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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

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
i

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____________________________

ii

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.

iii

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.
iv

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.

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

vi

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

vii

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).

viii

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

ix

No.

Number

Op. cit.

opere citato (In the work cited)

Op. cit.

Opere citato (in the work just quoted)

Pg.

Page

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


x

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.

xi

TABLE OF CONTENTS
CERTIFICATION .............................................................................................................. i
DECLARATION ............................................................................................................... ii
COPYRIGHT .................................................................................................................... iii
ACKNOWLEDGEMENT ................................................................................................ iv
DEDICATION ................................................................................................................... v
LIST OF STATUTES ....................................................................................................... vi
LIST OF CASES............................................................................................................. viii
LIST OF ABBREVIATIONS AND FOREIGN WORDS ............................................... ix
ABSTRACT ...................................................................................................................... xi
CHAPTER ONE .............................................................................................................. 1
GENERAL INTRODUCTION ....................................................................................... 1
1.1 Introduction to the Research Problem.......................................................................... 1
1.2 Background of the Problem ......................................................................................... 2
1.3 Statement of the Problem ............................................................................................. 4
1.4 Hypotheses ................................................................................................................... 6
1.5 Objectives of the Research ........................................................................................... 7
1.5.1 General Objectives .................................................................................................... 7
1.5.2 Specific Objectives ................................................................................................... 7
1.6 Significance of the Research ........................................................................................ 7
1.7 Literature Review......................................................................................................... 8
1.8 Research Methodology & Methods and Design ........................................................ 14
xii

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
xiii

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
xiv

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
1755
2) Apprehension Points source Immigration Detention in Tanzania: A Prison Survey
Report,

2013,

Asylum

Access,

Refugee

Solution

Tanzania

at

page

4356
3) Matokeo ya Utekelezaji wa Operesheni Kimbunga Awamu ya Pili..57

xv

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 Act2 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

Eugene K. Campbell: Reflections on Illegal Immigration in Botswana and South Africa Department of
Population Studies University of Botswana, Gaborone, Botswana, Pg. 29-43.

[Cap. 54 R. E. 2002].

[2002] TLR 22 (HC)

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 postindependence 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

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.

Tanzania Human Rights Report 2013, Legal and Human Rights Centre (LHRC) & Zanzibar Legal Services
Centre (ZLSC). Pg. 191.

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 postindependence Immigration services were determined by the Immigration
Ordinance 1961. In 1963, the Parliament of Tanganyika enacted the Immigration Act No.

Ibid, Pg. 192.

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

Ibid

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.

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.

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 Legal
Services 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-AndViews/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.

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.

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 illegal
immigrants 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.

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 victims
may, 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.

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. UNHCRs
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 with
crimes 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
14:00 GMT, On Monday, December 23, 2013.

16

Ibid

accessed

at

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 Tanzania18 depict that once the persons
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 and
imprisonment 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

10

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 districtDodoma.
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 countrys borders, it is questionable
as 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.

11

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-TheMiddle-East/East-Africa/Tanzania.Html. Accessed At 13:00 GMT, On Monday, December 23,
2013

12

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
Kagera22that 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.

13

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.

14

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

15

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. In
this 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.
16

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 studys 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.
17

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.

18

CHAPTER TWO
LEGAL AND INSTITUTIONAL FRAMEWORK ON ILLEGAL IMMIGRANTS
2.1 Introduction
The right to free movement as provided in pursuance with Article 17(1) of The
Constitution of the United Republic of Tanzania, 197726 is limited to the citizens of the
United Republic of Tanzania. It encompasses the right to live in any part of the United
Republic, to leave and enter the country and the right not to be forced to leave or be
expelled from the United Republic. Sub-article (2) of Article 17 (Supra) provides inter
alia that any lawful act or any law which is intended either to curtail a persons freedom
of movement and to restrain or imprison him; or to limit a person from exercising his
freedom of movement so as to execute a judgment or court order; or compel a person first
to comply with any obligations arising under another law such act or law shall not be
construed or be held to be repugnant to or inconsistent with the provision of this Article.
It is a valid speculation that the provisions relating to freedom of movement are limited to
citizens of the United Republic of Tanzania.
The Constitution of Zanzibar of 198427 under Article 16 (1) provides that every person
has a right of free movement, and for the purpose of this provision the freedom of
movement is meant to encompass the right of free movement to any part of Zanzibar, right
to live in any part of Zanzibar, the right to enter Zanzibar, the right to leave Zanzibar. SubArticle (2) of Article 16 (Supra) provides that restraint of movement resulting from lawful
imprisonment or arrest shall not be repugnant or inconsistent with this provisions.

26

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

27

The Constitution of Zanzibar of 1984 [2010 Edition]

19

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 Act29 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]

20

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.

21

2.3 Deportation of Prohibited Immigrants


Section 14 of The Immigration Act30 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]

22

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

32

Deodatus Mfugale Tanzania: Zanzibar Cracks Down on Illegal Immigrants


http://allafrica.com/stories/200102190326.html. accessed at 13:50 GMT 19/02/2014
[1987] TLR 94 (HC)

23

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 Market34 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 nondiscrimination 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

24

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-15th
December 2011 (Ref: Eac/Iom-Imm/02/2011). Pg. 11.

25

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 crossborder 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.

26

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 borders 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.

27

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.

28

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

29

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.

30

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

31

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.

32

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-sectorial
communication strategy for addressing violence against children including trafficked
children, the support to the Government in the development of regulations for the AntiTrafficking 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
IOMs Mixed Migration Unit works on issues that are connected to mixed migration flows
throughout the region.
including

refugees,

Mixed migration flows are complex population movements


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, 18th, 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.

33

unaccompanied minors and other migrants. Projects and activities of IOMs 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. IOMs 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

34

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

35

Protocol on the Establishment of the East African Community Common Market67while


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

36

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

37

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
governing illegal immigrants accordingly and regarding time factor the fine are too low
compared to imprisonment.69
Most of the respondents such as UNHCR and TRC Officers, Immigration Officers and
Magistrates elucidated that the law governing illegal immigration in Tanzania suffers from
some defects in terms of the proportionality of penalties since 100, 000/=Tshs fine
imposed is lower compared to three years imprisonment and the government should have
a well and clear framed policy regulating illegal immigration which may probably cure
the inherent defects of legal framework governing immigration issues.

68
69

Tanzania Detention Profile, Loc. Cit.


Ibid

38

3.3 The enforcement of the law in Tanzania and control the influx of illegal
immigrants
It is difficult to handle illegal immigration since the national boundaries are not fortified
leaving some special entrances through which the illegal immigrants could be easily
identified. Moreover, other illegal immigrants find a way into Tanzania through marine
transport the problem mostly persists in coastal region and regions around great lakes for
instance Mwanza, Geita, Kagera, Mara, Kigoma, Rukwa and Mbeya.
Correspondence from the Resident Magistrates at Tabora depict that from the experience
of the court the former repatriated refugees from Tanzania to Burundi and Rwanda forms
the part of sources of illegal immigrants in Tanzania this is due to porosity of borders. In
the same truck Ulyankulu Settlement Officers, categorically asserts that effective border
management and control seems to be unreachable and a non-accomplishable plan of action
or dream since it is very difficult to have specified and special entry points since there is
a danger and possible risks of having marine illegal entry of immigrants from abroad.
Another problem on enforcement of immigration laws regarding effective border control
is lack of relevant expertise in the management of migration as well as lack of technical,
human and financial resources to put in place the proper mechanisms and systems. The
then Permanent Secretary of the Ministry of Home Affairs, Mr Abdulwakil in a
Ministerial Conference on Migration Dialogue for Southern Africa, held in
Windhoek, Namibia on 15-17 November 2010; stated:
The Government of Tanzania is aware of the critical role migration management and border control
plays in combating various modalities of irregular migration and has through several actions, such as
the hosting of a recent regional workshop on related issues, showed its commitment to try to address
these issues and opened up for dialogue with countries of origin to try to identify possible solutions.70

70

Capacity Building For Border Management in Tanzania

39

Within this context several countries within the region are attempting to prevent flows of
irregular migrants, however such efforts is hampered by a lack of relevant expertise in the
management of migration as well as lack of technical, human and financial resources to
put in place the proper mechanisms and systems.
Another problem on enforcement of immigration laws regarding effective border control
is dishonest and corruption among migration officers and police officers.
Findings from The Citizen71 revealed that police officers in some airports have built a
network with other staff, including the Department of Immigration that provides foreign
nationals mainly from Ethiopia, Somalia and the Democratic Republic of Congo (DRC),
to enter the country without having and legally acceptable documents. Hence Police at the
International Airport in Dar es Salaam, are mentioned to be the protagonists of helping
illegal immigrants enter the country illegally. On the same truck the Director for Abeid
Karume Airport, Juma Salehe said the issue of illegal immigrants and immigration has
spread countrywide hence Police are even possibly involved in one way or the other
because they are responsible in inspection of passports and visas.72
Therefore, there should be capacity building of border officials, including provision of
training for fraudulent document detection, and establishment of mechanisms for cross
border cooperation in order to ensure exchange of information on border management
related issues.

http://eeas.europa.eu/delegations/tanzania/press_corner/all_news/news/2010/20101215_01_en.ht
m accessed hours 19:00 GMT, Monday, 21st April, 2014.
71

72

Polisi Watuhumiwa Kuvusha Wahamiaji Haramu, Mwananchi, 16th January 2014 Posted to
http://www.Mwananchi.Co.Tz accessed 10:00 GMT, March, 20th 2014.
Ibid.

40

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


illegal immigrants
The government of the United Republic of Tanzania under the Ministry of Home Affairs
through the Police Force and the establishment of National Identification Authority
(NIDA) have come up with administrative measures to curb the influx of illegal
immigrants in Tanzania. The government has launched National Identity Cards (IDs) and
conducted a search for various criminals, inter alia, illegal immigrants through operational
search known as Operesheni Kimbunga translated into English as Operation
Cyclone/Tornado.
3.4.1 National Identity Cards
The idea of a National ID card was introduced for the first time in 1968 at the Inter State
Intelligence Committee meeting of the Heads of State of Kenya, Uganda, Zambia and
Tanzania. Pursuant to that decision, the Cabinet Meeting No.3/85 of 1985 decided that
there should be registration of citizens and noncitizens. This resolution was implemented
by enacting the Registration and Identification of Persons Act, No.11/86 in 1986. The
Government contracted the preparation of a Feasibility Study for the National
Identification and Registration of Persons Program in 2006.73
The president approved the establishment of the governing body known as The National
Identification Authority (NIDA)" published in the Gazette, G. N. No.122 dated
08.01.2008.74 Ultimately, the national system of registration and identification of people
and provision of National Identity was launched in February 7, 2013.

73

74

Ministry of Home Affairs - National ID Registration http://www.moha.go.tz/index.php/national-idregistration accessed at 08:20 GMT, Thursday, 24th April 2014.
Historia ya Mradi wa Vitambulisho vya Taifa

41

Essentially the National Identity Cards may eradicate the problem of illegal immigrants
since it will make easy the identification of foreigners. However, the difficulties arise in
case of loss of the identity cards and immigration permits or delay in renewal due to some
irregularities in extension of time or deliberately over stay; and proof of genuineness of
identity cards. The experience shows that even countries having national identity cards
still face the influx of illegal immigrants. With regard to National Identification Cards, the
Minister for Home Affairs (2012), Emmanuel Nchimbi told the parliament in early August
(2012) that a lack of national identification cards and Tanzania's porous borders make it
possible for illegal immigrants to enter the country as reported in the Article entitled
Human trafficking elevated to serious crime in Tanzania.75
The Immigration Officers from Immigration Department at Tabora stressed that National
Identity Cards will create a system to identify an individual's nationality, legal status and
other information which is crucial to overall border management and control as well as
security efforts.
Conversely, regarding the National Identity Cards, on one hand, the experience shows that
even countries having national identity cards still face the influx of illegal immigrants the
reasons behind is that immigration system rests on pillar of family reunification. And
Green Card Marriage when foreign nationals intend to marry a citizen to avoid the usual
immigration laws. On the other hand, the practical challenges with visas and stay or work
permits are due to delay in renewal resulting from some irregularities in extension of time

http://www.nida.go.tz/swahili/index.php?option=com_content&view=article&id=62&Itemid=10
0 accessed 09:00 GMT, Thursday, 24th April 2014.
75

Human
Trafficking
Elevated
to
Serious
Crime
in
Tanzania,
http://sabahionline.com/en_GB/search?change_locale=true&commit=&q=Human+Trafficking+E
levated+to+Serious+Crime+in+Tanzania accessed 14:00 GMT, Friday, 02 May 2014.

42

or deliberately over stay; and proof of genuineness of visas and permits; and if any the
question of compliance with a due process of law arise.
3.4.2 Operesheni Kimbunga
The Operesheni Kimbunga team was successful in arresting inter alia perpetrators of
armed robbery and verifying the citizenship of suspected illegal immigration with officials
of the Department of Immigration to focus on Immigration Law and with due regard to
human rights protection. In this operation total of 12, 704 illegal migrants were arrested.
Data shows that Kagera region leads by capturing 7, 001 illegal immigrants, followed by
Kigoma where 5, 005 illegal immigrants were arrested while in Geita region 698 Illegal
immigrants were arrested.76
Disadvantages associated with Operesheni Kimbunga is bad intentions or revenge
allegiances since some people wanted to use the operation to avenge by telling lies to
incriminate others that are criminals or illegal immigrants. Another challenge faced
includes lack of fence to prevent our country's borders so they sent them Illegal Migrant
returning through the illegal rendition uncharted routes.77
The Police Officer, Shirima (one of the officers who conducted the operation) depict that
despite the fact that Operesheni Kimbunga was conducted in the manner that involved
government officers ranging from the grass roots such as Ward Executive Officers (WEO)
and Village Executive Officers (VEO) the operation raised the humanitarian concern of
the principle of family unification where the illegal immigrant is married to a Tanzanian

76

Deputy Police Commissioner Simon Sirro on behalf of the Commander of Operesheni Kimbunga
Mwanza, September 22, 2013 Operesheni Kimbunga Awamu ya Kwanza Yafikia Kilele kwa
Mafanikio Ministry of Home Affairs http://www.moha.go.tz/index.php/82-news-and-events/224operesheni-kimbunga-awamu-ya-kwanza-yafikia-kilele-kwa-mafanikio accessed 00:00 GMT,
Friday, 25th April, 2014.

77

Ibid

43

or/and where the illegal immigrant has issues. The government preferred that illegal
immigrants married to Tanzanians should not be repatriated; in turn some of illegal
immigrants have taken advantage of this loop hole to continue to reside in the United
Republic of Tanzania by simply getting married to a Tanzanian.
In practical sense, repatriation of illegal immigrants on the one hand or; criminalization
and detention and imprisonment of illegal immigrants on the other hand, have not
sufficiently and efficiently addressed and ultimately eradicated the problem of illegal
entry and stay in the United Republic of Tanzania. The experience shows that in Tanzania
under Operesheni Kimbunga most of the refugees and illegal immigrants who were
massively expelled and repatriated into their countries of origin are channelling back
illegally into the United Republic of Tanzania.
Illegal immigrants, the formerly repatriated Rwandese and Burundians assert that most of
illegal immigrants (Rwandese) entered the United Republic of Tanzania in 1990s running
away Genocide incidence. And from then most of them did not present themselves to the
appropriate authority for documentation due to securitization and requirement to reside in
designated areas as refugees or asylum seekers. Respondents further recount that
Operesheni Kimbunga is critical in the sense that the way it is conducted it does not
adhere and abide to international principles of family unification since the government
seems to encourage separation. Therefore, repatriation of illegal immigrants does not
suffice in itself to get rid of influx of illegal immigrants since individuals will endeavour
any means to make sure that they channel back in United Republic of Tanzania to join his
family.
Another ineffectiveness of Operesheni Kimbunga is on screening where there is a danger
in screening and possible risks of admitting illegal immigrants into a country regardless
of having effective border management control. In some bordering areas it is very difficult
to differentiate the natives and illegal immigrants for example Jaluo from Mara and those
44

of Kenya; Maasai from Tanzania and Kenya; Waha from Kigoma and Hutu from Burundi;
Makonde and Yao from Tanzania and Mozambique; Nyasa from Tanzania and Malawi;
Nyakyusa from Tanzania and Ngonde from Malawi; Fipa from Tanzania and Wemba from
Zambia. From this proposition it can be expounded that despite having effective border
control the problem the problem of illegal immigrants may still persist due to similarities
of tribes of natives and those of neighbouring.
Tanzania Human Rights Report 201378 depict that there were several reports that the
operation was conducted in disregard of basic human rights of the affected persons. The
rights abused include the right of ones family; right to own property; right to clean and
safe environment; citizenship rights; rights to education; right to freedom from torture;
right to freedom of movement; right to health, food and water.
It was reported that the operation failed to differentiate between legal and illegal
immigrants. People with valid Tanzanian residential documents, but who were born to
illegal immigrants, were also ordered to leave the country including who had a valid
Tanzanian voters registration card and who had a valid Tanzanian birth certificate. The
operation also victimized Tanzanians who were perceived to be immigrants.79
During the Operation some officials took advantage of the situation to enrich themselves
through the properties left behind. Allegations of corruption also marred Operation
Kimbunga. Local officials and immigration officers were allegedly protecting people with
money, especially the pastoralists, from being rounded up for expulsion.80

78

Tanzania Human Rights Report 2013, Op. Cit. Pg. 198.

79

Ibid

80

Ibid. Pg. 200.

45

3.5 Conclusion
Therefore, the hypothesis that the law in Tanzania is ineffective to curb the influx of illegal
immigrants in the United Republic of Tanzania is true hence Penalties stipulated in the
law governing illegal immigrants should be enhanced accordingly by regarding time
factor since the law governing illegal immigration in Tanzania suffers from some defects
in terms of the proportionality of penalties since 100, 000/=Tshs fine imposed is lower
compared to three years imprisonment. Moreover, the government should have a well and
clear framed policy regulating illegal immigration which may probably cure the inherent
defects of legal framework governing immigration issues. Consequently the legal
framework needs some reshuffle to meet the current situation.
The second hypothesis that the law in Tanzania to control the influx of illegal immigrants
is not properly enforced is true in the sense that the interception of illegal immigrants by
arrest, detention and imprisonment by Tanzania police officers and immigration officers
has created a humanitarian crisis both for the government of Tanzania, with
overpopulation of migrants in the prison and the home countries of the migrants. Hence
the legal framework should provide for special prisons and custody for detention of illegal
immigrants.
Since the enforcement mechanisms of the laws governing immigration issues have not
adequately get rid of the influx of illegal immigrants in Tanzania hence the best solution
to be invoked is to encourage and call states to effectively have joint border management
control initiatives so that to stop illegal emigration from the countries of origin under
which all emigrants shall be required to provide and show visas indicating the destination
countries and all necessary transit permits of a particular transit countries.
Hence the government should take appropriate measure such as fortification our porosity
Borders which are not fortified leaving some special specific entry points; and effective

46

control of coastal regions due to the reason that some of illegal immigrants enter Tanzania
through marine transport.
Regarding the third hypothesis that the administrative measures in Tanzania are
ineffective to curb the influx of illegal immigrants is true in the sense that despite the fact
that National Identity Cards will create a system to identify an individual's nationality,
legal status and other information which is crucial to overall border management and
control as well as security efforts; the problem may arise on proof of genuineness of such
cards.
On the other hand Operesheni Kimbunga raises the humanitarian concern of the
principle of family unification where the illegal immigrant is married to a Tanzanian
or/and where the illegal immigrant has issues. On the same ground the government
preferred that illegal immigrants married to Tanzanians should not be repatriated; in turn
some of illegal immigrants have taken advantage of this loop hole to continue to reside in
the United Republic of Tanzania by simply getting married to a Tanzanian.

47

CHAPTER FOUR
CONCLUSION AND RECOMMENDATIONS
4.1 Conclusion
Since 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 documents of high integrity supports efforts to make cross-border movement
easier for most travellers.81
The legal framework governing immigration issues suffers from inherent defects in the
sense that it does not specify a time limit for irregular migrants awaiting deportation can
be held in administrative detention. Section 14 (5) of the Immigration Act only provides
a time limit of 28 days for detention as per provides that when the prohibited migrant is
waiting to be brought before a court.
It is the apparently admission 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. Accordingly,
the authors firmly recommend with the eye and wit that the law should also be framed to

81

Migration Policy Framework for Africa, EX.CL/276 (IX), The Executive Council: Ninth Ordinary
Session 25 29 June 2006 Banjul, Gambia, Pg. 13.

48

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


relevant authorities on compliance with conditions stipulated in their work permits. 82
The interception of illegal immigrants by arrest, detention and imprisonment by Tanzania
police officers and immigration officers has created a humanitarian crisis both for the
government of Tanzania, with overpopulation of migrants in the prison and the home
countries of the migrants. Hence the legal framework should provide for special prisons
and custody for detention of illegal immigrants.
The enforcement of law against illegal immigrants is hampered by some challenges due
to high cost of repatriation and lack of a coordinated repatriation approach between transit
countries which often dump the migrants at the next border without arrangements for
onward transfer and inadequate legislative and policy framework and weak enforcement
of existing regulation
Tanzania is strongly attempting to eradicate the problem of illegal immigration; however
such efforts is hampered by a lack of relevant expertise in the management of migration
as well as lack of technical, human and financial resources to put in place proper
mechanisms and systems. Consequently, it is difficulty for Tanzania to have effective
border control and management.
Since mixed migration flows are complex population movements including refugees,
asylum-seekers, economic migrants, smuggled migrants, unaccompanied minors and
other migrants; hence it is difficult to handle with illegal immigration.
Essentially the National Identity Cards may eradicate the problem of illegal immigrants
since it will make easy the identification of foreigners. However, the difficulties arise in
case of loss of the immigrant Identity Cards and immigration permits or delay in renewal

82

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

49

due to some irregularities in extension of time or deliberately over stay; and proof of
genuineness of such cards. The experience shows that even countries having national
identity cards and immigrant identity cards still face the influx of illegal immigrants.
Therefore, since the problem of illegal and irregular immigration is an international
concern hence the best solution to be invoked is to encourage and call states to effectively
have joint border management control initiatives so that to stop illegal emigration from
the countries of origin under which all emigrants shall be required to provide and show
visas indicating the destination countries and all necessary transit permits of a particular
transit countries, and if any; then the appropriate authorities should ensure that such visas
and permits are genuine and were obtained after a due process of law.
With joint border management initiatives, Tanzania can eradicate the problem of illegal
immigrants through border management information system supported by capacity
building of border officials, including provision of practical training for fraudulent
document detection, and establishment of mechanisms for cross border cooperation in
order to ensure exchange of information on border management related issues.
Henceforth, 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 institutions.
4.2 Recommendations
Therefore, regarding the problem of illegal immigrants and effective border control, this
research recommends the following mechanisms and aspects:
The legal framework governing immigration issues should be reshuffled to meet the
current situation regarding time factor. Penalties stipulated in the law governing illegal
immigrants should be enhanced accordingly since maximum fine (100, 000/=Tshs)

50

imposed is lower compared to three years imprisonment. Also the government should
formulate a well and clear framed policy regulating illegal immigration.
The law should 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.
The legal framework and the law governing illegal immigrants should strictly and
categorically stipulate more offenses related to and in connection with illegal immigration.
Accordingly, to address the problem of illegal immigrants, the best solution to be invoked
is to encourage and call states to effectively have border management control initiatives
so that to stop illegal emigration from the countries of origin under which all emigrants
shall be required to provide and show visas indicating the destination countries and all
necessary transit permits of a particular transit countries, and if any, then the appropriate
authorities should ensure that such visas and permits are genuine and were obtained after
a due process of law.
The legal framework should provide for special prisons and custody for detention of
illegal immigrants. This will 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.
Citizens residing along the boundary should provide support and report to relevant
authority about illegal entry and boundaries should be fortified. Moreover employees in
entry points should not be corrupt.

51

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52

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Global Detention Project, http://www.globaldetentionproject.org
Immigration Services Department of United Republic of Tanzania - Official Website
http://immigration.go.tz/
International

Journal

of

Educational

Research

and

Reviews,

http://www.internationalscholarsjournals.org
International Organization for Migration http://www.iom.int/cms/tanzania
IPP Media http://www.ippmedia.com
Legal and Human Rights Centre (LHRC) http://www.humanrights.or.tz/reports
Ministry of Home Affairs of United Republic of Tanzania http://www.moha.go.tz
National

Identification

Authority

(NIDA)

of

United

Republic

of

Tanzania

http://www.nida.go.tz/
Tanzania

Consulate

Adelaide

Visa

Information

http://www.tanzaniaconsulateadelaide.com/visa1.html
53

&

Guidelines

The United Republic of Tanzania Japan Embassy http://www.tanzaniaembassy.or.jp/


UNHCR-Refugee Protection and Mixed Migration http://Www.Unhcr.Org/
REPORTS
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, at page 17
Tanzania Human Rights Reports 2012, Legal and Human Rights Centre (LHRC) &
Zanzibar Legal Services Centre (ZLSC), Dar es Salaam 2013
Tanzania Human Rights Reports 2013, Legal and Human Rights Centre (LHRC) &
Zanzibar Legal Services Centre (ZLSC), Dar es Salaam, 2014
Workshop Report on Migration and Regional Integration in the East African Community,
13th-15th December 2011 (Ref: Eac/Iom-Imm/02/2011)

54

Transit Roots & Points of Entries

Source: Immigration Detention in Tanzania: A Prison Survey Report, 2013, Asylum


Access, Refugee Solution Tanzania, Pg. 17

55

Apprehension Points

Source: Immigration Detention in Tanzania: A Prison Survey Report, 2013, Asylum Access,
Refugee Solution Tanzania, Pg. 43

56

JAMHURI YA MUUNGANO WA TANZANIA WIZARA YA MAMBO YA NDANI YA NCHI

PRESS RELEASE
MATOKEO YA UTEKELEZAJI WA OPERESHENI KIMBUNGA- AWAMU YA PILI - KUANZIA TAREHE
21/09 01 /10/2013 KAMA ILIVYOTOLEWA NA KOMANDI POSTI YA OPERESHENI KIMBUNGA
(MKOA WA KAGERA) TAREHE 02 OKTOBA, 2013
MCHANGANUO WA WAHAMIAJI HARAMU WALIOKAMATWA

SOMALIA

NCHI WALIZOTOKA WAHAMIAJI HARAMU

TUKIO

57

58

KWENYE HIFADHI

KIBOKO)
BANGHI (KG)
MAKOKORO
Imetolewa na Kamandi ya Operesheni Kimbunga Posti ya
Kagera, Tarehe 02 Oktoba, 2013 na kuandaliwa na: Kitengo
cha Mawasiliano ya Serikali,
WIZARA YA MAMBO YA NDANI YA NCHI.

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