COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORTS OF TANZANIA

The Committee on the Elimination of Racial Discrimination has considered the eighth to sixteenth periodic reports of Tanzania on its implementation of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.

The Committee also discussed follow-up to its thematic discussion on the prevention of genocide, held during an earlier session.

Introducing the report of Tanzania, Wilson M. Masilingi, Minister of State in the Office of the President for Good Governance, said that tremendous social, political, and economic changes had occurred in the past decade. Tanzania was a least developed country that was seriously engaged in the fight against poverty which had had an adverse impact on the implementation of the Convention, particularly in instances where resources, both financial and human, were required. The most important result of the increased economic yield was that the proceeds went to augment investment in priority sectors for poverty reduction, including health, water, rural roads, remuneration of public servants, and HIV/AIDS, all of which were instrumental in ensuring the full enjoyment of human rights in the country.

In preliminary remarks, Committee Expert José Lindgren Alves, who served as country rapporteur to the reports of Tanzania, said regulating and prohibiting racial discrimination did not necessarily mean that there was racial discrimination in the country. There were at least some instances of racial discrimination or prejudices in every country of the world. One of the functions of international law was to give directions to the international community on how it should act and behave internationally and nationally; the Committee did not think that the provisions dealing with racial discrimination in Tanzania were enough, and it urged the delegation to convey the message to the Government that there was a need to fill a gap regarding implementation of the Convention.

During the discussion, which was held over two meetings, the delegation of Tanzania responded to written questions and comments from Mr. Lindgren Alves on the legal concern that there were no specific laws on racial discrimination in Tanzania, and why Tanzania did not adopt specific laws against it that would bring its legislation clearly into line with the Convention. Mr. Lindgren Alves said he usually asked whether the reported absence of cases of racial discrimination was not due to the victims’ ignorance of their rights, lack of confidence in the police and judicial authorities, or lack of information on the existing legislation, and whether the Government believed that customary law was enough on the matter, but in this context, was it not because there was no legislation on racial discrimination? The Rapporteur also praised Tanzania’s present policy of peace and good neighbourliness, and noted his appreciation of the frank tone of everything described in terms of difficulties within the report.

Committee Experts also raised such questions and issues as what had been done by the Government to ensure that the principle of equality had real meaning; what was being done to help the poor, in particular in the context of the promotion of small businesses; the methods and format of self-regulation in the context of racial discrimination among the mass media; and issues linked to female genital mutilation, including whether it only took place among certain traditional groups, or whether it was generally practiced, and whether measures were taken by the State party to combat this practice.

In the context of the follow-up to the thematic discussion on the prevention of genocide, a presentation was made by Committee Expert Agha Shahi, who said the Committee itself should in its early warning and urgent action procedure set out a number of indicators that could presage genocide, violent conflict or massive violations of human rights, and therefore revise its procedure to this effect. A small open-ended Working Group should be set up in order to refine the procedure to incorporate the other indicators of possible violent conflict and human rights violations, and having done so, the High Commissioner for Human Rights and the Special Advisor to the Secretary-General on the Prevention of Genocide should be advised as to what had been done.

Discussing the issue, other Committee Experts raised various points, including the need to obtain the reports of Juan Mendes, the Special Advisor to the Secretary-General on the Prevention of Genocide, when reviewing a country report; the important work going on in the Office of the High Commissioner on creating a list of indicators for the prevention of discrimination and how this could be incorporated in the work of the Committee including in the formulation of final conclusions and recommendations on country reports; and the official use of the term “genocide”, as this was frequently controversial. There was also wide support for the proposal to establish an open-ended Working Group.

Also in the delegation of Tanzania were representatives of the Permanent Mission of Tanzania to the United Nations Office at Geneva, the Ministry of Justice and Constitutional Affairs, the Ministry of Home Affairs, the Ministry of Labour, Youth Development and Sports, and the Ministry of Foreign Affairs and International Cooperation.

The Committee will present its concluding remarks on the report of Tanzania towards the end of the session, which will conclude on 19 August 2005.

The next public session of the Committee will be on Wednesday, 10 August at 3 p.m., when it will take up consideration of the reports of Iceland (CERD/C/476/Add.5).


Country Reports

The eighth to sixteenth periodic reports of Tanzania (CERD/C/452/Add.7) state that Tanzania is characterized by peace and stability. Its foreign policy is good neighbourliness and promotion of rights and self-determination. This was put into practice during the struggle for political independence by States in southern Africa and against apartheid rule in South Africa, where majority rule was obtained. Tanzania has categorically made it clear that its territory shall not be used to launch attacks against its neighbours. Tanzania prohibits refugees from forming armed groups in order to attack their country of origin. Discrimination of any kind is constitutionally prohibited under article 13 of the Constitution. Organs of State or authorities discharging public duties or rendering services are prohibited from discriminating against any person on the basis of colour, origin, status in life, etc. Any person who feels that he has been or is being discriminated against may seek redress in a court of law. Discrimination is adequately defined under article 13 of the Constitution. This description is consistent with the Convention definition. Tanzania has always advocated non-discrimination among all citizens, and has reiterated this position. So far there have been no reported criminal cases on racial discrimination.

In order to ensure that racial discrimination is dealt with accordingly, the Government, as per article 129 of the Constitution, has in the year 2000 established the Commission for Human Rights and Good Governance in lieu of the defunct Permanent Commission of Enquiry. In performing its functions the Commission conducts inquiries into complaints of human rights violations that have been lodged with it. The Commission is playing its role of educating the public by conducting meetings, workshops and symposiums to sensitize the masses on human rights. Although Tanzania does not have a policy on racial discrimination, the Education Act strictly prohibits enrolling pupils and students on a racial basis. That being the case, education has no room for racial discrimination in Tanzania.

Introduction of Reports

WILSON M. MASILINGI , Minister of State in the Office of the President for Good Governance, said Tanzania continued to be committed to the strict implementation of human rights conventions. The delay in submitting the report and therefore the backlog in Tanzania’s reporting obligations did not arise from a deliberate plan or neglect, but rather was due to a combination of factors, including the lack of resources and organisational shortcomings of the past, which, to a large extent, had now been addressed. In addition to structural and organisational set-up, capacity-building in human rights reporting skills and advocacy had been undertaken through practical training, sponsored by the UNDP and the Office of the United Nations High Commissioner for Human Rights. The significant success achieved through the reform programmes including economic recovery and improvement in revenue collection would also alleviate financial distress that had been a hindering factor in terms of convening stakeholders' meetings and data collection.

In general, it could be noted, Mr. Masilingi said, that tremendous social, political, and economic changes had occurred in the past decade. In the political setting, the multi-party political framework had been cemented and entrenched. Political tolerance among political parties had also improved, and a framework for dialogue between political parties has been created. Tanzania was a least developed country that was seriously engaged in the fight against poverty, which had an adverse impact on the implementation of the Convention, particularly in instances where resources, both financial and human, were required. The Government realised that there were no quick fixes in the eradication against poverty, but over the last ten years, through a participatory approach, the Government had developed the political will and had initiated a programme known as the Economic Growth and Poverty Reduction Strategy, aimed at significantly alleviating poverty, if not total eradication. Improvements had been made in the economy by tackling basic issues related to macro-economic fundamentals and stability.

The most important result of the increased economic yield was that the proceeds went to augment investment in priority sectors for poverty reduction, including health, water, rural roads, remuneration of public servants, and HIV/AIDS, all of which areas were instrumental in ensuring the full enjoyment of human rights in the country.

Racial discrimination was not a national problem, Mr. Masilingi said. This was rather historical, and had been a sense of national pride. Therefore, demographic data had not been provided. This had made the moulding of statehood easy, as the demographic distribution of data based on tribes, race, or religion would not serve a useful purpose for Tanzania, and could, to the contrary, fuel tribalism on the basis of dominant tribes or dominant religion or beliefs. This fear could not be underplayed, simplified, or wished away. The sense of unity created without reference to demographic data was greater than the parochial alignment on tribe, race, or beliefs. People thought more as Tanzanians rather than members of a tribe, race, or religious community. The nation as a whole was interested in doing things which helped to build a feeling of national unity, and a spirit of cooperation among the people. As long as racial discrimination as defined in the Convention and under domestic legislation was outlawed, and the State had adequate policies in place to guard against discrimination, this system was of benefit.

Racial discrimination was not rampant in Tanzania, and this was a result of positive actions that were deliberately taken starting with the period of the struggle for independence and after independence. It was advocacy by leaders for a society based on social equality that inspired the spirit of national unity free from racial discrimination. The primary source of prohibition of racial discrimination was Article 13 of the Constitution. There was no specific legislation in place to cater for racial discrimination, but there were several laws which in effect prohibited it. The Constitution also included a list of rights, including the right not to be discriminated against. The Government was now undertaking legal reforms in the entire legal sector. Accessibility to justice was a dimensional issue, affected by geographical location of courts, linguistic barriers, and cultural prejudices. The Government was working to eliminate these.

Tanzania took cognisance, Mr. Masilingi said, that the enactment of laws alone was not a panacea for elimination of racial discrimination. In order for laws to be effective, they should first be disseminated to the public, and implemented thereafter. Compliance had to be, in some instances, socially engineered through advocacy and sensitisation, which was a continuous process. The issue of minority groups, indigenous peoples and ethnic languages was contentious. A strict definition of indigenous peoples was neither necessary nor desirable, and it was more relevant and constructive to try to outline the major characteristics which could identify who the indigenous peoples were. Regarding violence against refugees, especially women, measures had been taken against violence of citizens and non-citizens. The problem was not widespread. Unrelated to the issue of violence was the issue of refugee screening and refoulement. Tanzania had continued to respect its international obligations in the most satisfactory manner in cooperation with UNHCR in this respect. Tanzania’s position had always favoured and maintained voluntary repatriation of refugees.

Discussion

JOSE A. LINDGREN ALVES, the Committee Expert serving as Country Rapporteur, said the present report was a document which was supposed to consolidate reports in arrears since 1987, and therefore it covered a gap of written information due for 18 years. The wide description of the difficulties surrounding Tanzania, a very poor country whose policies had to be deeply overhauled and reformed in the nineties on the basis of the prescriptions - quite often inappropriate- by the International Monetary Fund and other international economic institutions, not only represented a positive attitude of Tanzania towards the Committee and the Convention, but also showed the need for different approaches to be taken by the Committee when addressing situations that were not the source of inspiration of many of the ordinary forms of jurisprudence.

The report itself was extremely short, and this could be considered as disappointing; the Rapporteur had to resort to many other documents to gather a reasonable idea of the situation of the country as a whole. Although the Rapporteur had nothing against the lack of demographic data, as many European States also followed this practice in order to avoid fostering discrimination, he wished to point out that the Committee tended to consider necessary at least an evaluation of the different groups that made up the population of a country under consideration. He also asked for a clarification of the status of customary law vis-à-vis statutory law and jurisprudence, or case law.

The Rapporteur’s main legal concern was the fact that there were no specific laws on racial discrimination in Tanzania, and he asked why Tanzania did not adopt specific laws against it that would bring its legislation clearly into line with the Convention. Usually, he asked whether the reported absence of cases of racial discrimination was not due to the victims’ ignorance of their rights, lack of confidence in the police and judicial authorities, or lack of information on the existing legislation, and whether the Government believed that customary law was enough on the matter, but in this context, was it not because of the absence of legislation on racial discrimination?

The Rapporteur also praised Tanzania’s present policy of peace and good neighbourliness, and noted his appreciation of the frank tone of everything described in terms of difficulties, including corruption, as a cause that limited access to justice for the poor, women, and minorities. However, cases and complaints of discrimination in different areas had reached the Committee, and the Rapporteur asked for clarification on these issues, including the measures the Government might have taken to redress them. He also asked the delegation to describe how the tensions between Christians and Muslims in Zanzibar had erupted, whether there were fundamentalist groups in Zanzibar and in this content, whether the civil and penal legislation in Zanzibar was different from the rest of the country, and how was the Government dealing with these tensions.

The Rapporteur also wished to place on record his admiration of the fact that Tanzania was the State that had accepted the largest population of refugees in the African Continent. The most relevant issues, however, were both the fact that the report had been submitted, and that it was being both introduced and complemented by an official delegation. This proved, Mr Lindgren Alves said, the intention of Tanzania to re-establish the dialogue it used to have in the past with the Committee, and this was very welcome, even more so as the intent was affirmed in written form in the very last paragraph of the document.

Other Committee Experts then made comments and posed questions on various topics, including that the country was made up of over 20 ethnic groups, whose only link was the Swahili language; if the rights contained in the Convention could be directly invoked in front of the courts; what had been done by the Government to ensure that the principle of equality had real meaning; what was being done to help the poor in particular in the context of the promotion of small businesses; what was the scope of the remedy that the courts could provide pursuant to article 14 of the Convention; issues related to the Asian population; the point that just because there had been no officially reported criminal cases based on racial discrimination did not mean that everything was fine; the methods and format of self-regulation in the context of racial discrimination among the mass media; the need to know the ethnic make-up of the population; and issues linked to female genital mutilation, including whether it only took place among certain traditional groups, or whether it was generally practiced, and whether measures were taken by the State party to combat this practice.

Response by Delegation

Responding to the questions and comments made by the Committee Experts, the delegation said the discussion had been very rich, and Tanzania would benefit from it. Tanzania had historical reasons for remaining committed to the principles of the International Convention on the Elimination of All Forms of Racial Discrimination, as not only was racial discrimination anathema to its national philosophy, which had been the motivating factor for the different engagements on the international scene, but Tanzania had also been very active in the drafting of the Convention itself in the 1960s, and had been among the pioneers of the Convention. Its commitment was thus very deep-seated, not only on the principles, but on the historical front.

Tanzania had no intention of appeasing anybody, but meant what was said, and had been active in implementing the Convention. Whatever shortfalls which may have appeared in the implementation was not because Tanzania did not believe in the spirit of the Convention, but was due to limitations on several fronts, including financial limitations. There was a lot of capacity that was required in implementing the Convention, and Tanzania was therefore limited. The discussion would be used as material to strengthen the various legal processes, administrative systems and others, as it was an ongoing process, and any additional idea submitted in the process would be used as input for fully implementing the obligations of the Convention.

On the topic of the administrative mechanisms that Tanzania was using to implement the principles of the Convention, the delegation said the entry point for the implementation of a Convention in Tanzania was contained in the Constitution, and it was when the Parliament ratified it. However, further steps had to be taken to domesticate the Convention, and that included enacting specific laws in its regard, however, the system of Tanzania was a common-law system. There were no lacunae for the implementation of the Convention in that system.

Regarding why Tanzania had not adopted specific legislation for the prevention of racial discrimination, the delegation said the position of Tanzania was that when a law was drafted, it was aiming specifically at mischief that was to be chased away. If the mischief was not rampant, and it was felt that common law would prevent and deal with the issue, then there was no need to enact a specific law. There might be options on this, including the possibility of enacting a specific law on the enactment of international human rights instruments, or to enact a specific law on the prevention of racial discrimination as a stand-alone law, or, thirdly, to amend specific different statues that dealt with areas where racial discrimination was potential, such as areas related to labour and employment, political parties, or non-governmental organizations. Tanzania was not saying it would not enact specific legislation on this topic, but when the conditions allowed, it might do so.

On the issue of the absence of cases of racial discrimination, and the Expert’s implied comment that this absence showed that either there was a crisis of confidence regarding the impartiality of the judiciary, or lack of information on rights, that was one side of the view. However, there was another view, that this was due to the fact that racial discrimination was not rampant in Tanzania, and this was why there were no cases. However, Tanzania did not intend to debate this, and the delegation pointed out that there were systems in place to ensure that those who did complain could get redress. In 1966, Tanzania had established the first Ombudsman in Africa. If there were cases of racial discrimination, the Ombudsman would have dealt with those cases. There were sufficient institutions which would have taken care of any complaints on the basis of racial discrimination. The Convention had been ratified, but not domesticated, but there were no lacunae in implementing its provisions.

Regarding the issue of the definition of racial discrimination, the English version of the Constitution of Tanzania did not contain the feel of the Swahili version, the delegation said, and those who had studied language would note that discrimination on the basis of nationality, tribe, place of origin, political opinion, colour, religion, gender, and station in life, was not allowed, and the words used were the same as those of the Convention. The Swahili version of the Constitution was law, not the English version, and this was the version that was interpreted by the courts.

On the subject of refugees and what was being done to implement the Convention in their respect, the delegation said there was just above 600,000 registered refugees, coming from Burundi, the Democratic Republic of Congo, Rwanda, Somalia, Ethiopia, Uganda, and others. There was an estimated 200,000 refugees living spontaneously in local villages and towns, and a number of asylum seekers from Burundi, Rwanda, Somalia and Ethiopia. Positive steps had been taken to halt acts of violence against refugee women, including various programmes dealing with both prevention and response. There had been incidents of forced return of refugees, but it was not the policy of the country, due to the problems caused by many actors in the field, which caused inconsistencies in acts, including refoulement. However, work was being done to systematise response. Refugees who were camp-based were required to get permits to leave the camps, and these were being issued by camp commanders who were under the oversight of the Ministry of Home Affairs’ Refugee Department.

Management of refugees was a very delicate responsibility, especially when they were in such large numbers, the delegation said. There was a need to strike a correct balance between obligations to national citizens and the desire to contribute to international protection of refugees, and to adhere to the internationally expected norms. This was not an easy balancing act, and if the international community did not keep in constant view the complexity of the delicate balance, it was very easy for unwarranted judgements to prevail. It was very easy for the international community to be oblivious of the concerns of the nationals of a country, and to be simply overwhelmed by either the real or hyped concerns of the refugees, and to pass judgement on the national leadership. What could appear to be restrictive measures imposed on refugees had to be viewed from the point that the Government was trying to respond to real concerns, including those of its citizens.

Rations contributed by the international community had been decreased by 50 per cent over the last year, with the result that refugees invaded local farms, which of course caused problems with the local population. The Committee should bear in mind this difficult situation, which exemplified the difficult balancing act the Government had to perform, whilst living up to its international commitments, and yet providing for its national population. The international community had to keep its ears open both to the opinions and situation of the refugees, and to those of the national populations in host countries.

On the issue of religious harmony, the delegation said, so-called religious tensions were an issue of the past. The first time Tanzania had such problems had been in 1995, when some political parties had tried to use religion as a method for acceding to political power. Since then, there had been no real religious tensions, but rather religious disharmony incidents, which had not been widely spread. These were perceived as bad signs, and the Government had dealt with them as such by asking religious leaders to meet and speak, with the result that it had become evident that these leaders were not those who had inspired their colleagues to go out into the streets. There was now a religious forum where religious leaders met to discuss issues. The Government was also collaborating with civil society to instil the idea of religious tolerance. Zanzibar was a particular situation, but the State was a secular one, including in that area.

On the topic of land, land in Tanzania according to law was public land, and the President was a custodian and trustee for the people and citizens of Tanzania. According to the Land Acquisition Act, he was entitled to acquire land for public use. The Courts had had the opportunity to define what was meant by public interest in land, and in some cases decisions of the President had been declared null and void when people had complained. Adequate and prompt compensation had to be paid in the case of acquisition. The President had 100 per cent power to dispossess, but the courts did check his actions.

The question of racial discrimination in the context of labour had been taken into account through the application of international labour conventions. The Government had ratified eight International Labour Office conventions, all of which had been domesticated in Tanzania’s new Labour Laws, and discrimination or harassment perpetrated against any employee on the basis of nationality, tribe, place of origin, political opinion, colour, religion, gender, and station in life were prohibited, and were actionable.

Speaking on the topic of demographic data, the delegation said there was still work to be done bridging the gap on understanding between the Committee and Tanzania, which had already expressed its opinion on this. Tanzania had been able to maintain an enduring peace and tranquillity, and this was why many regarded it as a safe haven in situations of different afflictions. This peace had not come by itself, and had taken skill, commitment, and painful social engineering. Tanzania's forefathers had identified the tools and methods by which to ensure national cohesion, and the successive generations of leaders had been able to maintain that, and work for its durability. One of the key tools was to avoid any policy actions that furthered sectarian segmentation. Ethnic and religious statistics were very potent seeds for this segmentation, especially in developing and poor countries, and this was why Tanzania did not publish such figures, as they were prone to being abused by people with sinister motives.

Experts then made some final brief comments on the report on varied topics, including the suggestion that the Convention should be embodied in national laws to a greater extent; issues linked to the current Constitutional review; the conceptualisation of indigenous peoples, and whether there was a corresponding notion for such groups of collective or ancestral title to land. The delegation responded to these questions briefly.

Preliminary Remarks

JOSE A. LINDGREN ALVES, the Committee Expert serving as country Rapporteur, in his concluding remarks on the report of Tanzania, said the last part of the discussion had been very useful, as the question of statistics reflected the position of the Committee as a whole, although Mr Lindgren Alves himself did not necessarily subscribe as an individual to this position. The delegation’s position on this issue of statistics, as made clear during the discussion, had been very eloquent, and illustrated the multicultural situation that was clear all across Africa. However, there were different ways of approaching the issue.

Mr. Lindgren Alves fully agreed that the report was short, but it included very important information, and the discussion had been very interesting. The dialogue should remain on going. He had been glad to learn things during the process, including that ujaama continued as the indigenous ideology for promoting the development of the country, although of course there were prescriptions by the International Monetary Fund that had to be followed in this perspective; that several positive indicators had been identified according the World Bank in the behaviour and growth of Tanzania both in economic and social terms; and that clear dispositions had been taken to ban racial discrimination of any type. However, for the Committee it was very important to have written laws that ensured that the country was fully aware of and abiding by the provisions of the Convention.

Regulating and prohibiting racial discrimination did not necessarily mean that there was racial discrimination in the country, Mr Lindgren Alves said. There were at least some instances of racial discrimination or prejudices in every country of the world. One of the functions of international law was to give directions to the international community, and how it should act and behave internationally and nationally, and this was the opinion of the Committee as a whole. The Committee did not think that the provisions dealing with racial discrimination in Tanzania were enough, and urged the delegation to convey the message to the Government that there was a need to fill a gap regarding implementation of the Convention.

The fact that Tanzania, an acknowledged poor country, had received one and a half million refugees in total was a cause of admiration for all. The most important thing was that the dialogue had been re-established between the State party and the Committee.

Discussion on Follow-up to Discussion on the Prevention of Genocide

AGHA SHAHI , Committee Expert, said the Committee would recall that at the last session it had adopted, on 11 March 2005, a Declaration on the Prevention of Genocide. He wished to draw the Committee’s attention to some of the main paragraphs of that document, including the one stipulating that the Committee decided to strengthen its follow-up procedures in all situations where violent conflict and genocide prevailed. Also mentioned was interaction between human rights bodies and the Security Council, and the development of a special set of indicators related to genocide, including the cultural and historical roots thereof. The Committee had said in the document it would establish, and refine criteria on indicators of the likely occurrence of genocide. It was hoped this document would receive some attention at the forthcoming session of the General Assembly, at which reform would be discussed, and the recommendations of the High-Level Panel to the Security Council on genocide and what could be done to prevent it.

The Committee itself should in its early warning and urgent action procedure set out a number of indicators that could presage genocide, violent conflict or massive violations of human rights, and therefore revise its procedure to this effect. Such indicators would need to be listed. A small open-ended Working Group should be set up in order to refine the procedure to incorporate the other indicators of possible violent conflict and human rights violations, and having done so, the High Commissioner for Human Rights and the Special Advisor to the Secretary-General on the Prevention of Genocide should be advised as to what had been done.

The Committee then discussed various issues linked to this, including the need to establish closer links with the Special Advisor to the Secretary-General on the Prevention of Genocide, Juan Mendes, and to discuss with the Secretariat how this could be done; the need to obtain the reports of the Special Advisor when reviewing a country report; the important work going on in the Office of the High Commissioner on creating a list of such indicators and how this could be incorporated in the work of the Committee including in the formulation of final conclusions and recommendations on country reports; and the official use of the term “genocide”, as this was frequently controversial. There was also wide support for the proposal to establish an open-ended Working Group.

Committee Member Mahmoud Aboul-Nasr declined to take part in the discussion on several grounds.

For use of the information media; not an official record

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