Municipal and international laws on right to life and freedom from torture.

 

INTRODUCTION

Right to life is among basic or fundamental constitutional rights which without it, other rights become meaningless. Without life no one can attain other rights such as education, freedom of association, freedom of movement and other rights as stated from Article 12-28 of The Constitution of United Republic of Tanzania[1]. Right to life is a basic right protected under Article 14 of the constitution[2], every person has the right to live and to the protection of his life by the society in accordance to the law. The human rights are guaranteed and protected under the constitution but there are some limitations to it, citizens of Tanzania are allowed to exercise their constitutional rights freely without interfering other people’s rights or public interests. Human rights may be interfered by state authorities for purpose of protecting other people’s rights or public interests as visible under Article 30 of the constitution.

MUNICIPAL AND INTERNATIONAL LAWS ON RIGHT TO LIFE

By virtue of Article 14, the government and society at large are given compulsory duty to prevent deaths and extra-judicial killings. State authorities are required to protect their people from all dangers that may cause death. Government authorities imposed with duty to prevent genocide, war, diseases and all forms of instabilities which may lead to death of people. There are several laws and international conventions which protects life and intensively penalize the offenders who cause death. The Penal Code[3] is among statutes which protect right to life in Tanzania, under section 196 of the Act, any person who maliciously and with intent causing death of another commits a capital offence of murder and if found guilt by the court of law, he/she may be convicted and sentenced to death as provided under section 197 of the same Act. Likewise, the law establishes another offence of manslaughter under section 195 of Penal Code, when one cause death of another without malice aforethought, the law provides life imprisonment sentence for that crime.

Also, Tanzania is a state party to various global and regional treaties that enshrine right to life, Tanzania signed and ratified several treaties, covenants and conventions which protects right to life such as Universal Declaration of Human Rights[4], International Covenant on Civil and Political Rights[5], African Charter on Human and People’s Rights[6] and Convention on the Right of the Child[7]. Article 3 of the Universal Declaration of Human Rights provides on right to life, liberty and security of person, UDHR is an only instrument which combines and protect both right to life, liberty and security of person. Other instruments protect right to life only not conjoined to liberty and security of person. Article 6 of the Convention on the Right of the Child, article 4 of the African Charter on Human and People’s Rights (the “Banjul Charter”), and article 6 of International Covenant on Civil and Political Rights (ICCPR) both provides and protects right to life.

Unfortunately, these articles are too general, they do not specify when the right to life starts and the existing limitation of such right. Article 3 of UDHR provides that, “Everyone has the right to life, liberty and security of person” but there are no any other additional details specifying when that particular right begins and what are the limitations to that right. ICCPR and Banjul Charter also provides right to life without indicating the scope to that right and the moment that right to life starts. Under the laws of Tanzania, everyone attains a right to life from a date he/she was born, then he/she entitled right to exercise all his/her human rights without interfering other people’s rights or public interests as per article 30 of the constitution. Then, we have other laws which allows to take away people’s life in some circumstances especially when they breach laws of the state and get convicted and sentenced to death by court of law. But other laws i.e Penal Code[8] allows to harm, wound or kill another in protection of life or property of another as provided under section 18, 18A-C, and 19 which allows individuals to use force for self-defense.

Also, we have section 78(1) of Penal Code which allows police officers to use any force they choose even killing for the purpose to handle unlawful assembly which involves riots. But in affecting arrest police officers are allowed to use deadly force for the purpose to implement arrest, this means any person who forcefully resist an arrest while armed with deadly weapon or tries to run and escape lawful arrest he/she may be harmed or killed. In some occasion police kill arrests while trying to arrest them. All these extra-judicial killings in some case affects right to life as provided and guaranteed under our constitution and under several other instruments.

MUNICIPAL AND INTERNATIONAL LAWS ON FREEDOM FROM TORTURE

Torture is a broad term as provided under Article 1 of the Convention Against Torture means;

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions[9].

Freedom from torture is a right in Tanzania which is included under right of equality before the law, under Article 13(6)(e), state authorities for the purpose to ensure equality before the law, are required in all their procedures not to subject a person to torture or inhumane, or degrading punishment or treatment. Freedom from torture do not stand as a right itself, it is given a subordinate status and it is considered as a measure to achieve equality before the law. By being subordinate to another right, it narrows down the protection of freedom from torture and other ill-treatments. Equality before the law as a right, it stresses on non discrimination which forms part of the elements of torture, but it left a huge gap which covers all other elements which constitute torture. Frankly speaking, article 13(6)(e) is not enough to ensure total protection of civilians from all forms of torture and degrading punishment, and ill treatment.

Tanzania is among few countries in Africa and an only country in E.A which has not ratified the UN Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT)[10]. So, Tanzania is not legally bound to abide to convention against torture and no any international court or tribunal has jurisdiction to try any matter against government of Tanzania under this particular convention. Not being legally bound by the above convention doesn’t mean the government of Tanzania will walk free from torture caused to its civilians by state authorities without punishment from international community. The prohibition of torture has attained the status of international customary law, it is now established as a norm of jus cogens, hence, all world government are supposed to protect and enshrine freedom from torture as one of the fundamental human rights in their constitution or domestic legislations.

CONCLUSION

Apart from our constitution, section 13 of The Law of the Child Act[11] prohibits subjecting a child to torture, and degrading treatment. No correction of a child is justifiable which is unreasonable in kind or degree to the age of a child, no correction is justifiable if the child is by reason of a tender age or otherwise incapable of understanding the purpose of correction. Any person who goes against this provision is on conviction liable to a fine not exceeding five million shillings or imprisonment for a term not exceeding six months or both. Likewise, The Criminal Procedure Act[12] prohibits a police officer who has a control of an arrest to inflict harsh punishment, cruel, inhumane or degrading treatment. The legislation omits to use a term “torture”, in this provision but the plain is that.

Tanzania has ratified several other conventions which prohibits torture such as African Charter on Human and People’s Rights (the “Banjul Charter”), Convention on the Right of the Child, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Civil and Political Rights (ICCPR) the Convention on the Rights of Persons with Disabilities (CRPD), and several other instruments hence bound to make sure no torture to its civilians.

 

 

BIBLIOGAPHY

 

BOOKS.

R.Kamuli, “Human Rights in Tanzania: Standard and International Obligation” P.30-40

R.Kamuli, “Freedom from torture in Tanzania”, P.4 & 6

R.Kamuli, “Right to life in Tanzania”, P.4 & 6

STATUTES

The Constitution of United Republic of Tanzania of 1977, as amended. Article 12-24.

Penal Code, Cap 16 R:E 2019. S. 196&197

The Law of the Child Act, Cap 13 R:E 2019. S.13

The Criminal Procedure Act, Cap 20 R:E 2019. S. 55(2)

CONVENTIONS

UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at: https://www.refworld.org/docid/3ae6b3a94.html [accessed 26 April 2022]

UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 26 April 2022]

UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html [accessed 26 April 2022]

Organization of African Unity (OAU), African Charter on Human and Peoples' Rights ("Banjul Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), available at: https://www.refworld.org/docid/3ae6b3630.html [accessed 26 April 2022]

 

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[1] The Constitution of United Republic of Tanzania of 1977, as amended. Article 12-24.

[2] Ibid. Article 12

[3] Penal Code, Cap 16 R:E 2019. S. 196&197

[4] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 26 April 2022]

[5] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html [accessed 26 April 2022]

[6] Organization of African Unity (OAU), African Charter on Human and Peoples' Rights ("Banjul Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), available at: https://www.refworld.org/docid/3ae6b3630.html [accessed 26 April 2022]

[7] UN Commission on Human Rights, Convention on the Rights of the Child., 7 March 1990, E/CN.4/RES/1990/74, available at: https://www.refworld.org/docid/3b00f03d30.html [accessed 26 April 2022]

[8] ibid

[9] UN, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, available t  https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading [accessed 26 April 2022]

[10] UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at: https://www.refworld.org/docid/3ae6b3a94.html [accessed 26 April 2022]

[11] The Law of the Child Act, Cap 13 R:E 2019. S.13

[12] The Criminal Procedure Act, Cap 20 R:E 2019. S. 55(2)