FATMA A. KARUME: “The Limit of Government is determined by the Law” (Freedom of Association in Tanzania)
Fatma A. Karume
Upon arriving at work, as I was scanning the newspapers of the day, my attention was caught by a short article in the Citizen of 18 July 2012.
The article was 4 paragraphs long and hidden in a corner of one of the inner pages. Clearly used as a page-filler, a little tittle-tattles of not much relevance. I would have ignored it entirely but for the headline, "RC slaps ban on political rallies", which immediately made me curious and I could not stop myself from reading the article in its entirety.
According to the article, a lady called Dr. Rehema Nchimbi, the Regional Commissioner of Dodoma, has apparently taken it upon herself "to ban political rallies and other gatherings during the census week". The article proceeded to recount that Dr. Nchimbi announced the ban whilst addressing a seminar for training enumerators and census coordinators in Dodoma.
During her reported address, Dr. Nchimbi explained the rationale for her ban by stating "I am saying this because some politicians act like children who think that every open ground is for playing. I don't want the housing and population census to fail in my region because of politicians".
I personally take no umbrage to the RC's criticism of politicians although if truth were known I found some amusement in the fact that she owes her very position to the absolute discretion of a politician and thankfully not the very voting public, whose freedom of expression she is attempting to curtail. She is most welcome to her opinion on politicians and she can express it as freely as she so wishes, after all article 18 of the Constitution of the United Republic of Tanzania guarantees this right. Furthermore, article 20 of the Constitution also guarantees Dr. Nchimbi's right to express her views publicly as she clearly chose so to do on this occasion.
However, as for banning political rallies and other public gatherings, I do wish that Dr. Nchimbi would do us all a favour and respect the people of Dodoma's article 20 Constitutional right to freely and peaceably assemble, associate and cooperate with other persons. Being somewhat concerned that the Regional Commissioner with little patience for politicians, may not be aware of this right I thought I should take some time to explain it. In so doing, it is my hope that her reported disdain for politicians is not transferred to lawyers.
We should commence by understanding that after the end of World War Two, on 10 December 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights, which recognised internationally that all human beings have fundamental rights, which are inalienable and must be protected by the law.
The UDHR is the foundation of many national laws, giving cognisance and protection to basic human rights. In 1977, the Constitution of the United Republic of Tanzania was enacted without the Bill of Rights. It was not until 1984 that our basic human rights were protected in the form of a Bill of Rights included in Part III of the Constitution.
Articles 18 and 20 of the Constitution, which guarantee our inalienable right to freedom of expression and peaceful assembly respectively, are a reflection of the fundamental rights recognised by the UDHR in articles 19 and 20.
As with all fundamental rights there are limits of course to these rights and governments all over the world have tried to use the law in order to set limits. When these limits are excessive, a struggle between the governed and the executive will ensue as a matter of course. In functioning democracies with effective judiciaries, the struggle inevitably culminates in a court case and it is for the judiciary to set down principles, which must be applied and adhered to by the executive and the legislature when attempting to impose limits on our fundamental rights. In authoritarian or totalitarian states, the judiciary neither have the appetite, gumption nor possibly the legal obligation to involve themselves in this struggle and where they do dare, judges quickly find themselves unemployed. Fortunately, history shows that with time, even where the judiciary fails and fear and force is used to stifle fundamental human rights, the human spirit is never stifled for a prolonged period.
My view has always been and hopefully even with encroaching age and accompanying conservatism, will remain, that the more stringent the limits which a state imposes on fundamental rights, the less effective are these rights and the more the state veers towards authoritarianism/totalitarianism.
Therefore, it is essential that we think very carefully before we decide where to draw the line beyond which these rights cease. There is no universal test which when applied will provide the perfect place to draw a line beyond which all fundamental rights cannot penetrate.
The limitations to place on each one of our guaranteed basic rights is a matter that will have to be decided by the judiciary on a case by case basis after a thorough examination of judicial approaches in other countries and an uncompromising review of the law drafted by the executive and passed by the legislature, which attempts to curtail the right in question. As jurisprudence in Tanzania develops, I hope that great thinkers will have the opportunity and will not shy away from the duty and challenge of applying their minds to this conundrum, as the late Judge Lugakingira did in the case of Mtikila v. Attorney General [1995] 31 TLR.
Until 1995, section 40 of the Police Force Ordinance, prohibited public assembly or procession without a police permit. The process for obtaining the permit was long and cumbersome. Rev Mtikila feeling aggrieved by this law filed a case before the High Court of Tanzania and asked the Court to declare it unconstitutional because it prohibited Tanzanians from exercising their constitutional right to freedom of assembly by making this right subject to permission from the police. Judge Lugakingira agreed with Rev. Mtikila and held section 40 of the Police Ordinance unconstitutional. However, the judge set a limit to our fundamental right to public assembly by stating that this right can be curtailed where the "assembly or procession is imminently likely to cause a breach of the peace, or to prejudice the public safety or the maintenance of public order or to be used for any unlawful purpose".
Following the judgment of the High Court, the Police Force Ordinance was amended and thankfully we no longer need to seek a police permit in order to exercise our right to public assembly. In addition, the Police Force Act gave the police power to prohibit public assembly only where such assembly or procession is clearly likely to cause a breach of the peace or is intended to cause a breach of the peace. This seems quite reasonable and sensible.
It may help the citizens of Dodoma to know that the power to prohibit an assembly rests with the police and this power is limited and can only be exercised legally where the assembly is imminently likely to cause a breach of the peace. Neither the RC nor the Police have the legal power to prohibit all public assemblies in the distant future, on the spurious ground that they interfere with the census process, even if the RC thinks that these assemblies will in all probabilities be called by "childish" politicians. In any event, I fail to see how a bit of peaceful public demonstration no matter how childish it may be, can have an impact on the census.
Gosh, spurred on by this logic and what may be a genuine desire to ensure an accurate head count, overzealous RCs may take it upon themselves to ban us from leaving our homes during the census. After all, what does it matter if this may amount to unlawful imprisonment, so long as the census is a success. Well now that I have rained on the RC's parade, I am on a roll and I simply cannot stop here.
In his book, "The Judge", Patrick Devlin, a judge of the House of Lords, stated, "The limit of government is determined by the law". We ignore this at our peril. The law limits even executive powers, and members of the executive have to abide by the law, if rule of law is to prevail.
The recognition that Tanzanians have fundamental rights as individuals was an idea that only blossomed some 20 years after independence. During the first 20 years of our nationhood, our individual rights were subjugated to the "need of the collective", and to insist upon your right to recognition as an individual was almost sacrilegious and was dubbed "anti-African" in particular contrary to the "ujamaa" ethos. We are still bound by this mind set.
The problem of course is who then determines the needs of the collective. Invariably it is an individual or a clique. So the rights of the individual are subjugated to the needs of the collective, which in turn are determined by the views of an Individual or a clique. Ultimately, the collective is just an excuse used by those in power, to curtail the rights of the individual.
The RC may believe that she has the power to ban public assemblies and processions and that in itself is not the problem, for so long as she is the only person convinced of her own might then there is little impact that she can have on alienating this fundamental and constitutionally protected right. The problem occurs when the police and the majority of the general public believe in her self-assumed powers, for it is then that we become prisoners of our ignorance and not the law.
I have a dear American friend who was once told in my presence by a man of some political and legal influence to keep quiet and not discuss publicly a certain matter.
Her immediate reaction was "Sir, you cannot tell me that. You see, I am an American and as such I hold dear my First Amendment Right to free speech. To an American there is nothing worse you can do than to curtail the First Amendment right to free speech". This was an automatic reaction, which was met with no resistance but rather a friendly pat on the back followed by "Yes of course" and a large guffaw of laughter.
As I stood there watching my American friend laughing with the man of some importance, it dawned on me that Americans are brought up confident in the knowledge that they have basic rights, which Congress or Government cannot alienate. On the other hand, we in Tanzania have some fundamental rights no different from those enjoyed by Americans but we simply do not know that they exist and thus cannot possibly insist that the legislature and government respect them.
On the other hand those few who know of their existence and dare to look in the eye a person in authority and proclaim that as citizens of this country they are endowed with constitutionally guaranteed fundamental rights, risk being dubbed arrogant troublemakers and far too westernised for the good of this African society. So I ask, are knowledge and confidence traits reserved for Westerners to be admired by Africans but never acquired?
It is essential that those of us who are fortunate enough to know our fundamental rights and are confident enough to lay claim to them inform as many Tanzanians as possible of these rights. May be one day, a person who states publicly in Tanzania that she has banned political rallies and other gatherings will be told, "Madam, you do not have the power to ban peaceful political rallies.
I am a Tanzanian and as such I hold dear my Constitutional Right to Freedom of Assembly. To a Tanzanian there is nothing worse you can do than to curtail the fundamental human rights guaranteed by the Constitution". If enough of us truly believe this and can say it without fear but with conviction, then we shall not be met with police batons but rather by the words "Yes of course", followed by an embarrassed laugh.
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