International Law's Domestic Adoption In Tanzania

Tanzania's legal system is based on the English Common Law system, inherited from its British colonial legacy. The country's laws are influenced by its commitment to international organisations such as the United Nations and the African Union, as well as various international treaties and conventions. Tanzania follows the principle of dualism, meaning that international treaties must be ratified by Parliament to become legally binding.

The process of incorporating international law into domestic law varies depending on the country's specific legislation and constitutional provisions. In Tanzania, international law becomes part of the country's legal framework through treaties, conventions, and customary international law. This means that Tanzania's domestic legislation must conform to its international obligations.

The relationship between international law and municipal law can be viewed through two main schools of thought: dualism and monism. Dualists maintain that international and municipal law are distinct and independent systems, while monists argue that they form a single legal framework. Tanzania's approach to incorporating international law into its domestic legal system provides an interesting perspective on this complex interplay between international and domestic legal frameworks.

Treaties and conventions

Tanzania, as a country, adheres to the principle of dualism, which stipulates that international treaties must undergo ratification by Parliament to become legally binding within the country. This legislative action is essential for the incorporation of international treaties into the country's legal framework.

The United Republic of Tanzania, formed in 1964 through the union of the Republic of Tanganyika and the Peoples' Republic of Zanzibar, operates as a unitary state with a multiparty parliamentary democracy. The country's legal system is largely based on English Common Law, inherited from its colonial past, with additional influences from Islamic and customary laws.

The Tanzanian government has ratified several significant international treaties, including the United Nations Charter, the African Charter on Human and Peoples' Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination Against Women. These treaties play a pivotal role in shaping the country's domestic laws and ensuring compliance with international obligations.

The Constitution of Tanzania, which serves as the primary source of law in the country, reflects a commitment to human rights and provides a bill of rights for its citizens. This bill of rights outlines fundamental rights and freedoms, such as freedom of expression, association, and assembly, which are protected under international and regional human rights laws.

The process of transforming international treaties into domestic law in Tanzania involves the following steps:

• Treaty Negotiation: The executive branch, led by the President, negotiates treaties with other states or entities.
• Ratification: The negotiated treaties are then presented to Parliament for ratification. A two-thirds majority approval from the Senate is required for successful ratification.
• Incorporation: Once ratified, the treaties are incorporated into Tanzania's legal framework and become legally binding.
• Implementation: The government authorities and relevant ministries are responsible for implementing the provisions of the treaties and ensuring compliance.
• Judicial Interpretation: The courts in Tanzania may interpret and apply the provisions of the treaties in relevant cases, ensuring their enforcement.

It is important to note that the relationship between international treaties and domestic law in Tanzania is complex and evolving. While the country follows the principle of dualism, there may be instances where the interpretation and application of treaties could differ based on specific circumstances or conflicting domestic laws.

Dualism

Tanzania is a dualist state. This means that international treaties must be ratified by Parliament to become legally binding in the country. Tanzania's legal system is based on the English Common Law system, inherited from British colonial rule. The country's first source of law is the 1977 Constitution, followed by Statutes or Acts of Parliament, case law, and Received Laws. International law is incorporated as the fifth source, through Treaties and Conventions, which are not self-executing and must be ratified by Parliament to be applied in Tanzanian courts.

The dualist approach taken by Tanzania has implications for the enforcement of international law within the country. For example, in the case of human rights treaties, citizens cannot directly invoke these treaties in national courts unless they have been incorporated into national law. This is in contrast to monist states, where ratified treaties can be directly applied and invoked by citizens.

In practice, many states, including Tanzania, may exhibit a mix of dualist and monist characteristics in their application of international law.

International human rights law

Tanzania has ratified several major international human rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, the African Charter on Human and Peoples' Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child. These treaties become legally binding in Tanzania through ratification by Parliament, in accordance with the country's adherence to the principle of dualism in international law.

The obligations under these treaties include respect for human rights, equal protection under the law, and due process rights. For example, Article 6 of the International Covenant on Civil and Political Rights guarantees the inherent right to life, stating that "this right shall be protected by law" and that "no one shall be arbitrarily deprived of his life."

In addition to international treaties, customary international law also influences human rights in Tanzania. This includes the United Nations (UN) Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, and the African Court on Human and Peoples' Rights, which provides a mechanism for individuals and organizations to seek legal redress for human rights violations at the regional level.

Tanzania's legal system is based on English Common Law, inherited from its colonial legacy, as well as Islamic and customary laws, which are applied in personal and family matters. The judiciary is independent of the government and adheres to the constitutional principles of separation of powers, rule of law, human rights, and good governance.

While Tanzania has made significant strides in upholding human rights, there have been concerns regarding the government's compliance with international law, particularly in relation to the use of force by security forces and the protection of refugees and women from violence.

Domestic legislation

In Tanzania, international law is incorporated into domestic law through treaties, conventions, and customary international law. The country follows the principle of dualism, meaning that international treaties must be ratified by Parliament to become legally binding.

The process of incorporating international law into domestic law varies depending on the country's specific practices and legal structure. In Tanzania, the adoption of a treaty is a legislative act, and the status of an international treaty within domestic law is determined by the country's constitutional provisions.

The Tanzanian Constitution and international and regional human rights law guarantee respect for human rights, equal protection under the law, and due process rights. Tanzania has ratified several major international treaties that uphold these rights, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, the African Charter on Human and Peoples' Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child.

The relationship between municipal and international law in Tanzania is complex and depends on the specific treaties and customary international laws in question. Treaties are written agreements signed and ratified by the parties, while customary international law arises from the practices engaged in by states.

The process of implementing international human rights instruments into domestic law can be achieved through four main methods:

• Direct incorporation of rights recognised in international instruments into a bill of rights in the national legal order.
• Enactment of different legislative measures in civil, criminal, and administrative laws to give effect to the rights recognised in human rights instruments.
• Self-executing operation of international human rights instruments in the national legal order.
• Indirect incorporation as aids to interpret other law.

In Tanzania, the second method, known as special transformation, is employed, requiring legislation to give treaties domestic effect. This means that international law does not automatically become part of Tanzania's national law upon ratification. Instead, additional national legislation must be passed to incorporate these treaties into the country's domestic legal framework.

The Statutes or Acts of Parliament are the second source of law in Tanzania. These legislations are published in the Government Gazette and printed by the Tanzania Government Printers. The Laws Revisions Act of 1994 established that legislations previously known as Ordinances, enacted by the pre-independence colonial administration, are now legally recognised as Acts.

It is important to note that the domestic implementation of international law is not uniform across nations. While some countries automatically incorporate international law into their municipal law, others, like Tanzania, follow the dualist approach, requiring explicit legislative action to give international treaties domestic legal effect.

Customary international law

The recognition of the right to nationality under customary international law is significant as many African states, including Tanzania, have not ratified the 1954 UN Convention relating to the Status of Stateless Persons, which is the foremost international instrument on statelessness globally. The African Court's approach rejects absolute deference to the state in determining questions of nationality and would instead inquire whether a decision to deprive a person of their nationality has been exercised in accordance with international standards.

The Court found that Tanzania failed to comply with its international law obligations in the Anudo case, as it did not establish whether or not Mr Anudo was a Tanzanian national, which made the decision arbitrary and thus contrary to Article 15(2) of the UDHR.

Frequently asked questions