Centre for Human Rights and Others v. United Republic of Tanzania

Nature of the Case

The African Court on Human and Peoples’ Rights held that the United Republic of Tanzania violated the human rights of persons with albinism (“PWA”), as protected by the African Charter on Human and Peoples’ Rights (“the Charter”), the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on the Rights and Welfare of the Child ( “Children’s Charter”). The Court ordered both compensatory and injunctive relief, including, among other things, a fund of ten million Tanzanian shillings, reunification of children with albinism and families, the full realization of the rights to health and education for children with albinism and an education campaign to counter myths regarding PWA within Tanzania’s borders.

Summary

Between 70,000 and 200,000 persons with albinism (“PWA”) live within the United Republic of Tanzania (“Tanzania”), one of the highest rates in the world.  Unfortunately, since the turn of the Century, PWA in Tanzania have faced persecution, trafficking, violent attacks, amputations, and murders at a significantly higher rate than that of the regular population.  This is due, in part, to local tribal beliefs that albinism is a curse and the use of PWA body parts as aids in witchcraft.  

Representing PWA in Tanzania, three non-governmental organizations — the Centre for Human Rights, University of Pretoria, the Institute for Human Rights and Development in Africa, and the Legal and Human Rights Centre (“LHRC”) (“the Applicants”) — sued the State in the African Court of Human and Peoples’ Rights (“the Court’) in 2018. The Applicants alleged that Tanzania either violated or failed to safeguard several rights for PWA guaranteed in the African Charter on Human and Peoples’ Rights (“the Charter”), among other human rights documents over which the Court has jurisdiction.  These include:

• The right to non-discrimination (Article 5 of the Charter);
• The right to life (Article 4 of the Charter);
• The prohibition against torture, degrading and inhuman treatment (Article 5 of the Charter, Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”), and Article 16 of the African Charter on the Rights and Welfare of the Child (“Children’s Charter”));
• The right to inherent dignity (Article 5 of the Charter);
• The right to an effective remedy (Article 7 of the Charter);
• The rights and welfare of the child (Articles 4, 16 and 29 of the Children’s Charter);
• The right to the highest attainable standard of health (Article 16 of the Charter and Article 29 of the Children’s Charter).

Before discussing the merits, the Court addressed — and dismissed — procedural challenges to the Applicants’ petition. Tanzania alleged that the NGOs had not exhausted local remedies by failing to file a petition before the High Court of Tanzania, as is permissible under Tanzania’s Constitution authorizing groups seeking to protect human rights on others’ behalf.  This was contravened by Tanzania’s own case law, as the High Court had dismissed LHRC’s public interest case for lack of locus standi, and by the rule that local remedies must be exhausted only when “available, effective and sufficient.” The combination of these two principles rendered local remedies unavailable to Applicants, and the objection was dismissed. Additionally, Tanzania objected to individual PWA applicants failing to utilize the country’s national court system, as it had specific mechanisms in place to ensure PWA rights were respected, including a national task force, special judiciary sitting sessions, and fast-tracked investigations.  The Court held that such a requirement could not “apply literally in cases where it is impracticable or undesirable for the complainants to seize the domestic courts in respect of each individual complaint,” due to the large numbers of victims impacted. As this was true here, the objection was dismissed.

Turning to the merits, the Court first discussed the right to non-discrimination, making several relevant findings.  PWA face constant discrimination due to the lack of melanin in their skin, and are referred to as “white goats” or “ghosts” in Tanzania.  Mothers of children with albinism must often choose between abandoning their child or marriage due to the discrimination, and are often banished from their communities.  Most people in society, including members of the judiciary and law enforcement authorities, share superstitious beliefs that PWA are subhuman.  Though the Court acknowledged that Tanzania made some efforts to combat discrimination against PWA— including the aforementioned taskforce and expedited investigations — these were insufficient, as evidenced by widespread myths about PWA and the resulting discrimination. Thus, Tanzania violated Article 5 of the Charter.

Concerning the right to life, the Court detailed arbitrary deprivation of life suffered by PWAs, particularly children, which spiked from 2008 to 2017, and the failure of Tanzania to prosecute these killings in an effective manner.  This manifested into a discharge of Tanzania’s duty to prevent the killings of PWA, despite some efforts to mitigate the conditions that facilitated those murders. The failure to prosecute weighed heavily against Tanzania concerning the prohibition against torture and the right to inherent dignity, as did the history of mutilation and amputation that PWA experienced throughout the country.  

Concerning the rights found in the Children’s Charter, the Court held that Tanzania detailed the repeated abductions of children with albinism, often to harvest body parts, along with the failure to provide sufficient education measures provided in overcrowded, unsuitable shelters, though the Court noted the shelters themselves were “a noble and commendable act” in the abstract.  Further, the Court detailed how discrimination led to worse health outcomes, including work positions in the sun that rendered PWA susceptible to skin cancer.  The Court lastly found an unalleged violation of the Charter’s Article 1, holding that Tanzania failed to adopt legislative measures designed to promote the rights of PWA.  The only provision where the Court ruled in Tanzania’s behalf concerned the right to an effective remedy, as Applicants had not met their burden of proof.

The Court ordered a wide variety of both declaratory and injunctive relief, including the creation of a compensation fund worth ten million Tanzanian Shillings as pecuniary reparations.  Moreover, the Court ordered:

• The amendment of Tanzania’s Witchcraft Act, 1928, to “clarify ambiguities” between traditional health practices and witchcraft;
• The creation of a national plan to promote and protect the rights of PWA, with the requirement to “take all necessary measures” to realize the rights of PWA violated;
• That Tanzania comply with its obligation to fully realize the rights to health and education of PWA within two years of the judgment;
• The publication of the order across government websites, to be accessible for at least a year;
• The submission of a report detailing the status of implementation and proving compliance.

Enforcement of the Decision and Outcomes

The effectiveness of the Court’s ruling, even as an apex African court, is undermined by resistance at the state-level. 75% of African states fail to comply with its decisions. Tanzania is one of many African countries —including Rwanda, Côte d’Ivoire, and Benin— that withdrew their permission for both individuals and NGOs to access the court. This “might be seen as hindering development of the Court’s authority.” Moreover, Tanzania has a history of ignoring certain aspects of decisions while implementing others. It remains to be seen the level of compliance Tanzania intends to commit toward in the months following the decision of the Court.

Significance of the Case

In 2015, the U.N. High Commissioner for Human Rights appointed an Independent Expert to detail the human rights violations experienced by persons with albinism. This appointment affected a mandate in which countries with high proportions of PWA had to make affirmative efforts to protect their rights. This was particularly true in sub-Saharan Africa, where 1 in 4,000 people have albinism. The findings of the report are mentioned throughout the Court’s opinion, and the Independent Expert recently authored a ten-year update to the report.

Tanzania now has an affirmative obligation to utilize the maximum-available resources to realize the rights of PWA regarding health and education, and must adduce evidence to show that it has done so. As described by the Independent Expert, who submitted her own amicus curiae brief for the case, the opinion was a “strong decision on reparations.” Other experts noted that it was “certainly a landmark ruling” and “sets an important precedent,” as this was the first case the Court decided concerning the rights of people with albinism.  Given that more than 700 attacks against PWA have occurred in 28 countries and that a large black market trade in body parts of PWA exists across Africa, this case sets a baseline that countries will be held liable for failure to effectively combat those actions within their borders.  

Much of the opinion also refers to several U.N. reports authored over the course of the last decade. The U.N. has conducted several fact-finding missions in Tanzania and other sub-Saharan African countries, which helped inform the Court’s decision-making. The findings of the Court help bolster the U.N.’s efforts in combating discrimination against PWA and mitigate the effects of that discrimination, and may encourage U.N. member states to agree to further fact-finding missions to determine compliance with international regulation.