Collective Human Rights in Court Practice: A Comparative Survey of Tanzania, East Africa and the African Union
There is not in place a uniform definition of the term “collective human rights” at least in the African human rights instruments. However, these rights have been contextually referred to be relevant for certain communities or groups of people with a common shared interest or identity.
The African Charter on Human and People’s Rights as a regional human rights instrument has been structured to replicate the history, values, traditions, and development of the African continent. The Charter blends the African values with international standards by not only advocating for internationally recognized individual rights, but also promoting collective and individual rights and duties. Regionally, the Charter has engineered institutions forming the African regional human rights system, i.e. the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights, and the African Committee of Experts on the Rights and Welfare of the Child with the mandate to receive, adjudicate, investigate, determine and issue recommendations on human rights related cases, be it individual or collective. The practice and consequences of collective human rights in such bodies will be comprehensively surveyed in the intended study.
At the East African Community level, the field of human rights does not hold much jurisprudence since the East African Court of Justice (EACJ) is yet to be conferred human rights jurisdiction by the law. However, in the case of James Katabazi and 21 others versus Secretary General of the East African Community & Attorney General of the Republic of Uganda, Reference No. 1 of 2007, the EACJ vested itself with the interpretation jurisdiction to adjudicate on human rights matters in implementation of the objectives and operational principles of the Community as set out in Articles 5 (1) and 7 (2) of the Treaty for the Establishment of the East African Community, 1999. Hence, the practice of human rights before such Court is de jure limited but de facto operational. In that regard, a study on adjudication of collective human rights at this regional Court to contribute to the existing knowledge in the field is relevant.
At the national level, the Constitution of the United Republic of Tanzania, 1977 mostly provides for the first generation individual rights. However, the High Court has interpreted such rights in a broad concept to capture the idea of collective human rights. For instance in the case of Joseph Kessy et al vs. Dar-es-Salaam City Council, Civ. Case No. 299 of 1988, the High Court of Tanzania at Dar-es-Salaam, interpreted the right to life to include the right to health with an objective to defending the right to a clean and healthy environment to the residents of Tabata area in the Dar es Salaam region. The study on the practice of collective human rights at the national level will suffice to come up with the experience on how Courts at the national level have internalized the whole concept of collective human rights for the benefit of the relevant groups of people or communities.
The intended project will contribute to the key concepts of the Cluster of Excellence – multiplicity, relationality and reflexivity – by analyzing the multifarious relations and interactions between the various levels of human rights jurisprudence mentioned, i.e. of the African Union, of the East African Community, and of Tanzania as a member state of both of them.
The methodology will include empirical research at the African Court on Human and Peoples’ Rights in Arusha, at the East African Court of Justice in Arusha, and at selected Registries of the High Court of Tanzania. This research will be conducted during two field trips to Tanzania in years 2 and 3, which have already been approved in the overall Proposal for the Research Project on “Human Rights, Corporate Social Responsibility and Interacting Markets in Africa”.
The duration of my doctoral research project will be four years (September 2019 to August 2023).