As we strive to thwart human trafficking in Tanzania, it is important to remind the law and policymakers of the legislative dilemma surrounding the implementation of anti-trafficking in person laws in Zanzibar, the other part of the United Republic of Tanzania.
We will remember that in 2008, the Tanzanian Parliament enacted the Anti-Trafficking in Persons Act No. 6 of 2008 aimed at counteracting human trafficking and all its forms in the United Republic of Tanzania. Section two of this piece of legislation provides that the law applies in both Tanzania Mainland and Zanzibar. This is simply because home affairs is a Union Matter. Thus, the anti-trafficking committee established under section 30 and the secretariat are both Union institutions comprised of members from both Mainland and Zanzibar.
But while this is true in papers, the legal reality is different on the ground. This is so because Article 132 of the 2010-Constitution of Zanzibar sets a requirement that before a Union Act enacted by the Parliament of the United Republic of Tanzania can apply in Zanzibar, it must be tabled in the House of Representatives, Zanzibar’s legislative body, for endorsement. This means that the Union law does not apply automatically in Zanzibar. This process has not been undertaken as far as section two of the Anti-Trafficking in Persons Act is concerned. It means that the law does not have any legal force in Zanzibar.
This situation has been raising more questions than answers with stakeholders failing to understand why this is the case. During one stakeholder meeting in Zanzibar, I submitted that the trafficking in persons laws that the Zanzibari trainees were trained on did not apply in Zanzibar because the law has not been tabled in the House of Representatives for endorsement. There were mixed reactions to this submission. Some stakeholders (including immigration officers, prosecutors, magistrates, and Social workers) found it hard to believe it. Their line of argument made sense to me and had I been in a position to influence the government of Zanzibar to expunge Article 132 from the constitution I would have done so. They asked difficult questions which had no answers.
I remember one participant to the training asking me, “If the law was enacted by the Parliament of the United Republic of Tanzania constituted of members of Parliament from both Tanzania Mainland and Zanzibar and the same law is a union matter why would it need an endorsement from the House of Representatives? What is the point here? What is the point of it being a union law?” Honestly, I had no answers. I had to ask him to discuss with me why the law has not been endorsed as required lest we’ll be inviting a debate that would unleash the pandora’s box.
But some see the point of this arrangement. They argue that the issue of endorsement was right because some circumstances in Tanzania Mainland are quite diverse with circumstances in Zanzibar. Therefore, a law meant to apply in Tanzania Mainland should not apply exactly in Zanzibar without modifying it to meet the local context.
This perspective is interesting as it reminds me of Lord Denning’s ratio decidendi, or the reason, in the case of Nyali Ltd. v. Attorney-General of Kenya, 1955. In deciding whether common law of England could purely apply in Kenya, Lord Denning had this to say, “[T]he common law is to apply subject to such qualifications as local circumstances render necessary. This wise provision should be liberally contracted. It is recognition that the common law cannot be applied in a foreign land without considerable qualification. Just as with English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character, which it has in England. It will flourish indeed but it needs careful tending. So, with the common law. It has many principles of manifest justice and good sense which can be applied with advantage to people of every race and colour all the world over; but it has also many refinements, subtleties, and technicalities which are not suited to other folks.”
I assume that the Union law is nothing but an oak from Tanzania Mainland which can’t retain its toughness in Zanzibar soil unless modified to suit circumstances. However, the bottom line remains. Zanzibar is the main gateway of human trafficking and so it deserves special attention. In this case, the anti-trafficking law should be tabled immediately in the House of Representatives for endorsement if we are to arrest TIP altogether.
Tanzania Mainland cannot be safe if Zanzibar is at risk.
Edwin Mugambila is the Executive Director of local anti-human trafficking watchdog, Tanzania Relief Initiatives based in Dar es Salaam, Tanzania. You can reach him through his e-mail address which is firstname.lastname@example.org or through his mobile number +255 659 577 955. These are the writer’s own opinion and they do not necessarily reflect the viewpoint of The Chanzo Initiative. Want to publish in this space? Contact our editors at email@example.com for inquiries.