History
The commission started as the Permanent Commission of Enquiry in 1965under the Tanzanian Constitution Chapter 5 Section 67-69 and in a Statute as an independent commission. The Permanent Commission of Enquiry was the first office of the Ombudsman in Africa and second in the Commonwealth countries. The Permanent Commission of enquiry was started with the aim of listening and providing solutions to problems the public had which related to the abuse of their rights and misuse of power by state officials. Also at that time, the National Assembly was dependent on the ruling party therefore there was no way the people’s rights would be well catered for because of the biasness. The PCE achievements included aggressive outreach efforts in rural areas to create awareness about its work, satisfactory resolution of public complaints and the rate of abuse of power decreased drastically. In 2000, the PCE became the Commission of Human Rights And Good Governance (herein referred to as CHRAGG) following a constitutional amendment. Further legislative changes broadened the mandate of CHRAGG to provide it with the mandate of human rights and maladministration. It is governed by the Good governance Act
Reasons for the Commission
1. Provided an opportunity for protection of the people’s rights when abused by the public officers
2. Establish fairness in the making of decisions by the administration bodies
3. Need to have a different justice system from the normal court system
4. Need to preserve traditional values to guarantee the individual rights
CHRAGG is an independent commission and is incorporated in the 1997 constitution of Tanzania under article 129(1) . The functions of the Commission have been stated under article 131 of the constitution and article 6(1) of the Good Governance Act of Tanzania. The functions are:
a) To protect human rights as stipulated by the laws in Tanzania
b) To receive complaints on the violation of human rights
c) Investigate cases of human rights violations and derogation from principles of good governance
d) Research on issues of human rights and good governance and educate the public on them
e) Investigates on complaints of the acts done by government officials. (Protective and investigatory mandate). Also looks at cases of maladministration by officials and abuse of office
f) Advice the government and other governmental and non-governmental organizations on human rights(advisory mandate)
g) To co-operate with the representatives of the United Nations, Africa Union and International Monetary Fund and other organizations which cater for protection of human rights and good governance
h) To grow and ensure continuity and harmony between various people and organizations brought before the commission
CHRAGG is among the six (6) commissions which advocate for protection of human rights keeping in mind the functions that have been given to it by the Constitution of Tanzania. This commission has been divided into 3 sections:
• Employment and discipline
• Abuse of power
• Retirement benefits
BACKGROUND OF THE COMMISSION
This office was established in 2001 by article 129-131 of the 1977 Constitution of the United Republic of Tanzania and the CHRAGG Act (Cap 391) of 2007. This office plays both the role of the Ombudsman and that of the human rights commission. The legislation allowed the commission to work both in the mainland and Zanzibar. However it was not possible for the commission to take charge in Zanzibar until a parliamentary enactment was put into place and in May 2006, Union government authorities and Zanzibar officials agreed that they would be permitted to take charge in Zanzibar. This commission promotes awareness of human rights and investigates violations. Since its creation it has been actively performing the functions given to it by the Constitution of Tanzania. The commission is led by a judge and composed of nine other commissioners of who are not necessarily lawyers. It has over the years employed: lawyers, economists, political scientists and sociologists. The commission, in 2007, had employed more than 160 employees and operated with a budget of approximately $2.4 million (3.1 billion shillings), an increase from its 2005 budget of approximately $2.1 million (2.7 billion shillings) both from national budgets and donors . It however remained underfunded, understaffed and overburdened putting into consideration that there was a rise in the number of unresolved cases that they had in their hands. These commissioners can arrest and persecute people but they prefer to use less harsh consequences like arbitration and out of court conflict resolution. By mid-2006, the commission had received 14,487 complaints from organizations and individuals, and made recommendations to the government regarding 8,627. It however categorized 1.8% of the complaints as human rights violation related and the rest maladministration by the government. It resolved cases involving abuse of power, violence against women and promotion of women's involvement. In 2006 it wrote a report on the poor conditions of prisons and even recommended ways by which the government would improve these conditions. As the year drew to a close the commission was in the process of introducing a computerized case management system to improve the process.
The public however has different perceptions on the independence of the commission. Part of the public is of the opinion that the commission operated independently while others say that the commission is in no position to claim that it has worked independently due to factors as enlisted below;
i. The commission is barred from investigating the President
ii. The president has the power to direct the commission to discontinue investigations and he must give a reason for ordering a discontinuity on the investigations.
iii. the commission has not yet developed its capacity to serve the whole country.
There is a need to ensure closer coordination between the commission's operations and other related organs, such as the Good Governance Coordination Unit in the President's office, the Prevention of Corruption Bureau, the police, and civil society. In 2006 the Global Integrity Index scored the commission a score of weak on its operations. It however indicated that there had been too few cases to establish whether the government acts on the findings of the agency. In 2005, the Chairman of the Commission Justice Kisang noted that the lack of institutional cooperation and good faith by the government impeded investigations as public servants either delayed in answering the Commission's letters of inquiry or refused out right to do so.
CONSTITUTIONAL PROVISIONS
Article 129: Establishment
(1) There shall be a Commission to be known as the Commission for Human Rights and Good Governance.
(2) The Commission shall consist of the following Commissioners –
(a) the Chairman
(b) the Vice Chairman
(c) other Commissioners not exceeding five
(d) Assistant Commissioners
Article 129: Appointments
3) All Commissioners and the Assistant Commissioners shall be appointed by the President after consultation with the Nomination Committee.
(4) There shall be a Nomination Committee which shall consist of the following members -
(a) The Chief Justice of the Court of Appeal;
(b) The Speaker of the National Assembly;
(c) The Chief Justice of Zanzibar;
(d) The Speaker of the House of Representatives; and
(e) The Deputy Attorney General, who shall be Secretary of this Committee
3) All Commissioners and the Assistant Commissioners shall be appointed by the President after consultation with the Nomination Committee.
(4)There shall be a Nomination Committee which shall consist of the following members -
(a) The Chief Justice of the Court of Appeal;
(b) The Speaker of the National Assembly;
(c) The Chief Justice of Zanzibar;
(d) The Speaker of the House of Representatives; and
(e) The Deputy Attorney General, who shall be Secretary of this Committee
Article 129: Tenure
(5) A Chairman, Vice Chairman and all other Commissioners, shall each hold office for a period of three years and may be re-appointed for another only one term of three years.
(6) Any person who is appointed as Commissioner of the Commission shall immediately abandon any office held by him in any political party or any other office
Article 129:Removal from office
7) A Commissioner or Assistant Commissioner may only be removed from office for reasons of;
• failure to discharge his duties
• illness or any other reason,
• misconduct
(8) The Commission may discharge its duties notwithstanding that there is vacant office among the seats of Commissioners or that one of the members is absent.
Article 129- Independence
(2) The Commission shall be an autonomous department, in exercising its powers; shall not be bound to comply with directive or orders of any person or any department of government, or any opinion of any political party or of any public or private sector institution
(3) The provisions of sub-article (2) shall not be construed as restricting the President from giving directive or orders to the Commission, nor are they conferring a right to the Commission of not complying with directions or orders from the President, if public interest so requires
Article 129- Scope of Authority
(4) The Commission shall conduct inquiry in accordance with the provisions of this Article and of any law enacted in that behalf by the Parliament, and shall inquire into the conduct of any person concerned or of any institution concerned whenever the President directs to conduct inquiry; likewise, except as the President directs the Commission not to conduct investigation the Commission may conduct investigation whenever it deems necessary to inquire into the conduct of any person concerned, or any institution concerned who is suspected or which is suspected to have abused the authority of his office, misused the authority of his office or the functions of such institution or for violation of human rights and principles of good governance.
Article 129- Limit to Scope
(5) The Commission shall not have powers to inquire into decision of any Judge, Magistrate or of the Court if such decision was made in the course of exercise of the powers of his office; likewise, the Commission shall not have a power to inquire into any decision made by any or Tribunal established in accordance with a law if that decision was made in the discharge of its functions.
(6) The provisions of this Article shall apply to persons employed in the service of the
• Government of the United Republic
• Revolutionary Government of Zanzibar,
• Employees and leaders of the political parties,
• Members and employees of all Commissions of the Government of the United Republic and the Revolutionary Government of Zanzibar
• Parastatal organizations and
• other public or private organs, companies, community, associations, trustees or any other schemes;
• but these provisions shall not apply to the President or Leader of the Revolutionary Government of Zanzibar
Article 130-Functions
(1) Commission for Human Rights and Good Governance shall discharge the following functions –
(a) To sensitize countrywide-Public awareness
(b) To receive complaints
(c) To conduct inquiry
(d) To conduct research
(e) To institute proceedings in court
(f) inquire into the conduct of any person concerned and any institution concerned in relation to the ordinary performance of his duties or functions or abuse of the authority of his office;
Article 131- Powers of the Commission and Procedures of discharging its duty
(1) The Parliament may enact a law for purposes of prescribing provisions in respect of authority of the Commission, procedures for conducting its business and legal immunities for Commissioners and employees of the Commission which shall enable them to discharge their duties without legal constraints.
(2) The Commission shall not inquire the following matters;
(a) any matter which is before a Court or any Tribunal;
(b) any matter concerning relationship or cooperation between the Government and a foreign Government of any country or international organization;
(c) any matter concerning powers of the President to award remission;
(d) any other matter that is mentioned in any law.
Article 131- Reporting
(3) In any financial year, the Commission shall prepare and submit to the Minister responsible for human rights a report in respect of -
(a) activities of the Commission in the preceding year;
(b) implementation of preservation of human rights in the United Republic,
and, the Minister shall table before the National Assembly each report submitted to him as soon as practicable after receipt.
(4) The provisions of sub-article (3) shall not be construed as restricting the Commission from submitting any other report to any person or any other authority
AN ACT TO PRESCRIBE THE PROCEDURES AND PRIVILEGES OF THE PERMANENT COMMISSION OF ENQUIRY
Interpretetion
Section 2 of the act outlines the interpretation of the certain terms in the act such as "appropriate authority"—in relation to a Ministry or independent department of the Government, means the Principal Secretary responsible, in accordance with the regulations of the Civil Service, for such Ministry or department, and includes the Chief Justice, the Speaker and the Controller and Auditor-General; Also "the Commission" means the Permanent Commission of Enquiry established by section 67 of the Constitution
Appointment of a member of the Commission
If one is appointed as a member of the commission, under section 4(1) he/she must vacate the following:
(a) the office of Speaker of the National Assembly
(b) the office of judge and of a judicial officer;
(c) a Civil Service office;
(d) the office of a member of the Electoral Commission;
(e) the office of a member of a local government authority and any office in the service of a local government authority;
(f) the office of a member of a scheduled organization and any office in the service of a scheduled organization
Public Department and Officers
5. Subject to the provisions of the Constitution and this Act, the provisions of any law relating to public departments shall apply to the Commission, and the office of Commissioner and any office under the Commission shall be public offices in the service of the United Republic.
Oaths
Section 7 of the act outlines what is required for those holding the office in terms of oaths
(1) Every Commissioner shall, before entering upon the duties of his office, take and subscribe the oath of allegiance and the oath for the due administration of his office set out in the Second Schedule to this Act, which oaths shall be administered by the President.
(2) Every person appointed to an office under the Commission shall, before entering upon the duties of his office, take and subscribe the oath of secrecy set out in the Second Schedule to this Act, which oath shall be administered (by a Commissioner
Powers and Procedures
Section 9 of the act states as follows
(1) Subject to the provisions of this section, the Commission shall, before entering upon any enquiry
(a) record the nature and scope of the enquiry it proposes to make; enquiry
(b) inform the appropriate authority of its intention to make the enquiry and furnish him with a copy of such record.
(2) If, in the course of any enquiry, the Commission considers that the nature or scope of the enquiry should be enlarged, the Commission shall cause a further record to be made to that effect and shall furnish the appropriate authority with a copy thereof.
(3) Where the Commission makes an enquiry, or the nature or scope of an enquiry is enlarged, on the direction of the President, such direction—
(a) if in writing, shall constitute such record aforesaid;
(b) if not in writing, shall be recorded by the Commission, and if, in any such case, the President is the appropriate authority it shall not be necessary to inform him of the Commission's intention to make the enquiry or to furnish him with a copy of such record
Conduct of Enquiries
Section 10 states
(1) Every enquiry shall be conducted in private.
(2) The Commission may hear or obtain information from such persons, and may carry out Such investigations, as it thinks fit…..
However- it may not be required to conduct a hearing if Provided that if at any time during the course of the enquiry it appears to the Commission that there may be sufficient grounds for its making any report or recommendation that may adversely affect any person or any department or scheduled organization
Procuring Information and the Attendance of Witnesses
Section 11 states (1) Subject to the provisions of this Act, the Commission may require any person who, in its opinion, is able to give any information relating to any matter relevant to an enquiry to furnish it with any such information and to produce any documents, papers or things which may be in the possession or under the control of that person and may, by order under the hand of a Commissioner, require any such person to attend before the Commission at a time and place specified in such order and to be examined on oath or to produce any such document, paper or thing.
(4) If a person to whom an order under this section is directed does not attend at the time and place mentioned therein, the Com- mission may, upon being satisfied that the order was duly served or that the person to whom the order is directed willfully avoids service, issue a warrant under the hand of a Commissioner to apprehend such person and to bring him before the Commission at a time and place specified in the warrant
Privileges of the Commission
Section 19- No enquiry, proceeding or process of the Commission shall be Proceedings held bad for any error or irregularity of form, and, except ground of lack of jurisdiction, no enquiry, proceeding, process or report of the Commission shall be liable to be challenged, reviewed, quashed or called in question in any court.
Sub-section (2) Anything said, any information supplied, or any document, paper or thing produced by any person in the course of an enquiry shall be privileged in the same manner as if the enquiry were a proceeding in court, and a report of the Commission shall be privileged in the same manner as if it were the record and judgment of a proceeding in court
CHALLENGES AND POSSIBLE SOLUTIONS TO THE CHALLENGES
CHALLENGES
1. The commission in Tanzania does not give the solutions to the people’s problems faster especially the urgent ones thus no help is offered to the aggrieved
2. Lack of funds leading to unfinished work therefore slowed response to the aggrieved
3. Poor communication whereby a person does not communicate to the commission once they have had solutions given to their problems. This leads to piling of old files in the commission for a long time as the cases have been left pending.
4. Complainants end up changing their addresses and places of work without informing the commission therefore the solutions to the complaints cannot be communicated to them
5. They don’t have machines for example computers and even printers. They have only had 1 printer and they recently got a photocopy machine
6. Poor environmental conditions in Acacia and Twiga where some of their offices are located. Lack of water, garbage lying around, most of the time there is no electricity are some of the problems the Commission goes through
SOLUTIONS
1. Educating the community on commission of human rights and good governance through public conferences from Dar es Saalam to other parts of the country and through the media
2. The office should maintain continuous dialogue with government officials and balance between winning their confidence and that of the public for effectiveness of their recommendations
3. Priority in terms of allocation of funds should be determined by places where there are low standards of living in that they should be allocated more funds for example in Msoma so that the people can get to report all their problems at a cheap or no rate at all
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