Clement Mashamba
LLB (Hons) (Dar es Salaam), LLM (Open University)
Advocate of the High Court of Tanzania; Executive Director, National Organisation for Legal Assistance (NOLA), Dar es Salaam, Tanzania
Edition: AHRLJ Volume 7 No 2 2007
Pages: 475 - 495
Citation: (2007) 2 AHRLJ 475-495
Download article in PDF
To a large extent, this article is based on the discussion made in ch 8 of the author's LLM thesis submitted to the Open University of Tanzania in fulfilment of the LLM degree programme, 2007, entitled 'Enforcing social justice in Tanzania: The case of economic and social rights'. The author specifically thanks Prof Peter for supervising the preparation of the thesis. The author is the Executive Director of the National Organisation for Legal Assistance (NOLA). However, the views expressed in this article are solely the author's own analysis of the right to work and its protection in Tanzania; and, as such, they are not necessarily shared by NOLA.
Summary
This article examines the judicial protection of the right to work in Tanzania. First, it traces the historical basis of the struggle for the promotion and protection of workers' rights by looking at the early struggle in this regard, championed by early trade unions. It also discusses the implications of the partnership between trade unions leaders and politicians for the development of a vibrant trade union movement that would assist in the promotion of workers' rights. In the main, the article examines the effect of party supremacy by the ruling party on the legislation and the practice of labour rights in Tanzania. The article further examines the recent economic liberalisation and its impact on the promotion and protection of the right to work. In conclusion, it reviews a number of cases where the courts in Tanzania protected the right to work positively.
1. Introduction
The article examines the judicial protection of the right to work in Tanzania. First, it traces the historical basis of the struggle for the promotion and protection of workers' rights by looking at the early struggle in this regard, championed by early trade unions. It discusses the implications of the partnership between trade union leaders and politicians for the development of a vibrant trade union movement that would assist in the promotion of the workers' rights. In the main, the article examines the effect of party supremacy by the ruling party, Chama cha Mapinduzi (CCM), [1] on legislation and the practice of labour rights in Tanzania. The article further examines the recent economic liberalisation and its impact on the promotion and protection of the right to work. Finally, it reviews some cases where the courts in Tanzania protected the right to work positively.
2. The right to work without a particular job
The right to work has two aspects. First, the right to work may entail a right against the state to maintain employment policies and promote vocational training, 'so that the unemployed can find suitable employment'. [2] According to Rudolph, seen in this sense, the right to work 'is a guarantee of employment but not to any particular job'. It is therefore a political goal or 'programme right'. [3] Secondly, there is the broad sense regarding the right to work that represents a right of a worker against a possible employer to be employed, and 'to job security'. [4]
So, from the foregoing, the right to work does not require a 'non-welfare state,' such as Tanzania, to provide jobs as a direct employer (ie the second sense). [5] In this situation, 'there is freedom to work or not to work. You may even have a right to work, as we have in our Constitution, but no one has an obligation to give you work.' [6] So, in countries such as Tanzania, the right to work is not taken as absolute in practice, even if there is a constitutional guarantee declaring it to be absolute. For instance, in Timothi Kaare v Mara Co-operative Union, [7] the Court of Appeal of Tanzania held that the right to work 'by its very nature cannot be absolute'.
However, for 'non-welfare states' it is easier to resort to the first sense of the right by merely declaring that it is the right of every citizen to have a job, but not to a particular job, as Rudolph points out. This kind of declaratory right does not demand the state to have positive obligation to provide jobs to citizens, rather it just allows a person access to a job.
Going by the wording of the right to work and the right to earn just remuneration in articles 22 and 23 of the Constitution of the United Republic of Tanzania, it is apparent that the said provisions do not impose an express positive duty on the state to fulfil them. Articles 22 and 23 on the right to work and earn equal remuneration provide that:
22 (1) Every person has the right to work. [8]
(2) Every citizen is entitled to equal opportunity and right on equal terms to hold any office or discharge any function under the state authority.
23 (1) Every person, without discrimination of any kind, is entitled to remuneration commensurate with his work, and all persons working according to their ability shall be remunerated according to the measures and nature of the work done.
(2) Every person who works is entitled to just remuneration.
In effect, article 22 of the Constitution of Tanzania 'is framed in [a way allowing it] to operate vis-à-vis the citizenry inter se. The executive faces little or no danger at all in its exercise.' [9] Similarly, article 23, which guarantees the right to fair remuneration, 'does not, in its exercise, impinge adversely on the privileged status of the executive in the hierarchy of governance'. [10]
In contrast, the International Covenant on Economic, Social and Cultural Rights (CESCR) imposes several positive obligations on the part of the state in relation to the right to work. They include the obligation by the state party thereto to 'take appropriate steps to safeguard' the right to work, which 'includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts'. [11] The state party is also obliged to take steps in order to achieve the full realisation of this right, including providing 'technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual'. [12] Under article 7, CESCR obliges states to recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed
conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions; [13]
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays. [14]
So, the wording of articles 6 and 7 of CESCR, which guarantees the right to work and all incidentals thereto, is more expansive than the wording of articles 22 and 23 of the Constitution. In progressive jurisdictions, such as Finland, the right to work and earn just remuneration is given wider constitutional and statutory protection than in Tanzania. In Mr L v The Municipality of Hollola, [15] for instance, it was apparent that the Finnish Constitution Act provided that: '[u]nless otherwise prescribed in an Act of Parliament, it is incumbent for the state to arrange a Finnish citizen a possibility to work'. [16] In order to implement this provision, the Finnish Employment Act of 1987 'included duties for municipalities and state authorities to arrange temporary jobs for two groups of persons: the long-term unemployed and the young unemployed'. [17]
3. The right to work as a basis for human survival
The right to work is very important to the very survival of the individual human being and society in general. [18] According to Justice Mwalusanya: [19]
The right to work is the most important . . . right in the labour law of . . . countries. Its ideological basis is the need and necessity of the working class. It aims at securing the possibility of continued employment. It is not an empty slogan but a survival for existence. For this right to exist in any realsense, it is necessary that economic, political and legal orders of the society assure everybody who is capable of working of the possibility of participating in building his society through work in accordance with his capacity and education and the right to earn an income proportional to the quantum of his work. And so job-security is the hall-mark of the whole system.
Indeed, the contemporary realisation of the right to work 'is a product of many years of concerted struggle against capital and exploitation of labour in general'. [20] In this respect, the right to work entails 'among other things, the right to demand better and fair wages, the right to withhold labour by strikes and other means, etc'. [21] Therefore, in recognition of this reality, the Tanzanian Constitution has guaranteed the right to work in article 22. The right to earn fair remuneration is guaranteed under article 23. Although the Constitution of Tanzania provides separately for the right to work and the right to earn fair and just remuneration, these are essentially two sides of the same coin. In practice, the right to work goes hand in hand with the right to fair remuneration. Therefore, this work examines the said rights as two sides of the same coin.
Under the Constitution of Tanzania, the right to work entails a guarantee to every person to be afforded an equal opportunity in employment. [22] It also involves one's guarantee to equal conditions in occupying any position of employment in Tanzania. [23] In fact, the provisions of article 22 of the Constitution of Tanzania strive to give legal effect to the provisions of article 7 of CESCR at the municipal level. However, this guarantee is a mere constitutional declaration. In practice, the right to work and workers' rights are 'hardly protected in [the] real sense'. [24]
4. The struggle for protection of the right to work in Tanzania
The contemporary state of the right to work in Tanzania is linked to the struggles for the protection of workers' rights, dating back to the 1930s and 1940s. During this period, workers in colonial Tanganyika — then under the British colonial rule — started to organise themselves in small trade unions. This was the colonial epoch where trade unions were not encouraged to operate by the colonial rulers. As such, under such stringent conditions, the existing small trade unions did not organise as a formidable force that would steer the struggle for protection of workers' rights in Tanzania. Nonetheless, they attempted to organise some serious activities, including strikes. [25]
During the struggle for independence in the 1950s, workers joined peasants and politicians [26] to pressurise the British colonial government to grant the independence to Tanganyika that would ensure freedom and liberty. [27] In time, though, trade union leaders became active politicians; and after independence, the politicians swallowed trade union leaders. [28] This was done 'either voluntarily through co-opting trade union leaders into the political process or by force through detention or internal deportation of the leadership'. [29] In fact, this was facilitated by the enactment of repulsive laws, such as the Preventive Detention Act, 1962, which went hand in hand with the outlawing of strikes through the Trade Disputes (Settlement) Act, 1962. [30] According to Peter, these laws were given impetus by the enactment of a 'disciplinary code to control the workers', in the name of the Security of Employment Act which was enacted in 1964. [31] In effect: [32]
This legislation also took all labour matters from the purview of the normal courts of law and placed them in some administrative bodies. These were the Labour Conciliation Board under a labour officer [33] which holds its sessions in camera and advocates have no locus standi in them and appeals from these Boards go direct to the Minister for Labour whose decision is final and conclusive.
5. Trade unions and the right to work in Tanzania: Reconciling law with practice
The foregoing problem was further compounded when in 1964 an army mutiny took place in the country. As a result of this mutiny, several trade union leaders were detained and their umbrella union — the Tanzania Federation of Labour (TFL) — was dissolved, [34] and a single trade union, more susceptible to political manoeuvring, was formed. This was the National Union of Tanganyika Workers (NUTA), formed under the National Union of Tanganyika Workers (Establishment) Act 1964. [35] This Act brought forth a de facto principle that saw the Secretary-General of NUTA being the Minister responsible for labour, which dwarfed serious struggles for the protection of workers' rights. This was intensified in February 1977, when TANU merged with its Zanzibar counterpart, Afro-Shirazi Party (ASP), to form Chama cha Mapinduzi (CCM). The coming into scene of CCM, as the sole and supreme political party, brought about a new political dispensation of 'party supremacy'. With CCM being supreme over and above all other branches of the state — ie the judiciary and the legislature — trade unions were reduced to one of the five mass organisations of the ruling party and changed their name from NUTA to Jumuiya ya Wafanyakazi wa Tanzania (JUWATA). [36] JUWATA was established under the Jumuiya ya Wafanyakazi wa Tanzania Act, 1979, [37] as the sole trade union affiliated to CCM. [38]
In effect, JUWATA turned out to be a tool of the state in its bid to infringe on workers' rights in the country. In fact, JUWATA was used by the state, which was the major employer in those days, to discourage workers to claim for their rights. For instance, in 1982, when 300 workers employed by the Tanzania Zambia Railway Authority (TAZARA) were declared redundant, JUWATA was instrumental in furthering the redundancy. [39] Indeed, JUWATA endorsed the management's decision to declare the workers redundant. In this matter, after being declared redundant, the workers, using the services of the Legal Aid Committee of the Faculty of Law at the University of Dar es Salaam, filed a trade dispute inquiry in the Permanent Labour Tribunal. [40] They challenged the redundancy, alleging that it was done in bad faith because the workers were not consulted before they were declared redundant. It should be noted that in the 1980s there was no specific law on redundancy in Tanzania. Therefore, the workers' lawyers creatively used certain provisions of the Security of Employment Act (SEA) and managed to obtain an award of the Permanent Labour Tribunal, which ordered, inter alia, for the reinstatement of the workers.
This award prompted the management of TAZARA to appeal to the Minister responsible for labour, who endorsed the Tribunal's decision. The management, consequently, decided to institute a judicial review of the Minister's decision in the High Court, seeking an order of certiorari to quash the award. [41] In a sense: [42]
TAZARA's counsel argued that the Minister who had made the decision based on the report of the Tribunal exceeded his jurisdiction because he embarked on settling a trade dispute that did not exist. Quoting the letter from JUWATA's Secretary General, TAZARA's lawyer forcefully submitted that the sole representative of all employees in Tanzania (section 4(1) of the JUWATA Act, 1979) had amicably settled the trade dispute. The judge agreed.
Consequently, the workers appealed to the Court of Appeal, which held that 'the statutory provision on consultation requires "meaningful consultation" with the trade union branches at the place of work and before the decision on redundancy has been made'. [43] The Court of Appeal restored the order of reinstatement. [44]
Even with the reformation of JUWATA to become the Organisation of Tanzania Trade Unions (OTTU) [45] and then the Trade Union Confederation of Tanzania (TUCTA), [46] things did not improve in respect of workers' realisation of the constitutional guarantees relating to the right to work. In practice: [47]
OTTU, like the other state-established and controlled 'trade unions', still retained strong allegiance to the party and government. In addition, the law establishing it, apart from being contradictory and a bad piece of legal draftsmanship, gave the Registrar of Societies power to de-register OTTU at any time.
The Presidential Commission on Single Party or Multiparty System in Tanzania (popularly known as the Nyalali Commission) was of the view that OTTU did not qualify to be a trade union, because '[t]he principles governing trade unions insist that people should be left to organise freely'. [48] So, the Nyalali Commission recommended the reform of labour laws with a view to aligning them with human rights standards.
The foregoing discussion, in general, shows that the right to work has not been given practical implementation by the laws, although it is well entrenched in the Constitution of Tanzania. In practice: [49]
The laws that have been enacted either before or after flag independence are all out to remove [the] right [to work]. The so-called Security of Employment Act gives a right to the employer to dismiss the employee without notice.
However, in Augustine Masatu v Mwanza Textiles Ltd, Mwalusanya J (as he then was) held that the provisions entitling the employer to dismiss the employee without notice were repugnant to the Bill of Rights contained in the Constitution. His Lordship was of the view that: [50]
A right to work is now a fundamental human right which is over and above ordinary legislation. And so if the right to work had been taken away by ordinary legislation, then the same stood a good chance of being declared void and unconstitutional by 16/3/1988 when the Bill of Rights became justiciable.
Justice Mwalusanya further held as follows: [51]
The law regards with care the right of individuals and unless a statute restricts those rights by language beyond reasonable doubt, they should be left untouched by the Court. In the case at hand, the Security of Employment Act has not in a clear language conferred upon an employer the rights to terminate the services of an employee in the face of reinstatement. There is section 27 of the Act which is a cog in the wheel held by the employer.
6. The ramifications of trade liberalisation for the right to work in Tanzania
6.1 Reform in economic policies and laws in favour of economic liberalisation
The late 1980s and early 1990s witnessed the emergence of trade liberalisation which was carried out through a radical restructuring of the country's economy. [52] This was one of the Tanzanian government's efforts to restructure the economy after the failure of the hitherto state-controlled economy, 'which placed heavy reliance on the state as owner and entrepreneur of the national economy'. [53] The economic restructuring policy was officially pursued from 1992, [54] although measures to adopt the same started in the late 1970s, 'particularly by the adoption of the policy of privatisation by the ruling party, [55] Chama cha Mapinduzi (CCM), following the serious economic crises of the late 1970s'. [56] Between 1981 and 1982, the government 'adopted the National Economic Survival Programme (NESP) followed by the Economic Recovery Programme (1986-89), following on improving physical infrastructure in direct support of the productive sector'. [57] Thereafter, the Economic Recovery Programme (ERP II) was formulated, as the second phase of economic recovery programmes that aimed at intensifying areas of adjustments identified in the ERP I. It also aimed at eliminating subsidies on parastatals and the privatisation of the failed corporations. [58] Mashamba adds the following: [59]
Among the policy [objectives] of privatisation was to improve performance of the public enterprises with a view to [enabling them] to contribute considerably in the growth of the national economy. It was the objective of privatisation to encourage a wider share of ownership among the public in general and the employees in particular, apart from increasing employment among Tanzanians.
It was also the policy objective of privatisation to create a more market-oriented economy that would fashion conditions necessary for assessing foreign market, capital and technology with a view to promoting development of capital market. [60] Therefore, [61]
[t]he enforcement of the policy pre-supposed serious reforms in the laws guiding the operations and establishment of a powerful Presidential Parastatal Sector Reform Commission (PSRC) which would provide a focal point for the implementation and monitoring of the parastatal sector.
However, more emphasis was put on the reform of economic laws that would create a conducive environment within which the private sector economy would operate. In 1990, for instance, the National Investment (Promotion and Protection) Act [62] was enacted to, particularly, enforce the National Investment (Promotion and Protection) Policy, 1990. This Act provided for the regulation of investment businesses in Tanzania conducted by both local and foreign investors with the exception of investment in petroleum and minerals. [63] Nonetheless, in 1997 this Act was repealed and replaced by the Tanzania Investment Act, 1997, which established the Tanzania Investment Centre (TIC) [64] 'to supplement the National Investment Promotion Centre'. [65] In fact, the Tanzania Investment Act [66] strives to give legal and practical effect to the National Investment Policy of 1996.
6.2 The implications of economic reforms on the right to work in Tanzania
The foregoing reforms in the laws relating to investment in Tanzania had negative ramifications for the right to work. Although there were some reforms in the laws relating to employment between 1990 and 2000, [67] none of these reforms sought to create an environment for the protection of the right to work during the era of private sector economy. Even worse, the Industrial Court of Tanzania (Amendment) Act, of which the objectives are, inter alia, to discourage strikes, has reintroduced the essential service provisions. [68] The focus here falls on retrenchment, as the most tangible consequence of these economic reforms (in particular, privatisation). Retrenchment is the issue that has most affected employees and has been addressed by the legislature and the judiciary.
6.2.1 Retrenchment vis-à-vis the right to work in Tanzania
Massive privatisation of public corporations in the 1990s witnessed equally massive retrenchment of workers [69] as the Public Corporations (Amendment) Act, 1993, [70] which provides for the procedure for privatisation of public corporations, does not contain any protection mechanism for employees of privatised corporations to retain their jobs upon divestiture of their erstwhile employers. 'Besides, the Amending Act is silent on what compensation packages employees retrenched in the privatisation process are entitled to.' [71]
It can, therefore, be said that the implementation of the privatisation policy, far from being intended, inter alia, at sustaining employment among the people, ironically it does not guarantee the individual's right to work. The exercise, thus, in one way or another, is repugnant to the basic right provided for in the Constitution of the United Republic of Tanzania. [72]
Interestingly, the Public Corporations (Amendment) Act does not provide for the mechanism which the employees, 'the main victims of the exercise, may be consulted or involved in the process, especially where the option is sale' of their employing corporation. [73] As a result, 'the fate of the employees becomes a subject matter of negotiations between PSRC and the prospective buyers only'. [74]
It is worth noting that under section 39(2) of the Amending Act, the Commission may, before restructuring a public corporation, hold discussion with the employees or their representatives regarding the intended restructuring. However, the provisions vest discretionary powers in the Commission either or not to consult the employees to be affected. [75]
In addition, section 39(2) of the Public Corporations (Amendment) Act empowers the Commission, in consultation with the responsible Ministry, to determine fair and reasonable severance pension and other payment arrangements. Paradoxically, neither the workers nor their representatives are involved in determining the said benefits, notwithstanding the fact that they are the sole beneficiaries thereto. However, [76]
It should be emphasised that in (the) modern human rights discourse the right to be consulted to a person whose rights stand to be affected by a particular decision, is of paramount significance.
Further to the foregoing anomaly, the law has failed to define the term 'retrenchment', although it has been rampant in the privatisation process. Only the term 'redundancy' [77] has been defined under section 6(10)(g) of the Security of Employment Act, 1964. This section, nonetheless, does not set out elaborate procedures for effecting redundancies, nor does it provide for the extent of redundancy packages. As a result, 'retrenchment packages have, in some cases, been treated in the same manner as terminal benefits'. [78] Indeed, experience has revealed that the packages paid as terminal benefits are too meagre to support the employee during the period of unemployment.
6.2.2 Lack of retrenchment mechanism
The above problem is exacerbated by the fact the law does not expressly set out the mechanism to determine what categories of employees should remain and which should be retrenched in the process. This has also been aggravated by the recent challenge to the first-in-last-out (FILO) principle. [79] That is to say, courts in the era of economic liberalisation have been taking a more expansive approach to the FILO principle, by particularly invoking such other factors as age, efficiency, commitment, health, and expertise in prioritising who should be retrenched or declared redundant by the employer. [80] For instance, in John Chimanga and 29 Others v Ravji Construction Ltd, [81] Mwipopo J held that a total adherence to the FILO principle may lead to the curtailment of employment opportunities of energetic and skilled young persons.
6.2.3 Reinstatement vis-à-vis payment of statutory compensation
Another notable restriction on the right to work that was inherent in the labour laws before 2004 [82] is contained in section 40A(5) of the Security of Employment Act (SEA). [83] This section provides that when 'the employer refuses or fails to comply with the order (of the Board or the Minister)' for reinstatement, the employer shall be liable to pay the employee statutory compensation in an aggregate amount to be stated. In effect, [84]
[This provision clearly suggests] that the employer has the option of, inter alia, not re-instating or re-engaging the employee even after being so ordered by the Board or the Minister. These amendments were a big blow
to the workers and human rights advocates who were in support of the right to work. . .
In the beginning, this provision brought about two conflicting schools of thought in the High Court of Tanzania. The first school, the progressive one, held the view that this provision, if not interpreted in a liberal sense, would pre-empt the right to work and security of employment. So, in Juma A Kaziabure v Tanzania Post and Telecommunication Corporation, [85] Msumi J (as he then was), having read this provision together with section 27 of SEA, which equates the decision of the Board of Minister as a decree of the court, holds categorically that '[a]n employer cannot at his own instance choose to pay his aggrieved employee . . . as alternative to complying with the decision of reinstatement'.
This position was reiterated by Justice Mwalusanya in Augustine Masatu v Mwanza Textiles Ltd, [86] where His Lordship interpreted section 40A(5) of SEA liberally and held that:
In the case at hand, it will be recalled, the intention of the Security of Employment Act was to create job security for employees and therefore it is very unlikely that the same legislature decided to take away that tenet of job security by section 40A(5) of the Act.
Therefore, His Lordship concludes that: [87]
In the case at hand the Security of Employment Act has not in a clear language conferred upon an employer the right to terminate the services of an employee in the face of an order of reinstatement. There is section 27 of the Act which is a cog in the wheel held by the employer.
However, the second school, the conservative one, supported the provision of section 40A(5) of SEA. In Mahona v University of Dar es Salaam, [88] supporting this provision, Kisanga J (as he then was) held that an employer has a right to refuse to reinstate an employee and instead terminate his services with full terminal benefits. His Lordship interpreted the section thus: [89]
Essentially, this subsection is saying this: If an employer refuses to reinstate or re-engage an employee as ordered by a Board or the Minister . . . such employer shall pay the employee statutory compensation plus twelve months' wages.
The foregoing conservative school of thought of the High Court was confirmed by the Court of Appeal of Tanzania in Dan Kavishe v Arusha International Conference Centre, [90] where it was held that:
So, according to this section, the employer is not bound to receive the applicant back even if the Permanent Labour Tribunal (now the Industrial Court of Tanzania) or the Minister orders his reinstatement.
This authority entails that an employer who does not wish to reinstate his employee, who has referred his or her dispute to the Board or Minister, can do away with him with or without any reason for so doing. This position of law, indeed, puts the security of the employee's job at risk; hence, using Justice Mwalusanya's diction, [91]
In giving the employer the option to reinstate an employee, the provision negates the constitutional right of an employee of the right to work as provided for in article 22(1) of the Constitution. There is no valid reason why an employee should be discontinued from working, when a court of law found that he committed no offence or irregularity.
In other words, what Justice Mwalusanya was saying is that: by refusing to reinstate an employee who has been found to have committed no offence by the Board or Minister, the section renders the whole process of challenging improper dismissal meaningless. [92] As the Globalisation and Workers' Rights in Tanzania Report notes: [93]
[The law] empowers the employer to discharge his obligation following an order of reinstatement or reengagement of an employee whom [s/he] has dismissed without right only by paying the employee compensation. This means that however unsupported, illegal, oppressive, prejudicial, harsh, unrealistic, or malicious a decision to remove an employee from work, there is no means by which an employee can find a way back if the employer does not want him anymore. Therefore, whenever the employer feels like removing any employee from work, he will readily succeed under the authority [of the foregoing statutory provisions] provided that [s/he] is ready to pay the stated compensation.
7. Some positive examples of judicial protection of the right to work in Tanzania
Notwithstanding the foregoing limitations to judicial protection of the right to work in Tanzania, there are several cases in which the courts positively protected the right to work. In AG v. WK Butambala, [94] the Court of Appeal agreed with Justice Mwalusanya, in the High Court, that the provisions of section 4 of the Legal Aid (Criminal Proceedings) Act 1969, [95] infringed article 23 of the Constitution because the sum paid to advocates who appeared in criminal legal aid briefs was 'outrageous and needed to be looked into'. [96] However, the Court of Appeal faulted the procedure used by Justice Mwalusanya in determining this matter. The reason for the Court of Appeal faulting the procedure used by Justice Mwalusanya was that His Lordship acted on a matter that was not before him.
In fact, Butambala, an advocate based in Mwanza, had handled three legal aid briefs. After the sessions were closed, he wrote a letter to the trial judge, who happened to be Justice Mwalusanya, to have his fees assessed in terms of the Legal Aid (Criminal Proceedings) Act. After receiving the letter, Justice Mwalusanya was of the view that the advocates' remuneration — that is, between TShs 120/= and 500/= [97] in each case — was inadequate and contravened the provisions of article 23 of the Constitution. Thus, Justice Mwalusanya instructed the District Registrar of the High Court, first, to open a Miscellaneous Criminal Cause, second, to set the hearing date of the application, and, third, to serve the parties — Butambala and the AG — respective summonses for hearing of the application.
When the parties attended the hearing, the state attorney who appeared for the Atoorney-General unsuccessfully raised a point of preliminary objection, urging that there should have been a petition in terms of article 30(3) of the Constitution. Having overruled this preliminary objection, Justice Mwalusanya went on to hear the matter on the same day and later on ruled in favour of Butambala, holding that:
In the upshot, under s 5(1) of Act No 16/1984 I hereby construe s 4 of the Act No 21/1969 to be modified so as to bring it into conformity with the provisions of our Bill of Rights. Therefore, I will take it that the paltry sums mentioned in s 4 of Act No 21/1969 are void, and modified to read that an advocate in legal aid cases shall be entitled to be remunerated according to the quantity and quality of the work done as assessed by the certifying authority.
The learned judge proceeded to assess the fees to be paid to Mr Butambala for the three legal aid cases he had handled. His Lordship ordered that the learned advocate should be paid TShs 5 000/= for one of the cases, and TShs 2 500/= for each of the other two cases, totalling TShs 10 000/=.
Although the Court of Appeal faulted Justice Mwalusanya's way of proceeding to 'initiate' this case, in the end, the Court agreed with him that the fees payable under section 4 of Act 21 of 1969 were 'grossly inadequate and out of date'. Therefore, the Court of Appeal concluded that: 'We think something positive must be done, unless the public philosophy is that the service advocates render under the law are intended to be akin to the classical dock briefs of some jurisdictions.' [98]
However, the authorities concerned did not look into the fees until another case was filed in the High Court at Arusha. In The Judge i/c High Court, Arusha and Another v NIN Munuo Ng'uni, [99] the Court of Appeal, with the same Justices of Appeal as those who presided in the appeal before it in Butambala, [100] took a more positive approach to protecting the right to work and earn just remuneration as guaranteed under articles 22 and 23 of the Constitution. In this case, the Court of Appeal held, inter alia, that, whilst TShs 500/= was a substantial amount at the time Act 21 was enacted in 1969, it is peanuts in the 2000s and, clearly, infringed article 23(2) of the Constitution. It was the Court's opinion that a remuneration of TShs 500/=, for defending a serious criminal case such as murder, could not be described as just or equitable to be brought within the purview of article 23(2) of the Constitution.
Given the lack of evidence to the effect that the Attorney-General had taken any positive steps to bring section 4 of Act 21 of 1969 into conformity with the provisions of the Bill of Rights in the Constitution, as per the Court's instruction in AG v WK Butambala, the Court of Appeal, in Munuo, reasonably inferred that the Attorney-General had been negligent in this regard. This was further emphasised by the Attorney-General's inaction during the last 30 months after the High Court had ruled that the fees payable under section 4 of Act 21 of 1969 were grossly inadequate and out of date. Therefore, the Court of Appeal struck out the amount stipulated in section 4 of Act 21/1969 and replaced it with a fee of TShs 100 000/= per brief, based on an advocate receiving a judicial per diem of two and a half days. The new court-set fees were to come into effect on 1 July 2002.
8. The new labour law regime and the future of the right to work in Tanzania
In 2004, two important pieces of legislation relating to the right to work were enacted by parliament. These are the Employment and Labour Relations Act, 2004 [101] and the Labour Institutions Act, 2004. While the latter sets out labour institutions to ensure that the right to work is adequately realised, the former provides for the promotion and protection of core labour rights, [102] by establishing basic employment standards, providing a framework for collective bargaining and providing for the prevention and settlement of disputes. [103] However, these laws have not yet become operational. Consequently, the discussion that follows does not address the practical effect of the new legislation.
It is the Employment and Labour Relations Act which is the most relevant to the right to work. Section 7(1) of the Employment and Labour Relations Act prohibits discrimination in matters related to work. It provides lucidly that '7(1) Every employer shall ensure that he promotes an equal opportunity in employment and strives to eliminate discrimination in any employment policy or practice'. [104]
Subsection (2) of section 7 of the Employment and Labour Relations Act obliges an employer to register, with the Labour Commissioner, 'a plan to promote equal opportunity and to eliminate discrimination in the work place'. The grounds for discrimination are set out in subsection (4) of section 7, and include colour, nationality, tribe or place of origin, race, national extraction, social origin and political opinion or religion. Others are sex, gender, pregnancy, marital status or family responsibility, disability, HIV/AIDS, age, and station in life. The Act is progressive on acts of discrimination, as it criminalises such acts under subsection (7) section 7.
Another progressive aspect of the Employment and Labour Relations Act is found in section 5, which prohibits child labour. Under this section, it is provided that '[n]o person shall employ a child under the age of fourteen years'. [105] However: [106]
A child of fourteen years of age may only be employed to do light work, which is not likely to be harmful to the child's health and development; and does not prejudice the child's attendance at school, participation in vocational orientation or training programmes approved by the competent authority or the child's capacity to benefit from the instruction received.
The Act also prohibits a child under 18 years of age from being employed 'in a mine, factory or as crew on a ship [107] or any other worksite including non-formal settings and agriculture, where work conditions may be considered hazardous by the Minister'. [108] However, under subsection (5) of section 5 of the Act, a child under 18 may be permitted to work:
(a) on board a training ship as part of the child's training;
(b) in a factory or a mine of that work if part of the child's training;
(c) in any other worksite on condition that the health, safety and morals of the child are fully protected and that the child has received or is receiving adequate specific instruction or vocational training in the relevant work or activity.
In terms of subsection (7) of section 5 of the Act, it is an offence for any person (a) to employ a child in contravention of this section; or (b) to procure a child for employment in contravention of this section.
The Employment and Labour Relations Act, on the other hand, prohibits forced labour. In terms of section 6(1) of the Act, '[a]ny person who procures, demands or imposes forced labour, commits an offence'. As such, [109]
(2) For the purposes of this section, forced labour includes bonded labour or any work exacted from a person under the threat of a penalty and to which that person has not consented . . .
However, forced labour does not include [110]
(a) any work exacted under the National Defence Act, 1966 for work of a purely military character;
(b) any work that forms part of the normal civic obligations of a citizen of the United Republic of Tanzania;
(c) any work exacted from any person as a consequence of a conviction in a court of law, provided that the work is carried out under the supervision and control of a public authority and that the person is not hired, or placed at, the disposal of private persons;
(d) any work exacted in cases of an emergency or a circumstance that would endanger the existence or the well-being of the whole or part of the population;
(e) minor communal services committed by the members of a community in the direct interest of that community after consultation with them or their direct representatives on the need for the services.
The Employment and Labour Relations Act also guarantees the right of every employee to (a) form and join a trade union, or (b) participate in the lawful activities of the trade union. Employers also have the right to form and join an employers' association or to participate in the lawful activities of an employers' association. [111]
So, the Employment and Labour Relations Act is one of the most progressive labour laws adopted in Tanzania since the colonial period. This is because the process of enacting the said law involved a tripartite spectrum of stakeholders. During the preparation of the bill for this law, the government, employers and civil society organisations were all involved and satisfactorily consulted. This kind of participation was facilitated by ILO through the Project on Strengthening Labour Relations in East Africa (SLAREA). [112] The SLAREA Project aimed at creating the space for and facilitation of CSOs and Social Partners with a view to putting in place labour laws that aim at encouraging economic growth and the reduction of poverty 'in the context of enhancing social dialogue for productivity as well as labour reforms and employment issues'. [113] It was believed, in essence, that 'poverty eradication is about protecting and creating decent and well remunerated jobs for all'. [114]
In actual fact, the Employment and Labour Relations Act was enacted along the eight fundamental principles underlying the ILO Declaration, which include freedom of association and the effective recognition of the right to collective bargaining, [115] the elimination of all forms of forced or compulsory labour, [116] effective abolition of child labour, [117] and the elimination of discrimination in respect of employment and occupation. [118] Viewed in this context, [119]
[t]he new labour legislation is an important tool for fostering harmonious industrial relations . . . [In effect], the new labour laws have made it possible to have good governance in our workplaces. Indeed, this is a precondition for development and the attainment of higher labour productivity which can lead to steady business profitability and competitiveness and sustainable socio-economic progress.
Therefore, the Act reflects the underlying principles set out in the ILO Declaration, Constitution and national programmes, notably the National Strategy for Growth and Reduction of Poverty (NSGRP). [120] As such, it is expected that once the jurisprudence on the new labour laws evolves, the right to work will be protected more effectively by courts of law.
9. Conclusion
The article examines the judicial protection of the right to work in Tanzania by first tracing the historical basis of the struggle for the promotion and protection of workers' rights. The article also examines the early struggles for the promotion and protection of workers' rights, which were championed by early trade unions. It concludes that the partnership between trade union leaders and politicians weakened the development of a vibrant trade union movement that could have assisted in the promotion of the workers' rights because most of the strong trade union leaders, voluntarily or by coercion, became politicians. The article further examined the effect that party supremacy of the ruling party had on the legislation and practice of labour rights in Tanzania and concluded that party supremacy reduced trade unions into party affiliates and foiled their strength to wage effective struggles for the promotion and protection workers' rights in the country.
Finally, the article reviewed the recent economic liberalisation and its impact on the promotion and protection of the right to work, concluding that the process of economic liberalisation has jeopardised workers' rights in Tanzania because there is a lack of adequate legal protection of the said rights. Nonetheless, the review of some cases instituted in courts of law reveals that the courts of law in Tanzania positively protect the right to work.
[1] In Kiswahili, Chama cha Mapinduzi means the revolutionary party.
[2] J Rudolph 'A right to work' in BG Ramcharan (ed) Judicial protection of economic, social and cultural rights (2005) 247.
[3] n 2 above, 248-249.
[4] As above.
[5] In a 'welfare state', such as Denmark and Britain, the first sense forms a part of security laws, where the 'right to work' may, in this sense, be defined as 'a right of a registered unemployed worker to be provided with work or otherwise to receive unemployment benefits in lieu thereof'. See P Lauring A history of Denmark (2004); Ministry of Foreign Affairs of Denmark Factsheet Denmark, Copenhagen, January 2006.
[6] IG Shivji Lawyers in neoliberalism: Authority's professional supplicants or society's amateurish conscience (2006) 8.
[7] This case is discussed, without complete citation, in Shivji (n 6 above).
[8] Art 25 of the Constitution imposes a duty on every citizen to work and it also prohibits forced labour.
[9] FDAM Luoga 'The Tanzanian Bill of Rights' in CM Peter & IH Juma (eds) Fundamental rights and freedoms in Tanzania (1998) 40.
[10] As above.
[11] Art 6(1) CESCR.
[12] Art 6(2).
[13] In Mr L v the Municipality of Hollola, Yearbook of Supreme Court of Finland, 1997 No 141 (also published in Ramcharan (n 2 above) 260-262), the Supreme Court of Finland held that the state and the municipality 'were under an obligation to strive for arranging to a person a job that corresponded to his ability to work and guaranteed his subsistence'.
[14] Also see Mr L v the Municipality of Hollola (n 13 above).
[15] As above.
[16] See sec 6(2) of the Finnish Constitution Act. This section is identical to sec 18 of the Finnish Constitution of 1999.
[17] Ramcharan (n 2 above) 262.
[18] See CM Peter Human rights in Tanzania: Selected cases and materials (1997) 169; H Kijo-Bisimba & CM Peter Justice and rule of law in Tanzania: Selected judgments and writings of Justice James L Mwalusanya and commentaries (2005) 105.
[19] Augustine Masatu v Mwanza Textiles Ltd High Court of Tanzania at Mwanza, Civil Case 3 of 1986 (unreported), reproduced in Peter (n 18 above) 174.
[20] Peter (n 18 above).
[21] As above.
[22] n 19 above.
[23] Art 22(2) Constitution of Tanzania.
[24] Peter (n 18 above) 170.
[25] Peter (n 18 above). Also see IG SHivji Law, state and the working class in Tanzania (1985).
[26] During this time, peasants were well organised and had a strong leadership through co-operative unions, like the Victoria Nyanza Co-operative Union and the Kilimanjaro Native Co-operative Union. This was also the case with the politicians who were strongly organised through the TANU leadership. Consequently, the weaker trade unions had to seek refuge in this partnership.
[27] See IG Shivji Class struggle in Tanzania (1976) 48-60.
[28] See MA Bienefeld 'Socialist development and the workers in Tanzania' in R Sandbrook & R Cohen (eds) The development of an African working class: Studies in class formation and action (1975) 242.
[29] Peter (n 18 above) 171.
[30] See IG Shivji 'The post-Mwongozo proletarian struggles in Tanzania' in H Goulbourne (ed) Politics and state in the Third World (1979) 142.
[31] Peter (n 18 above).
[32] As above.
[33] Indeed, the labour officers abused the powers vested in them by the law. In Augustine Masatu v Mwanza Textiles Ltd (n 19 above), eg, the labour officer unlawfully gave a fiat for termination of the employee's employment to a JUWATA executive committee member under sec 8(b) of the Security of Employment Act 'because he did not consult the affected employee first and the Labour Conciliation Board'.
[34] As above.
[35] Act 18 of 1964.
[36] The Kiswahili version for Tanzania Workers' Association.
[37] Peter (n 18 above) 172.
[38] SLC Chachage 'Globalisation, politics and good governance in Tanzania' in Globalisation: Who benefits? Annual Human Rights Conference Report, 2003, Dar es Salaam Legal and Human Rights Centre (2004) 111.
[39] Shivji (n 6 above) 18.
[40] This matter is discussed at length in Shivji (n 6 above).
[41] Tanzania Zambia Railway Authority v Hamisi Ally Ruhondo & 115 Others, High Court of Tanzania at Dar es Salaam, Miscellaneous Civil Cause 7 of 1985 (unreported).
[42] Shivji (n 6 above) 18 (my emphasis).
[43] As above.
[44] Tanzania Railway Workers Union v Tanzania Railways Corporation and PSRC, High Court of Tanzania at Dar es Salaam, Civil Case No 190 of 2002 (unreported); COTWU (T) — OTTU Union and Another v Hon Iddi Simba, Minister of Industries and Trade & 7 Others, High Court of Tanzania at Dar es Salaam, Miscellaneous Civil Cause 100 of 1999 (unreported).
[45] OTTU was established under the Organisation of Tanzania Trade Unions Act, 1991 (Act 20 of 1991).
[46] TUCTA was established under the Trade Unions Act, Cap 244 RE 2002.
[47] Peter (n 18 above) 172.
[48] See Government of the United Republic of Tanzania The Report and Recommendations of the Presidential Commission on Single Party or Multiparty System in Tanzania, 1991 on the Democratic System in Tanzania (1992) (Vol 3) 82.
[49] PB Mihyo 'Labour unrest and the quest for workers' control in Tanzania' (1974) 7 Eastern Africa Law Review 14-15.
[50] Augustine Masatu v Mwanza Textiles Ltd (n 19 above) 176.
[51] n 19 above, 177-178.
[52] CJ Mashamba et al Privatisation — Workers' eclipse? Legal and human rights implications of privatisation on industrial relations: The case of the divestiture of the Tanzania Electrical Supply Company Limited (TANESCO) (2002) 9.
[53] n 52 above, 10.
[54] See B Shaaban 'An appraisal of the legal position of trade unions in the operation of the law on retrenchment in public sector reform process' LLM coursework paper, University of Dar es Salaam, 1997 27.
[55] See S Njama 'Restructuring of the parastatal sector in Tanzania' LLM coursework paper, University of Dar es Salaam, 1994 11.
[56] Mashamba et al (n 52 above) 10.
[57] As above.
[58] IJ Maige 'Viability of the privatisation legal mechanism in Tanzania' LLM coursework paper, University of Dar es Salaam, 2000 9.
[59] Mashamba et al (n 52 above) 11. Also see Presidential Parastatal Sector Reform Commission, Privatisation Master Plan, 1992.
[60] As above.
[61] Mashamba et al (n 52 above) 11.
[62] Act 10 of 1990.
[63] n 62 above, sec 3.
[64] The mandate, functions and role of TIC on business investment and economic growth in Tanzania is discussed at length in CM Peter & SJ Mwakaje Investment in Tanzania: Some comments — Some issues (2004) 13-39.
[65] Mashamba et al (n 52 above) 12.
[66] Other laws enacted in order to promote private sector economy in Tanzania after 1990 include the Foreign Exchange Act (Act 1 of 1992), Cap 271 RE 2002 and the Public Corporations Act (Act 2 of 1992), Cap 257 RE 2002.
[67] See, eg, the Trade Unions Act, 1998; and the Industrial Court of Tanzania (Amendment) Act, 1993.
[68] Mashamba et al (n 52 above) 16.
[69] As of 1997, as many as 80 000 workers hitherto employed by the parastatals were retrenched in pursuit of the privatisation process. See The Daily News (Tanzania) 13 January 1997 7.
[70] Act 16 of 1993.
[71] Mashamba et al (n 52 above) 18.
[72] n 52 above, 18-19.
[73] n 52 above, 20.
[74] As above.
[75] As above (my emphasis).
[76] As above.
[77] Nonetheless, in some sense, the term redundancy may be used as synonymous with retrenchment.
[78] As above.
[79] See Kihanira Kulunge Kibaya v United Africa Construction of Tanzania Ltd, Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal 36 of 1987 (unreported).
[80] See, eg, OTTU v Morogoro Co-operative Union, Industrial Court of Tanzania, Employment Inquiry No 6 of 1992.
[81] Industrial Court of Tanzania, Employment Inquiry No 6 of 1992.
[82] In 2004, new labour laws were enacted: that is, the Employment and Labour Relations Act, 2004 and the Labour Institutions Act, 2004.
[83] This provision was incorporated in the SEA. See Act 1 of 1975.
[84] Mashamba et al (n 52 above) 30-31.
[85] High Court of Tanzania at Dar es Salaam, Civil Case 4 of 1985 (unreported).
[86] High Court of Tanzania at Mwanza, Civil Case 3 of 1986 (unreported).
[87] Also see Obadiah Salehe v Dodoma Wine Company Ltd, High Court of Tanzania at Dodoma, Civil Case 53 of 1990 (unreported); General Marketing Co Ltd v AA Shariff [1980] TLR 61.
[88] [1981] TLR 55.
[89] Also see Mathew Kato v National Poultry Corporation, High Court of Tanzania at Dar es Salaam, Civil Case 122 of 1990 (unreported); Peter Ndonde v Tanzania Shoe Company Ltd, High Court of Tanzania at Dar es Salaam, Civil Case 90 of 1986 (unreported).
[90] Court of Appeal of Tanzania at Arusha, Civil Appeal 1 of 1987 (unreported).
[91] Augustine Masatu v Mwanza Textiles Ltd (n 19 above). Also see Legal and Human Rights Centre Globalisation and workers' rights in Tanzania (2005) 23; Legal and Human Rights Centre Tanzania human rights report 2005 (2006) 41.
[92] Globalisation and Workers' Rights in Tanzania (n 91 above).
[93] As above.
[94] [1993] TLR 46.
[95] Act 21 of 1969.
[96] See AG v WK Butambala (n 94 above).
[97] At the time of writing this paper, 1 US dollar was equivalent to TShs 1,250/=.
[98] n 94 above, 54.
[99] Civil Appeal 5 of 1998 (unreported) 5 March 2002.
[100] Justices Lewis Makame and Augustino Ramadhani presided over in both the Butambala and Munuo cases.
[101] Act 6 of 2004.
[102] Eg, Part II of the Act contains fundamental labour rights and their respective protection.
[103] n 101 above, sec 3.
[104] Under sec 8(1), trade unions or employers' associations are prohibited to exercise discrimination against any grounds prescribed in subsec (4) of sec 7.
[105] Sec 5(1).
[106] Sec 5(2).
[107] Under sec 5(3), the term 'ship' is defined to include a vessel of any description used for navigation.
[108] Sec 5(3).
[109] Sec 6 (2).
[110] Sec 6(3).
[111] Sec 10(1).
[112] M Mfunguo 'Statement made at the Opening Ceremony of the ILO/SLAREA National Workshop on the ILO Declaration, Employment Creation and Poverty Reduction Strategies: Enhancing the Roles of Social Partners and Civil Society Organisations' held at Oasis Hotel, Morogoro, 10-12 November 2005.
[113] M Mwingira 'Vote of Thanks at the Opening Ceremony of the ILO/SLAREA National Workshop on the ILO Declaration, Employment Creation and Poverty Reduction Strategies: Enhancing the Roles of Social Partners and Civil Society Organisations' held at Oasis Hotel, Morogoro, 10-12 November 2005.
[114] As above.
[115] See ILO Convention No 87 of 1948 and No 98 of 1949.
[116] See ILO Convention on Forced Labour No 29 of 1930 and ILO Convention on Abolition of Forced Labour No 105 of 1957.
[117] See ILO Convention on Minimum Age No 138 of 1973 and ILO Convention on Worst Forms of Child Labour No 182 of 1999.
[118] See ILO Convention on Equal Remuneration No 100 of 1951 and ILO Convention on Discrimination, Employment and Occupation No 111 of 1958.
[119] J Lyela 'Human rights and the ILO Declaration: The role of the social partners in its promotion and implementation — The role of employers' organisations (the case of ATE)' paper presented at the ILO/SLAREA National Workshop on the ILO Declaration, Employment Creation and Poverty Reduction Strategies: Enhancing the Roles of Social Partners and Civil Society Organisations held at Oasis Hotel, Morogoro, 10-12 November 2005.
[120] The NSGRP is popularly known as MKUKUTA (that is, Mkakati wa Kukuza Uchumi na Kuondoa Umasikini Tanzania).
