VII. Tanzanian, Regional, and International Law

This report deals with three forms of conduct—consensual same-sex conduct, sex work, and personal drug consumption—which international law does not address in a uniform manner.

However, human rights protections apply in all three cases. When police or semi-official vigilante groups mistreat or arbitrarily arrest members of any marginalized group, or when health workers deny them services, their actions violate clear international human rights principles. They also often violate Tanzanian law.

Tanzania has initiated a constitutional review process, which provides an opportunity to further domesticate human rights. Drafters should consider establishing a Bill of Rights; building in strong anti-discrimination provisions; and clarifying the primacy of international treaties that Tanzania has ratified.

Consensual Same-Sex Conduct

The criminalization of same-sex conduct between consenting adults violates the right to privacy and the right to freedom from discrimination, both of which are guaranteed rights under the International Covenant on Civil and Political Rights (ICCPR) to which Tanzania is a party. [244] To arrest someone on the basis of consensual same-sex conduct is a violation of the prohibition on arbitrary detention. [245]

The African Commission on Human and People’s Rights has argued that discrimination on the basis of sexual orientation is in violation of non-discrimination provisions in the African Charter on Human and People’s Rights.[246] Tanzania’s constitution also prohibits discrimination.  Article 9, “The pursuit of Ujamaa and self-reliance,” sets forth:

… [T]he state authority and all its agencies are obliged to direct their policies and programmes towards ensuring… that human dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights… [and] that all forms of injustice, Intimidation, Discrimination, corruption, oppression or favoritism are eradicated.[247]

Further, article 13 provides for equal protection before the law and prohibits the government from enacting discriminatory laws. [248] Article 16 protects the right to privacy. [249]

No one has ever brought a case before a Tanzanian court that tests these provisions’ applicability to sexual orientation or gender identity, but a court could find that laws banning same-sex conduct are unconstitutional.

Sex Work

Human Rights Watch believes that the criminalization of the voluntary, commercial exchange of sexual services between consenting adults, as in the case of sex work by consenting adults, violates the right to privacy, including personal autonomy, protected under the International Covenant on Civil and Political Rights (ICCPR).[250]

In addition, the type of identity-based arrests that take place frequently in Tanzania—the practice of police arresting someone solely because she or he is known as a “sex worker” –violates prohibitions on arbitrary arrest under article 9 of ICCPR and articles 4 and 6 of the African Charter on Human and People’s Rights (ACHPR). [251] Tanzania’s constitution also prohibits arbitrary arrests. [252]

Sexual Exploitation

Commercial sexual exploitation of children is strictly prohibited under both national and international law. [253] In all such cases, the person exploiting the child—not the child him or herself—should be penalized. Tanzania’s National Costed Plan of Action for Most Vulnerable Children identifies as one of its target groups “ children involved in the worst forms of child labour,” including “sexual exploitation.” [254] The plan, if implemented, will lead to increased resources for protection and rehabilitation of children engaged in sex work.

Personal Drug Consumption

States are obliged to protect the human rights of all persons, regardless of whether or not their actions violate domestic law. By arresting suspected drug users arbitrarily, on the basis of their “status” as persons who use drugs and in the absence of evidence that they are actually engaged in drug use, Tanzanian police violate article 9 of the ICCPR and articles 4 and 6 of the ACHPR, which protect all persons from arbitrary arrest.[255]

Tanzania should review and reform existing laws that criminalize personal drug consumption and possession of drugs for personal use, in order to ensure that the human rights of people who use drugs are protected and that drug laws do not increase vulnerability to HIV infection or impede access to HIV prevention, care, or treatment.

Right to Be Free From Torture

International law strictly prohibits torture. This prohibition is reflected in article 5 of the ACHPR and articles 7 and 10 of the ICCPR. [256]  Tanzania is one of a handful of countries that has not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which codifies the prohibition on torture and ill-treatment and imposes a series of procedural obligations on states aimed at preventing torture and remedying it, should it occur. [257] The beatings and forced sex to which many Tanzanians have been subjected in police custody clearly contravene the prohibition on torture. 

Tanzania’s constitution states that “no person shall be subjected to torture or inhuman or degrading punishment or treatment.” [258] Further, “for the purposes of preserving the right or equality of human beings, human dignity shall be protected in all activities pertaining to criminal investigations and process.” [259]

In order to demonstrate its commitment to human rights and human dignity, Tanzania should ratify that Convention against Torture and should ensure that torture is a crime prosecutable under its Penal Code and Criminal Procedure Code.

Right to the Highest Attainable Standard of Health

The right to the highest attainable standard of health is guaranteed under the African Charter on Human and People’s Rights, the International Covenant on Economic, Social and Cultural Rights, and the U.N. Convention on the Elimination of all Forms of Discrimination Against Women. [260] Importantly for key populations, access to the right to health must be on a non-discriminatory basis. Discrimination on the basis of sexual orientation and gender identity is explicitly prohibited by international law. [261]

This right imposes an obligation on states to take necessary steps for the prevention, treatment and control of epidemic and other diseases. In meeting this obligation, states “should ensure that appropriate goods, services and information for the prevention and treatment of STDs, including HIV/AIDS, are available and accessible.”[262]For drug users, ensuring the right to the highest attainable standard of health should involve expanding harm reduction programs.[263] For all key populations, in should involve ensuring access to condoms and water-based lubricant.

Regionally, the East African Community (EAC) has begun to take steps toward protecting the right to health, specifically with regard to HIV/AIDS. The East African Legislative Assembly, which includes representatives from Burundi, Kenya, Rwanda, Tanzania and Uganda, passed the East African Community HIV & AIDS Prevention and Management Bill in April 2012. [264] The bill has not yet been signed into law by the East African Community (EAC) heads of state. If it becomes law, it may offer some protections for sex workers, men who have sex with men, and people who inject drugs: it calls on governments to challenge stigma and discrimination against most-at-risk populations; [265] to implement strategies to promote and protect the health of most-at-risk populations; [266] and to ensure that recognized protective methods are available to most-at-risk populations. [267]

The Maputo Protocol on the Rights of Women in Africa, to which Tanzania is a state party, provides that states must ensure the “the right to self-protection and to be protected against sexually transmitted infections, including HIV/AIDS.” [268]

Right to Security and Bodily Integrity

Tanzania is obligated to protect all persons, including members of marginalized groups, from violence. The state has the responsibility of the state to investigate and prosecute violence, whether by state or non-state actors. [269]

Tanzania is also a state party to the Maputo Protocol, which commits states to adopting and implementing appropriate measures “to ensure the protection of every woman’s right to respect for her dignity and protection of women from all forms of violence, particularly sexual and verbal violence.” [270] States parties to the Maputo Protocol further pledge to “enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public” [271] and to “punish the perpetrators of violence against women and implement programmes for the rehabilitation of women victims.” [272]

Sexual violence—including when the victims are engaged in sex work, and including when the perpetrators are police—is a serious crime under Tanzanian law. Rape is punishable by a maximum sentence of life in prison.[273]

The Penal Code does not currently punish rape of men and boys, who, as this report shows, are sometimes victims of rape, including by police officers. Both penal codes currently define the rape as follows: “It is an offence for a man to rape a girl or a woman.” [274]

While taking steps to remove penal code provisions that criminalize consensual same-sex conduct, legislators should replace them with provisions that criminalize rape of boys and men.

Corruption

Tanzanian law has strong prohibitions on corruption, which includes extorting money or sex. It is illegal for a public official to request sexual favors under section 25 of Prevention and Combating Corruption Act of 2007. [275] A representative of the Prevention and Combating of Corruption Bureau told Human Rights Watch, “It’s a crime even if the victims are sex workers.” The official said that the law protects whistle blowers, and that sex workers, LGBTI people, and people who use drugs cannot be prosecuted on the basis of information they provide to the bureau. [276]