Damas Daniel Ndumbaro

CERTIFICATION

The undersigned certifies that he has read and hereby recommends for the acceptance by the Open University of Tanzania a research paper titled: Poachers Torture and Human Rights in Tanzania: a Case Study of Namtumbo District in partial fulfillment of the requirements for the Master of Laws Degree.

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Damas Daniel Ndumbaro

Date:……………………………...

This research paper is a copyright material protected under the Berne Convention; the Copyright and Neighbouring Act, Cap 218 RE 2002, and other international and national enactments in that behalf, written on intellectual property. It may not be reproduced by any means, in full or in part without permission of the author or the Open University of Tanzania.

DECLARATION

I, Nicholaus Livingstone Mwakasanga, do hereby declare that this work is a product of my own original work; and it has not been and is not currently being submitted for a Master of Laws degree in any University.

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Signature

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Date

DEDICATION

This work is dedicated to all those who raise their voices to make sure that the torture which is administered by coercive organs of the State come to an immediate halt.

ACKNOWLEDGMENT

The researcher of this work would like to thank many people who made it possible for this research paper to come out. Firstly, the researcher is exceedingly indebted to Dr. Damas Daniel Ndumbaro a supervisor, for his cogent and detailed comments that enabled the researcher to fulfill this work. He, indeed, devoted most of his time supervising the researcher, especially in analyzing issues and facts. Without his hard work and industry, it could be very difficult to accomplish the work.

Secondly, to the Legal and Human Right Centre Songea for giving the researcher full support and encouragement. One cannot find the right words to indicate appreciation to them (LHRC – Songea Branch) for their commitment and dedication.

Thirdly, to those who injected in the much needed financial support to make the work done. These include, Mr. Delick of NMB – Namtumbo Branch, John Mwakipesile MP (as he then was) and Florah Matley who also typed the work.

However, when all is said and done, the researcher takes responsibility for any shortcomings which might be associated with this work.

ABSTRACT

For many years since the Tanzania Community intended to address the problem of Poachers Torture, ordinary citizens have been very suspicious on the effectiveness of the fact that despise of existence of prohibition the rate of torturing in its various forms is increasing. This thesis sets out to evaluate and review the applications and efficiency of some of existing laws and suggesting possible ways of closing away with repugnant provisions. The thesis covers a short production on the meaning of torture, element, reasons, method, experience of torture in Tanzania and testing three research questions. Furthermore the thesis examines causes, combat of torture, and critical analysis of collected data and lastly, it summarizes the findings, conclusion and recommendations.

Table of Contents

CERTIFICATION II

DECLARATION IV

DEDICATION V

ACKNOWLEDGMENT VI

ABSTRACT VII

TABLE OF CONTENTS VIII

LIST OF TABLES XI

LEGISLATIONS & CONVENTION XII

LIST OF TABLES XI

ABBREVIATIONS XIII

LIST OF CITED CASES xIV

CHAPTER ONE

1.0 Introduction 1

1.1 Background to the problem 1

1.2 Statement of the problem 4

1.3 Objective of the study 9

1.4 Significance of the study 9

1.5 Research questions 10

1.6 Research methodology 10

1.6.1 Documentary research 10

1.7 Scope and limitation of the study 11

1.8 Literature Review 11

CHAPTER TWO

2.0 Poachers, torture and human rights 16

2.1 Introduction…………………………………………………………….………16

2.1 Conceptual overview 16

2.2 Definition of Torture 21

2.2.1 The Concept of Torture 21

2.2.2 The Historical Context of Torture 23

2.2.3 The Typology of Torture 24

2.3 Elements of Torture 26

2.4 Reasons of Torture 28

2.5 Methods of Torture 30

2.6 Experience of Torture in Tanzania 35

2.7 Legal Remedies to the Victim of Torture 39

2.7.1 Public Policy 40

2.7.2 The Role of Court 41

2.7.3 Burden of Proof 43

2.7.4 Article 30(1) (2) (3) of the Constitution of United Republic of Tanzania 45

2.7.5 Requirement of 90 day Notice of the Intention to Sue 48

2.7.6 Torture versus the Tanzania Evidence Act 52

2.7.7 Training courses on Torture and Human Rights to the Coercive Organs of the State 53

2.8 Conclusion 53

CHAPTER THREE

3.0 TORTURING OF POACHERS IN NAMTUMBO DISTRICT………………………….. 55

3.1 Introduction – Torture of poachers in Namtumbo 55

3.2 Causes of Poaching in Namtumbo District 55

3..2.1 Poverty 97

3.2.2 Demand for Tusks 62

3.2.3 Culture and Tradition 64

3.3 The Extent of the Problem 66

3.4 Poachers Ignorance of their Rights 72

3.5 Combat of Torture 75

3.6 Critical Analysis of the Collected Data 78

3.6.1 Constitutional protection of torture 78

3.6.2 Government Proceeding Act, Tanzania Evidence Act Against Protection of Torture 81

3.6.3 Training and Awareness Campaign to Stakeholders 84

3.9 Conclusion 85

CHAPTER FOUR

4.0 CONCLUSION AND RECOMMENDATIONS…………………………………………...88

4.0 Introduction ……………..88

4.1 Conclusion 88

4.2 Recommendations 90

LIST OF TABLES

Table 1: Poaching Statistics in Namtumbo District…………………………………...…56

Table 2: Namtumbo Population and Housing Census 2012……………………………..59

Table 3: Economic Cases in Namtumbo District……………………………………...…61

Table 4: Victims of Torture………………………………………………………………72

LEGISLATION AND CONVENTIONS

LOCAL LEGISLATION:-

The Constitution of United Republic of Tanzania of 1977 Cap 2 (RE 2002).

The Economic and Organized Crime Control Act Cap 200 (RE 2002).

The Government Proceeding Act Cap 5 (RE 2002).

The Police Force and Auxiliary Services Act Cap 322 (RE 2002).

The Basic Rights and Duties Enforcement Act Cap 3 (RE 2002).

The Criminal Procedure Act Cap 20 (RE 2002).

The Penal Code of Tanzania Cap 16 (RE 2002).

The Tanzania Evidence Act Cap 6 (RE 2002).

The Wildlife Conservation Act (RE 2002)

INTERNATIONAL CONVENTIONS:-

Universal Declarations of Human Rights 1948.

United Nations Charter 1948.

The United Nations Convention Against Torture Other Cruel Inhuman or Degrading Treatment or Punishment.

The European Convention on Human Rights of 1950.

The Inter-American Convention to prevent torture and punish torture organization of the American States 1985.

The International Covenant on Civil and Political Rights of 1966.

United Nations Declaration on the protection of persons from torture 1975.

African Charter on Human and Peoples Rights.

The American Convention of Human Rights of 1969.

FOREIGN LEGISLATIONS:-

Rome Statute of the International Criminal Court (ICC) 1998.

The World Medical Association of 1975.

ABBREVIATIONS

ALLER – All England Report

CAP – Chapter

EALR – East Africa Court

ICC – International Criminal Court

MP - Member of Parliament

LLM – Master of Laws

LHRC – Legal and Human Rights Centre

OP CIT – Opera Citato

P - Page

QB – Queen Bench

R – Republic

S/O – Son of

TLR - Tanzania Law Report

UDHR - Universal Declaration of Human Rights
UN - United Nations

V - Versus

LIST OF CITED CASES

Ally Kanyero VP (1962) EALR 9

AG v. Leseinoi Ndenai and Others (1980) TLR 214

Attorney of Bahamas v. Ryan (1980) AC 718

Attorney General V.Lesinoi Ndeinai and Two others (1980) TLR 214

Baraza la Wanawake Tanzania (BAWATA) and 5 Others v. the Registrar of Societies and 20 others, High Court of Tanzania at Dar es Salaam, Civil case no.27 of 1997 (unreported).

Bryton v.Nothumbria Police Authority (1977) CLY 2042

Catholic Commission for justice and peace v. AG and others.Caroline za BRSP 1137-1138 more digest vol.7

Christopher Mtikila v. AG (2006) TLR 279

Chumchua Marwa v.Officer of Musoma prison and another, High Court of Tanzania at Mwanza, miscellaneous criminal case no.2 of 1988.

Hatimali Ademji v. East Africa Postal and Telecommunication Corporation (1973) LRT n.6

Delopez Vuruguay, Communication no.52/1979

DPP v.Ephata Lema and 5 others High Court of Tanzania at Dar es Salaam Criminal Appeal no.142 of 1989 (unreported).

DPP v.Daudi Pete (1993) TLR 22

Ezra Kyabanamaize and another v R 91962) EA 302

Godfrey James Ihuya and 3 others vR High Court of Tanzania at Mwanza Criminal Session no.8 of 1980 (unreported)

Hatibu Gandi and others vR (1996) TLR

Henry and others v.Peter Hamilton (1878) 4 AC

Iron Steel Wares Limited v.Martyr Company (1950) 23 EA

Joseph Kivuyo and other v.Regional Police Commander, High Court of Tanzania at Arusha, miscallenous criminal criminal case no.2 of 1988 (unreported)

Legal and Human Rights Centre and 135 Nyamuma Villagers V The District Commissioner, Officer Command District of Serengeti and Attorney General: Decided by Commission of Human Rights and Good Governance, 2001

Mazambi vR (1991) TLR 200

Nanyabarike vR (1971) RD 314

Ongoah Chuan v.Public Prosecutor (1981) AC 648

Patric Maziku v. Sebabili and 8 others, High Court of Tanzania, at Tabora, Civil case no:3 of 1982(unreported)

Pumbuni and another v.AG and another (1993) LRC 317

Quarts Hill Consolidated Gold Mining Company V.Eyre (1885) 11 Q.B.D 674

R V Kigadye and others, High Court of Tanzania at Shinyanga, Criminal session case no:85/1980 (unreported)

Riley and others v .AG of Jamaica and another (1982) 3 ALLER 469

Setelich Vuruguay, Communication no.63/1979

Shihobe Son and another v R (19920TLR 330

Siovi Gabriel Jones v. Minister of Home Affairs and 2 others (2005) TLR 39

Sizya and 35 others v.the Principal Secretary, Ministry of Finance and AG, High Court of Tanzania at Dodoma, Civil Appeal no.5 of 1993 (unreported).

Thomas v. France, European Court (1992) 15 EHRR.

Thomas v. Mjengi and another VR (1992) TLR 152

Theobald Charles Kessy and Vicent Mwaikambo VR (2000) TLR 186

Tyrer v.UK, European Court (1978) @ EARR

Tuwamoi v.Uganda (1967) EA 84

Pumbuni and another v. AG and another (1993) LRC 317

CHAPTER ONE

1.0 INTRODUCTION

1.1 Background to the Problem

Poachers and freedom from torture in Tanzania is a research topic aimed at examining the remedies available to a person who has been injured physically and mentally after being subjected to torture. The central focus is torture inflicted on to poachers by game officers, police officers and security personnel. There is an obligation under international law, under which nations are required to prevent torture and other ill-treatment. This obligation is basically derived from Article 5 of the Universal Declaration of Human Rights, 1948.[1] Under this provision, torture or cruel, in human or degrading treatment or punishment is prohibited. Specifically the UN Convention against Torture (CAT) prohibits torture. All other international human rights treaties also do so in general terms. In the Article 5 of the Universal Declaration[2] of Human Rights 1948 and Article 7 of the International Covenant of Civil and Political Rights of 1966 both provides that no one may be subjected to torture or cruel inhuman or degrading treatment or punishment. Equally in Tanzania in the Constitution of United Republic of Tanzania of 1977 Article 13 (6) (e)[3] provides that:-

“No person shall be subjected to torture or inhuman or degrading punishment or treatment".

Under normal circumstances, torture is basically applied by police officers, security personnel, game officers, to mention just a few. The reason behind this practice is to get information or confession from arrested poachers or suspects of poaching who do not want to give it voluntarily. The Constitution is the core and fundamental law in every country since it is from it that all other statutes emanate. As Mtaki[4] puts it, a Constitution is the supreme law of the land. It is a law above other laws as a basis of the all laws and it guides all organs of the government. This means, therefore, that the organs of the state must work under the ambit of rule of law and not otherwise. Under constitutionalism, abuse of power should not be tolerated.

Commenting on the question of abuse of power particularly in a democratic state, Mwalusanya J. had the following observation:

"Abuse of power in a democracy means failure by the government and its agencies to act in accordance with the law in its governance of its people. The Government and its agencies do not respect the rule of law and thus there is no good governance. Openness and accountability lacks in such a regime, such that the Government and its agencies flout the law of the land with impunity[5]”

This means, therefore, that the Government should be limited in its power. Prof. Wade states in his book: Administrative Law[6] that:

"The government under the rule of law demands proper legal limits on the exercise of power. This does not mean merely that acts of authority must be justified by law, for if the law is wide enough it can be dictatorship based on the tyrannical but perfectly quod principi placuit legis habet vigorem. The rule of law requires something further. Power must first be approved by Parliament and must be granted by Parliament within definable limits".

The Constitution of United Republic of Tanzania of 1977 provides for human rights with one hand and takes them away with the other and particularly when it comes to the question of torture. The central idea being under Article 13 (6) (e)[7] which prohibit torture to be subjected to person poachers after been arrested by state organs such as police, game officers etc. In the same Constitution under Article 30 (2)[8] once it comes to the question of public interest and national security the provision contained in the Constitution which set out the principles of rights are to be read as if it has been removed. This means, therefore, that, the Constitution of a day is loaded with claw -backs and derogative clauses, making the actual enforceability of these rights a mere mockery. This is to say that, Article 30 of the Constitution, in a dramatic fashion, poses as a serious hindrance to the realization of human rights in Tanzania.

In the same vein, there are intricacies facing the victim of torture when one wants to knock the doors of the temple of justice in instituting a civil action against violation of one's human rights. Under Article 30 (3)[9] of 1977 Constitution (as amended from time to time) it is provided that:

"Any person claiming that his/ her rights has been, is being or is likely to be violated by any person may institute proceedings for redress in the High Court” (the underline is mine). This by itself is a problem, for instance, a person who has been subjected to torture, residing at Lusewa village in Namtumbo District has to travel about 180kms to Songea where one can find a High court to institute the suit of violation of his/her rights. This will require him to incur a lot of expenses such as transport, meal, lodging time, to mention a few.