilement of a girl under 14 years. He was sentenced to eight strokes of the cane and ordered to pay Tshs. 2000 compensation. On appeal the court considered whether the compensation order against the young person was proper. It was held that where there is an order of compensation involving a young person, the order can be made against the parent or guardian of the young person . Under s.21 (1) of Children and Young Persons Ordinance a parent or guardian can be ordered to pay a fine, compensation or costs instead of such order being made as against the child or young person.] The question is how can an order of compensation be made against the parent or guardian when the parent is not the offender? An order cannot be made against the parent. It can only be made against the offender with a note that the order should be enforced against the parent or guardian in that the parent or guardian should contribute towards reparation for failure to supervise the young person. The fundamental principle is that there be no vicarious criminal liability.
JUDICIAL RESPONSES
Whether the principal beneficiaries of the SOSPA Act benefit from the safeguards provided by the Act, depends very much on how effective are the enforcement mechanisms that have been put in place.
The primary organs are the courts. We need to ask whether the courts have shaken off their previous liberal attitude to sexual offences and will enforce the new provisions of the law to the letter. It will be remembered that among the weaknesses in the criminal justice system which the Sexual Offences Special Provisions Act, 1998 sought to address were the strict evidential burden placed on victims of sexual offences; lenient sentences on offenders; procedural disincentives to disclose sexual offences and testify in court and compensation aspects.
We have seen how for a long time the law tended to tip the scales of justice in favour of offenders. In Juma Elia v. R.[408] the appellant was charged and convicted in the District Court with attempting to commit unnatural offence c/s 155 of Penal Code and sentenced to twenty years imprisonment. He appealed to the High Court against both the conviction and sentence. The facts showed that on 15/7/1998 at 20:00 hrs the appellant while drunk had met the complainant while he was on his way home. Appellant requested the company of complainant to his room and later asked him if he could assist him in buying cigarettes. Complainant agreed. When he entered the room the appellant locked the door and ordered complainant to take off his trousers. Complainant refused. Appellant undressed himself, took a knife and forcefully removed the trouser of the complainant and then threatened to stab him if he refused to heed to his atrocious demands. Complainant shouted in protest and was rescued by a neighbour, Grace Ibrahim, who just happened to be at the appellant’s door step to ask for a match box. Thus the appellant didn’t do anything to complainant apart from wetting his male member with his own saliva. Complainant emerged out naked holding his trouser in his hand. During trial the court conducted a voire dire and found that the complainant was a child of tender years (9years) and did not know who God is, and could not differentiate between lies and truth. The court addressed itself to the previous law and directed complainant to testify without taking oath as he did not understand nature of oath. This principle was underscored in Dhahiri Ally v R,.[409] The court failed to address itself to the proper law regarding evidence of a child of tender age, which simply required the court to ascertain whether complainant understood the duty of telling truth. The High Court,[Kaijage J,] held that, there was no where in the proceedings recorded by the subordinate court to indicate that the court had satisfied itself that complainant was telling nothing but truth. He held that the evidence of the complainant was suspect and could not sustain the conviction of the appellant.
He further observed that the evidence of appellant appeared not much impressive either but that did not lessen the burden which rests on the shoulders of prosecution to prove the charge beyond reasonable doubt. The judge emphasized that despite the changes in the law, the cardinal principle still remains that in criminal cases accused cannot be found guilty on the basis of the weakness of defence but on the strength of the case for the prosecution.
However the High Court presided over by another judge, faced almost with a similar case, took a different view in the case of Godfrey Aidan v R.[410] In that case, the appellant was charged and convicted of an unnatural offence by a subordinate court. He was sentenced to mandatory 30 years imprisonment. It was alleged that on 12/11/1998 committed bestiality by having sex with an animal. On appeal the appellant challenged his conviction on two main grounds. First, that the law on sexual offences contemplates and is only applicable to offences against human beings; and second that there was no expert evidence to prove that the offence was committed to the animal. Third that he had been advised by a witch doctor to have sex with the animal for the purpose of getting rich.
The court held that the SOSPA, 1998 defined unnatural offence to include sexual intercourse with animals. The court also held that the requirement of a medical report applied to human beings only because hospitals are meant for testing human beings not for animals.
On the other hand the courts have so far taken a very serious view to incest in response to the section 158 (1) of Penal Code (as amended by SOSPA). In the case of R.v. Michael s/o Said Yohana[411] the accused was charged, convicted and sentenced to 30 years imprisonment for incest by male c/s 158 (1) of Penal Code as amended by s.19 of SOSPA 1998. It was alleged that the accused had sex with a child with whom he had fathered through a woman ‘he married and later divorced. That between 1996 and October,1998 the accused occasionally had sexual intercourse with his daughter Grace who was below eighteen years. Medical examination established that the girl had bruises and sores on her private parts which made it difficult for her to walk properly which shocked her mother who reported the matter to the police. She was found to have been infected with gonorrhea. Accused denied the charge and strongly disputed the evidence of the victim who narrated that his father had on several occasions had sexual intercourse with her. Corroboration was found by the state of her private parts and the sexually transmitted gonorrhea on both the accused and the victim. The court found the case had been proved beyond reasonable doubt and convicted the accused of incest by male.
In imposing sentence the Court took a strict view that the accused not only had sexual intercourse with his daughter, but that he transmitted to her sexual diseases and hence accused deserved a very deterrent sentence. However, the judge took into account the mitigating factors that accused was a first offender suffering from hernia and sentenced him to 30 years imprisonment.
EFFECTS OF THE AMENDMENTS
During the October/November 2004 Parliamentary session, members of the National Assembly called for the introduction of capital punishment for rapists claiming the severe penalties introduced by SOSPA have not deterred rapists. Some legislators demanded introduction of the death penalty or castration for rapists!
The Minister for Justice said the government would not consider the death penalty for rape because the penalty would be out of proportion with the offence and is incompatible with the current jurisprudence on capital punishment. The Minister insisted that to impose a death penalty for rape would be doing things contrary to international conventions which call for abolition of the death penalty even for the most heinous offences.
During Parliamentary debates held on Thursday, 4th November, 2004 a Member of Parliament, Hon. Said Masoud demanded that rapists who infect their victims with the deadly HIV/Aids disease should be given the capital sentence because they are not different from premeditated murderers.[412]
Today the newspapers are awash with reports of cases of rape. From the reports in the newspapers instances of extreme sexual violence are common. In two recent cases gang rapists suffocated their victim and abandoned her in a forest mistaking her for dead.[413] In another, a rapist wielding a knife murdered a man who had rushed to rescue the victim. [414]
Even as the Minister for Constitutional and Legal Affairs was doubting the wisdom of introducing the death penalty for rapists, a man was being held by the Police for brutally sodomizing his two house girls, stuffing bottles in their private parts, electrocuting them and smacking accusing them of stealing money. Both girls were hospitalized.[415] It turned out he had failed to pay the poor girls their wages and was using torture to throw them out so that they could run away and forego their wages.
It is possible that the increase in reported offences is due to public awareness on the importance of reporting abusers. Members of the public are more aware of their rights, that is why they go to Police, to local authorities and courts to report sexual offences.
Since SOSPA, 1998 became operational sexual offences are taken seriously by the public, the police and courts. This encourages victims to report incidents of abuse. Second, the simplified procedure of proving rape and allied sexual abuses before the courts and the relaxation of the rules of evidence have encouraged victims to come out with complaints.
However, it is noted that the response in respect of offences like incest is minimal This may be so because the society still treats such cases as family issues that should not spill out of family circles but rather be settled within close family members or mediated within the family. Reporting of incest cases is seen as a taboo or an affront to the entire family. Often incest is associated with weird beliefs such as evil sprits or demons and settlement of incest cases in the family is followed by a cleansing ceremony for the abuser. In the extreme, the abuse may be ostracized from the clan. Some members of the family tend to hide the reporting of such incidences when they occur to their children to avoid shame to the family.
LIMITATIONS TO EFFECTIVE ENFORCEMENT
Inadequate Knowledge of Law by Law Enforcers
The full force of the strict provisions of the law and the stiff penalties are not fully realized. Inadequate knowledge on the part of some Law enforcement officers about how to interprete the provisions properly. Many of the Police officers especially in rural areas are not aware of the provisions of the SOSPA. Quite many have not had the opportunity to lay their hands on copies of the Act. Similarly, magistrates, especially for subordinate courts in the rural areas do not have copies of the statute.
Some members in the subordinate courts simply do not know about the difference between the old legal position and the new.
Conservative Judicial Mentality
There are still concerns that some members of the judiciary are not using the powers properly.[416] Some members of the judiciary still apply the old principles on the interpretation of the law on rape and attempted rape. They insist on corroboration and refuse to convict on the sole evidence of the victim. They require evidence of children and young persons to be corroborated, despite the fact that the law has changed.
RECOMMENDATIONS
The rise in the rate of sexual offences has not abated. People’s attitude and behaviour towards sexual offences is hard to change. What is required is to mount a more aggressive public awareness program that will convince the abusers and the potential victims of the inherent dangers of sexual offences particularly the risk of contracting the deadly HIV aids disease.
In order to fully realize or enhance the national endeavour to protect the rights of women and children to their personal integrity, dignity and liberty, it is high time that the law should unreservedly abolish marriage of children who are below the minimum age of 18 years.
There is need to intensify efforts to assist law enforcement agencies, the women and children and the general public to understand the provisions of the law. Simplified texts of the statute could be produced in Swahili with explanatory notes and these could be made accessible to the law enforcers, women and children through the medium of non-governmental organizations, churches and mosques operating in the communities.
The Constitutionalization of Family Law in Tanzania
Bart Rwezaura* and Ulrike Wanitzek
Associate Professor, Faculty of Law, University of Hong Kong.
Associate Professor (Privatdozentin), Institute of African Studies,
Faculty of Law and Economics, University of Bayreuth, Germany.
Abstract: This Survey focuses on what the authors describe as the constitutionalization of family law in Tanzania. Following the enactment in 1984 of a bill of rights in the Tanzania constitution a number of senior judges have shown remarkable courage and willingness to use the bill of rights and a number of major international human rights treaties and declarations to effect overdue reforms in the various areas of family and succession laws. For example, the prohibition against gender discrimination has been combined with existing provisions in the law of marriage and divorce to protect the property rights of widows and divorced women; and to decide disputes over who has the right to arrange a burial for a deceased spouse. Judges have also extended the principle of best interests of the child to non-marital children thus enabling courts to rule on custody and child-care issues without being constrained by the illegitimate status of the child. The authors argue that the constitutionalization of family law in Tanzania is not an isolated phenomenon but is part of a wider process of political and economic liberalization taking place in the country and affecting other aspects of civil society.
INTRODUCTION[417]
The last Survey on Tanzania focused on the proposed reforms to the Law of Marriage Act 1971 (No 5 of 1971, “LMA”), the integration and reform of the law of succession and the law relating to children.[418] It was noted in that Survey that these proposed reforms had been driven largely by wider concern within Tanzania for gender justice and the rights of children. The Survey also noted that the social movement for such reforms had greatly benefited from the incorporation in 1984 of the Bill of Rights into the Constitution of Tanzania.[419] In the words of Justice Raymond Mwaikasu, then Chairman of the Law Reform Commission, the underlying policy of the new succession law was to “promote unity, equality and justice among our people in accordance with the Universal Declaration of Human Rights and the Bill of Rights, as enshrined under our 1977 Constitution”.[420] It is significant to note that the Law Reform Commission began its work on the reform of the laws of succession, marriage and children more than 18 years ago in January 1987. In July 2004, the Minister of Justice and Constitutional Affairs announced for the third time in Parliament that the recommendations of the Law Reform Commission had now been forwarded to the government for further consideration.[421]
Given this background of protracted delay it is difficult to predict when exactly the proposed reforms will be enacted into law. Nonetheless, and despite the delay, the people of Tanzania have not patiently waited for the formal legislation to bring home the promised “equality and justice”. During the period under review there has been what might be described as a form of individual self-help whereby some litigants, assisted by their legal representatives, have seemingly twisted the arm of the judiciary forcing it to deliver on the promises made by the government. It is this spontaneous social movement that we refer to in this Survey as the trigger for the constitutionalization of family law in Tanzania.
The object of this Survey is to analyze the above process by showing how litigants have used the Tanzania Bill of Rights and the various United Nations Conventions and Declarations to alter the landscape of family and succession laws. In some cases, especially where parties are not legally represented, superior court judges have sought guidance from the Constitution and from international human rights norms without being specifically prompted to do so by litigants.[422] Also to be noted at the outset is that in many cases the litigation has not taken the form of a direct challenge of existing general statutory provisions.[423] Rather, the attack has focused on the provisions and practices of certain African customary laws and religious laws.[424] In this sense the reform process which has been initiated through the courts, albeit piecemeal and unstructured, ought to be seen as ultimately leading to the integration of the various systems of personal laws within the national legal system.
This Survey is divided into five parts including this introduction. The second part examines cases in which married women and widows have sought the assistance of courts in their effort to protect their property rights. Their efforts can be divided into two main categories. The first relates to cases involving division of matrimonial assets on divorce and judicial separation.[425] The second category concerns cases where a widow seeks a share from the estate of her deceased husband, sometimes in competition with her late husband’s lineage, her own children or the former co-wives and their children.
The third part of this Survey examines a somewhat novel topic in Tanzania relating to disputes over the right to bury one’s deceased spouse. The relevance of burial disputes to our theme is that they highlight the problem that certain African customary laws and religious practices exclude a widow from determining the place of burial of her deceased husband. Indirectly, the disputes also underline a wider conflict between the ethos of the lineage and extended family, on the one hand, and the emerging ideas based on individualistic values of the nuclear family and the rights of married women, on the other.
The fourth part of this Survey relates to issues of children and children’s rights. Of particular importance is the problem of status of children born out of wedlock and their right not to be discriminated against. To some extent this problem arises from the delayed reform of child law to eliminate the distinction between children born in wedlock and non-marital children including the children of cohabitants. Custody decisions also appear to underline the values of the nuclear family at the expense of the extended family.
This Survey is concluded, in the fifth part, by noting that although it is widely agreed that court decisions are rarely a true reflection of the major social processes in a given society, there is a sense in which the cases discussed in this Survey reflect wider social reality and political trends in Tanzania. These cases demonstrate a persistent demand for gender justice not only in the family law field but also in other spheres of Tanzanian society. They also highlight the political direction towards which the country is moving. These changes involve a movement away from a one-party system underpinned by a poorly managed socialist economy with minimal concern for individual rights to an emerging multi-party system. The latter system seeks to rely on the ethos of liberalism and the market economy. Indeed the recent reforms in the land tenure system,[426] the establishment, for the first time, of the Commission for Human Rights and Good Governance[427] and a separate Commercial Division and Land Division of the High Court[428] demonstrate Tanzania’s genuine aspiration towards political liberalism and the market economy. It is in this context that we must place the growing willingness of the senior members of the judiciary to support individual family members’ rights and liberties.
PROTECTING THE PROPERTY RIGHTS OF DIVORCED WIVES AND WIDOWS
During the period under review courts have decided several cases which, for convenience, are discussed under the sub-title of judicial protection of the property rights of divorced wives and widows. There are three features common to these cases. The first feature is that although all levels of courts in Tanzania are bound to apply the same law in relation to division of matrimonial assets on divorce or separation, there is a significant difference between the approach taken by the lower courts and that taken by the High Court and Court of Appeal.[429] Such difference of approach is more noticeable in probate and administration cases where rules as to choice of law are somewhat uncertain and therefore providing room for dispute and manipulation by litigants.[430]
The second feature is that the majority of appellants in these cases are women who are aggrieved by the orders of the lower courts on division of matrimonial assets.[431] In probate and administration cases widows’ grievances relate to the appointment of the administrator of the deceased’s intestate estate.[432] The most frequent grievance relates to widows who are unhappy about their exclusion from a share of their deceased husband’s estate.[433] The third and final feature, and this is clearly a new trend, is the way in which the High Court and the Court of Appeal have consistently relied on the Tanzania Bill of Rights as well as on international human rights instruments and the general human rights norms to support their decisions.[434] As the cases below show, there is an emerging jurisprudence in the superior courts of Tanzania which is described in this Survey as the constitutionalization of Tanzania family law.
Division of Property on Marriage Breakdown
The High Court decision in Mwajuma Mohamed Njopeka v Juma Said Mkorogoro[435] (“Mwajuma”) contains all the three elements noted above. The parties married in 1989 in accordance with Islamic rites. The couple lived together until 1998 when the husband, Juma Mkorogoro, purported to divorce his wife by issuing her the Islamic talaq. The wife in turn applied for judicial divorce at a local primary court and further claimed division of matrimonial assets consisting of the couple’s two houses. The parties had no children. The Primary Court granted divorce and ordered the husband to pay the petitioner Tshs 500,000.[436] The wife appealed to the District Court stating that the award of Tshs 500,000 was inadequate as it did not reflect her contribution during the nine years of marriage.
When the District Court dismissed the wife’s appeal (on account of insufficient grounds), she appealed again to the High Court. In a well reasoned judgement, the appellate judge, Kimaro J, upheld the decree of divorce granted by the lower court, set aside the orders of the two lower courts awarding the wife Tshs 500,000, and further held that the wife was entitled to one of the two houses being her share of the matrimonial assets. The husband was allowed to keep the other house. Both parties appeared in person throughout the entire litigation.
What marks this case out from previous cases on division of family assets is the way the appellate judge used the Tanzania Bill of Rights as well as international human rights norms to decide this appeal. The judge first outlined the legal principles which she deemed to be applicable. She cited article 13 (1) of the Tanzania Constitution of 1977 (as amended)[437] which provides for equality before the law and equal protection of the law. Next the judge referred to the fundamental objectives and directive principles of state policy contained in Part II of the Tanzania Constitution. In particular, the judge cited article 9 (f) which requires “state authority and all its agencies … to direct their policies and programmes towards ensuring that human dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights”.[438]
Finally the appellate judge cited the United Nations Convention on the Elimination of All Forms of Discrimination Against Women[439] (“CEDAW”) which Tanzania ratified on 17th July 1980 and stressed in particular the provisions of article 2 which require states parties to “condemn discrimination against women in all its forms [and] to pursue by all appropriate means and without delay a policy of eliminating discrimination against women ...”. Article 2 (a) CEDAW requires states parties to “embody the principle of equality of men and women in their national constitutions or other appropriate legislation … and to ensure, through law and other appropriate means, the practical realization of this principle”.
Having built up such an awesome arsenal of applicable law, the appellate judge proceeded to apply it to the case. She reasoned that the decisions of the two lower courts contravened the appellant’s right to the equal protection of the law. According to section 114 LMA the court, when granting divorce or judicial separation, has power “to order the division between the parties of any assets acquired by them during the marriage by their joint efforts.” In 1983 the Tanzania Court of Appeal held that domestic services, including child care, constituted a contribution towards the acquisition of matrimonial assets within the meaning of section 114 LMA.[440] In the instant case, the appellate judge held that the lower courts had failed to properly apply section 114 LMA because they allowed the former husband to keep the two houses acquired during the subsistence of the marriage. They had thus not given due weight to the contribution of the appellant for nine years and this had resulted in leaving the appellant without shelter. Moreover, according to the appellate judge the lower courts’ decision was discriminatory and in contravention of article 13 (1) of the Tanzania Constitution. It did not “put into consideration the right to equal protection [of] and [equality] before the law”.
In her conclusion Kimaro J reminded the lower courts to always abide by their judicial oath which requires them to “protect the Constitution and to do justice without fear or favour”. The implication of this timely admonition from the High Court is that judicial officers at all levels of courts are expected to be guided by the state Constitution as well as the spirit of international human rights norms, where applicable, even if parties or their legal representatives do not specifically plead or seek to rely on those provisions. Similar judicial thinking is evident in claims by widows to a share of their late husband’s estate. It is to these cases that this Survey will now turn.
Protection of Widows’ Property Rights
The death of a husband in many communities in Tanzania triggers what has become known in sub-Saharan Africa as ‘property grabbing’ committed mostly by the relatives of the deceased husband.[441] Whether such ‘grabbing’ takes the literal form or is launched through the clan leadership, it will invariably lead to the widow (and sometimes her minor children) losing her property to some clan members. This is the context in which widows are driven to the courts to seek redress.
The common features to these court disputes include the lack of a testament to speak after the husband’s death. The absence of a will often leads to disputes as to the law applicable. The deceased man’s clan members tend to prefer the application of customary law of succession which is more favourable to them.[442] Where the deceased is a Muslim, similar disputes will emerge, with some relatives seeking the application of customary law while others, Islamic law.[443] And where the deceased is a Christian who has worked and resided outside his home village and possibly married from outside his ethnic group, there will be a dispute as to whether customary law or the general law of succession applies to the administration of his intestate estate.[444] Where the widow was not formally married to the deceased, the deceased’s relatives will challenge her married status including the status of her children born in that relationship.[445]
It has been noted above that Tanzanian law of succession is widely acknowledged to be pluralistic, complex and highly unsatisfactory. It is also out of date compared to the law of marriage and divorce which was reformed in 1971. This situation has led judges to improvise by applying the principles of property division on divorce to intestate succession, arguing that it was “inequitable to dispossess a widow of almost all her husband’s property, which the spouses obtained through their joint efforts, simply because the marriage had ended as a result of the husband’s death instead of divorce”.[446] That sense of injustice felt by some judges has now found a robust remedy in the form of the Bill of Rights and international human rights norms. It is within the above context that the following cases must be located.
In the Matter of the late Rabiuzima Matiro Mboro and in the Matter of an Application for Letters of Administration by Adeline Rabiuzima[447] (“Rabiuzima”) the widow applied to the High Court, seeking to be appointed the administrator of her deceased husband’s intestate estate. Her application was opposed by the deceased husband’s brother on the ground that he was the one appointed by the clan to act as the administrator.[448] The clan had previously decided to disinherit the widow and her two sons on the erroneous ground that they had murdered the deceased. One of the issues before the High Court was whether the clan had acted lawfully in disinheriting the deceased’s widow and her two sons. Justice Mchome held that the clan’s decision to disinherit the widow was illegal because it was made in her absence. According to Mchome J, the clan’s decision, which condemned the widow unheard, had contravened the rules of natural justice and could not stand. The judge further held that the clan had also acted illegally in purporting to disinherit the widow and her two sons basing on the erroneous ground that they had murdered the deceased husband. The judge noted that the sons had been acquitted and their mother, the widow, had never been charged with the murder of her husband. In his final judgement Justice Mchome held that the widow, rather than the deceased husband’s brother, was the person entitled to be appointed administrator. The judge also held that both the widow and her two sons were entitled to inherit from the deceased’s estate, adding that the widow was in fact “a co-owner of the matrimonial property which is the deceased’s estate”.[449]
Justice Mchome’s final observation is very significant because it establishes a principle that prima facie the widow has separate and independent ownership rights or entitlement in her husband’s estate which do not depend on the provisions of the deceased’s will nor on the good will of the deceased husband’s clan.
The principle that a widow has separate and independent property rights in the estate of the deceased husband was endorsed and further elaborated upon by another High Court judge in Elizabeth Mtawa v Hassan Mfaume Risasi[450] (“Elizabeth Mtawa”). In this case the appellant, a widow, appealed against the decision of the District Court which set aside the trial Primary Court’s order permitting her to continue to reside in the matrimonial home, until her death or remarriage, as provided in rule 77 (3) of the Local Customary Law (Declaration) Order (GN No 279/1963). Upon reviewing the provisions of rule 77,[451] Justice Kileo noted that rule 77 (3) and 77 (4) did not provide for the “possibility of a married woman asserting ownership rights over real property [as] she is given only usufruct rights”. This, according to the judge, discriminated against the woman on the basis of her sex and thus contravened articles 2 and 17 of the Universal Declaration of Human Rights[452] and the Tanzania Constitution.[453] It was also contrary to section 3 (2) of the Land Act 1999 which provides that every woman has legal capacity to acquire, hold, use and deal with land to the same extent and subject to the same restrictions as any man.[454]
The appellate judge then noted that “women contribute a lot to matrimonial assets though their contribution most often is not easily ascertainable in monetary terms.”[455] But according to the landmark case of Bi Hawa Mohamed v Ally Sefu,[456] such non-monetary contributions have been held by the Court of Appeal, in the context of divorce, to amount to contribution to the welfare of the family thus entitling a wife to a share in the matrimonial assets on divorce. Relying on the above case Justice Kileo reasoned that although Bi Hawa concerned division of matrimonial assets on divorce, the principle in that case is also relevant “when considering distribution of a deceased’s estate where he is survived by a widow”. [457] According to the appellate judge, it was unjust for a rule of customary law to make provisions that the widow was entitled only to a specific portion of the property in the estate for each year of marriage “without first ascertaining her contribution and setting it aside because obviously her contribution cannot be said to form part of the estate of her deceased husband”.[458] Stressing the same point the judge concluded that it was wrong to mix the widow’s contribution “with the estate because by so doing it amounts to saying that she has no right to own property alone”.[459]
Basing on the above two cases it is clear that judges have raised the legal status of the widow beyond anything customary law would have contemplated. Now the widow has a higher claim in her late husband’s intestate estate than the clan members. She now owns part of the estate which must be ascertained first and set aside before the distribution of the deceased’s estate can begin.[460] Elizabeth Mtawa is also important in that it struck down the entire rule 77 of GN 279 as being discriminatory on the ground that it treats a man and woman differently prescribing and limiting the property rights of a widow but not that of the widower. Rule 77 was also judged as contravening the widow’s right to privacy, home and family life under article 16 (1) of the Constitution of Tanzania.[461] According to Justice Kimaro, rule 77 requires the widow to stay unmarried and not cohabit with any man as a condition for continuing to reside in the matrimonial home. Finally, the appellate judge made orders that Elizabeth was entitled to a half share of the disputed matrimonial home “by virtue of her contribution to the welfare of the family”. That half share was not subject to distribution and Elizabeth had the “right to do with her share as she please[d].”[462] The judge granted the other half to the children of the deceased.
In concluding this section it is essential to stress that disputes between widows like Elizabeth and her deceased husband’s clan over inheritance reflect a deeper and more enduring conflict between, on the one hand, ideas of kinship and patriarchal power encapsulated in some provisions of customary law such as rule 77. On the other hand, there are emerging values expressed in concepts such as the nuclear family and ideas about individual autonomy which see the Tanzania Bill of Rights and international human rights norms as a source of support and political legitimacy. This wider theme is also expressed in the burial cases to which this Survey now turns.
WHO IS TO BURY THE DEAD: NEW SITE FOR OLD CONFLICT?
On 29 December 1986, nine days after the death of her husband, a Kenyan widow, Virginia Edith Wambui Otieno, supported by her two adult sons, went to court to demand her right to determine where to bury the remains of her deceased husband. Virginia was a member of the politically powerful Kikuyu ethnic group while her late husband, a prominent legal practitioner in Nairobi, was from the equally powerful Luo ethnic group. The application was strongly opposed by the deceased’s clan which demanded the right to bury Otieno’s remains in his home village alongside his ancestors. The High Court held that both the widow and the Luo clan had a right to bury the remains of Otieno and further ordered that the body be buried in the village of Otieno’s ancestry. Virginia’s appeal to the Court of Appeal was dismissed on 15th May 1987, nearly six months after Otieno’s death.[463]
It will be recalled that Otieno sparked off several political controversies within the Kenyan society and beyond.[464] Some observers argued that the case represented a clash between two famous ethnic groups.[465] Others believed the real clash was between tradition and change, with change represented by the English common law and tradition by African customary law.[466] Still others considered Otieno to have provided an excuse for ventilating the women’s rights issues.[467] In this section three cases from Tanzania are discussed. It must be noted at the outset that despite their lack of Otieno’s dramatic grip, they also raise similar legal issues and are driven by comparable social forces.
Marandu
The case of Cecilia Dismas Marandu; Thomas Sawaki Marandu (Chairman, Marandu Clan) v Lucresia Donasian Marandu[468] (“Marandu”) is to some extent the Tanzania’s Otieno.[469] However, unlike Otieno, the Marandu decision was decided by a lower court and took shorter to decide.[470] Furthermore, the trial court in Marandu rejected the reasoning in Otieno on the ground that society had moved on since Otieno and it was no longer the case that “a woman should sit by and wait for men to decide on what to do with her husband’s body”.[471]
The main question in Marandu was who of the two disputing parties had a right to bury the remains of Donasian Dismas Marandu who died on 19th July 2003. The widow Lucresia, supported by her children, wanted her husband’s remains to be buried at Katanini Karanga near Moshi town where the family had settled. The Marandu clan, supported by the deceased’s mother, Cecilia Marandu, argued the opposite case that the only burial place for the deceased had to be his ancestral home at Keryo village in Rombo District, Kilimanjaro.
The case for the clan can be summed up as primarily grounded on the patrilineal customs and traditions of the Marandu clan supported by a mild form of ancestor worship. As the magistrate noted in her judgement, the case for the Marandu clan was mounted on three pillars, namely, that (i) the deceased was the heir to the ancestral land; (ii) his umbilical cord was buried at the ancestral land; (iii) he was still a traditional Marandu; and therefore, it was mandatory under the deceased’s ‘tribal’ customs for his remains to be buried at his ancestral home “where his grave shall also be a shrine for his mother Cecilia”.[472]
The case for the widow began by challenging the clan’s assertion that the deceased was still a traditional Marandu. She stated that the deceased was a Catholic who had broken away from traditional beliefs, customs and norms. Then she argued that the deceased was not the first male child of the family.[473] And even if he was obliged to have his remains buried there by reason of inheriting the ancestral land, the deceased had a right to change his mind which he had exercised during his lifetime by expressing the wish to be buried at Katanini. The widow informed the court that before her father-in-law died, he had instructed that her husband should change his permanent place of abode and stay permanently at Katanini. As the magistrate noted, Lucresia’s case was “that she wants to bury her husband at Katanini in fulfilment of his expressed wish and in fulfilment of her father-in-law’s instruction”.[474]
Having heard the parties the magistrate framed the issues for decision and proceeded as follows. First, the court considered whether the deceased had a right to decide where his remains should be buried upon his death and held that he had such right. The question whether the deceased had expressed the wish to have his remains buried in a place other than his ancestral home was answered by the court in the affirmative. The court held that the deceased had communicated that wish to his family and overruled the submission by counsel for the clan that the testimony of the widow and her daughter required to be corroborated. The magistrate noted that there was “no justification for subjecting to external test matters which a man decides to tell his wife and children in exclusion of his brothers”.[475]
Next the court considered whether the deceased was still bound by the local customary law of his clan and held that he was not. The resident magistrate rejected the submission by counsel that the court should follow Otieno where it was held that the deceased’s remains should be buried in his ancestral home on the ground that he had not abandoned his traditions despite having worked and lived in Nairobi. The court preferred the submission of counsel for the widow to the effect that the deceased’s belief as a Catholic was such that it left no room for other beliefs. The magistrate agreed that there was sufficient evidence to show that the deceased “had gone so deep into Christianity that he was considering himself capable of healing the sick through prayers”.[476]
The final issue, and arguably the more interesting, was whether or not the local customary law of the Marandu clan concerning burial was discriminatory and therefore in breach of the Constitution of Tanzania including major international human rights treaties to which Tanzania was a party. Counsel for the clan argued that according to Keryo’s customs “it was unthinkable for a woman to arrange burials [or] make decisions regarding where to bury” and therefore again urged the court to follow Otieno.
Counsel for the widow responded with an impressive array of authorities beginning with article 13 (4) of the Constitution of Tanzania which prohibits discrimination on the ground of sex.[477] He followed this up with reference to article 7 of the Universal Declaration of Human Rights;[478] article 26 of the International Covenant on Civil and Political Rights;[479] article 2 CEDAW;[480] and section 68 LMA.[481] He also cited three decisions of the High Court in which it has been held that discrimination based on sex was prohibited by the Constitution of Tanzania and major international human rights treaties and instruments.[482]
After commending counsel for his “research and able submissions” the magistrate considered the above authorities and their relevance to the issue of discrimination on the ground of sex. She proceeded to dismiss the application by the Marandu clan holding that it was “based on principles which are forbidden by the law” and could not be granted.[483] That ruling effectively cleared the way for Lucresia and her children to arrange the burial of her deceased husband at their home in Katanini. Before concluding this part, two more cases are discussed. In the first case the magistrate decided to follow Otieno. In the second it was the surving husband rather than the widow who claimed the right to bury the remains of his deceased wife.
Ayugi and Nevele
In Joseph Odungo Elijah Ayugi, Samson Nondo and Peter Lanya v Esterziah Ayugi[484] (“Ayugi”) three relatives of the late Elijah Yongo Ayugi applied to the court of the resident magistrate seeking a declaratory order that the applicants have an overriding right to bury the deceased in his home village of Buturi in Tarime District, Mara Region. The widow, Esterziah Ayugi, and her four children opposed the application. They urged the court to allow them to bury the remains of the deceased at his new home in Dar es Salaam, in accordance with Christian rites. Having decided that the Magistrate’s Court had jurisdiction to hear the dispute,[485] the court held in favour of the Ayugi clan and ordered that the body of the deceased be handed over to the applicants “to be taken for burial at his home village”. The court noted that the deceased had left no will instructing his family as to where he should be interred after his demise. Furthermore, no one, not even the wife, had informed the court as to where the deceased wanted to be buried. In the circumstances, the court opted to follow Otieno which decision the magistrate found to be persuasive.
A notable aspect of this case is that although its facts are comparable to the facts in Marandu, and the parties in this case were also legally represented, one does not see much vigour and enthusiasm in the manner the case was argued. One possible reason for this low key approach is that the respondent widow was still ill and remained in hospital recovering from injuries suffered in the same motor accident that had claimed her husband’s life. Moreover, the four children who supported their mother remained in the USA were they were studying.
In contrast to Ayugi above is the case of Anjelina Samira, Beatus Nevele and John Samila v Abdul Salum and Director of Muhimbili Medical Centre[486] (“Nevele”) which, coincidentally, was also decided by the same Dar es Salaam Resident Magistrate’s Court by a different magistrate. The mother of the deceased and two paternal uncles of the deceased acted as plaintiffs. The defendants were Abdul Salum, the deceased’s husband, and the Director of Muhimbili Medical Centre, where the deceased’s body was preserved after her death on 29 November 2003 at 32 years of age. All the parties were legally represented.
Four main issues were identified for decision as follows: (i) whether the deceased, Stella Modestus Nevele alias Mariam Modestus Nevele, had converted from Christianity to Islam; (ii) whether the change of religion had the effect of alienating the deceased from her paternal relatives; (iii) whether the deceased contracted a valid marriage with the first defendant, Abdul Salum; and finally (iv) whether by reason of the deceased’s marriage, the plaintiffs had lost their right to bury the deceased’s body.
The court considered each of the four issues and held first that there was sufficient evidence that the deceased had converted from Christianity to Islam on 15 November 2001. The court noted that the deceased being an adult of sound mind had a constitutional right to change her religion without the consent of her parents or guardians.[487] The magistrate referred to article 19 (1) of the Constitution of Tanzania which guarantees freedom of thought including the right to change one’s religion and concluded that the deceased had correctly exercised her constitutional right.[488]
The court then considered the second issue and concluded that there was insufficient evidence to show that the change of religion had alienated the deceased from her kinship group. As for the third question concerning the validity of the deceased’s marriage to the defendant Abdul Salum, the court considered this issue at length and held that a valid marriage had been contracted in accordance with section 25 (3) (a) LMA. This provision recognises marriages in accordance with Islamic rites.[489] The court also held in relation to the final issue that the marriage of the deceased had not taken away the right of the deceased’s relatives to bury her body in the event of her death. However, according to the magistrate, since the deceased had converted to Islam, it was proper that her remains be buried in accordance with Islamic rites and further that since the deceased had married a Moslem in accordance with Islamic rites, her husband’s right to bury the deceased took priority over that of the plaintiffs. The court entered judgement in favour of the defendants with costs.
The significance of Nevele is that it stresses that an adult, irrespective of gender, has a constitutional right to change one’s religion without the intervention of the kinship group or wider family.[490] Nevele is also interesting because the decision as to who has the right to bury the deceased and what funeral rites were to be followed was derived not from the deceased’s wishes or lack of them, but from the Holy Koran which, according to the court, provides that a man is responsible to protect and guard a woman including conducting a proper burial when she dies.[491] Thus Nevele differs from Marandu and Ayugi which respectively relied on the deceased’s express wishes and the absence of such wishes. It should be noted that a submission in Ayugi that the deceased’s remains should be buried in Dar es Salaam in accordance with Seventh Day Adventist rites was not accepted by the court.
At another level all the three burial cases have a number of similarities. They all reveal what some might view as a conflict between tradition and change. In all the three cases the deceased lived and worked in the urban centre while also maintaining a home in his respective village of origin. The rural relatives founded their claims on tradition and customs while the deceased’s urban based family argued for the deceased’s right to choose where he wanted to be buried except in Nevele. In all the three cases there were arguments tending to show that the deceased had abandoned tradition in favour of modernity or a new religion. In Marandu and Nevele there was great reliance on individual liberty, and ideas consistent with the nuclear family. Indeed in Marandu the magistrate noted that she understood “the feeling of senior citizens … and their fear [of] change.”[492] Quoting from an earlier decision where Samatta J (now Chief Justice) quoted Lord Denning, the magistrate stressed the point that “[i]f we never do anything which has never been done before, we shall never get anywhere.”[493]
As this Survey has shown many litigants have indeed succeeded in doing what they have never done before. This is true not only in relation to claims by married women to a fair share of the matrimonial assets on divorce or separation, their rights as widows to a separate interest in the estate of their deceased husbands, but also, and ultimately, their right to decide where to bury the remains of their husbands. The fourth section of this Survey draws from the above theme to show that new ideas such as equality between children and the concept of best interest of the child have been relied upon either to override existing personal laws (including religious laws) which make contrary provisions or to make up for any gaps where the law has not marched with the changing times. The need to fill in the gaps, as noted above, arises largely because of the delay in the harmonization and reform of the law relating to children.
BEST INTERESTS AND EQUAL PROTECTION OF THE LAW
We discuss in this part two types of cases in which judges have applied the principle of best interests of the child to achieve two main objectives. In the first group of cases judges have extended the best interests principle to disputes over child custody to children born out of wedlock.[494] In this way, judges have extended equal protection of the law to all children notwithstanding contrary legal provisions which draw a clear distinction between marital and non-marital children.[495] In the second group of cases, the best interest principle has been applied to underline the policy that parental responsibilities may not be delegated to other relatives except under exceptional circumstances.[496] Here again these cases seem to support the ideals of the nuclear family by stressing that the obligation to care for children is placed primarily upon the child’s parents.
The Principle of Non-Discrimination
The law relating to children draws a distinction between children born during wedlock and children born to unmarried parents.[497] One of the effects of the present law is that a father of a child born out of wedlock is free of any legal obligation to maintain his child unless ordered to do so by a court of law under section 5 of the Affiliation Ordinance. This statute, which dates back to the British colonial era, remains in force. Moreover even where the child’s parents subsequently marry one another, their marriage does not change the illegitimate status of their child.[498] The law relating to the status of the child has also not been unified such that Islamic law and various customary laws still apply.
The case of Latifa Lukio Mashayo v Bushiri Hassan[499] (“Latifa”) is an example of the poor state of the law and how judges try their best to mitigate its negative effect. In this case the couple contracted an Islamic marriage in May 1992. They had previously cohabited and had a daughter before marriage in May 1991. In March 2002 the wife petitioned for divorce including orders for custody and maintenance for their only child. The resident magistrate granted divorce and custody in favour of the mother but refused to order maintenance in favour of the child on the ground that under Islamic law the father had no obligation to maintain a child who was born out of wedlock.
The mother successfully appealed to the High Court where the appellate judge held that it was not proper for the lower court to apply Islamic law in respect of a matter which is supposed to be governed by the LMA. According to Shangwa J section 129 LMA imposed a duty upon the father to maintain his child “whether such child is legitimate or illegitimate [and] even if such child is not under his custody.”[500]
The decision in Hamisi Shabani v Amina Mohamed [501] (“Hamisi”) concerns an unmarried mother of twins who sued the children’s father for their custody and maintenance. The said twins who were about seven years old were residing with their father at the time. The resident magistrate granted custody to the mother and ordered the father to pay maintenance for the two children. The father appealed to the High Court where Chipeta J set aside the lower court’s decision, holding that the father was a much better suited person to have custody of the two children. In making this order the judge did not follow the rule that a mother has a right to the custody of a non-marital child.[502]
The two cases demonstrate a practice observed in Tanzania over a decade ago when it was reported that judges were applying the principle of best interest of the child contained in section 125 LMA[503] to all children irrespective of whether they were born in or out of wedlock.[504] At the time it was greatly anticipated that the reforms in the law relating to the child would make such judicial improvisations unnecessary. But with further delay of the said reforms this practice is likely to continue for some years.
Parents Have Primary Responsibility for Children
The principle that parents have primary responsibility for the care and upbringing of their children is contained in section 125 LMA. Only in exceptional circumstances may a person other than a parent be entrusted with the custody of a child. Although this principle is widely accepted in most western jurisdictions its application in practice can lead to serious difficulties especially to mothers whose economic status is weaker than that of their husbands.
The case of Rosemary Mabagala v Robert Mabagala and Batuli Yusuf Tupa[505](“Mabagala”) is a recent example of how this principle is applied. In the course of their divorce proceedings at the High Court in Dar es Salaam, the husband filed a chamber summons under a certificate of urgency applying for an interim custody order in respect of two children of the marriage. At the time of the application the two daughters were respectively 7.5 and 8.5 years old, enrolled at a primary school in Dodoma, central Tanzania, and living with their maternal grandparents.
The father informed the court that his wife had left the matrimonial home with the children in April 1998 without his permission, and that she had subsequently “abandoned the children at her parents’ residence at Dodoma without his consent and came to live … in Dar es Salaam where she is working.”[506] The father wished to have the children back as he was now making arrangement for them to join what he described as one of the best primary schools in the country.[507] He pointed out that he had also recently installed at home modern facilities for the children’s education including two training computers and various books.
The wife, who was also legally represented, strongly opposed the chamber summons on the ground that she had left the matrimonial home with the two children because she was frequently assaulted and abused by her husband. She informed the court that the children were well looked after by her parents, adding that her father was a retired High Court judge who understood the importance of education for his grandchildren. She produced the children’s academic records showing that both children had scored an average of 90% in their 1999 school assessment. The wife also stated that her husband being a university professor did travel widely attending seminars, workshops and doing research outside his home. That consequently he would not be able personally to look after the children. The wife further informed the court that her husband was currently living with another woman who had moved into the former matrimonial home with her three children by an earlier marriage. She pointed out that if the husband was granted custody there would be a total of five children in the household and she feared her two children would not be properly looked after by their step-mother. Finally, the mother stated that she had now secured a suitable house in Dar es Salaam where she could live with the two children provided that her husband maintained them.
After considering the above submissions the trial judge dismissed the mother’s objection and held in favour of the children’s father. The judge considered the strong economic position of the father, his academic achievements, and the arrangements he had made for the children’s education. He contrasted this with the lack of suitable accommodation by the mother which the judge believed was the main reason why the mother preferred the children to stay with their grandparents. The judge noted that “one can be short-sighted in seeing the two children happily playing with their grandparents, but that is a very temporary life. Their good future is to be built today.”[508] It is clear from the entire judgement that the judge based his decision on section 125 LMA which provides that a court may grant custody to a person other than the parent “where there are exceptional circumstances making it undesirable that the infant be entrusted to either parent”. Having referred to the above provisions, the trial judge concluded, noting that while the mother had entrusted the children with their maternal grandparents, the father of the infants was “able and not only willing to take the children, but has urgently applied for their education … where he lives and works”.[509]
Although in the end the judge’s order was stayed by another High Court judge[510] upon the mother’s application, the principle underlying the judge’s decision appears to strike hard at the old African custom where certain grandparents are viewed at least as equally competent to act as guardians of their grandchildren.[511] The decision also exposes the vulnerability of mothers whose economic standing is often weaker than that of their husbands. Mothers stand to lose custody of their children if they decide to return to the job market when their marriage has broken down. Moreover, the law relating to spousal maintenance is not friendly to former wives[512] while orders for child maintenance are rarely ever sufficient to maintain a child to an adequate standard.[513]
CONCLUSION
This Survey has concentrated on the decisions of superior courts[514] and shown how judges have played a significant role in the transformation of Tanzanian family law during the last five years. This change, which remains incomplete, has taken place during the protracted delay in the enactment of a unified law of succession and the reform of the law relating to children. At the same time wider changes in the political and social structures of Tanzania have given birth to a market-oriented economy and an emerging liberal political system underpinned by the Bill of Rights. The shift towards political liberalism, albeit remaining incomplete and fragile, has created ideal conditions and a willingness on the part of the senior members of the judiciary to deliver on the promises contained in the state Constitution and in a number of international human rights treaties to which Tanzania is a signatory. In their effort to mitigate some of the more obvious shortcomings in the existing law, certain judges have also extended existing statutory provisions to cover new situations. For example, the principle governing distribution of matrimonial assets on separation or divorce has been extended to cases of intestate succession thus enabling the courts to provide economic protection to widows. Furthermore, the principle of best interests of the child has been widened to cover non-marital children.
More generally, courts deserve credit for having done more than merely delivering justice between individual litigants. They have also in the process taken part in the larger project of integration of the various systems of customary laws and religious laws into the national legal system. In this connection, some analysts might think that judges have pre-empted the long awaited formal process of reform and integration; and, furthermore, that judicial law reform is nonetheless unsystematic and not comprehensive. Indeed, others might view the constitutionalization of family and succession laws as an even more radical programme of reform than what the government had previously intended. This is true to some extent because some of the reforms proposed by the government would not pass the constitutional test if they were subsequently challenged in court.
The implication of this assertion could be far reaching for the government. Perhaps there is a case, after all, for further reconsideration of the delayed reforms by the government. Paradoxically, what we may have viewed initially as a negative outcome of a delayed process of reform has emerged looking like a positive consequence of the delay. Thus the optimist among us could conclude this Survey by predicting yet a longer period of delayed reforms but this time for good reasons and hopefully, at the end of the day, for a better product.
Widow Inheritance, The Law and Modernity In Tanzania: A Critique
Abdulrahman O.J. Kaniki
Research Unit, Tanzania Police Headquarter and
Part-Time Lecturer at the Faculty of Law
The Open University of Tanzania
Abstract: Widow inheritance has been in practice for so long not only herein Tanzania but also in other parts of Africa. Traditionally it has been a long rooted customary rite that in the past male members of the deceased’s clan had assumed an automatic right to inherit the widow. As such the widow had no bigger say to decide otherwise. In the old days the practice had been very much useful and significant with respect to bring support and protection socio-economically to the deceased’s estate. However, with some tremendous changes the country has experienced so far, it is doubted whether this customary rite is still useful hence be carried out. Above all, with an HIV/AIDS scourge which cuts across all sections of the population and that parties to the marriages have never been spared, many wonder whether the practice should still be there to stay. But what are factors which lead to wife inheritance? Does the law allow widow inheritance? Is it true that without being inherited a widow cannot look after herself and her children of the marriage? These and other pertinent issues are critically discussed in this work.
INTRODUCTION
Widow inheritance is not a strange phenomenon in our traditional societies herein Tanzania[515]. That is so because under customary law of most of tribes particularly in East Africa and the rest of Africa in general, the death of a husband does not automatically terminate a marriage. In Kenya for example, it is submitted that:
“...Traditionally, the widow could not remarry an outsider, and if she cohabited with such a person, no matter how long after the death of her husband, any children resulting from such a union were regarded as the children of her deceased husband or his family” [516]
The impression one gets here is that when a husband dies his wife, now a widow has to be taken over by one of his clan relatives.
According to Gabriel Nyambu the scenario which was obtaining up to the 1960s when widow inheritance practice was very strongly adhered to in most of traditional African societies gave no room for widowing period for a woman who had lost her husband. He argues that:
“Until very recently there was no widowing period in the African society. When the husband died the wife of the deceased was taken over by a brother, nephew or a near relative of the deceased as soon as the funeral ceremony was over. In some cases the funeral ceremony was preceded by the ‘taking-over’ ceremony. In other words, the deceased’s wife remained a widow, so to speak, for less than twenty-four hours.” [517]
Nyambu goes on to explain that:
“Although the ‘taking-over’ of the deceased’s wife was a spontaneous and an automatic process, there were, however, a few things that needed sorting out and tidying up to the satisfaction of the clan before the appointment of the second husband was formally announced.
One thing the elders and particularly the husband-to-be wanted to be certain about whether the deceased’s wife was in any way connected with the death of her husband. She was hurriedly exposed to what might be called a clan’s impromptu ‘press conference’ to answer a barrage of awkward questions. She was also brought to the task of proving herself innocent and worthy of another husband in the same clan.
Sunk in sorrow and grief over her dear husband’s death, the twelve-hour widow was given little or no time at all to mourn or settle down….” [518]
That was the real situation in those past days as exhibited above by Nyambu. It appears that widow inheritance was a customary rite to be practised such that chances for a widow to decide otherwise were so mean.
There is no doubt that things to some extent have changed, in that, as we shall demonstrate in the course of discussion, before a widow is to be inherited her consent is sought. And as a matter of fact, this customary rite, despite being practised in various areas, has in modern world outlived its usefulness. That is so because the society is going on transforming. It is never static. It has been submitted that:
“…the practice of the people is changing very rapidly in many fields such as land tenure, succession, marriage and divorce. The customary law….tends to keep pace with the changes in practice….” [519]
Despite the changes which are occurring in the society however, widow inheritance is still practised in various areas and by various people. It has not been abolished. The law, as we shall see in the course of discussion, still blesses it.
FACTORS LEADING TO WIDOW INHERITANCE
It is so far apparent that as a customary rite, widow inheritance refers to the fact that when a husband dies his wife marries one of his relatives or brothers. As noted above, it is a customary practice widely carried out not only in many societies herein Tanzania, but also in some other countries in Africa such as our neighbours in Kenya and Uganda. But why there should be widow inheritance? There are several factors favouring the existence of this customary rite. Among them, the following may be considered.
It is considered that a woman is incapable of maintaining and supporting herself. And thus as such, she is expected to get support from a man. The matter is worthy calling when she has children of the marriage. That being the case therefore, when her husband dies, it is well settled custom in a traditional society that she has to marry one of the relatives or brothers of her late husband. For such a relative or brother would take all responsibilities, in a full capacity as a husband, to look after not only the widow but also the children left by the deceased. [520] In fact the moment she is inherited by such a relative or brother she becomes his legal wife and the children left by the deceased as well legal children of him. He becomes their legal father. [521] Therefore the fact that the widow is inherited she is assured of continued socio-economic protection and security which she had been enjoying from her husband who is now deceased. To what extent the same are really realisable in the true meanings of the word that is another thing altogether; and is open to discussion.
The second factor is that some people perceive marriage as a transfer of labour power and genetricial right from the clan of the wife to that of the husband. The same is completed through payment of bridewealth by clan of the husband to that of the wife. Having this in mind, it is perceived that the wife belongs to the whole clan, where the husband hails. Thus when the husband dies there is an automatic right, according to the members of the traditional societies that one of the relatives or brothers of the deceased takes over the widow. When one bothers to trace the originality of this purported right, one may find that it is due to the bridewealth paid to the father or clan of the wife. It should be noted that some traditional societies believe that due to the bridewealth paid prior to the marriage, a woman or wife for that matter is simply an instrument of production to multiply their wealth to the tune of meeting and exceeding the paid up bridewealth. And that since normally wealth paid as dowry is mostly raised by the whole family or clan, and then such a woman/wife is actually deemed to have been married not only to the husband but also to the whole family of the husband. In this connection therefore this explains as well why widow inheritance is still practised in such societies. [522]
Another consideration which must however be read together or connected with the above second factor is that some societies treat a woman as a property rather than a partner. Therefore much as the property passes from one hand to another as far as ownership is concerned the same is the story with a woman. Since she belongs to the clan of her husband, she is bound to remain within the confinement of the clan members. In that once her husband dies, she marries one of the clan members.
POSITION OF THE LAW
What then is the position of the current and modern law on domestic relations, that is the Law of Marriage Act,[523] hereinafter called the LMA for ease of reference? According to the Court of Appeal of Tanzania in the case of Bi Hawa Mohamed [524] the LMA sought to cure or rectify what may be described as the traditional exploitation and oppression of married women by their husbands. Looking at the law, it is apparent, however, that notwithstanding the foregoing, with the ever increasing socio-economic changes, widow inheritance practice is not strictly adhered to in modern days. That is to say, nowadays there is no such an automatic right accruing to members of the clan from which the deceased husband comes to inherit the widow. The inheritance practice is not however, abolished.
What the LMA did was to ensure that only a widow who preferred to be inherited should do so. But if she did not opt for inheritance she should be left free to remain unmarried or to marry another man who does not belong to the deceased husband’s clan. In other words, no widow should be forced against her will to live with anyone among members of the deceased husband’s clan. Stating the status of a widow, the LMA provides under section 68 that:
“Notwithstanding any custom to the contrary, a woman whose husband has died shall be free-
(a) to reside wherever she may please; and
(b) to remain unmarried, or, subject to the provisions of section 17, to marry again any man of her own choosing:
Provided that where the parties were married in the Islamic form the widow shall not be entitled to remarry until after the expiration of the customary period of iddat”.
Therefore, in short, the widow is, in accordance with the law, at liberty to elect whether to be inherited or not. That means if the widow consents to be inherited the inheritance will be governed by customary laws bearing in mind the strong tradition and customary ties. That is so because the same is not regulated by the LMA which is silent on the matter.
According to the Local Customary Law (Declaration) Order, [525] paragraph 62, in order to effect inheritance of the deceased’s wife to a husband’s relative or brother consent of the wife must be sought for. The paragraph provides that:
“The widow is to be asked if she agrees to be taken over by the brother of the deceased….”
Apart from seeking the widow’s consent, there are also other things to be observed. Going through the provisions of paragraphs 63 and 88 of the above referred to Order, it is well pressing that a new certificate of marriage should be issued or at least the old one is to be changed by deleting deceased’s name and inserting that of the inheriting husband. Paragraph 64 thereof requires that consent of the family council should be obtained regarding the inheritance so that the widow becomes the legal wife of the relative. And that once the widow accepts the relative or brother of her late husband as her husband, she cannot thereafter leave him. Even if she so does either due to mistreatments and such like she sustains from the husband or due to other reasons best known to herself, she is still regarded the wife of such a relative or brother. That is why it was held in the case of Juma Ng’osha v. Amos [526] that when a widow is duly inherited, according to G.N. 279 of 1963 para 64, she becomes a lawful wife of the one who has inherited her. For illustration, the case of Mkirikiti v. Mtanyi [527] is referred to. Brief facts of the case are as follows. In this case, the appellant’s brother, now deceased, was married to the respondent’s sister, “B” and there were two children of the marriage who, however, died. Following the death of her husband, “B” in accordance with the customary law became the wife of a brother of her deceased husband. That brother also died and she became the wife of appellant. They lived together as husband and wife until 1970 when she left him to live with her own brother, the respondent, because he constantly ill-treated her without cause. The appellant, sued to recover the brideprice paid by his brother, the original husband of “B”. The Primary Court’s judgment was a majority decision, with the magistrate himself dissenting. The two assessors who sat with him held that according to Zanaki customary law, if the husband dies, his widow must be inherited by his brother and should she refuse to be so inherited the brideprice which was paid in respect of her must be refunded. The Primary Court magistrate, however, in dissenting relied on paragraph 62 of the Law of Persons, G.N. No. 279/1963 which is applicable to Musoma District. The District Court reversed the decision of the Primary Court. On appeal to the High Court, it was held by Kisanga, Ag. J (as he then was) and we quote him extensively that:
“Paragraph 62 provides: ‘the widow is to be asked if she agrees to be taken over by the brother of the deceased. If she refuses the brideprice is not refunded and the widow is free to go and live with her brothers’. With respect to the Primary Court magistrate, I think that this paragraph was not applicable here because the widow had already made up her mind to be the wife of the appellant, and she lived with him as his wife from 1961 till 1970 when she decided that she no longer wanted to live with him. In my view, this paragraph should be construed to mean that the widow should exercise her election as soon as it is practicable after her husband’s death and that once she has decided to accept the deceased’s brother as her husband then she cannot subsequently elect to leave him on the strength of that named provisions of paragraph 62. This view would appear to be fair because it seeks to ensure the succeeding husband some measure of certainty and stability in relation to the widow so that he can plan his future life, accordingly. I am therefore of the view that the appellant’s claim could not be defeated by the application of paragraph 62 cited above.
The District Magistrate, however, while upholding the opinion of the Primary Court Magistrate, relied on paragraph 52(6) of the same law of Persons. That paragraph makes provisions for refunding brideprice in case of divorce and pride price was allowable. The circumstances of the present case are similar and I think that the same principle should apply that the appellant’s claim for refund of the brideprice could not be entertained unless and until he has brought divorce proceedings against his wife”.
It is apparent from the foregoing discussion that consent of the widow has to be sought before she is inherited. Not only so but also she is given an opportunity to choose who among clan members should inherit her. According to our views, before the widow could give her consent, she should think twice before doing so. She should make a thorough scrutiny on the brothers or relatives of the deceased and arrive at the choice which will not turn down in the future. For the practice and experience have shown that most of the marriages arising out of the inheritance have never lasted long, save for a handful of them. We think that the rationale behind is that the two find that their characters do not match. Take a simple example, that the inheriting husband is a drunkard whereas the deceased was not. The inherited wife would find herself embarrassed by the conducts of his inheriting husband, since they are new to her. Thus if she finds them unbearable, she thereafter decides to leave the matrimonial home.
Legal Effect of Widow Inheritance on Children and Property
May we advance more the discussion on position of the law with respect to widow inheritance but with particular emphasis on legal effect of the said inheritance on children and property. By children here we refer to those children of the marriage who were conceived and born before the husband’s death. What about the property obtained during the life of the deceased? To say in other words, does it mean that the fact that one inherits the widow one also assumes fatherhood of those children in question and ownership of the property in the household? We thus intend in this part of the discussion which is a continuation of the submission on position of the law on widow inheritance, to look at these pertinent issues. As already pointed out in the introductory part as well as the section dealing with factors which lead to widow inheritance in this work, normally the relative or brother of the deceased who inherits the widow assumes full responsibilities of a real husband. Putting it in other words, he is filling the gap left by the deceased as far as matrimonial life is concerned. Does that assumption of full responsibilities of real husband extend to taking fatherhood of the children and ownership of property left by the deceased? The High Court of Tanzania had an opportunity to respond to this issue in the case of Kabuya s/o Essore v. Mturi Nyegeri. [528] We take this case a case study. Brief facts of the case relevant to our discussion are as follows:
When the respondent’s father died in 1951 the appellant inherited the wife of the deceased. The respondent was born in 1951. The deceased’s property was distributed to the children of the deceased by the clan council. Each wife was given a number of cattle to keep on behalf of her children. The respondent’s mother was given nine head of cattle and as she was inherited by the appellant, the said cattle were kept by the appellant. After some matrimonial conflicts the respondent’s mother deserted the appellant. There was no dispute that the appellant received the nine head of cattle. In 1989 the respondent sued the appellant for the recovery of cattle which he claimed were part of his inheritance in the Primary Court. Although the trial magistrate was of the view that the suit was time-barred yet the majority gave judgment in favour of the respondent. The appellant was also unsuccessful in his appeal to the District Court. He appealed further to the High Court.
The High Court held, inter alia, that when the appellant inherited the mother of the respondent she became his legal wife and the respondent became his legal son and so he (the respondent) had no separate property from that of his now legal father. To quote Mwalusanya, J. while allowing the appeal:
“Even on merits, I am of the considered view that the suit should have been dismissed. I agree with the appellant that he inherited the nine head of cattle on his right. When the appellant was installed by the clan council as the inheritor of the wife of the deceased, then the said wife and her children (respondent) became the legal wife and son of the appellant respectively. In other words the respondent became the legal son of the appellant and so he had no separate property apart from that of his now legal father. He can claim the property of his new legal father (the appellant) when that father dies and he can claim as a lawful heir to the deceased’s estate of his new legal father. But once the appellant still lives, he cannot claim anything from him. I think that logic makes sense”.[529]
With this considered decision his lordship allowed the appeal with costs. Basing on this decision of the High Court, it is apparent that the relative or brother of the deceased who inherits the widow not only assumes full responsibilities of a real husband but also of a father if the marriage between the deceased and the widow to be inherited is blessed by issues. In this connection therefore one cannot separate the property which he has and that which he finds in the estate of the deceased wherein he inherits the widow. This means that in his capacity as a legal husband and father, the widow inheritor assumes ownership of property which he finds in the estate of the deceased. And that as we have seen in the Kabuya’s case cited above the law is entirely in his favour.
A CRITIQUE TO WIDOW INHERITANCE
Having seen above that a clan relative or brother of the deceased who inherits a widow becomes a legal husband and father of children, if any, left by the deceased and that he has all rights and obligations arising from a marriage[530], the discussion now embarks on giving a critique to the widow inheritance. We intend to do so while focusing on the provisions of the law vis-à-vis the modern Tanzania which is experiencing tremendous socio-economic transformation.
With socio-economic changes the societies have attained so far, it appears that the practice of widow inheritance is outdated. And that is why in many areas the practice is gradually dying out and its traditional significance and usefulness have gone out. In fact no meaningful socio-economic protection and safeguard are provided to the inherited widows and their children. In most cases they feel gaps left by their respective deceased husbands. The truth thereof is revealed by Nyambu who observes that:
“ Although the...widow now has a new husband of the same bloodline as her deceased husband, she still keeps her deceased’s identity and continues to live in the same old house and cultivates the same shambas that had originally been allotted to her by the deceased husband. That is the only source of her livelihood and that of her children, if she has any.
If her new husband is already…married and she has been taken over as a second wife, her position and that of her children becomes as precarious as if they were entirely left to fend themselves. If her children get any education at all, it is due to the effort and hard work of their mother. It is not surprising to hear that many of the outstanding men in Kenya today owe their education and well-being to their half-married widow mothers.
The only time she gets any assistance at all from her new husband is when she is required to take full and active part in contributing to the explosion of the clan’s manpower by regular increases in the family. With all these burdens on her shoulders, she is still expected to bring up her new offspring by herself!” [531]
Similarly one administrative official with the Tanzania Gender Network Project (TGNP) with whom we entirely agree argued in 1998 in respect of widow inheritance as follows:
“ I think it is the greedy for wealth that let someone decide to inherit a widow and not his love for children as it is said once his greedy is over the family is left with a lot of social problems” [532]
The above is the true picture of life run by inherited widows in the African context following deaths of their respective husbands. They face hardships because they have nearly to fend for themselves. This is quite contrary to what the law provides in respect of duty of a husband to maintain spouse/spouses and children. Since the inherited widow and children left by the deceased are legally wife and children of the inheriting husband[533], respectively, the said husband is before the law bound to maintain them.[534] The fact that the relative of the deceased husband who inherited the estate neglects to look after the widow and children is to contravene the provisions of the domestic law [535] and international instruments on human rights.[536]
By maintenance in respect of children, it is the supplying of basic needs of life by a parent (parents) to his (their) child (children). Normally the basic needs include food, clothing, shelter, medical services, education, and the like. It is a legal duty cast to a parent to look after his child through providing him with necessaries of life, of course depending on parent’s station of life. It has been emphatically argued in this regard, inter alia, that:
“…the scope of the duty is not limited to bare necessities. The child must be supplied not only with accommodation, food, clothing and medical attention but also with an education and other tools to equip him for the future. The parents’ standard of living and social and economic standing will determine the level at which a child is supported. In some cases the parents may have to provide a university education and other further training for the child though this is by no means a general rule.”[537]
The duty is expected to end when the child attains majority age. With the foregoing submission in mind, there is no doubt that no matter what good policies and legal system accommodating the wellbeing of children the country happens to have, at the end the duty of ensuring existence of welfare and protection of children rests to parents or guardians of each and every child. As such the parents have to discharge that duty up to the point that child attains the majority age of which he is considered to be able to stand at his own foot. Hence there is no way the relative or brother of the deceased who inherits the widow and children can escape this legal responsibility.
Another point to be raised in connection therewith is that with fast socio-political and economic changes most of communities have experienced over the past years, women have proved to be not dependent in almost every aspect touching their day to day life. With an expansion of urban centres, women have been in a forefront to look for employment opportunities or engage themselves in some business undertakings. As such they have proved to contribute to the wellbeing of their families. That being the case, most of them, especially in urban and peri-urban centres, can stand on their own in case of their husbands’ deaths. In such a situation whether to be inherited is not a very pressing issue for they can look not only after themselves but also of children of the marriages. While talking of the African position, hence Tanzania included, Raymond J. A. Mwaikasu has the following to argue relevant hereto:
“The money economy has had the effect of reducing women’s dependence upon men for their livelihood, thus instead of relying upon farm produce alone, more and more women…have been turning to small trading activities and salaried jobs, which enable them to earn money to meet their requirements independently of their husbands’ or male guardians’. Women born and living in urban areas away from the traditional villages of their parents become detached from the influence of tribal customs and cultures and acquire a hybrid of cultures and norms as moulded by the socio-economic and political changes. They have thus tended to become independent in their mentality and life-style. In particular, widows in urban areas are now no longer necessarily dependent on their late husband’s family or on the kinsmen, and can readily opt for an independent life maintained by their own earnings”.[538]
WIDOW INHERITANCE AND HIV/AIDS QUESTION
In addition to the above, let us talk of widow inheritance in relation to the HIV/AIDS question. According to Kivutha Kibwana:
“AIDS is an acronym for Acquired Immune Deficiency Syndrome. It is so named because it is acquired through the transmission of blood, blood products, semen or vaginal juices between two individuals as opposed to occurring randomly through genetic or environmental factors. It is an immune deficiency disorder in that the immune systems of affected individuals are gradually weakened over time and are thereby rendered deficient in their ability to protect the person from infection. It is precisely because the weakened immune system of affected individuals makes them susceptible to a variety of opportunistic diseases that ordinarily would cause neither illness nor death in unaffected persons, as opposed to a single disorder, that it is designated a syndrome.
HIV is an acronym for Human Immuno-deficiency Virus. It has been identified as the cause for AIDS.”[539]
It is nowadays an open secret that with this deadly disease-HIV/AIDS-spreading all over the country, many lives are claimed as a result of victims thereof having contracted it. It is thus no wonder that during the World AIDS Day 31st December, 2000 former President Benjamin William Mkapa declared AIDS a national catastrophe by stating that:
“HIV/AIDS has brought us a lot horror and sorrow to our families and society in general and at places of work, and the disease continues to do so. Many of us have been touched in one way or another by death to a member of our family, friend or neighbor, or taken care of sick person who is dear to us and/or a workmate. HIV/AIDS is a threat to the whole system of the life we are used to. It is also a threat to our economy and the development of our nation.”[540]
That is to say many people are dying of AIDS. It means that married couples leave their wives or husbands as survivors who certainly join them some time later as victims of the said disease; if they happen to have contracted it. The author of this article is aware of some two incidents which had occurred in the village where he was born.[541] The first one concerned a young, energetic and promising man who died after succumbing to an HIV/AIDS scourge which he contracted from his sister-in-law whom he inherited after her husband, that is the elder brother of the poor young man, had died of same disease. The woman so inherited died before the young man! The second incident involved a man who was a polygamist of four wives. This man was believed to have died of AIDS because he developed all the symptoms connected with the disease at issue. Not only so but also all his wives, later on died with some AIDS symptoms being apparent to them. Poor one of the deceased widows who became a wife of this deceased polygamist after being inherited by him following the death of her original husband who died of illness which was not connected with AIDS.
We have some comments to make in connection with the above two incidents. First and foremost, we suspect that ignorance has surfaced parents of the young boy who inherited the widow left by his elder brother who died of AIDS and the boy himself despite the fact that he was a street vendor in the city of Dar es Salaam. We stand to comment that had they both been aware that the brother had died of AIDS and that AIDS is a deadly disease such that there were possibilities for the widow to have contracted it, nobody could have suggested for widow inheritance to take place. Neither the poor young boy could have easily succumbed to the fangs of this deadly disease which had already assumed a room in the body of the inherited widow! Strong belief in culture and bride wealth consideration might have been contributing factors to the inheritance which had taken place in the first incident. As such the belief that letting the widow to go or remain at the deceased’s clan land unmarried would mean loss to the heavily paid bridewealth might have overpowered an option of looking at dangers of AIDS which were awaiting the poor young boy! Let us share an argument on an aspect of culture being a contributing factor to the spread of HIV/AIDS from a Zimbabwean:
“Culture also plays its role in intensifying this havoc. In some parts of Africa, promiscuity for men is associated with being macho. And the custom of wife inheritance, where widows-without their consent- are forced to be inherited by brothers of their deceased husbands, is widely acceptable, even if the cause of death may have died of AIDS. The tale of Kenyan woman of the Luo ethnic group, one of four husband’s wives, is quite illustrative. Her youngest co-wife died first, followed shortly by the husband. The husband’s family insisted that she be inherited by his young brother. She refused, and went on to get tested for AIDS, the results of which were relayed to the family. One night, around 03.00 a. m, she said, her prospective new husband came to her homestead. ‘He told me to cook for him, and then asked me who I thought I was to refuse to marry him,’ she harrowly told the BBC. ‘He then forced me to the ground and succeeded…”[542]
Given such ugly situation as exhibited by different incidents, is there any need of insisting on widow inheritance if it is established or suspected that the deceased was an HIV/AIDS case, and that there are all reasonable grounds to believe that the survivor wife has had also contracted the same? Do not we think that such a customary rite can cause many members of the clan of the deceased husband to perish? We may argue from the above two incidents that the dear and never replaceable lives of the innocent young boy and four wives which are guaranteed both by the country’s Constitution and international instruments on human rights were cut short due to HIV/AIDS. The Constitution of the United Republic of Tanzania[543] and the African Charter on Human and Peoples’ Rights (1979)[544] declare that the life and integrity of the human person shall be inviolable[545]. We are of the considered opinion that there is a need to re-look at the customary laws. And in fact those customary laws which insist on widow inheritance especially nowadays with a scourge of AIDS and women emancipation are to be reconsidered. They seem to be much more disadvantageous. Let us heed to the words of the late Mwakasendo, J. (as he then was) in the case of Mbaruku v. Chamonyogoro[546] while attempting to challenge customary rules. His lordship said that:
“Speaking to myself, I believe that customary rules are like the reignless wild horse which only the expert horseman can mount and control but if left to the uninitiated, it can do deadly harm. I believe too, that it is the duty for the courts at this momentous period of our history to assist the growth and promotion of equitable customary rules. We would be failing totally in this respect, if we are to abide without reflecting on common sense, by the unchanging and changeless traditions of the past, as if they were priceless medieval relics.”
It is apparent from this High Court’s observation that customary rules and practices which appear to be outdated in that they lose their efficacy, and only become retrogressively obsolete, should be done away.[547] We hasten to add here that widow inheritance cannot be saved from being done away in this respect. We so argue because it creates real and potential avenues for fundamental rights and protection of the inherited wife and her children being infringed. Of most importance is the right to life and enjoyment of good health which are protected and guaranteed by the law. It has become a normal phenomenon as the above two incidents indicate that due to the widespread of the HIV/AIDS scourge either the brother or relative of the deceased or the widow is an HIV/AIDS case. As such the fact that the two get married they create a great possibility of transmitting the disease to the other party who was not HIV positive before the marriage through inheritance. It is therefore a reality that widow inheritance exposes either the widow or brother or relative of the deceased husband who inherits the widow to the risk of HIV/AIDS as the above two incidents reveal.
THE WAY FORWARD: WIDOW INHERITANCE SHOULD BE DONE AWAY WITH
From the discussion it is so far a reality that widow inheritance is still to date finding its way in some of Tanzanian societies. How strong the practice is, that is another thing altogether. All in all the practice ought to be discouraged by all available means, for it has outlived its usefulness. Its traditional meaning has in main long gone. What we have today are members of clans of the deceased husband purporting to take over from their deceased relatives not to sincerely look after the widow and children left but to plunder the wealth left by the deceased. It is thus not surprising to note that sometimes in those estates of deceased husbands who were well of widow were more often than not forced by members of clans of deceased husbands to succumb to inheritance even if they were totally not prepared to do so, something which quite contrary to the LMA which states that both parties to the marriage should consent to the said marriage[548]. All this was done in order to enable such members to have a guaranteed access to the property by the deceased. Here are more details:
“Times have changed, people have changed and so their ways of life must also change. The days of genuine inheritors are long gone. Today’s inheritor is a complex character.
At a glance, the modern inheritor is an opportunist who will hurry to inherit rich widows and even put up a physical fight to get his way. But the same fellow will have nothing to do with the poor ones.
A widowed mother having been reduced to a single parent, sorely needs security. Most inheritors also pose as security solutions but later prove to be better risks than solutions. They misuse whatever little they find with the widows and disappear after looting the homes.
It should be said that wife-inheritance is psychologically de-humanising, especially to the widow who is coerced into it. Imagine having to share a bedroom with somebody you have no feeling for”.[549]
There are some widows who have courage to resist all moves aimed at forcing them to be inherited or else to pack up their belongings and go back to their parents. One of such widows has the following to say:
“My father-in-law has been pushing me around, saying I should marry his young son. I will never marry a brother-in-law, he was just a mere boy when I married his brother”. [550]
The widow who was forced to either accept the new marriage or pack up her belongings and go back to her parents continues to narrate her story that:
“What they are really up to is to get hold of my husband’s wealth”. [551]
It means that she was informed by her father-in-law that she should be inherited by her young brother-in-law lest she would lose her right to property if she would refuse to do so. Such family members of the deceased husband are ready to see the estate of their deceased relative to disintegrate due to their greedy for property! Whereas it is a reality that:
“Property is the classical concept for splitting or sharing resources and defining power and control. It is hoary with a tradition extending back into earliest testaments of civilization. Marriage has long been the medium for maintaining the integrity and perpetuating the ownership of property within a distinct and stable unit of social organization – the family. It has become part of an institutional process for the determination of successor interests and the planned utilization of property, helping to create social boundaries and social meanings. It is the children born of a marriage, or certain of them, who have the benefit and the burden of perpetuating the ownership and use of property. They, as the successors in interest, were the surviving ego of the original owner and inherited his rights and powers. Marriage and the family provided the trustees for property, and the conditions of stability and regularity that enabled its organization and development. Indeed, families and marriage became the creatures of property...” [552]
To say the least, it is high time that widow inheritance is done away in our societies. It is one of the customary rites which are not useful anymore in modern times. One would think that any serious and committed brother or relative of the deceased husband can help and look after the estate of the deceased husband even without inheriting the widow. Thus widow inheritance should not be one of the criteria to move a brother or relative of the deceased husband to render socio-economic services to the children and widow who survived the deceased. Undoubtedly, so far customary law allows wife inheritance practices to take place. However, as the discussion has aptly demonstrated, the practice is outdated such that it should be outlawed. It impinges the efforts towards better and improved life and status of a woman. Whereas, being part of the law of the land, customary law is in modern times expected to be a vehicle for attaining such efforts so that a woman is no longer seen as an inferior being. After all:
“It cannot be denied that socio-economic changes have taken place in the country since the attainment of political independence in 1961. As such some provisions of the….law...are ‘….lagging behind the changes in that they are outdated in some respects’. It is so argued bearing in mind that the law is a living being moving with time in the sense that as the society with which it serves assumes a given new social order, the same has also to change so that it corresponds with the said order. This argument is tenable because short of that the law fails to be an effective instrument in shaping the new social order. In other words, law cannot be isolated from social, political and economic life of the society it exists. Otherwise it will be an irrelevant body to be found in the society.”[553]
Saying it in a few words, the law must move with time so that it is capable of effectively solving the problems pertaining in the society. Short of this, the law will be said to lose its practical values. It has been reminded by Kotze J.P. in the case of Cape Explosives Works, Ltd., v. South African and Fat Industries[554] that:
“The practice of law as a living system is based rather on human necessities and experience of the actual affairs of men, than on notions of a purely philosophical kind.”
Thus, in view of what is stated above, there is no doubt at all that the customary law which regulates widow inheritance needs to pass the test of modernity which has to reflect the current socio-economic and political situation and see whether it does justice and equity to the estate of the deceased by the fact that it still gives room for inheritance at issue to be entertained.
Corruption: A Psychological Perspective
M. K. Possi
Institute of Journalism and Mass Communication
University of Dar es Salaam:
Mwajabupossi@
Abstract: The paper defines corruption, and presents the various types of corruption. Causes of corruption are provided by clearly stating that corruption results from among others, incompetence, greed, abuse of power, poor discipline, and low public awareness. Effects of corruption are presented among others as; denying people of their rights to access facilities, and poverty. The paper clearly indicates that corruption is institutionalized in all arenas and asserts that there is corruption in politics, government and private institutions. Corruption is surprisingly said to be even in religious institutions. Some politicians give false promises so as to get in power. Tanzanians have witnessed people being sent to court, or have their jobs terminated because of soliciting for or giving bribes. The use of public office for unofficial ends afflicts the economy, generates poverty, undermines government legitimacy, the Rule of Law as well as respect for the constitution. Such use of public office enhances incompetence and leads to lack of transparency and accountability. From the paper, one is given to understand that corruption affects the poor more than the rich. One obvious observation is that, corruption is like a heavy pollution that weighs on people’s spirits. Recommendations on how to minimize corruption are given as the way forward.
INTRODUCTION
Corruption is one of the enemies of justice. It denies members of the community their rights and access to a variety of facilities. Many people will agree however that, corruption is not new in our societies and that it has been in existence since time immemorial. We often hear from electronic media such as the radio, and TV or read from print media about corruption. There is information about corruption among people of all walks of life i.e. men and women, educated and non-educated, the rich and poor, those in rural and urban areas.
Recently, the Uhuru newspaper of December, 18th, 2007 on page 5, carried a story about corruption among clerks in the various courts of Tanzania. It was said that court clerks ask for bribes. It was clearly stated in Kiswahili by one Hamisi Nakapala as follows.
Mtu anataka kuonana na hakimu lakini wasaidizi na hasa makarani wanawazungusha kwa madai kuwa hakimu hayupo hadi wapewe fedha ndipo watawaunganisha naye.
Literal Translation. Someone wants to see a magistrate, he will be purposely delayed by clerks so that he pays some money for them to enable him see the magistrate.
However, the extent and nature of corruption varies according to the type of people involved in it, the type of corruption as well as one’s objective of being involved in a specific corruption.
It is a well known fact that corruption is institutionalized in all arenas. There is corruption in politics, government as well as private institutions, albeit even in religious institutions - the places where corruption was once unheard of. For example, it is an open secret that media have been indicating some religious leaders corrupting their believers so that the former get into power, or that they have sex with some believers, in the form of corruption. There are also cases of politicians giving false promises or corrupting members of the public so as to get in power. What happens after they are in power, nobody knows, since most of corrupt leaders do not honour their promises. Think also about those politicians and chief executives who go out to seek for favors for their vested interests.
In summary, corruption is rampant among people of all walks of life. The rich and those in power are squeezing the poor, junior members of staff etc., making them helpless. There is need of minimizing and in final analysis, eradicating corruption since it breeds poverty. The following paragraphs attempt to define and discuss the various forms of corruption, their causes, as well as how to minimize the situation in the country.
CORRUPTION DEFINED
When teaching about corruption, I normally give my learners several questions so as to let them ponder about corruption. I tell them to take a few minutes to think about the following questions:
“Have I ever been corrupted or corrupted someone?
Do I know someone who is corrupt? and
Do I really know what exactly corruption means?”
It surprising that I never get any one individual saying that he or she has corrupted someone. Neither are there many people saying that they know an individual who is corrupt. This shows how sensitive the issue of corruption is! However, participants normally come up with a variety of definitions of corruption, many of them centering on corruption as a form of bribe eg. seeking money or sexual favours from some one so as get services. I am quite sure that if I were to ask the participants about the strategies used in combating corruption, they would have come up with the famous acronym - PCCB or Prevention and Combating Corruption Bureau, formally known as Preventing Corruption Bureau ( PCB).
Through the PCCB, Tanzania has come up with an anti corruption strategy. One wonders how many people have been availed the chance to see it and how many people understand what is entailed in the strategy. Going through the strategy one would want to know the exact meaning of corruption. All in all, it should be understood that there is no common global definition of corruption. The reason may be due to difficulties involved in defining the concept. It is no wonder that many people talk of the manifestations of corruption than its definition.
Corruption is at times defined contextually, varying from country to country. It is no secret that corruption has elements of dishonesty and unethical behavior. It kills honesty and integrity and damages the respect of individuals, institutions, and nations. One of the definitions of corruption is the abuse of a role or position held in an institution for personal gain or for the gain of others. Acts of corruption include behavior of lacking in personal honesty i. e. stealing or lying and cheating so as to get certain things or favors.
It is worthwhile knowing that corruption damages the respect of individuals, institutions, and nations. It kills honesty and integrity. Corruption is about economics, gaining power, maintaining power and unfortunately to some, survival. Usually, corruption involves bribing, kickbacks, gratuities, and gifts to government employees from individuals doing business with the government. A large percentage of corruption taking place within governments and business worldwide rests within the procurement of goods and services ( PCB Manual, 1998/1999).
The PCB Manual also indicates a variety of terms related to or used interchangeably with corruption. Such terms include but not limited to bribes, commission, entertainment, lobbying, business, promotion, treatment, influence, economic and financial incentives are indicated. It is therefore important to clearly understand the definition of corruption so that one is careful when invited for or given anything in the aforementioned terms. It is always good to question, “why this entertainment? Why this present etc? “Otherwise one may have to pay for the treatment, entertainment etc. in a very expensive way.
When there is monopoly together with discretion, without accountability, corruption becomes rampant. When one has monopoly in a certain publicly owned
company, with discretion virtually in all matters, chances are that there will not be accountability. There will also be lack of good governance leading to low production, high taxes, poverty and in final analysis, underdevelopment.
TYPES AND /OR FORMS OF CORRUPTION
The Warioba Commission Report (URT, 1996) categorized corruption in terms of petty and grand corruption. From the report, petty corruption involves low ranking civil servants and small sums of money. The result of this type of corruption is that, processing of documents and provision of other services may be delayed if the providers are not given something to speed up the process. Grand corruption is mainly practised by politicians and high ranking public officials. This corruption involves large sums of money.
Normally laws, regulations and policies are bent or changed to suit the corrupt individual demands or create an environment conducive to such types of corruption. There are times when money may be used for political purposes i. e enabling one to get into power. Money may also be deposited in local or foreign accounts of the concerned individuals. There are also malpractices by politicians so that they maintain their political positions through corrupt means. The most common situation of political corruption is during elections when politicians strive to maintain their political positions by making sure that they win the elections through corrupt means including bribing voters with cash money or things such as clothes, bicycles and so on. In some cases some incumbent Members of Parliament or even Local Government Councellors influence voters through long terms investment in development activities as construction of schools, dispensaries, roads and water pipes. Socio-economic corruption involves the so-called petty corruption of receiving bribes for the provision of services and grand corruption for financial accumulation purposes (Mpangala, 2002).
As indicated earlier on, corruption can occur in various forms ranging from pay offs at the top, to bribes to local officials. Jannif (2002) highlights the various types of corruption perceived to exist in the public sector as follows:
• Kick-back: Corruption of this kind occurs in schools when teachers demand extra money from parents for provision of services which they are expected get under normal circumstances.
• Greasing of palms: When teachers or public officials are enticed by rich individuals , by offers of financial incentives, so as to provide extra tuition or academic services for the officials children, it is considered a corruption known as greasing palms
• Nepotism and cronyism (act of having close companion): Nepotism occurs when a person is favoured because of his race, tribe, religion etc. For example, employing a teacher because of his being a tribe of the President etc. This type of corruption is very difficult to prove especially in the light of a policy of positive discrimination;
• Rank – pulling: This happens when powerful individuals by virtue of their social and political status exert undue influence over decision makers;
• Unfair and unethical decisions on public procurement: where tender processes are leaked out so that certain people get tenders; and
• Misuse, embezzlement and abuse of public funds.
One may not also dismiss bribes and sexual favours solicited by men and at times by women in senior positions. Such favours are at times accompanied by sexual harassment.
The Watchtower (2000) tells us that corruption has grown so wide and sophisticated that it threatens to undermine the very fabric of society. In some countries, almost nothing gets done unless a palm is greased. A bribe to the right person will enable one pass an examination, get a driver’s license, get a contract, or win a lawsuit. Corruption is like a heavy pollution that weighs on people’s spirits.
Extent and Effects of Corruption in Tanzania
Tanzania, like most African countries is faced with corruption in its public and private sectors that has assumed endemic proportions. The government views this scourge as public enemy number one. Therefore, a number of initiatives have been taken over the years to deal with this problem’’ (The United Republic of Tanzania, 1999).
In Tanzania, we always hear of people being sent to court, have their jobs terminated etc because of soliciting for or giving bribes. Further, it is well known that the use of public office for unofficial ends afflicts the economy, generates poverty, undermines government legitimacy, the Rule of Law and respect for the constitution, enhances incompetence and leads to lack of transparency and accountability. But corruption affects the poor more than the rich because most services go to the rich who are able to pay bribes and get services in a way of corruption.
Effects of Corruption
From the aforementioned one can learn that corruption poses problems that endanger stability and security of societies, undermines the values of democracy and morality and jeopardizes social, economic and political development. It has been evidenced that higher levels of corruption are associated with lower per capita income (World Bank, 2002). Bribes for example, escalate the costs of doing business; so more corrupt countries attract less foreign direct investment, which lowers growth rates and per capita incomes.
The short term positive effect of corruption is that those who have not been involved in any form of corruption join the game after seeing those involved in corruption getting enriched through social learning. Partly, this may be attributed to the Social Learning Theory, where people learn from role models of people that they adore or even lack of knowledge of the long-term effects of such corruption. It is those politicians and other powerful people who grease the palms of the voters, who get more votes. It is people in high positions and power who get bribes in various international and business agreements, and claim that every other leader in Africa for example, is doing the same so that their nations have their debts waived etc. They re seeing such other leaders as their role models hence following their foot prints. One of the long-term effects of such agreements is that, if the wealth of the country is corrupted, there will be no investment. The budget will always remain insufficient and social services will remain poor etc.
Why Corruption?
Corruption persists due to lack of civic competence and self assertiveness of the less educated and the economically disadvantaged citizens. The National Anti Corruption Strategy Manual shows that corruption is caused by institutional decay, which includes incompetence, greed for power, low public awareness, political interferences, conflicting and outdated laws, etc. Figure 1 and the subsequent paragraphs elaborate on the argument.
Figure 1: Analysis of Causes of Corruption
Source: National Anti-corruption Strategy
INCOMPETENCE, GREED AND ABUSE OF POWER
Information from the National Anti-corruption Strategy, systems deficiencies, incompetence, poor discipline, greed and abuse of power, low public awareness, political interference, as well as problems in legal framework and institutional capacities lead to corruption.
Some inefficient individuals chance to get into higher positions through corruption. They do so by corrupting those who are greedy and abusing the powers vested on them. Such corruption allows the incompetent employees to maintain their positions throughout their tenures, regardless of their weaknesses in performance. The incompetent persons may corrupt those in power through financial means, sexual bribes, or other ways that may include building houses for the officials and vice versa. Such corruption acts have adverse effects on institutions.
Political interference
Let me shut the politician’s mouth. He always interferes with my work. I shall send him an immaculate bed from my industry. He will also keep on getting a tin of oil from my other factory every month. I shall have won the elections anyway. What’s a big deal?” These kinds of mind sets and actions thereof allow the unqualified politicians to get in power. As a result, such politicians or members of representatives get elected and at times favor those who elected them. It is normally the rich or high ranked politicians with financial powers who can afford to do so. It is those who have passed beyond looking for the basic needs, for survival who get involved in such types of corruption.
Poor Discipline
People with poor discipline would want to cover up for their bad conduct through corruption so that they cannot be sacked from work or have their contracts terminated. It is important for bosses to be observant and inquisitive so that they can be able to detect corrupt individuals who may come with presents, offers etc.
Systems Deficiency: There are systems deficiency in institutions where there are no systematic checks and balances, procedures or guidelines on how to curb corruption. When one sees signs of deficiency, solutions have to be sought. Therefore, it is important for one to find out why people are not following procedures, what should be done, when, how, by whom, and with what means, so that the problem can be solved. For instance, when one wants to purchase items for an institution, at the same time wanting to get money out of the purchasing process, he or she may skip some officers and rush for those who can sign and pass it on for upward transmission. If there is no one checking and vetting on he process, chances are that corruption could be rampant.
Low Institutional Capacity
If an Institution does not perform well, there is always a tendency for the Chief Executive bribing some people who matter so that they cover up for the deficiency.
Lack of Legal Framework, Conflicting Legislation, Outdated Laws and Missing Legislation
The three aspects can lead to corruption, since people will always look for excuses of doing things differently and getting money, favors, etc. without working for them. Such people will always get away with mistakes, and bribes whenever there are no regulations that bar them from being corrupt. This also happens whenever the regulations do not state exactly what should be done, or when laws are out of date and things of the sort.
Bad Governance
Corruption is said to be reinforced by bad governance, greed, selfishness, as well as moral decay in general. Wane (2000) gives an example of moral decadence whereby corruption in tax evasion comes about when the tax payer and the tax inspector jointly decide on the income to report, which also determines the size of the bribe. In this sense, the tax inspector is faced with binary choices: either he/she negotiates the bribe on the basis of the income report or denounces the tax evader.
Personal Satisfaction
Some people offer and receive bribes, whenever and wherever they feel that they shall satisfy their needs. A bribe for example, may be said to be convenient in ones endeavors. People with low wages feel that they have no choice bus solicit for bribes. In many instances, selfish and greed among the rich fuel bribery and corruption, since the rich and the “haves” turn a blind eye on those who are poor. It is not strange that many people have been forced to pay money in several offices so that their files are being located and sent to respective offices in various departments. At times, messengers or office attendants ask for money to enable them pay for a cup of tea during break time before looking for the said files.
Lack of Incentives
Literature from Tanzania, Nigeria, Ghana, and Africa in general, show that corruption arises due to poor remuneration, pervasive culture of giving, the absence of position incentive from the employer, a weak corruption reporting system, poor internal managerial practices, wide authority and little accountability, an illegitimate government and inequality of social groups, ineffective anti corruption laws, a complex and cumbersome bureaucracy, personal greed and ambition, lack of effective pension scheme. The centralization of authority and power, poverty, as well as lack of political will has something to do with corruption. The Tanzania Prevention and Combating Corruption Bureau has very good reporting systems that will enable people report those who are corrupt.
The Psychological Perspective
The past sections have stipulated causes of corruption. It has been observed that there are various causes of corruption that have been delineated by the National Anticorruption Strategy. However, it is the contention of the author that corruption in Tanzania should also be looked at with a psychological perspective.
Nature vs Nurturing of corruption
Corruption is not born, it is made. Corruption is a learned or reinforced behavior through sociological and psychological exposures. It is the environment that shapes one into a corrupt person. Theories of famous behavioral and social psychologists like Abraham Maslow, Albert Bandura, Ivan Pavlov, and B. F. Skinner, show that people learn through social models, as well as reinforcement and punishment respectively.
Fantino, and Reynolds (1975) contend that the basic physiological needs of the individual organism give rise to the first important class of drives / the regulatory or homeostatic drives such as hunger, thirst, respiration, and all the other drives related to the maintenance of body functions. The second important class of drives includes the non regulatory drives, which are important but not necessary for the survival of the individual organism. These include sex, curiosity, activity, and exploration among others
Under the same token, information from , shows that Abraham Maslow recognized a number of different motivating forces, or needs, that influence human behavior. He created the hierarchy of needs to understand how these different forces worked in relation to one another. For instance, one question that guided the theory was , if at some time a person were influenced by both a need for food and a need for safety and security, which of these two needs would have the greatest influence on the person's behavior? Abraham Maslow wanted to explain how a person would respond in such a situation, and also to understand how people came to be influenced by more complex, "higher" needs.
Another important element of Maslow's theory is the concept of self-actualization. He borrowed the item from the neuropsychologist, Kurt Goldstein. The latter described the tendency of humans to fulfill their potential, to become what they can become. Abraham Maslow felt that the need for self-actualization would emerge only after all other needs had been reasonably satisfied, and he was particularly interested in people who were acting in response to this need. He felt that it was important to understand this motivation, because he saw it as the key to making a better society. Abraham Maslow developed the famous theory of personality which has been very influential in various fields, including education and psychology. The theory describes many realities of personal experiences.
Abraham Maslow, a humanistic psychologist, did not believe in behaviorism that human behaviors are guided by stimuli and reinforcements or by unconscious instinctual impulses (psychoanalysis). Like most humanists, he focused upon potentials. He believed that humans strive for an upper level of capabilities. He used the hierarchy of needs theory to show that all basic needs of human beings are equivalent to instincts in animals. Humans start with a very weak disposition which may then be fashioned fully as the person grows. There has to be conducive environment that enables people to actualize their inherited potentials (nature). However, if the environment is not condusive, the human being will not grow to his or her full potentials.
The Maslow theory is often represented as a pyramid, with the larger levels at the lower stage representing the simple and basic needs, and the upper point representing the complex need for self-actualization. Maslow believes that people do not move well towards the direction of self-actualization due to hindrances placed in their way by society. Five levels of basic needs as indicated in Figure 2.
Figure 2: Levels of Needs
[pic]
Source:
Higher levels of needs exist beyond basic needs. Such needs include those required for understanding, esthetic appreciation and purely spiritual needs. Maslow explains that a person does not feel the higher need until the demands of the lower ones have been satisfied () . The basic needs are as follows:
Basic Needs or Physiological Needs
Physiological needs come first among the deficit needs. These are biological needs that control thoughts and behaviours. If the neesds are not met one can feel sick, pain, and discomfort. Such needs include, among others, needs for oxygen, sex, shelter, warmth, water, food, salt, sugar, minerals and vitamins for our bodies. Included in these needs also are good temperature i. e a relatively constant body temperature etc. together with needs such a sleep, rest, having sex and others. The needs are the strongest of all needs in this group. Think of a situation where a person were to be deprived of all needs. It s obvious that in the person's search for satisfaction, the individual would start searching for the satisfaction of the physiological ones.
If one’s basic needs are not met, corruption can take place. Think of a boss who coerces woman or a man of a lower cadre to indulge in sexual affairs so that the member of staff gets a house, or a room to live in, food etc. There are also instances when a person living in very poor conditions or whose salary is very low may offer sex to his boss so that her pay is raised or that one is given overtime, trips etc so as to fulfill her basic needs. On the other hand a messenger or secretary for example, may be corrupted to give a confidential report to some individuals for sex, and money. The same can be said for junior members of staff who bribes a Head teacher for a post at the school that will increase her chances of getting more money to feed her family etc.
One journalist is on record to have testified that poverty drives them into writing in favour of whoever greases their palms.
Someone wants you to cover his story. You are not employed. You have no money. You go to cover a function. You reach there hungry and this person offers you soda and some money for your transport. Is there a way you can refuse the offer? (Possi, 2003) Certainly, lack of basic needs may lead a person into unethical deeds.
The Safety Needs or Safety and Security Needs
The ethical integrity of the rich and poor, the old and young, men and women can deteriorate due to lack of safety needs. For example, a person who lacks safety needs may solicit bribe from another person, rich or poor depending on magnitude of poverty or richness so as to get basic needs. Definitely one might not ask for much money. In this case, a poor person can easily be bought, corrupted or used for soliciting bribes by a rich person. For instance, one without a house or a place to live in may be easily corrupted by unscrupulous rich people. They may involve the poor individual in corrupt acts so that can be provided with a house or security. Imagine a woman or a man who does not have a house to live in being approached by a millionaire who wants to have his 10 ton lorry of ivory cross a particular boarder illegally, and that this millionaire promises to construct a house for payment! It needs a heart for the poor individual to refuse the temptations. We often watch in TV poor youngsters from this country , who have been trapped into drug trafficking by the assistance of rich people. When asked as to why hey indulge in such dangerous acts, they always say that they thought they would come back safely with a lot of money that would assist them in constructing houses for them as well as for their parents. It needs a diligent person in that poor condition to say “NO” to that type of corruption.
It is important to bear in mind that safety needs suffice when all physiological needs have been satisfied and are no longer controlling one’s thoughts and behaviors. It is here that the needs for security can become active. At this point, one becomes more interested in finding a safe environment, stability, jobs, and protection.
Love Needs or Needs of Love, Affection and Belongingness
When the needs for safety and physiological well-being are satisfied, the next class of needs for love, affection and belongingness start show. In this stage, individuals begin to feel the need for friendship, fiancées or affectionate relationships, getting married and having children, or even belonging to certain communities, or to certain careers. Maslow states that, people seek to overcome feelings of loneliness and alienation. This involves both giving and receiving love, affection and the sense of belonging.
People need to be accepted in social groups, or have social affiliations. One can corrupt others or be corrupted so as to belong to a certain group or category of people. A person may not have a very expensive, esteem and new model car while all his/her friends have such cars. It is obvious that this person may want to be like his/her group mates. Such an individual may solicit for bribes or be involved in corruption so as to get such cars and other amenities so as to belong to the club and be accepted by colleagues. It is here that you have a chain of rich people bribing some officers so that their children go to study abroad because a son of his or her next door neighbor has gone abroad to study.
Esteem Needs or Needs for Esteem
Boeree ( 2007) in shows that according to Maslow there are two versions of esteem needs, a lower and a higher one. The lower need is for the respect of others, the need for status, fame, glory, recognition, attention, reputation, appreciation, dignity, even dominance. The higher form involves the need for self-respect, including such feelings as confidence, competence, achievement, mastery, independence, and freedom. If the needs are not met there is low self-esteem and inferiority complex. Most senior civil servants, those in Ministerial positions , as well as permanent secretaries in this country are at this stage. They have all what we need in regard to physiological and safety needs. They only require needs for esteem so that they can become dominant. They need recognition from others. They need a stable, firmly based, high level of self-respect, and respect from others. When these needs are satisfied, the person feels self-confident and valuable. On the other hand, if the needs are frustrated, the person feels inferior, weak, helpless and worthless.
We have heard of people paying money to others so that they are elected or accepted as leaders or become in charge of certain projects. Such people want to show others that it is only they who can assist people. They want to be respected and command respect, have a high reputation or social status in the society they are living in.
Mrutu (2003) indicates that prominent businessmen and former members of parliament were barred from contesting in the 2000 election campaigns because they were involved in corruption. They wanted to use their financial power as the basis for leadership positions. The citizens were cautioned that such corrupt individuals would care for themselves more than the members of the community.
Self Actualisation Needs or Needs for Self-Actualization
Self-actualization is the last and highest level in the Maslow’s hierarchy of needs. Maslow has referred to this level by using a number of terminologies. He has called it growth motivation (in contrast to deficit motivation), being needs (or B-needs, in contrast to D-needs), and self-actualization. According to him, these are needs that do not involve balance or homeostasis. Once engaged, they continue to be felt. They are likely to become stronger as we “feed” them! They involve the continuous desire to fulfill potentials. When they become the most complete or the fullest, one can be said to have reached self-actualization A person may have satisfied all the other needs but wants to achieve certain goals i.e. to become the first woman to own a media house, the first woman to have a Ph. D. in media etc. This person may look for short cuts of bribing lecturers etc. The higher the position, the richer the person, the bigger the corruption and involving people in higher positions, with complicated transactions. More men than women are involved at this level. Unfortunately, it is the women who fall preys of being used, possibly because of their being thought to be helpless and taken advantage of.
For one to be fully self-actualizing, the lower needs should be taken care of to a considerable extent. At least one has to get food; safety, love and belongingness so as to satisfy his or her needs, have high sense of self-esteem and have high potentials. Using Maslow’s Hierarchy of Needs, one can learn that a person whose needs have not been met can be easily trapped into corruption.
Social Learning Theory
We learn from observing others. We acquire knowledge, skills, attitudes, and culturally appropriate behavior more efficiently and with fewer mistakes when we observe the behaviors and the consequences of the behaviors from parents, friends and teachers. Bandura (1969) shows that behavior is acquired through social learning. One acquires behaviors that are expected by the society he/she lives in. That is, behavior is determined by expectations of members of society.
What does this means in terms of corruption? A person becomes corrupt through learning from his/her boss or even colleagues who are corrupt. On the other hand, a child growing up seeing his parents, elder siblings, and next door neighbors he/she respects, involving themselves in corruption, chances are that he/she is going to grow up believing that corruption is the way to go.
When a child grows into an adolescent, seeing parents bribing teachers for instance, so that she/he can get better grades, the individual may model the behavior of corruption. She/he will be motivated to involve in such acts. In final analysis, the individual shall turn to be a qualified briber. This may happen due to his/her identification with the corrupt parents. In fact, the child shall imitate the parents’ behaviors. Imagine the newly employed youngsters watching their bosses embezzling funds, bribing people! They will definitely emulate their bosses.
Bandura (1969), the originator of social learning theory, talks of social learning through social interaction. According to the author, social learning occurs through social interaction. Learning may not take place because of straight reinforcement principles but as a result of modeling. People learn new responses simply by observing the behaviors of others. During the interaction, a person may learn to modify his/her behavior as a result of seeing how the significant others in the group are behaving and responding. Definitely, if the members of the group or significant others do not like corruption and are not involved in it, one may cease from being corrupt. This is because people are, to some extent, products of their environments.
Observing others is much more effective than direct experience because it serves people from punishment or negative reinforcement. People whose behavior is observed are referred to as models and such learning is called Social Learning. The person who is observing has to pay attention to what is taking place, retain what was learned, put it into practice and get reinforced by the action. Therefore, when one sees a person who has indulged in corruption getting kick backs chances are that this person may also get involving in creating conditions necessary for kick backs or even soliciting for some money, sexual favors etc., which is corruption. On the other hand when the models are those who were looking up to the role models are fired from job due to corruption, they may stop the behavior. Further, other people may learn from the punishment. One can imagine how much the Tanzania youngsters will learn to be corrupt from corrupt leaders who happen to be their role models!
Behavioral Perspective
Theories of famous psychologists such as Ivan Pavlov, and B. F. Skinner may be used to describe why and how people receive and give bribes. Using behaviorists theories it can be concluded that, a person who receives bribes gets conditioned to the bribes or corruption. Throughout his life, such a person will depend on the external stimulation or rewards in order to perform his work. The bribes are rewarding to this person. He/she is being motivated by the bribes and when there are no bribes nothing is done. It should be remembered that positive reinforcement promotes psychological conditioning or rather operational conditioning. For example, if one from a higher education institution is bribed so that he offers a scholarship, chances are that the person being offered the scholarship will generalize the behavior to others when he/she is in power. When there is a multiplier effect of the behavior, there will be moral decay. Stimulus –response behavior is automatic. Repetition of the patterns of behavior can then persist in society
According to behaviorists, behaviors are learned and determined by immediate situations and that effective learning depends on generalization. Skinner, a famous behaviorist, argues that a person learns through stimulus – response reaction. External or observable behaviors will be reinforced through reinforcement (positive and negative) or through punishment. Bribes or acts of corruption may be reinforcing a person who may also be able to generalize such behaviors to settings, across people etc. One is motivated to do a job when he /she knows that there is a reward.
Corruption may have a positive reinforcement for certain people. If one gives a scholarship or a good position to a person who has provided money, chances are that this person is going to generalize the behaviors to other people when he/she is in power. He may also continue giving bribes or receiving bribes. A person benefiting from corruption gets conditioned to bribes or corruption, he or she will depend on external stimulants or rewards in order to perform various tasks. The reason is that, bribes are rewarding to this individual. He/she is being motivated by bribes and when there is no bribe nothing is done!
If one for example, gives a bribe to an officer, for a scholarship and that the person gets the scholarship, this person may tell other people and also use similar techniques to get other favor. Here the behavior is being generalized across settings and individuals. See how one being corrupted can make other people emulate the behavior. Where there is a multiplier effect of the behaviors, there is moral decay resulting from the repetition of such behavior. Although, at times, when a corrupt person is caught and sent to jail as a punishment, others with similar behavior, may quit from being corrupt as a result of punishment effects.
The Inverted Pyramid of the situation of corruption in Tanzania
Who is corrupt and who is being corrupted in Tanzania? In this section, the author is discussing about corruption in Tanzania using the inverted pyramid model as indicated in Figure 2.
Figure 3: Progressive Model of Hierarchy of Corruption: The inverted Pyramid.
More Corruption
Towards this side extremely rich
Very Rich
Moderately Rich
Poor
Very Less Corruption
Poor Towards this Side
The richer, the bigger the corruption. More high-ranking people are involved in complicated transactions. The rich and high-ranking officials are into self-fulfilling and self-actualization stage. They want to achieve more so that others can recognize them. The middle class people are also involved in corruption to fulfill their esteem needs where they need self-respect, prestige, reputation and social status. They engage in corruption that will assist them in being recognized that they have, for example, assisted some one in getting a job, getting into power etc. This is the category where a lot of bosses corrupt people for sexual favors or acceptance for the job. Others give basic things like food and shelter so that they can be voted for. Other bosses will tell messengers or store keepers to steel some items for their homes with promises that they will be retained in their jobs.
It should be noted here that big corruption scandals involve big people and those in power. This is not strange. When we were growing up for example we used to hear about Water Gate scandal in the USA. We have heard of scandals involving Ministers with embezzlement of funds and fraud. Big scandals also need a lot of talents for masterminding. We had the Chavda scandal in Tanzania whose corruption involved land ownership.
SUMMARY
This paper has attempted to define corruption, presented types of corruption, and reasons for the same. It has shown that corruption results from incompetence, greed, and abuse of power, poor discipline, low public awareness and other related causes. The paper has also pointed out that there is corruption in politics, government institutions, and private ones. Some politicians for example, give false promises so as to get in power. The use of public office for unofficial ends afflicts the economy, generates poverty, and undermines government legitimacy, the Rule of law and respect for the constitution. It also enhances incompetence and leads to lack of transparency and accountability. But corruption affects the poor more than the rich, and brings poverty. Consequently, the paper presents a number of conclusions and recommendations on how to minimize corruption.
CONCLUSION
Corruption is a big problem in the world, Tanzania notwithstanding. It is rampant in almost every office on government and non-governmental institutions. Some causes of corruption can be explained psychologically, socially as well as administratively. There is indeed a need for making sure that action is taken to minimize and in final analysis eradicate corruption. The PCCB, other government and non-governmental institutions and the Tanzanian Community at large should say “NO” to corruption. The following recommendations are advanced to assist in fighting against corruption.
Recommendations
1. Training Tanzanians on how to eradicate corruption using action oriented learning with a psychological approach should be given priority. Media should be used in educating, sensitization and raising awareness against corruption.
2. There have to be national education programs on the effects of corruption at school levels. Political will to combat corruption should be felt through various aspects such as modification of curriculum to include ethical issues related to corruption;
3. Anti corruption laws should be reviewed and implemented and made sure that they are adhered to;
4. The Prevention and Combating of Corruption Bureau in Tanzania (PCCB) must educate the people on how to stay safe from corruption and not capitalizing on punishment since punishment may be too delayed and improbable to cause good behavior. and
5. We must see to it that the person's basic needs are satisfied.
6. More emphasis should be on good citizenship and caring about their nation. Success stories in efforts to fight corruption should be instilled into members of the community through the use of role models.
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[1]This is an estimation by UN Habitat in 2003 in terms of moderate scenario
[2] Payne G, (1997), Urban land tenure and property rights in developing countries, p. 6
[3] Ibid ,p. 7
[4] Tibaijuka. A, (2006), Senate foreign relations committee, African Affairs Subcommittee: Hearing on the housing and urbanization issue in Africa, p. 3
[5] Improving unplanned settlements in Dar-es-salaam in
[6] Kombe W.J & K Volker, (2000), Informal land management in Tanzania. p. 2
[7] The Imperial decree, 1985 stated: “..Except where claims to ownership and to real rights in land could be proved by private and certain other persons, all land was to be deemed unowned and to be regarded as Crown land and ownership to such land was vested to Reich.” An extract from Customary land law of Tanzania: Source book by R. W. James and G. M. Fimbo: p. 31
[8] http//:papers: “Processing a land policy: The case of Tanzania Mainland” by Ringo Tenga.
[9] Fimbo, G.M, (1992), Essays in Land Law Tanzania, p 65. Also noted by Okoth-Ogendo, in Land Policy Development in East Africa: A Survey of Recent Trends that; The League of Nations Mandate under which the jurisdiction was assumed required the mandatory to protect the rights of the indigenous inhabitants of the territory. For example, no land occupied by an indigene could be transferred to a non-indigene without the prior consent of the public authorities.
[10] “… between the end of World War II and the early 1950's, when white settlement had increased,… the total area alienated under long-term rights of occupancy rose from 788,038 acres in 1946 to 2,533,966 acres by 1958, a more than three-fold increase”. From an article by Ringo Tenga,op cit
[11] Wanjala, S. (2002), Land and Resource Tenure, Policies and Law: Perspective from East Africa.
[12] Villagers would, for example, be able to own land privately within the boundaries of their villages. In the Ujamaa villages, the establishment of individually-owned units was also proposed to allow investment and conservation. This concern for individual land security, in order to encourage agricultural investment and productivity, was not new, however, it was the subject of the Royal Commission Report of 1955: From http//: www whoseland .com/papers; Processing a land Policy: The case of mainland Tanzania.
[13]The subject had some diverging perspectives as in Methuselah Paul Nyagaswa vs. Christopher Mbote Nyirabu, civil appeal no. 14 of 1985, court of appeal @ dar-es-salaam, the court held that once an area is declared a planning area customary law ceases to apply and the holder becomes a mere squatter, however in 1991 in Suzanna Kakubukubu & 2 others vs. Walwa Joseph Kasubi & another, high court of mwanza civil case no. 13 of 1991 , it was held that a right of occupancy under customary rule does not becomes void merely upon an area being declared a planning area, further in 1998 in Mwalimu Omary & another vs. Omari Bilal; court of appeal of tanzania @ dar-es-salaam, civil appeal no. 19 of 1996 (unreported) set aside kakubuku”s decision and rectified the decision in Nyagaswa”s case that, customary law does not apply in urban areas for a very good reason that a deemed right of occupancy is not compulsorily registerable whereas in urban areas all titles to land must be registered. the decision was delivered on 3rd december 1998.
[14] Wanjala, s. op.cit.
[15] URT,(2000), the national human settlements development, p. 5
[16] The Presidential Commission of Inquiry into Land Matters, Vol 1 p. 71
[17] Ibid p. 14.
[18] The Presidential Commission of Inquiry into Land Matters Op.cit p. 144-146
[19] Act no. 4 of 1999
[20] Ibid
[21] See Ss. 3(1) (b) (c), 53-57, of The Land Act.
[22] The Delhi declaration is a consolidated platform on land issues in support of the implementation of Habitat II's Global Plan of Action which was adopted at the second United Nations Conference on Human Settlements (Habitat II), Istanbul, Turkey, in June 1996. The three-day conference had based its deliberations on the results of a series of five regional consultations and two thematic consultations on land, held respectively in Abidjan, cote d’ Ivoire March 1995, Jakatra, Indonesia August 1995, Belo Horizonte, Brazil September 1995, San Jose Costa Rica September 1995, Gayle, Sweden October 1995 and various UNECE meetings 1994-95. It addresses the need for "land and shelter for all and land policies for sustainable human settlements in an urbanizing world". It did so by drawing upon experiences of the public sector and the informal and formal private sectors (business and community sectors) from developed and developing countries alike, and also contributions from political leaders, government officials, local authorities and other representatives of civic society
[23] Global conference on access to land and security of tenure as a condition for sustainable shelter and urban development, New Delhi, India 17-19 January, 1996
[24] Ibid
[25] Global conference on access to land and security of tenure as a condition for sustainable shelter and urban development, Op.cit
[26] No. 4 of 1999
[27] The Land Act No. 4 under Sub part 2 of part VII and URT, (2000), Human Settlement Development Policy, p. 17
[28] Human Settlement Development Policy, Ibid
[29] Human Settlement Development Policy, Op Cit
[30] Jenny, C, Tenants in Tanzania-Invisible Dwellers? p. 4
It is important also to note at this juncture that, in 1960’s the approach of dealing with the growth of informal settlements in Tanzania particularly in Dar-es-salaam was slum clearance rather than slum upgrading. See World Bank, (2002), Upgrading Low income Urban Settlements: Country Assessment Report, p. 7 This approach has been explicit removed by The National Land Policy. Policy statement 4.4, by prohibiting removal of slums and committed the government in upgrading them.
[31] Kombe W. J & K Volker, Op Cit, p. 31
[32] Sara A. K & Kyessi A.G, Regularization and formalization of informal settlements in Tanzania: Opportunities and Challenges A case of Dar-es-salaam city, p. 5
[33] S. 58 Land Act, No. 4. 1999
[34] Land Act, Op Cit
[35] Ibid
[36] Land Act S. 57
[37] GN no. 85 of 2001
[38] However, the Minister may, on his own motion, declare an area for regularization even if there may be no local interests or support for the declaration, if it is in the national interest that the area be declared a regularized area as per Regulation 4 of G.N 85 of 2001
[39] The Land Act No. 4. S.59 (1) (a) (b) Read together with Regulation 6 of G. 85 of 2001
[40] The Land Act, S. 59(1) (c).
[41] Ibid S. 59(2)
[42] Ibid. S. 59(3)
[43] Ibid S. 59(4)
[44]Land Act, S. 59 (5) (a) (b) (c ) and Regulation 17 of G.N 85 of 2001
[45] Ibid, S. 59(6). What is fascinating is that, The Town and Country Planning Ordinance, Cap 378, Cap 378, [R.E 2002] is a piece of legislation dealing solely with planning of urban and sub urban areas and maintaining them to a certain standard, i.e. the ideal modern city. Thus it involves demolition of structures when it comes to the upgrading of newly planning settlements, which means Cap 378 does not compliment The Land Act regarding regularization scheme which is aimed at providing legal titles to occupiers and not planning or restructuring.
[46] Sara A. K & Kyessi A.G, Op.cit
[47] UNHSPC(UN HABITAT), Strategy for Implementation of the Millennium Development Goal 7 Target 11, p. 3
[48] …renewed concern about poverty has recently led the governments to, during the millennium summit in September 2000, adopt among other targets, a specific target on slums in United Nations Millennium Declarations which aims to significantly improve the lives of at least 100 million slum\dwellers by year 2020.This target was further proposed by the UN Task Force to be expanded and formulated as by 2020 improving substantially the lives of 100 million dwellers, while providing adequate alternative to new slum formation. (p.3)
[49] In February 2004 The UN Habitat signed the movement with the Government of Tanzania which sets a framework for cooperation and guidance for the implementation of ‘Cities without slums’, in Action plan to upgrade informal settlements in Dar-es-salaam by 2015
[50] UNHSPC(UN HABITAT),Op Cit, p. 4
[51] The total cost for improving the lives of 100 million slum dwellers has been estimated by millennium project task force 8 at USD 67 billion….combined official assistance and the private and public investments in slum upgrading is estimated to be less than 5 billion. The finance gap is significant. Bridging it requires rethinking how finance is derived for housing and basic services in cities of developing world. UNHSPC(UN HABITAT),Op Cit, p.51
[52] In February 2004 The UN Habitat signed the movement with the Government of Tanzania which sets a framework for cooperation and guidance for the implementation of ‘Cities without slums’, in Action plan to upgrade informal settlements in Dar-es-salaam by 2015, see ; also see Sara A. K & Kyessi A.G Op Cit 9
[53] See Sara A. K & Kyessi A.G, Op Cit p. 5, some of the infrastructure services have had foregone or standard reduced during the planning stage or in the implementation stage.
[54] Human Settlement Development Policy. P. 50: …..Hazardous lands are essential for clean air circulation and breaking up monotony of the built environment. The policy further states that these areas are to be protected from encroachment and are to be used for their intended purpose and that no title is to be offered to people, who intrude into hazardous, open spaces or other protected areas.
[55] This has also been stated in the National poverty reduction strategy paper that, ‘regularization is expected to facilitate the residents use of their land and property thereon as collateral with which they may obtain credits from banks’ on p. 25. Also in the parliamentary sessions when discussing the bill which led to new land Act of 1999 and eventually the introduction of land regularization scheme, it was said that the aim of land regularization scheme is to facilitate the use of land as collateral in loan application, see Tanzania parliamentary proceedings (hansard), 9th February 1999, pp 23-34.
[56] URT, The national strategy for development and poverty eradication, p.29
[57] To a larger extent, this article is based on the discussion made in Chapter Nine of the author’s LL.M. Theses submitted to the Open University of Tanzania in fulfillment of an LL.M. Degree Programme, 2007, entitled: “Enforcing Social Justice in Tanzania: the Case of Economic and Social Rights.” The author specifically thanks Prof. Peter for supervising the preparation of the Thesis.
[58] See, Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, Köln: Rudiger Koppe Verlag, 1997
[59] See, Constitutional (Fifth) (Amendment) Act, 1984 (Act No. 15 of 1984).
[60]Shivji, Issa G., Lawyers in Neoliberalism: Authority’s Professional Supplicants or Society’s Amateurish Conscience, Dar es Salaam: Faculty of Law, University of Dar es Salaam, 2006, p. 8.
[61] Ibid.
[62] Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, op. cit, p. 248.
[63] For example, in Shah v. Attorney-General [1970] 543, the High Court of Uganda interpreted the word “property” in the then Ugandan Constitution to include a contract. This case is referred to in Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, ibid, footnote 3, at p. 249.
[64] See, Pejovich, Svetozar, The Economics of Property Rights: Towards a Theory of Comparative Systems, Dordrecht/Boston/London: Kluwer Academic Publishers, 1990, referred in PETER, C.M., ibid, footnote 4, at p. 249.
[65] Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, ibid.
[66] Shivji, Issa G., Lawyers in Neoliberalism: Authority’s Professional Supplicants or Society’s Amateurish Conscience, op. cit, pp. 9-10.
[67] Ibid, p. 10. Also, see, Luxembourg, Rosa, The Accumulation of Capital, London: Routledge, 1963.
[68] For a detailed discussion on this issue see, generally, RAMCHARAN, B.G. (ed.), Judicial Protection of Economic, Social and Cultural Rights, Leiden/Boston: Martinus Nijhoff Publishers, 2005.
[69] See, Kijo-Bisimba, Helen, and Peter, C.M., Justice and Rule of Law in Tanzania: Selected Judgments and Writings of Justice James L. Mwalusanya and Commentaries, Dar es Salaam: Legal and Human Rights Centre, 2005, pp. 150-154.
[70] Ibid.
[71] See, Article 17(2) of the UDHR, which is re-echoed in sub-article (2) of Article 24 of the Constitution of Tanzania.
[72] See, Joseph Frank Adam v. the Czech Republic, Human Rights Committee, Communication No. 586/1994, published in RAMCHARAN, B.G. (ed.), Judicial protection of Economic, Social and Cultural Rights, op. cit, p. 398.
[73] See, for example, Alina Simunek, et al. v. the Czech Republic, Human Rights Committee, Communication No. 516/1992; G. Ato del Avellanal v. Peru, Human Rights Committee, Communication No. 202/1986; and Josef Frank Adam v. the Czech Republic, Communication No. 586/1994. All these cases are published in RAMCHARAN, B.G. (ed.), Judicial Protection of Economic, Social and Cultural Rights, Leiden/Boston: Martinus Nijhoff Publishers, 2005, pp. 381-405.
[74] This matter is discussed at length in Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, ibid, pp. 249-250; and Kijo-Bisimba, Helen, and Peter, C.M., Justice and Rule of Law in Tanzania: Selected Judgments and Writings of Justice James L. Mwalusanya and Commentaries, op. cit, pp. 150-154.
[75] See, specifically, KIJO-BISIMBA, Helen, and Peter, C.M., Justice and Rule of Law in Tanzania: Selected Judgments and Writings of Justice James L. Mwalusanya and Commentaries, ibid, p. 151. Also, see, SIEGHART, Paul, The International Law of Human Rights, Oxford: Clarendon Press, 1983.
[76] For a detailed account on this matter, see, KIJO-BISIMBA, Helen, and Peter, C.M., Justice and Rule of Law in Tanzania: Selected Judgments and Writings of Justice James L. Mwalusanya and Commentaries, ibid, pp. 150-154 and PETER, C.M., Human Rights in Tanzania: Selected Cases and Materials, op. cit, pp. 249-250.
[77] LUOGA, Florens, D.A.M, “The Tanzanian Bill of Rights,” in PETER, Chris M. and Juma, Ibrahim H. (eds.), Fundamentals Rights and Freedoms in Tanzania, Dar Es Salaam: Mkuki na Nyota Publishers, 1998, 40. Also, see, MWALUSANYA, James L., “The Bill of Rights and the Protection of Human Rights: Tanzania’s Court Experience,” reproduced in KIJO-BISIMBA, Helen, and Peter, Chris Maina, Justice and Rule of Law in Tanzania: Selected Judgments and Writings of Justice James L. Mwalusanya and Commentaries, Dar Es Salaam: Legal and Human Rights Centre, 2005.
[78] Ibid, p. 41.
[79] Cap. 118 R.E. 2002
[80] Ibid, section 11.
[81] LUOGA, Florens, D.A.M, op. cit, p. 41.
[82] SHIVJI, Issa G., Lawyers in Neoliberalism: Authority’s Professional Supplicants or Society’s Amateurish Conscience, op. cit, p. 10.
[83] Ibid.
[84] See, Shivji, Issa G., Class Struggle in Tanzania, London: Heinemann, 1976; Shivji, Issa G., Law, State and the Working Class in Tanzania, Dakar: CODESRIA Book Series, 1985; Shivji, I. G., The Concept of Human Rights in Africa, London: CODESRIA, 1989; SHIVJI, Issa G., The Legal Foundations of the Union in Tanzania and Zanzibar Constitutions, Dar Es Salaam: Dar Es Salaam University Press, 1990; Shivji, Issa G., et al (eds.), Constitutional and Legal System of Tanzania: A Civics Sourcebook, Dar Es Salaam: Mkuki na Nyota Publishers, 2004; Shivji, Issa G., Lawyers in Neoliberalism: Authority’s Professional Supplicants or Society’s Amateurish Conscience, Dar Es Salaam: Faculty of Law, University of Dar Es Salaam, 2006; Peter, C.M., Human Rights in Africa: A Comparative Study of the African Charter on Human and Peoples’ Rights and the New Tanzanian Bill of Rights, New York – Westport, Connecticut – London: Greenwood Press, 1990; and Peter, C. M., Human Rights in Tanzania: Selected Cases and Materials, op. cit.
[85] See, Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, op. cit, p. 250. Also, see, Ruhangisa, John E., Human Rights in Tanzania: The Role of the Judiciary, a Ph.D. thesis submitted to the University of London, 1998.
[86] The reasons for failure to incorporate the Bill of Rights in the Independence Constitution are discussed at length in Ruhangisa, John E., Human Rights in Tanzania: The Role of the Judiciary, ibid; Nyalali, Francis, “The Bill of Rights in Tanzania,” Vol. 8, University of Dar Es Salaam Law Journal, 1991; Shivji, Issa G., “Rights Struggles and the Bill of Rights in Tanzania,” Vol. 5, Zimbabwe Law Review, 1987; Luoga, Florens, D.A.M, op. cit; Makaramba, R.V., “The Efficacy of Human Rights Protection Mechanisms in Tanzania,” in Rwehumbiza, Projectus, et al (eds.), Human Rights Challenges in a Developing Country: Options and Strategies, an Annual Human Rights Conference Report, Dar Es Salaam: Legal and Human Rights Centre, 2003; MBUNDA, L.X., “Limitation Clauses and Bill of Rights in Tanzania,” Vol. 4, No. 2, Lesotho Law Journal, 1988; Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, ibid; Mbunda, L.X., “The Support Structure Theory and its Implication in Securing Basic Rights in Tanzania,” in Mchome, S. E. (ed.), Taking Stock of Human Rights Situation in Africa, Dar Es Salaam: Faculty of Law, University of Dar Es Salaam, 2002. Mughwai, Alute, “Forty Years of Struggles for Human Rights in Tanzania: How far have we Travelled?” in Mchome, S. E. (ed.), Taking Stock of Human Rights Situation in Africa, Dar es Salaam: Faculty of Law, University of Dar Es Salaam, 2002; and Mwalusanya, James L., “The Bill of Rights and the Protection of Human Rights: Tanzania’s Court Experience,” reproduced in Kijo-Bisimba, Helen, and Peter, Chris Maina, Justice and Rule of Law in Tanzania: Selected Judgments and Writings of Justice James L. Mwalusanya and Commentaries, Dar Es Salaam: Legal and Human Rights Centre, 2005. Also, see, Lubuva, Damian Z., Reflections on Tanzania’s Bill of Rights,” Commonwealth Law Bulletin, 14th April 1988.
[87] Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, ibid, p. 252.
[88] On the mass nationalizations see “Public Ownership” in Nyerere, Julius K., Freedom and Socialism: A Selection from Writings and Speeches 1965-1967, Dar Es Salaam: Oxford University Press, 1968, p. 251; Bradley, A.W., “The Nationalisation of Companies in Tanzania,” in Thomas, P.A. (ed.), Private Enterprise and the East African Company, Dar Es Salaam: Tanzania Publishing House, 1969, p. 207; DIAS, Clarence, “Tanzanian Nationalisations 2967-1970,” Vol. 4 No. 1 Cornell International Law Journal, 1970, p. 59; Bolton, D., Nationalisation – A Road to Socialism? The Lessons of Tanzania, London: Zed Books Ltd., 1985; Green, R.H., “A Guide to Acquisition and Initial Operation: Reflections from Tanzanian Experience 1967-1974,” in Faundez, Julio and Picciotto, Sol (eds.), The Nationalisation of Multinationals in Peripheral Economies, London: The Macmillan Press Ltd., 1978, p. 17; Bradley, A.W., “Legal Aspects of the Nationalisations in Tanzania,” Vol. 3 No. 3 East African Law Journal, 1967, p. 149; Ebenroth, Carsten Thomas and Karl, Joachim, “International Investments, Contracts and Debt Crisis,” Vol. 22 No. 1 The International Lawyer, 1988, p. 180; and Rugumamu, S., “State Regulation of Foreign Investment in Tanzania: An Assessment,” Vol. 13 No. 4 African Development, 1988, p.5
[89] Through the National Bank of Commerce (Establishment and Vesting of Assets and Liabilities) Act, 1967 (Act No. 1 of 1967).
[90] Through the State Trading Corporation (Establishment and Vesting of Interests) Act, 1967 (Act No. 2 of 1967).
[91] Through the Agricultural Products Board (Vesting of Interests) Act, 1967 (Act No. 3 of 1967).
[92] Act No. 4 of 1967.
[93] Act No. 5 of 1967. See, Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, op. cit, p. 252.
[94] PETER, C.M., Human Rights in Tanzania: Selected Cases and Materials, ibid, pp. 252-253.
[95] See, Luoga, Florens D.A.M., op. cit, p.41.
[96] Article 24(2) of the Constitution of Tanzania.
[97] Luoga, Florens D.A.M., op. cit.
[98] Ibid.
[99] High Court of Tanzania at Tabora, Civil Case No. 3 of 1982 (unreported).
[100] Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, op. cit, p. 253.
[101] [1986] T.L.R. 73.
[102] Act No. 9 of 1983.
[103] The Ruling was delivered on 28th March 1987, one year before the date when the Bill of Rights became justiciable on 16th March 1988.
[104] Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984 (Act No. 16 of 1984).
[105] Peter, C.M., Human Rights in Tanzania: Selected Cases and Materials, op. cit.
[106] High Court of Tanzania at Arusha, Miscellaneous Civil Application No. 38 of 1979 (unreported).
[107] High Court of Tanzania at Mbeya, Miscellaneous Criminal Case No. 2 of 1979 (unreported).
[108] Act No. 12 of 1974.
[109] Cap. 20 of the Revised Laws of Tanzania Mainland.
[110] Also, see, R. v. Metropolitan Police Commissioner ex-parte Parker [1953] 2 All E.R. 717.
[111] Vivid examples of violations of the right to property by Government functionaries are documented in the Legal and Human Rights Centre’s annual Tanzania Human Rights Reports. See, particularly, LEGAL AND HUMAN RIGHTS CENTRE, Tanzania Human Rights Report 2004, Dar es Salaam: Legal and Human Rights Centre, 2005, p. 34; and LEGAL AND HUMAN RIGHTS CENTRE, Tanzania Human Rights Report 2005, Dar Es Salaam: Legal and Human Rights Centre, 200, pp. 43-48.
[112] LEGAL AND HUMAN RIGHTS CENTRE, Tanzania Human Rights Report 2004, ibid, p. 34.
[113] (Act No. 4 of 1999) Cap. 113 R.E. 2002.
[114] (Act No. 47 of 1967) Cap. 118 R.E. 2002.
[115] LEGAL AND HUMAN RIGHTS CENTRE, Tanzania Human Rights Report 2004, op. cit, p. 34; and LEGAL AND HUMAN RIGHTS CENTRE, Tanzania Human Rights Report 2005, op. cit, pp. 43-44.
[116] (Act No. 5 of 1999) Cap. 114 R.E. 2002. For a detailed discussion on the essence of these land laws on the right to own landed property, see, OXFAM, “Independent Review of Land Issues, 2004-2005,” obtained at _we_do/isues/livelihoods/landrights/downloads/
[117] Op. cit.
[118] This quotation is translated freely from the Swahili version of the decision of CHRAGG.
[119] LEGAL AND HUMAN RIGHTS CENTRE, Tanzania Human Rights Report 2005, op. cit, p. 44.
[120] Ibid, pp. 44-46.
[121] Avtar Singh, Company Law, (14th edn) Eastern Book Company, Lucknow, p.1
[122] This principle was firstly established in the celebrated case of Solomon v. Solomon & Co. [1897] A.C. 22, H.L.,
[123] Professor L. C. B. Gower, The Principles of Modern Company Law, p. 647 (3rd edn., 1969)
[124] Ibid
[125] Avtar Singh Company Law p. 522 (12th edn., 1999)
[126] In Tanzania the procedure for winding up of companies whether voluntary or compulsory is provided for under Part VI of the Companies Act, Cap 212 [R.E.2002]
[127] Christopher F. Symes, Reminiscing the Taxation Priorities in Insolvency, Flinders University, Adelaide, 2004.
[128] Ibid, p.1
[129] 9 Ch D 469
[130] An Act to Amend the Laws relating to bankruptcy 1825, 6 George IV, c 161XVIII
[131] David Newman, supra, p.4
[132] Section 259 of the Companies Ordinance
[133] P.A. Thomas (ed), Private Enterprises and the East African Company, (Dar es Salaam: Tanzania Publishing House, 1969), pp. 47 – 49, see also Mhoja M. E., Winding up of Companies in Tanzania: An Analysis of Law and Practice, LL.M Dissertation, University of Dar es Salaam, 1993.
[134] Ibid
[135] See section 259(3)(4) of Companies Ordinance, Cap 212.
[136] Ibid, section 259(1)
[137]Act no. 12 of 2002
[138] The Act came into force in 1st March 2006 after the long awaited regulations made under the Act were completed and published in the Government Gazette
[139] See section 367(3) of the Act
[140] See Reg. 2 of the Companies (Inspection and Preferential Debts) (Monetary Limits) Regulation, 2004. GN. No. 38 of 2005 published on 11.02.2005
[141] P. Mihyo, “Non- Market Controls and the Accountability of Public Enterprises in Tanzania”, London, 1994 p.18, see also Benhajj S. Masoud, “Corporate Insolvency Law and Public Enterprises in Tanzania: A Historical Perspective” The Tanzania Lawyer, October 2005 issue at p. 23
[142] These were established under Public Corporations Act 1969, Act no 17 of 1969. Under this legislation public corporations were established by order of the President published in the gazette for such functions as it would be determined by the Order.
[143] P. Mihyo, Op. Cit
[144] Ibid
[145] Some commentator from the early 1500’s has referred it as “ pound and pound alyke” see David Newman, The History of Employee Priority and Protection in Australia Corporate Insolvency, available at .au [accessed on 17th June 2006]
[146] This section is a replica of section 243 of the former Companies Ordinance
[147] See also Regulation 227(1) of the Companies (Insolvency) Rules, 2004, GN. 43 of 2004 published on 11.02.2005 which provides to the effect that debts other than preferential debts rank equally between themselves in the winding up of companies. In other words, preferential debts rank above all other debts and are paid in priority of others.
[148] See also section 250 of the Companies Ordinance
[149] Section 363 read together with section 367 of the Act
[150] See Mandari, V. B. Op. Cit. p. 114
[151] See Mandari V. B. Creditors Rights under the Law and Practice of Corporate Insolvency in Tanzania Op Cit. p 109
[152] Ibid
[153] Ibid
[154] The World Bank, Principles and Guidelines for Effective Insolvency and Creditors Rights System, April 2001a paper available at
, last visited on 15th December 2006.
[155] Ibid
[156] ILO “The Preferential Treatment of Workers Wage Claims in Case of Employer’s Bankruptcy”, Report of the Committee of Experts, Report III(1B)-2003 Chapter V at p. 166
[157] Ibid
[158] Ibid
[159] (1916) 41 DLR 123 as quoted in David Newman, Ibid
[160] See Justice Simon Whelan and Leon Zwier, Employee Entitlements and Corporate Insolvency and Reconstruction, a paper available at
last visited on 13th December 2005.
[161] Ibid
[162] A.S. Bronstein The Protection of Workers Claims in the Event of the Insolvency of Their Employer (1987) ILR Vol 126 No. 6 p. 717 referred in David Newman, above
[163] See section 367(2) (c)
[164] Ibid
[165] Ibid
[166] Section 4 of the Employment and Labour Relations Act, 2004, Act No 6 of 2004
[167] Mndolwa E. B., Kashonda M.A., and Binamungu C.S. Liquidation Law and Practice in Mainland Tanzania, Op. Cit at p. 86
[168] Section 2 of the Preferential Payments Ordinance 1952 Act No 38 of 1952
[169] David Newman, The History of Employee Priority and Protection in Australia Corporate Insolvency, Op. Cit at p. 2
[170] Report of the Insolvency Law Review Committee, Insolvency Law and Practice, Cmnd 8558, (1982) [1435]
[171] Cork Report para 1398,
[172] Ibid
[173] The New Zealand Law Commission, Priority Debts in the Distribution of Insolvent Estates- An Advisory Report to the Ministry of Commerce (NZLC SP 12, Wellington, 1999)
[174] Ibid para 25
[175] Ibid
[176] Ibid
[177] Report of the Insolvency Law Review Committee, Insolvency Law and Practice, Cmmd 8558, (1982) [1428]
[178] See discussion on the subject in the paper available at
[last visited on 11th Nov 2005]
[179] Ibid, see also Susan Cantlie ‘Preferred Priority in Bankruptcy’ in Jacob Ziegel (ed) Current Developments in International and Comparative Corporate Insolvency Law (1994) 413 and Robbie Campo, ‘The Protection of Employee Entitlements in the Event of Employer Insolvency: Australian Initiatives in the Light of International Models’ (2000) 13 Australia Journal of Labour Law at p.236
[180] Ibid
[181] Ibid
[182] Ibid
[183] James White, ‘Failure and Forgiveness: A review ‘ (1999) 73 American Bankruptcy Law Journal 435 as quoted in a paper available at
[last accessed on 18th November 2005
[184] Ibid, see also Kathryn Heidt, ‘Product Liability, Mass Tort and Environmental Obligations in Bankruptcy: Suggestion for Reform’ 3 American Bankruptcy Institute Law Review 117
[185] Visit
[last accessed on 08th July 2005]
[186] Ibid
[187] Ibid
[188] Ministry of Economic Development (N.Z.) ‘Insolvency Law Review’ (Public Discussion Documents, February 2001) 7.1
[189] Ibid
[190] Michael Quinlan, ‘Potential Changes to Priorities for Secured Lenders’ (Paper Presented at the Commercial Law Association seminar on Proving Insolvency and Securing Debt, Sydney, 20 June 2000) 11-17
[191] International Labour Organisation, “The Preferential Treatment of Workers’ Wage Claims in Case of Employer’s Bankruptcy”, Report of Committee of Experts, Report III (1B) – 2003, p.183
[192] Ibid
[193] Ibid
[194] Michael Quinlan, Op Cit
[195] Australia Law Reform Commission, General Insolvency Inquiry, Report No. 45 (1988) [155]
[196] Robbie Campo, ‘The Protection of Employee Entitlements in the Event of Employer Insolvency: Australian Initiatives in the Light of International Models’, (2000) 13 Australia Journal of Labour Law 236
[197] Artuso Bronstein, “Comparative Study” in Edward Yemin and Artuso Bronstein (eds.): The Protection of Workers’ Claims in the Event of the Employer’s Insolvency,ILO, 1991, pp. 52-54
[198] Ibid
[199] Ibid
[200] See Victoria Wise and Judy Oliver, Are Employees Entitled to More? (2002) CPA Australia, available at
[accessed on 11th July 2005
[201] David Cowling, ‘Coming First with a Vengeance: The Commissioner of Taxation and Employees’ (1991) Business Law Education Centre 40
[202] Act No 12 of 2002, this plan have been introduced under Chapter 10 of the new legislation which is intended to assist the distressed company which would otherwise been subjected to compulsory liquidation, but which, if given time and under close supervision of the Administrator, is able to turn around into viable going concern and where the administration order is more advantageous in realization of company assets than would be affected on winding up. For critical analysis of the rescue scheme and its efficacy in insolvency law see Renju M.K, “The Legal Framework of Corporate Insolvency in Tanzania: A case study of Administration Order, LLM Dissertation, University of Dar es Salaam,2002.
[203] The Patents Act, 1987, Act No.1 defines a Patent to mean a right granted by a public authority which confers on the owner the exclusive right to exploit his invention or innovation in a given country for a given period of time.
[204] “Technological Information contained in Patent Documents” A paper prepared by WIPO, Geneva, September, 1984 ISIP/84/3 at 3.
[205] It is from these efforts in R & D that a Patent gives an exclusive right to the inventors; where by other persons are excluded from manufacturing, using or selling a particular patented product or using a patented method or process. For detailed excusive rights see section 5 Article 28 of the TRIPS Agreement more especially sub-Article 1(a) and 1(b).
[206] Patenting of life Forms and their Implications on developing countries. A paper presented by the late Mngulwi Richard B. the then Registrar of Trade and Service Marks and Patents during the first National Workshop on Plant Genetic Resources and Biotechnology 16 – 20th January, 1990 at 2.
[207] Ibid
[208] Ibid
[209] French granted the first patent in 1871 which described the production of a porcelain imitation. German granted the first patent in 1877 which concerned a procedure for the production of red dye while Australia granted its first patent in 1899 and which concerned the regulation of arc lamps.
[210] Cap 217 of the Revised laws of Tanganyika
[211] Cap 220 of the Revised laws of Tanganyika
[212] Cap 352 of the Revised laws of Tanganyika
[213] See Kihwelo P.F., “Intellectual property Rights Protection in Tanzania: The Night Mare and the Noble Dream,” Huria Journal of the Open University of Tanzania, Volume V, 2003 at 115
[214] Act No. 1 of 1987
[215] This is by virtue of Government Notice Number 457 of 1994.
[216] Cap 217 op cit
[217] See section 7(1) of Act No. 1 of 1987.
[218] See section 7(2) of Act No. 1 of 1987 also see Article 27 of the TRIPS Agreement. Furthermore the laws of some countries exclude certain specific kinds of inventions from the possibility of patenting, for example inventions which are incorporated in substance obtained by nuclear transformation. Other inventions which are not patentable are those whose publication or exploitation would be contrary to public order or morality.
[219] P.F. Kihwelo loc. cit at 115
[220] See Section 8 and 9 of Act No.1 of 1987
[221] See section 10 of Act No. 1 Ibid.
[222] See sections 11 Ibid.
[223] P.F. Kihwelo loc. cit at 115
[224] The Uruguay round took place to the background of the claim by American industries that they were suffering from heavy losses from the absence of adequate protection of their intellectual property rights abroad. The industries in such sectors as computers software and microelectronics, entertainment, chemicals, pharmaceuticals and biotechnology, had become concerned about the loss of commercial opportunities abroad. For more details see Adede A.O. in Biopiracy International, The Political Economy of Trips Agreement; Origins and Negotiations, Acts, Kenya, 2001 at 2.
[225] Adede A.O. Ibid
[226] WIPO is the UN Agency that foresees and administers intellectual property rights and its headquarters are in Geneva, Switzerland.
[227] Adede A.O. op cit at 3
[228] See Marco Bronckers, The Impact of TRIPs: Intellectual Property Protection in Developing Countries, 31 Common Market Law Review 1246 (1994).
[229] Yusuf, A.A. 1998. Intellectual Property and International Trade: The Trips Agreement, Marco Bronkers ibid
[230] Adede A.O. at 15.
[231] This is section 5 of Part II on Patentable Subject Matter.
[232] See Doc. 1P/C/W/206
[233] Ibid cited also in Adede A.O. at 17.
[234] Ibid
[235] See, e.g. Lettington and Manek, “Pandora’s Box”: TRIPs Article 27, 3 (b) and the Convention on Biological Diversity, paper presented at the 1999 Nairobi Conference on Trade Related Aspects of Intellectual Property Rights and the Convention on Biological Diversity, (unpublished, on file with the present author); Dutfield, Indigenous Peoples, Bioprospecting and the TRIPs Agreement: Threats and Opportunities, (unpublished paper presented at the 1999 Nairobi Conference, on file with the present author); Mugabe, Intellectual Property Protection and Traditional Knowledge: An exploration in International Policy Discourse, (unpublished paper presented at the 1999 Nairobi Conference, on file with the author); Batanouny, Land-use traditions and indigenous knowledge in the Arab region, 2 WORLD CONSERVATION 18 (2000).
[236] See, the Right to Good Ideas, the Economist, 25 at 30 (June 23rd – 29th 2001 cited also in Adede A.O. at 18 - 19.
[237] For a similar comment see The Crucible Group, People, Plants and Patents: The impact of intellectual property on trade, plant biodiversity, and rural society. Ottawa, ON, IDRC, 1994.
[238] See A Paper on Intellectual Property Policy in Tanzania, A paper that was delivered by Mary Kiwia at a workshop on Science for Societies at the then Sheraton Hotel from 5th – 7th June, 2000 (on file with the present author).
[239] These include the World Charter for Nature, GA Res. 37/7, UN GAOR, 37th Sess., UN Doc. A/Res/37/7 (1982); United Nations Conference on Environment and Development, Framework Convention on Climate Change reprinted in (1992) 31 Int’l Leg. Mat. 849 [Climate Change Convention]; Convention on Biological Diversity, reprinted in (1992) 31 Int’l Leg. Mat. 818 [Biodiversity Convention]; and Cartagena Protocol on Biosafety to the Convention on Biological Diversity, reprinted in (2000) 39 I.L.M. 1027; online, Convention on Biological Diversity, , last accessed 3 January 2008 [Biosafety Protocol].
[240] See Kara-Anne Yaren, “Trade and Genetically Modified Foods: Frankenfears: A Call For Consistency” (2001) 1 Asper Rev. Int'l Bus. & Trade L. 149 at 150 (Lexis) [Yaren]; McHughen, Alan, Pandora's Picnic Basket: The Potential and Hazards of Genetically Modified Foods (Toronto: Oxford University, 2000) at 9 [McHughen]; and Jeffrey K. Francer, “Frankenstein Foods or Flavor Savers? Regulating Agricultural Biotechnology in the United States and European Union” (2000) 7 Va. J. Soc. Pol'y & L. 257 at 261 (Lexis) [Francer].
[241] See Francer, ibid., at 261; and Boyens, Ingeborg, Unnatural Harvest: How Corporate Science is Secretly Altering our Food (Toronto: Doubleday, 1999) at 18 [Boyens].
[242] Loc. Cit.
[243] Loc. Cit.
[244] George Wald, “The Case Against Genetic Engineering” in Jackson, David Archer & Stich, Stephen P eds., The Recombinant DNA Debate (Englewood Cliffs, N.J.: Prentice-Hall, 1979) at 127.
[245] McHughen, supra note 2 at 47.
[246] See McHughen, supra note 2 at 48; and Boyens, supra note 3 at 5.
[247] John S. Applegate, “The Prometheus Principle: Using the Precautionary Principle to Harmonize the Regulation of Genetically Modified Organisms” (2001) 9 Ind. J. Global Leg. Stud. 207 (Lexis) [Applegate] at 224. At 207, Applegate argues that the GM technology could also reduce the nutrition content of food without notice.
[248] See Yaren, supra note 2 at 152.
[249] See Yaren, supra note 2 at 152, and Francer, supra note 2 at 263. Longer lasting foods include fruits and vegetables that are genetically engineered so as to have a longer shelf life.
[250] Yaren, supra note 2 at 152; and McHughen, supra note 2 at 107.
[251] For more on this subject, see Boyens, supra note 3 at 39; Porritt, Jonathon, Prospects for Tomorrow: Playing Safe: Science and the Environment (New York: Thames & Hudson, 2000) at 81 [Porritt] and Kurt Buechle, “The Great, Global Promise of Genetically Modified Organisms: Overcoming Fear, Misconceptions, and the Cartagena Protocol on Biosafety” (2001) 9 Ind. J. Global Leg. Stud. 283 at 291(Lexis) [Buechle]
[252] Boyens, supra note 3 at 11.
[253] Boyens, supra note 3 at 40. See also Porritt, supra note 13 at 81.
[254] See Porritt supra note 13 at 81; and Grace, Eric S, Biotechnology Unzipped: Promises and Realities (Toronto: Trifolium Books, 1997) at 108 [Grace].
[255] See Buechle, supra note 13 at 290 and Boyens, supra note 3 at 108. The introduction of a gene from the Brazilian nut into soybeans for instance was found to trigger allergic attacks in people who were allergic to the Brazilian nut.
[256] See Applegate, supra note 9 at 218; and Boyens, supra note 3 at 110.
[257] See Boyens, supra note 3 at 108; Applegate, supra note 9 at 218; and Buechle, supra note 13 at 290. Boyens argues that the introduction of non-crop proteins into human food may lead into other unpredictable allergies.
[258]See Buechle, supra note 13 at 294; and Boyens, supra note 3 at 111.
[259] Buechle, supra note 13 at 294.
[260] Biodiversity is defined in Article 2 of the Biodiversity Convention, supra note 1, as “…the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.” The development of GM crops that are cheaper and easier to produce may lead to the production of just a few strains of crops to the detriment of biodiversity.
[261] Boyens, supra note 3 at 166.
[262] See Darren Smits & Sean Zaboroski, “Trade and Genetically Modified Foods: GMOs: Chumps or Champs of International Trade?” (2001) 1 Asper Rev. Int'l Bus. & Trade L. 111 at 114.
[263] This brings about the issue of the precautionary principle, which is discussed in the subsequent pages. See Applegate, supra note 9
[264] The Biosafety Protocol, supra note 1, in particular urges States to adopt the precautionary principle in order to protect the environment. See Article 1 and the Preamble to the Protocol.
[265] For a detailed discussion on the WTO criteria, see discussion starting at page 14.
[266] Tim O’Riordan et al., “Reinterpreting the Interpretation” in O’Riordan, Tim et al, eds., Reinterpreting the Precautionary Principle (London: Cameron May, 2001) 269 [O’Riordan].
[267] See Philippe Sands, “International Law in the Field of Sustainable Development: Emerging Legal Principles” in Lang, Winfried ed., Sustainable Development and International Law (London: Graham & Trotman Ltd., 1995) 53 at 65.
[268] See Gregory D. Fullem, “The Precautionary Principle: Environmental Protection in the Face of Scientific Uncertainty” (1995) 31 Willamette L. Rev. 495 (Lexis).
[269] Tim O’Riordan et al., “The Evolution of the Precautionary Principle” in O’Riordan, supra note 28, 9 at 13 [O’Riordan, Evolution].
[270] Sonia Boutillon, “The Precautionary Principle: Development of an International Standard” (2002) 23 Mich. J. Int'l L. 429 at 430.
[271] David Gee et al., eds., “Late Lessons from Early Warning: The Precautionary Principle 1896 –2000” in 22 Environmental Issue Report (EEA: Copenhagen, 2001), online: European Environment Agency
>, at 13. Last accessed 3 January, 2008
[272]World Charter for Nature, supra note 1.
[273] World Charter for Nature, ibid., Art. 11 (b).
[274] See Principle 15 of United Nations Conference on Environment and Development, Rio Declaration on the Environment and Development, reprinted in (1992) 31 Int’l Leg. Mat. 874 [Rio Declaration].
[275] Climate Change Convention, supra note 1: Article 3(3) calls upon the State Parties to take precautionary measures in order to avoid adverse effects of climate change.
[276]Biodiversity Convention, supra note 1. The preamble provides that; “… where there is a threat of … or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat…”
[277] Some instruments even go a step further and grade this potential harm. For instance, the Rio Declarion, supra note 36 talks of “serious or irreversible damage” while Biodiversity Convention, supra note 1, talks of “significant harm”. Others however just talk of potential harm to the environment.
[278] See James Cameron “The Precautionary Principle in International Law” in O’Riordan, supra note 28 at 113 [Cameron].
[279] For a further discussion on this point, see O’Riordan, Evolution supra note 31.
[280] The principle has been regarded as vague, ill-defined, ambiguous, and confusing. See Jan Bohanes, “Risk Regulation in WTO Law: A Procedure-Based Approach to the Precautionary Principle” (2002) 40 Colum. J. Transnat'l L. 323 at 331 (Lexis) [Bohanes].
[281] The purpose is to guide States in making decisions where there is no scientific certainty on the harmfulness of certain acts on the environment.
[282] For a detailed analysis of the shortcomings of the principle, see Dr. Hans-Joachim Priess & Dr. Christian Pitschas, “Protection of Public Health and the Role of the Precautionary Principle Under WTO Law: A Trojan Horse Before Geneva's Walls?” (2000) 24 Fordham Int'l L.J. 519 at 436 (Lexis) [Priess & Pitschas].
[283] See for instance Bohanes, supra note 42; and James E. Hickey Jr. & Vern R. Walker, “Refining the Precautionary Principle in International Environmental Law” (1995) 14 Va. Envtl. L. J. 423 (Lexis) [Hickey & Walker].
[284] See Article 38 of the Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, T. S. No. 993 [ICJ Statute], which lays down the various sources of international law. For a further discussion on this, see Priess & Pitschas, supra note 44; and Cameron, supra note 40 at 122.
[285] For instance, UN Declarations such as the Rio Declarion, supra note 36, which are non-binging, but are rather aimed at guiding States on various international law issues.
[286] In most IEL Conventions, the precautionary principle is found in the preamble, and is usually framed in a language that merely urges the Parties to the Conventions to observe it.
[287] Hickey & Walker, supra note 45 at 438.
[288] See Cameron, supra note 40 at 123.
[289] See the following discussion on precautionary principle in international trade law.
[290] The 1947 GATT was aimed at reducing tariffs and other barriers to international trade in goods. Most of the provisions of the 1947 Agreement, including Article XX were incorporated into the 1994 GATT at the conclusion of the latest multilateral trade negotiations. See Article XX of the General Agreement on Tariffs and Trade, 30 October 1947, 55 U.N.T.S. 194, online: World Treaty Organization, < >, last accessed 3 January 2008 [1947 GATT]. See also General Agreement on Tariffs and Trade, 1994, online: World Trade Organization, < >, last accessed 3 January 2008 [1994 GATT].
[291] See generally, Susan Tiefenbrun, “Free Trade and Protectionism: The Semiotics of Seattle” (2000) 17 Ariz. J. Int'l & Comp. Law 257 (Lexis); and Andrew J. Kelly “The GATT Obstacle: International Trade as a Barrier to Enforcement of Environmental Conservation on the High Seas” (1998) 12 Fla. J. Int'l L. 153 (Lexis).
[292] Article XX (b) and (g) of the 1947 GATT, supra note 52.
[293] Report of the WTO Appellate Body, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, (12 March 2001), online: WTO, < >, last accessed 3 January 2008 [Asbestos Case].
[294] For a further analysis of this case, see Priess & Pitschas, supra note 44 at 538.
[295] See Agreement Establishing the WTO, reprinted in (1994) 33 I.L.M. 1144 [WTO Agreement].
[296]See for instance, the General Agreement on Trade in Services, online: World Trade Organization, < >, last accessed 3 January 2008; and Trade Related Aspects of Intellectual Property Rights, online: World Trade Organization, , last accessed 3 January 2008.
[297] Agreement on the Application of Sanitary and Phytosanitary Measures, online: World Trade Organization, < htm >, last accessed 3 January 2008 [SPS Agreement].
[298] Annex A to the SPS Agreement, ibid., defines a sanitary or phytosanitary measure as any measure applied to protect animal or plant life or health from risks arising from; the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs; diseases or other damage carried by animals, plants or products thereof, or from the entry, establishment or spread of pests.
[299] See the Preamble to the SPS Agreement, supra note 59.
[300] Article 2(2) SPS Agreement, supra note 59. See also the discussion on risk assessment at page 20 below for a further analysis of this section.
[301] Article 3 (1) SPS Agreement, supra note 59.
[302] Article 3 (3) SPS Agreement, supra note 59.
[303] Article 5(1) and (2) SPS Agreement, supra note 59. See also the discussion on risk assessment at page 20 below for a further analysis of this section.
[304] Article 5(7) SPS Agreement, supra note 59.
[305] See Report of the WTO Appellate Body, Japan - Measures Affecting Agricultural Products, WT/DS76/AB/R (22 February 1999); online: WTO < >, last accessed 3 January 2008, paragraph 89 [Japan Agricultural Products Case].
[306] Report of the WTO Appellate Body on EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R (January 16, 1998); online: World Trade Organization, <
>, last accessed 3 January 2008 [Hormones Case].
[307] See paragraph 81 of Japan Agricultural Products Case, supra note 67.
[308] Hormones Case, supra note 68 at 47.
[309] Hormones Case, supra note 68 at 47.
[310] Kenya has for instance used GM technology to produce a sweet potato that is resistant to viral diseases. In 2005, GM maize was planted in open fields, a move that was criticized by some as a potential environmental hazard, especially in face of the fact that there is no legal framework for the regulation of GMOs; but welcomed by others as a food security measure. See generally, Paarlberg, Robert L. The Politics of Precaution: Genetically Modified Crops in Developing Countries (London: The John Hopkins University, 2001) at 44 [Paarlberg]. See also “Kenya Plants Genetically Modified Maize in Open Fields”, M&C Science and Nature, online: <
>, last accessed July 1, 2005.
[311] See the discussion starting on page 12 above on the precautionary principle in international trade law.
[312] Ibid.
[313] Biosafety Protocol, supra note 1.
[314] See Article 19 of the Biodiversity Convention, supra note 1, which calls upon the State Parties to the Convention to negotiate a Protocol on living modified organisms.
[315] Article 1 Biosafety Protocol, supra note 1.
[316] Article 1 Biosafety Protocol, supra note 1.
[317] Article 7 Biosafety Protocol, supra note 1.
[318] See Article 34, Vienna Convention on the Law of Treaties, opened for signature 23 May 1966, 1155 U.N.T.S. 336 [Vienna Convention].
[319] See Article 38 of the Vienna Convention, ibid.
[320] See the Preamble to the Biosafety Protocol, supra note 1.
[321] The SPS Agreement as discussed above on page 13 above lays down a strict criteria for the temporary exercise of what may be termed as a precautionary approach. Article 1 of the Biosafety Protocol, supra note 1 on the other hand is based upon the precautionary approach as contained in Principle 15 of the Rio Declaration, supra note 36.
[322] See Art. 30(3) of the Vienna Convention supra note 80, which provides that in the interpretation conflicting provisions in treaties concluded between the same parties, the later treaty, which in this case is the Biosafety Protocol, would be given preference.
[323] See discussion at page 5 above on the negative effects of GMOs.
[324] See discussion on page 6 above on potential negative effects of GMOs on biodiversity.
[325] Kenyan exports to the EU are mainly primary agricultural products such as tea, coffee, plants, and flowers. For more information on the Kenyan – EU trade, see The EU and Kenya: Bilateral Relations, online: Delegation of the European Commission – in the Republic of Kenya < >, last accessed 3 January 2008.
[326] See discussion starting at page 12 above on the SPS Agreement.
[327] Paragraph 4 of Annex A of the SPS Agreement, supra note 59.
[328] Article 2(2) SPS Agreement, supra note 59.
[329] See paragraph 76 of Japan Agricultural Products Case, supra note 67 and paragraph 193 of the Hormones Case, supra note 68.
[330] Paragraph 193 of the Hormones Case, supra note 68.
[331] Paragraph 84 of Japan Agricultural Products Case, supra note 67.
[332] Paragraph 190 of the Hormones Case, supra note 68.
[333] See discussion on page 5 above, which stresses that most of the environmental risks associated with GMOs are merely potential.
[334] Article 5(7) SPS Agreement, supra note 59.
[335] See discussion on page 14 above on the conditions laid down by the AB.
[336] See paragraph 89 of Japan Agricultural Products Case, supra note 67.
[337] Kenyans living in the semi arid areas mainly rely on food aid, without which they would die of starvation. See generally, Osinde Obare “70000 in Danger of Starvation” East African Standard (1 March 2003) online: , last accessed 10 April 2003.
[338] Biotechnology companies are even able thorough the ‘terminator technology’ to create seed that produce sterile offspring, in order to check on their replication. See generally, Kojo Yelpaala, “Owning the Secret of Life: Biotechnology and Property Rights Revisited” (2000) 32 McGeorge L. Rev. 111 at 171 (Lexis).
[339] The main intellectual property laws in Kenya are the Industrial Property Act Cap. 509, and the Trademarks Act Cap. 506 of the Kenya Laws. See “An Introduction to Kenya Industrial Property Institute”, online: Kenya Industrial Property Institute (KIPI) < kipi.go.ke/introduction.htm >, last accessed 3 January 2008.
[340] See generally, Mary Lynne Kupchella, “Agricultural Biotechnology: Why It Can Save the Environment and Developing Nations, But May Never Get a Chance” (2001) 25 Wm. & Mary Envtl. L. & Pol'y Rev. 721 (Lexis).
[341] See Cyrus G. Ndiritu, “Kenya: Biotechnology in Africa: Why the Controversy?” Agricultural Biotechnology and the Poor, online: Consultative Group of International Agricultural Research (CGIAR) < . >, last accessed 3 January 2008.
[342]There are also fears that agricultural biotechnology may intensify the gap between the rich and the poor, since rich and commercial farmers would be in a position to afford GM seeds, and hence enjoy the benefits associated with GM crops, gaining advantage over poor and subsistence farmers, who may not afford the protected seeds. For a further discussion on this, see G. J. Persley, “Agricultural biotechnology, the Environment, and the Poor: Promethean Science”, online: CGIAR at 14, last accessed 3 January 2008.
[343] See the discussion on page 5 above on the risks of GMOs.
[344] Planck Max, The Philosophy of Physics (London: G. Allen & Unwin, 1936).
[345] The Sexual Offences Special Provisions Act 1998, No.4; Cap.101 R.E.2002, applies to Tanzania(mainland only) and does not apply to Zanzibar.
[346] Law Reform Commission of Tanzania, (1994), Criminal Law Reform Project on “ Criminal Law as a Vehicle for the Protection of Rights to Personal Integrity, Dignity and Liberty in Tanzania: Need for Reform”; Andikalo, Ibrahim (1998/99) “ The Administration of Criminal Justice in Tanzania: An investigation into legal problems in the application of the Sexual Offences Special Provisions Act,1998”, LLM coursework paper, University of Dar es salaam, Faculty of Law.
[347] The Penal Code, Cap. 20 R.E.2002; the Criminal Procedure Act 1985, Cap.16 R.E.2002; the Children and Young Persons Ordinance, Cap.13 R.E.2002; the Evidence Act 1967, No. 6, Cap.6 R.E.2002
[348] Andrew Avarity v. R, (1973) LRT n.92
[349] The Constitution of the United Republic of Tanzania 1977 (as amended); Cap.2 R.E.2002;
[350] Kabulungu Juma v. R, (1991) TLR 154
[351] (1991) TLR 154, Nguza Viking alias Babu Sea & 3 Others v. R, Criminal Appeal No.84 of 2004, High Court of Tanzania at Dar es salaam (unreported)
[352] Detailed information about this case is available on website at :http:llnews.bbc.co.ukl2lhilasia-pacific13963863.stm
[353] The island’s mayor, his son, a post master and other wealthy businessmen. In this case, for example, the mayor’s son Randy Christian,] convicted of four rapes and five indecent assaults received a mere 6 years in prison.
[Terry Young] Another person convicted of one rape and six indecent assaults received 5 years in prison [and Dennis Christian] the post master who had pleaded guilty to one indecent assault and two sexual assaults received community service.
[354] Daudi Ndugali V.R., Criminal Appeal No.237 of 2004, Court of Appeal of Tanzania at Mbeya decision delivered on 27.05.2005
[355] Section 138B of the Penal Code
[356] section 138B(1)(d) as reiterated in the decision in Nguza Viking alias Babu Sea & 3 others v. R, Crim.Appeal No.84 of 2004, High Court of Tanzania at Daresalaam a decision delivered on 12.01.2005
[357] Website: BBC News, World Edition Thursday, 28 October, 2004 or ].
[358] Section 138B(1)(f)
[359] The Island’s mayor, Steve Christian, was given 3 years in prison after being convicted of five rapes; lit Len Brown, aged 78, convicted of two rapes was sentenced to 2 years jail; iv. Dave Brown, aged 49, found guilty of nine indecent assaults, was sentenced to community service; Since then, new laws including a Child Protection act have been enacted in the island and Police and Social Workers have been sent to the island.]
[360] Section 138D(1) of the Penal Code
[361] Leila Sheikh v. Executive Chairman, Commission For Aids & Another, Misc. Civ. Cause No. 21 of 2004, High Court of Tanzania, Dar es Salaam (unreported)]
[362] Section 139(1) Penal Code was brought by Section 13 of Sexual Offences Special Provisions Act, 1998 by the repeal and replacement of s.139 of the Penal Code on procuration
[363] Section 139(1)(d) Penal Code
[364] Section 139(1)(f) Penal Code.
[365] Middle East
[366] Section 139(1)(f) Penal Code
[367] UNICEF, in a Study titled “ Broken Promises, Shattered Dreams”
[368] Iringa, Tanga and Singida Regions have been identified as major sources
[369] Section 139A of the Penal Code
[370] Section 139A(1)(iii) Penal Code
[371] section 138(1) of Penal Code creates the offence of defilement by husband of wife under fifteen years
[372] Section 138(1) of Penal Code
[373] Section 154(1) Penal Code
[374] Section 154(1)(c) Penal Code
[375] Section 158(1) Penal Code
[376] Section 160 Penal Code
[377] section 169A Penal Code was added by section 21 SOSPA
[378] The Minimum Sentences Act 1972, Act No.1, Cap.90 R.E.2002
[379] (1975) 2 All ER 1059
[380] R.v.R, (1991) All ER 482
[381] Mtundu Chile & 3 Others v. R, (1970) HCD No.304
[382] Haruna Ibrahim v.R, (1967) HCD No.76
[383] (1953) 20 EACA 223,
[384] Gamaiyo S/o Melau v.R, (1968) HCD No.228 . Note that Platt J.(as he then was) on appeal quoted the principles in case of Adamu Mulira V.R. (1953) 20 EACA 223
[385] R v. Paskari s/o Joseph, (1969) HCD No.225
[386] R.v.Eagleton, (1855) Dears CC 515
[387] Criminal Case No. 73 of 1993, High Court of Tanzania, Songea District Registry (unreported)]
[388] Section 24 of SOSPA amended section 186 of the Criminal Procedure Act 1985 by adding sub section (3),
[389] section 3(5) of the Children and Young Persons Ordinance, Cap.13 R.E.2002
[390] Kibongem Araph Kahl v.R, (1959) EA 92 adopted by the High Court of Tanzania in Rv.Elinaja & another (1971)HCD No.357; Jackson Oniyiwa V.(1969) HCD No.27 and R.v Jairi Mwaipopo (1968) HCD No.300
[391] Chila & Another v. R, (1967) EA 722
[392] R v. Charles Kisengelo, (1967)HCD No.2004; Henry Kilelaeya v. R, (1967) HCD No.205; Moses Kasisi & Another v. R, Criminal Appeal No.105 of 1987, Court of Appeal of Tanzania at Daresalaam (unreported)
[393] Mchelengwanjingi s/o Masala v.R, (1968) HCD No.370
[394] citing R.V. Camplin, (1845) Cox CC220
[395] R v.Rashid s/o Mohamed, (1968) HCD No.369
[396] Abasi Ramadhani v.R , (1969) HCD No.226
[397] Shiku Salehe v.R., (1987) TLR 193
[398] R v. Pauni Nasinda, (1967) HCD No.207
[399] R v. Amiri s/o Ali, (1969) HCD No.41
[400] Amri s/o Ahmed v. R, (1968) HCD No.329
[401] R v. Revocatus s/o Nsolo, (1967) HCD No.315
[402] Shiku Salehe v. R, (1987) T.L.R. 193
[403] Eliakim Nickolaus v. R, (1969) HCD No.231
[404] Matonya Chima v. R, (1967) HCD No.98,
[405] XY(Minor) v. R., (1983) T.L.R. 101
[406] R.v.Mabula Magana, (1984) T.L.R.271
[407] Juma Elia v. R, Criminal Case No.29 of 1999, High Court of Tanzania, Dodoma District Registry (unreported)
[408] Dhahiri Ali v.R., (1989) TLR 27as per s.127 (2) of Tanzania Evidence Act, 1967;
[409] Godfrey Aidan v. R., Criminal Appeal No.80 of 1999, High Court of Tanzania, Songea District Registry (unreported).
[410] R v. Michael s/o Said Yohana, Criminal case No.27 of 2000, High Court of Tanzania, Songea District Registry (unreported)
[411] The AFRICAN Newspaper, Daresalaam. Friday 5th November, 2004 at page “Don’t ask Rape Questions During Holy Month of Ramadhan”; MTANZANIA, Friday 5” November, 2004 at page 5 “Mps want Rapists to be hanged!”.
[412] Daily News, Daresalaam, Wednesday 27”, October, 2004 “Brothers on Rape Charges” by Margareth Sembeyu.
[413] Uhuru Newspaper, Thursday, 28th October, 2004 at page 1
[414] MTANZANIA Newspaper, Tuesday, November 9, 2004, at pg. 2” Atuhumiwa kuwatenda Unyama Wanawake ( A suspect is arrested for abusing women”), The GUARDIAN Newspaper, Wednesday, November, 2004 at pg. 3].
[415] Legal and Human Rights Centre, (2005), Tanzania Human Rights Report 2005, Progress Through Human Rights, Daresalaam, Tanzania
[416] We wish to acknowledge the assistance of Kennedy Gastorn, Naelijwa Mrutu, Mohamed Nassoro, Eliamani Mbise, Tumaini Silaa, Grace Bingileki, Clement Rutaihwa, John Kahyoza, Justice Augustine Shangwa and Vivian Mbando in the collection of materials used in this Survey.
[417] See Bart Rwezaura, “Gender Justice and Children’s Rights: A Banner for Family Law Reform in Tanzania”, in A Bainham (ed), The International Survey of Family Law 1997, Martinus Nijhoff Publishers, The Hague 1999, 413-443.
[418] Fifth Constitutional Amendment Act 1984 (No 15 of 1984). The Bill of Rights came into force on 1st March 1988, see s 5 (2) of the Constitution (Consequential, Transitional and Temporary Provisions) Act 1984 (No 16 of 1984). On the impact of the Bill of Rights in other fields of the law see Justice K S K Lugakingira, “Personal Liberty and Judicial Attitude: The Tanzanian Case” Eastern Africa Law Review 17 (1990) 107-133; Chris Maina Peter, Human Rights in Tanzania: Selected Cases and Materials, Rüdiger Köppe Verlag, Köln 1997; Florens D A M Luoga, “The Tanzanian Bill of Rights”, in Chris Maina Peter and Ibrahim Hamisi Juma (eds), Fundamental Rights and Freedoms in Tanzania, Mkuki na Nyota Publishers, Dar es Salaam 1998, 37- 46 at 43 note 37; and Chris Maina Peter, “The Enforcement of Fundamental Rights and Freedoms in Tanzania: Matching Theory and Practice”, in Chris Maina Peter and Ibrahim Hamisi Juma (eds), Fundamental Rights and Freedoms in Tanzania, Mkuki na Nyota Publishers, Dar es Salaam 1998, 47-61 at 51 et seq.
[419] R J A Mwaikasu, “The Law Reform Project on the Law of Succession in Tanzania Mainland”, Speech to the Members of the Bar at Arusha, Tanzania (2.2.1993) at p 3. See also Bart Rwezaura, “Tanzania: Building a New Family Law out of a Plural Legal System”, University of Louisville Journal of Family Law 33 (1995), 523-540 at 538.
[420] See United Republic of Tanzania, Budget Speech of the Minister for Justice and Constitutional Affairs to the Parliament, Government Printer, Dar es Salaam, July 1997, at 7-8; July 2002, at 19; July 2004, at 15-16.
[421] See Elizabeth Mtawa (note 34 below).
[422] As was the case in other areas of the law, see Chris Maina Peter 1998 (note 3 above) at 51-52.
[423] An earlier example of such focus is the case of Bernardo Ephraim v Holaria Pastory and Gervazi Kaizilege [1990] LRC (Const) 757 (per Mwalusanya J); also reproduced in Chris Maina Peter 1997 (note 3 above) at 387-398.
[424] Within this category are claims by de facto cohabitants on the termination of their relationship.
[425] See the Land Act 1999 (No 4 of 1999); the Village Land Act 1999 (No 5 of 1999); the Courts (Land Disputes Settlements) Act 2002 (No 2 of 2002); and the Land (Amendment) Act 2004 (No 2 of 2004).
[426] See Thirteenth Constitutional Amendment Act 2000 (No 3 of 2000); Commission for Human Rights and Good Governance Act 2001 (No 7 of 2001); and Commission for Human Rights and Good Governance (Amendment) Act 2001 (No 16 of 2001). See also the Basic Rights and Duties Enforcement Act 1994 (No 33 of 1994). For comments on Acts No 33 of 1994 and No 7 of 2001 see C K Mtaki, “The Quest for Rule of Law in a Free Market Economy: The Tanzania Experience”, Recht in Afrika 2002, 165-182 at 175-177; and Chris Maina Peter 1998 (note 3 above) at 54-55.
[427] The Commercial Division of the High Court was established in 1999 by Government Notice (GN) No 141 of 1999, amending the High Court Registry Rules 1984 (GN No 23 of 1984) by s 5A. It was set up as a specialized commercial court to improve the efficacy of commercial dispute resolution in Tanzania. The Land Division of the High Court was established in 2002 under s 3 of the Courts (Land Disputes Settlements) Act 2002 and is vested with jurisdiction in land matters by s 167 of the Land Act 1999, s 62 of the Village Land Act 1999 and ss 37 and 38 of the Courts (Land Disputes Settlements) Act 2002.
[428] E g Mwajuma (note 19 below); Paul Msilu v Rahema Chiponde, Dar es Salaam High Court (PC) Civil Appeal No. 12 of 2000 (per Manento J, 28.3.2001, unreported); Latifa (note 83 below).
[429] E g Elizabeth Mtawa (note 34 below).
[430] E g Mwajuma (note 19 below); Crencensia Raphael Ulomi v Lucas Osmund Mwalonga, Dar es Salaam High Court Civil Appeal No 12 of 2000 (per Kimaro J, 3.4.2001, unreported); Stella Arbogast v Charles John Mwankenja, Mwanza High Court Matrimonial Civil Appeal No 2 of 2000 (per Nchalla J, 22.10.2002, unreported).
[431] E g Sekunda Mbwambo v Rose Ramadhani, Moshi High Court (PC) Civil Appeal No 11 of 2002 (per Rutakangwa J, 23.2.2004, unreported); Latifa (note 83 below).
[432] E g Elizabeth Mtawa (note 34 below); In the Matter of an Intended Appeal between Hawa Mgelwa v Hassan Nsubuga, Court of Appeal Civil Application No 31 of 2003 (per Mroso JA, 10.6.2003, unreported).
[433] E g Mwajuma (note 19 below); Elizabeth Mtawa (note 34 below); Marandu (note 52 below).
[434] Dar es Salaam High Court (PC) Civil Appeal No 6 of 2001 (per Kimaro J, 13.7.2001, unreported).
[435] This sum had been offered by the husband as a ‘parting gift’ in accordance with Islamic practices. However, the husband had reneged on this promise which partly accounts for the wife’s decision to take the matter to court. The exchange rate (as at August 2005) is 1,200 Tanzania Shillings to one US Dollar.
[436] See art 13 (5) of the Tanzania Constitution, as amended by the Thirteenth Constitutional Amendment Act 2000 (No 3 of 2000), which specifically prohibits gender discrimination.
[437] The judge further noted that art 7 of the Universal Declaration of Human Rights was similar to art 13 (1) of the Tanzania Constitution.
[438] Of December 18, 1979 (GAOR 34th Sess, Res 180; UNTS Vol 1249, p 13).
[439] See Bi Hawa Mohamed v Ally Sefu [1983] TLR 32 (per Nyalali CJ, Makame and Kisanga JJA); also reproduced in Chris Maina Peter 1997 (note 3 above) at 398-407.
[440] See Chuma Himonga “Protecting the Minor Child’s Inheritance Rights” in A Bainham (ed), The International Survey of Family Law 2001 Edition, Jordan, Bristol 2001, 457-473; and Bart Rwezaura “‘This is not my Child’: The Task of Integrating Orphans into the Mainstream of Society in Tanzania” in A Bainham (ed), The International Survey of Family Law 2001 Edition, Jordan, Bristol 2001, 411-435. In Ndewawiosia d/o Ndeamtizo v Imanuel Malasi (1968) HCD 127 Saidi J held, inter alia: “The age of discrimination based on sex is long gone and the world is now in the stage of full equality of all human beings irrespective of their sex, creed, race or colour.”
[441] According to s 11 (1) of the Judicature and Application of Laws Act (Cap 358, Laws of Tanzania, Revised Edition 2002), “Customary law shall be applicable to, and courts shall exercise their jurisdiction in accordance therewith, in matters of a civil nature (a) between members of a community in which rules of customary law relevant to the matter are established and accepted, … (b) relating to any matter of status of, or succession to, a person who is or was a member of a community in which rules of customary law relevant to the matter are established and accepted; … except in any case where it is apparent, from the nature of any relevant act or transaction, manner of life or business, that the matter is or was to be regulated otherwise than by customary law …”. For the customary law of succession of the majority of the patrilineal communities in Tanzania see Sheria ya Urithi, Local Customary Law (Declaration) (No. 4) Order, 2nd Schedule, GN No 436 of 1963; Sheria za Wosia, Local Customary Law (Declaration) (No. 4) Order, 3rd Schedule, GN No 436 of 1963; Sheria Zinazohusu Hali ya Watu, Local Customary Law (Declaration) Order, GN No 279 of 1963, esp rule 77.
[442] S 11 (1) (ii) of the Judicature and Application of Laws Act states that “nothing in this subsection shall preclude any court from applying the rules of Islamic law in matters of marriage, divorce, guardianship, inheritance, wakf and similar matters in relation to members of a community which follows that law”. S 11 (4) of the same Act provides however that “[n]otwithstanding the provisions of this Act, the rules of customary law and the rules of Islamic law shall not apply in regard to any matter provided for in the Law of Marriage Act.” On Islamic law in Tanzania see: J N D Anderson, Islamic Law in Africa, Frank Cass, London 1970, 122-147; Robert V Makaramba, “The Status and Application of Islamic Law in Tanzania”, Eastern Africa Law Review 18 (1991) 277-310, on the law of succession at 294-299; Ibrahim Juma, “Unsystematic Growth of Islamic Jurisprudence in Tanzania – An Overview”, Recht in Afrika 2004, 177-193. According to M K Rwebangira/M C Mukoyogo (eds), there are fixed and unfixed shares of inheritance which are gender based and according to which widows are entitled to 1/8 of the total estate of the deceased husband irrespective of their number or contribution, see id, The Law of Inheritance in Tanzania, Women and Law in East Africa, Nairobi 1995, at 17.
[443] S 11 (2) of the of the Judicature and Application of Laws Act provides that “[i]t is hereby declared for the avoidance of doubt that … (b) a person may cease to be a member of a community by reason of his adoption of the way of life of some other community (whether or not any customary law is established or accepted in such other community) …”. See M K Rwebangira/M C Mukoyogo (note 27 above) at 12-15 both on ‘the mode of life’ test (noted above) and ‘the intention of the deceased’ test applicable in the cases of Muslims under s 19 (1) (a) of the Administration (Small Estates) Ordinance, Cap 30.
[444] See Elizabeth Mtawa (note 34 below).
[445] See Asha Mbulayambele v William Shibungi, High Court Civil Appeal No 56 of 1986 (per Chipeta J, 13.6.1988, unreported); and Bart Rwezaura (note 4 above) at 533.
[446] Moshi High Court Probate and Administration Cause No 2 of 1998 (per Mchome J, 17.10.2001, unreported).
[447] In Sekunda Mbwambo v Rose Ramadhani, Moshi High Court (PC) Civil Appeal No 11 of 2002 (per Rutakangwa J, 23.2.2004, unreported), the judge quotes at length, and commends the District Court magistrate’s excellent grasp and explanation of the role of the administrator of the estate who may be selected from amongst the beneficiaries of the estate, but who has to be very careful and impartial in the way he/she distributes the estate. Such an administrator must have been close to the deceased to be able to easily identify the deceased’s properties and must have the confidence of all the beneficiaries or dependants of the deceased. The administrator is obliged to collect all the properties of the deceased, pay his/her debts, ensure that the children whom the deceased left behind and other dependants of the deceased are properly taken care of, and distribute fairly the properties forming the estate to the beneficiaries. It is evident that the administrator is not supposed to use the deceased’s properties as his own or dissipate them as he wishes.
[448] At p 7 of the judgement.
[449] Dodoma High Court Civil Appeal No 12 of 2001 (per Kileo J, n d, unreported).
[450] An English translation (from Kiswahili) of rule 77 of GN 279/1963 states that: “(1) All movable and immovable properties which were acquired during the subsistence of the marriage shall be divided into two equal shares after paying all debts of the deceased. The widow shall get 1/20 of one half for each year of marriage. For the immovable property the widow shall get a portion of land in the same proportion and she shall have the right to use the land in a diligent manner all the time until her remarriage or her death. (2) In the case of permanent crops she shall get her share in the same proportion and may get its interest till she remarries or dies. (3) The widow should be allowed to stay in the house till she remarries or dies. (4) All immovable property shall revert to the deceased’s relatives immediately upon the widow’s remarriage.”
[451] Art 2 of the Universal Declaration of Human Rights of December 10, 1948 (GAOR 3rd Sess, Res 217 A) reads: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. …”. Art 17 of the same Declaration states: “(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.”
[452] See art 13 (5) of the Tanzania Constitution as amended (see note 21 above) which expressly prohibits gender discrimination.
[453] At p 8 of the judgement. S 3 (2) of the Land Act 1999 provides: “The right of every woman to acquire, hold, use, and deal with land shall to the same extent and subject to the same restrictions be treated as a right of any man.”
[454] At p 9 of the judgement.
[455] See note 24 above.
[456] At p 10 of the judgement. As noted above, the same reasoning was adopted by Chipeta J in Asha Mbulayambele (note 30).
[457] The principle that a widow has a separate and independent right to a share in the estate of her deceased husband is considered above (note 33).
[458] At p 9 of the judgement.
[459] This case goes further than the Law Reform Commission which recommended that a “surviving spouse should be entitled to inherit the immovable property of the deceased, including the matrimonial home, until his or her death at which point such property should revert to the children of the couple or the trustee if the children are minors”, see Bart Rwezaura (note 2 above) at 433.
[460] Art 16 (1) of the Constitution states: “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 communications.”
[461] At p 12 of the judgement.
[462] Virginia Edith Wambui Otieno v Joash Ochieng Ougo and Omolo Siranga, Kenya Court of Appeal Civil Appeal No 31 of 1987 [1982-88] 1 KAR 1060 (per Nyarangi, Platt and Gachuhi JJA, 13.2.1987); also reproduced in: Eugene Cotran (ed), Casebook on Kenya Customary Law, Professional Books Limited and Nairobi University Press, Nairobi 1987, 331-345 (“Otieno”).
[463] See e g Sean Egan (ed), S.M. Otieno. Kenya’s Unique Burial Saga, Nation Newspapers, Nairobi 1987.
[464] See Paul Tiyambe Zeleza, a review of: David William Cohen and E S Atieno-Odhiambo, Burying S.M.: The Politics of Knowledge and the Sociology of Power in Africa, Heinemann, Portsmouth, New Hampshire 1992, in CJAS/RCEA 29 (1995), 139-141; see also Patricia Stamp, “Burying Otieno: The Politics of Gender and Ethnicity in Kenya”, Signs: Journal of Women in Culture and Society 16 (1991), 807-845 at 835-840.
[465] J B Ojwang and J N K Mugambi (eds), The S.M. Otieno Case. Death and Burial in Modern Kenya, Nairobi University Press, Nairobi 1989; John W van Doren, “Death African Style: The Case of S.M. Otieno”, American Journal of Comparative Law 36 (1988), 329-350; Ralph Schumann, “Interne Kollisionsnorm und traditionelles Recht im Spannungsfeld kulturellen Wandels: ‘The Case’ S.M. Otieno”, Verfassung und Recht in Übersee 24 (1991), 245-270.
[466] Marsha A Freeman, “Measuring Equality: A Comparative Perspective on Women’s Legal Capacity and Constitutional Rights in Five Commonwealth Countries”, Berkeley Women’s Law Journal 5 (1989-90), 110-138 at 121; Patricia Stamp (above note 49), 807-845.
[467] Moshi District Court Civil Case No. 33 of 2003 (per Kitusi RM, 10.10.2003, unreported).
[468] This was one of the arguments made by Counsel for the Marandu clan who urged the court to follow Otieno because Tanzania did not have a case on the point.
[469] The judgement was given on 10th October 2003, that is, less than three months after the deceased’s death.
[470] At p 14 of the judgement.
[471] At p 4 of the judgement. In case of contravention, it is feared that the Marandu clan could be haunted by their ancestral spirits and its members might become mentally ill from the curse of the ancestors.
[472] It was further submitted that if there was a custom which binds first male children to be buried on their ancestral land, such custom was discriminatory and inconsistent because it discriminated against male children who were not the eldest and was not applied to all the eldest children. The question of unfair discrimination between male and female children within the same family is discussed in Bhe & Others v The Magistrate, Khayelitsha and Others; Shibi v Sithole & Others; South African Human Rights Commission and Another v President of the Republic of South Africa & Another, Constitutional Court of South Africa, Cases CCT 49/03, 69/03, 50/03 (15.10.2004) . In this case the Constitutional Court of South Africa declared that the rule of male primogeniture under customary law was unconstitutional and invalid because it discriminated unfairly against women and illegitimate children. According to Langa DCJ, the effect of changing circumstances was that the “customary law rules of succession [nowadays] simply determine succession to the deceased’s estate without the accompanying social implications which they traditionally had” (at para 80 of the judgement). The court, however, did not have to determine the question of unfair discrimination of younger male children, as implied in the rule of male primogeniture (para 94 of the judgement).
[473] At p 7 of the judgement.
[474] At p 14 of the judgement.
[475] At p 14 of the judgement.
[476] See note 21 above.
[477] Art 7 of the said Declaration states that all human beings “are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”
[478] Of December 16, 1966 (GAOR 21st Sess, Res 2200 A; UNTS Vol 999, p 171). Art 26 states that: “All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
[479] Art 2 CEDAW states that: “States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women….”
[480] S 68 LMA states that: “Notwithstanding any custom to the contrary, a woman whose husband has died shall be free – (a) to reside wherever she may please; and (b) to remain unmarried or, subject to the provisions of s 17, to marry again any man of her own choosing …”.
[481] Ndewawiosia (note 25 above); David Deogratias Makene & William Mugurusi v Jonia Makene Dar es Salaam High Court Civil Case No 341 of 1999 (per Kimaro J); Elizabeth Mtawa (note 34 above).
[482] At p 16 of the judgement.
[483] Dar es Salaam Resident Magistrate’s Court (Kisutu) Misc Cause No 205 of 2002 (per Magere RM, 16.12.2002, unreported).
[484] Counsel for the respondent raised a preliminary objection grounded on court’s lack of jurisdiction and the law applicable. The resident magistrate in overruling the objection correctly pointed out that the line between customary law and the written law could not be drawn sharply and that in any case the courts were mandated to decide all such cases according to substantial justice without undue regard to legal technicalities and without undue delay. The court’s ruling is based on s 95 of the Civil Procedure Code 1966 (No 49 of 1966) (“CPC”), cited by Counsel for the applicants. It provides that “[n]othing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” The CPC is applicable to proceedings in the courts of a resident magistrate by virtue of s 2 CPC.
[485] Dar es Salaam Resident Magistrate’s Court (Kisutu) Civil Case No 427 of 2003 (per Mgetta SRM, 27.01.2004, unreported).
[486] The deceased was 30 years old when she converted from Christianity to Islam.
[487] Art 19 (1) of the Constitution provides that “Every person has the right to the freedom of thought or conscience, belief or faith, and choice in matters of religion, including the freedom to change his religion or faith.”
[488] S 25 (1) (c) LMA provides that “A marriage may, subject to the provisions of this Act, be contracted in Tanganyika – … (c) if the intended husband is a Muslim, in civil form or in Islamic form”; and s 25 (3) (a) LMA provides that “For the purposes of this Act – (a) a marriage in Islamic form means a marriage contracted in the manner recognized by Islam or by any school or sect of that faith”.
[489] In other words, an adult woman, whether married or single, has the same legal capacity as men to do anything lawful. See Marsha Freeman (note 51 above).
[490] See pp 21-22 of the judgement.
[491] At p 14 of the judgement.
[492] At pp 14-15 of the judgement. In Mwasegile Samuli v Makanika Katatula [1980] TLR 152 at 153, Samatta J quoted from Lord Denning’s judgement in Packer v Packer [1953] 2 All E R 127 at p 129.
[493] Latifa (note 83 below); Hamisi (note 85 below).
[494] The primary object of the Affiliation Ordinance is “to provide for the maintenance of children born out of wedlock” (No 42 of 1949, Cap 278 of the Laws of Tanzania), while the object of the LMA, Part VI Matrimonial Proceedings, is to make “provisions on custody and maintenance of children” under ss 125-137 of the Law of Marriage Act 1971, and to “regulate the law relating to marriage, personal and property rights as between husband wife, separation, divorce and other matrimonial reliefs and other matters connected therewith and incidental thereto” (No 5 of 1971).
[495] Mabagala (note 89 below). S 125 LMA reads: “(1) The court may, at any time, by order, place an infant in the custody of his or her father or his or her mother, or where there are exceptional circumstances making it undesirable that the infant be entrusted to either parent, of any other relative of the infant or of any association the objects of which include child welfare. (2) In deciding in whose custody an infant child should be placed the paramount consideration shall be the welfare of the infant and, subject to this, the court shall have regard – (a) to the wishes of the parents of the infant; and (b) to the wishes of the infant, where he or she is of an age to express an independent opinion; and (c) to the customs of the community to which the parties belong. (3) There shall be a rebuttable presumption that it is for the good of an infant below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of an infant by changes of custody.”
[496] See above note 79.
[497] Unlike several common law jurisdictions Tanzania does not have a law which provides for legitimation of a child by the subsequent marriage of that child’s parents. Such a child may, however, be legitimated under the parties’ customary laws but not under Islamic law or the general law.
[498] Arusha High Court Civil Appeal No 25 of 2002 (per Shangwa J, 25.6.2004, unreported).
[499] At p 6 of the judgement. This decision would appear either to make obsolete s 5 of the Affiliation Ordinance or, at least, to offer an alternative remedy. It is also arguable that the Affiliation Ordinance contravenes the anti-discrimination provisions of the Constitution and of several international human rights treaties and instruments. It is probably a matter of time before the courts declare this law unconstitutional and therefore invalid.
[500] Dar es Salaam High Court Civil Appeal No 53 of 2000 (per Chipeta J, 17.10.2000, unreported).
[501] See rules 178-189 of GN No 279 of 1963 (above note 26).
[502] See above note 80.
[503] See Bart Rwezaura (note 4 above) at 535-536.
[504] Dar es Salaam High Court Matrimonial Cause No 6 of 2000 (per Manento J, 3.1.2001, unreported).
[505] At p 2 of the judgement.
[506] The husband applied for interim custody on the ground that he wanted to have the children transferred to the new school in time for the new academic year beginning on 1st January 2001. He feared that by the time the divorce proceedings were finalized, it would be too late for the children to join the new school. In our opinion such an interim application for custody was misconceived. It should have been rejected because, first, the children’s welfare was not at risk and, second, the application, if granted, would have had the effect of pre-empting the final decision on child custody.
[507] At p 5 of the judgement.
[508] Ibid.
[509] Rosemary Mabagala v Robert Mabagala and Batuli Yusuf Tupa, Dar es Salaam High Court Matrimonial Cause No 6 of 2000 (per Muro J, 6.6.2001, unreported).
[510] The general principle that parents are primarily responsible for the care of their children cannot be faulted. However, it needs to be applied with flexibility in specific cases bearing in mind “the customs of the community to which the parties belong” (s 125 (2) (c) LMA). Moreover, the court has discretion under s 126 LMA to impose conditions on custody including stipulating the place where the infant is to reside, the manner of his or her education and as to the religion in which the child is to be brought up. These powers provide flexibility to the court to apply the principle of best interests of the child in making custody orders and orders for the upbringing of the child.
[511] See s 115 LMA: “(1) The court may order a man to pay maintenance to his … former wife – … (e) when granting or subsequent to the grant of a decree of divorce; … Provided that where the marriage has been dissolved, the wife shall not, unless the court for special reason so directs, be entitled to maintenance for herself for any period following the date when the dissolution takes effect.”
[512] See Bart Rwezaura and Ulrike Wanitzek, “Family Law Reform in Tanzania: A Socio-Legal Report”, International Journal of Law and the Family 2 (1988), 1-26 at 22.
[513] With the exception of the cases relating to burial all of which were decided by the Ccourt of the Resident Magistrate.
[514] Widow inheritance is a practice which is taking place in a society to the effect that when a husband dies his wife marries one of the clan relatives or brothers of the deceased husband.
[515] See Republic of Kenya, Report of the Commission on the Law of Marriage and Divorce, Government Printers, Nairobi, 1968, p. 77, paragraph 245.
[516] Nyambu, G.H.M., “When An African Husband Dies”, East Africa Journal, July, 1965 p. 20.
[517] Ibid.
[518] Allott, A. N. (Ed), The Future of Law in Africa, Record of Proceedings of the London Conference held between December 1959 and 28th January 1960 under the Chairmanship of the Rt. Hon. Lord Denning, Butterworth &Co. (Publishers) Ltd, London, 1960, p. 4.
[519] The term “custom” is defined in Halsbury’s Laws of England in the following words:
“ A custom is a particular rule which has existed either actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm. As regards the matter to which it relates, a custom takes the place of the general common law, and is in respect of that matter the local common law within the particular locality where it obtains. Custom is unwritten law peculiar to particular localities.
A custom exists in particular locality only in respect of some particular matter or matters; other matters within the same locality are governed by the general common law”
Quoted also in Allott, A. N. (Ed.), ibid. Whereas according to Tanner, R.E.S., “The Codification of Customary Law in Tanzania”, East Africa Law Journal, Vol. 2, No. 2, June, 1966, p. 105, 109, custom can be defined as usual practice and the amount it is practised must indicate its importance to that community, or the areas of disagreement in which there is potential change.
[520] See Kabuya s/o Essore v. Mturi Nyegeri [1989] T.L.R. 172 and Juma Ng’osha v. Amos Mutanda [1989] T.L.R. 96.
[521] For details on this aspect see Abdulrahman O.J. Kaniki, An Examination of the Law and Spousal Battery in Tanzania: Quest for Reform, paper prepared for and presented at a Workshop Organised by TAMWA to Members of Parliament, Lawyers, Religious Leaders, Gender Activists and Journalists held at the Russian Cultural Centre, Dar es Salaam, between 5th and 6th October, 1999, p. 6.
[522] Cap. 29 R.E. 2002.
[523] Its full citation is Bi Hawa Mohamed v. Ally Sefu [1983] T.L.R. 32.
[524] G.N. No. 279/1963.
[525] [1989] T.L.R. 96.
[526] (1972)HCD 7.
[527] [1989]T.L.R. 172.
[528] Ibid, at page 174 of the Law Report.
[529] It was held by Sekule, J. in the case of Juma Ng’osha v. Amos Mutanda [1989] T.L.R. 96 that when a widow is duly inherited according to G.N. No. 279 of 1963 paragraph 64, she becomes a lawful wife of the one who has inherited her.
[530] Nyambu, op-cit, p. 21.
[531] The said administrative official was Farida Katuli who was quoted by Ahmed Simba “Widow Inheritance ‘outdated culture’”, Business Times (Tanzania), 27/2/1998.
[532] See the case of Kabuya s/o Essore v. Mturi Nyegeri [1989] T.L.R. 172.
[533] See sections 63 and 129 of the LMA, Cap.29 R.E. 2002.
[534] Ibid.
[535] See the Universal Declaration of Human Rights 1948.
[536]Armstrong, A.K. and Nhlapo, R.T., Law and the Other Sex: The Legal Position of Women in Swaziland, Websters, Mbabane, 1985, p. 71.
[537] Mwaikasu, R.J.A., Family Law as a Vehicle for the Improvement of the Status of African Women in Modern African Status, With Particular Reference to Tanzania Mainland, LL.M Dissertation, School of Oriental and African Studies, University of London, 1981/82, pp.4-5.
[538] Kibwana, K., “HIV/AIDS and the Law in Kenya: Preliminary Observations”, Eastern Africa Law Review, Vol.18 June, 1991 No. 1, pp.1-46, at p. 1.
[539] Source: Mukoyogo, M.C., “Ethics, Law, Human Rights and HIV/AIDS Prevention and Control in Tanzania”, in Convocation Newsletter, The Open University of Tanzania, September 2001, pp. 10 – 19, at p.11. Mukoyogo quotes this part from Draft Report: “Proposed Institutional Organisational Framework for TACAIDS- ACAIDS Formulation Team”, 24th May, 2001, p.1.
[540] The village which the author refers to is Mlola in Lushoto, Tanga.
[541] Goncalves, F., “HIV/AIDS in Africa: A continent Heading for doom?”, Southern African Political & Economic Monthly, Vol. 14 No. 7, 2001, pp. 5-6.
[542] See Article 14 of the Constitution of the United Republic of Tanzania, 1977, Cap. 2 R.E. 2002, which states that:
“Every person has the right to live and to the protection of his life by the society in accordance with the law.”
[543] See Article 4 of the Charter.
[544] For more details see Harrington, J.A., “Privatizing the Scarcity: Civil Liability and Health Care in Tanzania”, Journal of African Law, [1998] Vol.42, No.2, pp.147-171, at p.162.
[545] (1971)HCD 406.
[546] See Kibwana, op cit, who calls for government intervention through revision of customary laws and practices which seem to fuel or spread HIV/AIDS. He ably argues on page 22 of his work that:
“Another area where government intervention is urgently required to stem the possible spread of the epidemic is revision of some customary laws and practices which encourage spread of the disease. These are:
i. scarification and traditional circumcision in which unsterilized instruments are used;
ii. ritual sexual intercourse with a deceased brother’s wife;
iii. polygamy;
iv. early marriage under customary law in which the bride may not have the freedom to refuse a partner who may be infected, or the bride is too young to make such an evaluation;
v. widow or widower inheritance;
vi. cultural endorsement of promiscuous sex, etc.”
[547] The LMA defines marriage under section 9(1) to mean the voluntary union of a man and a woman intended to last for their joint lives. That is why the Act insists under section 16 that no marriage shall be contracted except with consent, freely and voluntarily given by each of the parties thereto. In this respect, consent is not seen to have been freely and voluntarily given if the party who purported to give it was influenced by coercion or fraud, was mistaken as to the nature of the ceremony or was suffering from any mental disorder or mental defect, (whether permanent or temporary) or was intoxicated, so as not fully to appreciate the nature of the ceremony. It is in this spirit that marriage has to be perceived. The voluntary element is essential to validate the whole marriage institution, the marriage which is a result of widow inheritance included.
[548] Per Ajwang’ Tom Ogalo in his letter entitled “Luo must shun wife-inheritance” which had appeared in Daily Nation, Saturday (Kenya), 5/10/1996, p. 10.
[549] Those are words uttered by one Mariam Hemedi, a widow who was being forced to be inherited by her late husband’s young brother as quoted by Asha Mnzavas, “Tribal levirate or greedy in-laws?” Sunday Observer (Tanzania), 14/12/1997.
[550] Ibid.
[551] Ploscowe, M. & Freed, D. J., Family Law, Cases and Materials, Little, Brown and Company, Boston, 1963, pp. 3-4.
[552] Kaniki, A. O. J., Legal Treatment of Illegitimate Children in Tanzania, Masters of Laws Dissertation, University of Dar es Salaam, 2001, p. 161.
[553] 1921 C.P.D. 244, 265. Source: Quoted also by Christie, R.H., Plain Speaking in Law, An Inaugural Lecture given in the University College of Rhodesia, University of Rhodesia, Salsbury, 1968, p. 12.
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CAUSES OF CORRUPTION: ANALYTICAL PERSPECTIVE
Incompetence
System Deficiencies
Procedures
-Guidelines
Low Public Awareness
CORRUPTION
Low Institutional Capacity
Political Interference
Legal Framework
Conflicting
Legislation
Outdated Laws
Missing Legislation
Poor Discipline
Greed and Abuse of Power
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