65. Of late, the Court of Appeal of Tanzania in Zakaria Kamwela & 126 Others v Minister of
Education and Vocational Training & A.G.46 has held that the protection afforded by Article 19(1) of the
Constitution ‘goes to religious belief and its manifestation.’
64.1 In this case, the issue for determination by the Court was the constitutionality of Circular
No. 4 of 6 June 1998 issued by the Commissioner for Education that compelled 127 secondary and
primary school students, believers of the Jehovah’s Witnesses Christian sect to sing the National Anthem
during school assemblies. In fact, the students refused to sing the National Anthem because it was
allegedly against their Bible-trained conscience, a fundamental religious belief held by all Jehovah’s
Witnesses. Although they attended school assemblies, the stood quietly and respectfully while other
students sang the National Anthem. They were subsequently eexpelled from school, consequent to which
they appealed to the Regional Education Appeal Board which on 12 October 2007 refused their appeal
on ground that the refusal to sing the National Anthem was a breach of the Constitution and the Circular.
Their further appeal to the Minister for Education was partly allowed on condition that they would only
allowed back to school if they signed a specific form requiring them to sing the National Anthem. When
they approached the Prime Minister, they were advised that if they were aggrieved by the Minister’s
conditional reinstatement they could only challenge it in court.
64.2 Consequently, on 19 March 2009 they petitioned the High Court seeking, inter alia, the
following declarations:
(i) the Minister’s conditional re-instatement violated the students’ freedom of religion
guaranteed under Articles 13(4) and 19(1)-(2) of the Constitution;
(ii) the Circular was in breach of Articles 19(1) and 29(1) of the Constitution; and
(iii) they be re-instated back to school without the imposition of any conditions.
However, on 2 December 2010 the High Court dismissed their petition. On appeal to the Court of
Appeal, it was held that the Appellants had a justified sincere and conscientiously held belief that singing
the National Anthem was against their religious conviction; and, as such, the Circular was not legally
binding; so, it could not override their freedom of religion guaranteed under Article 19(1) of the
Constitution.
(d) Freedom of association and peaceful Assembly (Article 8)
65. The State Party recognizes the fact that children like any other person have the right to freedom of
association and peaceful assembly. In order to effectively guarantee this freedom, the State Party has
constitutionalised it and it forms part of the enforceable provisions to both Constitutions of Zanzibar and the
United Republic of Tanzania. Through these constitutional provisions, “every person”, including a child, has
the freedom to associate with others and to peacefully assemble together with others with a view to publicly
expressing their opinion or views. The only restriction in the two Constitutions is in relation to formation of
political parties, whereby persons who decide to form a political party, should not have a cause that seeks to
advance religious, ethnic or tribal or certain regional interests; or which seeks to disintegrate the United
Republic of Tanzania; or that seeks to operate on only one part of the Union; or which does not allow periodic
elections of its leadership.
66. In order to give these constitutional provisions a practical application, the State Party has also
entrenched the child’s freedom of association and peaceful assembly in that it has allowed the formation of
Junior Councils in a Communities and children’s clubs in schools and various social life circles, whereby
children do associate and assemble to discuss matters concerning their well-being. Additionally the proposed
Constitution Article 42 also provides for this general right to freedom of association.
46
Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 3 of 2012 (unreported).
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