Update 2011 - Tanzania
Tanzania is estimated to have a total of 125 – 130 ethnic groups, falling mainly into the four categories of Bantu, Cushite, Nilo-Hamite and San. While there may be more ethnic groups that identify themselves as indigenous peoples, four groups have been organising themselves and their struggles around the concept and movement of indigenous peoples. The four groups are the hunter-gatherer Akie and Hadzabe, and the pastoralist Barabaig and Maasai. Population estimates1 put the Maasai in Tanzania at 430,000, the Datoga group to which the Barabaig belongs at 87,978, the Hadzabe at 1,0002 and the Akie (Ndorobo) at 5,268.
While the livelihoods of these groups are diverse, they all share a strong attachment to the land, distinct identities, vulnerability and marginalisation. They experience similar problems in relation to tenure insecurity, poverty and inadequate political representation.
Tanzania voted in favour of the UN Declaration on the Rights of Indigenous Peoples in 2007 but it does not recognize the existence of any indigenous peoples in the country and there is no specific national policy or legislation on indigenous peoples per se. On the contrary, a number of policies, strategies and programmes that do not reflect the interests of the indigenous peoples in terms of access to land and natural resources, basic social services and justice are continuously being developed, resulting in a deteriorating and increasingly hostile political environment for both pastoralists and hunter-gatherers.
A proposed new constitution for tanzania
Since it attained political independence 50 years ago, Tanzania has had five constitutions.3 All five have been characterized by a lack of legitimacy stemming from the fact that they were drafted without any consultation processes with
the people of Tanzania. It is this lack of legitimacy that has fuelled the present popular demand for a new constitution. Following sustained pressure, the government succumbed and, in 2011, initiated a process aimed at leading to the promulgation of a new constitution.
It was expected that the process would be marked by a profound break with the past, ensuring wide-scale national consultations at all stages. This was, however, not the case, as demonstrated by the first draft of the Constitution Review Bill of 2011, which provided for complicated procedures, making it very difficult for people to become involved in the drafting process. For example, the draft Constitution Review Bill was available only in English despite the fact that less than 20 per cent of Tanzanians speak English, making it difficult or completely impossible for the vast majority to understand the contents of the Bill.
Another problem was that the objectives of the Bill were not clear in terms of whether the current constitution should be amended or a new constitution enacted. Worse still, the draft Bill contained a list of “inviolable matters” in respect of which public discussion was to be excluded. These included matters related to the state of the Union between Tanganyika and Zanzibar, the presidency, and all issues of human rights; matters that essentially form the fabric of a constitution.
To make matters worse, the draft Bill was debated within unreasonably restricted and generally technocratic circles and public hearings were only conducted in Dodoma, Dar-Es-Salaam and Zanzibar.
There were widespread protests against this draft Bill, and strong and organized civil society advocacy against it until, finally - in a move that attested to the growth of democracy in Tanzania - , the draft Bill was withdrawn in order to address people’s concerns. Following some amendments, the Bill was tabled in parliament once more and, on 30 November 2011, the President signed it into law, now as the Constitutional Review Act 2011. There are two schools of thought regarding this Act. The first comprises those who believe the Act to be totally flawed, to the extent that it will give birth to the worst constitution in the history of Tanzania. One of the weaknesses of the Act is the fact that the president appoints members of the Constitutional Review Commission and issues the Terms of Reference for them. According to the Tanzanian Peace and Justice Commission, the Act starts and ends with the president, meaning that it is likely to produce a “president’s” constitution and not a “people’s constitution. For its part, the Tanganyika Law Society (the Bar Association of mainland Tanzania) envisages going to court to invalidate the Act.
Another school of thought comprises those who believe that, despite some weaknesses in the Act, the proposed new constitution will be far better than the current one. This belief is pegged on the conviction that, since this is the President’s last term in office, he wants to leave a long-lasting and consequential legacy. His predecessors did the same; for example, the founding president agreed to the inclusion of the Bill of Rights in the Constitution in 1984, one year before leaving office, although the people had been demanding this since 1961. Now that the Act is in force, indigenous peoples are, first and foremost, interested in effectively engaging in the process.
Indigenous peoples’ engagement with the constitutional process and their expectations
For the purpose of synergy and creating a strong and focused group, pastoralist and hunter-gatherer organizations created a Technical Working Group in December 2011 charged with coordinating their meaningful participation in the constitution-making process. This Technical Working Group is called the Pastoralists and Hunter-Gatherers Katiba Initiative (PHGKI). The Convener/Chair of the Initiative is an umbrella organization known as the Tanzania Pastoralists and Hunter-Gatherers Organization (TAPHGO). Another umbrella organization, namely PINGOs Forum, is the secretariat for the Technical Working Group. Member organizations of the Initiative’s Steering Committee are: the Association for Law and Advocacy for Pastoralists (ALAPA); Ujamaaa Community Resource Team (U-CRT); Ngorongoro NGOs Network (NGONET); Ngorongoro Youth Development Organization (NYDA); Tanzania Pastoralist Community Forum (TPCF) and Tanzania Natural Resource Forum (TNRF). In addition to the Technical Working Group, community focal points have also been elected in each Zone. In the context of Tanzania, a Zone is an administrative unit comprising three or more provinces (called regions). These community focal points are expected to attend intensive Training of Trainers courses in order to be able to train others on the ground. The overall objective of the initiative, which is staffed on a full-time basis by Advocate William Olenasha (former advisor to the Government of South Sudan on land and customary law issues), is to ensure that pastoralists’ and hunter-gatherers’ concerns are integrated into the final constitution.
Indigenous peoples’ main demand relates to protection of land and natural resource rights by making land tenure security a constitutional category and not leaving it to normal legislative procedures. This is not the case in the current constitution and this permits the enactment of laws that undermine both individual as well as collective land rights for Tanzanians, in particular indigenous pastoralists and hunter-gatherers. If land tenure security were a constitutional category, it would be difficult to enact a law that undermines Tanzanians’ land rights, for doing so would be tantamount to a contravention of the constitution itself.
Similarly, indigenous peoples demand that the proposed new constitution should address historical land injustices. They believe that, without the redressing of historical injustices, the proposed new constitution will not bring about a sense of fair treatment of and equality among all Tanzanians. Instead, land conflicts involving small-scale producers, on the one hand, and foreign direct investors and government departments, on the other, will escalate.
The Universal Periodic Review
The Universal Periodic Review (UPR) is the latest human rights reporting mechanism created by the United Nations Human Rights Council. Under this mechanism, states examine other states. This is different from treaty bodies such as the International Covenant on Economic Social and Cultural Rights (ICESCR) in which 18 independent experts (the Committee on Economic Social and Cultural Rights) review a country’s periodic report and issue Concluding Observations.
In terms of periodicity, each member of the United Nations is to be examined over a 4-year cycle. The main weakness of the mechanism is that critical issues can be influenced by politics. This can be seen, for example, in alliances between countries with shared interests.
This weakness apart, the UPR gives great room for civil society participation via the submission of stakeholder reports with additional information and suggestions for questions to be raised, and by participating and lobbying before and during the UPR sessions. Another advantage is that all human rights-related issues can be raised, as opposed to examinations by treaty bodies where issues must be confined to matters covered by that particular treaty. In 2011, indigenous peoples in Tanzania made use of the UPR mechanism by submitting a stakeholder report. In preparation for this, indigenous organizations in Tanzania formed a stakeholder coalition made up of more than 20 pastoralist and hunter-gatherer organizations.
In their stakeholder report, indigenous peoples raised issues pertaining to non-recognition, recurrent forced evictions without compensation, land dispossession, lack of access to health care and education, and forced destruction of cultural heritage. Tanzania was reviewed by the UPR Working Group during its 12th session held in Geneva from 3 to 14 October 2011. After the Review, recommendations were issued, and a number of good recommendations were made with regard to the rights of indigenous peoples.4 These recommendations focused on the recognition of indigenous peoples in Tanzania, the adoption of measures to protect the cultural heritage and way of life of indigenous peoples, the application of the right to free, prior and informed consent, the credible investigation of forced evictions, the drafting of an effective legal framework for the protection of indigenous peoples’ rights and the setting up of effective consultation mechanisms with organizations working with indigenous peoples.
The Government of Tanzania, however, did not immediately accept the recommendations relating to the human rights of indigenous peoples but stated that these would be examined by the government and that it would provide responses to the recommendations no later than the 19th session of the Human Rights Council in March 2012. These responses will be included in the final UPR outcome report.
In view of the above, indigenous peoples immediately launched lobbying and advocacy strategies to ensure that the recommendations that were put on hold are adopted by the Government of Tanzania ahead of the 19th session of the Human Rights Council. As part of this advocacy strategy, two important meetings were held in 2011. The first was held in Dar-Es-Salaam on 1 December 2011 and was organized by the Commission for Human Rights and Good Governance (CHRAGG), which is the national human rights institution for Tanzania. The meeting was organized with financial assistance from PINGOS Forum and participants included members of academia and civil society, senior government officials and commissioners from the CHRAGG. Another meeting, involving mainly senior government officials, regional representatives of the Office of the UN High Commissioner for Human Rights (OHCHR) and selected NGO representatives took place in Morogoro from 12 to 14 December 2011, organized by the Directorate of Constitutional affairs (DCA) under the Ministry of Justice and Constitutional Affairs (MJCA).
At the first meeting, a presentation was made by the Coalition of Pastoralist and Hunter-Gatherer Organizations with a view to highlighting the UPR recommendations relating to indigenous peoples. A concrete outcome of the meeting was that a national UPR Coalition was formed under the CHRAGG which promised to champion pastoralists’ and hunter-gatherers’ issues for adoption.
At the second meeting, there was a presentation by indigenous peoples followed by an interactive dialogue on a wide range of issues, including the contextual applicability of the term “indigenous peoples”.
The next step before the 19th session of the Human Rights Council is for the DCA under the MJCA to come up with a cabinet paper which encompasses all recommendations for approval by the Cabinet. Indigenous peoples are optimistic that their issues will be adopted.
The international Covenant on Economic, social and Cultural Rights
Tanzania has signed and ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR). In its pre-sessional working group, which was held in Geneva from 5 to 9 December 2011, the Committee on Economic Social and Cultural Rights (CESCR) prepared a list of questions for the United Republic of Tanzania, and indigenous peoples operating under the Coalition of Pastoralists and Hunter-Gatherer Organizations (“The Coalition”) sent a “list of issues” to the Committee as input for the questions.
In the “list of issues”, which is available in the website of the Office of the High Commissioner for Human Rights,5 the coalition asserts that Tanzania is in violation of the ICESCR as reflected in the recurrent incidences of forced evictions without compensation, and elaborates that evicted indigenous families are still landless, homeless and subjected to conflicts with other land users. This situation makes them more vulnerable to poverty and makes it nearly impossible for them to access fundamental social services such as education and health facilities. Tanzania is scheduled to be examined by the CESCR at its 51st session in November 2012.
A historic achievement
According to the laws of Tanzania, a village is the only legally-recognized autonomous entity on land matters, meaning that in order to get a land certificate for the whole community, members of the community concerned must form themselves into a village for the purposes of recognition. In the case of a village, a certificate called a “Certificate of Village Land” is issued by the Commissioner for Lands. Once a Certificate of Village Land is issued, the village authorities, in collaboration with the Commissioner for Lands, can issue Certificates of Customary Right of Occupancy (CCROs) to individual villagers.
While this arrangement works well for pastoralists, hunter-gatherers are a numerical minority wherever they live and they cannot constitute the number required by law to form a village. As a result, hunter-gatherers in Tanzania have, for 50 years, been subjected to decisions made on their behalf by mainstream communities who have invaded their lands, and they have never been able to acquire a land certificate for their community.6
The Hadzabe hunter-gatherer people have found themselves in such a situation. However, in November 2011, they were granted a Collective Community Land Certificate, which is equivalent to the Certificate of Village Land issued to a community which forms itself into a village. This certificate was issued in the name of the Hadzabe hunter-gatherers. Some members of the Hadza community were also issued with Certificates of Customary Right of Occupancy (CCRO). This is an historical development in Tanzania, and it can serve as a precedent to the effect that a numerical minority within a village can in fact be granted its own land certificate without necessarily meeting the qualification for forming a village, taking into account their unique lifestyles and minority status. This successful decision was the outcome of persistent lobbying and advocacy work carried out by the NGO Ujamaa Community Resource Trust (U-CRT).
Developments on indigenous peoples’ involvement with REDD in Tanzania
During 2011, indigenous peoples in Tanzania continued to engage in the REDD+ (Reducing Emissions from Deforestation and Forest Degradation in Developing Countries) process both locally and internationally, with a view to ensuring that different plans and strategies for the implementation of REDD are indigenous peoples’ rights compliant. ALAPA, for example, represented the indigenous peoples of Tanzania in the Global Dialogue of Indigenous Peoples on the Forest Carbon Partnership Facility (FCPF), which was held in Gaigirgurdub, Guna Yala, Panama from 27 to 29 September 2011.
An important outcome of this meeting was the formulation of a Global Action Plan which aims to ensure that the FCPF implements the Cancún agreement on REDD+, particularly in relation to the full and effective participation of indigenous peoples. Other aspects of the Cancún Agreement to be implemented by the FCPF include respecting the rights of indigenous peoples and their traditional knowledge as well as ensuring the timely provision of information and safeguards for Monitoring, Reporting and Verification (MRV). It was also agreed in Panama that there was a need to hold such consultations at the regional level. ALAPA is a member of the regional steering committee tasked with preparing the Pan-African Indigenous Peoples Consultation with the Forest Carbon Partnership Facility to be held in Arusha, Tanzania from 19 to 24 April 2012.
A milestone achievement following consistent lobbying is the government’s appointment of ALAPA to represent the indigenous pastoralists and hunter-gatherers of Tanzania in the Legal, Governance and Safeguards Unit of the National REDD Technical Working Group. This Technical Working Group is under the National REDD Taskforce, which is coordinated by the Vice-President’s Office (Division of Environment) and the Ministry of Natural Resources and Tourism (MNRT) of the Government of Tanzania respectively.
Notes and references
1 www.answers.com/Maasai ; www.answers.com/Datoga; www.answers.com/Hadza.
2 Other sources estimate the Hadzabe at between 1,000 –1,500 people. See, for instance, Madsen, andrew, 2000: The Hadzabe of Tanzania. Land and Human Rights for a Hunter-Gatherer Community. Copenhagen: IWGIA.
3 These are: the Independence Constitution of 1961, the Republican Constitution of 1962, and the Interim Constitution of the United Republic of Tanganyika and Zanzibar of 1964; the Interim Constitution of 1965 and the Constitution of the United Republic of Tanzania of 1977.
4 Draft Report of the Working Group on the Universal Periodic Review. Human Rights Council Working Group on the Universal Periodic Review. Twelfth session. Geneva, 3-14 October 2011. A/HRC/WG.6/12/L.2
6 For example, NAPILUKUNYA in Kiteto where the Akiye hunter-gatherers live does not meet the requirements for becoming a fully-fledged village, and it is currently a sub-village of KIMANA village. In this village, owing to their numerical minority, the Akiye have no say on the villagecouncil and its decisions, including on land matters.