Implementation of International Humanitarian Law in Tanzania: A Legal Enquiry

• Jurisdiction: South Africa
• Published date: 22 August 2019
• Pages: 40-63
• Citation: (2012) African Yearbook on International Humanitarian Law 40
• Date: 22 August 2019
• Author: Khoti Kamanga

40

Implementation of International

Humanitarian Law in

Tanzania: A Legal Enquiry

Khoti Kamanga*

1 INTRODUCTION

The law of treaties imposes a legal duty upon States to full i n good faith,

voluntarily and solemnly assumed, international legal obligations; in

other words, the pacta sunt servanda r ule.1 Indeed, the opening article

in the four Geneva Conventions, 1949, reiterates this well-established

rule of customary intern ational law, It reads:

The High Contract ing Parties undertake to respe ct and to ensure respect for

the present Convention in all ci rcumstances.2

In real life however, meeting one’s treaty obligations is a matter

bedevilled by a host of challenges. For exa mple, in jurisdictions

belonging to the dualist legal system and t radition, such as Tanzania,

treaties have to undergo ornate legislative procedures before they nd

their way into the body of applicable and enforceable laws of the land.3

At the core of this paper are, accordingly, three fundamenta l

questions that arise in respec t of Tanzania, First, is whether the Geneva

Conventions of 1949, the three Additional Protocols to the Geneva

Conventions (and other relevant treaties) have been signed, ratied and

‘domesticated’. For, in the absence of these procedural and substantive

factors, the treaties in question, are, in a manner of spea king, worth no

more than the paper they are printed on.

* LLM (Disti nction) PhD (Patrice Lumumba Un iversity, Moscow) LLM in European

Union Law (University of A msterdam); Senior Lec turer, Depar tment of Public

Law, University of Dar es Sala am.

1 Enshrined i n art 26 of the Vienna Convention on the Law of Treaties (1969), its

fundamental i mportance was underscored by the I nternational Court of Justice

case of Gabcikovo-Nag ymaros Projec t (Hungary/Slovakia) ICJ Reports (1997) para

114.

2 That is, ‘Geneva Convention I’, ‘Geneva Convention II’, ‘Geneva Convention

III’, and ‘Geneva Convention IV’.

3 For details on the domest ication procedures se e K Kamanga ‘Inter national

Human Rights L aw as Reected in Tanza nia’s Treaty and Court Prac tice’ in

W Binchy et al (eds) Human Rights, Constit utionalism and the Judiciary: Tanzanian

and Irish Perspectives (20 06) especia lly at 55-58. For a wider, compa rative

discourse on the mat ter, see T Maluwa Internat ional Law in Post-Colonial Af rica

(1999) especially at 34-51.

(2012) African Yearbook on International Humanitarian Law 40

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IMPLEME NTATION OF INTERNATIONA L HUMANITAR IAN LAW IN TANZAN IA

41

Secondly, is the identication of the core, fundamental obligations

arising from ‘expressing consent to be bound’ by the Geneva C onventions

and their Additional Protocols, Third ly, and, as a collateral, to examine

the extent to which, if any, Tanzania, as a State Party, 4 has honoured

its treaty obligations. In pursuing t he aforementioned three questions,

and to give a regional dimension, the corresponding situ ation in two

of Tanzania’s neighbours; that is, Kenya and Uganda, is given, even if

in respect to only select national implementation measures.

Besides geographic proximity, the three nations also share

membership in the Commonwealth (and its legal traditions), the

African Union (AU), and the East Afr ican Community (E AC),5 to

which Burundi and Rwanda a re also afl iated.

In terms of the broad objective of the study, the aspiration is

to contribute towards efforts at the dissemination of, and greater

awareness of, IHL. As wi ll be shown presently, this otherwise mundane

objective is fairly critical, given t he unique, but poorly appreciated

signicance of IHL to Tanzania . Secondly, by bringing IHL into greater

focus, the existing i mpasse in national implementation is likely to be

turned around. A nd if this were indeed to happen, and from a legal

perspective, the study w ill have been part of the larger a nd broader

initiative of ensuring that Tanzan ia is in greater compliance with its

treaty obligations as a State Party to key IHL legal tex ts, and indeed,

with the pacta sunt serva nda.

To appreciate the signicance of the present study, one may wish

to take cognisance of the fact that un like her neighbours in East

Africa (and Great Lakes Region), Tanzania has escaped the scourge

of armed conict, at least in terms of either feroc ity, magnitude or

duration witnessed, say, by Burundi, DRC, Rwanda and Uganda.6

Unfortunately, Tanzania’s seemingly insulated position feeds into the

misguided perception that IHL do es not warrant heightened attention.

4 Under the ter ms of art 11 of the Vienna Convention on the Law of Treaties (1969),

this would be a State which ha s ‘expressed consent to be bou nd by a treaty’

and may do so either throug h ‘signature, excha nge of instruments, ratication,

acceptance, approval or acces sion, or by any other means if so agreed’.

5 A s created by the Treaty Est ablishing the Ea st African C ommunity

30 November 1999.

6 Burundi has had to deal with c yclical waves of arme d conict, genocide a nd

mass displacement from a s far back as 1965. In Rwanda, the rst ever inc idence

of a similar natu re occurre d in November 1959. Similarly, the DRC has not

known peace from a s early as 1961 with the assassinat ion of the country’s rst

ever elected Pr ime Minister, Patrice E mery Lumumba. I n Uganda, rebels of the

Lord’s Resistance Army ( LRA) have been engaged in violent conict aga inst the

Uganda People’s Defence Force (UPDF ) and civili ans for close to 30 years. L RA

top leadership has Internat ional Crimin al Court (IC C) indictments hang ing

over its head.

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