Trade Unionism and Freedom of Association in Tanzania: A Historical Overview

Jaba Shadrack, UDSM - School of Law

Introduction: Definition of terms

Literally, a trade union may be referred to as a union/association composed of workers of the same or of several allied trades. In other words, 'labour union', 'a craft union' or 'multi-craft union', 'industrial union', 'vertical union'. The above position is reiterated by the Employment and Labour Relations Act (ELRA) No. 6 of 2004 which interprets trade union to mean any number of employees associated together for the purpose, whether by itself or with other purposes, of regulating relations between employees and their employers or the employers' associations to which the employers belong. This means, a trade union is an association of workers, with exclusion of employers' association (organisation). In my view, a trade union may be defined to mean any association of either employees or employers registered to regulate the relations between any of the following sets; employees and employers; employees and employers' association; employees' federation and employers' association; employees and employees or their respective federation; employers and employers or their respective federation. In short, a trade union is an association of (at least 4) employers or, union of (at least 20) employees in a related trade. On the other hand, a federation is defined to mean an umbrella organisation of (at least five) registered trade unions, or employers' associations. Thus, a federation is a coalition or alliance of more than one trade union. After being registered, a trade union or employers' association or federation is considered to be a body corporate [See, sections 4, 45, 46, 47, 48 & 49 (Part V) of the ELRA].

Historical Background

Pre-colonial period

At this period, there were no workers or employers' organisations as labour relations or the two classes were either not in existence or existed in a nascent (rudimentary) stage. In brief, most of the pre-colonial communities in Tanzania, as Tulia (2012:191) put it,

…were classless characterised by reciprocity and mutuality between members with neither wage labour nor permanent and semi-permanent employees, save for domestic slaves at later stages of development (the emphasis, in italics, is mine).

Colonial period

Germany era (1891-1919)

Again, at this epoch there were no labour organisations. This period witnessed little organised resistance by labourers, apart from massive workers' desertion from oppressive employers, and some native communities waging guerrilla warfare against forced labour (e.g. the Maji Maji resistance in Southern Tanganyika). There were neither trade unions nor labour relations law, save for laws governing taxations of natives aimed at creating cheap labour by all forcible means. These laws were House and Poll Tax Ordinance, 1912; Labour Recruiting Ordinance, 1909; and Legal Status of Natives Labourers Ordinance, 1913 which allowed the colonial regime and imperial companies to recruit workers through imposition of taxes.

British era (1919-1961)

Trade unions started to emerge during the British colonialism; this development was highly fuelled by immigration of European expatriates and Asians who were skilled labour, technicians, and thus more organised.

Early phase of Trade Unionism (1919-1930)

The history of trade unions in Tanzania can be traced in 1920s with the formation of "welfare societies" or "social clubs". At that period, African civil servants had organized themselves into the Tanganyika African Civil Service Association (TSGA) in 1922, which later became the Tanganyika African Association (TAA) in 1929. TAA was formed on the line similar to Asian and European civil servants' (elite) associations.

Various associations such as the Kilimanjaro Motor Drivers Association (KMDA), the Union of Shop Assistants were formed. In 1927, the African motors' drivers and mechanics in Moshi formed a Motor Drivers' Union and even attempted a strike for higher wages. The Motor Drivers' Union is considered to be the first Tanganyikan trade union.

These early organizations were not, however, involved in many industrial actions, their primary role was to organise mutual help among its members. Besides, provisions of the Master and Native Servants Ordinance (1923) did not envisage formation of trade unions.

During and After the Great World Economic Crisis (1930-1950)

This was a time when permanent wage labour had emerged after a phase of predominantly semi-permanent wage labour. In this phase, the struggles of the working class had shifted from individual resistance to collective action, from rebellions and riots to strikes and from welfare societies to trade unions.

This trend necessitated the repeal and replacement of the Master and Native Servants Ordinance (1923) by the Trade Unions Ordinance, No. 23 (1932) which borrowed a lot from the Trade Unions Acts, 1871 & 1876 of UK. The Ordinance was decreed to control workers' resistance, to guide and supervise the organizations of workers. Among other things, the ordinance required compulsory registration of trade unions, doing to the contrary, amounted to a criminal offence. Again, it conferred enormous powers to the registrar to control activities of trade unions.

In 1937, Asian workers formed the Asiatic Labour Union, leading to the founding of numerous unions in the country. Following mushrooming of trade unions and wide spread of workers' strikes, the governor in exercising his emergency powers promulgated the Defence (Trade Disputes) Regulations, 1943 which, inter alia, allowed him to establish tribunal for trade disputes. Again, in in 1947, the Trade Disputes (Arbitration and Inquiry) Ordinance was enacted based on the British system of "voluntarism". Crucially, it introduced 'joint consultation model' which excluded trade unions from participating in the dispute resolution process. It should be understood that, up to this stage, there was no express prohibition of lockout, strikes, go-slows and picketing (industrial actions); in 1947 five unions had been formally registered.

Independence struggle era/Post-WW II (1950-1961)

This period was characterised by frequent industrial actions and political movements. As a response, the colonial government put in place The Trade Disputes (Arbitration and Settlement) Ordinance, No.43 (1950) which expressly outlawed industrial actions in the called "essential services" and termed such actions as criminal offences. Besides, it introduced compulsory arbitration which in essence limited collective bargaining and industrial actions. On top of the above stringent measures, the Regulation of Wages and Terms of Employment Ordinance, 1951 introduced 'the staff committees' as collective bargaining mechanism between employers and employees in both private and public sectors.

Again, in order to curb increasing nationalistic struggle, the registrar of trade unions in exercising his powers as per the Trade Unions Ordinance, No. 23 (1932) cancelled or deregistered several trade unions for derogating from the terms of registration. This trend is exemplified by cancellation of the Amalgamated African Motor Drivers' and Commercial Road Transport Workers' (1948) in 1950, the Lake Province Tailors' Association (1949) in 1951, African Cooks, Washermen and Houseboys' Association in the register. Therefore, most of African trade unions were deregistered by 1951 except for the Dar es Salaam Asian Commercial Employees' Association.

On the other hand, the Colonial authorities initiated a set of projects such as creation of living space, the approval of moderate trade unions and the establishment of social security systems. African labour were dissatisfied by such reforms due to discriminatory laws and bad working conditions as a result in 1955 seventeen (17) trade unions merged to form the Tanganyika Federation of Labour (TFL), mostly led by white-collar and clerical workers. In its resolutions it made clearly that it would stay away from politics.

In response, the colonialist repealed and replaced the Trade Unions Ordinance, 1932 by The Trade Unions Ordinance, No. 48 of 1956 to cope with new political development. Nonetheless, by 1956 trade unions increased to 23, with approximately 13,000 members. Besides, the trade unions forged unity with TANU and some trade unions' leaders became politicians. This move forced the colonial regime to adopt new legal measures to crackdown vagrant workers under the Trade Unions (Amendment) Ordinance, 1959 which empowered the registrar to deregister trade unions for derogating from their registered objectives/constitutions.

Post-colonial period (1961 – to date)

At the eve of independence (1961-1965)

As we have seen, the cooperation between TANU and workers' associations (such as TFL) played a significant role to the attainment of independence in 1961. However, immediately after independence, workers' associations came into direct confrontation with the post-independence TANU government over various issues, especially Africanisation and trade unions' autonomy (detach from state control). By 1962 workers movements were more or less brought under government control. The government claimed that this control was for sake of building a united leadership in the interest of the workers and the country. In order to contain trade unions' movement, the government employed various mechanisms, emulating 'socialist Ghana', as a follows;

(1) Co-opting trade union leaders into the political process/post (i.e. appointing outspoken union leaders to political posts, thus becoming part of the system).

(2) The outlawing of strikes through the Trade Disputes (Settlement) Act, 1962. Again, this law established compulsory procedures (i.e. arbitration) for trade dispute settlement for both private and public enterprises. In essence, strike and lockouts were indirectly allowed after a workers union has exhausted the compulsory procedures.

(3) Trade Unions Ordinance (Amendment) Act, No. 51 of 1962 created TFL as a centralized union (designated federation), and all unions were compelled to affiliate to it. TFL in turn was put under the control and directives of the Ministry for Labour and the Registrar of Trade Unions, in terms of finance (spending) or waging industrial actions.

(4) Establishment of the check-off system, e.g. the Trade Unions Ordinance (Amendment) Act, No. 51 of 1962.

(5) Civil Service (Negotiating Machinery) Act, No. 52 of 1962 banned all employees in the civil service earning above £702 (pound sterling) per annum from becoming members of trade unions. In essence, it denied the educated class and higher earners to join trade union. The aim was to suffocate trade unions in terms of financial support and innovative or progressive ideas.

(6) State-controlled collective bargaining, e.g. the Civil Service (Negotiating Machinery) Act, No. 52 of 1962 and the Local Government (Negotiating Machinery) Act, No.66 1963 .

(7) Enactment of repulsive laws, such as the Preventive Detention Act, 1962 which allowed the government to detain or deport outspoken trade union leaders and other undesirable persons who posed a threat to the state.

(8) Introduction of monolithic state sponsored trade unions. This was marked by the abolishment of TFL and all other trade unions in 1964 and establishment of the National Union of Tanganyika Workers (NUTA) as a sole trade union in the country and a mass organisation of TANU. This was by virtue of the National Union of Tanganyika (Establishment) Act, No. 18 1964. Under the Act, the General Secretary (and his Deputy) of NUTA was an appointee of the president. Actually, the General Secretary of NUTA acted also as the Minister of Labour. The president was also empowered to dissolve NUTA and establish in its place another body. The objectives of NUTA as an affiliate body of TANU and the government were to promote policies of TANU and encourage its members to join it .

(9) The enactment of a 'disciplinary code to control workers', e.g. the Security of Employment Act, No. 62 of 1964. This Act required establishment of "workers' committees" at every business where 10 or more union members were employed.

Note: With the formation of NUTA, the number of strikes dropped i.e. from 235 in 1962 and 1963 to 24 in 1964 to 13 in 1965 and 16 in 1966.

The Political union and Ujamaa/socialism policy (Arusha declaration): Monoparty politics (1965-1980)

This stage may be referred to as state and party controlled single union's phase. This phase is marked by the Arusha Declaration in 1967, proliferation of public institutions (parastatals) and launching of various development projects, schemes and plans. The years between 1970 and 1974 were characterised by massive industrial labour conflicts in both private and public sector enterprises. The government introduced new measures against workers so as not to upset government policies by frequent strikes, picketing, go-slows, and lockout as follows;

(1) Establishment of bureaucratic machinery for settlement of labour disputes (ouster of jurisdiction of ordinary courts with regard to the Disciplinary code and trade disputes) e.g. the Permanent Labour Tribunal Act of 1967 introduced the Permanent Labour Tribunal as a final tribunal for labour disputes, thus, once moved/petitioned industrial actions become illegal henceforth.

(2) In 1969 the government announced the formation of Workers' Councils, with management and workers representation, for purposes of bringing the workers to the management of industries and promote better industrial relations, while giving workers more say. In 1970, a Presidential Circular and Party guideline (Mwongozo) was issued requiring all public-sector organizations to form Workers' Councils and reorganize the compositions of Boards of Directors to include workers' representatives. A move intended to involve workers in the policy and operational decision making process of the enterprises they work for.

(3) Abolishment of 'workers' committees' in 1975 (for being militant/radical) under the Labour laws (Miscellaneous) Amendment Act, No. 1 of 1975. Their function was assumed by the "NUTA field branches".

As a result of the union between Tanganyika and Zanzibar in 1964, there was a need of having a trade union for the whole country. Consequently, the Jumuhiya ya Wafanyakazi Act, No. 24 of 1979 was enacted to disestablish NUTA and establish the Jumuhiya Wafanyakazi Tanzania (JUWATA) in its place. The JUWATA, just like its predecessor was created as a sole trade union in Tanzania and a propaganda unit of the ruling party (CCM). In essence, transformation of NUTA to JUWATA was a cosmetic change, as the term JUWATA was merely a Swahili translation of NUTA. The Minister for Labour continued to be appointed as a General Secretary of JUWATA.

The Bill of Rights (Liberalisation): Constitutionalising freedom of association (1980s)

In 1980s, most of the countries in Sub-Saharan Africa overhauled or reformed their labour law regimes resulting into;

(1) Liberalization of controls over trade unions,

(2) Loosening of restrictions relating to the right to strike,

(3) Freeing collective bargaining from excessive governmental interference, and

(4) The extension of protective legislation to previously excluded workers.

Tanzania in particular, the government and the party were increasingly coming under heavy criticisms by early 1980s due to the rediscovery of the concept, "civil society". The concept was an expression of human social will, self-determination, and the need for decentralization of processes. Civil society connoted the emergence and consolidation of social and political movements and the whole question of empowering people.

In terms of the law, the Local Government Negotiating Machinery Act No. 11 of 1982 was introduced which, inter alia, asserted state-controlled collective bargaining and bureaucratic machinery for settlement of trade disputes. However, in relation to rights of workers, the 5th Amendment to the Constitution of the United Republic of Tanzania (Act No. 15 of 1984) included the Bill of Rights in the Constitution, whereby Section/Article 20(1) of the Act recognised the right to form or join associations or organizations (person's freedom of association) by proving that;

Every person has a freedom, to freely and peaceably assemble, associate and cooperate with other persons, and for that purpose, express views publicly and to form and join with associations or organizations formed for purposes of preserving or furthering his beliefs or interests or any other interests.

It should be borne in mind that the Bill of Rights did not, immediately, come into force; however, this was a good gesture towards effective realisation of labour rights in Tanzania, especially trade unionism and collective bargaining. Nonetheless, in 1989 the government introduced the Civil Service Act, No. 16 of 1989 which, to me, was another setback in the realisation of workers' rights as the Act designated Head of Division, Principal Secretary and the Chief Secretary as disciplinary authorities.

Plural democracy era (1990s): De-linking Trade Unions from the Ruling Party

This period may be termed as implementation of the Bill of Rights' phase. Tanzania opened up its political process in the early 1990s, following a resolution of a Cabinet Ministers in 1992 (Zanzibar declaration) to abandon the Arusha Declaration to Market economy. The impact of the Zanzibar declaration was to force the government to overhaul or replace existing laws to cater for the needs of plural or liberal democracy. For instance, the government passed Act No. 4 of 1992 that shifted the country from a one party to multiparty system.

In relation to trade unionism, there was a growing pressure from JUWATA members for greater autonomy of the trade unions. Some of the notable developments in relation to trade unionism in Tanzania were;

(1) The dissolution of JUWATA by the General Council of JUWATA in 1990, thus creation of the Organisation of Tanzanian Trade Unions (OTTU) so as to gain autonomy and become independent from the ruling party . Thus, OTTU was the first umbrella organization of workers that replaced the party-controlled trade union i.e. JUWATA.

(2) The dissolution of JUWATA was ratified by an Act of Parliament known as the Organization of Tanzania Trade Unions (OTTU) Act, No.20 of December 1991). The Act declared OTTU to be the "sole trade union body representative of all employees in the United Republic", with all members who previously belonged to JUWATA becoming its founding members. Membership was open to other persons in accordance with OTTU's Constitution, and there would be formed other unions by OTTU as affiliates according to different industrial sectors (i.e. allowed creation of sectoral trade unions). Thus OTTU was a legislated union which made it both a trade union and a federation of unions. Under Section 9, the President of Tanzania through the Registrar could deregister it; and the Minister of Labour could close down any OTTU branch at will.

(3) The government established an Industrial Court by amending the Permanent Labour Tribunal Act of 1967 by the Industrial Court (Amendment) Act 1993. The industrial Court had similar powers to those of the High Court to arbitrate labour disputes. Within this context, essential services such as Air Traffic Control and Civil Aviation; telecommunications; and transport services were prohibited from taking part in strikes and lockout. In essence, industrial actions were allowed, but they involved long and tireless procedures to be followed.

(4) Formation of the first National Congress for labour in August 1995 known as the Federation of Free Trade Unions (TFTU) by 11 unions as founding members. TFTU was headed by Secretary General assisted by two deputies, one for Mainland Tanzania and the other for Zanzibar elected by union members. It should be noted that the TFTU and its affiliated unions were denied registration by the ministry of labour due to existence of the OTTU Act which recognised only OTTU and affiliated (sectorial) unions. Therefore, the TFTU was not authorised to negotiate, usually negotiations took place between a respective trade union and an employer or employers' association. For such an agreement to be registered in the Industrial Court (as per the law), the unions had to use OTTU's forum.

Free Trade Union/Trade union's bursting/multiplicity of trade unions (1998 to present)

In theory, at this time, TFTU and OTTU co-existed as distinct umbrella organisations, but in practice, the duo were two sides of the same coin. In my views, OTTU was retained as an official name for the purposes of the OTTU Act, but in real sense, TFTU was an unofficial name for OTTU.

Again, at this period the TFTU called on the government to ratify two ILO conventions related to the freedom of association, rights to organize, child labour, forced labour, and equal pay for equal work. As a result, the OTTU Act, 1991 and The Trade Union Ordinance, 1956 were repealed and replaced by the Trade Unions Act, No. 10 of 1998, which came into operation in 1st July 2000. Henceforth, OTTU was resolved, the eleven Trade Unions under TFTA were re-registered and unanimously decided to form a single federation named and registered as the Trade Union Congress of Tanzania (TUCTA) as a new umbrella organisation in April 2001. The structure of TUCTA is very similar to that of TFTU/OTTU with only one major difference i.e. TUCTA only covers Mainland Tanzania (not Zanzibar) since the Trade Unions Act, 1998 did not extend to Zanzibar.

The Trade Unions Act, 1998 did not last longer as in 2004 [it] was repealed by section 103 (2nd schedule) and replaced by Part IV-VIII of the Employment and Labour Relations Act, No. 6 of 2004. In essence, there is no substantial change between the two laws as the 3rd Schedule to the ELRA, 2004 makes comprehensive savings of provisions of the Trade Unions Act, 1998 as well as organisations registered thereunder.

Therefore, in Tanzania Mainland (as per the ELRA and the Constitution), all employees in the private and public sectors have the right to form or join trade unions and to bargain collectively, except for members of the Tanzanian People's Defence Forces, the Police Force, the Prisons Service, and National Service. This trend of according wider autonomy to trade unions has been seen as a way of bursting trade unionism, whereas the law allows multiplicity of trade unions and federations. It is believed that some of the trade unions existing today in Tanzania have been pioneered or under the sponsorship of either the government or employers for the purposes of weakening bargaining power or unity among workers. All in all, the Government has now been assigned a new role, under the law, of balancing interests of employers on one hand, and those of workers, on the other.

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