Assessing the Incorporation of the African Charter on Human and People’s Rights in Tanzania

Assessing the Incorporation of the African Charter on Human and People’s Rights in Tanzania

¹Nhikilo Elias Joseph., ²Dr. Sunil Kumar

¹Department of Political Science, School of Humanities, Starex University, Gurugram

²Assistant Professor and Head, Department of Political Science, School of Humanities, Starex University, Gurugram

DOI: https://doi.org/10.51244/IJRSI.2024.1110060

Received: 23 October 2024; Accepted: 28 October 2024; Published: 20 November 2024

ABSTRACT

This article examines the implementation of the African Charter on Human and People’s Rights (Banjul Charter) in Tanzania, focusing on the incorporation of its provisions into Tanzanian law. The study evaluates the human rights regime in Africa and explores the historical background of human rights on the continent. It also analyzes the composition and effectiveness of the institutions for the enforcement of human rights, the structure of the charter, and its unique feature of combining all categories of rights.

The study identifies the challenges Tanzania faces in implementing the provisions of the charter and assesses the strengths and weaknesses of its incorporation into domestic law. Additionally, the reasonableness of the incorporation is evaluated, and recommendations are suggested to address any weaknesses.

To conduct the research effectively, the study is primarily library-oriented, using textbooks, international instruments, legislation, and articles on the subject. Global and regional treaties, charters, conventions, protocols, case law, and declarations in the field of human rights are also considered. Magazines, newspaper reports, and journals will be used to supplement the research. Overall, this study aims to evaluate the human rights systems in Africa, with a particular focus on Tanzania, and provide recommendations for improving the implementation of the Banjul Charter’s provisions.

Keywords: Incorporation; African Charter on Human and People ‘s Rights; Constitution of the United Republic of Tanzania; human rights.

INTRODUCTION

In 1981, the Organization of African Unity, now the African Union, adopted the African Charter on Human and People’s Rights (Banjul Charter), which came into force in 1986. (Malcolm N Shaw, International Law (Cambridge university press 2017) 391.) Between 1986 and 2011, Africa experienced a slew of human rights disasters of epic proportions, including the scourge of poverty, the HIV/AIDS pandemic, the 1994 Rwandan genocide, the Darfur crisis, and civil war in Somalia, Sierra Leone, Côte d’Ivoire, and Liberia.

The Banjul Charter aided in steering Africa out of the age of human wrongs and into the age of human rights. It made Africa accountable on a global scale. The Banjul Charter establishes principles and the foundation for the promotion and preservation of human rights throughout Africa. Since its passage 41 years ago, the Charter has served as the foundation for African citizens to assert their rights in international forums. The Charter also delivered a blow to national sovereignty by emphasizing those human rights infractions could no longer be brushed under the rug as internal concerns. (A Guide to the African Human Rights System: Celebrating 30 Years since the Entry into Force of the African Charter on Human and Peoples’ Rights 1986 – 2017).

The Charter recognizes that all rights are inseparable: All generations ‘of rights are acknowledged. Socioeconomic rights can be litigated. Collective rights, environmental rights, and economic and social rights are key components of human rights in Africa. The African Commission on Human and Peoples ‘Rights will apply any of the several rights enshrined in the Banjul Charter. It welcomes this chance to emphasize that there are no rights in the Banjul Charter that cannot be made effective (<https://www.pulp.up.ac.za/latest-publications/191-a-guide-to-the-african-human-rights-system-celebrating-30-ye ars-since-the-entry-into-force-of-the-african-charter-on-human-and-peoples-rights-1986-2017> accessed 16 April 2024).

There is no derogation clause in the African Charter. As a result, the Charter’s limitations on the rights and freedoms guaranteed cannot be justified by emergencies or exceptional situations. Article 27(2) contains the only legitimate reasons for limiting the Charter’s rights and freedoms.( Melkamu Aboma Tolera, ‗Absence of a Derogation Clause under the African Charter and the Position of the African Commission‘ (2013) 4 Bahir Dar University Journal of Law 229) The Charter recognizes people‘s rights, such as rights to development, free use of natural resources, and self-determination.( African Charter on Human and People‘s Rights 1981, art 13(3), 21)Duties are imposed on both states and people; the enjoyment of rights and freedom entails the execution of duties on everyone‘s part.

The African Court on Human and Peoples’ Rights (AFCHPR) as a regional human rights body has advisory and adjudicatory authority over the interpretation and execution of the African Charter on Human and Peoples’ Rights and associated treaties. It has jurisdiction over states that have accepted the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court. The Court may issue advisory opinions and make thematic reports in addition to deciding cases. By ratifying the Protocol creating the Court in November 2021, 34 states recognized the Court’s jurisdiction. They are Algeria, Benin, Burkina Faso, Burundi, Cameroon, Chad, Côte d’Ivoire, Comoros, Congo, Democratic Republic of the Congo, Gabon, Gambia, Ghana, Guinea Bissau, Kenya, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania, Mauritius, Nigeria, Niger, Rwanda, Sahrawi Arab Democratic Republic, South Africa, Senegal, Uganda, Togo, Zambia, and Tanzania> (African Human Rights System International Justice Resource Center ‘<https://ijrcenter.org/regional/african/> accessed 16 April 2024) The research is intended to focus on Tanzania as it ratified the African Charter on Human and People’s Rights on February, 18^th 1984, and following ratification, the United Republic of Tanzania’s constitution incorporated the provisions of the Charter into the Constitution Article 12 up to Article 29 and enacted the laws such as the basic Right and Duty Enforcement Act (Basic Rights and Duties Enforcement Act [Act No. 33 of 1994]<https://media.tanzlii.org/files/legislation/akn-tz-act-1994-33-eng-2019-11-30.pdf> accessed 16 April 2024.) for the enforcement of Constitution provision. Tanzania, therefore, has integrated the African Charter on Human and People’s Rights into its Constitution (Constitution of United Republic of Tanzania 1977 Revised 2005).

Human rights are defined as a declaration of intent to respect, promote, and protect human rights. In this sense, they relate to the rights enshrined in treaties, the Constitution, or written laws. These sources do not generate human rights, which existed before the world order, state, and law. (Raphael Kamuli, The History of Human Rights in Tanzania <https://www.academia.edu/38380317/the_history_of_human_rights_in_tanzania> accessed 16 April 2024.)

However, there is still a law in the land that violates the Constitution and human rights, and in most cases, there is a constitutional case that has been instituted in the domestic Court and the African Court of Human and Peoples Rights, but the government has taken no action, even though there is a recommendation (Tanganyika Law Society &amp; Ors. v Tanzania (Application No. 011 of 2011) [2018] 1; (14 June 2013) | African Legal Information Institute <https://africanlii.org/afu/judgment/african-court/2013/1-0> accessed 16 April 2024).

The research will evaluate the significance of Tanzania ‘s Constitution as an instrument for the preservation and promotion of human rights. It requires Tanzania to safeguard and uphold human dignity; it directly references the Universal Declaration of Human Rights. (Universal Declaration of Human Rights 1948) Tanzania can translate international accords into domestic law because of the Constitution, which requires all arms of the government to respect and protect the rights it enunciates. Among other things, the Constitution protects many rights. (Human Rights MATRIX – POLICY Project/Futures Group<http://www.policyproject.com/matrix/matrix2.cfm?country=Tanzania> accessed 16 April 2024)   Especially the Constitution protects the fundamental rights outlined in the Chatter. They are classified into four groups namely: the right to equality; the right to life; the right to freedom of conscience and the right to work. The Constitution, therefore, empowers individuals to make reproductive health decisions and contributes to the creation of economic and social conditions that promote excellent sexual and reproductive health. According to the study, which will analyze the constraints established by the constitution, Tanzania may be confronted with situations that would result in a violation of rights. Tanzania may take action to solve a public health problem without breaching its constitution in such circumstances and the research will make recommendations. In addition, the research will assess in Tanzania whether there are domestic laws protecting human rights and whether Tanzania has ratified international conventions such as the International Covenant on Civil and Political Rights 1966 and adherence of Tanzania to the international convention, and whether there exist laws that contravene Human Rights.

Statement of the Problem

When a state ratifies a human rights treaty, it may incorporate the treaty’s provisions into domestic law. As a result, universal human rights standards are now enshrined in most countries’ domestic legislation. However, simply having a statute is often insufficient if it does not also include all the legal powers and institutions required to ensure its successful fulfilment.

Tanzania has integrated the Banju Charter into its domestic law. The issue of its successful national implementation has sparked a lot of introspection and action in recent years. The rise or reemergence of democratic governance in many countries has drawn attention to the critical role of democratic institutions in maintaining the legal and political foundations on which human rights are founded. The African Court of Human and Peoples Rights has given a decision against Tanzania, but there is no effective implementation of the court’s decision. Even though Tanzania incorporated the African Charter on Human and People’s Rights into its constitution, there are still laws that exist that are against human rights, such as the Penal Code, Cap. 16 R.E 2019, and the Law of Marriage Act, Cap. 29 R.E 2002, Criminal Procedure Act Cap 20 R.E 2019.

The primary goal of this research is to evaluate Tanzania’s compliance with the African Charter on Human and People’s Rights, as well as the individual provisions of the Charter, to assess the Charter’s effectiveness, competence, and impact on Tanzania’s domestic legislation. The research investigates the state of charter rights in Tanzania’s legal system, including their application, protection, and enforcement in courts and human rights institutions. The research ‘s focus is on the effective enjoyment of human rights and the incorporation of the Banjul Charter on human and people’s rights in Tanzania, which necessitates the creation of national infrastructure to preserve and promote them.

In Tanzania, there is an independent government agency known as the Commission for Human Rights and Good Governance (CHRGG), which has a broad responsibility to advance and defend human rights in Tanzania. Its duties include responding to complaints about human rights, abuses, and violations of good governance principles, advising the government on matters relating to human rights, addressing systemic human rights issues through research, public inquiry, monitoring, and carrying out public education and other sensitization programs. (The Commission for Human Rights and Good Governance Act No 7 of 2001‘<http://parliament.go.tz/polis/uploads/bills/acts/1454077875-ActNo-7-2001.pdf> accessed 16 April 2024) Article 1 of the Banjul Charter outlines the primary responsibilities of the State’s Parties. It states that they must accept the rights, responsibilities, and liberties embodied in the Charter and commit to enacting legislative or other measures to give effect to them. The Banjul Charter on Human and People’s Rights requires every state party to the Banjul Charter to submit a legislative report or measures taken to give effect to the rights and freedoms recognized and guaranteed by the Banjul Charter. Tanzania has ratified the Banjul Charter without reservations. Tanzania ‘s Constitution (1977 R.E 2005) specifies that the Parliament may legislate to implement international treaties. Article 63 (3) of the Tanzanian Constitution provides that to discharge its functions the National Assembly may; (d) Enact law where implementation requires legislation.

Objective of the Study

1. To assess laws in Tanzania that contravene the African Charter on Human and People’s Rights and Whether there are weaknesses and strengths to the incorporation of the Charter into the Tanzanian Constitution as well as Whether in Tanzania some laws provide  for human rights.

Research objectives

1. Whether there are laws in Tanzania that contravene the African Charter on Human and People’s Rights?
2. Whether there are weaknesses and strengths to the incorporation of the Charter into the Tanzanian Constitution？
3. Whether in Tanzania some laws provide for human rights?

METHODOLOGY

The research utilizes both reviewing papers and other materials already published sources of information to gather data and insights. These comprises reviews of covenants, constitution, Statutes, general comments and court decisions, textbooks, essays, and journals as well as evaluations of the African Charter on Human and People‘s Rights of 1981 and the Constitutional of the United Republic of Tanzania of 1977 as amended from time to time. In addition, to complement the information, appropriate websites have been utilized.

Sampling

As far as it involved the review study, the research focused on selecting different literature, articles and research studies done in Tanzania regardless of their regions, type and nature exploring the major challenges practical strategies for enhancing the protection of women’s rights within Tanzanian society, serving as a case study, under the scope of International Human Rights Instruments, Regional Human Rights Conventions, African Human Rights Instruments, and the local human rights system.

LITERATURE REVIEW

This article  review  will examine the Banjul Charter, which reflects, to a large extent, not only the international discourse on human rights at the time of its development but also several distinctive features, purporting in many ways to reflect an African philosophy of law and conception of human rights and attempting to encompass all three generations of human rights (civil and political rights, economic, social and cultural rights, and solidarity rights, in particular, the right to development) in light of Tanzania legislation and its incorporation of the African Charter on Human and people‘s Rights.

Malcon N. Shaw, in his book International Law, discusses the word people in the African Charter. According to him, people’s rights refer to collective or group rights, such as the right of people to self-determination, protection of their environment, and freely disposing of natural resources. Individuals are likewise obligated to the state and community under the African Charter. Among the responsibilities are those to prevent jeopardizing the state’s security and to preserve and strengthen social and national solidarity and independence. It will be interesting to see if this unique method causes more issues than benefits.

The African Commission on Human and Peoples’ Rights was established by the Charter to implement it, with eleven members nominated by the OAU, which now is known as the AU Conference of Heads of State and Government for six-year renewable terms. The Secretary-General of the Organization of African Unity appoints the Secretary-General of the Commission. The Commission’s educational and promotional tasks include conducting research, hosting conferences, disseminating information, and making recommendations to Governments.

The Commission may hear inter-state complaints, and other non-state communications may send to the Commission. The terminology used is far more flexible than is the case in other regional human rights systems. In addition, the commission has dealt with individual communication. The state parties should submit a report to the commission every two years on measures taken to implement the rights under the charter.

Malcolm N. Shaw, in his book International Law, also discusses concisely that the African Charter on Human and Peoples’ Rights does not specify the establishment of an African Court of Human Rights, but a Protocol establishing such a court was signed in 1998. Individuals and non-governmental organizations do not have automatic access to the Court but must first make a declaration accepting its jurisdiction. This research tends to discuss the human rights regime in the African region, especially in Tanzania, the enforcement of court decisions, and whether they are binding to the member state.

Morris Mbondenyi, in his book International Human Rights and their Enforcement in Africa, discusses, before 1980, international protection of human rights in Africa was more of a myth than a reality. ( Morris Kiwinda Mbondenyi, International Human Rights and Their Enforcement in Africa (LawAfrica Publishing Ltd 2011) 130.  He explores international human rights and their enforcement in Africa. The political elite, which views the idea with some scepticism, also exhibits stronger hostility at the mere mention of human rights. The Organization of African Unity upholds the principle of not interfering in the internal affairs of a sovereign state or a member state. As a result, the OAU ignored the numerous severe human rights violations committed by authoritarian governments.

Also in his book, he shows how the violation of human rights in Africa was due to bad culture, and as a result, numerous human rights treaties were concluded at a global level, courtesy of the United Nations Organization (UN). The global movement to protect human rights was supported by countries in Europe and America, resulting in the need for a regional human rights system. In his book, Morris Mbondenyi also discusses much of the African human rights system, its structure, and its enforcement mechanism, as well as the institutional mechanisms of the African system on human and people‘s rights, as well as challenges and reforms to the African system on human and people rights.

Clement J Mashamba, in his book Litigating Human Rights in Africa Institutions Law: Procedures and Practice, wrote that the African continent has three human rights institutions: the African Commission on Human and Peoples’ Rights, the African Committee of Experts on the Rights and Welfare of the Child, and the African Court on Human and Peoples’ Rights.   (Clement J Mashamba, Litigating Human Rights in African Institutions: Law, Procedures and Practice (Law Africa Publishing Ltd 2017) 406.  )  The three human rights institutions have the major function of promoting and protecting human and people’s rights, which include children’s rights at the continental level. Also in his book, he wrote about sub-regional human rights courts such as the East Africa Court of Justice. This court was established within the existing regional economic communities (RECs) the role of which is to promote and protect human rights within the region in the framework of the African Charter on Human and People ‘s Rights and other human rights treaties.

Also, he wrote, at the national level, the regional and sub-regional courts’ human rights promotion and protection functions are complemented by the national courts. The national courts are established by the national Constitution and law, the national courts are important in the domestication of international human rights treaties and norms and implementation of regional and sub-regional court decisions at the national level.

Tom Gerald Daly and Micha Wiebusch, in their article The African Court on human and Peoples’ Rights

Mapping Resistance against a Young Court, wrote about court resistance in a continent known for upholding state sovereignty and non-interference principles even in the face of grave human rights violations, and while human rights protection bodies such as the African Commission on Human and Peoples’ Rights have struggled to make an impact, resistance to the Court has taken a variety of forms, some of which are unique to the region. (Daly, Tom & Wiebusch, Micha, ‗The African Court on Human and Peoples ‘Rights: Mapping Resistance Against a Young Court ‘(March 6, 2018) So far, no substantial or significant forms of backlash ‘in response to the Court’s jurisprudence have emerged, which would fundamentally undermine its functioning. Other kinds of resistance have emerged, such as Rwanda’s withdrawal of its declaration allowing people and qualified non-governmental organizations to petition the Court and early signals of resistance by Tanzania (the host state) in the form of non-compliance with crucial Court judgments. The goal of their article is to chart the evolution of the Court and its jurisprudence, as well as to examine the many forms and patterns of resistance to the Court that have arisen as a result of its decisions. The article does so by focusing on the contextual elements that determine the type, extent, and severity of these resistance processes.

Tom Gerald Daly and Micha Wiebusch mention in their article that there is resistance to the court but do not give recommendations on what should be done to remove the resistance, especially for the host state of Tanzania, which does not respect the judgment of the court which was delivered on merit. This research intends to give recommendations on what should be done to remove such resistance to the court.

Sheila B Keetharuth, in her paper Major African legal instruments, mentioned the African Commission on Human and Peoples’ Rights was established in 1987 with the mission of monitoring nations’ compliance with the human and peoples’ rights included therein and ensuring their protection. While reviewing the African Commission was not the goal of her study, it is through its work that the Charter becomes a living document. (Sheila B Keetharuth, ‗Major African Legal Instruments ‘[2009] Bösl et al. (2009) 163) Article 66 of the Banjul Charter stipulates that: – ‘… Special protocols or agreements may, if necessary, supplement the provisions of the present Charter.’ The Protocol on the Establishment of an African Court on Human and Peoples’ Rights is the first of these. It was enacted on June 10, 1998, and went into effect on 25 January 2004. After the entry into effect of the Protocol of the Court of Justice and Human Rights, it will continue in force for a transitional period. Individuals have inalienable rights that attach to them because of their humanity, and violations of fundamental rights are held accountable by the state. Individual duties are seen as handing the state the opportunity to limit established human rights on a silver platter.

She noted that if a country wished to withdraw its ratification and revoke its commitments, it would have to go through an international process including notice and that, it cannot erase the implications of its ratification of the Charter through domestic action. The country’s ratification of the Charter also binds it. Even though the states are bound by their ratification to the African Charter, in Tanzania’s legislation, there are laws, -which contravene the African Charter.

Conceptual Framework of the African Human Rights Regime

The African Charter on Human and Peoples ‘Rights is a human rights document with 68 articles divided into four sections: duties, applicable principles, human rights, and procedure of the commission. The three categories of rights, stipulated in the charter, are civil and political, economic, social, and cultural, as well as group and people ‘s rights combined. It connects the notions of human rights, people ‘s rights, and duties on people while enforcing obligations on specific individuals of each African society.

The adoption of the Banjul Charter in 1981 marked the introduction of a third regional human rights system after the creation of the European and Inter-American systems respectively. Adopted partly due to external pressure on African governments to establish a regional human rights regime and partly as a response to the gross human rights violations committed by some African leaders, the Banjul Charter is distinctive in its attempt to append an African ‗fingerprint on the human rights discourse (Danwood Mzikenge Chirwa, ‗African Regional Human Rights System: The Promise of Recent Jurisprudence on Social Rights ‘in Malcolm Langford (ed)

This chapter contains human rights perspectives in Africa, the historical background of the human rights regime in Africa, the African Charter on Human and Peoples’ Rights: a critical Assessment, an examination of the provisions of the African Charter on Human and Peoples’ Rights, the effectiveness of the institutions for the promotion and enforcement of human rights in Africa, the African court on human and people‘s rights, the African commission on human and people‘s rights, challenges facing the enforcement of human rights in Africa, the obligation to domesticate the Banjul Charter, the status of Tanzania in the African human rights regime, and conclusion.

Human Rights Perspectives in Africa

The political and ideological history of the continent, which spans four major eras—pre-colonial, post-colonial (the battle for independence), and contemporary is the foundation for human rights in Africa. Particularly significant is the history of nationalism and anti-colonialism. Traditional ethnic communities were common in Africa’s pre-colonial history (up to the early 1800s), and they were housed under various socio-political structures (called traditional African political systems). These arrangements, which ranged in complexity from the simple to the complicated, contained aspects of the ancient democratic and human rights systems ingrained in these communities’ religion and culture. European contact marked the end of pre-colonial history (EI-Obaid Ahmed EI-Obaid and Kwadwo Appiagyei-Atua, Human Rights in Africa -A New Perspective on Linking the Past to the Present ‘(1995) 41 McGill 819) These connections which were at first mostly commercial and centered on raw materials led to the slave trade and, as the needs of European imperialism and capitalism increased, to the colonization of the continent. Africa ‘s political and ideological past, as well as its history of nationalism and ant colonialism, must all be taken into consideration when talking about human rights in this region. The discussion of rights was a crucial toll on independence campaigns. As a consequence, a bill of rights was included in several post-colonial constitutions. Human rights commitment was still merely verbal, though it was frequently compromised in the name of institutions.

African socialism provided an ideological justification for separating human rights from nationalism and domestic constitutions after freedom had been attained in many countries. This had an impact on how the Organization of African Unity institutionalized respect for human rights in Africa. Traditional justifications were also put forth to support the removal of human rights protections from the law. The majority of African nations experienced unprecedented grave human rights breaches during the early years of their political independence. In light of this, the adoption of the African Charter on Human and People’s Rights in 1981 was appropriately celebrated as a new beginning in the struggle for the emancipation of its citizens.

Historical Background of the Human Rights Regime in Africa

Although it is challenging to trace the history of human rights in pre-colonial African society, writers who wrote about these issues during the anti-slave trade companion do exist. Following this uprising, the call for African rights has persisted on a social or cultural level as a protest against racial discrimination, moved into the political sphere in the fight against colonialism and foreign dominance, and is still going in the economic sphere with a call for a new global economic order.

The African Conference on the Rule of Law was held in Lagos, Nigeria, in 1961, and this event marked the beginning of discussions that would eventually lead to the creation of the Charter.‘194 Judges practicing attorneys, and teachers of the law‘ from 23 African nations as well as 9 countries from other continents attended the conference.( Victor Oluwasina Ayeni, ‗The African Human Rights Architecture: Reflections on the Instruments and Mechanisms within the African Human Rights System‘ (2019) 10 Beijing Law Review 302) The Conference‘s final resolution, the  Law of Lagos‘ makes it plain that the international legal system must create a system for the protection of the individual. In 1969, the United Nations held a seminar to examine the potential for the creation of regional commissions on human rights, with particular reference to Africa. One major goal of creating a human rights commission was to educate the population of non-independent Africa about their rights, thereby lending impetus to their desires to get independence’. The implementation of human rights protection mechanisms in Africa has been debated at various colloquia, seminars, and conferences. The Monrovia Seminar on the Establishment of Regional Commissions on Human Rights with Special Reference to Africa, held in 1979, served as the culmination of these debates. The Monrovia Draft’s two suggested applicable criteria merely made references to rights that were previously included in a large number of international agreements and declarations. It intended that this proposal serves as the basis for an African Convention on Human Rights. However, unlike the final African Charter, which enumerates specific rights to be protected, the suggested criteria merely referred to rights already included in international documents. Given the preceding remarks, it is not surprising that the specialists gathered in Dakar in 1979 rejected the core clauses of the Monrovia proposal, which was sponsored by the United Nations, and tried to draft a text that was specifically African and more receptive to African concerns. The pan- African political mechanisms for human rights, such as the AU and some of its norms and organs, as well as the legal mechanisms, such as the African Charter, its Protocols, and enforcement institutions, make up the African Human Rights Regime. It is possible to argue that the African system, established under AU auspices, includes several normative instruments. These include the African Charter on Human and People ‘s Rights, the Convention Governing the Particular Aspect of Refugee Problems in Africa, the Convention on the Elimination of Mercenaries in Africa, (Adopted June 1977, entered into force 1985) the African Charter on the Rights of a Child, the Convention on the Prevention and Combating of Terrorism, and the African Union Constitutive Act, (Adopted in July 1990, entered into force on 29 November1999) the African system, which was developed under the aegis of the African Union, is the most recent of the three judicial or quasi-judicial regional human rights systems. It contains a commission and a court with complementary mandates, much like the Inter-American System (and the European System, as originally intended).

The African Court on Human and Peoples Rights (AFCHPR), the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), and the African Commission on Human and Peoples ‘Rights (ACHPR) all evaluated states ‗adherence to human rights norms, including by adjudicating individual complaints of human rights violations. Each body ‘s functions and responsibilities are separate, nonetheless.

African Charter on Human and People’s Rights: Critical Assessment

The major normative document of the African human rights system is the Banjul Charter on Human and Peoples’ Rights, which is composed of 68 articles grouped into four chapters: Human and Peoples’ Rights, Duties, Procedure of the Commission, and Applicable principles. It includes all three types of rights; economic, social, and cultural rights, civil and political rights, and group (individual) rights. Because several of the charter ‘s provisions differ noticeably from those in earlier regional human rights regimes, it is a novel human rights document. It would be an overstatement to call these differences autonomous ‘but the charter is distinct from those of the other regions in some sense. The distinction only reflects changes in international human rights legislation. The Charter ‘s numerous claw-back clauses (It represents the limitations incorporated into human rights clauses, most prominently in the African Charter. In accordance with domestic law, these internal qualifiers qualify rights‘ and permit a state to limit‘ those rights.) which only allow some rights to be exercised at the discretion of domestic legislation, were the first noteworthy aspect.⁴⁷ Additionally, the charter lacks a provision known as a derogation clause that would allow the suspension of certain rights and freedoms in strictly defined circumstances.⁴⁸ The absence of a derogation clause means that in good times and bad, state parties are obliged to safeguard the rights guaranteed by the Charter. The disadvantage is that a state may choose to ignore the entire document in times of emergency or other exceptional circumstances. Also, in the case of SERAC (Social and Economic Rights Action Center & the Center for Economic and Social Rights v. Nigeria (Communication No. 155/96) ‘ACmHPR Oct 27, 2001).  it states clearly there is no derogation in the Charter. The African Charter does not contain a derogation clause. Therefore, the limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies and special circumstances. The only legitimate reasons for limitations to the rights and freedoms of the Charter are found in article 27(2).‘ Other human rights instruments contain derogation clauses, such as Article 15 of the European Convention on Human Rights and Article 4 of the ICCPR. Derogation clauses are also included in some country constitutions, such as the South African constitution.  There are instances where a state may be allowed to disregard certain rights, including (i)when a grave public threat to the country’s survival arises (International Covenant on Civil and Political Rights 1966, art 4.), (ii) when a war or other serious threat to the country’s survival is raging,  ( European Convention on Human Rights 1950, art 15) and (iii) when a state’s independence or security is in jeopardy. Consequently, any armed conflict internal or external can serve as the justification for such a deviation (American Convention on Human Rights 1969, art 27) A state can neglect its obligations while irresponsibly limiting the democratic space between the separation of powers and civil freedoms because the Charter does not contain a derogation clause. The Charter’s provisions on social and economic rights are its second distinguishing characteristic. It might be argued that the International Covenant on Economic, Social, and Cultural Rights (ICESR) was meant to be implemented at the regional level by including this category of rights in the Charter.

However, the Charter’s strategy differs from the Covenant’s in that it does not use the gradual terminology of this category of rights’ progressive realization. Instead, the clear and immediate perceived obligations that the state and parties assume concerning fundamental rights are indicated. Economic, social, and cultural rights thus have given equal standing with other rights under the Charter.

The Banjul Charter is different from other charters in that it seeks to do so for economic, social, and cultural rights as well as a group of specific third-generation rights within a single instrument. The ICCPR and ICESCR, two binding UN human rights agreements, did not take the same approach. (Nega Ewunetie and Admasu Alemayehu, The Distinctive Feature of the African Charter ‘(2012) 22 Abyssinia Law 156) The traditional set of rights found in the ICCPR and comparable regional agreements is made up of the civil and political rights guaranteed by Articles 2–15. Article 12, which forbids the mass deportation of non-nationals and targets national, racial, ethnic, or religious groups, is one freedom that particularly reflects African concerns. This clause was added in response to the numerous mass expulsions that occurred in many African nations throughout the 1970s. Additionally, the Banjul Charter is the only one to establish the concepts of personal responsibility (Article 7(2) and the right of everyone to equitable access to all public goods and services [Article 13]. (3). Article 17 of the African Charter on Human and Peoples’ Rights adds a duty on the state to advance and safeguard ‗morals and traditional African values. ‘One of the most thorough provisions regarding the prohibition of discrimination against women is found in Art.18 (3) of the Charter. According to Article 17 of the African Charter on Human and Peoples’ Rights, the state also has a responsibility to foster and defend “morals and traditional African values. ‘

The Banjul Charter‘s Article 18 (3) contains one of the most comprehensive clauses prohibiting discrimination against women. These rights, without a doubt, impose obligations on governments, requiring them not only to conduct their internal affairs in a manner that protects and improves the environment but also to pursue specific types of foreign policy designed to achieve this goal.⁵⁶ The Banjul Charter thus appears to reflect a unique understanding of human rights, according to which the actuality and respect of people’s rights should necessarily ensure human rights,‘ by devoting six articles to the rights of the people in general. On the breadth and content of the rights of people under the African Charter, we shall return with further information. The African concept of family and community places a strong focus on the individual’s duty to both groups. Individuals are only subject to duties as a matter of international legal responsibility under the African Charter. As a result, most of the rights outlined in the Charter are accompanied by corresponding obligations.

LIMITATIONS AND CONSIDERATIONS

Limitations or Challenges

There are many challenges African countries are facing in the enforcement of human rights, and this part is going to discuss them, and Chapter Five is going to make recommendations for what should be done by the African countries, including Tanzania.

Challenges to Protection

Whatever we may say about the future, those who are threatened with torture, arbitrary or summary execution, forced disappearance, or violence against women need to be protected right now. The task of defending human rights is urgent and present ⁽UN, ‗New Challenges in the Promotion and Protection of Human Rights ‘

<https://www.ohchr.org/en/statements/2009/10/new–challenges–promotion–and–protection–human–rights> accessed 5 December 2022.  ) For example, in Tanzania, there has been the disappearance of Azory Gwanda. The disappearance has been pointed to by activists as evidence of deteriorating working conditions for journalists under President John Magufuli ‘s administration, which they accuse of stifling press freedoms by suspending newspapers (Tanzania Says Does Not Know Whether Missing Journalist Is Dead or Alive ‘Reuters (11 July 2019) <https://www.reuters.com/article/us-tanzania-media-idUSKCN1U61NO> accessed 17 April 2024)

Challenges of Poverty

Millions of people now experience privation, indignity, and waste due to widespread poverty. There are numerous internal and external factors contributing to this. The effectiveness of governance is a contributing factor. In some circumstances, differences in ethnicity, beliefs, and value systems may play a role. For example, in Tanzania, many girls and young boys are denied their right to education due to poverty. The girls are experiencing early marriage, and there are other girls who, after completing standard seven, immigrate to town to look for a job with little pay.

Challenges of Justice and Empowerment for Women 

The human conscience is horrified by the atrocities committed against women in many regions of the world. According to strategic analysts of the world‘s future, we have little chance of addressing issues such as conflict, underdevelopment, and injustice unless we empower and treat women fairly. In Tanzania, for example, most women are time-poor because they spend so much of their time doing housework.

Challenges of Democracy and the Rule of Law

The authority of governments must be based on the will of the people, the Universal Declaration of Human Rights adamantly declares. Without delving into the concept of democracy, it is reasonable to argue that societies with more opportunities for meaningful and equitable participation in governing processes are more likely to experience development, non-discrimination, and justice.

Challenges of Compliance with Court Decisions

The majority of African states do not follow court decisions, and even though the court issues judgments, it lacks the tools or means to sanction a member state for failing to comply with the court’s rulings. Several non-compliance crises exist in the court. There are no built-in repercussions in its procedure, and about 75% of states disobey its rulings. According to the court ‘s directives, states that don‘t make reparation payments by the due date will be required to pay interest (John M Mbaku, ‗The Emerging Jurisprudence of the African Human Rights Court and the Protection of Human Rights in Africa‘ (2023) 56 Vanderbilt Journal of Transnational Law 367 ) Burkina Faso is the only nation that has completely complied with the court‘s rulings. Only certain parts of decisions have been followed by some states, like Tanzania.

Consideration

In Africa, there is the Banjul Charter which was enacted to promote human rights in the continent and most of the African Countries have ratified the Banjul Charter and domesticated the Banjul Charter in its legislation. The Banjul Charter has a mechanism for the enforcement of human rights in the Continent. These mechanisms are the Commission for Human Rights and the African Court for Human Rights and People ‘s Rights. Most African Countries have ratified the Protocol to the African

Court on Human and people ‘s Rights and signed the declaration under its articles 5(3) and 34(6). But in recent years most African countries withdrew their declaration before the court for NGOs and individuals to file complaints before the Court, for example, Tanzania and Rwanda have withdrawn their declaration, making the decline of human rights.

Additionally in Africa still there are challenges facing our human rights enforcement such as most of the countries do not act on the recommendations or judgments issued by the Commission for Human Rights or African Court for Human Rights and People ‘s Rights. Most of the people in the continent are ignorant, they do not understand their rights. We have to unite to make sure all countries promote and maintain human Rights.

CONCLUSSION AND RECOMMENDATOINS

Conclusion

This review article has examined the position of women’s rights within the African system and Tanzania as a case study. It has shown that the Maputo in the Tanzania human rights system is an indication that protection of the human rights of women in Tanzania is increasingly featuring in its agenda. Support for legislation against discrimination has continued to grow since adoption of the Protocol. But there is no doubt that a serious gap still exists between de jure and de facto recognition of women’s rights The examination of the content and the processes available under the Protocol reveals a sense of a legal and policy approach that recognizes that law alone cannot make the desired change in the status of women in Africa and Tanzania in particular.

Discrimination against women will not be abolished by modifying laws alone. But the law plays an important part along with the commitment of states and civil society, particularly women’s groups to implement the law.

The commitment of African States, Tanzania as a case must include not only legal but financial investment in providing health care, education, and work skills for improving the status of women.

The law must be complemented with positive attitudinal change on the part of everyone, women, judges, legislative bodies, law enforcement agents, and all segments of society to the issue of women’s rights. The Protocol serve as a legal instrument containing minimum standards for education, health care, and other protections for African women and their rights Tanzania as a case study. A reoccurring theme in the study of women’s human rights in Tanzania is the impact and effect of patriarchal structures and institutions on the ability of women to obtain solutions propounded for this problem by legal scholars include education and dialogue rather than formal, abstract, and legalistic approaches. Such approaches involve mutual respect, understanding, dialogue and sensitivity, and equality among parties. Others include the application of local solutions and the empowerment of indigenous people. Local non-governmental organizations often have a basic understanding of the issue in their society and can provide the necessary impetus for action.

The fact that NGOs face fewer bureaucratic obstacles and political constraints than official bodies grant them the opportunity to be effective in advancing the rights of women. NGOs in the grassroots have access to information and local sources unavailable to the government and can positively act in collaboration with local communities to provide services that can enhance and empower women, such as family planning and education, health care, credit, and income-generating activities.

Women’s NGOs have the collective ability to work together to serve as pressure groups to ensure governments fulfill their obligations under international and regional human rights treaties. example, the women’s NGO network has been effective in bringing international pressure to bear in exposing the systematic violence and rape now used as a weapon of warfare in many parts of the world, including Tanzania. Outdated laws which have long been amended within the jurisdiction in which they were originally developed need to be repealed or amended, taking a cue from jurisdictions where positive improvements have been achieved in terms of human rights.

The Protocol has advantages as a symbolic instrument and in real terms. The actual existence of the Protocol gives the sense that women’s rights exist for African women and Tanzania as a case study. Though couched in general terms, the Protocol can as a uniform guide to the implementation of equal rights on the African continent. The Protocol serves to focus public attention and opinion continued existence of some undesirable practices and the need to eliminate them.

It has the potential of generating further debates, and discussions that will cast light on the scope and nature of women’s rights problems, obstacles to their solution, and means of attacking the problems. The Protocol provides a broad framework of general norms and standards intended to guide government action affecting women’s rights in Africa Tanzania as a case study. If effectively utilized, the Protocol serves as a basis for scrutinizing and influencing government policies. Tanzania adopted in the constitution of the United Republic of Tanzania under Constitution. But the gap still existing there are some rights are not fully realized like economic and political rights. Women have little access to both economic and political opportunity in rural and urban areas.

Conclusion, women’s rights protections are crucial for the economic, political, and social-cultural development of any country as in Tanzania the same. As for equal development, the government must uphold women’s rights as provided in Maputo Protocol. It is true in Tanzania women’s rights are included in the constitution as under article 12-29. But there are still provisions in the statutes that violate women’s rights. Hence the government needs to correct such provisions and adhere to equality for all human beings. My future work will build upon the broad base of this present piece to address some of these questions all to examine how, concretely, the law can make a difference in the daily lives of Tanzania women’s to access equally rights in term of social-cultural, political and economic fully as men.

Recommendations

To ensure women’s rights are fulfilled, protected, and promoted in Tanzania’s human rights system, the following steps should be taken: –

Lack of Government Accountability

Tanzania is withdrawing its consent made under Article 5 (3) and Article 34 (6) of the Protocol to the African Charter on Human and People ‘s Rights on the establishment of an African Court on Human and People ‘s Rights for an individual and NGOs to file a complaint before the African Court on Human and Peoples’ Rights, which will lead to the denial of human rights in the country and Africa in general and the Tanzania government evade its human rights responsibility to its citizen. Tanzania is one of the countries with a large number of cases pending before the court, and the court has ruled on numerous human rights cases against Tanzanian governments.

Non-domestication of All Provisions of the Charter 

The constitution does not encompass all human rights provided in the Banjul Charter; for example, rights to education are provided in the Charter. In Tanzania, the Constitution provides these rights, but they cannot be enforced in court, as they are not among the rights enforced by the Basic Rights and Duties Enforcement Act also, the Constitution does not provide for rights to development, self-determination, rights of people to the satisfactory environment and right to people to freely dispose of their wealth and natural resources as stipulated by the Charter. Generally, the Constitution of the United Republic of Tanzania does not stipulate all the rights provided by the Charter. Court in the proceedings before it. This rule is not certain whether a woman is allowed and in practice most of the friends of the court are men it is very rare to see a Tanzania woman in this position no matter whether the matter before the court is directly involving a woman.

Promoting Women’s rights awareness

The government should make sure social media like Television at least ten Channels per day to discuss women’s rights for half an hour. And imparting education from the family level, kindergarten, primary, secondary, high school, and university on women’s rights. NGO, big musicians both gospel singers and non-gospels singers should advocate at least for every album to include one song on women’s rights.

Strengthening the judiciary

The government should be strengthening equality while appointing judges. In most cases judges are men. The qualification is the same for men and women but in practice within ten judges 2 are women and 8 are men. This does not mean there are no women with qualifications to seat as judges. Hence, I advise that the appointment authority should make sure to consider gender balance. This will bring confidence and perhaps the inferiority complex will be solved if a high position like this in an important organ will have gender balance. The constitution is not certain on equal number in regard to sex, hence these issues should be checked by government.

Limiting Executive Power

The president should consider gender balance in appointing high-position leaders regarding educational qualifications rather than gender. For example, Directors, Permanent secretaries of various ministries, ministers, Judges, Regional commissioners, and District commissioners. In the United Republic of Tanzania Constitution, there is no mention that the appointment should consider half men and half men in the total number of a certain high position. Before Women were fewer with qualifications to hold high positions but now there are so many women with over qualifications and experience but they are not appointed to high positions. Among other reasons, they must take maternity leave after three years sometimes fewer years, and most of the time they will leave the office for milking their kids. This exclusion should be checked well to make sure women’s rights are protected in Tanzania.

BIBLIOGRAPHY

International Instruments

1. International Covenant on Civil and Political Rights, 1966
2. International Covenant on Economic, Social and Cultural Rights, 1966
3. Universal Declaration of Human Rights, 1948

Regional Treaties

1. African (Banjul) Charter on Human and Peoples’ Rights,1981
2. American Convention on Human Rights, 1969
3. European Convention on Human Rights, 1950

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1. Commission for Human Rights and Good Governance Act, 2001(Government Notice No.67
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