Human rights of indigenous minorities in Tanzania and the courts of Law

International Journal on Minority and Group Rights

Volumn 14, Issue 4, 2007, Pages 455-487

  Maina Peter, Chris ^a,b  

^a UNIVERSITY OF DAR ES SALAAM   (Tanzania)

^b LUND UNIVERSITY   (Sweden)

Author keywords

[No Author keywords available]

Indexed keywords

DEVELOPMENT STRATEGY; HUMAN RIGHTS; INDIGENOUS POPULATION; MINORITY GROUP; MODERNIZATION;

AFRICA; EAST AFRICA; SUB-SAHARAN AFRICA; TANZANIA;

EID: 39049102944     PISSN: 13854879     EISSN: 15718115     Source Type: Journal    
DOI: 10.1163/138548707X247428     Document Type: Article

References (219)

1. See B. Lobulu, 'Dispossession and Land Tenure in Tanzania: What Hope from the Courts?', 22:4 Cultural Survival Quarterly (1999).
2. This is just like the attitude of the colonial administration and the religious missionaries during the colonial period who saw their role as one of "civilizing" and "converting" the "heathen" natives without due concern to preservation of their culture. See H. Hannun, 'Indigenous Rights', in G. M. Lyons and J. Mayall (eds.), International. Human Rights in the 21st Century: Protecting the Rights of Groups (Rowman & Littlefield Publishers, Inc., Lanham, Boulder, New York and Oxford, 2003) p. 73.
3. On the definition of minorities and its limitations, see inter alia C. Johnsson, Nation States and Minority Rights: A Constitutional Law Analysis (Uppsala University, Sweden, 2002) p. 20;
4. G. Pentassuglia, Defining "Minority" in International Law: A Critical Appraisal (Northen Institute for Environmental and Minority Law-Arctic Centre, University of Lapland, Rovanemi, Finland, 2000).
5. It cannot, however, be avoided because it helps to shed some light on the rights of minorities in general. This question is also addressed in C. C. O'Brien, 'What Rights Should Minorities Have?', in B. Whitaker (ed.), Minorities: A Question of Human Rights? (Pergamon Press, Oxford and New York, 1984) p. 11.
6. See J. A. Sigler, Minority Rights: A Comparative Analysis (Greenwood Press, Westport, Connecticut and London, 1983) p. 3.
7. Ibid.
8. Ketley argues that States have used the power of definition, historically and still today, to avoid their human rights obligations under international law. See H. Ketley, 'Exclusion by Definition: Access to International Tribunals for the Enforcement of Collective Rights of Indigenous Peoples', 8:4 International Journal, on Minority and Group Rights (2001) p. 332.
9. See G. Alfredsson, 'Minorities, Indigenous and Tribal Peoples, and Peoples: Definitions of Terms as a Matter of International Law', in N. Ghanea and A. Xanthaki (eds.), Minorities, Peoples and Self. Determination (Brill, 2005) p. 163.
10. See M. N. Shaw, 'The Definition of Minorities in International Law', in Y. Dinstein and M. Tabory (eds.), The Protection of Minorities and Human Rights (Martinus Nijhoff Publishers, Dordrecht, Boston and London, 1992) p. 1.
11. See also G. Pentassuglia, Minorities in International Law: An Introductory Study (Council of Europe Publishing, Strasbourg, 2002) pp. 55-75.
12. See P. Thornberry, 'Is There a Phoenix in the Ashes? International Law and Minority Rights', 15 Texas International Law Journal (1980) p. 421.
13. PCIJ (1930), Series B, No. 17. This case is partially discussed in A. S. Akermark, Justifications of Minority Protection in International Law (Iustus ForlagAB, Uppsala, 1997) p. 60;
14. K. Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination (Martinus Nijhoff Publishers, The Hague, Boston and London, 2000) p. 19.
15. See Shaw, supra note 9, pp. 8, 9.
16. See also F. Capotorti, 'Minorities', in R. Bernhardt (ed.), Encyclopaedia of Public International Law, vol. 8 (North Hollan, Amsterdam, New York, and Oxford, 1985) p. 385;
17. B. Vukas, 'General International Law and the Protection of Minorities', 8 Human Rights Journal (1975) p. 41;
18. J. Robinson, 'International Protection of Minorities: A Global View', 1 Israel Yearbook on Human Rights (1971) p. 61.
19. See UN Doc. E/2573 (1954), pp. 48, 49.
20. See UN Doc. E.91.XIV2.
21. See also J. Fawcett, The International Protection of Minorities (Minority Rights Group, London, 1979) p. 11.
22. N. Lerner, Group Rights and Discrimination in International Law (Martinus Nijhoff Publishers, Dordrecht, Boston, and London, 1991) p. 9.
23. Not very eager to come up with a generally acceptable definition by hiding behind the maxim in jure omnis definitio periculoso est (in law any definition is dangerous). See O. Andrysek, Report on the Definition of Minorities, Netherlands Institute of Human Rights, Utrecht, 1989, p. 60.
24. See resolution 1992/16 of 21 February 1992.
25. See United Nations General Assembly resolution 47/135 of 18 December 1992.
26. See Y. Dinstein, 'Collective Human Rights of Peoples and Minorities', 25 International and Comparative Law Quarterly (1976) p. 102;
27. G. Sacerdoti, 'New Developments in Group Consciousness and the International Protection of Rights of Minorities', 13 Israel Yearbook on Human Rights (1983) p. 116.
28. These characteristics are elaborated in various works including G. Alfredsson, 'Minority Rights: International Standards and Monitoring Procedures', Nos. 5/6 Latvian Human Rights Quarterly (1998) p. 9.
29. See also Alfredsson, supra note 8, pp. 165-168.
30. Article 27. On the background and analysis of this Article, seeC. Tomuschat, 'Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights', in R Bernhardt et al. (eds.), Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte: Festschrift für Hermann Mosler (Springer-Verlag, Berlin, Heidelberg and New York, 1983) p. 949;
31. P. Thornberry, 'Seif-determination, Minorities, Human Rights: A Review of International Instruments', 38 International and Comparative Law Quarterly (1989) p. 867;
32. F. Ermacora, 'The Protection of Minorities Before the United Nations', 182:4 Recueil des Cours (1983) p. 247;
33. M. Scheinin, 'Indigenous Peoples' Rights under the International Covenant on Civil and Political Rights', in J. Castellino and N. Walsh (eds.), International Law and Indigenous Peoples (Martinus Nijhoff Publishers, Leiden and Boston, 2005) p. 3;
34. S. Pritchard, 'The International Covenant on Civil and Political Rights and Indigenous Peoples', in S. Pritchard (ed.), Indigenous Peoples, the United Nations and Human Rights (Zed Press, Ltd., and The Federation Press, London and Annandale, 1998) p. 184;
35. Protection of Minorities: Special Protective Measures of an International Character for Ethnic, Religious or Linguistic Groups, UN Doc. 67.XIV.3.
36. Article 22(1). See M. Hamalengwa et al. (eds.), The International Law of Human Rights in Africa: Basic Documents and Annotated Bibliography (Martinus Nijhoff Publishers and United Nations Institute for Training and Research (UNITAR), Dordrecht, Boston and London, 1988) p. 5;
37. C. M. Peter, Human Rights in Africa: A Comparative Study of the African Human and Peoples' Rights Charter and the New Tanzanian Bill of Rights (Greenwood Press, Inc., New York, Westport and London, 1990).
38. Opportunities to these groups are mainly open in sports and the entertainment field. See G. K. Verman and S. D. Douglas, Winners and Losers: Ethnic Minorities in Sport and Recreation (The Falmer Press, London and Washington, 1994).
39. See S. Williams, 'Prejudice and Unemployment', in Whitaker, supra note 4, p. 93.
40. On the marginalisation of minorities in the field of education and how this could be redressed, see the essays contained in Minority Rights Group International, Education Rights and Minorities (Minority Rights Group and UNICEF, London and Florence, 1994);
41. C. Holmes, 'Invisible People', 38 Renaissance and Modern Studies (Minorities and Minority Discourse) (1995) p. 1.
42. On the religious rights of minorities, seeY. Dinstein, 'Freedom of Religion and the Protection of Religious Minority', in Dinstein and Tabory, supra note 9, p. 145;
43. N. Lerner, 'The Final Text of the UN Declaration Against Intolerance and Discrimination Based on Religion or Belief, 12 Israel Yearbook on Human Rights (1982) p. 185.
44. See P. Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, 1991) Part V.
45. See Alfredsson, supra note 8, p. 169.
46. See G. Alfredsson, 'The Rights of Indigenous Peoples with a Focus on the National Performance and Foreign Policies of the Nordic Countries', 59:2 Zeitschrift fur Auslandisches Offentliches Recht und Vollerrecht (Heidelberg Journal of International Law) (1999) pp. 532, 533;
47. Z. Tskhovrebov, As If People Mattered: Critical Appraisal of "People" and "Minorities" from the International Human Rights Perspective and Beyond, doctoral thesis, Faculty of Law, Lund University, 1998, pp. 176-252.
48. This debate on the'S' question and the politics of the definition of'indigenous peoples' is taken up in P Thornberry, 'Who is Indigenous?', in F. Horn (ed.), Economic, Social Rights and Cultural Rights of the Sami: International and National Aspects (The Northern Institute for Environmental and Minority Law, University of Lapland, Rovanierni, Finland, 1998) pp. 9, 31.
49. see also T. Makkonen, Identity, Difference and Otherness: The Concept of 'People', 'Indigenous People' and 'Minority' in International Law (Faculty of Law, University of Hdsinki, 2000);
50. A. Meijknecht, Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law (Intsrsentia-Hart, Antwerp, Groningen and Oxford, 2001).
51. Erika-Irene Daes argues that it is still possible for the human rights of indigenous peoples including the right to self-determination to be recognised and guaranteed in a democratic system by the rule of law without the need of pushing them to rebellion as a last resort against oppression. SeeE.-I. Daes, 'Some Considerations on the Right of Indigenous Peoples to Self-Determination', in S. J. Anaye (ed.), International Law and Indigenous Peoples (Ashgate, Dartmouth, 2003) p. 377.
52. See also M. C. Lam, At the Edge of the State: Indigenous Peoples and Self-determination (Transnational Publishers, Inc., Ardsley, New York, 2000);
53. S. J. Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford University Press, Oxford, 2004) p. 97.
54. This debate was very intense at the World Conference on Human Rights held in Vienna, Austria in 1993 where at the end of the day reference was made to world's indigenous people and not world's indigenous peoples. See Report of the World Conference on Human Rights: Report of the Secretary General, A/CONF. 157/24 (Part I), 13 October 1993, paras. 62-71. See also A, Phillipps and A. Rosas, Universal Minority Rights (Abo Akademi University Institute for Human Rights and Minority Rights Group International, Turku/Abo and London, 1995) p. 215.
55. See P. Thornberry, 'Some Implications of the UN Declaration on Minorities for Indigenous Peoples', in E. Gayim and K Myntti (eds.), Indigenous and Tribal Peoples' Rights-1993 and After (Northern Institute for Environmental and Minority Law, University of Lapland, Roveniemi, Finland, 1995) p. 57.
56. These guiding principles are reproduced in Report of the African Commission's Working Group of Experts on Indigenous Populations, 2005, p. 86.
57. See Study of the Problem of Discrimination Against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986/7 and Add. 1-4.
58. See also C. M. Brolmann and M. Y. A. Ziek, 'Indigenous Peoples', in C. M. Brolmann et al. (eds.), Peoples and Minorities in International Law (Martinus Nijhoff Publishers, Dordrecht, Boston and London, 1993) p. 187.
59. See United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities in resolution 2 (XXXIV) of 8 September 1981, which was endorsed by the Commission on Human Rights in resolution 1982/19 of 10 March 1982 and authorised by the Economic and Social Council of the United Nations in resolution 1982/34 of 7 May 1982.
60. These guiding principles are reproduced in supra note 34, p. 93.
61. Although the most prominent ILO legal instrument on indigenous peoples is Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries of 27 June 1989, the ILO began addressing this issue quite early. The ILO passed Convention 107 and Recommendation 104 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries back in 1957. See G. Alfredsson, 'Greenland and the Law of Political Decolonization', 25 German Yearbook of International Law (1982) p. 296;
62. Independent Commission on International Humanitarian Issues (ICHI), Indigenous Peoples: A Global Quest for Justice (Zed Books, London and New Jersey, 1987) p. 142.
63. See also L. Swepston, 'The ILO Indigenous and Tribal Peoples Convention (No. 169): Eight Years after Adoption', in C. P. Cohen (ed.), The Human Rights of Indigenous Peoples (Transnational Publishers, Ardsley, New York, 1998) p. 17 on ILO Convention No. 169, which is reproduced on p. 413.
64. Part of the World Bank Operational Directive 4.20 of September 1991 is reproduced in G. Alfredsson and M. Stavropoulou (eds.), Justice Pending: Indigenous Peoples and Other Good Causes-Essays in Honour of Erica-Irene A Daes (Martinus Nijhoff Publishers, The Hague, London and New York, 2002) p. 398.
65. See Alfredsson, supra note 8, p. 164.
66. For some earlier figures, see G. Alfredsson, 'Access to International Monitoring Procedures; Choices Between Self-Determination and the Human Rights of Groups', in M. C. van Walt van Praag and O. Seroo (eds.), The Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention (UNESCO Centre of Catalonia, Barcelona, 1999) p. 203.
67. The objective of the Decade was said to be the promotion and protection of the rights of indigenous people and their empowerment to make choices which enable them to retain their cultural identity while participating in political, economic and social life with full respect for their cultural values, language, traditions and forms of social organisation. See United Nations General Assembly resolution 50/157 of 21 December 1995. The Second International Decade was proclaimed by the General Assembly in resolution 59/174 of 20 December 2004.
68. On this see J. Burger, 'Indigenous Peoples and the United Nations', in Cohen, supra note 38, p. 14.
69. See United Nations General Assembly resolution 49/214 of 23 December 1994.
70. See M. Silverstone, Rogoberta Menchu: Defending Human Rights in Guatemala (Women Changing the World) (The Feminist Press, London, 1999);
71. D. Stoll, Rigoberta Menchu and the Story of All Poor Guatemalans (Wesrview Press, Boulder, 2000).
72. See also R. Menchu and A. Wright, I, Rigobeta Mench:An Indian Woman in Guatemala (Verso, London, 1983).
73. The Asian community has always been a powerful force in commerce in the East African region. On the history of this community in the region, see Y. Ghai and D. P. Ghai, The Asian Minorities of East and Central Africa-Up to 1971 (Minority Rights Group, London, 1979);
74. A. Bharati, The Asians in East Africa: Jayhind and Uhuru (Nelson-Hall, Chicago, 1972);
75. D. P Ghai, Portrait of a Minority: Asians in East Africa (Oxford University Press, Nairobi, 1970);
76. J. S. Mangat, A History of the Asians in East Africa: c. 1886 to 1945 (Clarendon Press, Oxford, 1969);
77. D. Rothchild, Racial Bargaining in Independent Kenya: A Study of Minorities and Decolonization (Oxford University Press, London, New York and Nairobi, 1973).
78. Interestingly, even by 1990s they are the only group identified as "minorities" in East and Central Africa by some reputable sources. See Minority Rights Group, World Directory of Minorities (Longman Group UK Limited, 1990).
79. The distinct culture of the Asian minorities in East Africa is well captured in the works of the award winning novelist Moyez G. Vassanji. See his works: The Gunny Sack (Heinemann International, Oxford, 1989);
80. No New Land (McClelland & Stewart, Toronto, 1991);
81. Uhuru Street (McClelland & Stewart, Toronto, 1992);
82. The In-Between World of Vikram LaI (Cannongate Books, London, 2004);
83. The Book of Secrets (Cannongate, Edinburgh, New York and Melbourne, 2006).
84. On the expulsion of Asians in Uganda by General Idi Amin in 1972, see for example Y. Tandon and A. Raphael, The New Position of East Africa's Asians: Problems of a Displaced Minority (Minority Rights Group, London, 1978) p. 13;
85. Y. Tandon, 'The Expulsion From Uganda: Asians' Role in East Africa, 6:6 Patterns and Prejudice (1972) p. 8;
86. J. O'Brien, 'General Amin and the Ugandan Asians', The Round Table (January 1973) p. 98;
87. R. Plender, The Uganda Crisis and the Right of Expulsion Under International Law: A Report (International Commission of Jurists, Geneva, 1972) pp. 19-32;
88. Y. Tandon, The Future of the Asians in East Africa (Rex Collins, London, 1973);
89. M. Twaddle, Expulsion of a Minority: Essays on Ugandan Asians (The Athlone Press, London, 1975).
90. See P. H. Gulliver, 'The Conservative Commitment in Northern Tanzania: The Arusha and Masai', in P. H. Gulliver (ed.), Tradition and Transition in East Africa: Studies of the Tribal Element in the Modern Era (Routledge & Kegan Paul, London, 1969) p. 234.
91. See T. ole Saitoti and C. Beckwith, Maasai (Harry N. Abrams, Inc., New York, 1980) p. 1. On other reasons and persecution of minorities by different regimes,
92. see W. S. Heinz, Indigenous Populations, Ethnic Minorities and Human Rights (Quorum Verlag und Druck GmbH, Berlin, 1988) p. 71.
93. In some cases the State is recording some progress. See D. L. Hodgson, 'My Daughter... Belongs to the Government Now: Marriage, Maasai and the Tanzanian State', in C. Creighton and C. K. Omari (eds.), Gender, Family and Work in Tanzania (Ashgate, Aldershot, 2000) p. 200. However, in a majority of cases the various projects designed to "transform" the indigenous people have totally failed.
94. See D. K. Ndagala, 'The Need to Protect Traditional Livelihoods: The Case of Pastoralism and Foraging in Tanzania', in F. Horn (ed.), Economic, Social and Cultural Rights of the Maasai (The Northern Institute for Environmental and Minority Law, University of Lapland, Rovaniemi, Finland, 1998) p. 94.
95. The Hadzabe are a highly studied group. See A. Madsen, The Hadzabe of Tanzania: Land and Human Rights for a Hunter-Gatherer Community (International Work Group for Indigenous Affairs, Copenhagen, 2000);
96. D. K. Ndagala, Attempts to Develop the Hadzabe of Tanzania', No. 18 Nomadic Peoples (1985) p. 17;
97. D. K. Ndagala and S. Waane, 'The Effects of Research on the Hadzabe: A Hunting and Gathering Group in Tanzania', 8 Review of Ethnology (1982) p. 94. On the problems relating to the Hazda,
98. see also Report of the Presidential Commission of Inquiry into Land Matters (Volume II-Selected Land Disputes and Recommendations), Dar es Salaam, 24 January 1993, p. 142.
99. See also D. K Ndagala, 'Free or Doomed? Images of the Hadzabe Hunters and Gatherers of Tanzania', in Tim Ingold et al (eds.),
100. Hunters and Gatherers: History, Evolution and Social Change, vol. 1 (Berg Publishers, Ltd., New York and Oxford, 1988) p. 65;
101. D. K. Ndagala, 'Local Participation and Development Decisions: An Introduction', No. 18 Nomadic Peoples (1985) p. 3;
102. B. T M. Kaare, 'The Impact of Modernization Policies on the Hunter-Gatherer Hadzabe: The Case of Education and Language Policies of Post-independence Tanzania', in E. S. Burch and L. J. Ellanna (eds.), Key Issues in Hunter-Gatherer Research (Berg Publishers, Inc., Oxford and Providence, 1994) p. 315.
103. See International Work Group for Indigenous Affairs, The Indigenous World2001/2002 (IWGIA, Copenhagen, 2002) pp. 381-387;
104. M. G. Kenny, 'Mirror in the Forest: The Dorobo Hunter-Gatherers as an Image of the Other', 51 Africa (1981) p. 477.
105. On Maasai, see generally P. Rigby, Persistent Pastoralists: Nomadic Societies in Transition (Zed Books, Ltd., London, 1985), and T. Spear and R. Waller (eds.),
106. Being Maasai: Ethnicity & Identity in East Africa (James Currey, Mkuki na Nyota, East Africa Educational Publishers, Ohio University Press, London, Dar es Salaam, Nairobi and Athens, 1993).
107. Interestingly in the Tanzanian context the World Directory of Minorities gives prominence only to two groups, namely, the Barbaig and the Hadza.
108. See C. Dammers and D. Sogge, 'Central and Southern Africa', in Minority Rights Group (ed.), World Directory of Minorities (Minority Rights Group International, London, 1997) p. 516.
109. On the red carpet treatment given to foreign investors in Tanzania, see inter alia H. P. Ngowi, 'Institutional Reforms to Attract Foreign Direct Investments (FDIs) as a Strategy for Economic Growth: What has Tanzania Done?', 17:1
110. African Journal of Public Adminstration and Management, p. 32;
111. C. M. Peter, Investments in Tanzania: Some Comments-Some Issues, in cooperation with S. J. Mwakaje (Friedrich Ebert Stiftung and Department of International Law of University of Dar es Salaam, 2004);
112. C. M. Peter and C. M. Ebenroth, 'Protection of Investments in Tanzania: Some New Issues from Zanzibar', 8:4 African Journal of International and Comparative Law (1996) p. 842;
113. C. M. Peter, 'Promotion and Protection of Foreign Investments in Tanzania: A New Investment Code', 6:1 ICSID Review: Foreign Investment Law Journal(1991) p. 42.
114. See M. L. ole Parkipuny, 'Some Crucial Aspects of the Maasai Predicament', in A. Coulson (ed.), African Socialism in Practice: The Tanzanian Experience (Spokesman, Nottingham, 1979) p. 136,
115. and J. Galary, 'The Maasai Group-Ranch: Politics and Development in an African Pastoral Society', in P. C. Salzman (ed.), When Nomads Settle: Processes of Sedentarisation As Adaptation and Response (Praeger Publishers, New York, 1980) p. 157.
116. Professor Thorvald Gran of the Department of Administration and Organisation Theory of the University of Bergen, Norway, who has done considerable research in Tanzania, in his comments on the draft of this paper has strongly challenged the characterisation of land in the country as a "commodity" and hence the adoption of the term "resource" in lieu thereof.
117. See J. K. Nyerere, Freedom and Unity: A Selection from Writings and Speeches 1952-1965 (Oxford University Press, Dar es Salaam, 1966) p. 53.
118. One could track this line of thinking some time back. Long before John Locke (1632-1704) it has been argued that the right to private property arises because by labour a man extends, so to speak, his own person into the objects produced. By expending his internal energy upon them he made them a part of himself. In general their utility depends upon the labour expended upon them, and thus Locke's labour theories of value in classical and socialist economies. See G. H. Sabine, A History of Political Theory (George G. Harrap & Co., Ltd., London, 1964) pp. 527, 528.
119. Court of Appeal of Tanzania, Civil Appeal No. 31 of 1994, reported in [1995] 2 LRC 399.
120. Elaborating this in the case of Attorney-General v. LohayAkonaay and Another the Court of Appeal of Tanzania explained: "Customary or deemed rights in land, though by their nature are nothing but rights to occupy and use the land, are nevertheless real property protected by the provisions of Article 24 of the Constitution of the United Republic of Tanzania and their deprivation of a customary or deemed right of occupancy without fair compensation is prohibited by the Constitution." See ibid
121. See also Court of Appeal of Tanzania, The History of Administration of Justice in Tanzania (Mathews Bookstore & Stationers, Dar es Salaam, 2004) p. 93.
122. See R. W Tenga, Pastoral Land Rights in Tanzania: A Review, UED Drylands Programme, Pastoral Land Tenure Series, London, 1992,
123. and I. G. Shivji, Report of the Presidential Commission of Inquiry into Land Matters, Scandinavian Institute of African Studies, Uppsala, 1994.
124. Act No. 4 of 1999 (Chapter 113 of the Revised Laws of Tanzania 2002).
125. Act No. 5 of 1999 (Chapter 114 of the Revised Laws of Tanzania 2002). The land tenure under the two new laws is well discussed in G. Sundet, 'Land Reform in Tanzania: Legal and Practical Issues: Implementation, Confusion and Business as Usual', Mimeograph (May 2006),
126. and G. M. Fimbo, 'Customary Tenure in the Court of Appeal of Tanzania', in C. M. Peter and H. Kijo-Bisimba (eds.), Law and Justice in Tanzania: Quarter a Century of the Court of Appeal (Mkuki na Nyota Publishers and Legal and Human Rights Centre, Dar es Salaam, 2007) ch. 9.
127. On how the new legal regime addresses pastoralists, see R. Tenga, 'Legislating for Pastoral Land Tenure in Tanzania: The Draft Land Bill', in Horn, supra note 50, p. 119.
128. See J. D. Kesby, The Cultural Regions of East Africa (Academic Press, London, New York and San Francisco, 1977) pp. 68, 95.
129. On the Barbaig, their culture and ways of life, see inter alia G. J. Klima, 'Jural Relations Between the Sexes Among the Barbaig', 35 Africa (1964) p. 9;
130. G. J. Klima, The Barbaig: East African Cattle-Herders (Holt, Rinehart and Winston, New York, Chicago and San Francisco, 1970);
131. D. K. Ndagala, 'The Unmaking of the Datoga: Decreasing Resources and Increasing Conflict in Rural Tanzania', No. 28 Nomadic Peoples (1991) p. 71;
132. C. Land, Pastures Lost: Barbaig Economy, Resource Tenure, and the Alienation of Their Land in Tanzania (Initiatives Publishers, Nairobi, 1996).
133. On their early encounter with this problem and their field research on this matter, see 2:9 Africa Events (September 1986).
134. See also Tenga, supra note 62,
135. and I. G. Shivji, Let the People Speak: Tanzania Down the Road to Neo-Liberalism (Council for Development and Social Science Research in Africa (CODESRIA), Dakar, 2006).
136. See I. G. Shivji, State Coercion and Freedom in Tanzania (Institute of Southern African Studies of the National University of Lesotho, 1990) pp. 81-90.
137. Most of these clashes arose out of raids among nomads for animals. On this see A. M. Khazanov, Nomads and the Outside World (Cambridge University Press, Cambridge, 1983) p. 222.
138. High Court of Tanzania at Singida, High Court Sessional Case No. 168 of 1976 (Unreported). On appeal it is referred to as Noya Gomusha and Others v. R., reported in [1980] TLR 19.
139. See the evidence of Samson Ntinda, the party chairman in Singida, who is quoted at length by Shivji, supra note 69, p. 84.
140. This account is reproduced verbatim from ibid., pp. 88, 89.
141. On this brutality of the State against the Barbaig, see also Africa Watch, Executive Order Denies Land Rights: Barbaig Suffer Beatings, Arson and Criminal Charges, New York, London and Washington D.C., 1990;
142. C. Lane, Alienation of Barbaig Pastureland: Policy Implications for Pastoral. Development in Tanzania, Institute for Environment and Development, London, 1991.
143. [1985] TLR 88.
144. High Court of Tanzania at Arusha, Civil Case No. 10 of 1981 (Unreported).
145. Act No. 21 of 1975.
146. The government was forced to form a judicial commission of inquiry to investigate the actions of these institutions. See Government of the United Republic of Tanzania, Report of the Commission on Violations of Human Rights in NAFCO Wheat Farms of Hanang District (The Kisanga Commission), Dar es Salaam, 1993.
147. Government Notice No. 88 of 13 February 1987. This Order was declared null and void by Chua, J. (as he then was) in Tito Saturo and 7 Others v. Matiya Seneya and Others, High Court of Tanzania at Arusha, Civil Appeal No. 27 of 1985 (Unreported).
148. See C. M. Peter, Human Rights in Tanzania: Selected Cases and Materiab (Rudiger Koppe Verlag, Cologne, 1997) p. 218.
149. For a critical appraisal of this controversial decision by the Court of Appeal of Tanzania, see R. W. Tenga and G. R. Kakoti, 'The Barbaig Land Case: Mechanism of State-organised Land-grabbing in Tanzania', in H. Veber et al. (eds.), Never Drink from the Same Cup: Proceedings of the Conference on Indigenous Peoples in Africa, Tune, Denmark, 1993, pp. 43-47.
150. This letter is fully reproduced in C. Lane, 'Turning Adversity to Advantage: How Barbaig Herders Have United to Protect Their Lands and Advance Their Interests', No. 1 Indigenous Affairs (1997) p. 53.
151. See for instance the decisions in Case of Yoke Gwaku and 5 Others v. National Agricultural, and Food Corporation (NAFCO) and Another, High Court of Tanzania at Arusha, Civil Case No. 52 of 1988,
152. and Ako Gambuland 100 Others v. National Agricultural and Food Corporation and Wäret Wheat Farm Ltd and Gidagamowd Wheat Farm Ltd, High Court of Tanzania at Arusha, Civil Case No. 12 of 1989 (Unreported). These and other cases relating to indigenous minorities are treated at lengdi in S. E. A. Mvungi, 'Legal Rights of Minorities and Indigenous Peoples in Tanzania', 20-27 Eastern Africa Law Review (December 2000) p. 88.
153. Language experts argue that the majority of these groups are Afro-Asiatic and Cushitic in origin. See for instance R. J. Thornton, Time and Culture Among the Iraqw of Tanzania (Academic Press, New York, 1980).
154. It has at times been argued that the expansion of the agricultural activities of the Mbulu has brought them into conflict with the neighbouring pastoralists. See the chapter by A. Tolle in D. Anderson and V Broch-Due (eds.), The Poor Are Not Us: Poverty and Pastoralism (James Currey, Oxford, 1999);
155. L. Borjeson, A History Under Siege: Intensive Agriculture in the Mbulu Highlands, Tanzania-19th Century to the Present (Stoddiolm University, 2004);
156. K. A. Snyder, The Iraqw of Tanzania: Negotiating Rural Development (Westview Case Studies in Anthropology, Boulder, Colorado, 2005).
157. On this policy see J. K. Nyerere, Ujamaa: Essays on Socialism (Oxford University Press, Dar es Salaam, 1968);
158. K. A. B. Okoko, Socialism and Self-Reliance in Tanzania (KPI, Ltd., London and New York, 1987);
159. D. E. McHenry, Limited Choices: The Political Struggle for Socialism in Tanzania (Lynne Rienner Publishers, Boulder and London, 1994);
160. I. N. Resnick, The Long Transition: Building Socialism in Tanzania (Monthly Review Press, New York and London, 1981);
161. C. Pratt, The Critical Phase in Tanzania 1945-1968: Nyerere and the Emergence of a Socialist Strategy (Cambridge University Press, Cambridge, 1976).
162. See M. von Freyhold, Ujamaa Villages in Tanzania: Analysis of a Social Experiment (Monthly Review Press, New York and London, 1979).
163. Part of this important pronouncement is reproduced in J. K. Nyerere, 'The Arusha Declaration and TANU's Policy of Socialism and Self-Reliance', in I. L. Markovitz, African Politics and Society: Basic Issues and Problems of Government and Development (The Free Press and Collier-Macmillan Limited, New York and London, 1970) p. 266,
164. and S. E. Chambua, 'The Development Debates and the Crisis of Development Theories: The Case ofTanzania with Special Emphasis on Peasants, State and Capital', in U. Himmelstrand et al. (eds.), African Perspectives on Development: Controversies, Dilemmas & Openings (East African Educational Publishers, Mkuki na Nyota, Boabab, Fontain Publishers, St. Martin's Press and James Currey, Nairobi, Dar es Salaam, Zimbabwe, Kampala, New York and London, 1994) p. 45.
165. See J. V. Mwapachu, 'Operation Planned Villages in Rural Tanzania: A Revolutionary Strategy for Development'.
166. This document is reproduced in J. K. Nyerere, Freedom and Socialism: A Selection from Writings and Speeches 1965-1967 (Oxford University Press, Dar es Salaam, 1968) pp. 337-366.
167. See D. E. McHenry, Tanzania's Ujamaa Villages: The Implementation of a Rural Development Strategy (Institute of International Studies, University of California, 1979) p. 103.
168. See A. Coulson, Tanzania: A Political Economy (Clarendon Press, Oxford, 1982) p. 3.
169. The legal framework of this social and production set-up was provided in Villages and Ujamaa Villages (Registration, Designation and Administration) Act, 1975 (Act No. 21 of 1975), repealed by the Local Government (District Authorities) Act, 1982 (Act No. 7 of 1982). This Act is partially discussed in A. Mascarenhas, After Villagisation-What?', in B. U. Mwansasu and C. Pratt (eds.), Towards Socialism in Tanzania (University of Toronto Press, Toronto and Buffalo, 1979) p. 145.
170. See J. K Nyerere, Freedom and Development: A Selection from Writings and Speeches, 1968-1973 (Oxford University Press, Dar es Salaam, 1973) p. 67.
171. See McHenry, supra note 90, p. 150.
172. See ibid., p. 108,
173. and J. Boesen, 'Tanzania: From Ujamaa to Villagisation', in Mwansasu and Pratt, supra note 91, p. 128.
174. The late Ben Lobulu characterised the Village Programme as a fiasco whose conception and implementation was high-handed and illegal with criminal force being used and thus turning the socialist dream to a socialist nightmare. See Lobulu, supra note 1. On similar criticism of this Programme,
175. see S. Maghimbi, 'The Rise and Fall of Nyerere's Populism (Ujamaa.)', in P. G. Forster and S. Maghimbi (eds.), The Tanzanian Peasantry: Further Studies (Avebury, Aldershot, 1995) p. 23,
176. and B. C. Nindi, 'Compulsion in the Implementation of Ujamaa', in N. O'Neill, and K. Mustafa (eds.), Capitalism, Socialism and the Development Crisis in Tanzania (Avebury, Aldershot, 1990) p. 57.
177. Court of Appeal of Tanzania at Arusha, Civil Appeal No. 31 of 1994, reported in [1995] 2 LRC 399.
178. Ibid.
179. Ibid.
180. This decision is analysed in various works including U. Wanitzek and H. Sippel, 'Land Rights in Conservation Areas in Tanzania', 46:2 Geojournal (1998) p. 113,
181. and B. Schneeweis, Die Reform des Tansanischen Bodenrechts under besonder berucksichtigung der Rechtssicherheit der Kleinbauerlichen landnutzung, Ph.D dissertation, Faculty of Law of the University of Hamburg, Germany, 2002.
182. Act No. 22 of 1992. This law is analysed in I. G. Shivji, A Legal Quagmire: Tanzania's Regulation of Land Tenure (Establishment of Villages) Act, 1992, International Institute for Environment and Development, London, 1994.
183. It should however be noted that people of this area have a history of pursuing their rights to the logical conclusion. During the colonial period, for instance, the Meru presented their land case to the Trusteeship Commission of the United Nations in New York. See K. Japhet and E. E. Seaton, The Meru Land Case (East African Publishing House, Nairobi, 1967).
184. On the partitioning of the African continent by the imperial powers during the 1885-1885 Berlin Conference, see inter also S. Forster et al. (eds.), Bismarck, Europe and Africa: The Berlin African Conference 1884-1885 and the Onset of Partition (Oxford University Press, Oxford, 1988),
185. and B. Davidsson, Africa in History: Themes and Outlines (Phoenix Press, London, 1991) p. 284.
186. On the Maasai, see inter alia Spear and Waller, supra note 53;
187. Parkipuny, supra note 56;
188. K. Arhem, Pastoral Man in the Garden of Eden: The Maasai of the Ngorongoro Conservation Area, Tanzania (Department of Cultural Anthropology, University of Uppsala and the Scandinavian Institute of African Studies, Uppsala, 1985);
189. ole Saitoti and Beckwith, supra note 49.
190. On the causes and repercussions of some of these clashes between pastoralists and farmers, see B. A. Mtwale, Conflicts Between Pastoralists and Farmers over Land Use: A Case Study of'Kilosa District, a dissertation submitted in partial fulfilment of the requirements for the degree of Master of Arts (Development Studies) of the University of Dar es Salaam, 2002.
191. See also D. K. Ndagala, Pastoral Territory and Policy Debates in Tanzania', Nos. 34-35 Nomadic Peoples (1994) p. 23.
192. Court of Appeal of Tanzania at Arusha, Civil Appeal No. 53 of 1998.
193. Ibid.
194. See 'Zoo in the Bush at Mkomazi', in International Work Group for Indigenous Affairs, The Indigenous World 1997-1998 (IWGIA, Copenhagen, 1998) p. 299,
195. and P. Mgawangi, 'The First Tanzanian Rhino Sanctuary Coming', The Guardian (Tanzania), 5 July 1995, p. 5.
196. Supra note 104.
197. This case is adequately analysed by the two counsels who represented the Barbaig from the Legal Aid Committee of the Faculty of Law, University of Dar es Salaam. See S. E. McHome, Evictions and the Rights of People in Conservation Areas in Tanzania (Faculty of Law, University of Dar es Salaam, 2002),
198. and I. H. Juma, 'Extinction of Customary Land Rights in the Wildlife Conservation Areas of Tanzania: The Case of Mkomazi Game Reserve', 2 Law in Africa (Zeitschrift der Gesellschaft fur afrikanisches Recht) (2000) p. 133.
199. The views of the Court were given by the late Chief Justice Francis L. Nyalali to his biographer Professor Jennifer Widner of the University of Michigan, United States of America. See J. A. Widner, Building the Rule of Law: Francis Nyalali and the Road to Judicial. Independence in Africa (W. W. Norton & Company, New York and London, 2001) pp. 272-275.
200. See the case of Athuman Ally Maumba v. The United Republic (High Court of Tanzania at Dar es Salaam, Criminal Appeal No. 95 of 1989) in which Hon. Mr. Justice Kahwa Lugakingira handed out a stiff sentence to man who have been sexually abusing children, describing him as a criminal pervert who engaged in a bizarre relay of sexual assaults upon indigent youngsters and who needed to be removed from civilised society so that children may get the chance to grow up in dignity and with a hope for a future. An appeal of this decision proved to be disastrous. The Court of Appeal of Tanzania stiffened the sentence.
201. Hon. Mr. Justice Thomas Mihayo followed Lugakingira's decision in the case of Nguza Vicking (Babu Seya) and 3 Others v. Republic (High Court of Tanzania at Dar es Salaam, Criminal Appeal No. 84 of 2004) which also involved the abuse of children. This indicates a consensus by the courts of law in Tanzania when it comes to the protection of children as a vulnerable group.
202. In Chiku Lidah v. Adam Omari (High Court of Tanzania at Singida, (PC) Civil Appeal No. 34 of 1991) Mwalusanya, J., underlined the duty of the father to maintain his child as a basic right of the child.
203. See the decision of J. Saidi in Ndewawiosia Ndeamtzo v. Immanuel s/o Malasi, [1968] H.C.D. No. 127,
204. and J. Mwalusanya in Bernado Ephrahim v. Holaria Pastory and Another, High Court of Tanzania at Mwanza, (PC) Civil Appeal No. 70 of 1989, reported in [1990] LRC (Const) 757. In these cases the High Court declared customary law which bars female members of clans from inheriting land as invalid.
205. Hon. Lady Justice Munuo in her ruling in favour of the government in Yoke Gwaku and 5 Others (supra note 82) asserted inter alia that the natural resources of the land have to be used for the development of the people particularly in the eradication of poverty, ignorance and disease.
206. This was the position taken by D'Souza, Ag. J., in Mulbadaw Village Council and 67 Others {supra note 76).
207. See the judgement of the court written by Nyalali, C. J. (as he then was), in Lekengere Faru Parutu Kamunyu and 52 Others {supra note 104),
208. and the judgement of Mrosso, J. (as he then was) in Yoke Gwaku and 5 Others {supra note 82).
209. According to the lawyer Lobulu, the Court of Appeal of Tanzania in particular pre-occupies itself mainly with its own administrative and procedural rules-not in search for a reason to hear the substantive appeal so that justice is done but rather to find a device to get rid of the file. See B. Lobulu, 'The Legal Profession in Tanzania-Lawyers and Judges: Protectors or Violators of Human Rights?', in E. A. Ankumah and E. K. Kwakwa (eds.), The Legal Profession and the Protection of Human Rights in Africa (Accra and Maastricht, 1999) p. 40. This complaint is partially conceded by the Chief Justice of Tanzania Hon. Mr. Justice Augustino Ramadhani.
210. See A. S. L. Ramadhani, 'Twenty Five Years of the Court of Appeal of Tanzania and the Establishment of the East African Court of Justice', in Peter and KijoBisimba, supra note 64, ch. 13.
211. See fir example the guidance given by His Lordship the Chief Justice of the United Republic of Tanzania Francis Nyalali in Attorney-General v. Marwa Magori (Court of Appeal of Tanzania at Mwanza, Criminal Appeal No. 95 of 1988) where he said: "Although it is true that neither of the parties had raised the issue of the constitutionality of the Deportation Ordinance, we are satisfied that the learned trial judge was correct in raising it suo motu for two reasons: Firstly, all courts of law in this country are duty bound to take judicial notice of all constitutional and legal matters. Secondly, the courts in this country are not courts of the parties but are courts of law and have thus inherent jurisdiction to raise and to consider matters which are necessary to a fair and just decision of a case, provided the parties are given reasonable opportunity to respond to the matters thus raised." Interestingly the Court of Appeal itself does not adhere to its own guidance. Logically those below it follow suit.
212. See McHome, supra note 108.
213. The Commission for Human Rights and Good Governance is established under Articles 129-131 of the Constitution of the United Republic of Tanzania as an ombudsman to protect and promote human rights and ensure rule of law and good governance in the country. The Constitution has to be read together with the Commission for Human Rights and Good Governance Act, 2001 (Act No. 7 of 2001).
214. See 'Human Rights Body Condemns Hadzabe Land Sale to Investor', The Guardian (Tanzania), 3 May 2007, p. 4.
215. See A. Ihucha, 'Hadzabe Saga Takes Strange Twist', the Guardian (Tanzania), 22 May 2007, p. 1;
216. R. Mwalongo, 'Hadzabe Deserve Much More than Just a Glance', The Guardian (Tanzania), 24 May 2007, p. 11;
217. J. Ngilisho, 'Hadzabe Leader Accused of Obstructing Commission', The African (Tanzania), 26 May 2007, p. 5;
218. N. Samwel, 'Human Rights Commission Disowns Hadzabe Report', The Guardian (Tanzania), 29 May 2007, p. 2.
219. See for instance the optimism in G. Hyden, 'Top-Down Democratisation in Tanzania', 10:4 Journal of Democracy (1999) p. 142.