Role of the judge in the protection of human rights.
In marking 18 years since the passing of the late Chief Justice Francis Nyalali, we find inspiration in his paper delivered at the seventh Appellate Judges Conference held in Abuja, Nigeria, between 7 and 10 September 1992, titled ‘The Role of the Judge in the Protection of Human Rights’. In this seminal work Chief Justice Nyalali calls to duty the judiciary and the judge as important custodians of human rights and the rule of law.
‘The role of the judge in the protection of human rights, though usually exercised within the parameters of specific proceedings in specific cases, frequently goes beyond the court premises and the court proceedings. This is so because, the judge and the court do not operate in isolation or in an ivory tower, but are a component of a coherent and interdependent fabric of society.’ — Chief Justice Francis Nyalali
Nyalali reminds us that for human rights to survive and flourish they require protection without which, those rights are not worth the paper upon which they were written. It is fitting that as Tanzania’s longest serving Chief Justice he calls to question the role of the judge in not only protecting but also expanding human and peoples rights. His citing of the rulings of both the High Court and the Court of Appeal in the Daudi Pete vs. Attorney General of Tanzania could not be more relevant today. While the court then categorically birthed and protected the right to bail, our court today seems a distant shadow of itself having so considerably reversed one of the most precedent setting cases in our judicial history.
While it is 29 years since the delivery of his paper, Nyalali spoke and still speaks to contemporary Tanzania and to the judges in our chambers to borrow a leaf from the late Justice Mwalusanya in embracing judicial activism in order to provide in Tanzania a society founded on the principles of freedom, justice, fraternity and concord as prescribed in the preamble of our constitution.
In the face of a series of laws violating our constitution as well as international law, one can only hope that our judges will muster the same kind of boldness we saw in Nyalali to call out the law when it fails to protect our basic rights. And to do so with the same level of prudence and conviction that we saw both in Nyalali but also his peers like Mwalusanya, J who categorically stated in the Marwa Wambura Magori vs. R Misc. Criminal Case №2/1988 ‘it is not necessary to have rules in order to enforce human rights’. It is pertinent therefore for our courts to reconsider some of the recently enacted provisions of the law that, if anything, have posed considerable restrictions by introducing rules that would vividly bar many from accessing the ‘temple of justice’. As once stated by the former United Nations Deputy Secretary- General Jan Eliasson, ‘There can be no peace without development, no development without peace, and no lasting peace or sustainable development without respect for human rights and the rule of law.’
Chief Justice of Tanzania Francis Lucas Nyalali passed on on 2 April 2003 at 11:50 pm at the Aga Khan Hospital, Dar es Salaam after battling cancer for five years; the Center for Strategic Litigation joins the Nyalali family, his colleagues in public service and well wishers in honoring this proud son of the soil. Chief Justice Nyalali was survived by his wife Mrs. Loyce Phares Nyalali and four children Emmanuel ‘Kijana’ Nyalali, Karoli Magero Nyalali, Victor Bahati Nyalali and Bernadetta ‘Lulu’ Nyalali.
Deus Valentine Rweyemamu,
Chief Executive Officer of the Center for Strategic Litigation.
