the influx of illegal immigrants in tanz

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THE INFLUX OF ILLEGAL IMMIGRANTS IN TANZANIA: THE

QUESTION OF EFFECTIVE BORDER CONTROL AND THE

APPROPRIATENESS OF THE LAW

BY

LUCAS KASHINDYE

REGISTRATION No: 13983/T.11

SUPERVISOR: MADAM, ISABELA WARIOBA

A compulsory Dissertation submitted in partial fulfilment of the requirements for

the award of the Bachelor of Laws (LL.B) of Mzumbe University.

JUNE, 2014


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CERTIFICATION

The undersigned certifies that she has read and hereby recommends for acceptance by the

Mzumbe University, a dissertation titled: The Influx of Illegal Immigrants in Tanzania:

the Question of Effective Border Control and the Appropriateness of the Law, in

partial fulfilment of the requirements for the degree of Bachelor of Laws (LL.B) of

Mzumbe University.

Signature __________________________

MADAM, ISABELA WARIOBA

(Major Supervisor)

Date_________________

Signature

___________________________

Internal Examiner

Accepted for the Board of

……………………

Signature

____________________________________________

DEAN OF FACULTY


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DECLARATION

I, Lucas Kashindye, declare that this Research is my own original work and it has not

been presented and will not be presented to any other University or any other higher

learning institution for a similar or any other degree award.

Signature________________________

Date____________________________


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COPYRIGHT

© LUCAS KASHINDYE 2014

This Research is copyright material of mine and the research is protected under the Berne

Convention, the Copyright Act, 1999 and other international and national enactments, in

that behalf, on intellectual property. The Research may not be reproduced by any means

and in any form, in full or in part, except for short extracts in fair dealings, for research

or private study, critical scholarly review or discourse with an acknowledgement,

without the written permission of the author on behalf of the author by Mzumbe

University.


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ACKNOWLEDGEMENT

A completion of this research paper is not an entirely individual work. Contributions in

one form or another was done by many people. I must appreciate that without their support

both morally and materially my work could be more difficult or even impossible.

I preciously acknowledge the academic and mental insight from my supervisor, Madam

Isabela Warioba for her hand to hand instructional and directive close supervision in this

research as well as for doing the hard and tiresome work of reading now and then through

various drafts of this work, guiding me, giving comments and constructive criticism,

directions and advice which made it possible for the production of this work.

Frankly, my appreciation extends to the Faculty of Law of Mzumbe University for

intellectual and academic development, especially Martin Massawe and Innocent Lazaro

Mgeta for their fundamental and elementary insights on Refugees, Immigrants, and

Internally Displaced Persons as regard to their rights and protection under Migration

Laws, Refugee Laws in Tanzania and International Instruments.

My humble appreciation is to my fellow class mates, especially Mponeja Shinyanga

Ntugwa for their essential criticism and contribution to the successfulness of this research

paper.

Lastly, I do convey triumphal great passions and gladness to my beloved Mother Agness

Emmanuel Kasonso, and my Father Lucas William Kahise for their kindred and

generosity in upbringing me. I would like to convey my thanks to Uncle Petro Mdaki

Kasonso, Brother Kalombola Nassoro and Fraternal namely Mohamed, Ramadhani and

Jumanne and my filial sisters Mary Penford and Esther for moral and material support.

My kindred appreciation is to my Primary School Teacher Magreth Wahindi and my

beloved wife Fabbyollah Josiah Kazili; and my daughter and sons Maryam, Lucas and

Josiah for their love and endless encouragement in my studies.


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DEDICATION

This Research is dedicated to all beloved persons who have lost triumph due to burdens

of persecution and absence of state tranquillity in their countries consequently, finding

themselves stateless or illegal immigrants, or refugees to the countries which are not of

their origin.


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LIST OF STATUTES

INTERNATIONAL INSTRUMENTS

DECLARATIONS

The Declaration on the Human Rights of Individuals Who are Not Nationals of the

Country in Which They Live, United Nations, General Assembly, 13 December

1985

The Universal Declaration of Human Rights, United Nations, General Assembly, 1948

CONVENTIONS

UN Convention Relating to the Status of Refugees, United Nations General Assembly,

1951

International Convention on the Protection of the Rights of All Migrant Workers and

Members of Their Families, Adopted by General Assembly resolution 45/158 of

18 December 1990

REGIONAL INSTRUMENTS

Constitutive Act of the African Union: Adopted in 2000 at the Lome Summit (Togo)

entered into force in 2001

Migration Policy Framework for Africa, EX.CL/276 (IX), the Executive Council: Ninth

Ordinary Session 25 – 29 June 2006 Banjul, Gambia

Ouagadougou Action Plan to Combat Trafficking in Human Beings, Especially Women

and Children: As Adopted by the Ministerial Conference on Migration and

Development, Tripoli, 22-23 November 2006

Protocol on the Establishment of the East African Community Common Market, Made

Under Article 151 of the East Africa Community Treaty, 1999


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The East Africa Community Treaty, Done at Arusha, Tanzania, on the 30 th November,

1999

DOMESTIC LEGISLATIONS

The Constitution of United Republic of Tanzania of 1977 [Cap. 2 R. E. 2002]

The Constitution of Zanzibar of 1984 [2010 Edition]

The Immigration Act No. 7 of 1995 [Cap. 54 R. E. 2002]

The Citizen Act No. 6 of 1995 [Cap. 357 R. E. 2002]

The Refugees Act No. 9 of 1998 [Cap.37 R. E. 2002]


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LIST OF CASES

John Straton Bihigimondo v Republic [1987] TLR 94 (HC).

Juma Ali Abdalla & Others v. Serikali ya Mapinduzi Zanzibar (SMZ) [2004] TRL

306 (CA).

Mohamed Muumin Mussa v. Republic [2004] TLR1 (HC).

Winfrida Daud v. Republic [2002] TRL 22 (HC).


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LIST OF ABBREVIATIONS AND FOREIGN WORDS

& and

© Copyright

AU Africa Union

BMIS Border Management Information System

Cap. Chapter

d/o daughter of

EAC East Africa Community

EEAS European External Action Service

GMT Greenwich Meridian Time

Ibid Ibidem (In the same place)

Inter alia among other things: The details given are only an extract from the whole

Intra Within

IOM the International Organization for Migration

LHRC Legal and Human Rights Centre

MISC. Miscellaneous

MPFA Migration Policy Framework for Africa

NIDA National Identification Authority


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No. Number

Op. cit. opere citato (In the work cited)

Op. cit. Opere citato (in the work just quoted)

Pg. Page

R Republic

R. E. Revised Edition

s/o son of

Supra above; before; formerly;

TLR Tanzania Law Report

TRC Truth and Reconciliation Commission

UDHR Universal Declaration of Human Rights, 1948

UN United Nations

UNDAP United Nations Development Assistance Plan

UNHCR United Nations High Commission for Refugees

v. Versus, or; against (in criminal cases), or and (in civil cases)

VEO Village Executive Officers

WEO Ward Executive Officers

ZLSC Zanzibar Legal Services Centre


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ABSTRACT

This report is about “The Influx of Illegal Immigrants in Tanzania: The Question of

Effective Border Control and the Appropriateness of the Law” the objective of it was

to assess the law of Tanzania on the problem of the influx of illegal immigrants in

Tanzania and the appropriateness of the legal framework governing the same, by taking

into consideration the issue of effective border control in Tanzania and the possible

challenges.

This study further, attempted to look at the law and enforcement practical aspects on

curbing the influx of illegal immigrants in Tanzania. In the course of discussion, an

overview of historical development and background of immigration issues and laws in

Tanzania were traced. The study also made an appraisal of the law and administrative

measures such as National Identity Cards and “Operesheni Kimbunga” and their

effectiveness in curbing the influx of illegal immigrants.

The data which are primary data were collected through interview and questionnaire

methods, secondary data was collected by using books, report presentations, internet

source and articles. The findings show that the legal framework governing migration

issues suffers from some inherent. Hence the paper at the end makes some

recommendations in order to remedy the situation. The recommendations are aimed to call

for the restructuring and facilitating enforcement of the established legal mechanisms, and

to inspire new rules and amendment of the current law to cater for the prevailing problem

of influx of illegal immigrants in Tanzania.


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1.8.1 Research Design ...................................................................................................... 14

1.8.2 Area of Study .......................................................................................................... 15

1.8.3 Sampling Techniques .............................................................................................. 15

1.8.4 Sample Size ............................................................................................................. 16

1.8.5 Data Collection Methods ........................................................................................ 16

1.8.5.1 Primary Methods .................................................................................................. 16

1.8.5.1.1 Interviews .......................................................................................................... 17

1.8.5.1.2 Questionnaire .................................................................................................... 17

1.8.5.2 Secondary Methods .............................................................................................. 17

1.8.5.2.1 Library Research ............................................................................................... 17

1.8.5.2.2 Internet Search .................................................................................................. 17

1.8.6 Methods of Data Presentation and Analysis Techniques ........................................ 18

CHAPTER TWO ........................................................................................................... 19

LEGAL AND INSTITUTIONAL FRAMEWORK ON ILLEGAL

IMMIGRANTS .............................................................................................................. 19

2.1 Introduction ................................................................................................................ 19

2.2 Arrest, Detention and Expulsion of Prohibited Immigrants ...................................... 20

2.3 Deportation of Prohibited Immigrants ....................................................................... 22

2.4 Conviction of Illegal Immigrants ............................................................................... 23

2.5. The East Africa Community Legal Framework on Regional Migration Issues ....... 24

2.6. The East Africa Community and Regional Border Management ............................. 25

2.6.1 Objectives of an Effective Border Management System ........................................ 26


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2.6.2 Factors influencing the design of controls for entry and exit at borders................. 27

2.7 The African Union Legal Framework on Migration Issues ....................................... 27

2.8 Migration Policy Framework for Africa (MPFA) and Border Management ............. 28

2.9 International Legal Framework on Migration Issues ................................................. 30

2.10 International Institutional Framework on Migration Issues ..................................... 32

2.11 Regulation and International Protection of Illegal Immigrants under IOM and

UNHCR ............................................................................................................................ 33

2.11.1. Counter Trafficking ............................................................................................. 33

2.11.2 Mixed Migration flow and Assisted Voluntary Return and Reintegration ........... 33

2.11.3 Integrated Border Management ............................................................................ 34

2.12 Conclusion ............................................................................................................... 35

CHAPTER THREE ....................................................................................................... 37

RESEARCH FINDINGS, DATA ANALYSIS AND INTERPRETATION ............. 37

3.1 Introduction ................................................................................................................ 37

3.2 Ineffectiveness of the law in Tanzania to curb the influx of illegal immigrants ....... 37

3.3 The enforcement of the law in Tanzania and control the influx of illegal

immigrants ....................................................................................................................... 39

3.4 Ineffectiveness of the administrative measures in Tanzania to curb the influx of

illegal immigrants ............................................................................................................ 41

3.4.1 National Identity Cards ........................................................................................... 41

3.4.2 Operesheni Kimbunga............................................................................................. 43

3.5 Conclusion ................................................................................................................. 46


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CHAPTER FOUR .......................................................................................................... 48

CONCLUSION AND RECOMMENDATIONS ......................................................... 48

4.1 Conclusion ................................................................................................................. 48

4.2 Recommendations ...................................................................................................... 50

LIST OF REFERENCES .............................................................................................. 52

APPENDIX ………………………………………………………………………........55

1)

Transit Roots & Points of Entries source “ Immigration Detention in Tanzania: A

Prison Survey Report, 2013 ,” Asylum Access, Refugee Solution Tanzania at page

17……………………………………………………………………………………55

2) Apprehension Points source “ Immigration Detention in Tanzania: A Prison Survey

Report, 2013 ,” Asylum Access, Refugee Solution Tanzania at page

43……………………………………………………………………………………56

3)

Matokeo ya Utekelezaji wa Operesheni Kimbunga Awamu ya Pili…………….….57


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CHAPTER ONE

GENERAL INTRODUCTION

1.1 Introduction to the Research Problem

An illegal immigrant could be defined as a person who enters a country of which he/she

is not a citizen without demonstrating at the port of entry that he/she possesses legal

documents that justify such entry.1 It is a valid speculation that the meaning of illegal

immigrants extends to substantial number of such persons previously entered the country

with appropriate documents whose work and residence permits have expired, tourists,refugees and visiting family members do constitute sources of illegal immigration.

Section 10 (1) (h) of the Immigration Act 2 defines the expression "prohibited immigrant"

to mean inter alia any person who, if he seeks to enter Tanzania is or, if he has entered

Tanzania, was at the time of his entry; or a person whose presence in or entry into Tanzania

is unlawful under any law for the time being in force. For example in the case of Winfrida

Daud v Republic3 where the appellant (the Ugandan) was charged for unlawfully entry

without any valid legal travel document; and unlawfully stay in Tanzania without being

in possession of any pass or permit issued to him by any Immigration Office in Tanzania.

Therefore this research ventured and examined the influx of illegal immigrants in

Tanzania regarding the question of effective border control and the appropriateness of the

law and thoroughly explored alternative mechanisms to facilitate the enforcement of the

1 Eugene K. Campbell: “Reflections on Illegal Immigration in Botswana and South Africa” Department of

Population Studies University of Botswana, Gaborone, Botswana, Pg. 29-43.

2 [Cap. 54 R. E. 2002].

3 [2002] TLR 22 (HC)


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established legal mechanisms and ultimately established new rules to cater for the

prevailing problem of influx of illegal immigrants in Tanzania.

1.2 Background of the Problem

Mixed migration influx and flow is the historical phenomenon. Legendarily, the strength

of the profound proposition in relation to the history of Immigration Services in Tanzania

is a three-fold account, dating back from the pre-independence period, the post-

independence period and the period after the union between Tanganyika and Zanzibar in

1964.4

In Tanzania, immigration is not a new phenomenon. Flocking of immigrants in the country

can be traced as far back as to over years even before independence for various reasons,

which include economic, social, cultural and political. People from Rwanda, Burundi,

Uganda and the Democratic Republic of Congo (DRC) are fleeing to Tanzania as refugees

because of civil wars taking place in their countries. Immigrants from Mozambique,

Namibia, Zimbabwe and South Africa came to Tanzania for socio-political and cultural

reasons, especially during the liberation struggles.5

Over the past years, Tanzania witnessed a number of arrests of immigrants from the Horn

of Africa on transit to South Africa. All these people were entering the country illegally

ignoring the proper procedure set out by the laws of the country. The major means of

transportation listed are buses. However, there are other extreme inhuman means of

transportation in cargo trucks and containers. The conditions over which these immigrants

are transported is very poor. These immigrants are piled up in cargo tracks like a flock

4 “Historical Background on Immigration Services in Tanzania” from Immigration Services Department

of United Republic of Tanzania official website http://immigration.go.tz/history.php accessed at

11:11 GMT, Friday 18th April, 2014.

5 Tanzania Human Rights Report 2013, Legal and Human Rights Centre (LHRC) & Zanzibar Legal Services

Centre (ZLSC). Pg. 191.


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of animals and many have met untimely death because of the harsh conditions to which

they are subjected to.6

It is a valid legal speculation to recount that in pre-independence Immigration Services

under German domination in Tanganyika had no coded laws to regulate Immigration

issues, conversely this supposition does not conclusively draw an inference that the

problem of illegal immigrant did not exist. Adequately, it was in 1924 during the British

era, when various pieces of legislations were enacted to regulate matters pertaining to

Immigration. The legal framework was intended to be of potential essence, towards the

prosperity of the colonial territory. The first Immigration legislation was known as

Immigration Ordinance (cap 37) of 1924. This Ordinance was replaced by (The

Emergency Laws Transitional Provisions) Ordinance of 1946.7

Regarding the effectiveness and the overlapping drastic changes in the legal framework

to overcome overwhelming problems of illegal immigration The Emergency Laws

Transitional Provisions Ordinance 1946 was repealed and replaced by the Immigration

Control Ordinance, 1948. This law had some changes inter-alia, the exclusion of the

Somali from African race. The Immigration Control Ordinance of 1948 was later replaced by the Immigration ordinance 1958, the same being replaced by the Immigration

(Exemption and Amendment) and Alien's Ordinance 1961. Citizenship matters were

governed by the British Nationality Act 1948, which regulated Citizenship in British

colonies.8

In post–independence Immigration services were determined by the Immigration

Ordinance 1961. In 1963, the Parliament of Tanganyika enacted the Immigration Act No.

6 Ibid, Pg. 192.

7 Immigration Services Department of United Republic of Tanzania official website, Loc. Cit.

8 Ibid


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41 of 1963. This was made to regulate immigration matters within an independent

Tanganyika and remained in force until its repeal and replacement by the 1972

legislation.9

After the union, after the Zanzibar Revolution in 1964 and the unification of these two

sister countries, Tanganyika and Zanzibar, issues of Citizenship were partly unified by

amending Citizenship Act No. 3 of 1961, and passing the Zanzibar Decree No. 5 of 1964,

Immigration matters continued to be regulated by two laws Emigration Control Decree of

Zanzibar of 1964 and Immigration Act of 1963, which was repealed by the Tanzania

Immigration Act 1972. In spite of the union, Immigration and Citizenship laws were not

harmonized until 1995, with the coming in to force of the Immigration Act No. 7 of 1995

and the Tanzania Citizenship No. 6 of 1995 and their subsequent Regulations.10

In lieu to that the influx of illegal immigrants still persist hence the research has tried to

highlight the most crucial legal aspects to be considered so that the problem of influx of

illegal immigrants in Tanzania can get a rid of.

1.3 Statement of the Problem

Ideally, the Ministry for Home Affairs through the Department of Immigration Services

and the Police Force consistently is vested with powers to handle immigration issues in

the United Republic of Tanzania. Legendarily, the Ministry of Home Affairs through the

current legal framework and machinery is working hard hand in hand along the Borders

and Ports to ensure legal entry of immigrants from abroad.

9 Massawe M.P and Agola Laurent: “ Economic Immigrants and Dislike of Foreigners: Enroute to

Tanzania.” International Journal of Educational Research and Reviews, (1), Pp., 012-018,

March, 2013, Pg. 012. Available Online At http:// www.internationalscholarsjournals.org.

10 Immigration Services Department of United Republic of Tanzania official website, Loc. Cit.


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Despite the main focus of the Ministry for Home Affairs through the Department of

Immigration Service and the Police Force being to eradicate entry of illegal immigrants

and regulations of legal immigrants whose entry permit are expired, the number of illegal

immigrants grows bigger and bigger.

Statistics from Tanzania Human Rights Reports of 201211shows that in 2012 the prisons

department had more than 600 foreigners convicted of illegal entry in the country. The

report from International Organization for Migration reveals that a Tanzanian

presidential order issued on 25 July 2013 told some 35,000 irregular migrants from

Rwanda, Burundi and Uganda to leave Tanzania by 11th August. However, on Friday, 30th

August 2013, only an estimated 13,000 Burundians, 7,000 Rwandans and 600 Ugandans

had complied that is 20,600 out of 35,000.12

The announcement required all illegal immigrants to leave the country within 14 days.

The reason for expulsion given by the President and Tanzanian officials is that the

Government wanted to get rid of criminals hiding under the umbrella of immigrants.13

Notwithstanding such effort, seemingly the increase of illegal immigrants is due to

porosity of our Borders which are not fortified leaving some special specific entry points

and the reason that some of illegal immigrants enter Tanzania through marine transport.

Hence, it is more difficult to prevent illegal entry of immigrants into the united Republic

of Tanzania.

11

Tanzania Human Rights Reports of 2012, Legal and Human Rights Centre (LHRC) & Zanzibar LegalServices Centre (ZLSC). Pg. 179.

12“Undocumented Migrants Expelled From Tanzania To Receive Humanitarian Aid” - International

Organization for Migration. Http://Www.Iom.Int/Cms/En/Sites/Iom/Home/News-And-

Views/Press-Briefing-Notes/Pbn-2013/Pbn-Listing/Undocumented-Migrants-Expelled-F.Html

Accessed at 14:00 GMT, On Monday, December 23, 2013.

13 Tanzania Human Rights Report 2013, Op. Cit. Pg. 197.


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Without effective measures the current problem of abundant influx of illegal immigrants

is likely to continue massively. Hence, the need arose to examine the influx of illegal

immigrants in Tanzania regarding the question of effective border control and the

appropriateness of the law.

Therefore, this research explored alternative mechanisms to facilitate the enforcement of

the established legal mechanisms, and to inspire new rules and amendment of the current

law to cater for the prevailing problem of influx of illegal immigrants in Tanzania.

1.4 Hypotheses

A hypothesis is a general proposition, supposition or assumption that the researcher sets

out to test against the data or findings to be collected or made. It is an uncertain

proposition that the legal researcher makes in an attempt to explain legal phenomena

without having had an opportunity to find out the casual explanations in the field.

The hypothesis being a tentative answer to the research problem, hereunder were tentative

answers to the problem.

(i) That the law in Tanzania is ineffective to curb the influx of illegal immigrants.

(ii) That the law in Tanzania to control the influx of illegal immigrants is not

properly enforced.

(iii) That the administrative measures taken in Tanzania to curb the influx of illegal

immigrants are ineffective.


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1.5 Objectives of the Research

1.5.1 General Objectives

The research aimed at facilitating enforcement of the established legal mechanisms, and

to inspire new rules and amendment of the current law to cater for the prevailing problem

of influx of illegal immigrants in Tanzania.

1.5.2 Specific Objectives

(i) To establish ways through which reasonable penalties could be imposed to

cater for the influx of illegal immigrants.

(ii) To establish ways through which illegal immigrants could effectively be

identified.

1.6 Significance of the Research

The research is very essential in matters pertaining to immigration issues in the sense that

the research adds valuable knowledge by establishing ways through which illegalimmigrants could effectively be identified. The research is very essential in inspiring rules

and mechanisms to enable to do away with the humanitarian crisis (between the

government of Tanzania and the home countries of the migrants) resulting from

overpopulation of migrants in the prison as regard to detention and custody of illegal

immigrants.


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1.7 Literature Review

Handbook on Procedures and Criteria for Determining Refugee Status under the 1951

Convention and the 1967 Protocol relating to the Status of Refugees,14 draws a

distinction between economic migrants from refugees by portraying a migrant to mean a

person who, for reasons other than those contained in the definition, voluntarily leaves his

country in order to take up residence elsewhere. Such immigrants may be moved by the

desire for change or adventure, or by family or other reasons of a personal nature. If he is

moved exclusively by economic considerations, he is an economic migrant and not a

refugee.

The distinction between an economic migrant and a refugee is, however, sometimes

blurred in the same way as the distinction between economic and political measures in an

applicant's country of origin is not always clear. Behind economic measures affecting a

person's livelihood there may be racial, religious or political aims or intentions directed

against a particular group. Where economic measures destroy the economic existence of

a particular section of the population (e.g. withdrawal of trading rights from, or

discriminatory or excessive taxation of, a specific ethnic or religious group), the victimsmay, according to the circumstances become refugees on leaving the country.

Whether the same would apply to victims of general economic measures (i.e. those that

are applied to the whole population without discrimination) would depend on the

circumstances of the case. Objections to general economic measures are not by themselves

good reasons for claiming refugee status. On the other hand, what appears at first sight to

be primarily an economic motive for departure may in reality also involve a political

14 UNHCR (1979 ) Handbook on Procedures and Criteria for Determining Refugee Status under the 1951

Convention and the 1967 Protocol Relating to the Status of Refugees , HCR/I/4/Eng./Rev.1

Reedited, Geneva, January 1992., At Paragraph 62-64.


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element, and it may be the political opinions of the individual that expose him to serious

consequences, rather than his objections to the economic measures themselves.

Global Detention Project15 depicts Tanzania to be an important transit country for

migrants heading to South Africa. It is an affirmative proposition that Tanzania does not

have a dedicated immigration detention centre and instead uses local police stations to

confine undocumented migrants until they can be deported (Rutinwa 2011a)16. UNHCR’s

2011 Tanzania operations profile reports that “by early 2008, some 550 prisoners had been

convicted of unlawful entry into Tanzania and some 1,300 illegal immigrants, mainly from

the Horn of Africa, were detained pending deportation to their home countries. The

majority of persons in mixed movements are intercepted and detained by the authorities,

while in transit to southern Africa” (UNCHR 2011).

Regarding the Detention Policy, the 1995 Immigration Act provides both administrative

and criminal remedies for people charged with violations of the Act. The Act does not

specify a time limit for irregular migrants awaiting deportation can be held in

administrative detention in pursuance with Section 12 (2) of The Immigration Act . It is

the position of the law as per Section 31 (2) that Non-citizens can also be charged withcrimes for irregular entry or stay in the United Republic of Tanzania. Conversely as per

Section 14 (5) of the Act, it the position of the law, that when the prohibited migrant is

waiting to be brought before a court the period of detention is not to exceed 28 days.

Since 2007 the broad policy of the government is not to charge [irregular migrants] but to

hold them administratively pending deportation, this is largely a result of the fact that

there is no mechanism for profiling … who is and who is not an asylum seeker when non-

15 Tanzania Detention Profile, from Global Detention Project,

http://www.globaldetentionproject.org/countries/africa/tanzania/introduction.html accessed at

14:00 GMT, On Monday, December 23, 2013.

16 Ibid


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citizens are criminally charge.17 In some instances irregular immigrants are criminalized

in pursuance with S. 31 (1) of the Immigration Act which provides that “any person who

(i) unlawfully enters or is unlawfully present within Tanzania in contravention of the

provision of this Act shall be guilty of an offence.” The maximum penalty is 100,000

shillings (approx. 50 €) and/or 3 years imprisonment (Section 31 (2)).

The 1998 Refugee Act also provides for criminal penalties for asylum seekers and

refugees who fail to comply with these provisions. They can be incarcerated for a period

not exceeding six months and/or punished with a fine not exceeding fifty thousand

shillings (approx. 25 €) ( Refugee Act Section 24 (1)).

Massawe Martin P and Agola Laurent in their article entitled “ Economic Immigrants

and Dislike of Foreigners: Enroute to Tanzania” 18 depict that once the person’s

presence in the country is unlawful, the Minister can make an order requiring that

person to be deported from Tanzania and remain out of Tanzania, either indefinitely or for

the period specified into the order. It is the requirement of the law as provided under

Section 31(1) and (2) of The immigration Act 1995 that any person who contravenes the

conditions of a permit commits an offence and may be liable to both fine andimprisonment for a term not exceeding three years or to any penalty specified.

It is the apparently admission of the Authors that, like many other statutory documents,

the law and legal framework governing immigration in Tanzania suffers from inherent

defects in the sense that the seriousness that was present at the time this law was passed

is not present at implementation stage. It is the strong speculation with a valid argument

in legal framework that the stakeholders are familiar with such fate of the law,

therefore, much work needs to be done to implement and enforce the laws in this area.

17 Ibid

18 Massawe and Agola, Op. Cit. Pg. 016


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Accordingly, the authors firmly recommend with the eye and wit that the law should also

be framed to adopt a reporting system where immigrants would be required to regularly

report to relevant authorities on compliance with conditions stipulated in their work

permits.

Tanzania Human Rights Reports of 201219 terms the country (Tanzania) a transit of

thousands of illegal immigrants in search of greener pasture in South Africa. The report

shows that currently the prisons department has more than 600 foreigners convicted of

illegal entry in the country. In 2012, about 45 Ethiopian citizens died leaving 72 others in

serious condition due to suffocation from the congestion in the truck where they were

packed on transit to South Africa via Tanzania. The said bodies were found at Chitego

forest in Kongwa district–Dodoma.

LHRC is seriously concerned with trafficking in persons in the country. It is not easily

understood if at all the immigration officers are seriously working at our borders. For

Dodoma being the central part of the country and it makes one wonder how such a truck

could move all along borders to Dodoma without being noticed. Since the Tanzanians

Peoples Defence Force has the mandate to protect the country’s borders, it is questionableas whether the army executes its duties effectively to ensure no illegal immigrant workers

penetrate. LHRC advises the government especially the ministry of home affairs and the

ministry of defence to collaborate in ensuring that the country is free from illegal

immigrants. This will reduce the vulnerability of Tanzania being a transit to external

trafficking in persons.

Bryson Nkhoma20 views the critical issue of illegal immigrants to be part and parcel of

the apparent threats created by immigration, since securitization of immigration is a

19 Tanzania Human Rights Report 2012, Op. Cit. Pg. 170.

20 Bryson G. Nkhoma “Transnational Threats: The Problem of Illegal Immigration in Northern Malawi”

Southern Africa Peace and Security Studies. Vol. 1 No 2 at Pp. 29-43.


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common practice in most countries. It is the propound admission that dealing with

immigration problems and the effectiveness of securitization is limited by

globalisation, human rights legislation, social networking, corruption by immigration

officials, the work of migrant smugglers, and nationals who help illegal immigrants to

enter into their country. Immigrants in some instances tend to operate underground to

evade police thereby creating more insecurity problems. However, we need to note

that threats associated with immigration are not universal, rather conditional to certain

circumstances. It is argued that immigrants, like other factors, do not cause transnational

threats in themselves.

According to The International Organization for Migration (IOM)21 since Tanzania

borders eight other countries within Eastern and Southern Africa, makes it very exposed

to various migration flows to, from and through its territory. Irregular movements of

migrants from the Horn of Africa, through Tanzania, to South Africa and beyond have

increased during the last years hence the growing phenomenon of smuggled migrants and

irregular migration is an issue of paramount legal concern for the Tanzanian Government

and administration of justice. For Tanzania being identified as a country of origin, transit,

and destination for trafficked persons, conversely, data is scarce, victims are found to have

originated from neighbouring countries as well as the Middle East and Asia. Tanzanian

victims are frequently trafficked to South Africa as well as to several European Union

member states.

It is the proposition of IOM that it continues to assist the government to establish a

comprehensive border management information system (BMIS) which requires not only

21 “Canada Visa Application Centres for Residents of the United Republic of Tanzania Start New Operations

with Enhanced Services in Dar es Salaam (CANVAC)” from International Organization for

Migration Http://Www.Iom.Int/Cms/En/Sites/Iom/Home/Where-We-Work/Africa-And-The-

Middle-East/East-Africa/Tanzania.Html. Accessed At 13:00 GMT, On Monday, December 23,

2013


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the basic rehabilitation of the border infrastructure, but also the promotion of the

immigration. It is the admission of IOM that the mixed migration flows are complex

population movements including refugees, asylum-seekers, economic migrants, smuggled

migrants, unaccompanied minors and other migrants.

IOM assets that some of irregular migrants are intercepted by Tanzanian Police and

Immigration and consequently ending up in prisons. This has created a humanitarian crisis

both for the Government of Tanzania, with an overpopulation of migrants in the prisons,

and the home countries of the migrants.

Theonesta Juma reports in the Article entitled “Wahamiaji Warudi kwa Kasi

Kagera” 22that the former repatriated illegal immigrants by the United Republic of

Tanzania government via ‘Operesheni Kimbunga’ (translated into English “Operation

Cyclone”) have massively started to channel back in Kyerwa District in Kagera Region

and naming themselves M23 engraved with robbing citizens and property.

The Defence and Security Committee for Kyerwa District conducted an effective

operation for search of illegal immigrants and came up with 20 of them and some of

Tanzanians who sheltered the said illegal immigrants. The said illegal immigrants were

repatriated to their countries of their origin without naming their Nationalities; Whereas,

Tanzanians who sheltered the said illegal immigrants were taken legal measures.

The Author quotes Fabian Massawe (Kagera Region Commissioner) “Operesheni

Kimbunga” is still operating to ensure that all remained illegal immigrants are arrested

and repatriated to the countries of their origin. Via the Slogan entitled “Hakuna wa Kubaki

na Hakuna Kurudi”(which can be translated in English as ‘ No illegal immigrant shall

either remain or return) the government is committed to ensure that each and every illegal

22 Chief Editor. “Wahamiaji Warudi Kwa Kasi Kagera” Majira, No. 7293, Vol. 11/5393, Tuesday,

December 24, 2013 Business Times Ltd: Dar es Salaam, Pg. 4.


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immigrant repatriates and for Tanzanians who associates with illegal immigrants, in one

way or another, are taken legal measures.

Conversely; the Author writes that some of the interviewed citizens remarked that the

problem of illegal immigrants is culminated by some executive officers of the lower rank

in Local Government who tends to take bribes and allow illegal immigrants to channel

back. It is the supposition of the citizens that executive officers ranging from hamlet,

village and ward levels are vested with much power and are not transferred from their

working stations and if transferred for such a longer period hence they tend to associate

with such illegal immigrants.

1.8 Research Methodology & Methods and Design

1.8.1 Research Design

In fact, the research design is the conceptual structure within which research is conducted;

it constitutes the blueprint for the collection, measurement and analysis of data. As such

the design includes an outline of what the researcher will do from writing the hypothesis

and its operational implications to the final analysis of data.23

The research intended to deeply expound some principles and understanding on several

issues concerning illegal immigrants in Tanzania and the legal framework governing

immigration issues. The research took into account the historical background of illegal

immigration issues and it exhaustively took into account the current and future condition

of immigration legal issues for the sake of improving the legal framework governing

illegal immigrants in Tanzania.

23 Kothari, C.R (2004). Research Methodology: Methods And Techniques, 2nd Revised Edition, New Age

International Publisher: New Delhi, Pg. 31.


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Data needed being qualitative in nature. In that regards the research employed primary

and secondary methods of data collection. The research was a case study of Tabora Region

and was conducted for duration of ten (10) weeks consecutively ranging from July to

October in 2013 during Field Studies. Members of the Judiciary such as Magistrates on

one hand; and Immigration Officers, Police Officers and Stakeholders from the executive

are going to be consulted for the sake of obtaining relevant information on illegal

immigrations.

1.8.2 Area of Study

The research was conducted in Tabora Region. The reason behind being that Tabora hosts

a number of illegal immigrants from Burundi, Rwanda, and Democratic Republic of

Congo (DRC). Most of the illegal immigrants from Burundi are the formerly repatriated

refugees, since Tabora has the refugee settlement in Ulyankulu hence the region is of

numerous essential in this research.

1.8.3 Sampling Techniques

When field studies are undertaken in practical life, considerations of time and cost almost

invariably lead to a selection of respondents that is, selection of only a few items. The

respondents selected should be as representative of the total population as possible in order

to produce a miniature cross-section. The selected respondents constitute what is

technically called a ‘sample’ and the selection process is called ‘sampling technique.’ The

survey so conducted is known as ‘sample survey’.24

24 Ibid, Pg. 55


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Sampling techniques employed in this research is random one. Whereby no selective or

peculiar criteria were employed to collect data from respondents. Hence the respondents

were selected regardless of their age, sex and education or vocational background.

1.8.4 Sample Size

The research employed an optimum sample. An optimum sample is one which fulfils the

requirements of efficiency, representativeness, reliability and flexibility. In an optimum

sample while deciding the size of sample, researcher must determine the desired precision

as also an acceptable confidence level for the estimate. Ten illegal immigrants were

selected irrespective of their age, sex and levels of education six of them were the formerly

repatriated Burundi refugees. Three Magistrates were selected, five immigration officers

were selected, and three United Nations High Commission for Refugees (UNHCR)

officers were selected; and the Head of Ulyankulu Settlement. The number of the sample

therefore was twenty two.

1.8.5 Data Collection Methods

The research is qualitative in nature hence data on matters relating to influx of illegal

immigrants and the effectiveness of the legal framework governing migration issues and

effective border control were collected using primary and secondary methods. This was

successfully through effective use of skills of legal research in collection of primary and

secondary methods as well.

1.8.5.1 Primary Methods

Primary methods employed a collection of original raw data by a researcher himself. Inthis research interviews and questionnaires were employed to collect data on immigration

issues for the sake of collection of appropriate data on matters relating to migration laws

and possible challenges.


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1.8.5.1.1 Interviews

An interview employed a set of questions constructed in advance which the interviewer

asked the interviewees (respondents) for the sake of obtaining answers pertinent to the

study problem. Guided interviews were conducted to a handpicked number of experts in

legal profession and immigration issues for the sake of collection of appropriate data on

matters relating to migration laws and possible challenges. The limitation of this method

was unwillingness of respondents and difficulties in disclosure of information due to

superior orders.

1.8.5.1.2 Questionnaire

A questionnaire is a research instrument consisting of a series of questions and other

prompts for the purpose of gathering information from respondents. The method was

employed on immigration issues for the sake of collection of appropriate data on matters

relating to migration laws and possible challenges. The limitation of this method was the

turn up of respondents, however, its advantage being covering a vast area at the same time.

1.8.5.2 Secondary Methods

1.8.5.2.1 Library Research

This method essentially employed for the study’s theoretical point of view. Apparently,

information from books, articles, workshop papers, Acts of Parliament, journals, reports

and newspapers is of paramount essence in this course.

1.8.5.2.2 Internet Search

Reading materials and data accessed from the Internet provided a relatively large part of

information and ready-made data from other jurisdictions. However, the researcher was

flexible and careful in the selection of the reading materials.


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1.8.6 Methods of Data Presentation and Analysis Techniques

This research employed qualitative method to analyse data. Qualitative analysis refers to

non-empirical analysis. Qualitative analysis consists of three concurrent flows activity:

data reduction, data display and conclusion verification. Data reduction refers to the

process of selecting, focusing simplifying, abstracting, and transforming the data that

appear in transcription, in this research, writing summaries and teasing themes were

employed to reduce data. The qualitative method is essential and of paramount importance

to enable the researcher to complete the third stream of data analysis, which is a conclusion

and verification.25

25 Miles M. B. & Huberman, A.M. (1998): An Expanded Source Book-Qualitative Data Analysis, Pg. 11.


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The Court of Appeal of Tanzania at Zanzibar in the case of Juma Ali Abdalla and Others

V. Serikali ya Mapinduzi Zanzibar (SMZ)28 presided with Mroso, Munuo and Nsekela,

JJ.A., observed that in Zanzibar section 17(1) of The Regional Administration Authority

Act (Act 1 of 1998) provides that every Sheha shall be responsible in his Shehia for

implementing all Government laws, orders, policies and directives for maintenance of law

and order and exercise the control of immigration in his Shehia and keeping records

thereof.

The Immigration Act 29 provides for criminal liability for unauthorized entry or stay. The

Act strictly prohibits illegal entry in the United Republic.

2.2 Arrest, Detention and Expulsion of Prohibited Immigrants

Section 12 (1) of The Immigration Act provides that subject to the provisions of this Act,

any immigration officer or any police officer may prevent any prohibited immigrant from

entering Tanzania and may, without warrant, arrest any prohibited immigrant or any

person who he has reasonable cause to suspect of having entered Tanzania while being a

prohibited immigrant otherwise than in accordance with the provisions of this Act.

Any police officer is vested with power of arrest by virtue of Section 31 (6) of The

Immigration Act provided that he has reasonable cause to suspect that any person has

contravened any of the provisions of this Act or of any regulations made under this Act

and if he is of opinion that in order to prevent justice from being defeated its necessary to

arrest such person, arrest such person without warrant, and such person shall be brought

before a magistrate as soon as possible after such arrest.

28 (2004) TLR 306, Pg. 310.

29 The Immigration Act No. 7 of 1995, [Cap. 54 R. E. 2002]


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It is the requirement of the law as per section 36 of The Immigration Act that every person

arrested or detained under the provisions of this Act should be informed, as soon as

reasonably practicable in a language which he understands, of the reason for his arrest,

search or detention. Notwithstanding the provisions of section no person shall be entitled

to be informed as to the grounds of which a decision was made relating to his being

declared a prohibited immigrant or to an order for his deportation.

It is the requirement of the law as per Subsection (2) of Section 12 (Supra) that any person

arrested under the provisions of subsection (1) shall, without delay, be brought before a

magistrate.

However, there are statutory exceptions that in case, he may, instead of being brought

before a magistrate, be handed over to the custody of the master of the ship or the captain

of the aircraft unless he sooner demands to be taken before a magistrate; and in some

occasion be placed across the frontier unless he sooner demands to be taken before a

magistrate; or be placed in custody until he boards a ship or aircraft or obtains any other

means of transport conveying him to any place outside Tanzania.

Profoundly, section 13(1) of The Immigration Act provides for liability for bringing

prohibited immigrants into Tanzania, and vests with such power to the person in charge

of any aircraft, train, vehicle or ship bringing into Tanzania and person found, on

appearing before an immigration officer, to be a prohibited immigrant, and the owners,

agents and charterers in Tanzania of that aircraft, train, vehicle or ship, shall upon being

required by an immigration officer to do so, remove that prohibited immigrant from

Tanzania and in default, pay to the Government all expenses incurred by the Government

in connection with the transport and maintenance of the prohibited immigrant and his

deportation from Tanzania.


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2.3 Deportation of Prohibited Immigrants

Section 14 of The Immigration Act 30 provides to the effect with regards to illegal

immigrants that any person, other than a citizen of Tanzania, whose deportation is

recommended by the Director consequent upon his conviction for an offence against any

of the provisions of this Act may be deported from Tanzania pursuant to an order under

the hand of the Minister. The Minister may make an order requiring any prohibited or any

person whose entry into Tanzania was, or presence within Tanzania is, unlawful.

A person against whom a deportation order is made may, if the Minister so directs, while

awaiting deportation and while being conveyed to the place of departure, be kept in

custody, and while so kept shall be deemed to be in lawful custody. However, where any

person is brought before a court under the provisions of this Act and the court is informed

that an application for an order under this section is made in respect of him; the court may

direct that, that person be detained in custody for any period not exceeding twenty eight

days. And a deportation order shall remain in force for the period specified therein, unless

sooner varied or revoked by the Minister, or, if no period is so specified, until varied or

revoked by the Minister.

Where a deportation order under this section is made against a person serving a sentence

of imprisonment the order shall, if the President so directs, be implemented

notwithstanding that the full term of imprisonment has not been served, and any such

direction by the President shall be sufficient authority for the release of that person from

prison for the purpose of his deportation.

30 The Immigration Act No. 7 of 1995 [Cap. 54 R. E 2002]


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2.4 Conviction of Illegal Immigrants

A senior immigration officer in Tanzania's federated islands (Zanzibar), George Jacob

Kaswende remarked that foreigners caught in the surprise swoop would be taken to court

to answer charges in connection with their illegal stay in the islands.31

It is the position of the law that on conviction to offences the liability shall be a fine not

exceeding one hundred thousand shillings or to imprisonment for a term not exceeding

three years or to both such fine and imprisonment. However, in a case where any person

who having been deported from Tanzania under the provisions of this Act or any other

law for the time being in force, returns to Tanzania while the deportation order is still in

force shall be guilty of an offence and shall be liable on conviction to a fine not exceeding

two hundred fifty thousand shillings or to imprisonment for a term not exceeding five

years or to both such fine and imprisonment, and may again be deported under the

provisions of section 14 as provided respectively under Section 31(2) and (3) of The

Immigration Act.

In the case of John Straton Bihigimondo v Republic32 where the appellant was charged

before the trial court and convicted of the offence of unlawful presence in Tanzania and

giving false information to an immigration officer. On appeal the High Court of Tanzania

at Tabora presided with Chipeta, J., held that for a false statement made to an immigration

officer to be an offence, the maker must have made it knowing that such officer would act

or omit to act in a manner as to be detrimental to some person or contrary to what such

officer would have done if the true facts had been known.

31 Deodatus Mfugale “Tanzania: Zanzibar Cracks Down on Illegal Immigrants”

http://allafrica.com/stories/200102190326.html. accessed at 13:50 GMT 19/02/2014

32 [1987] TLR 94 (HC)


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The High Court of Tanzania in the case of Mohamed Muumin Mussa v Republic33

nullified the conviction on the ground that the appellant was charged with and convicted

of an immigration offence that does not exist under the law.

2.5. The East Africa Community Legal Framework on Regional Migration Issues

The East Africa Community Treaty, 1999 under Article 7 (1) (c) provides, the principles

that shall govern the practical achievement of the objectives of the Community shall

include inter alia the establishment of an export oriented economy for the Partner States

in which there shall be free movement of goods, persons, labour, services, capital,

information and technology.

Article 104 (3) (a)-(c) of EAC Treaty provides for issues related to free movement of

persons, labour, services, right of establishment and residence; whereby the Partner States

shall as may be determined by the Council ease border crossing by citizens of the Partner

States; maintain common standard travel documents for their citizens; and effect

reciprocal opening of border posts and keep the posts opened and manned for twenty four

hours.

Protocol on the Establishment of the East African Community Common Market 34 under

Article 7 (1) provides for free movement of persons and labour whereby the Partner States

are required to guarantee the free movement of persons who are citizens of the other

Partner States, within their territories.

Moreover, each Partner State is required ensure non‐discrimination of the citizens of the

other Partner States based on their nationalities by ensuring: (i) the entry of citizens of

the other Partner States into the territory of the Partner State without a visa; (ii) free

33 [2004] TLR 1 (HC)

34 Made under Article 151 of the East Africa Community Treaty, 1999


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movement of persons who are citizens of the other Partner States within the territory

of the Partner State; (iii) that the citizens of the other Partner States are allowed to stay in

the territory of the Partner State; (iv) and that the citizens of the other Partner States are

allowed to exit the territory of the Partner State without restrictions.35

Therefore, going through Article 104 of East Africa Community Treaty, it is obvious that

member states have unanimously agreed to take appropriate measures to allow free

movement of the people and services whereby all member states are required to harmonize

their restrictive laws and regulations on immigration issues. From this proposition it is

obvious that free movement of individuals among member states may result to the influx

of illegal immigrants in Tanzania consequently creating more security problems in the

borders and entry points. 36

2.6. The East Africa Community and Regional Border Management37

Border management is spearheaded by the Immigration Department and other key

agencies such as Customs, Police, and Ministry of Health. Some of the areas for

cooperation among border agencies include general security issues around the border

area.38

35 Ibid, Article 7 (2) (a)-(d);

36 Maudi, M.O (2003); Mambo Muhimu Yanayohusu Mkataba wa Jumuiya ya Afrika Mashariki: Ujue

Mkataba wa Jumuiya ya Afrika Mashariki, 2nd Ed., Friedrick Ebert Stiftung, East Africa

Community: Dar es Salaam, Pg. 17.

37 Migration Management from East African Community official website

http://migration.eac.int/index.php?option=com_content&view=article&id=175&Itemid=100

accessed at 10:00 GMT, Tuesday, 29th April, 2014.

38 Workshop Report on Migration and Regional Integration in the East African Community, 13th-15 th

December 2011 (Ref: Eac/Iom-Imm/02/2011). Pg. 11.


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Border management is a requirement for effective national governance, fruitful

international relations and full participation in international and regional institutions.

It is inextricably linked to country/regional development, human rights, human mobility

and national security. Border management is often too fragmented to deal with the

complex and cross-cutting nature of migration-related problems and therefore the

need for integrated border management.39

Integrated Border Management (IBM), facilitates entry/exit, promotes orderly border

management which enables countries to benefit from the positive economic aspects

of globalisation while methodologically monitoring border movements. It increases

cross-border exchange of information and at the same time strengthens and

coordinates the responses of States against international terrorism and other cross-

border crimes e.g. trafficking of persons, smuggling of migrants, smuggling of arms

and drugs. Furthermore, it enables states to provide a rapid joint response to massive

flow of migrants due to natural disasters or economical/political crisis.40

2.6.1 Objectives of an Effective Border Management System

The border management system is the key control mechanism for overall migration

management. Effective border management systems will recognize that facilitation and

control are two equally important objectives that must be addressed at the same time which

are: to facilitate bona fide travellers, providing a welcoming and efficient gateway to the

State; and to provide a barrier and disincentive to entry for those seeking to circumvent

migration laws.41

39 East African Community official website, Loc. Cit.

40 Ref: Eac/Iom-Imm/02/2011, Op. Cit. Pp. 12-13.

41 East African Community official website, Loc. Cit.


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These objectives enable the State to maximize the benefits of managed temporary and

permanent migration, while at the same time protecting the State from the unauthorized

entry of those considered not to be of benefit under visa policy rules or whose entry would

not be in the national interest.42

2.6.2 Factors influencing the design of controls for entry and exit at borders

Since the key operational components of an effective border management system are

interconnected (and preferably automated) sub-systems that will include trained

personnel, an audit capability, interagency and international cooperation, and strategic

partnerships with carriers and industry. Hence, the design of controls for entry and exit at

borders is based on a number of factors, including: the physical characteristics of the

border; the border’s permeability; the relationship with immediate state neighbours; the

commitment and capacity of neighbouring states to control their own borders and manage

irregular migration; whether interception of undocumented travellers is planned and

feasible at airport hubs or on the high seas; how much checking on identity and intentions

is done at the border or at points remote from the border; and where the visa decision is

made, the volume and variability of volume, of passengers at the border.43

2.7 The African Union Legal Framework on Migration Issues

Constitutive Act of the African Union44 under Article 14(1) (c) establishes the Committee

on Trade, Customs and Immigration as one of the Specialized Technical Committees,

which shall be responsible to the Executive Council. Whereof, The Executive Council is

42 Ibid

43 Ibid

44 Constitutive Act of the African Union: Adopted in 2000 at the Lome Summit (Togo) entered into force

in 2001.


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responsible to coordinate and take decisions on policies in areas of common interest to the

Member States, including nationality, residency and immigration matters.45

Ouagadougou Action Plan to Combat Trafficking in Human Beings, Especially Women

and Children46 under its preamble proclaims that effective actions to prevent and combat

trafficking in human beings, especially in women and children, require a comprehensive

regional and international approach involving countries of origin, transit, and destination,

that includes measures to prevent such trafficking, punish traffickers and to protect the

victims of trafficking, including of their human rights.

The core objective of Ouagadougou Action47 is to enable government agencies in charge

of migration, and trafficking related issues (Ministries of Social Affairs and Social

Development, refugee and immigration agencies, Ministries of Justice, Ministries of

Foreign Affairs of member states), regional institutions, international institutions and

NGOs as well as academic and research institutions to access the Ouagadougou Action

Plan. This will help in the effective concretization of the principles in the action plan at

national and sub-regional level.

2.8 Migration Policy Framework for Africa (MPFA) and Border Management

Effective border management is a key element in any national migration system. The

strategic goals on border security are to control:- i) the movement of prohibitive and

restrictive goods including drugs, weapons etc. ii) the appropriate use of import and export

permits, quotas, exchange controls etc., iii) the movement of persons to eliminate illegal

45 Ibid, Article 13(1) (j);

46 As Adopted by The Ministerial Conference on Migration and Development, Tripoli, 22-23 November

2006.

47 Paragraph 3 of Preface; Ouagadougou Action Plan to Combat Trafficking in Human Beings, Especially

Women and Children: As Adopted by the Ministerial Conference on Migration and Development,

Tripoli, 22-23 November 2006.


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border crossings, human trafficking and smuggling; and iv) the illegal smuggling of

goods.48

In Africa, as in other parts of the world, border management systems are coming under

increasing pressure from large flows of persons, including irregular and “mixed flows,”

moving across regions and/or national borders. Specific challenges to border management

mechanisms and personnel include building capacities to distinguish between persons

having legitimate versus non-legitimate reasons for entry and/or stay. 49

Approaches to border management globally are and will continue to be strongly affected

by security concerns. Some regions in the world are the subject of attacks linked with

international terrorist networks and the possibility that they might constitute targets for

further assaults, or transit or organizing points for further attacks elsewhere cannot be

excluded. Consequently, the strengthening of border management systems in terms of

technology, infrastructure, business process for inspection of travellers, and training of

staff has become a primary area of concern.50

An important component of border management is the provision of international standard

travel documents through well-structured registration and issuance systems. These travel

documents include passports, visas, and temporary travel documents such as emergency

passports and laissez-passers and in some cases identification cards that can be used to

cross borders on the basis of specific bilateral agreements. The provision and use of travel

48 Migration Policy Framework for Africa, EX.CL/276 (IX), The Executive Council: Ninth Ordinary

Session 25 – 29 June 2006 Banjul, Gambia, Pg. 13.

49 Ibid

50 Ibid


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documents of high integrity supports efforts to make cross-border movement easier for

most travellers.51

2.9 International Legal Framework on Migration Issues

The international instruments providing international protection such as The Universal

Declaration of Human Rights (UDHR)52 under Article 13 declares to the effect that

everyone has the right of free movement and residence within the border of each state and

that everyone has the right to leave any country, including his own, and to return to his

country. UDHR further proclaims to the effect that all human beings are born free and

equal in dignity and rights and that everyone is entitled all the rights and freedoms set

forth in that Declaration, without distinction of any kind, inter alia, Nationality, Birth and

Race.53

The Declaration on the Human Rights of Individuals Who are Not Nationals of the

Country in Which They Live54 proclaims under Article 1 that the term “Alien” shall apply

with due regard to qualifications made in subsequent articles, to any individual who is not

a national of the state in which he is present.

However it should be born in mind that nothing in this declaration shall be interpreted as

legitimizing the illegal entry into and presence in a state of any alien, nor shall any

provision be interpreted as restricting the right of any state to promulgate laws and

regulations concerning the entry of aliens and the terms and conditions of their stay or to

establish differences between nationals and aliens. However, such laws and regulations

51 Ibid

52 Article 13, the Universal Declaration of Human Rights, 1948

53 Ibid. Article 2.

54 The Declaration on the Human Rights of Individuals Who are Not Nationals of the Country in Which

They Live, United Nations, General Assembly, 13 December 1985.


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shall not be incompatible with the International Legal Obligations of that state, including

those in fields of Human Rights.55

Aliens lawfully in the territory of a State shall enjoy the right to liberty of movement and

freedom to choose their residence within the borders of the State, subject to such

restrictions as are prescribed by law and which are necessary in a democratic society to

protect national security, public safety, public order, public health or morals or the rights

and freedoms of others.56

International Convention on the Protection of the Rights of All Migrant Workers and

Members of Their Families57 under its preamble at paragraph 12 recognize that the

human problems involved in migration are even more serious in the case of irregular

migration and convinced therefore that appropriate action should be encouraged in order

to prevent and eliminate clandestine movements and trafficking in migrant workers, while

at the same time assuring the protection of their fundamental human rights.

Considering that workers who are non-documented or in an irregular situation are

frequently employed under less favourable conditions of work than other workers and that

certain employers find this an inducement to seek such labour in order to reap the benefits

of unfair competition, that recourse to the employment of migrant workers who are in an

irregular situation will be discouraged if the fundamental human rights of all migrant

workers are more widely recognized and, moreover, that granting certain additional rights

to migrant workers and members of their families in a regular situation will encourage all

55 Ibid. Article 2.

56 Ibid. Article 5 (1).

57 Adopted by General Assembly resolution, 45/158 of 18 December 1990


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migrants and employers to respect and comply with the laws and procedures established

by the States concerned.58

2.10 International Institutional Framework on Migration Issues

The international organization which has role on international movement is International

Organisation for Migration, established in 1951 with major dedication in promoting

humane and orderly migration for benefit of all. IOM supports states, migrants and

communities in addressing the challenges of irregular migration. It has migration

management framework which have five stages, namely; pre-departure, transit, entry, stay

and integration. In exercising all these, IOM has five areas of work: direct assistance to

migrants, helping to develop policy and legislation, training government officials and

other stake holders, disseminating information to migrants and host community, and

cooperation and partnership.59

UNHCR has developed “Ten Point Action Plan” that aims at establishing a system or a

framework of dealing with irregular movements, these ten points include: Cooperation

among key partners such as affected states, governmental bodies, regional and

international organizations with relevant mandates (for example UNHCR, OHCHR,

UNICEF and IOM) as well as local and international NGOs to identify and convene such

actors in an appropriate forum so that they can exchange information and establish terms

and conditions for cooperation and coordination; Data collection and analysis and

exchange of data about the characteristics of the movement and those groups which make

it up; Protection-sensitive entry systems; four, Reception arrangements; Mechanisms for

58 Paragraph 13 & 14 of the Preamble of The International Convention on the Protection of the Rights of

All Migrant Workers and Members of Their Families, Adopted by General Assembly resolution

45/158 of 18 December 1990.

59 IOM Strategy: Council Resolution No. 1150 (XCIII) and Annex, Resolution No. 1150 (XCIII) (Adopted

by the Council at its 481st meeting on 7 June 2007), Pg. 3.


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profiling and referral; Differentiated processes and procedures; Solutions for refugees;

Addressing secondary movements; Return arrangements for non-refugees and alternative

migration options; and Information strategy.60

2.11 Regulation and International Protection of Illegal Immigrants under IOM and

UNHCR

2.11.1. Counter Trafficking

In the UNDAP plan, IOM Counter Trafficking Team contributes to five main outputs

within the Social Protection Working Group: the development of a multi-sectorialcommunication strategy for addressing violence against children including trafficked

children, the support to the Government in the development of regulations for the Anti-

Trafficking in Persons Act of 2008, the mapping of service providers and referral networks

to develop a directory on service providers for victims of trafficking, the provision of

technical and financial assistance to NGOs for shelter support, medical services, voluntary

counselling and testing, meals, education and vocational training to child victims of

trafficking as well as family reunification where appropriate and finally the support to the

production and dissemination of data on victims of human trafficking networks.61

2.11.2 Mixed Migration flow and Assisted Voluntary Return and Reintegration

IOM’s Mixed Migration Unit works on issues that are connected to mixed migration flows

throughout the region. Mixed migration flows are complex population movements

including refugees, asylum-seekers, economic migrants, smuggled migrants,

60 UNHCR-Refugee Protection and Mixed Migration: The 10-Point Plan in Action

Http://Www.Unhcr.Org/50ab86d09.Html Accessed At 12:15 GMT, Friday, 18 th, April 2014.

61 Canada Visa Application Centres for Residents of the United Republic of Tanzania Start New Operations

with Enhanced Services in Dar es Salaam (CANVAC ) from International Organization for

Migration https://www.iom.int/cms/tanzania accessed at 20:25 GMT, Friday, 18th, April 2014.


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unaccompanied minors and other migrants. Projects and activities of IOM’s Mixed

Migration Unit fall into three categories: supporting the government of Tanzania with

equipment and infrastructure; assisting the voluntary return and reintegration of irregular

migrants and delivering workshops and training events for government officials.62 IOM is

still assisting the Government of Tanzania to build its capacity in managing these mixed

migration flows and increase their screening skills as to distinguish asylum seekers and

vulnerable migrants, as well as providing the migrants willing to return home with

voluntary return assistance.

IOM offers to migrants and governments “Assisted voluntary return and reintegration”

as a key migration management service. IOM’s objective is to provide enhanced support

to facilitate the voluntary return and reintegration of migrants to their countries of origin

especially when migrants are unable to stay in their host country. IOM offers assisted

return and reintegration services to stranded migrants and unsuccessful asylum seekers.

IOM offers pre-departure medical assessment, transportation and post-arrival assistance

is provided to unsuccessful asylum seekers, migrants in an irregular situation, migrants

stranded in transit, and other persons wishing to return home but unable to do so by their

own means.63

2.11.3 Integrated Border Management

Legendarily, the ability to address border management comprehensively and

cooperatively is today a fundamental requirement for effective national governance,

friendly international relations and full participation in international and regional

62 Conducted under the Refugee Programme Working Group of the United Nations Development Assistance

Plan (UNDAP 2011-2015) Tanzania - International Organization for Migration from

https://www.iom.int/cms/tanzania accessed at 20:25 GMT, Friday, 18th, April 2014.

63 Ibid


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institutions. It is the supposition of IOM that border management is inextricably linked to

human development, human rights, human mobility and human security.

In particular, IOM recognizes and recommend a need to reduce impediments to the

movement of both goods and people across borders in order to take full advantage of the

opportunities presented by the global market; inclusively the on-going regional integration

efforts undertaken by Regional Economic Communities are of more concern.64

IOM develops and implements projects on Capacity Building for Migration Management

(CBMM) and for Border Management (CBBM) developed in close cooperation with the

requesting authorities and address all segments along the migration management

continuum from labour migration to immigration and border management.65

2.12 Conclusion

The Ministry for Home Affairs through the Department of Immigration Services and the

Police Force are consistently vested with powers to handle immigration issues in the

United Republic of Tanzania. Through the current legal framework and machinery the

Ministry has managed successful to work hard hand in hand along the Borders and Ports

to ensure legal entry of immigrants from abroad.66

Therefore, migration issues are governed by various legal and institutional frameworks

ranging from local, regional-wise and international levels. That is Immigration

Department, Police Force and Ministry of Home Affairs supported by relevant National

legislations on migration issues. Under the EAC, migration is regulated in pursuance with

64 Tanzania - International Organization for Migration from https://www.iom.int/cms/tanzania accessed at

20:25 GMT, Friday, 18th, April 2014.

65 Ibid

66 Ibid


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Protocol on the Establishment of the East African Community Common Market 67while

under the African Union, Migration Policy Framework for Africa plays a vital role.

Moreover, IOM and UNHCR internationally regulate migration issues.

67 Made under Article 151 of the East Africa Community Treaty, 1999


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CHAPTER THREE

RESEARCH FINDINGS, DATA ANALYSIS AND INTERPRETATION

3.1 Introduction

The problem of influx of illegal immigrants in Tanzania can be pointed out from the

countries of origin such as Somalia, Sudan, Rwanda, Burundi, and Democratic Republic

of Congo, Ethiopia, and Eritrea. And most of illegal immigrants are found in transit to

South Africa (Destination Area) and others for stay in the United Republic of Tanzania.

This research aimed at exploring three hypotheses as follows:

(i) That the law in Tanzania is ineffective to curb the influx of illegal immigrants.

(ii) That the law in Tanzania to control the influx of illegal immigrants is not

properly enforced.

(iii) That the administrative measures taken in Tanzania to curb the influx of illegal

immigrants are ineffective.

The following is the discussion on the findings regarding the influx of illegal immigrants

in Tanzania and effectiveness of the law on border control and management.

3.2 Ineffectiveness of the law in Tanzania to curb the influx of illegal immigrants

The following are the problems of the laws governing migration issues;

First, The Immigration Act does not specify a time limit for irregular migrants awaiting

deportation can be held in administrative detention in pursuance with Section 12 (2).

Rather The Immigration Act as per Section 14 (5) only provides a time limit for prohibited


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migrant when waiting to be brought before a court the period of detention is not to exceed

28 days.68

The broad policy of the government is not to charge [irregular migrants] but to hold them

administratively pending deportation; this is largely a result of the fact that there is no

mechanism for profiling who is and who is not an asylum seeker when non-citizens are

criminally charged.

Another problem is absence of proportionality between fine imposed and imprisonment

term stipulated by the law. In some instances irregular immigrants are criminalized in

pursuance with S.31 (1) of the Immigration Act which provides for unlawfully entry or

unlawfully presence within Tanzania whose The maximum penalty being 100,000

shillings (approx. 50 €) and/or 3 years imprisonment. Penalties stipulated in the law

the influx of illegal immigrants in tanz

Documents