According to the 2012 Population and Housing Census (PHC) for the United Republic of Tanzania, Tanzania has a total population of 44 928 923 of which 43 625 354 are in Tanzania Mainland and 1 303 569 in Tanzania Zanzibar. The male population constitutes 21 869 990 and the female population 23 058 933. 2
The report on the 2008 Tanzania Disability Survey analysed disability in a way that conforms to the description under the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Accordingly, the report regards persons with disabilities as:
The survey was based on the population aged 7 years and above. 5
According to the 2002 National Census, Tanzania in 2002 had a total population of 34.6 million people. With the 2,9 per cent intercensal growth rates, the total population of Tanzania was estimated to be 40.6 million persons in 2008. 6
Tanzania signed and ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on 30 March 2007 and 10 November 2009 respectively, and the Optional Protocol to the (CRPD) on 29 September 2008 and 10 November 2009 respectively. 12
A noted irregularity in Tanzania’s United Nations’ Universal Periodic Review Report (UPR)13 was that the Constitution of the United Republic of Tanzania (the Constitution) does expressly prohibit discrimination on the ground of disability. The Bill of Rights in the Constitution does not expressly mention disability in article 13(5) (the non-discrimination article), but provides that:
For the purposes of this Article the expression ‘discriminate’ means to satisfy the needs, rights or other requirements of different persons on the basis of their nationality, tribe, place of origin, political opinion, colour, religion, sex or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or conditions whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualifications except that the word ‘discriminate’ shall not be construed in a manner that will prohibit the Government from taking purposeful steps aimed at rectifying disabilities (emphasis mine) in the society.
The word ‘disabilities’ in the latter part of this provision does not refer to persons with disabilities as a specific category of people subjected to discrimination, but refers to affirmative action to counter oppressive tendencies in general.
Tanzania reported in the UPR on the prevalence of disability. Some measures that were reported in the UPR include the adoption of the 2004 National Policy on Disability,14 the enactment of the Persons with Disabilities Act 9 of 2010 and the continued implementation of the National Action Plan on Care Services, Training and Protection for Vulnerable Children. A further measure that was reported was the adoption of the 2011 National Disability Mainstreaming Strategy for the implementation of the African Decade of Disability (of which Tanzania is signatory).
Tanzania follows a dualistic system in which provisions of international human rights treaties require a legislative process for purposes of domestication. Provisions of international human rights treaties have been incorporated through various pieces of legislation and policies. Courts in Tanzania have, in appropriate cases, given judicial notice to international instruments.15 The Tanzanian Courts have generally used international law as an interpretative tool.
In 1993, the Court of Appeal, while interpreting the constitutional right to bail in Director of Public Prosecutions v Daudi Pete,16 remarked that:
Since our Bill of Rights and duties was introduced into the Constitution under the Fifth Amendment in February, 1985, that is slightly over three years after Tanzania signed the Charter, and about a year after ratification, account must be taken of that Charter in interpreting our Bill of rights and duties.
It seems evident in our view that the Bill of Rights and Duties embodied in our constitution is consistent with the concepts underlying the African Charter on Human and Peoples’ Rights as stated in the Preamble to the Charter. 17
In the case of Paschal Makombanya Rufutu v The Director of Public Prosecutions,18 the High Court found that:
If there is any ambiguity or uncertainty in our law, then the courts can look at the international instruments as an aid to clear up the ambiguity and uncertainty seeking always to bring it into harmony with the international conventions.
In John Byombalirwa v Regional Commissioner, Kagera and Regional Police Commander, Bukoba19 the High Court held that, the provisions of Universal Declaration of Human Rights of 1948 (UDHR) should be consulted. The Court in particular stated that:
If there is any doubt as to the obligation of the law enforcement agencies and other members of the executive branch of the government in returning the seizure goods to the suspects who have been cleared by courts I wish to point to Art. 17(2) of the Universal Declaration of Human Rights of 1948 which provides that, no one shall be arbitrarily deprived of his property.
In 2005, the High Court in Legal and Human Rights Centre, Lawyers’ Environment Action Team (LEAT) and National Organisation for Legal Assistance v Attorney General,20 confirmed the status of the UDHR in the Constitution of Tanzania. It held that:
Tanzania is a party to various international Human Rights Instruments. The Universal Declaration of Human Rights (UDHR), which is the core of the International Human Rights law, is incorporated in article 9(f) of our constitution. Article 7 of the UDHR provides for equality before the law and bars discrimination. Article 21 of UDHR provides for the right to participate in the government of one’s country directly or by (sic) freely chosen representative.
The Act expressly prohibits discrimination on multiple grounds including disability. In section 7(4) employers are forbidden to discriminate directly or indirectly against an employee, in any employment policy or practice, on any of the following grounds: colour, nationality, tribe or place of origin, race, national extraction, social origin, political opinion or religion, sex, gender, pregnancy, marital status or family responsibility, disability, HIV/Aids, age or station of life.
In section 5(2), a person shall not discriminate against a child on the grounds of gender, race, age, religion, language, political opinion, disability, health status, custom, ethnic origin, rural or urban background, birth, socio-economic status, being a refugee or of another status.
The Act also in section 16(p) considers a child as in need of care and protection if that child is under the care of a person with a disability and such disability hinders the person from exercising proper care or guardianship.
According to section 137, any person who, knowing a woman to be an idiot or imbecile, has or attempts to have unlawful sexual intercourse with her in circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the woman was an idiot or imbecile, commits an offence and is liable to imprisonment for 14 years, with or without corporal punishment.
Another broad piece of legislation providing comprehensively on all matters related to mental disorders. It was particularly enacted to provide for the care, protection and management of persons with mental disorders and to provide for their voluntary or involuntary admission in a mental health care facility.
The Act has established the Mental health board, mandated to amongst other things supervise and monitor the provision of mental health care services and assurance of quality by inspecting facilities within the mental health care facilities.
Subsection 2 determines that no person may within Tanzania, be denied an opportunity to obtain any category, nature or level of national education on the grounds of his race, religion, political or ideological beliefs.
Persons with disabilities are covered under section 10 of the Act which determines that all citizens who have attained the age of 18 years, irrespective of ones’ ability or disabilities, are entitled to register as voter(s).
Some of the programmes and plans include, the National Action Plan on Care Services, Training and Protection for Vulnerable Children,31 the National Poverty Eradication Strategy32 and the National Women and Gender Development Policy. 33
At national level, DPOs are organised to form the Tanzania Federation of Disabled Peoples’ Organisations (TFDPO), a non-governmental federation established in 1992. This Organisation is as an umbrella organisation with ten national DPOs as members.41 The organisation’s main objective is to afford a common voice with regard to issues of lobbying and advocacy for the rights and welfare of PWDs.
In Tanzania, DPOs and their umbrella organisation TFDPO, commonly known as SHIVYAWATA, regularly take part in discussions with the government on issues affecting the lives of people with disabilities. 42
Lobbying, advocacy and awareness-raising activities amongst DPOs and PWDs themselves, remains the main cause of action to promote awareness to the needs of PWDs and to develop models that will enable their effective participation in the process.
The following factors account for the major challenges DPOs face in their need to take an effective role in implementation process: (i) financial constraints necessary for mobilisation; (ii) lack of community awareness and involvement on matters concerning PWDs; and (iii) inadequate representation in decision-making bodies, from grassroots to national level.
Around 2008 persons with albinism, in particular those in rural Tanzania, experienced killings virtually due to the irrational belief that their body parts carry the potential for economic wealth. Nearly 60 incidents were reported, and criminal charges instituted against the suspected.45 Many people still express their grievances on the manner the government responded to the incidents, and the manner in which the cases are delayed in the judiciary, to date, well after four years the status of many of those cases are unknown.
The question particularly in respect of access to public buildings, started to be addressed in 2003 when the National Construction Industry Policy was adopted. 46
These regulations extensively address accessibility in part IX (regulations 49-55), in which it is explicitly required, in mandatory terms that all public buildings, premises, transport services, stations and platform services, and other recreational services should be accessible to persons with disabilities.
This policy objective was concretised under the Persons with Disabilities Act, which under sections 27-29 makes it a fundamental entitlement for PWDs to enjoy as a matter of rights, education and training services.
Further, the Act has established the National Fund for Persons with Disabilities to finance amongst other things education and vocational training for persons with disabilities. 47
Furthermore, the most recent 2012 Persons with Disabilities (General) Regulations under part IV (regulation 11-21) provides for equality in education, support including school transport facilities for children with disabilities, accessibility, as well as adopting budget guidelines to explicitly mention disability to the government budget for education sector.
Regarding access to employment for persons with disabilities, the Employment and Labour Relations Act 6 of 2004, in unequivocal terms prohibits discrimination on grounds of Disability.48 Accordingly, employers who are convicted of having discriminated against any employee on the ground of disability shall be liable for a fine not exceeding five Million Tanzania Shillings, approximately four thousand (USD).
The Persons with Disabilities Act guarantees PWDs’ access to employment in broader terms by empowering the minister responsible for persons with disabilities, in collaboration with the minister responsible for employment, to enact regulations requiring employers with the work force of twenty and above to employ persons with disabilities based on a quota system and to ensure that 3 per cent of it constitutes persons with disabilities.49
These regulations are now in place and as envisaged under the Act, they, under part VIII (regulations 40-48) extensively provide for employment based on a quota system, complaint mechanism and career advancement.
Since independence, Tanzania has never put in place any form of grants, or income supporting measures for persons with disabilities. Recently under section 57 of the Persons with Disabilities Act, a mechanism was established for a National Fund for Persons with Disabilities.50 The fund has not yet been established.
It is foreseeable that when the fund is established, some form of the grant/funds will be allocated particularly to finance education and vocational training, a rehabilitation programme on disability, issuing grants to associations of persons with disabilities and financing researches on disabilities.51
Article 21 of the 1977 Constitution guarantees every Tanzanian, including persons with disabilities, the right to take part (directly or indirectly) in matters relating to the governance of the country. This right has further been explained under the National Election Act, Cap 343 R.E 2010, which sets out voter qualifications. Under Section 10 of this Act all citizens who have attained the age of 18 years, irrespective of ones’ ability or disabilities, are entitled register as a voter.
Section 51 of the Persons with Disabilities Act, contains provisions with regards to PWDs political rights.52
2. The Government of Tanzania, 2012 Population and Housing Census Report http://www.nbs.go.tz/sensa/PDF/Census%20General%20Report%20%2029%20March%202013_Combined_Final%20 for%20Printing.pdf (accessed 12 May 2013).
3. Tanzania 2008 Disability Survey Report: Tanzania 2008 Disability Survey 10 June 2010.pdf (accessed 15 May 2013).
12. UN Enable Convention and Optional Protocol Signatures and Ratifications http://www.un.org/disabilities/countries.asp?navid=12&pid=166 (accessed 31 June 2013).
24. Article 11(1): ‘The state authority shall make appropriate provisions for the realisation of a person’s right to work, to self education and social welfare at times of old age, sickness or disability and in other cases of incapacity. Without prejudice to those rights, the state authority shall make provisions to ensure that every person earns his livelihood’.
29. The Government of Tanzania, Construction Industry Policy (2003) http://www.ncc.or.tz/CI_P.pdf (accessed 18 May 2013).
30. The Government of Tanzania, National Strategy for Growth and Reduction of Poverty (NSGRP) (2005) http://www.povertymonitoring.go.tz/Mkukuta/MKUKUTA_MAIN_ENGLISH.pdf; and the Government of Tanzania, National Strategy for Growth and Reduction of Poverty II (NSGRP II) http://www.povertymonitoring.go.tz/Mkukuta/Mkukuta%20English.pdf (both accessed 18 May 2013).
31. Citation and check link http://www.riatt-esa.org/sites/default/files/files/resources/national_costed_plan_tanzania.pdf (accessed 10 May 2013).
33. The Government of Tanzania, Policy on Women in Development in Tanzania (1992) http://www.tanzania.go.tz/pdf/policyonwomenindevelopment.pdf; and the Government of Tanzania, National Strategy for Gender Development http://www.mcdgc.go.tz/data/Tanzania_-_National_Strategy_for_Gender_Development.pdf (both accessed 3 August 2013).
(e) if necessary, to institute proceedings in court in order to prevent violation of human rights or to restore a right that was caused by that infringement of human rights, or violation of principles of good governance;
42. ILO publication http://www.ilo.org/wcmsp5/groups/public/@ed_emp/@ifp_skills/docum ents/p ublication/wcms_111461.pdf (accessed 19 May 2013). Check link and please provide a full citation.
43. CCBRT website: http://www.ccbrt.or.tz/ (accessed 10 May 2013).
45. EB Makulilo E ‘ Albino k illings in Tanzania: Illogical thinking a nd racis m?’ Peace & Justice Conflict Theory and Analysis (2004) 594 1 http://www.academia.edu/223271/ALBINO_KILL INGS_IN_TANZANIA 4 (accessed on 29 July 2013).
‘(1) Every person with disability who has attained the age of eighteen years and above shall be entitled to enjoy and exercise political rights and opportunity as any other citizen without any form of discrimination.
(2) Subject to subsection (1), a person with a disability shall have a right to vote, hold public office and otherwise participate in the political rights and opportunity as any other citizen without any form of discrimination.
(iii) ensuring that all polling places in each voting centre have accessible requirements to voters with disabilities including accommodation of voters who use wheelchairs and devices for persons with low vision and tactile ballot templates for visually impaired and deaf blind persons;
(viii) setting up criteria and procedures to be applied in appointing qualified persons with disabilities to be elected or be appointed to represent persons with disabilities in all decision and policy making process during the elections, through affirmative action or special prescribed arrangements;
(b) promote actively an environment on which persons with disabilities can effectively and fully participate in the conduct of public affairs without discrimination and encourage their participation in the public affairs inc1uding-