Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Abolition of Forced Labour Convention, 1957 (No. 105) - United Republic of Tanzania (Ratification: 1962)

Other comments on C105

Observation

Direct Request

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Imprisonment involving an obligation to work. The Committee notes the Government’s repeated statement in its report that, imprisonment does not involve an obligation to perform work by virtue of Part XI of the Prison Act of 1967. The Government also states that imprisonment does not involve forced labour in Zanzibar. However, the Committee notes that, pursuant to section 61 of the Prison Act, every prisoner sentenced to imprisonment and detained in prison shall be employed in such a manner as the Commissioner may determine, and for that purpose such prisoner shall, at all times, perform such labour, tasks and other duties as may be assigned to him/her by the officer-in-charge or any other prison officer in whose charge he may be. Section 50 of the Offenders Education Act of 1980 of Zanzibar contains the same provision. The Committee observes that prisoners are required to perform labour as determined by the Commissioner and assigned to him/her by the prison officer and that the consent of the prisoner is not required by both the laws. Therefore the following provisions referred to by the Committee, of which the violation is punishable by imprisonment, fall within the scope of the Convention.

I. Tanzania mainland

Article 1(a) of the Convention. Penalties involving compulsory labour as a punishment for the expression of political views. 1. Media. The Committee previously noted that, pursuant to section 25 of the Newspaper Act, 1976, the President may, if he considers it necessary in the public interest or in the interest of peace and order, prohibit the further publication of any newspaper, printing, publishing, selling or distribution of such newspaper being punishable by imprisonment (involving an obligation to perform labour by virtue of Part XI of the Prison Act, 1967). The Government indicated that a Media Bill to replace the Newspaper Act, 1976, had been developed. However, the Committee noted the information from the official government gazette that, in 2012 and 2013, section 25 of the Newspaper Act was applied to prohibit the further publication of certain newspapers.

The Committee notes the Government’s information in its report that the Media Services Act (No. 12 of 2016) was enacted in 2016 to repeal the Newspapers Act of 1976. The Committee notes with regret that the violation of the Media Services Act is punishable with imprisonment pursuant to Part VII, Offences and Penalties, and that the relevant provisions are worded in terms broad enough to lend themselves to application as a means of punishment for the expression of political views or views opposed to the established political, social or economic system. These provisions include:

-Section 50, which provides that any person who makes use by any means of a media service for the purpose of publishing information which intentionally or recklessly falsified in a manner which, or any statement the content of which, threatens the interests of defence, public order, the economic interests of the country, public morality or public health, commits an offence and is punishable by three to five years’ imprisonment.
-Section 51, which provides that any persons who imports, published, sells, offers for sale, distributes or produces any publication or any extract of it, the importation of which is prohibited, commits an offence and is punishable by three to five years’ imprisonment for the first offence, and five to ten years’ imprisonment for a subsequent offence.
-Sections 52 and 53, which provide that any act, speech or publication with a seditious intention, including the sales, distribution, reproduction and importation of such publication, is punishable by three to five years’ imprisonment for the first offence, and five to ten years’ imprisonment for a subsequent offence. The possession of such publication is punishable by two to five years’ imprisonment for the first offence, and three to ten years’ imprisonment for a subsequent offence.
-Section 54, which provides that any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace commits an offence and is punishable by four to six years’ imprisonment.

The Committee also notes that, according to the Statement of the United Nations Country Team (UNCT) with regard to the Universal Periodic Review (UPR) on Tanzania in 2015, since the Media Services Act stipulates the no person will be allowed to practice journalism unless accredited by the journalist accreditation board, its enactment will lead to the suppression of citizen journalists and other volunteer journalists working with community radio stations (A/HRC/WG.6/25/TZA/2, paragraph 40). The Committee therefore requests the Government to take the necessary measures to repeal or amend the abovementioned provisions of the Media Services Act (No. 12 of 2016) to ensure that persons holding or expressing political views are not subject to penalties of imprisonment involving compulsory labour, by clearly restricting the scope of these provisions to situations connected with the use of violence or incitement to violence, or by repealing sanctions involving compulsory labour. The Committee also requests the Government to provide information on the application of the abovementioned provisions, including any prosecutions conducted or court decisions handed down, including the penalties imposed.

2. Meetings, assemblies and organizations. (i) Non-Governmental Organizations Act. The Committee previously noted that section 11 of the Non Governmental Organizations (NGO) Act of 2002 requires all NGOs to apply for registration with the Registrar and that, pursuant to section 13(3), this application for registration may be approved or refused. Section 14(1) of the Act provides that the registration of an NGO may be refused if, inter alia, the activities of an NGO are not for the public interest or on the recommendation of the National Council for NGOs. Section 35 of the Act provides for penalties of a fine or imprisonment (involving compulsory labour) for a term not exceeding one year, or both, for the offences of, inter alia, operating an NGO without obtaining registration. The Committee noted the Government’s statement that there has been, so far, no convictions made under section 35 of the NGO Act of 2002. The Committee also noted that certain provisions of the NGO Act relating to the registration of NGOs had been ruled unconstitutional by the High Court.

The Committee notes the Government’s information that, during the financial year 2015/16, a total of 584 NGOs were registered under the NGO Act of 2002 as amended in 2005. With reference to paragraph 302 of the General Survey on the fundamental Conventions, the Committee once again recalls that, under Article 1(a) of the Convention, the range of activities that must be protected from punishment involving compulsory labour comprises the freedom to express political or ideological views as well as the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views. The Committee therefore once again requests the Government to take the necessary measures to ensure that the abovementioned provisions of the NGO Act are not applied in a manner which could result in the imposition of penalties of imprisonment, involving compulsory labour, for holding or expressing political views or views opposed to the established system.

(ii) Local Government (District Authorities) Act, 1982. The Committee previously noted that paragraph 56 of the First Schedule to the Local Government (District Authorities) Act, 1982, pursuant to section 118(4) of the Act, contains provisions prohibiting, regulating or controlling meetings and other assemblies, and requested information on the application of this Act in practice.

The Committee notes the Government’s repeated statement that a district council has the discretion to perform any of the functions specified in the First Schedule to the Act for general purposes of economic development, social progress, environmental sustainability and general welfare of the people. The Government indicates that, in alignment with section 113(1) of the Act, the local government is responsible to maintain peace, order and good governance. However, the Committee notes the absence of information on the application of the Act in practice. Referring to its explanations above regarding Article 1(a) of the Convention, the Committee once again requests the Government to provide information on any measures or decisions adopted by local governments or district councils to prohibit, regulate and control, inter alia, meetings, processions and other assemblies, pursuant to paragraph 56 of the First Schedule to the Local Government (District Authorities) Act.

Article 1(b) and (c). Penalties involving compulsory labour as a punishment for failure to engage in socially useful work. In its previous comments, the Committee referred to section 176(9) of the Penal Code, under which any person under lawful employment of any description who is, without lawful excuse, found engaged in a frolic of his own at a time when he is supposed to be engaged in activities connected or related to the business of his employment may be punished with imprisonment (involving an obligation to work). The Committee pointed out that provisions under which idle and disorderly persons may be punished for the mere fact of not engaging in socially useful work are incompatible with both the Forced Labour Convention, 1930 (No. 29), and Article 1(b) of Convention No. 105.

The Committee notes the Government’s information that section 176 of the current Penal Code only refers to idle and disorderly persons, as described under subsections (1) to (7). It includes any persons loitering or soliciting for prostitution, begging or procuring children to beg, gambling, soliciting for immoral purposes and acting in an indecent manner in a public place, as well as any persons whose acts are likely to cause a breach of the peace.

Article 1(c). Penalties involving compulsory labour as a means of labour discipline. In its previous comments, the Committee referred to the provisions under which any employee of a specified authority who causes pecuniary loss to his employer or damage to his employer’s property, by any wilful act or omission, negligence or misconduct, or failure to take reasonable care or to discharge his duties in a reasonable manner, may be punished with imprisonment for up to two years, which involves an obligation to work (section 10 of the First Schedule to the Economic and Organized Crime Control Act, 1984 (“Economic offences”), read in conjunction with section 59(2) of the Act).

The Committee notes the Government’s information that, as amended up to 2016, the abovementioned provisions shall now be referred as section 11 of the First Schedule to the Economic and Organized Crime Control Act and section 60(2) of the Act. The Committee observes that, the violation of section 11 of the First Schedule is publishable by imprisonment, according to section 60(2) of the Act. Recalling that penalties of imprisonment involving compulsory labour as a means of labour discipline are incompatible with the Convention, the Committee once again requests the Government to take the necessary measures to repeal or amend section 11 of the First Schedule to the Economic and Organized Crime Control Act, 1984, and to provide information on measures taken in this regard.

II. Zanzibar

Article 1(a). 1. Penalties imposed for seditious offences. The Committee previously noted that section 41 of the Penal Decree (No. 6 of 2004) prohibits engaging in a seditious enterprise (section 41(a)(i)), which is punishable by a sentence of imprisonment (involving compulsory prison labour) of up to seven years. The Committee noted the Government’s indication that the application of section 41 was limited, due to the constitutional provisions concerning freedom of expression which would always prevail in case of a conflict between the Constitution and the Penal Decree.

The Committee notes the absence of new information in the Government’s report. The Committee therefore once again requests the Government to provide information on the application of section 41 of the Penal Decree in practice so as to enable the Committee to ascertain whether this section is applied in a manner compatible with the Convention.

2. Restriction orders in respect of persons conducting themselves so as to be dangerous to peace, good order, good government or public morals. In its previous comments, the Committee noted that section 4(b) of the Deportation Decree (Cap. 41) concerned restriction orders in respect of persons conducting themselves so as to be dangerous to peace, good order, good government or public morals. The Committee noted the Government’s statement that the Decree was no longer in use and in practice as a dead law. The Government indicated that measures were being taken to repeal this legislation.

The Committee notes the Government’s information that the Deportation Decree has been repealed by the Immigration Act No. 7 of 1995. However, the Committee notes that, pursuant to the preamble of Act No. 7, only the Immigration Act of 1972 and the Immigration Control Decree of Zanzibar have been repealed. The Committee therefore requests the Government to clarify the inconsistency between the preamble of the Immigration Act of 1995 and its statement.

3. Penal provisions concerning unlawful societies. The Committee previously noted that, pursuant to section 3 of Societies Act No. 6 of 1995, an unlawful society constitutes any society declared by the Minister to be unlawful, or any unregistered society which has been in existence for more than six months and has not made an application for registration, has been refused registration, and for which registration has been refused. Section 5 of the Societies Act further states that the Minister may, when he considers it to be essential for the public interest, by order declare any society to be unlawful which he considers is being used for a prejudicial purpose, or incompatible with the maintenance of peace, order and good governance. Pursuant to section 6 of the Societies Act, any person who manages or assists in the management of any unlawful society shall be guilty of an offence and shall be liable to a fine or to imprisonment (involving compulsory labour) for a term of six months, or both. The Committee also noted that a draft had been developed regarding the amendment of the Societies Act, and that this draft has been shared with NGOs, whose comments were sent to the Ministry of Justice for further action.

The Committee notes the Government’s statement that no sentences of imprisonment have been imposed pursuant to section 6 of the Societies Act. The Committee once again encourages the Government to pursue its efforts to amend the Societies Act. Pending such an amendment, it requests the Government to continue to provide information on the application in practice of section 6 of the Societies Act, particularly regarding any sentences of imprisonment that have been imposed pursuant to this Act.