The human rights defenders were arrested at the Muhimbili National Hospital, where the police allege they had gathered illegally and were intending to hold an illegal demonstration, although the group maintained that they were merely going to observe the dialogue between the government and health officials.
These recent events put the spotlight on the relations between the police and the Tanzania public, and raise serious questions about both the use of force by the law enforcers, as well as their discretion to limit the fundamental human rights of the citizens.
Article 20 of the Constitution of Tanzania enshrines the right for people; “to freely and peaceably assemble, associate and cooperate with other persons”. However, as expressed in the constitution, this right can be limited by other national legislation for certain purposes, including ensuring public order or where it is in the public interest.
The Police Force and Auxiliary Services Act forms part of the national legislation, which regulates public assemblies. This Act states that notification must be provided to the police 48 hours in advance of a planned public assembly. The police are given broad powers to prohibit the assembly if they believe it “is likely to cause a breach of the peace, or to prejudice public safety or the maintenance of public order”.
The question is, in relation to the arrest of the 16 activists, did they cause a breach of the peace, or prejudice public safety and the maintenance of public order?
Crucially, were the police, by prohibiting the alleged assembly and subsequently arresting the activists, using their discretion appropriately?
Arguably a “breach of the peace” could be interpreted very broadly by police, allowing them to use their discretion to prohibit all public assemblies. This is very concerning, and is likely to be considered an unnecessary restriction in international law.
The International Covenant on Civil and Political Rights states that no restriction can be placed on the freedom to assemble, save for those “which are necessary in a democratic society in the interests of national security or public safety, public order ...or the protection of the rights and freedoms of others”.
Critically, it is noted that, under this international covenant, only restrictions that are “necessary in a democratic society” (emphasis added) can be placed on the fundamental human right to assemble.
Applied to these circumstances, a public assembly held to observe (or allegedly protest) negotiations about health sector issues is likely to be found as one that is reasonable in a free and democratic society, and one that is not likely to unreasonably breach public order or public safety.
As officers charged with protecting the rights of citizens, the police must use their discretion to limit public assemblies wisely, and ensure that they are only placing restrictions on the fundamental right to assemble that would be deemed necessary in a democratic society.
In particular, the police must be careful to ensure that public assemblies, called for a political purpose, which are a common and indeed vital aspect of a healthy democracy, are not arbitrarily restricted or prohibited.
Another key feature of a democratic society is the proper, legal use of force by the police.
The United Nations Basic Principles on Use of Force and Firearms, specify that force must only be used in exceptional circumstances, when strictly necessary and that the force must be proportionate to the threat posed.
Further, firearms should only be used to prevent death or serious injury of another, and only when less extreme means are insufficient.
On Tuesday, according to media reports, the police fired directly into a crowd in Songea, as the crowd was moving towards a police station compound. The police reportedly first tried to disperse the crowd by firing in the air and using teargas, before resorting to firing directly into the crowd.
It is difficult to determine at this stage if this use of force was justified under international law and standards, however, at the very least, it is important to ensure a thorough, independent investigation into the incident to determine whether it was lawful.
The former United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Prof Philip Alston, found that, in order to create a culture where firearms and weapons are used as a last resort by police, as required under international law, independent bodies that are separate from the police need to be created with strong powers to investigate incidents where police cause a death or serious injury.
Tanzania does not have such a body and desperately needs one. In fact, at the recent review of Tanzania by the United Nations Universal Periodic Review, both the UK and Danish governments recommended that the East African state should establish an independent body to investigate complaints against the police.
This is critical in ensuring that the police are both held, and seen to be held, accountable for their actions. The establishment of such a body will be beneficial to everybody and will improve public trust in the police, and hence increase respect and public cooperation with the law enforcers.
The Government of Tanzania agreed to these recommendations, meaning that they must establish it before they are reviewed by the UN again.
In creating such a body, Tanzania should look to neighbours Kenya, who recently passed legislation establishing an Independent Policing Oversight Authority.
A hallmark of a democratic society is the right to peacefully assemble and voice opinions.
Policing of such events should be conducted in accordance with the constitution and international principles and standards. Tanzania must ensure that they follow best practice human rights policing, including establishing an independent police oversight body, to cement its place as a leader in good policing in East Africa.
*Sarah Mount and Sanyu Awori are programme officers with the Commonwealth Human Rights Initiative