In a major victory for advocates of a more participatory and representative Tanzanian government, the African Court on Human and Peoples’ Rights recently issued its first merits decision, in which it held that Tanzania had violated its citizens’ rights to freely participate in government directly or through representatives regardless of their party affiliation. The decision ordered Tanzania to take constitutional, legislative, and all other measures necessary to remedy these violations.
The consolidated applications of Tanganyika Law Society & Legal and Human Rights Centre v. The United Republic of Tanzania and Rev. Christopher R. Mtikila v. The United Republic of Tanzania claimed that Tanzania’s Eighth and Eleventh Constitutional Amendment Act, which required any political candidate for president, parliament, or local government elections to be a member of , and sponsored by, a political party “violated its citizens’ rights of freedom of association, the right to participate in public/governmental affairs, and the right against discrimination.“ See African Court of Human and Peoples’ Rights, Tanganyika Law Society et al. v. The United Republic of Tanzania, App. Nos 09/2011 and 11/2011, Judgment of 14 June 2013, para 4. The effect of the amendments, the applicants alleged, was to prohibit independent candidates from seeking political office and to nullify their right to contest presidential, parliamentary and local elections.
The applicants thus alleged before the African Court that Tanzania had violated, among other international obligations, Articles 2, 10, and 13(1) of the African (Banjul) Charter on Human and Peoples’ Rights. They contended that the prohibition was discriminatory and violated the rights to freedom of association and to participate in public or government affairs, in part because the requirements for forming a political party were significant and onerous. Id. at para. 89.3.
Exhaustion of Domestic Remedies
Although the individual applicant, Reverend Christopher R. Mtikila successfully challenged these constitutional amendments in the Tanzanian High Court (judgments here and here), the Court of Appeal later determined that the issue was a political one to be resolved by the legislature. The Tanganyika Law Society and Legal and Human Rights Centre argued that they were not required to exhaust domestic remedies because to do so would have been futile. Parliament, according to Tanzania, had “set in motion” a session to assess the views Tanzanian citizens regarding the prohibition of independent parties, but the session had yet to take place at the time the applicants sought relief from the African Court.
The African Court held that the remedies generally requiring exhaustion were judicial in nature, that Reverend Mtikila had appropriately exhausted those remedies, and that the two organizations were excused from going through the same process because the outcome “was known.” See Tanganyika Law Society et al. v. Tanzania, App. Nos. 09/2011 and 11/2011, at para. 82. The tribunal also rejected Tanzania’s objection, finding that the legislative proceeding was not a remedy the applicants were required to exhaust because it was a discretionary process that depended on the will of the majority and could be abandoned at any time. Id.
Analysis of the Merits
In its June 15, 2013 decision, the African Court mostly agreed with the applicants on the merits. With regard to Article 13(1) (participation in government), the court held that the African Charter enshrines an individual right protecting the freedom of every citizen to participate freely in government either directly or through a representative. In its view, the right is “not meant to be enjoyed only in association with some other individuals or groups of individuals such as political parties. The African Court found that Tanzania’s prohibition on independent candidates was neither permitted by Article 27(2) (limitations on individual rights) of the Charter nor proportionate to the “alleged aim of fostering national unity and solidarity” put forth by Tanzania. Tanganyika Law Society et al. v. Tanzania, Judgment of 14 June 2013, para. 107.2. In reaching its conclusion, the African Court looked to the doctrine of the European Court of Human Rights, Inter-American Court of Human Rights, United Nations Human Rights Committee, and African Commission on Human and Peoples’ Rights. Id. at paras. 106, 107.
The African Court further found that requiring individuals to be a part of or sponsored by a political party when seeking election violated their right to freedom of association protected by Article 10 of the Charter. The court stated its view “that freedom of expression is negated if an individual is forced to associate with others” and “if other people are forced to join up with the individual.” Id., at para. 113. It reiterated its finding that the justification cited by Tanzania was inadequate to fall within the State’s margin of appreciation in balancing freedom of association against other interests. Id. at para. 115.
Moreover, the court held that Tanzania’s amendment seeking to preclude independent candidates from office violated its obligations under Article 2 (non-discrimination) and Article 3(2) (equal protection), which recognize that each individual is entitled to the freedoms and equal protection of the African Charter without distinction of any kind, including political affiliation. The Court again dismissed Tanzania’s argument that the constitutional amendments restricting participation in government were permissible under an Article 27 limitation. Id. at para. 119.
With regard to Reverend Mtikila’s argument that Tanzania breached the rule of law by adopting the Eleventh Amendment, which eliminated independent candidates’ right to challenge elections, in order to avoid the effect of the High Court’s decision finding the Eighth Amendment unconstitutional, the African Court found that “the concept of the rule of law is an all-encompassing principle” which it could not properly address because the applicant had not alleged its violation in relation to a specific right. Id. at para. 121. Finally, the African Court considered it unnecessary to analyze the alleged violations of the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. Id. at para. 124.
The court directed Tanzania “to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of the measures taken;” it will subsequently consider the parties’ submission on reparations. Id. at para. 128.
The decision is a momentous one not only for the important precedent it establishes regarding the exercise of political and civil rights in Tanzania, but its precedent for the African continent. This is the first substantive decision that the African Court has issued since it was first established in 1998 by the Protocol to the African Charter. Individuals and non-governmental organizations are only entitled to initiate cases against a State Party before the African Court if the concerned State has declared its acceptance of the Court’s competence to receive such cases, under Article 34 (6) of the Charter. Although most African States have signed the Charter, as of this writing, only six countries have made this declaration: Burkina Faso, Ghana, Malawi, Mali, Rwanda, and Tanzania. Before the Tanganyika Law Society judgment, the Court had rejected every application before it as inadmissible or outside its jurisdiction, beginning with its first such decision in 2009—Yogogombaye v. Republic of Senegal and Femi Falana v. The African Union, App. No. 001/2008, Judgment of 15 December 2009.