UNTOLD STORY OF THE NGORONGORO DISTRICT

PAPER TO BE PRESENTED DURING THE MARKING OF HUMAN RIGHTS DAY ON 12th December, University of Dar es Salaam



By Onesmo P.K Olengurumwa

Human Rights and Constitutional lawyer from Legal and Human Rights Centre
December, 2009



List of Abbreviations
DC District Commissioner
GCA Game Controlled Area
G.A General Assembly
LGCA Loliondo Game Controlled Area
MP Member of Parliament
NCA Ngorongoro Conservation Area
NGO’s Non-Governmental Organization
NAFCO National Agriculture and Food Corporation
NCAA Ngorongoro Conservation Authority
OBC Ortello Business Corporation .
PINGO’s Pastoralists Indigenous NGO’s
TANAPA Tanzanian National Parks
TBL Tanzania Breweries Limited.
UAE United Arab Emirates
URT United Republic of Tanzania
UNESCO United Nations Education, Scientific and Cultural Organization
WMA Wildlife Management Area

Table of Contents
1. Background information.
2. The case of Ngorongoro crater.
3. The worshiped OBC and Loliondo saga








1. Background information
This article will enable the reader to get the other side of the story about the District and its people. The district is taking a lead in violations of human rights in Tanzania. This article summarizes the trend of violations of human rights in Ngorongoro from 1959 up 2009.Ngorongoro District is famous both in Tanzania and worldwide due to variety of wildlife species. It is also in this District where the Ngorongoro crater is found, which has been categorized as the world heritage sites[1]. The District divides into three Divisions, which are Loliondo, Ngorongoro, and Sale. Ngorongoro District is one of the five districts of the Arusha Region
Arusha is one of Tanzania's 26 administrative Regions of Tanzania. The regional capital and largest city is Arusha. Other towns include Monduli, just west of Arusha, Longido and Loliondo to the north, Mto Wa Mbu and Karatu to the west and Usa River to the east.... of Tanzania Tanzania , officially the United Republic of Tanzania , is a country in East Africa that is bordered by Kenya and Uganda on the north, Rwanda, Burundi and the Democratic Republic of the Congo on the west, and Zambia, Malawi and Mozambique on the south....It is bordered to the north by Kenya, The Republic of Kenya is a country in East Africa. It is bordered by Ethiopia to the north, Somalia to the northeast, Tanzania to the south, Uganda to the west, and Sudan to the northwest, with the Indian Ocean running along the southeast border....to the east by the Monduli District Monduli is one of the five districts of the Arusha Region of Tanzania. It is bordered to the north by Kenya, to the east by the Kilimanjaro Region and Arumeru, to the south by the Manyara Region and to the west by the Ngorongoro District and Karatu Districts...., to the south by the Karatu District and to the west by the Mara Region.

The Ngorongoro area originally was part of the Serengeti National Park when it was created by the British in 1951. Maasai continued to live in the newly created park until 1959, when repeated conflicts with park authorities over land use led the British to evict them to the newly declared Ngorongoro Conservation Area.[2]

The District has a population of 129,000 people according to the 2002 census, 59% of the District's landmass falls within the famous Ngorongoro Conservation Area, which was established in 1959 to deal with matters related to the conservation of wildlife resources, promotion of tourism and the development of indigenous Maasai pastoralists living in the area.[3]

The NCA is an area of some 8,292 km2 located in Ngorongoro District, Arusha Region. There are 14 villages in the NCA distributed between 6 wards named Kakesio, Orbalbal, Endulen, Nainokanoka, Ngorongoro and Naiyobi with a combined population of some 50,000 people.
Loliondo Division, which is divided into a number of wards and villages, is inhabited Mostly by Maasai who are traditionally pastoralist but who now practice farming as well. The Batemi (commonly known as Sonjo) and other groups also live in the area and they are mostly farmers even though they also keep domestic animals. The Division is made up of the villages of Loliondo, Sakala, Ngwarrwa/Enguserosambu, Oloirien/Magaiduru,Soitsambu, Ololosokwan, Oloipir, Arrash and Maaloni.
As for Sale division, most of its residents are agro-pastoralist. The Division is made up of the villages of Tinaga, Mgongo, Kisangiro, Samunge, Yasimdito, Digodigo, Malambo, Piyaya, Pinyinyi and Engaresero. The three Divisions are characterized by differences in natural resources endowments, modes of production, the history and cultures of their inhabitants. There are very complex and hostile socio-economic and political relations between Maasai and the Batemi of the Sale and Loliondo Divisions.
















2.0 The case of Ngorongoro Crater

The Ngorongoro Conservation Area Ordnance No. 14 of 1959 came into operation on July 1st 1959 when the NCA was started as a pioneering experiment in multiple land use. At this time the Maasai who had previously been living in what is now the Serengeti National Park (SENAPA) agreed to move into the newly formed NCA. Prior to the establishment of the NCA several years were spent in negotiating the terms and conditions for the Maasai to move out of the Serengeti into the NCA.[4]
The Constitution of Republic of Tanzania of 1977, as amended as well as the land laws makes it clear that any person has the right to own or hold any property lawfully acquired, and that the deprivation of such a right must be done lawfully and compensation paid. Pastoralists have continued to traverse the whole country or continue to have their land encroached upon, both processes lead regular conflicts.

In 1950’s we were not born, and those who were born neither were they able to hold a pen nor to read a piece of paper. We heard from our fathers and forefathers, a couple of agreements were entered to convince Maasai leadership to vacate the planes to NCA.Agreements with the then colonial government stated that compensation would be in two phases. Phase I would establish water sources (either by dam, bore hole or pipeline) in agreed locations. Phase II would establish veterinary centers in strategically agreed places and veterinary drugs would be supplied. This compensation was considered adequate by the Maasai leadership at the time as it ensured that they would be able to maintain the health of their cattle, their primary economic asset and a focal point of their culture.[5]

The compensation was never completely honoured, up to date no adequate water supply, livestock diseases are highly increasing and the Masaai people are still living in extreme level of poverty. Pastoralists have turned out to be internally displaced people in their country. There are many complex issues concerning the communities that have arisen in the course of the NCA’s existence.

Olaigwanani (Traditional Leader) had this to say;[6]
“I was born on Engitati in Ngorongoro Crater where I spent my youth. I remember therhino. There were so many. They outnumbered the buffalo. They were everywhere. We rarely killed the Rhino and when we did it was because they threatened us in some way. We loved living in the crater together with the wild animals, listening to the lions roar. Then we were moved to where we are now. When I look at the crater I feel a deep sadness. Once control of the crater was given to someone else the rhinos started to disappear. Now they have almost all gone. Is this what they call conservation?

NCAA never involves Maasai people in any sort of administration. The National Game Parks Laws (No. 14) elevated the status of NCA to an autonomous body since 1975.The Ngorongoro Board members are presidential appointee. The lack or poor ratio of Maasai presentation in the Board is graded as one of the major factors for the deterioration in community relationships and the problems that followed.

In Ngorongoro divisions there is Pastoralist Council (PC), however, the council decisions are not binding, but rather the PC plays an advisory role. For forty years now the Maasai community felt as persecuted and unlucky people in the world. They see people carrying out various projects and implementations of unknown policies without being even allowed to make any inquiry. Community development activities and livestock services practically stopped and security became a serious issue.

Ngorongoro Conservation Act specifically states that, the NCAA was established for conservation as well as for the livelihood of the indigenous Maasai Living in the area, but this is not the case on the ground[7].The issue of finance appears to be a great deal of cynicism, due to the fact that, the distribution of money is not an open deal, and the District council receives almost nothing from NCA. Last year the District received only Tsh 175 million out of Tsh 30 billion from NCA.

Conflicts have arisen over land use in the past and these have often been resolved by moving the offending community or forbidding access to specific areas. E.g. the movement of communities out of the Ngorongoro Crater. Land use plans at the community level have not been developed and there are ongoing conflicts over land use for agriculture that continues to simmer without any real resolution.[8]

Agricultural use of NCA land has been a contentious issue for a considerable amount of time. The Maasai claim that the local climate is less favorable to livestock which suffers reduced milk yields and is made more vulnerable to disease. The reduced availability of milk and livestock obliges them to supplement their food supply by cultivation.[9]

Recently UNESCO declared to unlist Ngorongoro Crater from the list of the World classified Heritage sites. If global governance over national resources becomes reality, there will be no place for indigenous to hide. To respond to UNESCO Deputy Minister for Natural Resources and Tourism Ezekiel Maige surprisingly said,
"We have already directed the Ngorongoro Authority to conduct census for both human population and livestock in the areas so that we can take appropriate measures," [10]

In 1972 United Nation Conference on human environment came up with the declaration commonly called Stockholm Declaration with 26 principles on international environmental law. The link between human being and environmental protection is clearly established by principles 1, 16 and 21 of the Stockholm Declaration provide a freedom of states to freely use their resources without any environmental damage and without infringing any human basic rights.

Both Rio de Janeiro and Stockholm declarations advocate for permanent sovereignty over natural resources. The United Nations had once vehemently spoke of the right to Permanent Sovereignty over Natural Resources by G.A. res. 1803 (XVII), 17 U.N. GAOR Supp. (No.17) at 15, U.N. Doc. A/5217 (1962). Paragraph one declares that the right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well being of the people of the State concerned. In Ngorongoro division people have been forcefully evicted and damped at Oldosambu ward without being provided with any social services.[11]







3. The worshiped OBC and the Loliondo Saga
OBC in 1992 was granted the land without people’s consultation and District council signed on behalf of villages. The above act of District councils amounts to violation of constitutional rights. [12] The situation is further complicated by the multiplicity of policy, legal and institutional mandates surrounding the Loliondo Game Controlled Area.
Babiker [13] says the existing policies and legal institutional framework were put in place in 1950s and the tensions between the state legislations in Sudan and customary land regimes and continual grabbing of land and displacement of pastoralists was leading for conflicts among pastoralists, commercial farmers, sedentary farmers and state security forces.

The director of wildlife has more power to grant concession for exclusive hunting rights without involving villager’s .Practically this has taken place in Loliondo where the whole LGC area was granted to OBC and left indigenous as squatters on their land. OBC hunting activities have long struggled to get accommodated within traditional grazing patterns of pastoralists in the area, which struggle has at times precipitated into sore relationships and open conflicts.

The land leased to OBC and the other sold to Thomson Safari in Loliondo are seasonal migrated corridors. The same situation was found taking place in Sudan whereby most of the pastoralist seasonal migrated corridors were granted to investors from U.A.E, Saudi Arabia and Egypt.[14]

It is not at all surprising that resource-based conflicts should constitute one of the major development challenges in Ngorongoro. Indeed, this is consistent with the reality all over the dry lands of Africa where conflict has become endemic. In a global review of pastoralism and conflict, have shown how areas occupied by pastoralists are characterised by conflicts emanating from competition for natural resources[15]

The situation in Ngorongoro District is defined by competition for access to land and natural resources underpinned by competing land uses and livelihoods. The land use competition, which often translates into conflict, can be classified into four major categories.[16] the majority of Tanzanians live far below the “poverty line” earning less than US $ 1 per day; Remember the average income per capita is obtained by an arithmetically equal distribution of wealth, which no Utopia is expected to achieve.

This is a parasitic stratum. It strengthened tour and travel companies in the same way in which local communities are weakened. It is polarisation of wealth and poverty at two opposite extremes. It is all sheer robbery, criminal plunder of the weak by the strong. To borrow the late Dr. Rodney’s in his book How Europe underdeveloped Africa “capitalism is parading in without even a loin cloth to cover its nakedness.”

Condemnation of pastoralists and cultivators as simply trouble-mongers who must be dealt with, has never ceased since 1992 when the Rio Conference [17]came up with the CBC philosophy ,Principle 21 emphasizes that in sustainable development everyone is a user and provider of information. For example, Dr. Jafar Kideghesho of Wildlife Management at Sokoine University of Agriculture has written a number of papers clamouring for CBC. Yet he writes, “Habitat degradation attributable to severe overgrazing by livestock was the major cause for the decline. The eviction of Maasai pastoralists from the reserve [Mkomazi] in 1988 reversed the situation by lessening the degradation and thus restoring the conducive environment for wildlife species” (Kideghesho, 2001).[18] He does not seem to have even a clue that eviction of people from their land, under any cover, is a “gross violation of human rights.”

Praising such crimes should not come from someone who is trumpeting for CBC, this is what Stoclohm Declaration[19] and Arthur Convention[20] provide against respectively In reference to the Ramsar Site Convention 1971[21] the lake Natron area was declared to be Ramsar site without peoples concern and hence became a threat to presence of pastoralist living around the lake on their jurisdiction and sovereignty over natural resources.

The allocation of hunting blocks is done by the Director of Wildlife in exercise of powers that are not clearly regulated under the Wildlife Conservation Act. In fact, complaints have been raised to the effect that “in practice, the allocation of hunting blocks has reflected the Director's personal whim rather than the consistent application of” guidelines.[22] The village Land Act makes it legally for village lands to be alienated to non village private investor it has a potential for further approbation of common land and privatization[23]

Chachage and Shivji (2001) [24]concede that liberalization has prompted high marginalization of the rural poor as a lot of pieces of land are being alienated from peasants and pastoralists. Thus causing conflicts over natural resources. This was possible because when they move elsewhere in order to secure for forming and grazing are, they cause conflict with people they meet, we have at hand live examples at Rufiji, Ihefu, Kilosa and lindi.
Shivji and Kapinga[25] states that a number of controversial alienation have justified over past few years in forms of promoting investment and attracting foreign investment and land has been alienated to hoteliers for purpose of tourism in and around National parks as will as on prime beach later.
We currently have great conflicts with hoteliers at Ngorongoro who wants to build hotels almost every where at conservation area while the laws prohibits indigenous to build modern buildings.

Peter Maina[26] says the 1997 Tanzania investment Act has some glaring weakness like liberation of economy hailed as policy that will open avenues through which the local and foreign investors would walk together to prosperity but this has not been achieved because the law is silent on the joint ventures and obligations to investors.Maina went ahead reiterating that investors in Tanzania have been given red carpet treatment without being given strong obligations.

The livelihoods of members of the Maasai pastoral community within the Loliondo Game controlled area in Ngorongoro District, Arusha Region has of late become threatened by the antics of a certain foreign hunting company operating in the area (OBC).According to FEM ACT report[27] the malicious and ruthless operation to evict the Maasai communities was alleged to have affected eight Villages of the Loliondo division. The alleged villages were left in Unimaginable distress and utter poverty. The report further elaborates among other inhuman acts such as rape and torture; the Loliondo communities are alleged to have lost their properties and loved ones. It was alleged that more than two hundred Maasai bomas were totally burnt; women were raped; more than 3000 people left homeless without food and other social basic needs and more than 50,000 cattle were left with no grass and water.

Speaking during interviews with journalists and activists under the FemAct coalition, the villagers said they have been forced out of the villages they have lived in for years, into bone-dry areas with hardly any water or pasture for their livestock. “We are now living in extreme poverty and not sure of our future, since we solely depend on livestock for our survival? It is just a matter of time before our cattle all die due to lack of water and grazing areas,? said Ephraim Kaura, an elder from Ololosokwan Village.

Tenga (1987) suggested that an important condition for resolving the apparent conflict over land is to change land use and management policies land laws should allow individual or groups to establish exclusive rights over land.

In social native space, zoning policies have also caused increased tenure insecurity and uncertainty of property due to land alienation, which has led to varied land disputes in different places.

Overlapping of Laws

Sanna Ojalammi says when thinking about law, it is also important to remember that Africa has often had two parallel legal systems functioning at the same level: state law and customary law. Also, overlap-ping land claims (modern and customary) have existed side by side in social space. Customary law/tenure has functioned at the level of peoples’ communities and statutory law has operated on the national level.

Mr. Nelson of Sand County Foundation presented an apparent contradiction in the legislation with respect to Game Controlled Areas and village lands. Game Controlled Areas are created by the Wildlife Conservation Act[28], and according to the Land Act is therefore included under the definition of reserved lands.[29] At the same time, Game Controlled Areas in northern Tanzania overlap with demarcated and registered village lands and are therefore included under the Village Land Act’s definition of village lands.

Mr. Stolla stated that the legislation did not intend land to be both reserved and village lands, and that this was a contradiction and a flaw in the laws.[30] Concern was expressed as to the tenure security implications of this contradiction, and Mr. Stolla advised that the only recourse would be harmonization of the laws by Parliament.

One factor that brings about land conflict is existence of numerous pieces of legislation controlling deferent land resources that apart from contradicting each other, often clash with indigenous property management system hence result into insecurity to land tenure leading to unsustainable land use practices making policies as well as legislation over resources ineffective and irrelevant to actual situation (Maganga 1995)[31]

LGCA occupies 41 per cent while Ngorongoro conservation was allocated 59 per cent of the total land in the district. ? This meant that the land in Ngorongoro District is for wildlife purposes. An unlawful occupation by Maasai was alleged by Government officials to be main reasons for the malicious and awful operation in Loliondo. In 983, the villages within the district were also registered legally? Then it’s ridiculous to here such allegations from government officials.

One thing in Loliondo remained to be a riddle to many people, is a question as to whether OBC camp is a state within a state or a diplomatic area. It looks fishy within a certain part of a sovereignty country to receive phone massage invites you to another State. For strict proof thereof see the following massage text received from Loliondo OBC premises.

“Dear Guest, Welcome to the UAE. Enjoy the best network coverage and other unmatched services only with Etisalat. Please use<+> or <00>before the country code for international calls. For directory services call 181, for availability of GPRS, MMS 3G roaming services call Etisalat Travellers help line 8002300 & for inquiries on Tourism, entertainment, shopping, etc call 7000-1-7000(Roaming rates apply) Have a pleasant stay in the UAE”

The extent of adorations extended further to the issues of security, OBC is guarded by the Tanzanian police and the entire security system since 1992.The above situation was well discovered by Fem ACT coalition team which visited Loliondo to probe the matter on 18th-19th August 2009, and found that OBC is a company registered under the Tanzanian companies Act, Cap.112 which in turn makes it a Tanzanian citizen required to abide by the Tanzanian laws or whether it belongs to a Sovereign state having diplomatic relations within the country.[32]

That being not enough, many Maasai men have been brutality beaten and maliciously prosecuted. Human rights NGO’s operating in Ngorongoro have been vehemently condemned by the government official as trouble mongers. To show how much we adore investors in Tanzania, the minister for tourism and natural resources intentionally mislead the world by saying the Maasai violently evicted at LGCA are Kenyans. To put more weight on her statement and to prove that no good governance in Tanzania the same minister during 17th parliamentary sessions (2009) told the assembly that no any violations of human rights took place in Loliondo.This was a respodnce to Hon .Saning’o Telele who wanted the minister to give explanation on 14 areas including the report gross violation of human rights during the exercise to evict pastoralists who had settled on the Loliondo area.[33] The MP gave a time the parliament to come out with answers on 14 allegations of human rights in Lolindo[34]

During the motion, the parliament was yielded to pressure by members of parliament to form a committee to investigate the truth about Loliondo evictions.
The committee visited Loliondo and managed to examine the extent of violations done to people of Loliondo according to Nipashe of 8th /12/2009[35] the committee admitted that there were many people who proved before them that they were brutally treated by FFU and OBC guards. The committee managed to have public meetings with people of Loirien village, Soitsambu and OloIpiri villages.

The District is rich of natural resources but surprisingly the people on the land still live in extreme poverties. This is what Ragna Tarvick and others baptized it as Resource curse.[36]They found that resource curse represents enormous impediments to development, yet it is important to understand that natural resources is not a problem, rather it is lack of good governance and democracy. Therefore remedying this institutional failure Ragna[37] says we need change of law and practice but doesn’t require huge resource investment.

The role of the State is to manage land in the public interest. It sown performance as land owner and regulator is critical to governance. It is important, therefore, that those institutions responsible for land governance (including those with responsibility over land owned by the State) operate in a transparent, accountable and efficient manner

Conclusion
It is therefore sounds easy to say, despite the fact that Ngorongoro is rich in natural resources; still there is bleak future for its people. Many people know the district only because of its wonders. The district is famous in natural resources and internationally recognized. This article enables the reader to get the other side of the story about the District and its people. The district is taking a lead in violations of human rights in Tanzania. This article summarizes the trend of violations of human rights in Ngorongoro from 1959 up 2009. Villagers want back their ancestral land both for their survival as well as for the sustainability of their livelihood system. They want to fairly benefit from the natural resources in their areas. The community demands restitution for the loss that has been incurred in the process of the ruthless operation by OBC. Further, there is a strong demand for the government’s accountability in all decisions that impact on the livelihood of the people.







REFFERENCES
Books

Melamari, L. (1995). “The need for a community–based conservation Policy in Tanzania: TANAPA’s perspective” In Rihoy, E (1995), The commons without the tragedy: Strategies for CBNRM in Southern Africa. SADC.
Lavigne, P. (1998) .Rural land and Tenure, Renewable Resources and Development in Africa, Paris WTCU, Lilongwe.
Babiker, et al. (Ed).(2007).Fighting for Inclusion Conflicts among Pastoralists in Eastern Africa and the Horn. Development Policy Management, Nairobi.
Kratli, S. & Swift, J. (1999). Understanding and Managing Pastoral Conflict in Kenya: A Literature Review. IDS University of Sussex.
Mtwale, A. (2002).Conflicts Between Farmers and Pastoralists Over
Land Use. A Case Study of Kilosa District. University of Dar es salaam.
Peter, M & Mwakaje, S. (2004).Investment in Tanzania: Some Issues Some
Comments.Dar es Salaam: Friedrich Ebert Stifstung & University of Dar es Salaam Department of International Law
Shivji, and Kapinga. (1988).The Land and Maasai Rights in Ngorongoro Tanzania: Haki Ardlhi,Da es Salaam.

Reports and Unpolished Works/Dissertations

Brockington, D. (1998) Land Loss and Livestork.The Effect of Eviction
of Pastoralist Moved from Mkomazi Game Reserve,
Tanzania: PhD. Thesis, University College.

Brehony, E. Draft Report on Efforts to Resolve Conflicts between the
Sonjo and Loita Session of the Maasai: Embassy of Ireland
(2004/2005), Arusha.
FEMACT Network (2009).Loliondo Findings.

NGONET. (2008).A Report of a Consultancy Commissioned Jointly by ERETO
Ngorongoro Pastoralist Project (ERETO-NPP) and the Ngorongoro LocalGovernment and Managed by Ngorongoro NGO Network
(NGONET),Arusha.
Olengurumwa P. (2009).Resource Based Conflicts in Northern Tanzania: The Case of Sonjo and Masaai of Ngorongoro.LLB Dissertation, University of Dar es Salaam.
PINGO’S. (2004). The conflict between Loita Maasai and the Batemi in
Loliondo and Sale Divisions: A Report of the Fact Finding Mission on
21st July to 1stAugust 2004, Arusha.
_________ Report on a Workshop on Land & Natural Resources
Laws & Policies, Held in Arusha April 11 & 12, 2002.Arusha.
Olenasha, William. (2008) .Resource Based Conflicts in Ngorongoro District: A
Draft Report, Arusha.

Michele, N.et al. (undated). Herding on the Brink: Towards a Global Survey of
Pastoral Communities and Conflict. (An Occasional Working Paper from the IUCN Commission on Environmental, Economic and Social Policy.


[1] 1972 Convention Concerning the Protection of Cultural and Natural Heritage Commonly UNESCO Convention.
[2] The Case Ngorongoro Conservation Area Ngorongoro District, Arusha Region
Tanzania, p 2.
[3] NCA Act.

[4] NCA Act, Op.cit.
[5] The Case Of Ngorongoro Conservation Area , Arusha Region
Tanzania. p 6.
[6] The case of Ngorongoro conservation Area, Op.cit.
[7] NCA Act, Op cit.
[8] The Case Of Ngorongoro Conservation Area Ngorongoro District, Arusha Region
Tanzania.p 17.
[9] Ibid,.
[10] The Guardian 5/ 5/ 2009.Ngorongoro crater issue tough – govt.’In a move to save the
Ngorongoro conservation area (NCA) from being struck off Unesco`s list of world heritage sites, the
Government has banned farming inside the area, but admitted that the problem was a complex one.
[11] Olengurumwa P.O (2009) Resource Based Conflict in Northern Tanzania: The case of Sonjo and Masaai of Ngorongoro.p 62
[12] Article 18 of the Constitution of Republic of Tanzania of 1977, as Amended.
[13] Babiker, M .(2007) Fighting For Inclusions Conflicts Among Pastoralists in Eastern Africa and the Horn PP 103-104
[14] Ibid., pp 94-95.
[15] Michele, Nori. Jason Switzer and Alec Crawford (undated). Herding on the Brink: Towards a Global Survey of Pastoral Communities and Conflict. (An Occasional Working Paper from the IUCN Commission on Environmental, Economic and Social Policy)
[16]Olenasha,William.(2008).Conservation versus pastoralism, Natural resource and conservation-related investments versus pastoralism, Farming versus pastoralism, and Pastoralism versus pastoralism
[17] 1992 Rio De Janeiro declaration on Environment and Development.
[18] Mtwale,Op.cit.
[19] 1972 Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration)
[20] 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters Aarhus Convention, Aarhus.

[21] 1971 Ramsa Site Convention on Wetlands of International Importance, especially as Waterfowl Habitat
[22] Rugemeleza Nshala, ‘Granting Hunting Blocks: the need for reform’, (Sept 1999), posted in the website of Lawyers Environmental Action Team (LEAT), www.leat.or.tz/publications/hunting.blocks/index, accessed 11th October 2008
[23] Village Land Act Part III
[24] Mtwale.Op.cit. pp. 29-40.
[25] Shivji,Issa and Kapinga (1998)
[26] Peter& Mwakaje. (2004) Investment in Tanzania. pp 27-28
[27] Femact Loliondo Findings Report 18th -19 August.p 3.

[28] The Wildlife Conservation Act 1974.
[29] Report on a Workshop on Land & Natural Resources Laws & Policies, Held in Arusha April 11 & 12, 2002
[30] Peter, Stolla. (2005). “A Comparative Analysis of The Land Acts of 1999 and The Land Ordinance 1923
[31] Mtwale.Op.cit
[32] FEM ACT Report.Op cit, p 9
[33] Parliamentary Hansards Report on 17TH Parliamentary Session in 2009.
[34] Ibid., (i) Uhalali wa zoezi lenyewe. (ii) Ukiukwaji wa haki za binadamu wakati wa zoezi hilo.(iii) Uhalali wa kampuni ya Orttelo Business Co-operation (OBC)kumilikishwa ardhi kama anavyodai Waziri wa Maliasili na Utalii.(iv) Ukweliiwapo wanyama wanaowindwa katika kitalu hicho ni wale tu waliotajwa katika leseni ya uwindaji ya mwekezaji OBC na kwa idadi iliyoonyeshwakwenye leseni.(v) Uhalali wa kampuni OBC kupewa ulinzi na vyombo vya dola tofauti na wawekezaji wengine. )(vi) Uhalali wa kuwepo majengo ya kudumu katika eneo la mapito ya wanyamapori (vii) Ukweli na uhalali wa kampuni ya OBC kuweka mawasiliano ya simu za mikononi ya nchi za nje yaani Etisalat ya United Arab Emirates.) (viii) Uhalali wa mwekezaji OBC kujenga uwanja mkubwa wa ndege katikaeneo la mapito ya wanyamapori. (ix) Uhalali wa mwekezaji OBC kujenga Ikulu ya Mfalme katika mapito ya wanyamapori. (x) Uhalali wa vijiji kuwepo ndani ya pori Tengefu la Loliondo. (xi) Haki ya wananchi walioathiriwa na zoezi hilo kufidiwa kikamilifu na Serikali. (xii) Serikali kutenga bajeti ya dharura kwa ajili ya huduma za maji na chakulakwa wananchi walioathirika na zoezi hilo ili kuokoa maisha ya wananchi hao na mifugoyao.(xiii) Uthibitisho pasipo mashaka yoyote kuwa waliochomewa makaziaumaboma ni raia wa Kenya na siyo raia wa Tanzania.(xiv) Hatua ya kinidhamu na kisheria zinazostahili kuchukuliwa dhidi yawatendaji wote waliohusika na ukiukwaji wa haki za binadamu na sheria za nchi katikautekelezaji wa suala hilo.

[35]Nipashe 8th/12/2009.Loliondo walivyoshudia Ukiukwaji wa Haki za binadamu.
[36] Tarvick and others. Institutions and Resource Curse. Economic Journal (2005).
[37] Ibid.

IHL IN TANZANIA. A MAJOR NATIONAL CHALLENGE

RESEARCH PROPOSAL


Subject Title: Implementation of International Humanitarian Law in Tanzania: A Major National Challenge


RESEARCHER ONESMO P.K OLENGURUMWA

INTERN LEGAL AND HUMAN RIGHTS CENTRE

















Table of contents
- Abbreviations
- List of legal instruments
1.0 Introduction
2.0 Statement of the Problem
3.0 Objectives and Significance
4.0 Background to the Problem
5.0 Methodology
6.0 Literature Review
7.0 Hypotheses




















Abbreviations
API Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977
APII Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977GCI Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of 12 August 1949GCII Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of 12 August 1949GCIII Geneva Convention relative to the Treatment of Prisoners of War, of 12 August 1949GCIV Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 19491954 CCP Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May1954ICCPR International Covenant on Civil and Political Rights of 1966ICTY Statute, Statute of the International Criminal Tribunal for the former YugoslaviaICTR Statute, Statute of the International Criminal Tribunal for RwandaICL International Criminal lawIHL International Humanitarian LawICRC International Committee of the Red CrossICC Statute Rome Statute of the International Criminal Court, 17 July 1998ICJ International court of JusticeUDHR Universal Declaration of Human Rights, 1948UN United Nation

List of legal and international legal instrumentsGeneva Convention for the Amelioration of the Condition of theWounded and Sick in Armed Forces in the Field, of 12 August 1949Geneva Convention for the Amelioration of the Condition ofWounded, Sick and Shipwrecked Members of Armed Forces at Sea,of 12 August 1949. Geneva Convention relative to the Treatment of Prisoners of War, of12 August 1949.Geneva Convention relative to the Protection of Civilian Persons inTime of War, of 12 August 1949.

Land Act no 5 of 1999 CAP 113 [R.E. 2002].

Protocol Additional to the Geneva Conventions of 12 August 1949,and relating to the Protection of Victims of International ArmedConflicts (Protocol I), of 8 June 1977. Protocol Additional to the Geneva Conventions of 12 August 1949,and relating to the Protection of Victims of Non-International ArmedConflicts (Protocol II), of 8 June 1977.Rome Statute of the International Criminal Court, 17 July 1998Tanganyika Red Cross Act of 1971.


1.0 Introduction.

International humanitarian law (IHL), often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus "comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law." It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other[1]

International humanitarian law sets out detailed rules to protect the victims of armed conflict and limit the means and methods of warfare. It also provides mechanisms for ensuring compliance with its provisions. The repression of violations figures prominently among these mechanisms. Under international humanitarian law, individuals are held responsible both for committing violations themselves and for ordering others to do so. The law also demands that those responsible for grave breaches of its provisions be prosecuted and punished wherever they may be.

The 1949 Geneva Conventions, their Additional Protocols I and II of 1977 and a number of other humanitarian treaties impose specific obligations on the States party thereto. In particular, these States are required to adopt the measures necessary for the implementation at national level of the repressive mechanisms set out in those treaties.

The national legislation of each State should, in particular, prohibit and repress the grave breaches listed in the treaties, providing adequate penalties for them. It should also make it possible to prevent or put a stop to all other acts prohibited by the above-mentioned treaties but not specifically termed grave breaches. The legislation should apply to both civilians and members of the armed forces, irrespective of their nationality, who commit or order someone else to commit a grave breach, even if the breach consists in failing to take compulsory action. Moreover, such legislation must cover both acts committed on national territory and those committed abroad, Independently of their relationship with the State that has jurisdiction over the place where they occurred.

The term implementation covers all measures that must be taken to ensure that the rules of international humanitarian law are fully respected. However, it is not sufficient merely to apply these rules once fighting has begun. There are also measures that must be taken in both. These measures are necessary to ensure that: both civilians and the military personnel are familiar with the rules of humanitarian law; the structures, administrative arrangements and personnel required for compliance with the law are in place; violations of humanitarian law are prevented, and punished when they do occur. Such measures are essential to ensure that the law is truly respected.[2]

For many years the ICRC has done its utmost to encourage and assist States in their efforts to implement international humanitarian law at the national level. To extend its activities in this sphere, it has set up an Advisory Service on International Humanitarian Law whose aim is to provide — at the request of States or with their consent — technical assistance in the adoption of national laws and regulations pertaining to international
humanitarian law.[3]

According additional protocol 1 to GC, the implementation and enforcement of humanitarian law can be both in peace time and time of conflict[4]. During peace times as well as times of war, the parties to the Conventions and protocols are obliged to include the study of international humanitarian law in their programmes of military instructions as well as the military commanders ensuring that members of the armed forces under their command are aware of their obligations under the conventions and protocols. They are also to encourage the civilian population to study them. Furthermore, the first Protocol obligates the availability of legal advisers to the military commanders, who will be instructed by them as on the texts and materials of the International Humanitarian Law and who will in turn instruct their subordinates in the armed forces.
The state should ensure that, as they disseminate this information, they do it in such a manner that will enable the civilians to understand. They should mind the language barrier and thus employ translation where needed. They should also not rely on the literate few, as some cannot read, thus need oral informative techniques.
The Red Cross Societies play a major role in this area. They are custodians ofinternational humanitarian law and thus, despite their role in giving humanitarian relief, have a big role to play in making sure that Parties to the Conventions and their key players are well informed on the principles under which international humanitarian law operates.

The Red Cross is further charged with obligations under the conventions and theprotocols to carry out humanitarian functions so as to help the victims both in times of peace as well as in time of war, subject to the consent of the state party[5]During Mbagala bomb blast April 2009, Tanzania Red Cross had significantly played commendable work, that requires a hand of appreciations.
ICRC will do everything within its power to improve the situation and that it is greatly encouraged by the support of National societies and states. In particular, the ICRC efforts of its Advisory Service, which seeks to assist States in adopting the legislative and other measures needed to implement international humanitarian law in peacetime. In addition, a special effort still needs to be made, in the area of training and the dissemination of humanitarian law In Tanzania, both among the armed forces and at a more general level, especially in schools, colleges and Universities. In Tanzania the trend is negative. It needs to receive full support from all stakeholders, Universities, Civil societies, Individuals experts, Government officials and military organs, working with determination to develop it with the help of local resources, particularly the National Red Cross.

President Kellen once said,[6]The promotion and strengthening of international humanitarian law are central concerns of the International Committee of the Red Cross (ICRC), in its capacity and international mandate to work for the faithful application of international humanitarian law. This role has many facets, including the dissemination of international humanitarian law and the promotion of ratification of relevant treaties, the monitoring of respect of humanitarian law by the parties to an armed conflict, as well as the preparation of new developments in this field.

















2.0 Statement of the Problem
Implementation is the major challenge facing international humanitarian law today. Tanzania in Particular, there is meagre response in implementation of humanitarian law. The problem of translating States' legal obligations into action is common to all areas of international law in Tanzania. Tanzania has ratified a number of international treaties, yet the country is unenthusiastic to make them applicable. There is however a particularly acute contrast between humanitarian law's concept, and the wrong perception of humanitarian law from the mass.While a number of international mechanisms have been developed to promote compliance with humanitarian law. Like establishment of ICC, it is States themselves which have the primary responsibility for implementation. Under the 1949 Geneva Conventions and their 1977 Additional Protocols, States have clear obligations to ensure that humanitarian law is implemented and respected, and to this end to adopt a range of national legislative and administrative measures. It is in order to help States discharge their international obligations, and to promote these national implementing measures, that the ICRC has established an Advisory Service on International Humanitarian Law.[7]

In Tanzania recently, we have witnessed military objectives being located at the heart of populated areas. The first evidence of this disregard appears in the form of the land dispensation that has been carried out in this area, which is believed to have been done incorrectly and which also does not uphold the humanitarian law principles. According to the Land Act of Tanzania[8], there are three main ways of acquiring land. The Land Act[9]designate reserved for special activities amongst which, the military is not listed. However, the residents of Mbagala claim to have had their land dispensed to them legally and claim to have the proof of certificates of occupancy.


Upon the acquisition of land by the civilians, the Government being the responsible organ
for allocating this land has a duty to ensure that the principles of international
humanitarian law have been observed. As per the basic principle of distinction, no civilian has justification for owning land in such close proximity to the military depot.

However, it should be noted that if these people own this land, then they have had it
allocated to them. This is a direct contravention of the municipal legislations, as well as
International humanitarian laws. It should also be noted that, despite the obligations that Tanzania has, to international law, there are no provisions whatsoever in the land act that pay obeisance or even recognize this obligation.

Furthermore, the planning in the area of Mbagala Kuu has proved to be very poor. It is
indeed doubtful as to whether this land has been properly surveyed and subjected to the
attentions of urban planning. This is apparent in the haphazard manner in which the roads
and houses are laid. In addition, the roads are poorly maintained and in some parts seem
to have been hewn roughly from dirt paths. Suffice it to say, in an emergency such as
this, it is almost impossible for aid and assistance to arrive at the disposal of the needy.
Seeing as, the protocol also provides that the state party shall take any other necessary
Precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations (emphasis is added)[10]

This evidences that the Municipal Authority in Tanzania on Land Matters, which is the
Land Act has no element of International Humanitarian Law especially in gazetting of
military areas. This makes the provisions of the Geneva Conventions impotent as they
have never been domesticated. This is a pity as, the Constitution of the United Republic
of Tanzania puts an obligation on the parliament to ensure that treaties and conventions
are ratified or domesticated thus enacting enabling legislation[11] This makes it enforceable before our courts of law. All this leads to the inference that, the government is either very poorly informed on International Humanitarian Law, or it has no knowledge whatsoever. This is also a breach of the Geneva Conventions which emphasizes on the
dissemination of knowledge on International Humanitarian Law.

This was apparent study done University of Dar es Salaam 2009 IHL students under Dr Kamanga to Mbagala (an area where explosives took place), where the civilians professed to have no knowledge at all of international humanitarian law. Sadly, the Red Cross Officials confessed to having barely disseminated the knowledge to the civilians. Not only civilians but even Red Cross society lacks experts of Humanitarian law.

It was also glaringly obvious that the military officials, who purported to dispense land to
the civilians right next to the military facility, have never taken precaution measures to
Inform or educate these civilians on International Humanitarian Law and the mess of
Living close to military depot. Hence, we ratify what we cannot implement.

The Red Cross is further charged with obligations under the conventions and the
Protocols to carry out humanitarian functions so as to help the victims both in times of
peace as well as in time of war, subject to the consent of the state party.

In the context of the incident at Mbagala, the Tanzania Red Cross Society, in keeping with their aims and objectives, availed 15 of their volunteers to provide assistance to the victims by helping in the gathering of the missing, wounded and dead, donating tents, food and water to the best of their immediate capacity. These efforts were hindered by the
haphazard layout of the area, the poor infrastructure and the minimal funds available to
them.


Also, the somewhat slow response of the Government to help in the situation, and
when they finally did, they did so to the minimum. Some private institutions however,
lent a hand to the efforts of the Tanzania Red Cross Society by donating tents, food and
water, medical facilities as well as medicines. The Government despite the fact that, we are signatory to Geneva conventions is reluctuntant in assisting Red Cross societies to carry out its daily activities.

The problem of lack of dissemination has lead to the lack of knowledge on the principle of distinction, which has the main purpose of keeping the civilians’ safe and away from danger zones. This principle was not adhered to and thus the area around Mbagala Kuu ending up with a population of 18,866 people affected greatly, breaking down into 3,775 families them on the injuries suffered and allowing them to rebuild their houses as well as
their lives.

In Tanzania according to ICRC public communication officer to Tanzania Miss Helena, Tanzania still lacks IHL National Committee .This is key challenge most probably a great obstacle to implementations of IHL in Tanzania. According Romania IHL National Committee, the Committee serves as an advisory body composed of representatives of various ministries and of independent experts. It may invite members of parliament and representatives of governmental or non-governmental organizations, of the Romanian Red Cross and of the ICRC to take part in its meetings.







3.0 Objectives and Significant of the Study

Knowing that Implementation of IHL is the major challenge facing international humanitarian law today, this study has been objectively structured to uncover major challenges of International Humanitarian law in Tanzania. The study specifically swims into the whole concept of implementation of International humanitarian law at National level. To narrow the scope of the study, this research focuses predominantly on implementation of IHL in peace time, due to the fact that, proper implementation of IHL in peace time, is the leeway to sound devotion of IHL principles in time of conflict. Tanzania being an island of peace should not be a justification to pay less attention to implementations of IHL in Tanzania.

The problem of translating States' legal obligations into action is common to all areas of international law. Therefore this study will significantly emerge with sound recommendations on how the state actors will transform principles of IHL into realism. The study will come up with model law after having an audience with Group of Experts to study practical means of promoting full respect for and compliance with humanitarian law in Tanzania. The findings and documentation of the study will be a form of a documented advice on all legal and administrative measures which State must take in order to comply with their obligations under international humanitarian law. The recommendation therein, will focus particularly on those measures which a State is obliged or advised to take, regardless of whether it is currently in conflict. The study will as well see the possibility of Conventions and Protocols being translated into the national language to spread knowledge of their provisions as widely as possible both within the armed forces and the general population.





4.0 Background to the problem.

Before 1990’s the implementations of IHL at National level was great mischief , states were reluctant in adopting and implementing principles of IHL.During 1990’s the world has witnessed a number of efforts made by United Nations,ICRC and states to put in place proper adherence to IHL principles at National Levels.Various International Conferences were called for the convening of an Intergovernmental Group of Experts to study practical means of promoting full respect for and compliance with humanitarian law. However, becoming party to international agreements is only a first step. Efforts must be made to implement humanitarian law, to turn the rules into action.

The Group of Experts met in Geneva in January 1995. Amongst its recommendations were the establishment of national committees to advise and assist governments in the implementation and dissemination of humanitarian law, the exchange of information on implementation measures, and the strengthening of the ICRC's "capacity to provide advisory services to States, with their consent, in their efforts to implement and disseminate IHL"[12]The ICRC responded quickly to the Experts' Recommendations. By the time of the 26th International Conference of the Red Cross and Red Crescent in December 1995, it was able to report the establishment of a new unit within its Legal Division, the Advisory Service on International Humanitarian Law, aimed at providing specialist legal advice to governments on national implementation.

The Recommendations of the Intergovernmental Group of Experts were endorsed by Resolution 1 of the 26th International Conference, adopted by consensus, with a number of delegations specifically welcoming the establishment of the new Advisory Service.[13]Tanzania up to date never adhered to the Resolution endorsed by Group of Experts. The country unjustifiably hesitates to put in place IHL National committee.

Chacha Bhoke[14] remarked that, the provisions of article 63(3), (d) and (e) of the constitution of The Republic of Tanzania of 1977 [as amended] tell us that no treaty other than a self – executing agreement, is enforceable in Tanzania unless it is domesticated into municipal law by an Act of Parliament. In Tanzania, self-executing treaties do not have to be ratified by the Parliament through an Act of Parliament. Regard must be had to a subsidiary law on the self-executing agreements in Tanzania. This is Presidential Circular No.1 of 1985.[15] In this Circular, matters related to agreements between Tanzania and other states or international organisations and important international conferences are under the purview of the Cabinet, and the duty to initiate legislative implementation vests in the responsible Ministry or government department[16]

The conventions and treaties relating to IHL fall squarely under the purview of cabinet and Government department relating to implementation of international agreements. Dr Kamanga provides that, two legislative processes according enforcement to treaties signed by Tanzania. He provides us with the ‘ratification process’ whose final step is the ‘adoption of a resolution of the National Assembly.’[17] This appears to be in line with
Article 63(3) (e) of the constitution which expressly provides that ‘…the National Assembly may deliberate upon and ratify all treaties and agreements to which the United Republic is party and the provisions of which require ratification.’ Accordingly, the second process places the already ratified treaty into an Act of Parliament.

Then whole process of placing the treaty into an act of parliament basically undergoes 3 stages according to International law: In international law, there are three principal methods that are generally employed by the legislature to transform treaties into municipal law (incorporation or domestication of an international treaty).[18] In the first category, the provisions of a treaty may be embodied in the text of an Act of Parliament; secondly, the treaty may be included as a schedule to a statute; and thirdly, an enabling Act of Parliament may give the executive the power to bring a treaty into effect in municipal law by means of proclamation or notice in the Government Gazette.

Tanzania ratified Geneva conventions and its additional protocols since 1960’s, but the country has been reluctant to domesticate the Geneva conventions. This has been a great challenge to many countries. Tanzania has its National Red Cross Society since 1963, the society is a creature of Parliament by Act of 197.But with all this efforts still implementations of IHL in Tanzania faces allot of challenges.

Tanzania lacks national legislations that implements IHL.This seems to be a great challenge and the country must move ahead to see how Geneva conventions are domesticated.ICRC once insisted, after a treaty of international humanitarian law has been ratified and has entered into force, parliamentarians must make sure that Parliament adopts national implementing legislation which corresponds to the provisions of the treaty. If necessary, they can take advantage of parliamentary procedure to make sure that draft legislation (or amendments to existing legislation) is sent to Parliament by the Government within a reasonable time. They can in particular make sure that the Penal Code and Code of Penal Procedure are compatible with the norms of international humanitarian law.[19]

Red Cross coordinator in Zanzibar, Mr Ubwa Suleiman once said when speaking with Zanzibar Journalists,
"The emblem is being misused by many people there are those who put in their health facilities, others fix it in ambulances we are currently working on modalities of dealing with the problem," he said.
Elaborating, Mr Suleiman said the emblem is supposed to be used in crisis such as wars and other natural calamities.[20]

With regard to what has took place in Mbagala in April 2009,Onesmo Olengurumwa Former president University of Dar es Salaam Human rights association strongly stated, Tanzania was party to the Fourth Geneva Convention, and hence needed to observe all issues contained in it, including protecting its people.Olengurumwa went ahead saying:[21]

“We need to bypass the populated area from military bases, and we want to be less disruptive to the civilian population. Even if the country is not at war, we need to locate our military bases away from civilians,`` he said

The series of explosives from military bases in Tanzania make it more confident to say that, even military personnel and government officials are unacquainted of IHL principles.




4. 0 Methodology

This is a case study whose focus is on exploring answers to the pre-set research questions. This is intended to provide information connected with implementation of IHL in Tanzania.

4.1 Area of Study

The study will be conducted specifically to those areas relatively connected to implementations of International laws, IHL in Particular. It will cover all ministerial departments, Parliaments committees, armed forces camps and departments/Colleges, Universities, ICRC offices, National Red cross offices and the population at large.

4.2 Population and sampling techniques

Population is a collection of all individuals, items or data under scrutiny in a specific study. The population for this study will include ICRC Management and workers, Ministerial heads of departments, National Red Cross Heads of section and common workers, IHL Experts, University managements and International law lecturers.Members of armed forces (This means that the top management, middle level management and members of armed forces), Members of parliament and civilians.

By definition, a sample is that part of the population from which information is collected to represent the entire population. In this study, the sample size wail depend and availability of resources. Random sampling and stratified random sampling procedures will be employed.


4.3. Data Collection Methods

Both secondary and primary methods of data collection will effectively be employed. Data will be collected through interviews, story telling and filling in the questionnaires. Then Data collected will be analyzed and presented to respective offices. Seminars and conferences will serve as other mechanisms of collecting data. The above methodology has been preferred due to the nature of the study.



















5.0 Literature review

The efforts made to ensure ratification of these treaties are therefore essential, whether to facilitate and speed up ratification procedures in countries that are favourable to them, or to step up the dialogue when fundamental opposition emerges, so that we can better understand and ultimately overcome the reasons for such opposition. Achieving this objective of universality, towards which we must strive without cease, is the responsibility of each and every one of us, said Sandoz[22].

States that decide to ratify a humanitarian law treaty must understand that their role does not end there; they must be aware that, in a realm as sensitive as the law of armed conflicts, universal acceptance of that treaty is the only way to give those who must ensure compliance the confidence necessary to implement it unreservedly at the national level and in peacetime, before conflict breaks out.[23]

Elaborating, Mr Sandoz went ahead saying that we can never do enough to stress the importance of being involved, day after day, in the task of implementing international humanitarian law. Statements at international conferences are not enough to help advance this law - the crucial impact can only be achieved by simple, everyday monitoring of its implementation at the national level. It is vital that, in every country, international humanitarian law be regarded not merely as the business of a few diplomats, but as everyone's concern.

Mr Sandoz emphazed, states should not confuse their role and the creation of the International Criminal Court, but it must also be said that this Court, far from substituting for domestic courts, should prompt each State to ensure that it has appropriate national legislation for the repression of war crimes.

It was stated by Dr. K. Kamanga [24], “Tanzania declared its commitment to abide by the Geneva Conventions through formal declaration on the 12th December of 1962. She acceded and thus voluntarily expressed her consent to be legally bound by the Additional Protocols on the 15th February 1983”. It has however showed no evidence of doing so, as it has not in its municipal legislations on land matters, directly addressed this issue in its provisions.

National implementation of humanitarian law is an on-going process requiring the cooperation of a range of government ministries and national organizations. A number of States have therefore established national committees or working groups on international humanitarian law bringing together national authorities, experts, and in some cases organizations such as the National Red Cross or Red Crescent Society. The role and composition of these committees vary from country to country, in some cases covering both human rights and humanitarian law[25]. While there is no legal obligation to establish such committees, they have been found to be a valuable means of promoting national implementation.The Intergovernmental Group of Experts for the Protection of War Victims recommended that States "be encouraged to create national committees, with the possible support of National Societies, to advise and assist governments in implementing and disseminating IHL" and "to facilitate cooperation between national committees and the ICRC". [26] The Advisory Service therefore seeks, where appropriate, to promote the establishment of national committees, working groups or similar structures responsible for the on-going implementation of humanitarian law. As part of this effort, and on the recommendation of the Group of Experts, the Service is planning a meeting of national experts, both from States with national committees and from other interested States, to discuss the establishment, composition and role of such committees.[27]On the recommendation of the Intergovernmental Group of Experts, the ICRC will submit annual reports on its advisory services to States party to the 1949 Geneva Conventions, as well as to the International Conference of the Red Cross and Red Crescent and other interested bodies. These reports will cover the full range of advisory services provided by the ICRC, comprising not only the efforts of the Advisory Service on International Humanitarian Law, but also advisory work undertaken by the Dissemination Division and the Division for Dissemination to the Armed Forces. These reports will in addition enable the ICRC to circulate information on measures taken by States themselves to promote implementation[28]

Speaking notes of Dr Jakob Kellenberger, President of the ICRC, European Parliament, Brussels, 16 September 2008, elaborated the role of states in respect and implementation IHL.Dr Jacob K is quoted saying the following during the 60 Anniversary of Geneva conventions:[29]

“I begin by recalling the primary responsibility of States stemming from the 1949 Geneva Conventions and their first Additional Protocol of 1977 "to respect and ensure respect for these Conventions under all circumstances" (Article 1 of the Geneva Conventions) and "in situations of serious violations … to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations' Charter" (Article 89, Additional Protocol I)……… The second wing of the obligation under Common Article 1 is more difficult to circumscribe. Much has of course been written on the exact nature of the obligation for States to "ensure respect" for international humanitarian law. This provision is today generally interpreted as enunciating both a positive responsibility and a legal obligation for third States not involved in an armed conflict to act, whether through bilateral or multilateral channels, to ensure that the belligerents comply with the law and to use their influence to stop the violations. This should at least entail, in my view, an "obligation of means" for States to take all appropriate measures possible in an attempt to end IHL violations.These developments have also served to remind States of their obligations under international humanitarian law to punish and suppress serious violations of international humanitarian law, in particular through the enactment of adequate criminal legislation allowing for the prosecution of war crimes in domestic courts based on the principle of universal jurisdiction.”

As according to The Protocol 1 Additional to the Geneva Conventions, Tanzania as a
state party should, to the maximum extent feasible, avoid locating military objectives
within or near densely populated areas[30] This is to pay attention to the principle of
Distinction. This is a principle of international humanitarian law which demands that a
distinction should always be made between the military objects and the non-military
(civilian) objects as well as between combatants and non-combatants (civilians) so as to
inter alia protect the civilians from the hostilities directed towards combatants and the
misfortunes that may befall them by virtue of so being.Onesmo Olengurumwa President of University of Dar es salaam Human Rights Association insisted, even if the country is not at war, Government must adhere to the Geneva conventions principles.[31] According to Olengurumwa the government should take all possible initiatives to see that the civilian population was protected, particularly when natural and technological disasters occurred.

In Sudan Decree No. 2006-1051 on the creation of a national commission on international humanitarian law, was enacted on 20 April 2006 by the Tunisian president acting on the proposal of the Minister of Justice and Human Rights.The Commission has the task of promoting and disseminating IHL. Its primary responsibilities include preparing recommendations for the adaptation of national legislation and practice to the requirements of IHL, and for drawing up and carrying out an annual strategy in conjunction with relevant national bodies. When called upon to do so, the Commission may also issue legal recommendations on questions related to IHL and its field of application.[32]

The Libya Decree of the General Popular Committee No.253 of 2005 regarding the creation of the National Committee for International Humanitarian Law was adopted on
18 December 2005.The Committee is responsible for defining, in co-ordination with the
relevant authorities, strategies and programmes for the implementation and
dissemination of international humanitarian law (IHL) and for drawing up
proposals to adapt national legislation to the requirements of IHL treaties. The
Committee has also been assigned to monitor and document violations of IHL,
and to propose appropriate remedies.

The Committee is chaired by the secretary of the General Popular Committee for Justice and is composed of 15 members, including representatives of different ministries (General Popular Committees) and of various centers and associations, of the secretary-general of the Libyan Red Crescent, and of nine eminent experts in the field of IHL to be named by the Committee chair.[33]

All States have a clear obligation to adopt and carry out measures implementing humanitarian law. These measures may need to be taken by one or more government ministries, the legislature, the courts, the armed forces, or other State bodies. There may also be a role for professional and educational bodies, the National Red Cross or Red Crescent Society or other voluntary organizations.[34]
According to ICRC publications[35], The following implementation measures must be taken. Preventive measures, based on the duty of States to comply with humanitarian law.They include:
· spreading knowledge of IHL;
· training qualified personnel to facilitate the implementation of IHL, and the appointment of legal advisers in the armed forces;
· adopting legislative and statutory provisions to ensure compliance with IHL;
· translating the texts of the Conventions
Diplomatic efforts and pressure from the media and public opinion also help ensure implementation of IHL.The High Contracting Parties shall .......... in peacetime endeavor........ to train qualified personnel to facilitate the application of the Conventions and of this Protocol ......". (Art. 6, Protocol I)[36]” The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances". (Article 1 common to the four Conventions)
ICRC Hand book titled Respect for IHL, analyses 7 ways in which parliamentarians can ensure effective implementation of IHL at National level.[37] International humanitarian law applies in armed conflicts, but measures must be taken at all times to ensure that it is respected. Just as most countries ready their defences even when threatened by no immediate conflict, it is in time of peace that measures must be taken to ensure that any war will be conducted with due regard for international humanitarian law. When conflict seems likely, it is often already too late. Countless preventive measures can be taken in time of peace to ensure compliance with international humanitarian law.[38]


















6.0 Hypotheses
§ Lack of willingness by Government officials to legislate Geneva conventions, has intrinsically propelled back the efforts of implementing IHL in Tanzania.

§ Low level of dissemination of IHL, particularly to Government officials, Universities, colleges, Military personnel and the whole community at large due to wrong perception of IHL, became a great challenge to Implementations of IHL in Tanzania.

§ Poor coordination between Tanzania Red Cross Societies and the Government, Red cross seems to receive less facilitations from the government to carry out it duties.















7.0 References
Behman, Paul (1996) International Review of the Red Cross. No 312. The ICRC’s Advisory Service on International Humanitarian Law: The Challenge of National Implementation.

Chacha B. (2009). The place of International Law in Tanzania. A Paper Prepared for Presentation In The Conference On International Law and Human Rights Litigation In Africa, To Be Held In Conjunction With the 18th African Moot Court Competition at Lagos, Nigeria Between 14 and 15 August 2009, Jointly Organized by the Centre For Human Rights, University of Pretoria and the Amsterdam Centre For International Law, University of Amsterdam. The Conference is Part of a Joint Project of the Two Centres Linked To The Online Publication International Law In Domestic Courts (ILDC).


General problems in implementing the Fourth Geneva Convention: final statement. Geneva, 27-29 October 1998. Statement by Yves Sandoz, Head of the delegation ICRC.


ICRC Hand Book For Parliamentarians No 1. (1999).Respect for International Humanitarian Law.

ICRC publications. (2004). What Measures are Available for Implementing Humanitarian law?

ICRC Publication (2002). Implementing International Humanitarian Law: from Law to Action. Fact sheet explaining what it means to implement international humanitarian law at the national level, whose responsibility it is to do so, what general measures must be adopted and how this can be done.

International Review of the Red Cross. National Implementation of International Humanitarian Law Biannual update on National Legislation and case Law. January–June 2006, Volume 88 Number 863.Respect for International Humanitarian Law - A Major Challenge, A Global Responsibility. Speaking notes of Dr Jakob Kellenberger, President of the ICRC, European Parliament, Brussels, 16 September 2008.


Kamanga, K. (1998).Study Into Implementation of International Humanitarian Law in Tanzania. Faculty of Law: University of Dar-es-salaam: Tanzania.

ICRC Hand Book For Parliamentarians No 1. (1999).Respect for Iinternatinal Humanitarian Law

"Meeting of the Intergovernmental Group of Experts for the Protection of War Victims (Geneva, 23-27 January 1995): Recommendations" (hereinafter referred to as "Recommendations"), Sections III, V, VI, IRRC, No. 304, January-February 1995.

Olengurumwa, O. (2009). “The Interplay Between International Humanitarian Law And Other Legal Regimes In Situations Of Violence Including Armed Conflicts” International Committee Of The Red Cross 7th Annual Essay Competition For The East Africa University Law Students.

The Guardian 1/5/2009. UDSM activists ask govt to locate barracks far from civilians.
The Citizen 14th /7/2009. Don't Misuse Red Cross Emblem Bodies Urged.

[1] Olengurumwa,O.(2009). “The Interplay Between International Humanitarian Law And Other Legal Regimes In Situations Of Violence Including Armed Conflicts” International Committee Of The Red Cross 7th Annual Essay Competion For The East Africa University Law Students.
[2]ICRC publication (2002). Implementing International Humanitarian Law:
from Law to Action. Fact sheet explaining what it means to implement international humanitarian law at the national level, whose responsibility it is to do so, what general measures must be adopted and how this can be done.

[3] ICRC Report, National measures to repress violations of international
humanitarian law (Civil law systems).Geneva 1997,p 23

[4] The Protocol Additional to the Geneva Conventions of 12August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977.Article 58(b)
[5] AP I, article 81, GC IV, 10, 63, AP II 18
[6] Respect for International Humanitarian Law - A major challenge, a global responsibility.Speaking notes of Dr Jakob Kellenberger, President of the ICRC, European Parliament, Brussels, 16 September 2008 .
[7]
[8] Of 1999 CAP 113 [R.E. 2002
[9] Ibid., 6.

[10] Op cit , 1949 AP I, Article 58(b)

[11] Constitution of The United Republic of Tanzania of 1977, article 63(3)(d & e)

[12] "Meeting of the Intergovernmental Group of Experts for the Protection of War Victims (Geneva, 23-27 January 1995): Recommendations" (hereinafter referred to as "Recommendations"), Sections III, V, VI, IRRC, No. 304, January-February 1995, pp. 33-38.
[13] See IRRC, No. 310, January-February 1996, pp. 58-60
[14] Chacha B.(2009) The place of International Law in Tanzania. A paper prepared for presentation in the Conference on International Law and Human Rights Litigation in Africa, to be held in conjunction the with the 18th African Moot Court Competition at Lagos, Nigeria between 14 and 15 August 2009, jointly organized by the Centre for Human Rights, University of Pretoria and the Amsterdam Centre for International Law, University of Amsterdam. The conference is part of a joint project of the two centres linked to the online publication International Law in Domestic Courts (ILDC). p 6.


[15] See, Presidential Circular No. 1 of 1985 (In Kiswahili, called Waraka wa Rais Na.1 wa 1985), Ref. No. SHC/C 180/1/C/70.

[16] Chacha B.Loc. cit.


[17] Kamanga,K. ‘International Human Rights Law as reflected in Tanzania’s Treaty and Court Practice’ in W Binchy and C Finnegan (2006) Human Rights, Constitutionalism and the Judiciary: Tanzanian and Irish Perspectives, Ch. 2, 53-70.


[18] Chacha,B (2009).Op.Cit, p 7.
[19] ICRC Hand Book For Parliamentarians No 1.(1999).Respect for Iinternatinal Humanitarian Law.p 31
[20] The Citizen 14th /7/2009. Don't Misuse Red Cross Emblem Bodies Urged.
[21] The Guardian 1/5/2009. UDSM activists ask govt to locate barracks far from civilians.
[22] General problems in implementing the Fourth Geneva Convention: final statement. Geneva, 27-29 October 1998. Statement by Yves Sandoz, Head of the delegation ICRC.
[23] Ibid.

[24] Khoti Kamanga; Study into implementationof International Humanitarian Law in Tanzania. 1998 Faculty
of Law: University of Dar-es-salaam: Tanzania.

[25] Behman, Paul (1996) International Review of the Red Cross. No 312, p.338-347. The ICRC's Advisory Service on International Humanitarian Law: the challenge of national implementation.
[26]Behman, P .Op .cit.
[27] "Meeting of the Intergovernmental Group of Experts for the Protection of War Victims (Geneva, 23-27 January 1995): Recommendations" (hereinafter referred to as "Recommendations"), Sections III, V, VI, IRRC, No. 304, January-February 1995, pp. 33-38.
[28] Ibid Note 5, Section III, Para. 3.
[29] Respect for International Humanitarian Law - A major challenge, a global responsibility.Speaking notes of Dr Jakob Kellenberger, President of the ICRC, European Parliament, Brussels, 16 September 2008.

[30] The Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection
of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, Article 58 (b) & (c)
[31] The Guardian, April 3o 2009.UDSM activists asks Government to locate barracks away from civilians

[32] International Review of the Red Cross. National implementation of international humanitarian law Biannual update on national legislation and case law
January–June 2006,Volume 88 Number 863.me Volume 88 Number 863 September 2006
88 Number 863 September 2006








Volume 88 Number 863 September 2006
Volume 88 Number 863 September 2006
Volume 88 Number 863 September 2006

[33] Ibid. 695
[34] ICRC Publication (2002). Implementing International Humanitarian Law:
from Law to Action. Fact sheet explaining what it means to implement international humanitarian law at the national level, whose responsibility it is to do so, what general measures must be adopted and how this can be done.


[35] ICRC Publications (2004). What measures are available for implementing humanitarian law?

[36] AP 1
[37] ICRC Hand Book For Parliamentarians No 1.(1999).Respect for Iinternatinal Humanaitatrian Law.
[38] Ibid., 27