As African Court Releases New Judgments, Tanzania Withdraws Individual Access
Tanzania has announced it will no longer allow individuals and non-governmental organizations to submit complaints against it to the African Court on Human and Peoples’ Rights (AfCHPR), amid growing concern for human rights conditions in the country. [Amnesty International] When it withdrew its declaration under Article 34 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights (the Protocol) last month, Tanzania became the second State to do so, potentially leaving only eight States that accept the African Court’s individual complaints mechanism. See IJRC, African Court on Human and Peoples’ Rights. The withdrawal follows years of Court judgments on Tanzania, principally on due process in criminal proceedings, and coincides with a new judgment holding that Tanzania’s mandatory imposition of the death penalty for murder convictions violates the human rights to fair trial and to life. [AfCHPR Press Release: Judgments; AfCHPR Press Release: Rajabu] The African Court is based in Arusha, Tanzania.
Tanzania accepted the Court’s jurisdiction to receive complaints brought by individuals and NGOs with observer status before the African Commission on Human and Peoples’ Rights (ACHPR) on March 29, 2010. See AfCHPR, Status List of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. Almost four years prior, in October 2006, Tanzania had agreed to the Court’s jurisdiction over complaints presented by States, the African Commission, and African intergovernmental organizations. See id.
Tanzania’s Minister of Foreign Affairs and East African Cooperation, Prof. Palamagamba Kabudi, reportedly signed the notice to the African Court withdrawing Tanzania’s declaration under Article 34 of the Protocol on November 14, 2019, and sent it to the African Union on November 21, 2019. [Amnesty International] There is no record of this notice on the African Union or African Court websites. On December 1, 2019, Tanzania’s Minister for Justice and Constitutional Affairs, Augustine Mahiga, announced that Tanzania had written to the African Court to withdraw from a protocol that it considers “contentious in the court’s operations,” but did not specify which protocol. [The Citizen] Since Amnesty International’s post on the withdrawal, the United Nations human rights office and media outlets have also shared the news. [Al Jazeera]
To date, Tanzania is the country with the highest number of AfCHPR judgments against it. Of the 76 finalized AfCHPR cases published on the Court’s website, 33 (or 40 percent) are against Tanzania. See AfCHPR, Contentious Matters. And, Tanzania is the State with the most cases filed against it by individuals and NGOs, with the majority alleging violations of the right to fair trial. [Amnesty International] As of December 3, the Tanzanian government has not specifically stated its reasons for withdrawing its declaration under Article 34 of the Protocol.
Only 10 States, including Tanzania, have ever accepted the Court’s jurisdiction to receive individual and NGO complaints. Tanzania is the second State to withdraw from the Court’s jurisdiction; Rwanda withdrew its declaration under Article 34 of the Protocol in March 2016. See IJRC, African Court on Human and Peoples’ Rights. While the Court has yet to comment on the validity of Tanzania’s withdrawal or how it will impact the cases currently pending against it, if a similar withdrawal process to that of Rwanda is set in motion, then Tanzania’s withdrawal will not take effect until a year after its notice of withdrawal is received and the withdrawal will not impact pending cases. See AfCHPR, Ingabire Victoire Umuhoza v. Rwanda, App. No. 003/2014, Ruling on Jurisdiction of 3 June 2016, paras. 67-68.
Validity and Scope of Withdrawal
Neither the African Charter on Human and Peoples’ Rights nor the Protocol to the African Charter contain a provision on denunciation or withdrawal of a declaration under Article 34 of the Protocol. However, following Rwanda’s withdrawal in 2016, the African Court considered the validity of Rwanda’s withdrawal of its declaration under Article 34 of the Protocol and held that “such withdrawal is valid under the Protocol.” See AfCHPR, Ingabire Victoire Umuhoza v. Rwanda, Ruling on Jurisdiction of 3 June 2016, para. 59.
In reaching this conclusion, the African Court first concluded that the Vienna Convention on the Law of Treaties, which provides under Article 56 that treaties that do not contain a denunciation clause are not subject to withdrawal unless it is established that the parties intended to admit this possibility or the nature of the treaty implies a right of denunciation or withdrawal, does not apply to a declaration under Article 34 of the Protocol to the African Charter. See id. at para. 54. While the Court acknowledged that the Protocol itself is subject to the Vienna Convention, it held that a declaration under Article 34 “is a unilateral act that is not subject to the law of treaties.” See id.
The Court instead looked to rules governing the international courts’ recognition of jurisdiction, including rules in the European Convention on Human Rights and the American Convention on Human Rights, as well as the international legal principle of State sovereignty. See id. at para. 55. The Court found that the European and Inter-American human rights systems allow declarations similar to the declaration made pursuant to Article 34. See id. at para. 56. As such, the Court held that a declaration under Article 34 is also optional and unilateral, and can be made without withdrawing from the full Protocol. See id. at para. 57. The Court held that Rwanda’s withdrawal from the Court’s jurisdiction over individuals and NGOs was valid under the Protocol. See id. at para. 59.
However, the Court held that the Article 34 withdrawal would only take effect one year from when Rwanda gave notice of the withdrawal. See id. at para. 66. If this condition is applied to Tanzania’s notice of withdrawal, then Tanzania’s withdrawal of jurisdiction will not take effect until November 2020 (if in fact the notice to the AU was sent in November as reported by Amnesty International). With respect to cases pending against Tanzania, the Court has said that the “legal principle of non-retroactivity” means that a withdrawal has “no legal effect on cases pending before the Court.” See id. at para. 68.
The African Court on Human and Peoples’ Rights began operating in 2006 and complements the role of the African Commission on Human and Peoples’ Rights in protecting fundamental rights across the continent. To date, 30 States have accepted the African Court’s jurisdiction to decide complaints referred to it by the African Commission, States, or African intergovernmental organizations. Tanzania’s withdrawal will likely mean that only eight AU countries will allow individuals and NGOs to have direct access to the Court a year from now.