PASTORALISTS IN TANZANIA: A NEW EMERGING GROUP OF IDP’S
For two decades now the world has witnessed the u-turn of pastoralists from developing society to a backward developing community. It was hard for me to believe that we can have a developing trend of internally displaced people in Tanzania.IDP’S are generally generated by situations of conflicts, scholars may say no we have no conflicts in Tanzania, but before you say no, ask you self a questions do we have resource based conflicts in Tanzania? The answer is absolutely positive.
Loss of Land though Government acquisition and creation of conservation areas and game reserves have deprived people’s Land. Such measurers have created Land less mobile pastoralists and farmers. These land disputes have been due to land alienation and multiple allocations of land/resource rights on village lands.
From the end of the 1980s this has been the case especially in Tanzania, in the Districts of Monduli, Kiteto and Siman-jiro, Kilosa and Usangu. Conflicts occurred in places where large-scale agriculture and/or mining rights have been granted to private investors by the State. In Arusha Region underlying causes to conflict include both territorial issues and property claims where the access and control to critical resources has been very important. Conflicts on village lands have developed when State authorities have favoured land allocations to cultivators at the expense of the pastoralists or offered to investors at the expense of pastoralists.
Tanzania sells hunting blocks to anyone who can afford them, which usually means foreigners, who then bring friends/family/clients to hunt there. In 1990 there were only 47 blocks in the country, but by 2000 that number had tripled, to 140. At present about twenty percent of the country is designated for hunting. All across Africa, the same thing is happening - hunting is catching on like wildfire - and it's not hard to see why. Money. Animals are the crude oil of the savanna.
Thankfully, South Africa's problems are being brought to light by a zealous local media, as well as by television programs such as Britain's Cook's Report, which several years ago exposed the controversial activity of canned hunting, or shooting a lion that is caged and often drugged. (Despite the program, though, canned hunting still goes on.)But in Tanzania, Loliondo has always been shrouded in secrecy. From the time it was leased to Otterlo Business Cooperation (OBC), there were questions. The price the Arabs paid was never made public; the Maasai, whose cattle have been allowed to roam across boundaries and terrain like Loliondo for centuries, were never consulted; and the way the application was rushed through led to rumors of presidential favors and government corruption. (This is quite possible, seeing Tanzania came 82 out of 91 countries covered in Transparency International's 2001 Corruption Perceptions Index.)
The questions comes where is our home? what have we done wrong to deserve this sort of measurable life. No food, no school, no land, no water, no shelter. We have turned out to be dogs of rich men in the cities and towns; we sleep on corridors, some time not paid.
No more grazing land, we are treated as trouble mongers, our poor houses are burnt to ashes. We are left like antelopes around Serengeti planes, the value and dignity of life as human being, no longer with us. Sometime an antelope is more valuable than we pastoralists.
We move up and down, west and east, north and south, but still we are called invaders. We walk long distance with our children while other’s people’s children go to school, where is our future? Parents never went to school as well as their generations don’t go to school. For forty years of independence, no hope no future. 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 in Ngorongoro.
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 area, they cause conflict with people they meet, we have at hand live examples at Rufiji, Ihefu, Kilosa and lindi,
The director of wildlife has more power to grant concession for exclusive hunting rights without involving villagers .Practically this has taken place in Loliondo where the whole Loliondo Game Controlled 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 was granted to investors from U.A.E, Saudi Arabia and Egypt.
In the first place, upon arriving at the Ololosokwan villages, one receives the following
network text message through the Zain mobile network.
“
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 above network text message leaves allot to be desired. One wonders whether Ortello
Business Corporation is a private company or is a sovereign state within Tanzania.
With all these stories and experiences. Ultimately, the Nation is producing IDP’s due economic imbalances and harsh government policies. The acts of government and investors towards pastoralist are a sheer robbery and plundering of indigenous resources.
by Onesmo P.K. Olengurumwa(LL.B)
Independent researcher and human rights activists.
Tuesday, September 1, 2009
Monday, August 31, 2009
Friday, August 28, 2009
PROSTITUTIONS AND HOMOSEXUALITY IN TANZANIA
POSITION OF THE LAW IN TANZANIA ON HOMOSEXUALITY AND PROSTITUTIONS /COMMERCIAL SEX WORK
Introduction
International human rights law and the lesbian and gay rights movement have grown up together in the years since World War II. Both are still developing. Both are evolving from western initiatives to a world-wide presence.But there are international movement that advocate for the rights of Lesbians, International Gay and Lesbian Human Rights Commission (IGLHRC) and Global Rights. According to the culture and morality in Tanzania prostitutions/commercial sex work and homosexuality are totally prohibited by the law.
1. Prostitutions
Prostitution is translated in Kiswahili as umalaya and the prostitute as Malaya. Umalaya is used to refer to the sex life of an individual considered to be promiscuous or loose in sexual relations. Prostitution is mainly urban-based and usually refers to women; in the traditional African culture, promiscuous or “loose” men are not considered as prostitutes.
Prostitution is illegal in Tanzania. Thus, such individuals are from time to time rounded up by police and the locations known to house prostitutes are raided. However, the victims of these raids are always females, as the male partners and patrons are left untouched.
There are several forms of prostitution. The “classical” Malaya women operate indoors. They stay inside their rooms and wait for men to visit them.
Prostitution involves barmaids, guesthouse workers, and promiscuous married women. These types of women have their own residences like the classical Malaya; however, they may or may not invite their clientele to their places.
A new form of umalaya has emerged in Tanzania in the late 1990s, nicknamed Uchangu Doa (the person is nicknamed Changu Doa or CD. The name comes from a species of fish from the Indian Ocean. Payment for services is negotiable and depends on the duration of the service, the economic and social status of the customer, status of the urban area, the location where the CD was encountered, time of the night, and education level of the CD. The longer the duration of services, the higher the price. CDs operate in large or well-known urban areas like Dar es Salaam, Arusha, or Dodoma.
The kind of prostitutions which is prohibited by Tanzania penal Code is earning trough prostitutions.That,implies only those who gain money out of commercial sex are liable under the law. The Penal code prohibits earnings through prostitutions according to sections 146-148.This is among the offences categorized as offences against morality.
2. Homosexuality
In Tanzania, sex acts between men are illegal, and carry a penalty of Life imprisonment. Sex acts between women are not mentioned in Tanzanian law. In particular, sections 154 to 157 of the Penal Code criminalize sexual activity between men, stipulating a maximum sentence of 14 years in prison; Sexual acts between women are not mentioned in the Penal Code.
(1) Any person who- (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years. (2) Where the offence, under subsection (1) of this section is committed to a child under the age of ten years the offender shall be sentenced to life imprisonment.
Even the Law of Marriage Act of 1971 section 9 recognizes only one type of marriage, that is, marriage between male and a female. And marriage between people of the same sex is not recognized by the law.
A law imposing a prison term of up to 25 years for anyone convicted of having gay sex has gone into effect in Zanzibar... gay men could be sentenced to a quarter century… lesbian sex is seven years. The gay sex sentence is the same as that for murder. The law went into effect this week after it was signed by president, Amani Karume. Zanzibar‘s parliament, in a rare show of unity, passed the bill unanimously in April. There is no difference between sodomy and murder said Sheikh Muhammed Said, a Zanzibar Islamic leader. This is what we have been aspiring for, he said of the penalties.
3. Challenges
The United Republic of Tanzania acceded to the International Convention on Civil and PoliticalRights1 (ICCPR) on 11 September, 1976. These violations are based solely on a person‘s actual or suspected sexual orientation. The question is whether this behavior by a state party to the ICCPR is a violation of articles 2(1), 26, and 17 and whether it is a failure of the duty and obligation of the government to protect its citizens with no partiality.
Article 17(1) states that people should be free from arbitrary or unlawful interference with his [or her] privacy; family, home or correspondence. Article 17(2) additionally mandates that the law must protect all people from such interferences. The Constitution of the United Republic also provides for the guaranteed privacy of its people,
16. – (1) every person is entitled to respect and protection of his person, the privacy of his ownperson, his family and of his matrimonial life, and respect and protection of hi residence and private communications.
4. Conclusion
According to the culture and morality in Tanzania prostitutions and homosexuality are totally not practiced, and if the law prohibits such kinds of sexual behaviour in Tanzania, then the country doesn’t violates any rights as provided by ICCPR and other legal instruments. The rights of people are respected if they conducts themselves not against the culture and morality of their nations. That is why; homesexuality and prostitutions have been categorized as offences against morality.
Introduction
International human rights law and the lesbian and gay rights movement have grown up together in the years since World War II. Both are still developing. Both are evolving from western initiatives to a world-wide presence.But there are international movement that advocate for the rights of Lesbians, International Gay and Lesbian Human Rights Commission (IGLHRC) and Global Rights. According to the culture and morality in Tanzania prostitutions/commercial sex work and homosexuality are totally prohibited by the law.
1. Prostitutions
Prostitution is translated in Kiswahili as umalaya and the prostitute as Malaya. Umalaya is used to refer to the sex life of an individual considered to be promiscuous or loose in sexual relations. Prostitution is mainly urban-based and usually refers to women; in the traditional African culture, promiscuous or “loose” men are not considered as prostitutes.
Prostitution is illegal in Tanzania. Thus, such individuals are from time to time rounded up by police and the locations known to house prostitutes are raided. However, the victims of these raids are always females, as the male partners and patrons are left untouched.
There are several forms of prostitution. The “classical” Malaya women operate indoors. They stay inside their rooms and wait for men to visit them.
Prostitution involves barmaids, guesthouse workers, and promiscuous married women. These types of women have their own residences like the classical Malaya; however, they may or may not invite their clientele to their places.
A new form of umalaya has emerged in Tanzania in the late 1990s, nicknamed Uchangu Doa (the person is nicknamed Changu Doa or CD. The name comes from a species of fish from the Indian Ocean. Payment for services is negotiable and depends on the duration of the service, the economic and social status of the customer, status of the urban area, the location where the CD was encountered, time of the night, and education level of the CD. The longer the duration of services, the higher the price. CDs operate in large or well-known urban areas like Dar es Salaam, Arusha, or Dodoma.
The kind of prostitutions which is prohibited by Tanzania penal Code is earning trough prostitutions.That,implies only those who gain money out of commercial sex are liable under the law. The Penal code prohibits earnings through prostitutions according to sections 146-148.This is among the offences categorized as offences against morality.
2. Homosexuality
In Tanzania, sex acts between men are illegal, and carry a penalty of Life imprisonment. Sex acts between women are not mentioned in Tanzanian law. In particular, sections 154 to 157 of the Penal Code criminalize sexual activity between men, stipulating a maximum sentence of 14 years in prison; Sexual acts between women are not mentioned in the Penal Code.
(1) Any person who- (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years. (2) Where the offence, under subsection (1) of this section is committed to a child under the age of ten years the offender shall be sentenced to life imprisonment.
Even the Law of Marriage Act of 1971 section 9 recognizes only one type of marriage, that is, marriage between male and a female. And marriage between people of the same sex is not recognized by the law.
A law imposing a prison term of up to 25 years for anyone convicted of having gay sex has gone into effect in Zanzibar... gay men could be sentenced to a quarter century… lesbian sex is seven years. The gay sex sentence is the same as that for murder. The law went into effect this week after it was signed by president, Amani Karume. Zanzibar‘s parliament, in a rare show of unity, passed the bill unanimously in April. There is no difference between sodomy and murder said Sheikh Muhammed Said, a Zanzibar Islamic leader. This is what we have been aspiring for, he said of the penalties.
3. Challenges
The United Republic of Tanzania acceded to the International Convention on Civil and PoliticalRights1 (ICCPR) on 11 September, 1976. These violations are based solely on a person‘s actual or suspected sexual orientation. The question is whether this behavior by a state party to the ICCPR is a violation of articles 2(1), 26, and 17 and whether it is a failure of the duty and obligation of the government to protect its citizens with no partiality.
Article 17(1) states that people should be free from arbitrary or unlawful interference with his [or her] privacy; family, home or correspondence. Article 17(2) additionally mandates that the law must protect all people from such interferences. The Constitution of the United Republic also provides for the guaranteed privacy of its people,
16. – (1) every person is entitled to respect and protection of his person, the privacy of his ownperson, his family and of his matrimonial life, and respect and protection of hi residence and private communications.
4. Conclusion
According to the culture and morality in Tanzania prostitutions and homosexuality are totally not practiced, and if the law prohibits such kinds of sexual behaviour in Tanzania, then the country doesn’t violates any rights as provided by ICCPR and other legal instruments. The rights of people are respected if they conducts themselves not against the culture and morality of their nations. That is why; homesexuality and prostitutions have been categorized as offences against morality.
untold story of the ngorongoro district
Bleak future for Loliondo Maasai on advent of UAE hunting company
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, Ortello Business Corporation (OBC). Locals say the United Arab Emirates (UAE)-registered company is behind a recent sequence of events where hundreds of Maasai kraals (bomas) were set ablaze in order to protect OBC’s hunting operations, and the Maasai forcibly evicted. An on-the-spot survey showed at least three Field Force Unit (FFU) officers on guard at one of the OBC camp stations, two of them driving in a Nissan Patrol vehicle with private registration number T 179 AGX. 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. The villagers from Ololosokwan, Olarien Magaidur, Soit Sambu, Ngirgir, Arash, Maaloni and Karkarrmoru Villages are seeking government intervention to come to their rescue and their livestock. However, Ngorongoro District Commissioner Elias Wawi Lali justified the eviction exercise, arguing that the villagers have been destroying the environment and carrying out farming activities along the wildlife migratory corridor - thus threatening the continued existence of wild beasts. Lali charged further that at the centre of controversy is a shortcoming in the laws governing the area. According to the DC: ?In 1959, Loliondo was declared a game-controlled area while Ngorongoro was declared a conservation area. Loliondo was allocated 41 per cent while Ngorongoro was allocated 59 per cent of the total land in the district. ?This meant that the land in Ngorongoro District is for wildlife purposes. But again in 1983, the villages within the district were also registered legally?which is the centre of the problem. ?The villages were registered while at the same time the law that declared Ngorongoro and Loliondo as conservation and controlled game areas respectively had not been amended or annulled.? The irony, however, is that even the DC’s own office and other government structures are situated within the game-controlled area, meaning that they could also be demolished at any time should the OBC deem it convenient. Speaking to THISDAY in Dar es Salaam yesterday, the Minister for Natural Resources and Tourism, Shamsha Mwangunga, said she will visit the area in the near future to assess the situation. ?I usually get varying views from the wananchi, government officials, and non-governmental organizations in the area?I will go to see for myself what is going on, so that we can come up with an amicable solution,? said the minister. According to the villagers, large groups of Arab royals and high-flying businessmen spend weeks in Loliondo each year, hunting antelopes, lions, leopards, and other wild animals. The commander of the eviction operation, Acting Inspector of Police Isaac Manoni, denied claims that members of the FFU raped a local woman during the exercise, but admitted that the force deployed to handle the operation had no female officer on board. ?We did not have any female officers during the operation, simply because we never expected a confrontation with the villagers,? Manoni said. On her part, Loliondo local councillor (Special Seats) Tina Timan said the eviction operation ?disturbed us very much psychologically.? She said the local community has looked after the wild animals and the surrounding environment for decades, and ?it is not true that the villagers have encroached the game controlled area.? Tina called on the government to consider the plight of the Maasai pastoralists, saying the area from which they have been evicted is the only one with grazing land and water to feed their livestock ?particularly at this time when the whole district is faced with drought.? ?No one talks of killing the wild animals, but rather environment degradation. We should also be left to benefit from the wildlife which we have taken care of for years,? lamented the councillor. An OBC official, said by locals to be the camp manager at one of the company’s sites in the area, declined to either identify himself or clarify on the issues brought up by the locals.
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, Ortello Business Corporation (OBC). Locals say the United Arab Emirates (UAE)-registered company is behind a recent sequence of events where hundreds of Maasai kraals (bomas) were set ablaze in order to protect OBC’s hunting operations, and the Maasai forcibly evicted. An on-the-spot survey showed at least three Field Force Unit (FFU) officers on guard at one of the OBC camp stations, two of them driving in a Nissan Patrol vehicle with private registration number T 179 AGX. 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. The villagers from Ololosokwan, Olarien Magaidur, Soit Sambu, Ngirgir, Arash, Maaloni and Karkarrmoru Villages are seeking government intervention to come to their rescue and their livestock. However, Ngorongoro District Commissioner Elias Wawi Lali justified the eviction exercise, arguing that the villagers have been destroying the environment and carrying out farming activities along the wildlife migratory corridor - thus threatening the continued existence of wild beasts. Lali charged further that at the centre of controversy is a shortcoming in the laws governing the area. According to the DC: ?In 1959, Loliondo was declared a game-controlled area while Ngorongoro was declared a conservation area. Loliondo was allocated 41 per cent while Ngorongoro was allocated 59 per cent of the total land in the district. ?This meant that the land in Ngorongoro District is for wildlife purposes. But again in 1983, the villages within the district were also registered legally?which is the centre of the problem. ?The villages were registered while at the same time the law that declared Ngorongoro and Loliondo as conservation and controlled game areas respectively had not been amended or annulled.? The irony, however, is that even the DC’s own office and other government structures are situated within the game-controlled area, meaning that they could also be demolished at any time should the OBC deem it convenient. Speaking to THISDAY in Dar es Salaam yesterday, the Minister for Natural Resources and Tourism, Shamsha Mwangunga, said she will visit the area in the near future to assess the situation. ?I usually get varying views from the wananchi, government officials, and non-governmental organizations in the area?I will go to see for myself what is going on, so that we can come up with an amicable solution,? said the minister. According to the villagers, large groups of Arab royals and high-flying businessmen spend weeks in Loliondo each year, hunting antelopes, lions, leopards, and other wild animals. The commander of the eviction operation, Acting Inspector of Police Isaac Manoni, denied claims that members of the FFU raped a local woman during the exercise, but admitted that the force deployed to handle the operation had no female officer on board. ?We did not have any female officers during the operation, simply because we never expected a confrontation with the villagers,? Manoni said. On her part, Loliondo local councillor (Special Seats) Tina Timan said the eviction operation ?disturbed us very much psychologically.? She said the local community has looked after the wild animals and the surrounding environment for decades, and ?it is not true that the villagers have encroached the game controlled area.? Tina called on the government to consider the plight of the Maasai pastoralists, saying the area from which they have been evicted is the only one with grazing land and water to feed their livestock ?particularly at this time when the whole district is faced with drought.? ?No one talks of killing the wild animals, but rather environment degradation. We should also be left to benefit from the wildlife which we have taken care of for years,? lamented the councillor. An OBC official, said by locals to be the camp manager at one of the company’s sites in the area, declined to either identify himself or clarify on the issues brought up by the locals.
Wednesday, August 26, 2009
IHL ESSAY
INTERNATIONAL COMMITTEE OF THE RED CROSS
7TH ANNUAL ESSAY COMPETION FOR THE EAST AFRICA UNIVERSITY LAW STUDENTS.
UNIVERSITY OF DAR ES SALAAM SCHOOL OF LAW (FORMERLY FACULTY LAW)
P.O.BOX 35093.
DAR ES SALAAM
TANZANIA
NAME: PAUL ONESMO OLENGURUMWA
REG NO: 53890/T.2005
DATE 29/05/2009
QUESTION
DISCUSS THE INTERPLAY BETWEEN INTERNATIONAL HUMANITARIAN LAW AND OTHER LEGAL REGIMES IN SITUATIONS OF VIOLENCE INCLUDING ARMED CONFLICTS.
TABLE OF CONTENTS.
Page
1.0 Abbreviations…………………………………………………………..I-II
2.0 International Legal Documents……………………………………… ..III-IV
3.0 General Introduction ………………………………………………… .1-2
4.0 Interplay between IHL And Human Rights…………………………… .3-7
5.0 Interplay between IHL And Refugee Law…………………………… 8-9
6.0 Interplay between IHL And International Criminal Law…………….. 10-12
7.0 IHL And Other International legal regimes…………………………. ..13-14
7.1 International Environmental…………………………………………. 13
7.2 International Customary Law…………………………………………. 14
8.0. Conclusion…………………………………………………………… 15
9.0 References
1. 0 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 1977
GCI Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, of 12 August 1949
GCII Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
of 12 August 1949
GCIII Geneva Convention relative to the Treatment of Prisoners of War, of
12 August 1949
GCIV Geneva Convention relative to the Protection of Civilian Persons in
Time of War, of 12 August 1949
CRC Convention on the Rights of the Child, United Nations, 20/11/
1989
1899 Hague Declaration Declaration concerning the Prohibition of Using Bullets which
Expand or Flatten Easily in the Human Body (International Peace
Conference, The Hague, 1899)
1925 Geneva Protocol Geneva Protocol of 17 June 1925 for the Prohibition of the Use in
War of Asphyxiating, Poisonous or other Gases and of
Bacteriological Methods of Warfare
1954 CCP Convention for the Protection of Cultural Property in the Event of
Armed Conflict, of 14 May 1954
ICCPR International Covenant on Civil and Political Rights of 1966
ICTY Statute Statute of the International Criminal Tribunal for the former
Yugoslavia
ICTR Statute Statute of the International Criminal Tribunal for Rwanda
ICL International Criminal law
IHL International Humanitarian Law
ICRC International Committee of the Red Cross
ICC Statute Rome Statute of the International Criminal Court, 17 July 1998
1999 CCP Optional Protocol to the 1954 Convention for the Protection of
Cultural Property in the Event of Armed Conflict, 26 March 1999
IAC International Armed Conflict
ICJ International court of Justice
NIAC Non international armed Conflict
SCSL Statute Statute of the Special Court for Sierra Leone, 16 January 2002
UDHR Universal Declaration of Human Rights, 1948
UNHCR United Nations High Commission for Refugees
UN United Nation
2.0 List of international legal instruments
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
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 1977
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, of 12 August 1949
Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
of 12 August 1949
Geneva Convention relative to the Treatment of Prisoners of War, of
12 August 1949
Geneva Convention relative to the Protection of Civilian Persons in
Time of War, of 12 August 1949
Convention on the Rights of the Child, United Nations, 20/11/
1989
Declaration concerning the Prohibition of Using Bullets which
Expand or Flatten Easily in the Human Body (International Peace
Conference, The Hague, 1899)
Geneva Protocol of 17 June 1925 for the Prohibition of the Use in
War of Asphyxiating, Poisonous or other Gases and of
Bacteriological Methods of Warfare
Convention for the Protection of Cultural Property in the Event of
Armed Conflict, of 14 May 1954
International Covenant on Civil and Political Rights of 1966
Statute of the International Criminal Tribunal for the former
Yugoslavia
Statute of the International Criminal Tribunal for Rwanda
15.Rome Statute of the International Criminal Court, 17 July 1998
16 Optional Protocols to the 1954 Convention for the Protection of
Cultural Property in the Event of Armed Conflict, 26 March 1999
International Armed Conflict
17. Statute of the Special Court for Sierra Leone, 16 January 2002
18. Universal Declaration of Human Rights, 1948
19. 1980 convention on prohibitions or restriction on the use of certain weapons, which may be deemed excessively injurious, or to indiscriminative effects. Geneva 1980
20. The convention against torture The Convention Against Torture and Other Cruel and Inhuman and degrading treatment or Punishment of 1984
3.0 General 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]
IHL also known as the law of armed conflicts or the law of war is the body of rules which, in wartime protects persons who are not or no longer participating in the hostilities. It limits the methods and means of warfare. The two branches of IHL draw their names from the cities where each was initially codified. But after establishment of additional protocols of 1977 the two branches wee combined, now that distinction is of merely historical and didactic value.
The law of Geneva was designed to safeguard the civilians and military personnel who no longer take part in hostility also known as While the law of The Hague establishes the rights and obligations of belligerents in the conduct of hostility, military operations and limits the means of harming the enemy. Currently the four Geneva conventions[2] and their additional protocols of 1977[3], 1980[4] and protocol of 2006[5] are the main principal instruments of IHL
Objectives of IHL
Restricts the right of the parties to a conflict to use the means and methods of warfare of their choice
Protects persons and property affected or liable to be affected by the conflict
Generally IHL was originally emerged as the branch of international law to care the wounded and sick at the time of war[6] IHL never work it self, there is general framework of relations between IHL and the other bodies of law .In this essay we shall discuss the way IHL interplay with branches of laws in violence situations. These branches are International refugee law, International Criminal law and International human rights law. My focus will base on protected persons, displaced persons, and deprivation of liberty, judicial guarantees, the use of force and Mechanisms for the implementation /enforcement and relief actions.
4.0 The interplay between IHL and Human Rights Law
International human rights law and IHL are two branches of International law with common purpose. Human rights law establishes rules for harmonious development of individual in society. The main purpose is to safeguard dignity.[7]
4.1 Application
It is form 1940’s after 1984 UDHR that protection under human rights and IHL began to overlap. The 1864 convention sought to protect the combatant from state of action or the combatant. Following World War II the general conventions were revised to extend the protections of humanitarian law in light of experience. Then those expansions began to overlap with emerging schemes being the protection of individuals.[8]
States have obligation under the human rights law to protect the citizens. This principle is implicitly in famous obiter dictum of ICJ in the Barcelona Traction Case in which it classifies under the obligation Erga Omnes (the rule concerning the basic rights of human being[9] But the same regime in constitutional law and international instrument after World war two came with derogation clauses where during serious civil unrest or insurgency constitutional guarantee are suspended or made inoperative.
It is certainly no coincidence that common Article 3 to GC contains some rights, which were later, formulated as non-derogable rights under the human rights conventions. GC were adopted one year after UDHR.Then under common article 3 binding force was given to those provisions of UDHR, which were considered to be essential under all circumstances.
Myren says, human rights which apply at all times have often influenced humanitarian law which applies only to situations of armed conflicts and common article 3 (commonly small convention within a large convention). This offers a prime illustration on this two legal regime interplay. These provisions in GC’s mirror those of UDHR.[10] which were negotiated at the same time in peace as well as in time of armed conflicts for the preservation of peace, human life and integrity. Then we can say common article 3 is core legislation on human rights law.
Protocol II to GC is mixture of human rights and IHL. Part 1,III and IV deals with armed conflicts while part II contain genuine human rights law. Protocol 2 supplements principle of humane treatment by providing fundamental guarantee Art 4 and 1.
The question to determine the intensity of armed conflicts or threshold for the applicability still remain unresolved by IHL, but by human rights law the non-derogable rights - continue to govern the acts of violence committed during armed conflicts
4.3 Enforcement Mechanisms
While human rights regimes adopted the systems of individual complaints by having human rights commission 1969 individual application were declared admissible in Europe and additional protocol of ICCPR of 1973. But the GC drafters were not much claver to think on how those conventions can be implemented. Article one common to all four Geneva conventions provide that “High contracting parties undertake to respect and to ensure respect for the prevention of convention.
Christine Cerna [11] says human rights regime is an integral system, human rights regimes are instruments designed to apply to all human being in war and in peace. The majority of the provision of the regional human rights instruments set forth primarily civil and political rights to be observed in time of peace, however thus doesn’t not exclude the fact that such regime also comprehend during wars.
1964 International human rights Commission of Jurists at the time headed by Mack Bride said, that whenever an internal conflicts or disturbance arises in any party of the world, the Secretary General of the United Nations or some other UN officials should send to the belligerents a notice of the provisions of the law of Nation as elaborated by GC as well as provisions of the UDHR.[12]
GCI - Art. 49: "The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article"
Once G.A.D. Draper said (1971) the 2 bodies of law have met and fusing together at some speed and speed that in number of practical instance the regime of human rights is setting the general direction and objectives for revision of the law of War. This can contemporarily be witnessed by emerging issues confronting IHL.We have peacekeeping operations and anti terrorism acts. USA operations in Afghanistan and Pakistan need multiple approaches to determine whether there is breach or violations of various rights.
Sean Mac Bride called for the body after tribunal with international criminal jurisdiction to receive complaints against violations of GC (supra at p 388). Then 1970 J.G second report on respect for Human rights in armed conflicts noted that in some instances, the protection of human rights instruments was greater than protection under GC [13] But Rosaly Higgins, says that not all human rights are jus Cogens and therefore permit of no derogation UDHR admit no derogation [14]
IHL doesn’t have permanent international penal tribunal/ specific Mandate to prosecute grave breaches of IHL, prosecutions are national-based. The historical evidence shows that states are unwilling to implement the general convention and since the mechanism of protecting power remains key to implementation of GC a case study the acts of Government of Sudan to prohibit humanitarian actictivies to victims of NIAC, inter government human rights organizations may substitute for neutral states. Therefore regional intergovernmental human rights bodies appear to be the appropriate and logical institutions to serve as protecting powers cooperate with the parties to an armed conflicts and the supervise the application of the GC.
These human rights bodies also have the necessary autonomy and independence to integrate the norms of human rights, international law and IHL into one coherent, integral system, which protect the rights of the individuals in war and in peace.
4.4 Treatment Protected persons like Combatants, Civilians and Prisoners Of War.
Under this role IHL and Human rights complement each other, almost in every point. What IHL prohibit or guarantee is purely what human rights law does. All persons take place in conflict shall remain to have status of prisoners of wars .Any person took part in hostility not falling in the category of prisoners of wars and not recognized and benefit from GC IV, shall be protected by Article 75 of protocol 1
Protection of civilian and humane treatment of prisoners of war or those who fall not under that category is highly preached by IHL conventions and Human rights International instruments like UDHRA, ICSPR and convention against torture[15]. For is instance the case of Guantanamo treating prisoners of the so-called war on terror they way they do, is purely violations of human rights law and IHL. And both regimes should condemn such kind of treatment given to prisoners of war on terror. Human rights law remains essential in order to ensure their legal protection.
Legality of these self-help or Measures in relation to the right of recourse to force (Jus ad bellum) must be governed not only by UN-Charter but also human rights law
Jean Pictet[16] Says that internationally, can be put into one port deals with human law covering both law of armed conflicts and human rights law. To show the way they interplay Pictet formulated fundamental principles of human law, which include both IHL and human rights. For instance military necessity and the maintenance of public order must always be compatible with respect for the human person. Another principal common to both IHL and human rights is the right to of life of individual must be respected and her integrity, also the principle of torture degrading or inhuman punishment are forbidden by protocol I Art 75 and the 1984 convention against torture. Article 2 of P 11, 10 AND 75 all people must be treated equally. The protocol has a number of provisions for speed protection of women and children, which human convents do as well.
Oraa says, there are four rights that are non-derogable, these are right to life, the right to be free from torture and slavery and principle of non retroactive of penal laws.[17]
The principle is proper to the victims of conflicts (law of Geneva) art 27 para 3 of GC I and Art 64, Para 1 of A P I and Art 70 allow humanitarian and impartial relief actions, this is where the law of refugee comes in the victims of conflicts should be provided with an international protector once they no longer have natural protector
Terrorism acts can occur during peace time and like what happened in USA 2001 and 2008 in India and as well as during armed conflicts. Then IHL can apply only during armed conflicts and human rights law may apply during peacetime.
5.0 Interplay between IHL and refugee law
What is refugee law? Refugee law can be defined to be the branch of international law that deals with the people of have lost protection of their government and have left their homes due to well founded fear created by situations of violence. In 1951 International convention on the status of refugee was introduced.
Art 1 A (2) of the 1951 UN Convention relating to the status of refugees, Person who owing to a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or due to such fear is unwilling to avail himself of the protection of that country[18]
Approximately 1.5 millions Hutus mostly civilians refugees, Fled into Zaire in July 1994, this then created immense humanitarian crisis. Then UN Rwanda emergence office had to summon UN –Agencies and International organizations like ICRC for humanitarian assistance.
The interplay between IHL and international refugee law can mainly be traced when the conflicts produced displaced people. For instance the case of refugees situated on the territory of a country in conflict or on borders.
IHL conventions seek to protect and care of people during armed conflicts particularly those who lost the protections of contracted state at the same footage refugee law cares those who lost protection of their government due to fear of violence.
IHL provides proper treatment of civilians while refugee protects the displaced[19] People whom, before the beginning of hostilities were regarded as stateless persons or refugees under the relevant laws shall be protected persons within part II and III of GC IV.
IHL aims at protecting victims of armed conflicts. Internal displacement due to armed conflicts falls within the scope of IHL.IDPs being victims of armed conflicts are therefore protected by IHL.IDPs are protected in IHL largely as civilians as well protected by refugee law as people who lost protection of their government.[20]
Refugee law becomes useful to IHL particularly when they want to grant an asylum seeker a legal status as a refugee. They have to make sure that there is violence at the country of origin. In doing so refugee organizations like UNHCR and ICRC have to find them selves working complimentarily.
The complementarity can mainly be noted where branch of law become weak to meet it objectives or similar objectives. For instance Refugee law aims to see all people displaced during conflicts are well gathered and receive humanly treatments, but on the other hand Refugee law cant trace or get proper records of missing persons or family reunification without depending on IHL. (ICRC tracing Agency)
This coordinated approach is useful especially when it comes that one branch is weak on a certain issue. Refugee law complements IHL provisions stated in Geneva Conventions and additional protocols on the rights of civilians, in particular the displaced persons in time of violence.
6.0 Interplay between IHL and International Criminal Law
When it comes to the questions how to treat those who violates Geneva conventions then both National and Internationals criminal law comes in. Most of the time in war transformed some of crimes into legitimate forms of conduct and suspend the application of criminal law.
It is time of war and not time of peace that the most numerous and most serous violation take place and go un punished. The GC provide for imposition of period sanctions against person committing grave breaches of their provision and thus include both at local and international levels. This is how then IHL interplay with ICL.
The charter Article 6(c) formulation was, the 1st instance in positive international criminal law which specific forms of crimes against humanity were used but the notions of protecting civilians in time of war was historically well established by International regulation of armed conflicts.[21]
Crimes against humanity can be committed against civilian’s population; both ICL and the laws of war and customs of war can have direct response. Many war crimes are crimes against humanity and many crimes against humanity are war crimes. Justice without force is important, force without Justice is tyrannical. Justice without force is infringed because there is always the mean, one must therefore combine justice and force and therefore make strong what is rights and make right what is wrong B. Pascal provisional letter (1991).
The evolution of IHL can never discussed, without taking into concern criminal responsibility for instance individual criminal responsibility is the result of IHL development. It is form the charter of Nuremberg and Tokyo, that the IHL and ICL was found to be of every important to each other. IHL provide rules and regulation to be adhered during the time of conflicts but when the those rules are breached then ICL and it is outstanding body of enforcement comes and prosecute those who committed war crimes and other violations of international criminal law and IHL. ICTR, SCSL are recent development that has shown that ICL and IHL are inseparable. Most of the time IHL became source of ICL as most of the crimes in ICC Rome Statute originate from GC’S
Therefore the Nuremberg and Tokyo charter which intended to deal with violation of laws of war came to be useful tool for individual enforcement of ICL. The seeds of the charter crimes against humanity were planted in the Hague convention of 1899 on the Laws and customs of war and the 4TH Hague convention 1907.[22]
The ICRC has always supported the creation of an international tribunal with jurisdiction over the most serious international crimes. For the ICRC, an international tribunal has the capacity to act as a catalyst and as an incentive for national courts to fulfill their obligation to prosecute those who commit war crimes (see for instance ICTR and Gachacha courts in Rwanda). It therefore welcomed the establishment of the ICC in July 1998. The ICC operates on the “complementarity principle,” which means it will act only if domestic courts are unwilling or unable to do so.
The ICRC was very active in the preparatory work leading to the Rome Statute (Statute of the ICC) and took part in drawing up the Elements of Crimes that the States Parties adopted in September 2000. These Elements of Crimes detail the definitions of genocide, crimes against humanity and war crimes that the ICC Statute contains[23]The ICC is a permanent court with worldwide jurisdiction for trying individual charged with the most serious breaches of IHL, ICL and Human Rights law. (Art 8 of Rome statute)
The work of the ICC and that of the ICRC constitute alternative approaches to preventing IHL violations, approaches we see as complementary. While the ultimate objectives are similar, the tools are quite different. The ICC prosecutes and sanctions, whereas the ICRC promotes respect for IHL through confidential dialogue and persuasion.
In addition to having supported the establishment of the Court, the ICRC promotes the ratification and implementation of the ICC Statute through its Advisory Service. In practical terms, the ICRC uses the ICC Statute when assisting States in their efforts to adopt and implement effective domestic measures for the prosecution of war crimes.[24] One very positive element of the ICC Statute is that it includes quite a comprehensive list of war crimes, covering both international and non-international armed conflicts. This is the first time that such a list has been enshrined in an international instrument.
Security Council under chapter VII of UN Charter has Power to establish an international tribunal. Antonio Casses former President of ICTY expanded the traditional of establishment of such Tribunal by treaty was discarded as being too slaw. (Art 39,41 and 48 of UN charter) The Security Council through UNHCR was convinced that the massive flow of refugee and remnants of Hutu militias to neighboring country was the threat to International peace.[25] Therefore because Security Council was not legislative body, then it authorized the Tribunal to applying existing IHL applicable in NIAC’S, these are like Common Art 3, A.P II and others were the Genocide Convention and Nuremberg Charter (charter on military Tribunal 1945
7.1 IHL and International Environmental Law.
Military have deliberately harmed the environment as the wartimes strategy Thought the 24th century, the scope for destruction increased with development of weapons of mass destruction. This was evidenced during Vietnam war when wide spread use of chemical defoliants destroyed entire ecosystem and lead to public health concern in US and in Vietnam due to exposure of individual to the chemical used. This is ecological quench of armed conflicts (UNESCO)[26].
This needs another legal regime to mitigate military actions to contaminate water, air and soil. Also form large number of refugee who end up forming huge camps, hence environmental degradation as what happened in Tanzania refugees zones.[27] ICRC has once asserted that International Environmental Law remains generally applicable[28] during armed hostilities. This can mainly be referred to the case In ICTY.
Also Art 35(3) of AP I prohibits the employment of methods or means or warfare intended, or may be expected to cause widespread and severe damage to the environment. IHL and Environmental law prohibit any act that becomes a threat to environment including the use of weapons of widespread damage they as well prohibit the destruction of cultural objects.[29]
7.2 IHL and International Customary Law
According to the ICJ statute on of primary sources of International law is Custom as evidence of general principle accepted as law .The custom must be practice, usage which is required (opinion juris cive necessitates) That is practice must be carried out by the convictions. Indeed in the law of war, custom is to be found more in acts by states and non-states actors.
Therefore in IHL Baxter Paradox is mainly applicable. This Paradox states the rationale behind the practice of non-party states is more reliable in ascertaining custom, because the party states may be following a practice in pursuit of treaty obligation.[30] But in IHL, according to Meron the formation of custom in humanitarian fields, the practices of parties as well as non-parties apply [31]
Jus cogens and Customary international law have great role to play in IHL.Genocide is now universally deemed as jus cogens and it is violations imposes on states certain duties and obligations Erga Omnes [32]Nicaragua case[33] simultaneously strengthens the importance of practice as one two elements necessary for the formation of international law.
8.0 Conclusion
Despite the fact that IHL develops and new instruments emerge every year, the complimentarity between IHL and other legal regimes can never be avoided. Contemporary or new emerging types of conflicts and other serious violation of human rights and laws of war need a multiple approach to combat. Interplay between IHL and legal regimes like ICL, refugee law, International customary law and international environmental law are of every crucial point in determine which and how deferent legal regimes can be suitable to end impunity and maintain peace and justice.
9.0 References:
Bassiimi,.Cheri M. (1992) Crimes Against Humanity in International Criminal Law Mertinus Nijhoff
Cerna,Christina .Human Rights in armed conflicts implementation of international humanitarian law norms by regional intergovernmental human rights bodies
Frits, K Yves, Sandoz (Ed) Implementation of international humanitarian law Martin Nijhof Publishers..(1989).
GIA.D Draper (1971) the relationship between human rights regime and the law of armed conflict, 11YBHR: 19.
Hewif, W.E. (1971) Respect Of Human Rights In Armed Conflicts. at 43 (in 4 NYV).
Higgins, R (1971). Derogation under human rights treaties BYIL: 281 at 282. Dunant, Hendry (1986) .A Memory of Selferin
ICRC (19990.Hand Book For Parliamentarian. Respect for International humanitarian Law No: 1
K. Suter, (1984) An International law of Guerilla warfare: The Global Politics of law Making London, P.3p
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua vs. USA). Merits, ICJ Report 1986 (Judgment of the 27 June)
Macalister, Smith Peter. (1985) International Humanitarian Assistance, Disaster, Relief Actions in International and Organization.Martinus Nijhoff.
Meron, T. (1987) Human Rights and Humanitarian Law. Growing Convergence. Cambridge
_________(1987) human rights in International strife: Their International Protection.
__________(1989). Human Rights and Humanitarian Law Norms. Oxford
OCHA (1999) Hand Book For Applying the Guidelines Principle of Internal Displaced Persons (ADP’S).
Oraa, J. (Ed). Human Rights in State of Emergence in International Law. Clarendon Press, Oxford, 1996
Paul, J.Monarrella (2000) Justice in Africa, Rwanda Genocide. It’s Courts and The UN Criminal Tribunal, Ashgate.Florida USA.
Pictet, Jean (1975). Humanitarian law and the protection of war victims. Leyden: Sijthoff.
Pictet, Jean (1985). Development and Principles of International Humanitarian Law. Martinus Nijhoff
.
__________ Commentary Vol. III (1960). 20
___________ Commentary Vol I (1952) at87
___________ Commentary Vol IV (1952) at 87
_________(1987) human rights in International law
Report of the Secretary General. A/8052, respect for human rights in armed conflicts 18 Sept 1970
West Arhur.Enviromental Protection from Wartime Damage. The role of International in N.P Gleiditsch, Ed., Conflict and Environment (1997) Pp 535-38
.
[1] ICRC Publications.
[2] 1949 Geneva Conventions (I – IV)
[3] 1977 1st and 2nd Additional Protocols to GCs
[4] 1980 convention on prohibitions or restriction on the use of certain weapons, which may be deemed excessively injurious, or to indiscriminative effects. Geneva 1980
[5] A P III on the use of ICRC Emblem
[6] Dunant, Hendry (1986) .A Memory of Selferino.
[7] ICRC (1999). Hand Book For Parliamentarian. Respect for International humanitarian, p 11
[8] Frits, K. Yves, Sandoz (Ed) Implementation of international humanitarian law.
[9] ICJ, Rep.1970, 34 at 32 .p 235.
[10] Meron, T. (1987) Human Rights and Humanitarian Law. Growing Convergence. Cambridge
[11] Cerna, Christina M. Human Rights in armed conflicts implementation of international humanitarian law norms by regional intergovernmental human rights bodies .p32
[12] Ibid
[13] Report of the Secretary General. A/8052, respect for human rights in armed conflicts 18 Sept 1970
[14] Higgins, R (1971). Derogation under human rights treaties.
[15] The convention against torture The Convention Against Torture and Other Cruel and Inhuman and degrading treatment or Punishment of 1984
[16] Pictet, Jean (1985). Development and Principles of International Humanitarian Law.
[17] Oraa, J. (Ed). Human Rights in State of Emergence in International Law.
[18] Art 1 A (2) of the 1951 UN Convention relating to the status of refugee
[19] The UN guiding principles on Internal displacement
(Art 2) "Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflicts, situations of generalized violence, violations of human rights or natural or human made disasters and who have crossed an internationally recognized state border
[20] OCHA (1999) Hand Book For Applying the Guidelines Principle of Internal Displaced Persons (ADP’S).
[21] Bassiuni, Cherif M ( 1992) Crimes Against Humanity in International Criminal.
[22] The Charter Of The International Military Tribunal For The Trial Of The Major War Criminals (1945) Article 6 And 5 Of Tokyo Charter.
[23] ICRC Publications
[24] Source ICRC
[25] Paul (2000) p 42
[26] UNEP (2002) International Environmental Law, (3rd Ed) Page 407
[27] See. Arthur, Westing. Enviromental protection from wartime damage.
[28] Agenda 21,para.39.6
[29] 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 14 May 1954
[30] Kwakwa, Edward. (1992) The International Law of Armed conflicts: Personal and Material Field of Application .M.N
[31] Ibid p 33
[32] Advisory Opinion of the International Court of Justice on Reservation to Genocide Convention 1951 ICJ.15
[33] Nicaragua vs. USA. Merits, ICJ Report 1986 (Judgment of the 27 June)
7TH ANNUAL ESSAY COMPETION FOR THE EAST AFRICA UNIVERSITY LAW STUDENTS.
UNIVERSITY OF DAR ES SALAAM SCHOOL OF LAW (FORMERLY FACULTY LAW)
P.O.BOX 35093.
DAR ES SALAAM
TANZANIA
NAME: PAUL ONESMO OLENGURUMWA
REG NO: 53890/T.2005
DATE 29/05/2009
QUESTION
DISCUSS THE INTERPLAY BETWEEN INTERNATIONAL HUMANITARIAN LAW AND OTHER LEGAL REGIMES IN SITUATIONS OF VIOLENCE INCLUDING ARMED CONFLICTS.
TABLE OF CONTENTS.
Page
1.0 Abbreviations…………………………………………………………..I-II
2.0 International Legal Documents……………………………………… ..III-IV
3.0 General Introduction ………………………………………………… .1-2
4.0 Interplay between IHL And Human Rights…………………………… .3-7
5.0 Interplay between IHL And Refugee Law…………………………… 8-9
6.0 Interplay between IHL And International Criminal Law…………….. 10-12
7.0 IHL And Other International legal regimes…………………………. ..13-14
7.1 International Environmental…………………………………………. 13
7.2 International Customary Law…………………………………………. 14
8.0. Conclusion…………………………………………………………… 15
9.0 References
1. 0 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 1977
GCI Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, of 12 August 1949
GCII Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
of 12 August 1949
GCIII Geneva Convention relative to the Treatment of Prisoners of War, of
12 August 1949
GCIV Geneva Convention relative to the Protection of Civilian Persons in
Time of War, of 12 August 1949
CRC Convention on the Rights of the Child, United Nations, 20/11/
1989
1899 Hague Declaration Declaration concerning the Prohibition of Using Bullets which
Expand or Flatten Easily in the Human Body (International Peace
Conference, The Hague, 1899)
1925 Geneva Protocol Geneva Protocol of 17 June 1925 for the Prohibition of the Use in
War of Asphyxiating, Poisonous or other Gases and of
Bacteriological Methods of Warfare
1954 CCP Convention for the Protection of Cultural Property in the Event of
Armed Conflict, of 14 May 1954
ICCPR International Covenant on Civil and Political Rights of 1966
ICTY Statute Statute of the International Criminal Tribunal for the former
Yugoslavia
ICTR Statute Statute of the International Criminal Tribunal for Rwanda
ICL International Criminal law
IHL International Humanitarian Law
ICRC International Committee of the Red Cross
ICC Statute Rome Statute of the International Criminal Court, 17 July 1998
1999 CCP Optional Protocol to the 1954 Convention for the Protection of
Cultural Property in the Event of Armed Conflict, 26 March 1999
IAC International Armed Conflict
ICJ International court of Justice
NIAC Non international armed Conflict
SCSL Statute Statute of the Special Court for Sierra Leone, 16 January 2002
UDHR Universal Declaration of Human Rights, 1948
UNHCR United Nations High Commission for Refugees
UN United Nation
2.0 List of international legal instruments
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
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 1977
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, of 12 August 1949
Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
of 12 August 1949
Geneva Convention relative to the Treatment of Prisoners of War, of
12 August 1949
Geneva Convention relative to the Protection of Civilian Persons in
Time of War, of 12 August 1949
Convention on the Rights of the Child, United Nations, 20/11/
1989
Declaration concerning the Prohibition of Using Bullets which
Expand or Flatten Easily in the Human Body (International Peace
Conference, The Hague, 1899)
Geneva Protocol of 17 June 1925 for the Prohibition of the Use in
War of Asphyxiating, Poisonous or other Gases and of
Bacteriological Methods of Warfare
Convention for the Protection of Cultural Property in the Event of
Armed Conflict, of 14 May 1954
International Covenant on Civil and Political Rights of 1966
Statute of the International Criminal Tribunal for the former
Yugoslavia
Statute of the International Criminal Tribunal for Rwanda
15.Rome Statute of the International Criminal Court, 17 July 1998
16 Optional Protocols to the 1954 Convention for the Protection of
Cultural Property in the Event of Armed Conflict, 26 March 1999
International Armed Conflict
17. Statute of the Special Court for Sierra Leone, 16 January 2002
18. Universal Declaration of Human Rights, 1948
19. 1980 convention on prohibitions or restriction on the use of certain weapons, which may be deemed excessively injurious, or to indiscriminative effects. Geneva 1980
20. The convention against torture The Convention Against Torture and Other Cruel and Inhuman and degrading treatment or Punishment of 1984
3.0 General 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]
IHL also known as the law of armed conflicts or the law of war is the body of rules which, in wartime protects persons who are not or no longer participating in the hostilities. It limits the methods and means of warfare. The two branches of IHL draw their names from the cities where each was initially codified. But after establishment of additional protocols of 1977 the two branches wee combined, now that distinction is of merely historical and didactic value.
The law of Geneva was designed to safeguard the civilians and military personnel who no longer take part in hostility also known as While the law of The Hague establishes the rights and obligations of belligerents in the conduct of hostility, military operations and limits the means of harming the enemy. Currently the four Geneva conventions[2] and their additional protocols of 1977[3], 1980[4] and protocol of 2006[5] are the main principal instruments of IHL
Objectives of IHL
Restricts the right of the parties to a conflict to use the means and methods of warfare of their choice
Protects persons and property affected or liable to be affected by the conflict
Generally IHL was originally emerged as the branch of international law to care the wounded and sick at the time of war[6] IHL never work it self, there is general framework of relations between IHL and the other bodies of law .In this essay we shall discuss the way IHL interplay with branches of laws in violence situations. These branches are International refugee law, International Criminal law and International human rights law. My focus will base on protected persons, displaced persons, and deprivation of liberty, judicial guarantees, the use of force and Mechanisms for the implementation /enforcement and relief actions.
4.0 The interplay between IHL and Human Rights Law
International human rights law and IHL are two branches of International law with common purpose. Human rights law establishes rules for harmonious development of individual in society. The main purpose is to safeguard dignity.[7]
4.1 Application
It is form 1940’s after 1984 UDHR that protection under human rights and IHL began to overlap. The 1864 convention sought to protect the combatant from state of action or the combatant. Following World War II the general conventions were revised to extend the protections of humanitarian law in light of experience. Then those expansions began to overlap with emerging schemes being the protection of individuals.[8]
States have obligation under the human rights law to protect the citizens. This principle is implicitly in famous obiter dictum of ICJ in the Barcelona Traction Case in which it classifies under the obligation Erga Omnes (the rule concerning the basic rights of human being[9] But the same regime in constitutional law and international instrument after World war two came with derogation clauses where during serious civil unrest or insurgency constitutional guarantee are suspended or made inoperative.
It is certainly no coincidence that common Article 3 to GC contains some rights, which were later, formulated as non-derogable rights under the human rights conventions. GC were adopted one year after UDHR.Then under common article 3 binding force was given to those provisions of UDHR, which were considered to be essential under all circumstances.
Myren says, human rights which apply at all times have often influenced humanitarian law which applies only to situations of armed conflicts and common article 3 (commonly small convention within a large convention). This offers a prime illustration on this two legal regime interplay. These provisions in GC’s mirror those of UDHR.[10] which were negotiated at the same time in peace as well as in time of armed conflicts for the preservation of peace, human life and integrity. Then we can say common article 3 is core legislation on human rights law.
Protocol II to GC is mixture of human rights and IHL. Part 1,III and IV deals with armed conflicts while part II contain genuine human rights law. Protocol 2 supplements principle of humane treatment by providing fundamental guarantee Art 4 and 1.
The question to determine the intensity of armed conflicts or threshold for the applicability still remain unresolved by IHL, but by human rights law the non-derogable rights - continue to govern the acts of violence committed during armed conflicts
4.3 Enforcement Mechanisms
While human rights regimes adopted the systems of individual complaints by having human rights commission 1969 individual application were declared admissible in Europe and additional protocol of ICCPR of 1973. But the GC drafters were not much claver to think on how those conventions can be implemented. Article one common to all four Geneva conventions provide that “High contracting parties undertake to respect and to ensure respect for the prevention of convention.
Christine Cerna [11] says human rights regime is an integral system, human rights regimes are instruments designed to apply to all human being in war and in peace. The majority of the provision of the regional human rights instruments set forth primarily civil and political rights to be observed in time of peace, however thus doesn’t not exclude the fact that such regime also comprehend during wars.
1964 International human rights Commission of Jurists at the time headed by Mack Bride said, that whenever an internal conflicts or disturbance arises in any party of the world, the Secretary General of the United Nations or some other UN officials should send to the belligerents a notice of the provisions of the law of Nation as elaborated by GC as well as provisions of the UDHR.[12]
GCI - Art. 49: "The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article"
Once G.A.D. Draper said (1971) the 2 bodies of law have met and fusing together at some speed and speed that in number of practical instance the regime of human rights is setting the general direction and objectives for revision of the law of War. This can contemporarily be witnessed by emerging issues confronting IHL.We have peacekeeping operations and anti terrorism acts. USA operations in Afghanistan and Pakistan need multiple approaches to determine whether there is breach or violations of various rights.
Sean Mac Bride called for the body after tribunal with international criminal jurisdiction to receive complaints against violations of GC (supra at p 388). Then 1970 J.G second report on respect for Human rights in armed conflicts noted that in some instances, the protection of human rights instruments was greater than protection under GC [13] But Rosaly Higgins, says that not all human rights are jus Cogens and therefore permit of no derogation UDHR admit no derogation [14]
IHL doesn’t have permanent international penal tribunal/ specific Mandate to prosecute grave breaches of IHL, prosecutions are national-based. The historical evidence shows that states are unwilling to implement the general convention and since the mechanism of protecting power remains key to implementation of GC a case study the acts of Government of Sudan to prohibit humanitarian actictivies to victims of NIAC, inter government human rights organizations may substitute for neutral states. Therefore regional intergovernmental human rights bodies appear to be the appropriate and logical institutions to serve as protecting powers cooperate with the parties to an armed conflicts and the supervise the application of the GC.
These human rights bodies also have the necessary autonomy and independence to integrate the norms of human rights, international law and IHL into one coherent, integral system, which protect the rights of the individuals in war and in peace.
4.4 Treatment Protected persons like Combatants, Civilians and Prisoners Of War.
Under this role IHL and Human rights complement each other, almost in every point. What IHL prohibit or guarantee is purely what human rights law does. All persons take place in conflict shall remain to have status of prisoners of wars .Any person took part in hostility not falling in the category of prisoners of wars and not recognized and benefit from GC IV, shall be protected by Article 75 of protocol 1
Protection of civilian and humane treatment of prisoners of war or those who fall not under that category is highly preached by IHL conventions and Human rights International instruments like UDHRA, ICSPR and convention against torture[15]. For is instance the case of Guantanamo treating prisoners of the so-called war on terror they way they do, is purely violations of human rights law and IHL. And both regimes should condemn such kind of treatment given to prisoners of war on terror. Human rights law remains essential in order to ensure their legal protection.
Legality of these self-help or Measures in relation to the right of recourse to force (Jus ad bellum) must be governed not only by UN-Charter but also human rights law
Jean Pictet[16] Says that internationally, can be put into one port deals with human law covering both law of armed conflicts and human rights law. To show the way they interplay Pictet formulated fundamental principles of human law, which include both IHL and human rights. For instance military necessity and the maintenance of public order must always be compatible with respect for the human person. Another principal common to both IHL and human rights is the right to of life of individual must be respected and her integrity, also the principle of torture degrading or inhuman punishment are forbidden by protocol I Art 75 and the 1984 convention against torture. Article 2 of P 11, 10 AND 75 all people must be treated equally. The protocol has a number of provisions for speed protection of women and children, which human convents do as well.
Oraa says, there are four rights that are non-derogable, these are right to life, the right to be free from torture and slavery and principle of non retroactive of penal laws.[17]
The principle is proper to the victims of conflicts (law of Geneva) art 27 para 3 of GC I and Art 64, Para 1 of A P I and Art 70 allow humanitarian and impartial relief actions, this is where the law of refugee comes in the victims of conflicts should be provided with an international protector once they no longer have natural protector
Terrorism acts can occur during peace time and like what happened in USA 2001 and 2008 in India and as well as during armed conflicts. Then IHL can apply only during armed conflicts and human rights law may apply during peacetime.
5.0 Interplay between IHL and refugee law
What is refugee law? Refugee law can be defined to be the branch of international law that deals with the people of have lost protection of their government and have left their homes due to well founded fear created by situations of violence. In 1951 International convention on the status of refugee was introduced.
Art 1 A (2) of the 1951 UN Convention relating to the status of refugees, Person who owing to a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or due to such fear is unwilling to avail himself of the protection of that country[18]
Approximately 1.5 millions Hutus mostly civilians refugees, Fled into Zaire in July 1994, this then created immense humanitarian crisis. Then UN Rwanda emergence office had to summon UN –Agencies and International organizations like ICRC for humanitarian assistance.
The interplay between IHL and international refugee law can mainly be traced when the conflicts produced displaced people. For instance the case of refugees situated on the territory of a country in conflict or on borders.
IHL conventions seek to protect and care of people during armed conflicts particularly those who lost the protections of contracted state at the same footage refugee law cares those who lost protection of their government due to fear of violence.
IHL provides proper treatment of civilians while refugee protects the displaced[19] People whom, before the beginning of hostilities were regarded as stateless persons or refugees under the relevant laws shall be protected persons within part II and III of GC IV.
IHL aims at protecting victims of armed conflicts. Internal displacement due to armed conflicts falls within the scope of IHL.IDPs being victims of armed conflicts are therefore protected by IHL.IDPs are protected in IHL largely as civilians as well protected by refugee law as people who lost protection of their government.[20]
Refugee law becomes useful to IHL particularly when they want to grant an asylum seeker a legal status as a refugee. They have to make sure that there is violence at the country of origin. In doing so refugee organizations like UNHCR and ICRC have to find them selves working complimentarily.
The complementarity can mainly be noted where branch of law become weak to meet it objectives or similar objectives. For instance Refugee law aims to see all people displaced during conflicts are well gathered and receive humanly treatments, but on the other hand Refugee law cant trace or get proper records of missing persons or family reunification without depending on IHL. (ICRC tracing Agency)
This coordinated approach is useful especially when it comes that one branch is weak on a certain issue. Refugee law complements IHL provisions stated in Geneva Conventions and additional protocols on the rights of civilians, in particular the displaced persons in time of violence.
6.0 Interplay between IHL and International Criminal Law
When it comes to the questions how to treat those who violates Geneva conventions then both National and Internationals criminal law comes in. Most of the time in war transformed some of crimes into legitimate forms of conduct and suspend the application of criminal law.
It is time of war and not time of peace that the most numerous and most serous violation take place and go un punished. The GC provide for imposition of period sanctions against person committing grave breaches of their provision and thus include both at local and international levels. This is how then IHL interplay with ICL.
The charter Article 6(c) formulation was, the 1st instance in positive international criminal law which specific forms of crimes against humanity were used but the notions of protecting civilians in time of war was historically well established by International regulation of armed conflicts.[21]
Crimes against humanity can be committed against civilian’s population; both ICL and the laws of war and customs of war can have direct response. Many war crimes are crimes against humanity and many crimes against humanity are war crimes. Justice without force is important, force without Justice is tyrannical. Justice without force is infringed because there is always the mean, one must therefore combine justice and force and therefore make strong what is rights and make right what is wrong B. Pascal provisional letter (1991).
The evolution of IHL can never discussed, without taking into concern criminal responsibility for instance individual criminal responsibility is the result of IHL development. It is form the charter of Nuremberg and Tokyo, that the IHL and ICL was found to be of every important to each other. IHL provide rules and regulation to be adhered during the time of conflicts but when the those rules are breached then ICL and it is outstanding body of enforcement comes and prosecute those who committed war crimes and other violations of international criminal law and IHL. ICTR, SCSL are recent development that has shown that ICL and IHL are inseparable. Most of the time IHL became source of ICL as most of the crimes in ICC Rome Statute originate from GC’S
Therefore the Nuremberg and Tokyo charter which intended to deal with violation of laws of war came to be useful tool for individual enforcement of ICL. The seeds of the charter crimes against humanity were planted in the Hague convention of 1899 on the Laws and customs of war and the 4TH Hague convention 1907.[22]
The ICRC has always supported the creation of an international tribunal with jurisdiction over the most serious international crimes. For the ICRC, an international tribunal has the capacity to act as a catalyst and as an incentive for national courts to fulfill their obligation to prosecute those who commit war crimes (see for instance ICTR and Gachacha courts in Rwanda). It therefore welcomed the establishment of the ICC in July 1998. The ICC operates on the “complementarity principle,” which means it will act only if domestic courts are unwilling or unable to do so.
The ICRC was very active in the preparatory work leading to the Rome Statute (Statute of the ICC) and took part in drawing up the Elements of Crimes that the States Parties adopted in September 2000. These Elements of Crimes detail the definitions of genocide, crimes against humanity and war crimes that the ICC Statute contains[23]The ICC is a permanent court with worldwide jurisdiction for trying individual charged with the most serious breaches of IHL, ICL and Human Rights law. (Art 8 of Rome statute)
The work of the ICC and that of the ICRC constitute alternative approaches to preventing IHL violations, approaches we see as complementary. While the ultimate objectives are similar, the tools are quite different. The ICC prosecutes and sanctions, whereas the ICRC promotes respect for IHL through confidential dialogue and persuasion.
In addition to having supported the establishment of the Court, the ICRC promotes the ratification and implementation of the ICC Statute through its Advisory Service. In practical terms, the ICRC uses the ICC Statute when assisting States in their efforts to adopt and implement effective domestic measures for the prosecution of war crimes.[24] One very positive element of the ICC Statute is that it includes quite a comprehensive list of war crimes, covering both international and non-international armed conflicts. This is the first time that such a list has been enshrined in an international instrument.
Security Council under chapter VII of UN Charter has Power to establish an international tribunal. Antonio Casses former President of ICTY expanded the traditional of establishment of such Tribunal by treaty was discarded as being too slaw. (Art 39,41 and 48 of UN charter) The Security Council through UNHCR was convinced that the massive flow of refugee and remnants of Hutu militias to neighboring country was the threat to International peace.[25] Therefore because Security Council was not legislative body, then it authorized the Tribunal to applying existing IHL applicable in NIAC’S, these are like Common Art 3, A.P II and others were the Genocide Convention and Nuremberg Charter (charter on military Tribunal 1945
7.1 IHL and International Environmental Law.
Military have deliberately harmed the environment as the wartimes strategy Thought the 24th century, the scope for destruction increased with development of weapons of mass destruction. This was evidenced during Vietnam war when wide spread use of chemical defoliants destroyed entire ecosystem and lead to public health concern in US and in Vietnam due to exposure of individual to the chemical used. This is ecological quench of armed conflicts (UNESCO)[26].
This needs another legal regime to mitigate military actions to contaminate water, air and soil. Also form large number of refugee who end up forming huge camps, hence environmental degradation as what happened in Tanzania refugees zones.[27] ICRC has once asserted that International Environmental Law remains generally applicable[28] during armed hostilities. This can mainly be referred to the case In ICTY.
Also Art 35(3) of AP I prohibits the employment of methods or means or warfare intended, or may be expected to cause widespread and severe damage to the environment. IHL and Environmental law prohibit any act that becomes a threat to environment including the use of weapons of widespread damage they as well prohibit the destruction of cultural objects.[29]
7.2 IHL and International Customary Law
According to the ICJ statute on of primary sources of International law is Custom as evidence of general principle accepted as law .The custom must be practice, usage which is required (opinion juris cive necessitates) That is practice must be carried out by the convictions. Indeed in the law of war, custom is to be found more in acts by states and non-states actors.
Therefore in IHL Baxter Paradox is mainly applicable. This Paradox states the rationale behind the practice of non-party states is more reliable in ascertaining custom, because the party states may be following a practice in pursuit of treaty obligation.[30] But in IHL, according to Meron the formation of custom in humanitarian fields, the practices of parties as well as non-parties apply [31]
Jus cogens and Customary international law have great role to play in IHL.Genocide is now universally deemed as jus cogens and it is violations imposes on states certain duties and obligations Erga Omnes [32]Nicaragua case[33] simultaneously strengthens the importance of practice as one two elements necessary for the formation of international law.
8.0 Conclusion
Despite the fact that IHL develops and new instruments emerge every year, the complimentarity between IHL and other legal regimes can never be avoided. Contemporary or new emerging types of conflicts and other serious violation of human rights and laws of war need a multiple approach to combat. Interplay between IHL and legal regimes like ICL, refugee law, International customary law and international environmental law are of every crucial point in determine which and how deferent legal regimes can be suitable to end impunity and maintain peace and justice.
9.0 References:
Bassiimi,.Cheri M. (1992) Crimes Against Humanity in International Criminal Law Mertinus Nijhoff
Cerna,Christina .Human Rights in armed conflicts implementation of international humanitarian law norms by regional intergovernmental human rights bodies
Frits, K Yves, Sandoz (Ed) Implementation of international humanitarian law Martin Nijhof Publishers..(1989).
GIA.D Draper (1971) the relationship between human rights regime and the law of armed conflict, 11YBHR: 19.
Hewif, W.E. (1971) Respect Of Human Rights In Armed Conflicts. at 43 (in 4 NYV).
Higgins, R (1971). Derogation under human rights treaties BYIL: 281 at 282. Dunant, Hendry (1986) .A Memory of Selferin
ICRC (19990.Hand Book For Parliamentarian. Respect for International humanitarian Law No: 1
K. Suter, (1984) An International law of Guerilla warfare: The Global Politics of law Making London, P.3p
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua vs. USA). Merits, ICJ Report 1986 (Judgment of the 27 June)
Macalister, Smith Peter. (1985) International Humanitarian Assistance, Disaster, Relief Actions in International and Organization.Martinus Nijhoff.
Meron, T. (1987) Human Rights and Humanitarian Law. Growing Convergence. Cambridge
_________(1987) human rights in International strife: Their International Protection.
__________(1989). Human Rights and Humanitarian Law Norms. Oxford
OCHA (1999) Hand Book For Applying the Guidelines Principle of Internal Displaced Persons (ADP’S).
Oraa, J. (Ed). Human Rights in State of Emergence in International Law. Clarendon Press, Oxford, 1996
Paul, J.Monarrella (2000) Justice in Africa, Rwanda Genocide. It’s Courts and The UN Criminal Tribunal, Ashgate.Florida USA.
Pictet, Jean (1975). Humanitarian law and the protection of war victims. Leyden: Sijthoff.
Pictet, Jean (1985). Development and Principles of International Humanitarian Law. Martinus Nijhoff
.
__________ Commentary Vol. III (1960). 20
___________ Commentary Vol I (1952) at87
___________ Commentary Vol IV (1952) at 87
_________(1987) human rights in International law
Report of the Secretary General. A/8052, respect for human rights in armed conflicts 18 Sept 1970
West Arhur.Enviromental Protection from Wartime Damage. The role of International in N.P Gleiditsch, Ed., Conflict and Environment (1997) Pp 535-38
.
[1] ICRC Publications.
[2] 1949 Geneva Conventions (I – IV)
[3] 1977 1st and 2nd Additional Protocols to GCs
[4] 1980 convention on prohibitions or restriction on the use of certain weapons, which may be deemed excessively injurious, or to indiscriminative effects. Geneva 1980
[5] A P III on the use of ICRC Emblem
[6] Dunant, Hendry (1986) .A Memory of Selferino.
[7] ICRC (1999). Hand Book For Parliamentarian. Respect for International humanitarian, p 11
[8] Frits, K. Yves, Sandoz (Ed) Implementation of international humanitarian law.
[9] ICJ, Rep.1970, 34 at 32 .p 235.
[10] Meron, T. (1987) Human Rights and Humanitarian Law. Growing Convergence. Cambridge
[11] Cerna, Christina M. Human Rights in armed conflicts implementation of international humanitarian law norms by regional intergovernmental human rights bodies .p32
[12] Ibid
[13] Report of the Secretary General. A/8052, respect for human rights in armed conflicts 18 Sept 1970
[14] Higgins, R (1971). Derogation under human rights treaties.
[15] The convention against torture The Convention Against Torture and Other Cruel and Inhuman and degrading treatment or Punishment of 1984
[16] Pictet, Jean (1985). Development and Principles of International Humanitarian Law.
[17] Oraa, J. (Ed). Human Rights in State of Emergence in International Law.
[18] Art 1 A (2) of the 1951 UN Convention relating to the status of refugee
[19] The UN guiding principles on Internal displacement
(Art 2) "Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflicts, situations of generalized violence, violations of human rights or natural or human made disasters and who have crossed an internationally recognized state border
[20] OCHA (1999) Hand Book For Applying the Guidelines Principle of Internal Displaced Persons (ADP’S).
[21] Bassiuni, Cherif M ( 1992) Crimes Against Humanity in International Criminal.
[22] The Charter Of The International Military Tribunal For The Trial Of The Major War Criminals (1945) Article 6 And 5 Of Tokyo Charter.
[23] ICRC Publications
[24] Source ICRC
[25] Paul (2000) p 42
[26] UNEP (2002) International Environmental Law, (3rd Ed) Page 407
[27] See. Arthur, Westing. Enviromental protection from wartime damage.
[28] Agenda 21,para.39.6
[29] 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 14 May 1954
[30] Kwakwa, Edward. (1992) The International Law of Armed conflicts: Personal and Material Field of Application .M.N
[31] Ibid p 33
[32] Advisory Opinion of the International Court of Justice on Reservation to Genocide Convention 1951 ICJ.15
[33] Nicaragua vs. USA. Merits, ICJ Report 1986 (Judgment of the 27 June)
Friday, August 21, 2009
KAULI ZA VIONGOZI DHIDI YA WAFUGAJI
Wafugaji ni wavamizi warudi walikotoka?Je kauli hizi ni saw?
Mussa Juma.
KATIKA siku za hivi karibuni, wafugaji wamekuwa wakiondolewa maeneo mbalimbali nchini, kwa kuitwa wavamizi na kutakiwa warudi walikotoka.
Kauli za kuwafukuza wafugaji hawa, zimekuwa zikitolewa na viongozi wa ngazi za juu serikani hadi wa za chini hali ambayo imekuwa ikizua migogoro katika maeneo mengi.
Matamko ya viongozi hawa yanatokana na ukweli kuwa wafugaji kutoka mikoa ya kanda ya kaskazini na ziwa wamesambaa katika maeneo mengi nchini kusaka malisho. Wafugaji wa Kimasai, Kibarbeig na Kisukuma ndiyo ambao kwa kiasi kikubwa wamekuwa wakifukuzwa katika maeneo mengi kwa maelezo kuwa ni wavamizi.
Baadhi ya maeneo ambayo wafugaji hao wanafukuzwa kwa kuitwa wavamizi na kutakiwa kurudi walikotoka ni Kilosa, Mvomero mkoani Morogoro, Bunda mkoani Mara, Bagamoyo mkoani Pwani, Loliondo mkoani Arusha na maeneo ya Mikoa ya Rukwa na Iringa.
Hata hivyo, wakati wafugaji hawa wakifukuzwa kila eneo wanalokwenda bado hakuna utafiti wa kina ambao umefanywa na serikali na kubaini chanzo cha kuhama katika maeneo yao ya asili.
Nahisi haitaki kuwa wazi juu ya walikotoka, inajua kuwa ndiyo iliyowaondoa katika maeneo yao.
Kwa mfano, kuanzia mwaka 1959, wafugaji wa Kimasai walianza kuondolewa katika maeneo yao Serengeti ilipoanzishwa na kuwa Hifadhi ya Taifa baadaye. Wafugaji wa Kibargeig nao waliondolewa wilayani Hanang' miaka ya 1970 na kuanzishwa mashamba makubwa ya lililokuwa Shirika la Taifa la Kilimo (Tafco).
Haikuishia hapo, miaka iliyofuata wafugaji wa Kisukuma waliondolewa maeneo ya Maswa kupisha kuanzishwa kwa pori la akiba. Pia wafugaji waliondolewa Same na Mwanga na kuanzishwa Hifadhi ya Mkomazi.
Wafugaji hawa pia waliondolewa maeneo ya Tarangire, Manyara, Ruaha na kuanzisha pia Hifadhi za Taifa na kihistoria maeneo yote haya ambayo sasa yana wanyama yalikuwa ya wafugaji.
Licha ya kuanzisha hifadhi, pia upanuzi wa mashamba makubwa na ongezeko la watu kwenye maeneo mengi nchini, kumechangia kuwasukuma wafugaji kutoka katika maeneo yao ya asili ili kusaka malisho. Ufugaji huu wa Tanzania hauna tofauti na ule wa asili wa maeneo mengine duniani, kama Sudan, Ethiopia, Uganda Kenya na nchi nchi za magharibi.
Wafugaji wote wa asili wana tabia zinazofanana, wakati wote hutembea kutafuta malisho na maji na hii inatokana na kutambua kuwa kukaa sehemu moja kunasababisha athari za mazingira.
Wafugaji hata katika maeneo yao ya vijijini wamekuwa na tabia ya kuhamahama ili kuhakikisha wakitoka eneo moja wanapisha majani kuota. Ufugaji wa aina hii upo Wilaya ya Simanjiro ambako kuna maeneo ya Kata kama za Terati, Sukuro, Naberera na nyingine ambazo wafugaji hujipangia wakati wa kwenda kulisha mifugo.
Jambo hili la kuhamahama, limekuwa likitumiwa vibaya na wakulima. Wafugaji wanapohama, wakulima wamekuwa wajikatia ardhi na hata kuimiliki bila kujua desturi na mila za wafugaji wa asili.
Serikali inaweza kumaliza migogoro ya wafugaji na kufuta kauli za viongozi za kuwaita wavamizi, warudi walipotoka au kuwataka wauze mifugo yao kwa nguvu kama ilivyotokea Kilosa na Rukwa. Inaweza kutenga maeneo makubwa ya malisho ya mifugo na kutangaza kuwa ni ya wafugaji wa asili kwa kuyaanzishia ranchi ambazo licha ya kusaidia wafugaji kutohamahama pia itasaidia kubadilisha mifugo yao ya asili.
Maeneo mengi ya wafugaji hayana majosho, mabwawa na hakuna miundombinu ambayo inayoweza kuwafanya wafugaji kuaa bila kuhama. Ni kutokana na kuwekewa mazingira ya kutothaminiwa, wanaendelea kufilisika. Miaka 15 ijayo athari za kauli za kuwaita wafugaji wa asili ni wavamizi na kuwataka warudi walikotoka zitaonekana.
Athari za wazi kabisa ambazo zitawagusa watu wengi ni kupungua kwa nyama katika maeneo mengi nchini na hivyo kupanda bei maradufu. Naamini hii itawaathiri wananchi wa kawaida.
Viongozi waliopewa dhamana katika sekta ya mifugo wanapaswa kuacha kuhubiri siasa na badala yake waanzishe mkakati kuwasaidia wafugaji popote walipo ili wafuge kisasa badala ya kuwafukuza.
Madhara ya kutothaminiwa wafugaji yapo wazi. Hivi karibini tumeshuhudia mamia ya mifugo ikipotea wilayani Kilosa, makazi ya wafugaji yakiteketezwa kwa moto Loliondo huku maelfu ya mifugo ikiondolewa.
Wilayani Bunda kuna operesheni inayoendelea kuwaondoa wafugaji ambayo sasa imefikia hatua ya kutisha, kwa watoto wadogo wa wafugaji kufungwa kwa tuhuma za kuingiza mifugo eneo la pori.
Mkuu wa Wilaya ya Bunda, Chiku Gallawa naye amejiunga na kauli za viongozi wenzake kuwa kuna wafugaji wavamizi Bunda na sasa lazima waondoke. Kauli hii ya hivi karibuni inapingana na ukweli kuwa ukame uliopo sasa na kuanzishwa kwa pori la akiba la Grumet na kuwepo Hifadhi ya Serengeti katika wilaya hiyo kumepokonya maeneo mengi ya wafugaji.
Tuanze sasa kuwasaidia wafugaji ili waweze kufuga kisasa, kauli za kuwafukuza kila mahali wanapohamia na kuwataka warudi walikotoka si sahihi. Hivi wakiamua kurudi Serengeti, Maswa, Grumet, Ngorongoro na Hanang nani atawadhibiti?
Mussa ninaungana nawe moja kwa moja.
0754 296503 Email mussasiwa@gmail.com.
Tuma maoni kwa Mhariri
Mussa Juma.
KATIKA siku za hivi karibuni, wafugaji wamekuwa wakiondolewa maeneo mbalimbali nchini, kwa kuitwa wavamizi na kutakiwa warudi walikotoka.
Kauli za kuwafukuza wafugaji hawa, zimekuwa zikitolewa na viongozi wa ngazi za juu serikani hadi wa za chini hali ambayo imekuwa ikizua migogoro katika maeneo mengi.
Matamko ya viongozi hawa yanatokana na ukweli kuwa wafugaji kutoka mikoa ya kanda ya kaskazini na ziwa wamesambaa katika maeneo mengi nchini kusaka malisho. Wafugaji wa Kimasai, Kibarbeig na Kisukuma ndiyo ambao kwa kiasi kikubwa wamekuwa wakifukuzwa katika maeneo mengi kwa maelezo kuwa ni wavamizi.
Baadhi ya maeneo ambayo wafugaji hao wanafukuzwa kwa kuitwa wavamizi na kutakiwa kurudi walikotoka ni Kilosa, Mvomero mkoani Morogoro, Bunda mkoani Mara, Bagamoyo mkoani Pwani, Loliondo mkoani Arusha na maeneo ya Mikoa ya Rukwa na Iringa.
Hata hivyo, wakati wafugaji hawa wakifukuzwa kila eneo wanalokwenda bado hakuna utafiti wa kina ambao umefanywa na serikali na kubaini chanzo cha kuhama katika maeneo yao ya asili.
Nahisi haitaki kuwa wazi juu ya walikotoka, inajua kuwa ndiyo iliyowaondoa katika maeneo yao.
Kwa mfano, kuanzia mwaka 1959, wafugaji wa Kimasai walianza kuondolewa katika maeneo yao Serengeti ilipoanzishwa na kuwa Hifadhi ya Taifa baadaye. Wafugaji wa Kibargeig nao waliondolewa wilayani Hanang' miaka ya 1970 na kuanzishwa mashamba makubwa ya lililokuwa Shirika la Taifa la Kilimo (Tafco).
Haikuishia hapo, miaka iliyofuata wafugaji wa Kisukuma waliondolewa maeneo ya Maswa kupisha kuanzishwa kwa pori la akiba. Pia wafugaji waliondolewa Same na Mwanga na kuanzishwa Hifadhi ya Mkomazi.
Wafugaji hawa pia waliondolewa maeneo ya Tarangire, Manyara, Ruaha na kuanzisha pia Hifadhi za Taifa na kihistoria maeneo yote haya ambayo sasa yana wanyama yalikuwa ya wafugaji.
Licha ya kuanzisha hifadhi, pia upanuzi wa mashamba makubwa na ongezeko la watu kwenye maeneo mengi nchini, kumechangia kuwasukuma wafugaji kutoka katika maeneo yao ya asili ili kusaka malisho. Ufugaji huu wa Tanzania hauna tofauti na ule wa asili wa maeneo mengine duniani, kama Sudan, Ethiopia, Uganda Kenya na nchi nchi za magharibi.
Wafugaji wote wa asili wana tabia zinazofanana, wakati wote hutembea kutafuta malisho na maji na hii inatokana na kutambua kuwa kukaa sehemu moja kunasababisha athari za mazingira.
Wafugaji hata katika maeneo yao ya vijijini wamekuwa na tabia ya kuhamahama ili kuhakikisha wakitoka eneo moja wanapisha majani kuota. Ufugaji wa aina hii upo Wilaya ya Simanjiro ambako kuna maeneo ya Kata kama za Terati, Sukuro, Naberera na nyingine ambazo wafugaji hujipangia wakati wa kwenda kulisha mifugo.
Jambo hili la kuhamahama, limekuwa likitumiwa vibaya na wakulima. Wafugaji wanapohama, wakulima wamekuwa wajikatia ardhi na hata kuimiliki bila kujua desturi na mila za wafugaji wa asili.
Serikali inaweza kumaliza migogoro ya wafugaji na kufuta kauli za viongozi za kuwaita wavamizi, warudi walipotoka au kuwataka wauze mifugo yao kwa nguvu kama ilivyotokea Kilosa na Rukwa. Inaweza kutenga maeneo makubwa ya malisho ya mifugo na kutangaza kuwa ni ya wafugaji wa asili kwa kuyaanzishia ranchi ambazo licha ya kusaidia wafugaji kutohamahama pia itasaidia kubadilisha mifugo yao ya asili.
Maeneo mengi ya wafugaji hayana majosho, mabwawa na hakuna miundombinu ambayo inayoweza kuwafanya wafugaji kuaa bila kuhama. Ni kutokana na kuwekewa mazingira ya kutothaminiwa, wanaendelea kufilisika. Miaka 15 ijayo athari za kauli za kuwaita wafugaji wa asili ni wavamizi na kuwataka warudi walikotoka zitaonekana.
Athari za wazi kabisa ambazo zitawagusa watu wengi ni kupungua kwa nyama katika maeneo mengi nchini na hivyo kupanda bei maradufu. Naamini hii itawaathiri wananchi wa kawaida.
Viongozi waliopewa dhamana katika sekta ya mifugo wanapaswa kuacha kuhubiri siasa na badala yake waanzishe mkakati kuwasaidia wafugaji popote walipo ili wafuge kisasa badala ya kuwafukuza.
Madhara ya kutothaminiwa wafugaji yapo wazi. Hivi karibini tumeshuhudia mamia ya mifugo ikipotea wilayani Kilosa, makazi ya wafugaji yakiteketezwa kwa moto Loliondo huku maelfu ya mifugo ikiondolewa.
Wilayani Bunda kuna operesheni inayoendelea kuwaondoa wafugaji ambayo sasa imefikia hatua ya kutisha, kwa watoto wadogo wa wafugaji kufungwa kwa tuhuma za kuingiza mifugo eneo la pori.
Mkuu wa Wilaya ya Bunda, Chiku Gallawa naye amejiunga na kauli za viongozi wenzake kuwa kuna wafugaji wavamizi Bunda na sasa lazima waondoke. Kauli hii ya hivi karibuni inapingana na ukweli kuwa ukame uliopo sasa na kuanzishwa kwa pori la akiba la Grumet na kuwepo Hifadhi ya Serengeti katika wilaya hiyo kumepokonya maeneo mengi ya wafugaji.
Tuanze sasa kuwasaidia wafugaji ili waweze kufuga kisasa, kauli za kuwafukuza kila mahali wanapohamia na kuwataka warudi walikotoka si sahihi. Hivi wakiamua kurudi Serengeti, Maswa, Grumet, Ngorongoro na Hanang nani atawadhibiti?
Mussa ninaungana nawe moja kwa moja.
0754 296503 Email mussasiwa@gmail.com.
Tuma maoni kwa Mhariri
Thursday, August 20, 2009
SPIKA SITA SHUJAA
SPIKA SITA SHUJAA WA DEMOKRASIA BUNGENI WANAOMPINGA NI MAADUI WA NCHI.
“TUNAHITAJI SPIKA ASIYEKUWA NA CHAMA”
Kumekuwa na taarifa katika vyombo mbalimbali vya habari juma hili juu ya wajumbe wa halmashauri kuu ya Taifa ya Chama Cha Mapinduzi (CCM) na wajumbe wa kamati kuu ya Chama hicho (CC) kutaka kumwengua uanachama wa CCM na kumvua madaraka spika wa bunge la jamhuri ya muungano wa Tanzania Samwel Sita ambaye pia ni mbunge wa Urambo Mashariki kwa tiketi ya chama hicho.
Sababu zilizoelezwa na wajumbe hao ambao hata hivyo wengi wao hawakutajwa moja kwa moja majina yao kutokana na usiri wa vikao hivyo vilivyofanyika Dodoma,ni spika kuishambulia serikali kwa hoja ya kupambana na ufisadi huku akikidhoofisha chama (CCM),hafuati taratibu za mabunge ya jumuiya ya madola huku wengine wakitoa hoja kwamba spika Samweli Sita amekuwa akilitumia bunge kwa kuingilia hoja kishabiki badala ya kuviacha vyama vya siasa vipambane kwa hoja.
Wajumbe wa vikao hivyo vya juu vya CCM walionukuliwa na vyombo vya habari kumshambulia Sita kwa jazba walidai pia kuwa ana kundi lake bungeni linalokadiriwa kuwa na wanachama kumi na mmoja maarufu kama first eleven ambao amekuwa akiwapanga kutoa hoja zinazowalenga watu fulani na pia kuikosoa serikali bungeni kwa malengo binafsi.
Kufuatia malumbano haya yanayogusa hisia za watanzania na hasa kwa kuzingatia umuhimu wa uwakilishi wa wananchi katika chombo muhimu kwa utungaji wa sheria na hata utetezi wa maendeleo ya kiuchumi,kijamii na kisiasa kituo cha sheria na haki za Binadamu (LHRC) kinalaani hali hiyo ya kumsakama spika wa bunge kwa tuhuma mbalimbali kwani kwa kufanya hivyo ni sawa na kuingilia vipengele vya sheria kama ibara ya 100 ya katiba ya jamhuri ya muungano wa Tanzania inayotoa fursa kwa wabunge kuchangia hoja bungeni bila kuwekewa mipaka.
Wabunge wote wana uhuru wa kusemachochote bungeni kwa maslahi ya watanzania wanao wawakilisha.Spika kwamfumo wa Westminster ambao ndio bunge letu linaufuataanapaswa kutokuwa na upande wowote bungeni, na jukumu lake hasa likiwani kusimamia mijadala yoyote inaendana na katiba ya nchi.Na hakunakikundi au sheria yoyote itakayoondoa uhuru huo.
Kwa mara ya kwanza katika historia ya bunge watanzania wameshuhudia bunge likisimama kama chombo kitetezi kwa wanyonge na maslahi ya taifa kwa kutetea hoja zenye manufaa kwao kama vile mikataba ambayo hulenga kuwanufaisha wachache na kuliingizia hasara taifa kwa mfano mkataba wa Richmond,sakata la Buzwagi na mengineyo.
Katika haya tumemshuhudia spika Sita akitetea haki ya wananchi kama spika na aikitumia uhuru wake wa kutoa mawazo kama Samweli Sita(binafsi).Hoja za kumpunguzia makali Spika zinakuja baada ya bunge kuonekana msumari kwa wanaotaka kutumia vibaya fedha za umma,hili linatoa tafsiri kwamba amegusa penyewe na kwamba wachache wenye maslahi yao binafsi wanataka kuendelea kujinufaisha.
Ni rahisi kujiuliza kwanini spika aliyetangulia Pius Msekwa hakukumbana na haya? Kwa hoja hizi za wajumbe wa NEC na CC inaonyesha wazi kwamba Msekwa ambaye kwa sasa ni Makamu Mwenyekiti wa CCM bara alilinda maslahi ya wachache wenye lengo la kujinufaisha kwa kupitisha matakwa yao bila hata kuruhusu yahojiwe na wabunge wenye haki kimsingi kufanya hivyo kwa maslahi ya taifa bila kujali itikadi za vyama vyao.
Katiba ya jamhuri ya Muungano wa Tanzania inaweka bayana kwamba ili mtu awe mwakilishi wa wananchi katika bunge lazima atumie chama fulani cha siasa kilichosajiliwa.Ndiyo maana bunge letu limesheheni wabunge Kutoka vyama mbalimbali lakini hiyo haitoi fursa kwa bunge kuwa la chama fulani kama CCM hata kama kinaongoza kwa idadi ya wabunge kwani bunge ni la watu wote kwa maslahi ya waatanzania wote wenye itikadi mbalimbali za siasa dini na mengineyo.
Kwa mujibu wa taratibu za uongozi wa kikatiba (Constitutionalism) pamoja na democrasia ya vyama vingi, Mkutano wowote wa chama hauna uwezo wa kumuwajibisha mbunge au Spika wa Bunge kwa maamuzi au matamko yaliyofanyika ndani ya Bunge.Bunge lina uhuru na wabunge wanakinga kwa shughulizi zozote ndani ya bunge ilimradi wasiende kinyume na katiba.Hivyo basi NEC CCM na kamati kuu (CC), imekiuka katiba ya nchi kwa kuwawajibisha wabungeakiwemo spika kwa sababu ya umakini na uwazi wao wanapo kuwa bungeni.Uhuru na kinga kwa wabunge wanapokuwa bungeni haiwezi kuondolewa na sheria yoyote ile isipokuwa bunge lenyewe na katiba ya nchi.
Je CCM wamepata wapi mamlaka ya kuwawajibisha wabunge na Spika aliyechaguliwa na bunge lenyewe tena la vyama vyingi? Tokea lini chama kikawa na mamlaka ya Kumuondoa spika wa bunge?
NEC CCM ,imekosea na iwaombe radhi watanzania wote, kwa kutokujalimichango ya wabunge hao bungeni pamoja na kutokujali misingi ya kidemokrasia na kikatiba na utawala wa sheria.
Kwa hoja hizo hatuna budi kumpongeza spika kwa ujasiri wake wa kutanguliza mbele maslahi ya taifa na kumpa nafasi nyingine aongoze bunge na Si
kumkejeli,kumshambulia, kumzodoa na kumtisha.
“TUNAHITAJI SPIKA ASIYEKUWA NA CHAMA”
Kumekuwa na taarifa katika vyombo mbalimbali vya habari juma hili juu ya wajumbe wa halmashauri kuu ya Taifa ya Chama Cha Mapinduzi (CCM) na wajumbe wa kamati kuu ya Chama hicho (CC) kutaka kumwengua uanachama wa CCM na kumvua madaraka spika wa bunge la jamhuri ya muungano wa Tanzania Samwel Sita ambaye pia ni mbunge wa Urambo Mashariki kwa tiketi ya chama hicho.
Sababu zilizoelezwa na wajumbe hao ambao hata hivyo wengi wao hawakutajwa moja kwa moja majina yao kutokana na usiri wa vikao hivyo vilivyofanyika Dodoma,ni spika kuishambulia serikali kwa hoja ya kupambana na ufisadi huku akikidhoofisha chama (CCM),hafuati taratibu za mabunge ya jumuiya ya madola huku wengine wakitoa hoja kwamba spika Samweli Sita amekuwa akilitumia bunge kwa kuingilia hoja kishabiki badala ya kuviacha vyama vya siasa vipambane kwa hoja.
Wajumbe wa vikao hivyo vya juu vya CCM walionukuliwa na vyombo vya habari kumshambulia Sita kwa jazba walidai pia kuwa ana kundi lake bungeni linalokadiriwa kuwa na wanachama kumi na mmoja maarufu kama first eleven ambao amekuwa akiwapanga kutoa hoja zinazowalenga watu fulani na pia kuikosoa serikali bungeni kwa malengo binafsi.
Kufuatia malumbano haya yanayogusa hisia za watanzania na hasa kwa kuzingatia umuhimu wa uwakilishi wa wananchi katika chombo muhimu kwa utungaji wa sheria na hata utetezi wa maendeleo ya kiuchumi,kijamii na kisiasa kituo cha sheria na haki za Binadamu (LHRC) kinalaani hali hiyo ya kumsakama spika wa bunge kwa tuhuma mbalimbali kwani kwa kufanya hivyo ni sawa na kuingilia vipengele vya sheria kama ibara ya 100 ya katiba ya jamhuri ya muungano wa Tanzania inayotoa fursa kwa wabunge kuchangia hoja bungeni bila kuwekewa mipaka.
Wabunge wote wana uhuru wa kusemachochote bungeni kwa maslahi ya watanzania wanao wawakilisha.Spika kwamfumo wa Westminster ambao ndio bunge letu linaufuataanapaswa kutokuwa na upande wowote bungeni, na jukumu lake hasa likiwani kusimamia mijadala yoyote inaendana na katiba ya nchi.Na hakunakikundi au sheria yoyote itakayoondoa uhuru huo.
Kwa mara ya kwanza katika historia ya bunge watanzania wameshuhudia bunge likisimama kama chombo kitetezi kwa wanyonge na maslahi ya taifa kwa kutetea hoja zenye manufaa kwao kama vile mikataba ambayo hulenga kuwanufaisha wachache na kuliingizia hasara taifa kwa mfano mkataba wa Richmond,sakata la Buzwagi na mengineyo.
Katika haya tumemshuhudia spika Sita akitetea haki ya wananchi kama spika na aikitumia uhuru wake wa kutoa mawazo kama Samweli Sita(binafsi).Hoja za kumpunguzia makali Spika zinakuja baada ya bunge kuonekana msumari kwa wanaotaka kutumia vibaya fedha za umma,hili linatoa tafsiri kwamba amegusa penyewe na kwamba wachache wenye maslahi yao binafsi wanataka kuendelea kujinufaisha.
Ni rahisi kujiuliza kwanini spika aliyetangulia Pius Msekwa hakukumbana na haya? Kwa hoja hizi za wajumbe wa NEC na CC inaonyesha wazi kwamba Msekwa ambaye kwa sasa ni Makamu Mwenyekiti wa CCM bara alilinda maslahi ya wachache wenye lengo la kujinufaisha kwa kupitisha matakwa yao bila hata kuruhusu yahojiwe na wabunge wenye haki kimsingi kufanya hivyo kwa maslahi ya taifa bila kujali itikadi za vyama vyao.
Katiba ya jamhuri ya Muungano wa Tanzania inaweka bayana kwamba ili mtu awe mwakilishi wa wananchi katika bunge lazima atumie chama fulani cha siasa kilichosajiliwa.Ndiyo maana bunge letu limesheheni wabunge Kutoka vyama mbalimbali lakini hiyo haitoi fursa kwa bunge kuwa la chama fulani kama CCM hata kama kinaongoza kwa idadi ya wabunge kwani bunge ni la watu wote kwa maslahi ya waatanzania wote wenye itikadi mbalimbali za siasa dini na mengineyo.
Kwa mujibu wa taratibu za uongozi wa kikatiba (Constitutionalism) pamoja na democrasia ya vyama vingi, Mkutano wowote wa chama hauna uwezo wa kumuwajibisha mbunge au Spika wa Bunge kwa maamuzi au matamko yaliyofanyika ndani ya Bunge.Bunge lina uhuru na wabunge wanakinga kwa shughulizi zozote ndani ya bunge ilimradi wasiende kinyume na katiba.Hivyo basi NEC CCM na kamati kuu (CC), imekiuka katiba ya nchi kwa kuwawajibisha wabungeakiwemo spika kwa sababu ya umakini na uwazi wao wanapo kuwa bungeni.Uhuru na kinga kwa wabunge wanapokuwa bungeni haiwezi kuondolewa na sheria yoyote ile isipokuwa bunge lenyewe na katiba ya nchi.
Je CCM wamepata wapi mamlaka ya kuwawajibisha wabunge na Spika aliyechaguliwa na bunge lenyewe tena la vyama vyingi? Tokea lini chama kikawa na mamlaka ya Kumuondoa spika wa bunge?
NEC CCM ,imekosea na iwaombe radhi watanzania wote, kwa kutokujalimichango ya wabunge hao bungeni pamoja na kutokujali misingi ya kidemokrasia na kikatiba na utawala wa sheria.
Kwa hoja hizo hatuna budi kumpongeza spika kwa ujasiri wake wa kutanguliza mbele maslahi ya taifa na kumpa nafasi nyingine aongoze bunge na Si
kumkejeli,kumshambulia, kumzodoa na kumtisha.
Subscribe to:
Posts (Atom)