Human rights are fundamental rights which a person, has by virtue of being a human being. These rights are inherent in a person by reason of his birth and are therefore prior to the state and the law, and therefore, they should be recognized, respected and enforced.
Human rights are fundamental rights or rights that human beings is born with and are inherent in him or her and not granted by the state of any person. Normally the state enhances human right but does grant the human rights.
Categories of human rights
Right which an individual must have included but not limited to the following:-
Civil and political rights (also termed as the first generation rights)
They include the right to equality and protection before the law; right to organize right to self-determination; freedom from arbitrary torture; right to life freedom of assembly: right to due process: right to be leader or to choose representatives in the government, freedom of worship: freedom of movement right to marriage freedom of speech: freedom of expression freedom of inquiry and criticism freedom of slavery and servitude etc.
Social, Cultural and Economic Rights (also termed as the second generation rights)
These include: The right to employment, freedom from hunger, right to clothing, right to shelter, right to education, right to health, right to old age care, right to choose employment, right to holidays/ leave, etc
Solidarity community or collective right (also known as the third generation right)
They include: right to cultural identity, right to clean environment, the right to development the right to peace etc.
Origin and development of human right worldwide
The standard western account of the tradition human right is somewhat problematic. The expression human rights is relatively new in the daily use which started after the Second World War and the founding of the United Nations, before this period human rights used to be known as natural right or the right of man.
Most scholars of human right trace the concept back to ancient Greece and Rome during this are human rights were attached to natural law it was conceive that all rights of citizens came from natural and not the state or individuals.
However the human right development story has multiple layers as it involves a dispute between those who believe in human rights and those doubts.
The following below is a brief account of the important events for explaining historical background to the origin and development of human rights.
Early legal developments in the area of human rights are said to have emerged from the Magna Carta of 1215. The Magna Carta was a contract between the English king john and representative who were dissatisfied with the taxes being levied by monarchy. This agreement guaranteed the right for a free man not be arrested or detained in prison or deprived of his freehold or outlawed or outlawed or banished. Or in any way molested innless by lawful judgment of this peers and the law of the land
The English bill of right of 1689. The English bill of right of 1689 is also considered to be a stepping stone to day s texts on human right .the parliament declared that no excessive fine(be) imposed nor cruel and unusual punishment (be) inflicted
The work of a number of philosophers and writes: the work of a number of philosophers had a very concrete influence on the articulation of demands in the form of natural right of man same philosophers were such as John Locke, Jean Jacques Rousseau, Emmanuel Kant, Alan Gerwith, Jeremy Bentham, Thomas Paine, Olympe de Geuge, Marry Wollpastone Craft, Hersch Lauterpacht, ect.
John Locke’s: second Treatise of Government published in 1690, considered men in ‘a state of natural’ where they enjoyed ‘a State of Liberty
Jean Jacques Rousseau’s: The Social Contract published in 1762 developed the idea that and individual may have a private will and that his private interest may dictate very differently from the common interest. He also argued that following the genaral will makes man free.
Emmanuel Kant: Emmanuel Kant, a German philosopher, also contributed to the contemporary appreciation of the importance of respecting human dignity as he developed two imperatives stated as follow:
Alan Gerwith: In the words of this modem philosopher, “ Agents and institutions are absolutely prohibited from degrading persons, and treating them as if they had no rights or dignity”. This is often the starting point for right theories that emphasize the importance of individual autonomy.
Thomas Paine: Thomas Paine was radical English writer who participated in the revolutionary changes affecting America. He immigrated to Africa in 1774 and in 1776 produced a widely read pamphlet call Common Sense which attacked the idea of rule by Monarchy and called for Republic government and equal rights among citizen. He also worked on the constitution of Pennsylvania and fot the subsequent abolition of slavery in that state. He further wrote a book entitled ‘Rights of Man’ which appeared in 1791 in defense of the French Revolution.
Olympe de Gouge: Olympe de Gouge made effort to promote a Declaration of the Rights of Women and a ‘Social Contract Between man and Woman’ with the view of regulating property and inheritance rights.
In England, Mary Wollstonecraft’s “Vindication of the right of Women” appealed for a revision of the French Constitution to respect the right of women, arguing that men could not decide for themselves what they judge would be best for women
Jeremy Bentham: In the 19th Century, natural rights or the rights of man became less relevant to political change and thinkers such as Jeremy Bentham ridiculed the idea that ‘all men are born free’ as ‘Absurd and miserable nonsense’. For Bentham, the rights were legal right and it was the role of the law makers and not natural rights advocates, to generate and determine their limits.
Amartya Sen: Thus contemporary scholar had a different thinking from that of Jeremy Bentham for him; human rights are pre-legal moral claims that can hardly be seen as giving justiceable rights in court and other institutions of enforcement. He cautions against confusing human rights with legislative legal rights.
The 1776 American Declaration of Independence: This is also taken to be one of the influential phenomena to the birth and development of the practice of human rights. It stated that: We hold these truths to be self – evident, that all men are created equal: that they are allowed by their creator with certain unalienable rights: that among these are life, liberty and the pursuit of happiness”.
The French Declaration of the Rights of man and of the Citizens of 1789. It contained articles which recognized and proclaimed that; “Men are born and remain free and equal in rights” and that “the aim of every political association is the preservation of the natural and invaluable rights of man. These rights are liberty, property, security and resistance to oppression”
The First World War event: The development and practice of human rights also has a bearing on the First World War. At the end of the war, Versailles Peace Treaty of 1919 established the League of Nations and the International Labour Organization (ILO). The League developed and promoted minorities’ treaties; fostered the development of international workers’ rights and worked on the abolition of slavery. Specifically, here there developments by the League can be noted
Goal of fair and humane condition of labour for men, women and children was stated explicitly in the League Covenant
The human right of individual was granted legal protection on the bases of individual ties to a state and in order to reduce political tensions among states that might lead to war.
Workers right were to be recognized and protected as this was seen by some states as the best way to prevent their population from turning to communism and to reduce the aims of revolution
Inter war period: in this the inter war period there was some interest in developing the scope of international law to cover concern for individual right. Following the end of the Second World War, the united nations charter was respect for human right and obliged state to cooperate with UN for the promotion of universal respect for and observance of human right.
The Universal Declaration of Human Right (1948). The establishment of the United Nations organization signaled the beginning of a period of unprecedented international concern for the protection of human rights.
Under the auspices of the UN, several key instruments were established for the promotion and protection of human rights.
The day after the adoption of the Genocide Convention, the general Assembly proclaimed the universal declaration of human rights as a common standard of achievement for all peoples and all nations.
Though not binding legal document but it contains actual human right obligations and states a common understanding of the people of the world concerning the inalienable and inviolable right of all member of the human family
Furthermore through the universal declaration of human rights the UN gave an international meaning to the expression human right. Since then various human right treaties have been developed.
The following is an abridged version of those human rights contained in the universal declaration of human rights.
- All human being are born free and equal in matter of dignity and Justine
- No human being should be discriminated against on whatever basis such as nationality, colour, religion, gender, social, class etc
- Every human being has the right to live a free life and to be assured of his/her security
- It is prohibited to enslave any human being
- It is prohibited to persecute any human being or subject him or her to cruel treatment and humiliation
- All human being are legal before the law and have equal right to be protected by the law. Every human being has the right to seek and get justice in the courts whenever her or she falls victim of violation of his or her basic right recognized in the constitution and the law of his/her country of residence
- It is prohibited to arrest, detain or deport anyone from his or her country of nationality without fundamental reasons
- Every accused person has the right to be heard and defend him/her in an independent and impartial court
- It is prohibited to arbitrarily interfere with an individual person life such as his or her privacy, family, residence or communications
- Every person has the right to seek and live a descent life politically, economically, health wise and culturally.
- It is prohibited to arbitrarily, interfere with an individual person life such as his or her privacy, family, residence or communications
- Every person has the right to choose where to live so long as in so doing one does not interfere with other people’s rights or the just laws of the country concerned
- Every person has the right to leave his or her country freely and return freely without undue obstacles
- Every person has the right to nationality. It is prohibited to strip someone of this his or her nationality without basic reasons or deny him or her the right to change his or nationality when he or she so wishes
- Every human being individually or collectively has the right to own property
- It is prohibited to confiscate someone’s property without a due and just legal process which guarantees a satisfactory compensation.
The international convention: Following the adoption of the universal declaration of human rights the United Nations organizations human right commission began to work on a binding text in the form of a treaty together with measures for implementation. Two instruments were developed on the 16th December 1966. These were: the civil and political rights convention (including right like rights to life, liberty, fair, trial, freedom of movement, thought, consciences, peaceful assembly, family and policy. It also prohibits slavery, torture, cruel, inhuman or degrading treatment and punishment, discrimination arbitrary arrest and imprisonment for debt) as well as the Economic, social and culture rights conventions (including right such as right to education, food, housing, health care, the right to work and to just and favorable conditions of work. Both of these came into force in 1976. These two covenants taken together with the universal declaration of human rights are sometimes referred to as the International Bill of Rights.
In addition to the international bill of human rights these are other treaties that are considered core to the human rights system. They include the “international convention on the elimination of all forms of racial discrimination” which come into force in 1969 and prohibits any distinction exclusion restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition enjoyment or exercise, on an equal footing of human right and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
The other convention core to the human right system is the convention on the elimination of all forms of discrimination against women. This is designed to ensure women have equal access to political and public life as well as education, health and employment. Under this convention which entered into force 1981, sates are also obliged: to modify the social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
The convention against torture and other cruel, inhuman or degrading treatment or punishment programs into force in 1987. The convention includes a definition of torture (for the purposes of the convection) and insists that any party to it undertakes obligations: to take measures to prevent acts of torture in any territory under its jurisdiction not to return any person to state where there are substantial grounds for believing that person would be in danger of being subjected to torture and to ensure that acts of torture can be prosecuted in the courts of that state even though those acts occurred abroad
The convention on the rights of the child defines a child as every human being below the age of eighteen unless under the law applicable to the child, majority is attained earlier. This has historical roots in the Geneva Convention of 1924 which was the first international covenant to mention the rights of the child. It seeks to protect children from practices that particularly endanger their welfare, including economic exploitation, trafficking, and illicit use of drugs and all forms of sexual exploitation and abuse. The guiding principles of the convention are the need to take into account the child’s best interests. Non discrimination, and respect for the wishes of the child. The convention was adopted in 1989 but enters into force in 199 and has become the most widely ratified of all UN human rights treaties. The only member states not to have ratified the convention are Somalia and the united state.
The other core human rights treaty is the international convention on the protection of the Rights of all Migrant Workers and their Families, which entered into force in 2003. Unfortunately, the states that have accepted obligation under this treaty are mostly states that export migrant workers avoid the reach of this treaty and the prospect f supervision by the monitoring body.
Two new treaties were adopted at the end of 2006. The first is the International Convention on the Rights of Persons with Disabilities. Key rights concern the right to work, and the right to education. States are obliged to refrain from discrimination on grounds of disability and to take measures to eliminate such discrimination by any person, organization or private enterprise.
The arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or deprivation liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
Protecting human rights through the treaties/ conventions/ covenants
These treaties, and a series of parallel developments at the regional levels the Organization of American States the Council of Europe and the African Union, articulate a range of rights and testify to governments stated desire to protect human rights. But do they work? Clearly the daily evidence of human rights violations suggests that drafting and signing treaties is not enough Considerable effort has been expended to make the treaty guarantees more effective. This has been undertaken on a number of fronts.
Firstly; expert monitoring bodies have been established to examine the reports of governments on how they fulfill their human rights obligations. This involves a ‘constructive dialogue’ over two or three days and results in ‘concluding observations’ from the relevant committee. Some monitoring bodies engage in fact-finding and country visits. In the context of the prevention of torture, the Council of Europe’s expert body makes periodic and ad hoc visits to places of detention in 46 European states. A new UN committee is expected undertake similar visits to those states that ratify a new treaty
Secondly; under some treaties, complaints can be brought by aggrieved individuals against the state at the international level (usually only against those states that specifically recognize a right to complain under the treaty). In particular, one has to recognize the remarkable work of the regional bodies such as the European and American Courts of Human Rights and the African Commission on Human and Peoples’ Rights. These bodies have developed an impressive case-law which not only develops our understanding of the scope of human rights, but has led to some concrete protection and changes in the law. This system for individual complaints is at the same time remarkable for the volume of judgments delivered in Europe (the European Court of Human Rights delivered over 1,000 judgments in 2005) and for its astonishing under-utilization in the rest of the world (for example, in a similar period the UN Human Rights Committee published its view on the merits of 27 individual communications).
Thirdly; consolidation of these rights in treaties can empower victims to remind the authorities of their international obligations, and this in turn legitimizes a whole series of demands and protests, whether through judicial or other processes at the national level.
Finally, in some cases, such as genocide, torture, and enforced disappearances, the treaties establish the legal framework for the prosecution of individuals who are caught outside their own country. The torture treaty was used to reject legal arguments that certain individuals enjoy immunity from such prosecutions (this is what happened to senator Pinochet when he was denied in London).
Development and practice of human rights in Tanzania
The Universal declaration of Human Rights adopted by the United Nations General Assembly on 10th December, 1948 declared the protection of Human Rights Worldwide. This declaration has been implemented well in several countries in the world including Tanzania.
Tanzania being one of the members of the United Nations Organization, introduced the bill of rights in the constitution in 1948. Hence every citizen of Tanzania today is guaranteed with equal rights and no segregation between and among people. The bill of rights contains 21 articles which stipulate the rights and duties of a citizen.
The genesis of human rights in Tanzania
The development of Human Rights in Tanzania is traced by looking at the three distinct phases.
During this period, African culture in general and Tanganyika in particular had human rights conceptions though not as perceived today. For instance, an individual was not perceived to exist outside the community. So there was a sense of collective rights and rights to elders to be respected by children, was also in practice, etc.
Colonialism and human rights are two parallel notions. All forms of human rights were constrained in Tanzania and elsewhere. So, colonial era was a ‘lost period’ of Human rights in Tanzania.
This phase is informed by three constitutional developments.
In 1961 Tanzania attained her independence. However, the independence constitution did not have bill of rights although this does not mean that there was no negotiation to enshrine (include) bill of rights in the constitution. At that particular time the constitution intended to defend the British. So, Mwalimu Julius, K. Nyerere, the then Prime Minister of Tanzania was against the introduction of bill of rights because it could be one sided and not for Tanganyikans.
The republican constitution of 1962: On the other hand, included the appendages of the independence constitution. However, the introduction of bill of rights was not advocated for because of fear that it could lead to divisions among the people of a newly independent state. Focus was on nation building and development.
The interim constitution of 1965: This made Tanzania a one party state and there was a debate whether a bill of rights should be introduced but following the supremacy of the party, the bill of rights was not included in the constitution; instead human rights were only mentioned in the preamble which is not legally binding.
The permanent constitution of the United Republic of Tanzania of 1977: At that moment there was no introduction of bill of rights in but it only remained stated in the preamble. It was not until 1984 when the bill of rights was introduced in the constitution of the united republic of Tanzania. This is always referred to as an important milestone to the development of human rights in Tanzania.
HUMAN RIGHTS ABUSE IN TANZANIA
Human rights abuse refers to the process of ignoring and depriving people of their basic rights.
Nature/ causes of human rights abuse in Tanzania
The following are the causes of human rights abuse in Tanzania
Bad traditional practices; These practices violate human rights because there are some African traditions which make some people inferior in the societies. The traditions are like denial of the right to own property to women, forced marriages, female genital mutilation, killing of old people for superstitious beliefs, killing of albinos, etc.
Extra judicial killings; This is a popular term referring to an unlawful act by a state whereby a person is punished by an officer of the state (particularly a law enforcement organ such as police, militias, prison officials, etc) to the point of death. The cause of these extrajudicial killings is said to be lack of professionalism and skills, failure of government to prosecute perpetrators, weak criminal justice system, lack of impartiality, as well as abuse of rule of law.
Mob violence; This can be defined as commotion of peace by several persons, assembled and acting as a group with common intent to execute a lawful or an unlawful enterprise in a violent and turbulent manner. Mob violence commonly occurs when a group of people or part of the community, or even the entire community decides to punish those suspected to commit criminal acts in the community.
Political violence; these commonly occur when the part of the community tend to commit violence when they are not satisfied by the decisions made by the government or political leaders. For example, when the people are not satisfied by the election results, like that happened in Zanzibar in 27th January 2001 between the police and CUF supporters where 31 people died in those violence.
Forceful eviction; this is when the government forces the community members to migrate from their common dwelling areas to other areas for various reasons, being economic, environmental or political. Example the eviction of people from 135 villagers in Sengerema District, where they advanced their complaints to the commission for Human Rights and good Governance which ultimately found that the District authorities were responsible for the violation of human rights.
Cruelty against children; There are some cases of children’s rights abuse that range from violence, child labour, torture and cruelty, corporal punishment, sexual abuse, etc. for example; the Legal and Human Rights Centre (LHRC) report of 2010 revealed that more than 30 children from different regions of mainland Tanzania were brutally killed by their own biological and step parents.
Ignorance and illiteracy; In most cases violations of human rights happen because some people are not aware of human rights, hence they violate them unconsciously. For example, killing of albinos is associated with illiteracy and superstitious beliefs.
Corruption; This leads to the failure of the law enforcement organs such as legal and judicial system to enforce law and orders due to presence of corrupt servants. This paralyses the legal system to the extent that most human rights abuse cases are heard under corrupt bases, something which denies the right to the defendants.
Poverty; this causes most criminal offences like robbery, banditry, rape, ets
Weak justice system; When the justice system becomes weak, it gives a loop hole to most human rights abuse acts to occur. This weakness is caused by several factors like corruption, poor investigation machinery and prosecution system, lack of sufficient evidence and fabrication of cases.
Effects of human rights abuse
Dehumanization and humiliation of people which leads to psychological problems and loss of hope to most victims
Bad reputation by the international community
Loss of lives such as the existence of deaths in prisons. Example; the deaths of prisoners in Mbarali in 2008 where 17 prisoners died in custody due to overconcentration in one room.
Ways of fighting against human rights abuse
To enact and implement laws against human rights violation
To reduce the rate of poverty
Reducing gender gap so as to promote equal opportunities to both genders, men and women
Avoidance of negative traditional values through providing civic education to people
To ensure peace and order so as to influence human rights
To educate people about human rights
Role of individuals and government in enhancing human rights in Tanzania
Citizens have a role of preventing crime and reporting them to the appropriate authority
Providing education to the public on the negative impact of violation of human rights. This should be provided through various mass media.
The government should continue to provide support and improve the non-governmental organizations that seek to defend human rights. For example; Tanzania Media Women Association (TAMWA)
Promotion of good governance and rule of law. All people should be equal before the law
The government has to combat and stop the violation of human rights through all possible measures. Example; killing of innocent people
The parliament has to pass laws that prohibit all traditional practices which hinder the promotion of human rights in the society such as Female Genital Mutilation (FGM), wife battering, forced marriages to girls under the required age, etc
Strict rules have to be taken by the government in laying down the strategies to combat corruption so as to add effectiveness to law enforcement organs in Tanzania.