Freethinking as a Human Right and a Constitutional Right in Tanzania, a Legal Perspective
By Isakwisa Amanyisye Lucas Mwakalonge
What are Human Rights?
Human rights are fundamental rights a person has by virtue of being a human,while freethinking is a situation of having a rational reasoning and independent mind when analyzing things be it political or religious.And the constitution is a supreme will of the people on how they want to live.
Freethinking as a Human Right and a Constitutional Right in Tanzania
This concept acquires its legal basis from the following: Article 3provides that “the United Republic of Tanzania is a democratic, secular, and a socialist state which adheres to multi-party democracy.’’ The term secular state means not having any connections with religion. Hence, Tanzania, as a secular state, does allow a person to have a choice of either to believe or even not to believe in anything, and it is from this word secular that the concept of freethinking is centered. The term belief means the feeling or certainty that something exists or is true; therefore, article 3 of the constitution implies a permission to practice freethinking, as a human right, constitutional right, and a democratic right. However, for freethinking as a right to be enjoyed fully, there should be the presence of freedom of the press so as to promote the concept of man and ideas. The concept of man and ideas does insist on the value of ideas in human life, individual rights and systems of safeguarding them.Thus, this perception does support freethinking in an indirect way, since freethinking as a lifestyle chosen by a particular person, such person has a legal right to freedom of opinion and expression of his ideas, right to seek, receive or disseminate information regardless of the national boundaries, freedom of communications without interferences, right to be informed all the time about different important events and day to day activities that happens in the society and to the world in general, such a right is to be enjoyed equally as it is enjoyed by Christians and Muslims provided that rules and procedures adhered tosuch that peoples of other faiths are not abused. Furthermore, the right of freethinking in Tanzania is enshrined under article 19(1) of the Constitution, similar to article 8 and article 18, these articles provide that every person has the right to freedom to have conscience or faith and choice in matters of religion, including the freedom to change his or her religion or faith. Consequently, the right of freethinking dwells here in these two words freedom of conscience or faith. Faith means trust, hence having a faith in something it means having a trust in such a thing. A typical example is with religion, where believers have faith in their prophets and god, this means that those believers have trust in those prophets and gods or god. On the other hand, a person can decide to have faith in science and rational reasoning. In Tanzania, a person may choose to have a faith using his mind and not heart to freely think for himself as an independent minded person when it becomes a matter of believing either in the supernatural or science, as the constitution permits a person to trust in anything of the choice. The right of freethinking in Tanzania is also provided under article 20(1) of the constitution, the article provides that: “Every person has a freedom to freely and peaceably assemble, associate and cooperate with other persons and for that purpose express views publicly and to form and to join with associations or organizations formed for purposes of preserving or furthering his beliefs or interests or any other interests.’’
Under this article the words express views, furthering beliefs or interests provides such rights and freedom even to freethinkers to either express their beliefs or interests to the public through associations. Freethinkers are free to form and join associations or organizations, also article 10 and 11 of the Banjul Charter provides the same rights similar to article 22 of the International Covenant on Civil and Political Rights, 1966. Something of much interest is that article 39(2) of the Constitution does provide that for someone to qualify to be elected as the president of the United Republic of Tanzania, religion or faith is not a qualification, any infringed constitutional right can be claimed before courts of law. Though the real situation is not the same on the ground, since laws in the books says one thing and the reality is the opposite, Tanzanians are too religious.
Can we have the Hierarchy of Human Rights?
There is no hierarchy of human rights, all rights should be considered as being of equal status, and the denial of one right invariably impedes the enjoyment of other rights. Human rights are universal, indivisible, interdependent, and interrelated.Therefore, they are to be enjoyed fully similar to other rights, hence the enjoyment of freethinking as a human right must be enjoyed fully similar to other human rights. Other human rights that a freethinker is to enjoy which are interdependent, and interrelated to freethinking rights are from article 18 of the constitution, article 8 and 9 of the Banjul Charter, read together with article 19 of the International Covenant on Civil and Political Rights, the rights are freedom of opinion, expression of ideas, that a freethinker has a right to observe, practice, teach and manifest what he or she trust. That every person has the right to seek, receive and disseminate information regardless of national boundaries.
A freethinker is also entitled to rights to equality of human beings, right to equality before the law, rights to personal freedom, rights to privacy and personal security, freedom of movement, freedom to participate in public affairs, right to work, right to just remuneration, right to own property, as per article 12 to 24 of the Constitution, article 3 to 29 of the Banjul Charter and article 2 to 27 of the International Covenant on Civil and Political Rights, 1966.
Human rights are not dependent on being provided for in a particular legal document. It is in theory and it is a fact that these rights are inherent inborn and therefore they should be recognized, respected and enforced. In Rev Mtikila v. Attorney General Judge Lugakingira in High Court observed that “Fundamental rights are not gift from the state, they are inherited in a person by reason of his birth and are therefore prior to the state and the law…Modern constitutions like our own have enacted fundamental rights in their provisions. This does not mean that the rights are thereby created, rather it is evidence of their recognition and the intention that they should be enforceable in court of law.’’ For that reason, Tanzania as a state that has ratified most of the global, and regional instruments pertaining to human rights, such as the International Covenant On Civil and Political Rights 1966, the African Charter on Human and Peoples Rights, and the Universal Declaration of Human Rights, 1948, is duty-bound to observe the same. The Universal Declaration Of Human Rights, under article 1 states that “all human beings are born free and equal in dignity and rights and endowed with reason and conscience,’’ while article 18 and 19 of the same instrument provides the rights to freedom of thought, conscience or any belief and a right to manifest the belief or religion, practice and observe it. Article 19 gives a right to freedom of expression of opinions and seeks information; therefore, a freethinker also deserves to enjoy these human rights similar to another right inseparable. Therefore, freethinking similar to other human rights is not gifted from the state, but it is an inborn, inalienable and indivisible right that needs to be enjoyed in full just by virtue of being born a human being. States are there to protect them through justice and just laws.
However, it should be noted that human rights are not absolute, they can only be enjoyed based on the directives of other laws and procedures. For example, article 30 of the Constitution provides some limitations upon enforcement and preservation of basic rights, freedom and duties, the human rights and freedoms, the principles of which are set out in the constitution shall not be exercised in a way that it interferes public interests. People of other faiths and religions must be respected and they have to do the same to freethinkers, because where someone’s rights end, then it is the beginning of another person’s rights. We are living in a country where a state by itself is secular but people are in religions. Human rights such as freethinking are to be utilized with great care basing on respecting individual rights, liberty and national ethics, peace, and tranquillity are to be maintained.
The Challenges of Practicing Freethinking in Tanzania
It is dangerous to declare openly that you are a freethinker since freethinkers are living in the state of not being able to express themselves in liberty because the majority of Tanzanians are too religions, they cannot tolerate any rational or scientific analysis which is not god-centred.
Freethinking right is a human right, it is supposed to be enjoyed practically in Tanzania and such move will be a step further for the rule of law, good governance, human rights and sustainable development since all of these are interrelated, inseparable and interdependent.
Issa Shivji et al, Constitutional and Legal System of Tanzania. AR es salaam: Mkuki Na Nyota Publishers,2004
James Jesse. Basic principles of Human Rights and Selected Cases. AR es Salaam: Theophilus Enterprises,2015
Sengodo Mvungi., Breathing the Constitution. Dar es salaam: Legal and Human Rights Center, 2014
Francis Schildknecht, “Freedom of the Press:’’ (Paper Presented at the Seminar concerning the freedom of press in promotion of the concept of man and ideas, at Msimbazi Community Center, Dar es salaam, Tanzania, December 27th ,1967)
Issa shivji et al., Constitutional And Legal System of Tanzania (Dar es salaam:Mkuki Na Nyota Publishers,2004),77.
Cambridge International Dictionary of English
 Sengodo Mvungi, Breathing the Constitution (Dar es salaam:Legal and Human Rights Center,2014)323
The Constitution of the United Republic of Tanzania, 1977.
Francis Schildknecht, ‘’ Freedom of the Press’’ (Paper Presented in a Seminar on Freedom of the Press, Msimbazi Community Center Dar es salaam, Tanzania, December 27. 1962).
Article 18 of the Constitution of the United Republic of Tanzania, 1977.
of The African Charter on the Human and Peoples Rights
of The International Covenant on Civil and Political Rights, 1966.
Vienna Declaration and Programme of Action, 1993.
James Jesse: Basic Principles of Human Rights and Selected Cases Vol.1(Dar es Salaam:Theophilus Enterprises, 2015),7.
Image Credit: Isakwisa Amanyisye Lucas Mwakalonge & Jichojipya/Think Anew.